text:
    The STATE of Florida, Appellant, v. Yoander ZALDIVAR, Appellee.
    No. 3D07-2933.
    District Court of Appeal of Florida, Third District.
    March 31, 2010.
    Rehearing and Rehearing En Banc Denied May 18, 2010.

      Bill McCollum, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellant.
    Grey and Mourin, and Juan E. Mourin, Miami, for appellee.
    Before SHEPHERD, CORTIÑAS, and SALTER, JJ.
   SALTER, J.

The State appeals a circuit court order suppressing certain physical evidence and statements made by the defendant to law enforcement officers regarding a burglary. We reverse.

I. The Burglary

As noted by the trial court in the suppression order, the pertinent facts are not in dispute. On April 4, 2006, burglars removed some $300 in cash and two fee-arms from a business in Hialeah. The next day, a surveillance video identified a former employee using a key to open the door of the business after it had closed. This allowed hooded or masked burglars to enter, burglarize the business, and exit.

The business owner recognized the former employee, and a detective immediately interviewed her. She admitted her involvement and agreed to identify the persons she claimed were the burglars. She provided the full name of one such person, Armin Dominguez, and the first name, Yoander, of another. She identified Dominguez when a detective showed her his driver’s license photo, and she provided Dominguez’s address and vehicle description as well. Law enforcement officers promptly set up' surveillance at the address provided by the former employee.

In about an hour, a vehicle matching the description given by the former employee, and occupied by two males, drove up to Dominguez’s residence. One of the detectives identified Dominguez as the driver.

II. The Vehicle Stop

As the car came up to Dominguez’s residence and was about to enter the driveway, the occupants spotted one of the unmarked cars and quickly sped away. The surveillance team called additional police units and the vehicle was blocked in a “felony stop” maneuver. Both occupants were directed to exit the car, at which point the police saw, through the clear windows of the vehicle, a shotgun on the back seat and a ski mask and cash box on the floor of the vehicle. Another handgun was also found.

The lead detective immediately identified himself as an investigator and read Dominguez his rights in Spanish per a Miranda card. Dominguez acknowledged that he knew that the police were there because of “the burglary last night.”

The passenger in the vehicle identified himself as “Yoander,” the first name that had been provided by the former employee. He was in fact Yoander Zaldivar, the defendant below and appellee here. Upon learning that first name, the detective administered a verbal Miranda warning to Zaldivar as well.

Zaldivar was then transported to the police station and provided a written Miranda form in Spanish, which he signed. Thereafter, he provided a comprehensive oral and written statement admitting his involvement (with Dominguez) as one of the burglars.

III. Analysis: Reasonable Suspicion and Motor Vehicle Passengers

The trial court found that this sequence of facts did not provide a reasonable suspicion to detain and question Zaldivar. At the very moment Dominguez and the vehicle were stopped, the officers did not know the passenger’s name and had no photographic identification to link the passenger to the burglary.

The Supreme Court of the United States considered the liberty interests of passengers in a lawfully-stopped car in Maryland v. Wilson, 519 U.S. 408, 414-15, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997):

[Djanger to an officer from a traffic stop is likely to be greater when there are passengers in addition to the driver in the stopped car. While there is not the same basis for ordering the passengers out of the car as there is for ordering the driver out, the additional intrusion on the passenger is minimal. We therefore hold that an officer making a traffic stop may order passengers to get out of the car pending completion of the stop.

See also State v. Hernandez, 718 So.2d 833, 836 (Fla. 3d DCA 1998).

Another District Court in Florida has held, as we do in this case, that a passenger in a car with an occupant reasonably suspected of criminal activity occurring within, or involving, the car may be questioned:

Occupants of a private vehicle are traveling together by choice and thus may be assumed to have some personal or business association with one another. Knowledge or suspicion that one of the occupants has been involved in criminal activity occurring within the car, or involving the car itself, serves as a basis for a reasonable suspicion that the other occupants may be participants in that activity.

Prestley v. State, 896 So.2d 862, 864 (Fla. 5th DCA 2005) (citation omitted).

Immediately after Dominguez’s car was stopped, the officers observed the stolen property (including a shotgun) in plain view in the back seat, and they learned that the passenger’s first name was ‘Yoan-der.” At that point, they had a founded suspicion as to Zaldivar as well.

The trial court cited, and Zaldivar relies upon, four cases defining an “arrest.” The court concluded that Zaldivar’s detention with Dominguez was an arrest without probable cause. As Wilson and Prestley (among others) make clear, however, the fact that an occupant is ordered out of a lawfully-stopped car, a permissible investigatory detention, does not transform that detention into an arrest. Here, the information obtained during and immediately after that detention then provided probable cause for Zaldivar’s arrest. See § 901.151, Fla. Stat. (2006).

IV. Conclusion

Had Zaldivar been the driver and only occupant of the vehicle when it was stopped by the police, the suppression order might stand. But in this case, the police had ample cause to stop Dominguez and the car he was driving. Such a stop includes the legal right to order other occupants to step out of the vehicle.

Once the police observed the stolen weapon, saw other evidence of the burglary in plain view in the car, and learned that the passenger’s first name was “Yoan-der,” they had probable cause to arrest Zaldivar, provide a Miranda warning, and question him. His motion to suppress the evidence of the burglary and his post-arrest statements should have been denied.

Reversed.

SHEPHERD, J.,

concurring.

I concur in the decision of the majority in this case. I write only to clarify the reasons for my concurrence.

This case arises out of the burglary of a video store, located in Hialeah, Florida, on April 4, 2006. The next morning, Detective Francisco Verdera was assigned to investigate the crime. Verdera was the sole witness at the suppression hearing.

Verdera testified that upon assignment, he and his partner responded to the crime location to speak with the owner. They also viewed a security video of the crime. The video showed three burglars were given entry to the business premises by a former employee, identified by the business owner as Maria Lorelys. Lorelys surreptitiously had obtained the keys to the business from a current manager after she was fired.

The detectives proceeded to Lorelys’ home. Upon being told she had been taped facilitating the burglary, Lorelys confessed her misdeeds and identified two of her three accomplices, Armin Dominguez and an individual she knew only by first name, Yoander. She was unable to name the third accomplice. She knew where Armin lived, having gone with him to his house after the burglary, and she agreed to take the detectives to the location. She also told them Armin drove a blue X-type Jaguar. Finally, she provided the detectives positive identification of Ar-min through a driver’s license photo obtained by the detectives.

After Lorelys identified Armin’s house, the detectives established surveillance at the location. The record does not indicate whether Lorelys remained at the scene; however, two back-up units and a total of at least six officers and detectives set up around the house. About an hour later, Armin arrived, driving the Jaguar. An unidentified male was in the passenger seat. After pulling into the driveway, Ar-min quickly backed out and sped off. Detective Verdera testified he believed Armin had detected the presence of a nearby sergeant’s vehicle “[who] hadn’t taken up a very good position.” Upon Verdera advising all units that Armin was in the fleeing Jaguar, the assembled officers and detectives gave chase, stopped and blocked the Jaguar a short distance away.

Verdera further testified that after the Jaguar was stopped, Armin and the unidentified passenger were “ordered out of the car at gunpoint” and “secured.” After both suspects were secured, without the use of handcuffs, the officers visually inspected the vehicle and immediately observed the weapon and other remnants of the burglary in the back, in plain view. The passenger then was patted down, and asked to identify himself. He identified himself as Yoander, the same name Lore-lys gave when identifying the second of the three men who co-perpetrated the burglary.

“Probable cause” is defined as “a reasonable ground of suspicion supported by circumstances strong enough in themselves to warrant a cautious person in the belief that the named suspect is guilty of the offense charged.” Johnson v. State, 660 So.2d 648, 654 (Fla.1995)(citing Dunnavant v. State, 46 So.2d 871 (Fla.1950)). As the name implies, its application depends on probabilities deduced from “the legal, factual and practical considerations of everyday life, taken in context, on which reasonable and prudent men, not legal technicians, act.” Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302, 93 L.Ed. 1879 (1949). It exists where “facts and circumstances within [an arresting officer’s] knowledge of which [he] had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reasonable caution in the belief that” a crime has been or is being committed. Carroll v. United States, 267 U.S. 132, 162, 45 S.Ct. 280, 69 L.Ed. 543 (1925); see generally Phillip A. Hubbart, Making Sense of Search and Seizure Law: A Fourth Amendment Handbook, 187 (2005).

In our case, there is no question a sufficiently individualized showing of wrongdoing by Armin at the time he was ordered out of his vehicle for arrest existed. Although the authorities did not know the identity of the passenger in the vehicle or why he was in the car with Armin, the fact that Armin sought to elude the authorities by flight provided sufficient justification for the police to order both the driver and the passenger out of the car at gunpoint. See D.N. v. State, 805 So.2d 63, 65 (Fla. 3d DCA 2002) (citing Maryland v. Wilson, 519 U.S. 408, 412-15, 117 S.Ct. 882, 137 L.Ed.2d 41 (1997)). His further detention was justified upon discovery of the contraband. See State v. Hunter, 615 So.2d 727, 734 (Fla. 5th DCA 1993) (concluding law enforcement’s observation of contraband, following the initial stop of the suspect, supported a finding of reasonable suspicion to continue the detention, and ultimately, probable cause to arrest). Zaldivar’s confirmation of his identity was the last piece needed to complete the probable cause puzzle.

      . Such a stop assumes that one or more of the occupants are armed and dangerous. Unlike a routine traffic stop, the police have their service weapons at the ready until they can confirm that the occupants pose no threat. The lead detective on this case testified that a felony stop was conducted in this instance "because there were firearms involved in the burglary."

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).

      . In this case, the law enforcement officers had a founded suspicion sufficient to stop Dominguez based on the statement given by the former employee, the visual identification of Dominguez as the driver (made possible because the lead investigator had obtained a copy of Dominguez's driver’s license photo), the appearance of the specifically-described car at Dominguez's residence as related by the former employee, and the attempt by Dominguez to flee once he spotted the police. See State v. Herrera, 991 So.2d 390, 392 (Fla. 3d DCA 2008).

      . The possession of stolen goods in the vehicle was established immediately after Dominguez was stopped.

      . The exact testimony on this point, given by Detective Verdera on direct examination, is as follows:
      Q. Now, what happened upon your stopping the vehicle?
      A. Did a felony stop, made them exit the vehicle. Once they were secure, we did like a visual inspection because there were firearms involved in the burglary.
      In the back seat in plain view, clear windows, we had the shotgun. We had a ski mask on the floor of the vehicle, and we had the box they had taken. It was a box with I think between $200, $300 that they had taken from the business the night before. It was there on the floor, also.


source: Caselaw Access Project

author: MARSTILLER, J.

license: Public Domain

text:
    Thomas A. WOLF, as Personal Representative of the Estate of Jerry G. Beckmeyer, Jr., Deceased, Appellant, v. PROGRESSIVE AMERICAN INSURANCE COMPANY, a Florida Corporation, Appellee.
    No. 1D09-4372.
    District Court of Appeal of Florida, First District.
    March 31, 2010.
    Rehearing Denied May 4, 2010.
    John E. Spiller of John E. Spiller, P.A., Kissimmee, and John S. Kalil of Law Offices of John S. Kalil, P.A., Jacksonville, for Appellant.
    Jeffrey E. Bigman and Melissa E. Morgan of Smith Hood Perkins, Daytona Beach, for Appellee.
   MARSTILLER, J.

This is an appeal from a final summary judgment finding that Jerry G. Beckmeyer, Jr., was not entitled to uninsured motorist (“UM”) benefits under his automobile insurance policy in force when he was killed in a motorcycle accident by an uninsured driver. At issue is whether section 627.727(1), Florida Statutes (2006), required Progressive American Insurance Company (“Progressive”) to include information about UM coverage options in Mr. Beckmeyer’s six-month policy renewal notice. We review the trial court’s grant of summary judgment de novo, see, e.g., Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000), O’Brien v. State Farm Fire & Cas. Co., 999 So.2d 1081, 1082 (Fla. 1st DCA 2009), and find the court correctly interpreted the plain language of the statute to require only annual notice of UM coverage options.

Under section 627.727(1), vehicle liability insurance policies must include UM coverage unless the named insured rejects such coverage in writing. The statute also provides, in pertinent part:

Unless an insured ... requests such coverage or requests higher uninsured motorist limits in writing, the coverage or such higher uninsured motorist limits need not be provided in or supplemental to any other policy which renews, extends, changes, supersedes, or replaces an existing policy with the same bodily injury liability limits when an insured ... had rejected the coverage.... The insurer shall notify the named insured at least annually of her or his options as to the coverage required by this section. Such notice shall be part of and attached to, the notice of premium, shall provide for a means to allow the insured to request such coverage, and shall be given in a manner approved by the office.

§ 627.727(1), Fla. Stat. (2006) (emphasis added). If an insurer fails to provide notice of UM coverage options in the manner required by the statute, the insured is entitled to such coverage even if it had been initially rejected. See Tobin v. Mich. Mut. Ins. Co., 948 So.2d 692 (Fla.2006); Patterson v. Cincinnati Ins. Co., 564 So.2d 1149 (Fla. 1st DCA 1990); N. Ins. Co. of N.Y. v. Hiers, 504 So.2d 1382 (Fla. 5th DCA 1987).

Mr. Beckmeyer rejected UM coverage in his application for auto insurance. The initial six-month policy period was August 28, 2005, to February 28, 2006. Before the policy period expired, Progressive sent Mr. Beckmeyer a renewal reminder and notice of premium due to continue the policy for another six months. The renewal notice did not include information regarding UM coverage options, and Mr. Beckmeyer did not elect such coverage for the renewal policy period, February 28, 2006, to August 28, 2006. Mr. Beckmeyer was fatally injured by an uninsured motorist on May 26, 2006. The personal representative of Mr. Beckmeyer’s estate asserts that Progressive’s failure to include the UM coverage information with the six-month renewal notice allows the estate to recover UM liability benefits to which Mr. Beckmeyer was entitled.

When a statute is clear and unambiguous, courts have no need to look behind the plain language or resort to rules of statutory construction to find legislative intent. Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla.2006); Peachtree Cas. Ins. Co. v. Prof'l Massage Servs., 923 So.2d 548, 551 (Fla. 1st DCA 2006) (citing Warren v. State Farm Mut. Auto. Ins. Co., 899 So.2d 1090, 1095 (Fla.2005.)) We do not read the plain language of section 627.727(1) to require that notice of UM coverage availability be sent more frequently than annually, even where, as here, the insured’s policy renews every six months. The statute states only that such notice must be sent “at least annually.” See Yzaguirre v. Progressive Am. Ins. Co., Inc., 793 So.2d 99, 100 (Fla. 2d DCA 2001) (referring to the “annual notice” required by section 627.727(1)); Allianz Ins. Co. v. Halpenny, 678 So.2d 368, 369 (Fla. 3d DCA 1996) (same). The statutory language requiring the notice to be “part of, and attached to, the notice of premium” dictates the manner in which the notice must be provided, not the frequency with which it must be provided. Progressive was not required to include notice of UM coverage options in Mr. Beckmeyer’s six-month policy renewal notice. Therefore, the trial court correctly found Mr. Beck-meyer was not entitled to UM benefits.

AFFIRMED.

WOLF and LEWIS, JJ, concur.


author: PER CURIAM.

text:
    David SELTZER and Ila Seltzer, Appellants, v. KEY WEST BANK, FSB, Appellee.
    No. 3D09-2646.
    District Court of Appeal of Florida, Third District.
    April 7, 2010.
    Rehearing Denied May 12, 2010.
    Coleman & Associates, P.A, Roderick F. Coleman and Cory S. Carano, Boca Raton, for appellants.
    Moskowitz, Mandel, Salim & Simowitz, Arthur E. Lewis and Todd A. Armbruster, Fort Lauderdale, for appellee.
    Before RAMIREZ, C.J, and SUAREZ and ROTHENBERG, JJ.
   PER CURIAM.

We recently reiterated that “[a] return of service that is ‘regular on its face is presumed to be valid absent clear and convincing evidence presented to the contrary.” Telf Corp. v. Gomez, 671 So.2d 818, 818 (Fla. 3d DCA 1996). Additionally, “a defendant may not impeach the validity of the summons with a simple denial of service.” Id. at 819. See also SunTrust Bank v. Elec. Wireless Corp, 23 So.3d 774, 776 (Fla. 3d DCA 2009).

Here, the return of service states that it was effected on Jerry Newton, a tenant/occupant residing with David Seltzer. Seltzer filed an affidavit signed by Jerry Newton, who does not deny that he was a tenant/occupant residing with David Seltzer, but states that his address is 25 Blue Bonnet Lane, Burnsville, North Carolina. A person can reside at one place and have a different mailing address.

We thus conclude that Seltzer failed to present clear and convincing evidence to invalidate the return of service which was regular on its face.

Affirmed.


author: WELLS, Judge.

text:
    Hector Orlando TORRES-MATMOROS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-1530.
    District Court of Appeal of Florida, Third District.
    April 7, 2010.
    Rehearing Denied May 4, 2010.

      Barry M. Wax, Miami, for appellant.
    Bill McCollum, Attorney General, and Ansley B. Peacock, Assistant Attorney General, for appellee.
    Before RAMIREZ, WELLS, and LAGOA, JJ.
   WELLS, Judge.

Hector Orlando Torres-Matmoros appeals his convictions and sentences for sexual battery and false imprisonment. The defendant raises four points of error on this appeal: (1) that the testimony of the arresting officer improperly bolstered the credibility of the victim; (2) that the State introduced improper hearsay testimony of the victim through the arresting officer; (3) that, during closing argument, the State improperly shifted the burden of proof to the defendant and made other improper comments; and (4) that the trial court allowed the State to introduce irrelevant, prejudicial evidence in violation of section 90.403 of the Florida Statutes. Finding no reversible error on any of these points, we affirm.

As to the bolstering claim, we find that the arresting officer’s re-direct testimony did not constitute bolstering, but only clarification of testimony adduced by Torres-Matmoros on cross-examination. See Ivory v. State, 821 So.2d 1258, 1260 (Fla. 4th DCA 2002) (applying the abuse of discretion standard and finding no reversible error where the trial court overruled the defendant’s objections that certain testimony by a witness constituted improper bolstering of credibility). As to the arresting officer’s un-objected to testimony on direct examination, it was neither bolstering nor fundamental error so as to support reversal here. See Fleitas v. State, 3 So.3d 351, 355 n. 3 (Fla. 3d DCA 2008) (confirming that bolstering claims are subject to the contemporaneous objection rule and fundamental error analysis).

As to the hearsay claim, we find that the arresting officer’s purportedly offending testimony concerning statements made to him by the victim were not offered to prove the truth of the matter asserted, and thus did not run afoul of the hearsay rule. See § 90.801(l)(c), Fla. Stat. (2009) (defining “hearsay” as a “statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”); Penalver v. State, 926 So.2d 1118, 1132 (Fla.2006) (finding that “if the statement is offered for some purpose other than its truth, the statement is not hearsay and is generally admissible if relevant to a material issue in the case”).

We further find no reversible error with respect to the prosecutor’s comments during closing argument. The sole statement made by the prosecutor regarding reasonable doubt, even if viewed as a burden shifting argument, was immediately corrected by the prosecutor, and, when viewed in context, was harmless beyond a reasonable doubt. See Stires v. State, 824 So.2d 943, 946 (Fla. 5th DCA 2002) (noting that burden shifting issues are subject to the harmless error analysis set forth in State v. DiGuilio, 491 So.2d 1129 (Fla.1986)). We decline to address those comments to which no contemporaneous objection was made in that they were not preserved for review and cannot under any standard be considered as fundamental error. See Brooks v. State, 762 So.2d 879, 898-99 (Fla.2000) (finding that “failing to raise a contemporaneous objection when improper closing argument comments are made waives any claim concerning such comments for appellate review” unless “the unobjected-to comments rise to the level of fundamental error”). As to the few remaining comments that did receive an objection, we find that the court’s rulings rejecting same to be without error in that the remarks were no more than fair comment on the evidence. See Mann v. State, 603 So.2d 1141, 1143 (Fla.1992) (“Merely arguing a conclusion that can be drawn from the evidence is permissible fair comment.”); Covington v. State, 842 So.2d 170, 172 (Fla. 3d DCA 2003) (“It is of course permissible for counsel to argue, based on the record, that one witness should be believed and another should not.”).

Finally, we cannot agree that the evidence concerning Torres-Matmoros’ treatment of the victim both before and after the sexual assault at issue here, even if irrelevant, was so prejudicial as to warrant reversal under section 90.403 of the Florida Statutes. See Denmark v. State, 927 So.2d 1079, 1082 (Fla. 2d DCA 2006) (finding that the appellate courts “apply a harmless error test to the improper admission of evidence under section 90.403”). Rather, we find that testimony was relevant to show the extent of the defendant’s disdain for the victim, and the level of control he exercised over her, factors that might explain her failure to report his attack for an extended period of time.

Affirmed.


author: SCHWARTZ, Senior Judge.

text:
    Tania CARNIELLO, et al., Appellant, v. SECOND HORIZONS CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D08-1326.
    District Court of Appeal of Florida, Third District.
    April 7, 2010.
    Rehearing Denied May 12, 2010.
    Carlton Fields and Thomas Meeks, Nancy C. Ciampa, Miami, Andrew D. Manko, Tallahassee, and Robert B. Macaulay, Miami; Alan Bryce Grossman, Weston; David A. Silverstone, for appellant.
    Juan E. Rodriguez, Miami, for appellee.
    Before RAMIREZ, C.J., and CORTIÑAS, J., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The primary issue in this case concerns the validity of a so-called “assessment lien” imposed on June 26, 2009 in favor of a condominium association on a unit purchased by Lazaro Núñez and Jeimy Salazar on June 2, 2004. The lien was for $4,051.74 incurred in repairing the air-conditioner on May 16, 2003, when it was owned and occupied by Tania Carniello. We find no basis for the establishment of a lien on the property, so as to burden a subsequent purchaser of the unit for those expenses, and therefore reverse to that extent the judgment on appeal.

The parties differ as to whether the case is controlled by the terms of the 1966 Declaration of Condominium or the 1976 Condominium Act. We need not resolve the controversy because a charge against the unit itself is not sustainable under either approach:

1. On the one hand, the Declaration of Condominium provides for a special assessment on non-common areas, like Carniello’s unit, only in the case of and “alteration” or “improvement.” This provision plainly does not apply to this case in which, as all agree, the inoperative air conditioner was simply repaired. See Siegle v. Progressive Consumers Ins. Co., 788 So.2d 355, 360 (Fla. 4th DCA 2001) (“In common usage, ‘repair’ means ‘to restore by replacing a part of putting together what is torn or broken’ or ... ‘to bring back to good or usable condition.’ ”); U.S. v. Blue Skies Projects, Inc., 785 F.Supp. 957, 961 (M.D.Fla.1991); Pritchett v. State Farm Mut. Auto. Ins. Co., 834 So.2d 785, 791 (Ala.Civ.App.2002); Webster’s Third New International Dictionary 63, 1138 (Philip Babock Gove, Ph. D., ed., Merriam-Webster, Inc. 1986) 1961 (“alteration” is defined as “a change or modification made on a building that does not increase its exterior dimensions”) (“improvement” is defined as “a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is distinguished from ordinary repairs”).

2. On the other hand, the statutory perquisites to a valid “special assessment” as provided by the Condominium Act were simply not demonstrated below. § 718.116(5)(b) Fla. Stat. (2008); § 718.116(10) Fla. Stat. (2008); Ferry-Morse Seed Co. v. Hitchcock, 426 So.2d 958, 961 (Fla.1983) (“In order to assert a statutory cause of action, the claimant must comply with all valid condition precedents; for an action cannot be properly commenced until all essential elements of the cause of action are present.”); Berg v. Bridle Path Homeowners Ass’n, Inc., 809 So.2d 32, 34 (Fla. 4th DCA 2002) (“It is well-settled in Florida law that the plaintiff is required to prove every material allegation of its complaint which is denied by the party defending against the claim.”); Star Lakes Estates Ass’n, Inc. v. Auerbach, 656 So.2d 271, 273 (Fla. 3d DCA 1995) (“[I]n order to foreclose on a unit based upon the unit owner’s failure to pay a special assessment, the condominium association was required to prove that it sent written notice of the ‘specific purpose or purposes’ of the assessment to each unit owner.”).

It follows that (conditioned on the prompt payment of $150, plus interest, properly assessed for repairs to a common element, the swimming pool), the judgments below are reversed and the cause remanded for dismissal of the action.

Reversed and remanded.

      .Section XIX of the Declaration of Condominium provides that the Association "shall have the right to make or cause to be made such alterations or improvements to the COMMON PROPERTY ... provided the making of such alterations and improvements are approved by the Board of Directors of said ASSOCIATION, and the cost of such alterations or improvements shall be assessed as common expense to be assessed and collected from all of the owners of PRIVATE DWELLINGS. However, where any alterations and improvements are exclusively or substantially exclusively for the benefit of the owner or owners of a PRIVATE DWELLING or PRIVATE DWELLINGS requesting the same, then the cost of such alterations or improvements shall be assessed against and collected solely from the owner or owners of the PRIVATE DWELLING or PRIVATE DWELLINGS exclusively or substantially exclusively benefited, the assessment to be levied in such proportion as may be determined by the Board of Directors of ASSOCIATION." (emphasis in original).

      . "To be valid, a claim of lien must state the description of the condominium parcel, the name of the record owner, the name and address of the association, the amount due, and the due dates. It must be executed and acknowledged by an officer or authorized agent of the association."

      . "The specific purpose or purposes of any special assessment, including any contingent special assessment levied in conjunction with the purchase of an insurance policy authorized by s. 718.111(11), approved in accordance with the condominium documents shall be set forth in a written notice of such assessment sent or delivered to each unit owner. ...”

      . We also reverse to the same extent the third-party judgment entered in favor of Nu-ñez and Salazar against Carniello.


author: SUAREZ, J. SHEPHERD, J.,

text:
    Vennila AMARAN, as Guardian of Preetha Amaran, Appellant, v. Aubyn MARATH, M.D., Appellee.
    No. 3D08-1010.
    District Court of Appeal of Florida, Third District.
    April 7, 2010.
    Rehearing and Rehearing En Banc Denied May 28, 2010.

      Gerson & Schwartz and Edward S. Schwartz and Philip M. Gerson, Miami, for appellant.
    Rodriguez, Aronson, Essington & Ross and Domingo C. Rodriguez, for appellee.
    Before WELLS, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

Vennila Amaran (“Ms. Amaran”), as Guardian of Preetha Amaran, appeals a final order of dismissal entered upon the granting of a motion to quash service of process for failure to serve the defendant, Aubyn Marath, M.D. (“Dr. Marath”), within 120 days of the filing of the amended complaint. We reverse. Based on the facts surrounding Ms. Amaran’s attempts to serve Dr. Marath, the trial court abused its discretion in dismissing the action pursuant to Florida Rule of Civil Procedure l.CfiCKj), where the statute of limitations had run at the time of the dismissal, serving as a final adjudication on the merits.

Ms. Amaran, mother of Preetha Amar-an, brought suit against Royal Caribbean Cruises, Ltd. (“RCCL”), and physicians serving aboard the vessel, Enchantment of the Seas, for brain injuries suffered by her daughter as a result of a cardiac arrest, which occurred when her daughter was exercising on a treadmill at the ship’s spa and fitness center. Her daughter later became totally disabled as a result of the injuries sustained. The appellee, Dr. Mar-ath, was added as a defendant after the first amended complaint was filed in March of 2005. Attorneys for Ms. Amaran attempted to locate Dr. Marath for service of process by sending discovery requests directed to RCCL. Her attorneys propounded interrogatories to RCCL in December of 2004 and October of 2005. On both occasions, in answer to interrogatories, RCCL stated that the address for Dr. Marath was in care of a South African employment agency. On March 29, 2006, RCCL wrote to Ms. Amaran’s counsel stating that the doctors and nurses had returned to their respective homes and therefore RCCL exercised no control to get any of them to travel to the United States to provide testimony. It was later learned by Ms. Amaran’s attorneys that during the time RCCL answered the interrogatories, Dr. Marath maintained a residence in Florida, owned real property in Tampa, Florida, owned motor vehicles registered in Florida, and, as of March 2007, had a Florida driver’s license. Dr. Marath had a faculty appointment at the University of South Florida Medical School in Tampa and was president and trustee of Cardiostart USA. The registered agent’s address for the company was in Brandon, Florida. The tax documents issued by RCCL in the doctor’s name also indicated a Tampa address. After numerous motions to compel, reflected in the record docket, RCCL eventually provided an accurate address for Dr. Marath on November 15, 2006, in a letter by counsel stating that, after additional investigation, his address was in Tampa, Florida. In that same month, RCCL provided the personnel file of Dr. Marath which contained and had contained the information concerning the doctor’s Florida addresses.

Ms. Amaran attempted to take Dr. Mar-ath’s deposition on several occasions from January of 2007 through March of 2007. Due to Dr. Marath’s schedule on Royal Caribbean Cruises, he was not produced for deposition until March 24, 2007, in Tampa, Florida, subject to an agreement that the doctor would not be served at that time. It was further agreed that service would be, and, in fact, was effected on July 6, 2007, in Portland, Oregon, where the doctor was then residing. On July 30, 2007, Dr. Marath moved to dismiss the amended complaint on grounds of insufficiency and untimeliness of service of process under Florida Rule of Civil Procedure 1.140(b)(2)(4) and (5), alleging lack of personal service, and to quash service of process pursuant to Florida Rule of Civil Procedure 1.070(j), as beyond the 120-day time limit for service. The trial court failed to find good cause attributable to the delay in serving Dr. Marath and dismissed the action although the statute of limitations had already run. Ms. Amaran appeals the final order dismissing the action. We reverse.

Florida Rule of Civil Procedure 1.070(j) provides three remedies for failure to serve a defendant within the specified 120-day period: 1. direct that service is effected within a specified time; 2. dismiss the action without prejudice; or 3. drop the untimely served defendant as a party. If the plaintiff shows good cause or excusable neglect leading to the delay in service, the court “shall” extend the time for service. See Skrbic v. QCRC Assocs., 761 So.2d 349 (Fla. 3d DCA 2000) (holding that action could not be dismissed absent finding as to whether there was excusable neglect to excuse the failure to serve process within the 120-day period).

In this case, in a series of interrogatories addressed to RCCL during 2005 and 2006, RCCL answered the specific interrogatories directed to the whereabouts or present address of Dr. Marath by stating that Dr. Marath could be contacted in care of a South African employment agency. Although Dr. Marath’s RCCL personnel file, which was not provided to Ms. Amaran until March of 2006, contained several Florida contacts and addresses where he could have been located and served with process, RCCL failed to produce the personnel file or even attempt to provide any information which could have led to an address or location for serving the doctor other than one in South Africa. The trial court failed to consider that the incorrect or misleading information which was knowingly provided by RCCL led to the delay in service of Dr. Marath. This failure to provide useful and correct information as to Dr. Marath’s whereabouts, coupled with Dr. Marath’s postponement of the scheduling of his deposition on numerous occasions until such time as plaintiffs counsel agreed to take the doctor’s deposition without serving him with process at the deposition, amounted to good cause for failure to serve within the 120-day period within the meaning of Rule 1.070(j). Payne v. Poynter, 707 So.2d 768 (Fla. 2d DCA 1998) (holding that agreement with Poynter’s predecessor counsel not to serve complaint on Poynter constituted good cause in delay of service and trial court abused its discretion by holding otherwise). Even if good cause had not been demonstrated, the trial judge should have exercised her discretion in favor of adjudicating the claim on the merits as opposed to dismissing it. See Premier Cap. LLC v. Davalle, 994 So.2d 360 (Fla. 3d DCA 2008) (reversing trial court’s dismissal where discretion not exercised to extend time for service pursuant to Rule 1.070(j) even if there has been no showing of good cause or excusable neglect where process server was led astray by information provided by defendant’s daughter in an attempt to serve defendant); Carter v. Winn-Dixie Store, Inc., 889 So.2d 960 (Fla. 1st DCA 2004) (finding that even where good cause has not been shown a trial court may grant relief from dismissal where statute of limitations has run); Almeida v. FMC Corp., 740 So.2d 557 (Fla. 3d DCA 1999) (noting the “absence of any prejudice to the defendants from ‘late service,’ as well as the potential result not intended by the rule that the [plaintiffs] would be precluded from ever having their case heard on the merits should the trial court’s dismissal stand”).

Florida law is clear that, under these facts, where the record demonstrates the defendant’s failure to produce known discovery information, where service of process has already been effected prior to the motion to dismiss and, where the statute of limitations has run, discretion under Rule 1.070(j) to deny dismissal or to extend the time for service must be exercised in accordance with Florida’s policy in favor of resolving civil disputes on the merits. Fla. R. Civ P. 1.070 (explicitly stating that a dismissal under this rule “shall not operate as an adjudication on the merits”) (emphasis supplied); Sly v. McKeithen, 27 So.3d 86, 88 (Fla. 1st DCA 2009) (holding that where good cause has not been demonstrated under Rule 1.070(j), “[b]ecause the statute of limitations had run and service had been obtained prior to the hearing on the motion to dismiss ... the trial court abused its discretion in granting the motion to dismiss”) (emphasis supplied); Nationsbank, N.A. v. Ziner, 726 So.2d 364, 367 (Fla. 4th DCA 1999) (holding that it is erroneous to drop a party and dismiss a case where the statute of limitations has run because it effectively adjudicates the complaint on the merits in contravention of Rule 1.070(j)); see Roberts v. Stidham, 19 So.3d 1155 (Fla. 5th DCA 2009); Premier Cap., 994 So.2d at 360; Carter v. Winn-Dixie Store, Inc., 889 So.2d at 960; Chaffin v. Jacobson, 793 So.2d 102 (Fla. 2d DCA 2001) (finding an abuse of discretion in not extending period of time for service where statute of limitations has run).

By dismissing the cause of action, the trial court abused its discretion. We therefore reverse the order and remand for further consideration.

Reversed and remanded.

WELLS, J., concurs.

SHEPHERD, J.,

dissenting.

I respectfully dissent. I do not believe the trial court abused its discretion by quashing the service of process made on Dr. Marath on the ground it was untimely. In fact, I believe it more likely the court would have abused its discretion had it not granted Dr. Marath’s motion. A more complete and precise recitation of the facts of this case is necessary to explain my decision.

The initial complaint was filed on March 8, 2004. The defendants named in the complaint were Royal Caribbean Cruise, Ltd., and Steiner Management Services, LLC. One year later, on March 1, 2005, the trial court entered its order granting the plaintiffs motion to file an amended complaint, which included Dr. Marath, another shipboard doctor, and three nurses as additional defendants. It was not until June 26, 2007 — two years and four months after the amended complaint was filed— that plaintiffs counsel went to the Office of the Clerk of Courts to obtain a summons to serve on Dr. Marath. See Fla. R. Civ. P. 1.070(a). Ten days thereafter, on July 6, 2007, the plaintiff effected personal service upon Dr. Marath at his place of employment in Portland, Oregon. Notably, counsel for plaintiffs own investigative records, supplied to the trial court prior to the hearing on the motion to quash service of process on Dr. Marath, reflect that he knew the whereabouts of Dr. Marath as of November 21, 2006, a full seven months before seeking the issuance of a summons to serve upon him.

At the hearing on the motion to quash, plaintiffs counsel summarized his reasons for the delay in serving Dr. Marath to the trial judge as follows: “A, we [were] misled deliberately by the co-defendant [Royal Caribbean] who is orchestrating the entire defense of the case; and B, we were relying in good faith what the law was when the Third District opinion was the state of the law in this district until the Supreme Court decided.” With respect to the first charge, the trial court ruled, based upon the record before it and argument of counsel, “I have no reason to believe that was the case.” Instead, it concluded that in not diligently proceeding to serve Dr. Mar-ath, plaintiffs counsel was “making a choice.” There is ample evidence in the record to support this conclusion.

Prior to February 15, 2007, the law of this District was that a ship owner was vicariously liable under the theory of re-spondeat superior for the medical negligence of a shipboard physician. See Carlisle v. Carnival Corp., 864 So.2d 1, 5 (Fla. 3d DCA 2003). However, on February 15, 2007, the Florida Supreme Court reversed this Court’s decision in Carlisle. Carnival Corp. v. Carlisle, 953 So.2d 461, 471 (Fla.2007), quashing 864 So.2d 1 (Fla. 3d DCA 2003). It was not until this point that plaintiffs counsel proceeded, as he candidly states in his initial brief, “as expeditiously as possible” to serve Dr. Marath. Plaintiffs counsel admitted to the trial judge at a hearing prior to that time, that he was trying to locate Dr. Marath, but “not really for the purpose of serving him, because we really don’t need to serve him, but for the purpose of obtaining his testimony.” It is obvious from these passages, as well as numerous other nearly identical statements and representations of plaintiffs counsel appearing in the record of this case, that the trial court did not abuse its discretion in concluding, on the record presented and argument made at the hearing on the motion to quash, the delay in serving Dr. Marath resulted from plaintiffs counsel “making a choice” not to proceed expeditiously to serve him while our opinion on the liability of cruise ship owners for the negligence of a shipboard physician remained the law of this District. See Emmer v. Brucato, 813 So.2d 264, 265 (Fla. 5th DCA 2002) (“Discretion ... is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by the trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.” (citing Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) (quoting Delno v. Market St. Ry. Co., 124 F.2d 965, 967 (9th Cir.1942)))).

In fact, the record reflects that during the two years and four months after the plaintiff obtained authorization to add Dr. Marath and other emergency medical personnel as defendants, the plaintiff propounded only one piece of discovery designed to identify the whereabouts of these new defendants. As the majority points out, this single piece of discovery was an interrogatory served on October 4, 2005, and was answered by Royal Caribbean just three months later, on January 17, 2006. The full question and answer reads as follows:

1. Please identify by name, address, telephone number, date of birth, social security or other national identification number, passport number, permanent home address, current last known address, present employer, and/or last known employer, spouse, or next of kin the following persons:
f. All physicians, surgeons, physicians’ assistants, registered nurses, LPN’s, medical technicians, or other persons with medical training and medical services responsibilities who were part of the crew on the date of the incident described in the complaint.
ANSWER:
Dr. Aubyn Marath
Ship’s Doctor
c/o Medsource CC
P.O. Box 11547, Bloubergrant
7443, South Africa

Contrary to the majority’s assertion, there is no record evidence of the filing of any motion to compel Royal Caribbean to provide a better answer to this interrogatory. If Royal Caribbean dragged its feet in dishing out discovery to the plaintiff, whether through inattention or with intent, it also must be admitted that plaintiffs counsel was complicit. The fact that plaintiffs counsel moved for only one 120 — day extension of time, found in Florida Rule of Civil Procedure 1.070(j), to serve Dr. Mar-ath, expiring September 6, 2005 — nearly two years before he actually was served, and two and a half years before the motion to quash was heard by the trial court on January 29, 2008 — further supports the trial court’s conclusion that plaintiffs counsel was “making a choice.”

Florida Rule of Civil Procedure 1.070© was adopted by the Florida Supreme Court in 1988 to provide a remedy to a strategic practice, sometimes employed by plaintiffs’ counsel in certain circumstances, to file a suit and then take no action whatsoever to proceed on the claim. Bice v. Metz Constr. Co., 699 So.2d 745, 746 (Fla. 4th DCA 1997). As originally adopted, the rule required plaintiffs to cause service of the summons and complaint within 120 days of filing, absent a showing of good cause. See In Re Amendments to Rules of Civil Procedure, 536 So.2d 974, 977 (Fla.1988). Ten years later, as experience revealed the rule sometimes acted to impose too severe a consequence on the unwary, see Amendment to Fla. R. Civ. P. 1.070(j)—Time Limit for Service, 720 So.2d 505 (Fla.1998), the Court broadened the rule to ameliorate these effects. See Amendment to Fla. R. Civ. P. 1.0700)—Time Limit for Service, 746 So.2d 1084 (Fla.1999); Amendment to 1.0700), 720 So.2d at 505. The rule currently reads:

(j) Summons; Time Limit. If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or drop that defendant as a party; provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period. When a motion for leave to amend with the attached proposed amended complaint is filed, the 120-day period for service of amended complaints on the new party or parties shall begin upon the entry of an order granting leave to amend. A dismissal under this subdivision shall not be considered a voluntary dismissal or operate as an adjudication on the merits under rule 1.420(a)(1).

Fla. R. Civ. P. 1.070 (2009) (emphasis added). As now written, the rule requires a trial court to grant a mandatory extension of time where good cause or excusable neglect is shown. Id.; Amendment to 1.070(j), 720 So.2d at 505. In addition, it affords trial courts broad discretion to extend the time for service, even when good cause is not shown. Premier Cap., LLC v. Davalle, 994 So.2d 360, 362 (Fla. 3d DCA 2008). However, as we have cautioned, “this discretion is not limitless.” Shtalenkov v. Deatherage, 943 So.2d 200, 201 (Fla. 3d DCA 2006).

One limitation that has developed in our law on this subject is attorney inadvertence or mistake. Our decision in Hernandez v. Page, 580 So.2d 793 (Fla. 3d DCA 1991), is instructive. In Hernandez, we were presented with the plaintiffs’ appeal of an order dismissing a re-filed action after the plaintiffs voluntarily dismissed, without prejudice, their first cause of action. Plaintiffs filed their initial complaint on January 10, 1989. They re-filed their action on February 2,1989, but never repeated service of process on the defendants. Some eight months later, the defendants moved for dismissal because service had not been made within 120 days after filing suit, as required by Florida Rule of Civil Procedure 1.070(j). The only reason proffered for the delay we thought worthy of consideration was the plaintiffs’ assertion the defendants waived service of process within the 120-day period by engaging in settlement negotiations. Because the record demonstrated the discussions occurred before the second action was filed, we affirmed the decision of the trial court. We wrote,

Plaintiffs’ attorney offers no argument or record. support to rebut the clear evidence that his office had simply forgotten about this case until the defendants filed their motion to dismiss some eight months after suit was refiled. Thus, the trial court did not abuse its discretion in finding that plaintiffs failed to demonstrate good cause for failure to comply with Rule 1.070(j). Inadvertence or mistake of counsel without more does not constitute sufficient good cause to avoid dismissal under the rule.

Hernandez, 580 So.2d at 795. In the case before us, the plaintiffs attorney did not “simply forget” to serve Dr. Marath. As he admitted at hearing on the motion to quash, he affirmatively elected not to do so. If it is not an abuse of discretion to dismiss a case for failure to comply with Florida Rule of Civil Procedure 1.070(j), where plaintiffs’ counsel “simply forgot” to serve the defendant, it necessarily follows it cannot be an abuse of discretion to dismiss a case where a plaintiff “make[s] a [knowing] choice” not to serve the defendant. See also Docktor v. McCrocklin, 669 So.2d 1129, 1129 (Fla. 4th DCA 1996) (reversing the denial of a motion to dismiss an amended complaint naming appellant as a defendant where “[tjhere [was] nothing in this record showing any reason why the mortgagee did not timely serve process, much less anything amounting to good cause”).

Plaintiffs counsel finally urges the trial court abused its discretion in dismissing this case because the governing statute of limitations effectively renders the dismissal an adjudication on the merits. This also appears to be the true concern of the majority in its reversal of the trial court’s dismissal of this case. The record reflects, however, the trial court was well aware of the statute of limitations consequence to a dismissal of the action, and considered it in its deliberations. Cf. Carter v. Winn-Dixie Store, Inc., 889 So.2d 960, 961 (Fla. 1st DCA 2004) (reversing order of dismissal where it was “unclear if the trial court was aware that even without good cause, it was still permitted to grant an extension of time for service if it was warranted under the circumstances”). One can sympathize with the plaintiffs predicament. However, defendants also have rights. One of those rights is to be free from stale claims by one who has willfully or carelessly slept on his legal rights. Major League Baseball v. Morsani, 790 So.2d 1071, 1074-75 (Fla.2001). The plaintiff, acting through her counsel, made a tactical decision not to seriously pursue Dr. Marath in this case for more than twenty-eight months. I find unescapable the conclusion that the plaintiff slept on her legal rights. See id.

The cases cited by the majority do not compel a different conclusion. For example, Nationsbank, N.A. v. Ziner, 726 So.2d 364 (Fla. 4th DCA 1999), stands for the unremarkable proposition that if a plaintiff attempts service during the 120-day period, allowed by Rule 1.070(j), and the defendant has notice of the attempt, “the rule accomplishes its objective” — “to prevent a plaintiff from filing a suit and then taking no action” — even if the attempt is legally deficient. Id. at 366. Under this type of circumstance, “dismissal of an action is improper.” Id. Chaffin v. Jacobson, 793 So.2d 102 (Fla. 2d DCA 2001), also referenced by the majority, is a factually distinguishable case in which, unlike our case, the trial court was found to have abused its discretion by dismissing a case where plaintiffs counsel assumed responsibility for a pro se action and served the defendant 135 days after filing an amended complaint. Id. at 102. The total delay, including the pro se period of prosecution, was de minimis in relation to the statute of limitation consequence wrought by the dismissal, and also was without sentient design. Id. at 102-103. Our reversal of the trial court order quashing service of process in Premier Cap., LLC v. Davalle, 994 So.2d 360 (Fla. 3d DCA 2008), was not at all out of any concern for the statute of limitations consequence of the order under review. Rather, as previously intimated, see supra at 94, we reversed the order of the trial court because of its “failure to consider that it was permitted to grant an extension of time for service, even without a showing of good cause” under the 1999 amendment to Rule 1.070(j)- Id. at 362. Finally, in stark contrast to the two-years and four-months of silence by plaintiffs counsel after he obtained leave to amend the complaint in our case — punctuated by a single 120-day extension of time to serve Dr. Marath, obtained on one occasion during the first few months of those years, see supra at 93 plaintiffs counsel, in the recent case of Sly v. McKeithen, 27 So.3d 86 (Fla. 1st 2009), evidenced his intent to pursue the defendants, Miko Davette Harris and Corrections Corporation of America, during the entirety of the one-year period from the date the complaint was filed to the date the defendants were served, by filing three motions for a 120-day extension of time to serve process, which blanketed the period. The plaintiffs counsel in that case was not sleeping on his .client’s legal rights.

The record in this case reflects Dr. Mar-ath is a British national, whose specialty is cardiothoracic surgery. He testified in his deposition he lived in Florida between 1994 and 1998. He and his wife then moved to Oregon, where he became associated with Emanuel Hospital in Portland, Oregon. He first served on a Royal Caribbean ship as a shipboard doctor in October of 2003. The total amount of time he has served as a shipboard doctor was approximately four months on four or five different occasions. Except for ordinary professional and personal travel, he has at all other times lived and worked in Portland, Oregon.

There is no evidence the plaintiff in this case ever tried to locate Dr. Marath by contacting Medsource. Nor did the plaintiff, prior to November 21, 2006 — a period of eighteen months after naming Dr. Mar-ath as a defendant — do any independent investigation to try to locate him. See Maher v. Best Western Inn, 667 So.2d 1024, 1027 (Fla. 5th DCA 1996) (Griffin, J., dissenting) (“It is reasonable for a lawyer representing a claimant to hire an investigator to locate a defendant for service of process.”). The fact of the matter is that these days, written discovery may be the least efficient way to locate a member of learned professions, such as the medical profession. In this instance, a brief Google search would have produced the business location for Dr. Marath at any moment plaintiffs counsel desired it.

Not only did the trial judge not abuse her discretion in dismissing this case, she eminently was correct in so doing. Throughout this entire period, plaintiffs counsel was “making a choice.” It is not our role to spare counsel from the consequences of his own strategic or tactical decisions.

I would affirm the trial court’s order of dismissal.

      . Florida Rule of Civil Procedure 1.070(j) states:
      (j) Summons: Time Limit. If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading directed to that defendant the court, on its own initiative after notice or on motion, shall direct that service be effected within a specified time or shall dismiss the action without prejudice or drop that defendant as a party; provided that if the plaintiff shows good cause or excusable neglect for the failure, the court shall extend the time for service for an appropriate period.

      . Plaintiff's October, 2005 interrogatories included the following:
      1. Please identify by name, address, telephone number, date of birth, social security or other national identification number, passport number, permanent home address, current last known address, present employer, and/or last known employer, spouse, or other next of kin the following persons:

      f. All physicians, surgeons, physicians' assistants, registered nurses, LPN’s, medical technicians, or other persons with medical training and medical services responsibilities who were part of the crew on the date of the incident described in the complaint.

      .RCCL's answer to interrogatories propounded by Ms. Amaran was as follows:
      Dr. Aubyn Marath
      Ship's Doctor
      c/o Medsource CC
      P.O. Box 11547, Bloubergrant

        7443, South Africa

      . The dissent points the finger at plaintiffs attorneys and states that “plaintiff's counsel was ‘making a choice' " by waiting to serve Dr. Marath as a type of trial strategy. We need not comment on plaintiff’s counsels’ decisions below in how to serve the doctor as our Supreme Court has cautioned that it does not wish to promote a policy that unduly punishes the litigant with dismissal based solely on the attorney's actions. See Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993) (“The purpose of the Florida Rules of Civil Procedure is to encourage the orderly movement of litigation. Fla. R. Civ. Pro. 1.010. This purpose usually can be accomplished by imposition of a sanction that is less harsh than dismissal and that is directed toward the person responsible for the [delay].") (emphasis supplied).

      . Medsource is an international provider of medical personnel to the cruise industry. Medsource was Royal Caribbean’s contact point for securing Dr. Marath to serve on the vessel where the incident occurred.

      . The trial court docket provided to us in this case is eighteen pages long and contains 617 entries. It reflects a pitched battle between the plaintiff and Royal Caribbean until the Florida Supreme Court issued Carlisle. As the majority states, numerous motions to compel were filed. See supra at 90. However, there is no indication that any of these motions sought a better answer to a question relating to the whereabouts of Dr. Marath. The fact that there was no such motion is confirmed by the trial judge during the hearing in response to plaintiff's counsel's assertion that he had been "repeatedly and deliberately misled by Royal Caribbean” when she countered, "You have not moved this Court to compel anything?” Counsel for the plaintiff made no effort to argue otherwise.

      . The plaintiff has evidenced even less appetite for proceeding against the additional co-defendants named in the amended complaint, see supra at 91-92, having neither served them por moved for any extensions of time to do so.

      . The rule as originally adopted read as follows:
      (j) Summons-Time Limit. If service of the initial process and initial pleading is not made upon a defendant within 120 days after filing of the initial pleading and the party on whose behalf service is required does not show good cause why service was not made within that time, the action shall be dismissed without prejudice or that defendant dropped as a party on the court's own initiative after notice or on motion.
      Fla. R. Civ. P. 1.070(j) (1989).

      . The plaintiff in this case actually had the benefit of a longer than usual statutory period within which to bring this action because it is a maritime action. Under federal law pertaining to maritime actions, the plaintiff had three years within which to commence her action against Dr. Marath, instead of the usual two years provided by section 95.11 of the Florida Statutes. See 46 App. U.S.C.A. § 763a ("[A] civil action for damages for personal injury or death arising out of a maritime tort must be brought within 3 years after the cause of action arose.”). This federal statutory limitation period ran approximately three weeks after the Florida Supreme Court reversed our Carlisle decision.

      . Each motion was filed before the expiration of the extension sought by the prior motion. The plaintiff's counsel apparently operated under the misimpression that the mere pendency of a motion for extension of time to serve a defendant under Florida Rule of Civil Procedure 1.070(j) insulates a plaintiff from a dismissal of his claim.

      . The majority makes much of the fact that Dr. Marath still has Florida property and is President of a Florida corporation. According to the plaintiff's own investigative research, finally undertaken in November of 2006, the property currently owned by Dr. Marath in Tampa serves as both a home for his daughter and business address of record for Cardiostart International, Inc., a non-profit corporation formed by Dr. Marath in 1998 for the purpose of providing free heart surgery to persons in third-world countries. Automobile registration records reflect two vehicles titled in his name are garaged at that address. Dr. Marath has not practiced medicine or been affiliated with a Florida medical institution since 1994.


author: ROTHENBERG, J.

text:
    Almyr GUIMARAES, Appellant, v. Michael PHELAN, Assignee for the Benefit of Creditors of National Opinion Research Services, Inc., Appellee.
    No. 3D09-2746.
    District Court of Appeal of Florida, Third District.
    April 7, 2010.
    Rehearing Denied April 29, 2010.
    Almyr Guimaraes, in proper person.
    Fowler White Burnett, P.A., and Ronald G. Neiwirth, Miami, for appellee.

      Before SHEPHERD, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, J.

Almyr Guimaraes appeals the non-final order denying his motion to dismiss and motion for injunctive relief. Because the denial of Guimaraes’ motion to dismiss is a non-final, non-appealable order, we dismiss that portion of the appeal. Fla. R. Civ. P. 9.130(a)(3). As to the remainder of the order which denies Guimaraes’ request for injunctive relief, we affirm as Guimaraes’ has failed to establish that the trial court committed a clear abuse of discretion. See Cohen Fin., LP v. KMC/EC II, LLC, 967 So.2d 224, 226 (Fla. 3d DCA 2007) (“In reviewing a trial court’s ruling on a request for a temporary injunction, we must affirm unless the appellant establishes that the trial court committed a clear abuse of discretion.”); Golden Shores Props., LLC. v. Santopietro, 792 So.2d 644 (Fla. 3d DCA 2001).

Affirmed in part and dismissed in part.


text:
    Karl Wesley JOHNSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2933.
    District Court of Appeal of Florida, Third District.
    April 7, 2010.
    Karl Wesley Johnson, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD, ROTHENBERG, and LAGOA, JJ.
   ROTHENBERG, J.

The defendant, Karl Wesley Johnson, appeals the trial court’s order denying his motion to correct illegal sentence pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. The defendant claims that the trial court erred when it failed to award him credit for the time he served in the above cases following a revocation of his probation. Because the trial court’s record attachments conclusively refute the defendant’s claim, we affirm .

Affirmed

      . The sentences imposed were as a result of a negotiated plea, where the defendant agreed to waive all credit for time served in exchange for a thirty-six month sentence in case number 06-30564 and a termination of probation without the imposition of an additional sen-Lence in case number 07-23977, as reflected by the “Acknowledgement Regarding Amount of Credit For Time Served” signed by the defendant and his attorney, attached to the trial court's order denying relief.


text:
    Ramon OSORIO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-3389.
    District Court of Appeal of Florida, Third District.
    April 7, 2010.
    Rehearing Denied May 12, 2010.

      Ramon Osorio, in proper person, for appellant.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., and WELLS, and LAGOA, JJ.
   WELLS, Judge.

Ramon Osorio appeals from an order denying his motion to compel the state attorney’s office to comply with his public records request under Chapter 119 of the Florida Statutes. As Osorio’s conviction and sentence are now final, see Osorio v. State, 29 So.3d 1131 (Fla. 3d DCA 2010), we reverse and remand for consideration of his public records request on the merits. See Roesch v. State, 633 So.2d 1, 2 (Fla.1993) (“There is no doubt that certain portion of the state attorney’s investigation file are public records under chapter 119 once a defendant’s conviction and sentence become final.”); Clowers v. State, 960 So.2d 840 (Fla. 3d DCA 2007) (confirming that a defendant who was preparing a motion for post conviction relief was entitled to copies of the state attorney’s prose-cutorial files pursuant to section 119.01 of the Florida Statutes); Woodfaulk v. State, 935 So.2d 1225, 1226 (Fla. 5th DCA 2006) (holding that the state attorney’s office is responsible for providing to prisoners the non-exempt “public records related to their convictions under chapter 119”).


text:
    Francisco PINEIRO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-418.
    District Court of Appeal of Florida, Third District.
    April 7, 2010.
    Rehearing Denied April 29, 2010.
    Francisco Pineiro, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD, ROTHENBERG, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Morgan v. State, 912 So.2d 642 (Fla. 5th DCA 2005).


text:
    Luis. A. PEREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-503.
    District Court of Appeal of Florida, Third District.
    April 7, 2010.
    Rehearing Denied April 29, 2010.

      Luis A. Perez, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before SHEPHERD, CORTIÑAS, and ROTHENBERG, JJ.
   ROTHENBERG, J.

Luis A. Perez appeals the trial court’s order summarily denying his motion for postconviction relief filed pursuant to rule 3.850, Florida Rules of Criminal Procedure. We affirm.

Perez claims that his trial counsel provided ineffective assistance of counsel for failing to file a notice of expiration of speedy trial and requiring the State to try him within the “recapture period.” We conclude that the trial court properly denied Perez’s motion both on procedural grounds and on the merits. On June 10, 2009, Perez filed his first motion for post-conviction relief, which was denied by the trial court on October 30, 2009, and affirmed on appeal. Perez v. State, 23 So.3d 123 (Fla. 3d DCA 2009). Because the instant claim is one which could have been raised in Perez’s first motion for postcon-viction relief, and his previous motion was decided on the merits, his second rule 3.850 motion was correctly denied as successive. Ragan v. State, 643 So.2d 1175 (Fla. 3d DCA 1994). We also find that the claim was properly denied on the merits. The record reflects that Perez’s trial counsel did file a motion to dismiss the charges on speedy trial grounds on May 1, 2007, the trial court properly heard the motion on May 4, 2007, and Perez was tried on May 10, 2007, within the speedy trial recapture period.

Affirmed.


author: SHEPHERD, J.

text:
    Jesse QUIROGA, Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 3D08-2942.
    District Court of Appeal of Florida, Third District.
    April 7, 2010.
    Rehearing and Rehearing En Banc Denied May 25, 2010.
    Katzman Garfinkel Rosenbaum and Richard Valuntas, West Palm Beach, for appellant.
    Roberto Villasante, Coral Gables, for ap-pellee.
    Before RAMIREZ, C.J., and SHEPHERD and SUAREZ, JJ.
   SHEPHERD, J.

This is an appeal from an order denying the law firm of Katzman Garfinkel and Rosenbaum’s motion to impress a charging lien on the homeowner’s insurance proceeds for damages caused by two hurricanes. The Katzman law firm secured the proceeds for the benefit of its client and policy insured, Jesse Quiroga, in appreciation for which Quiroga not only terminated the law firm’s contingent fee representation of him, but also sought to shield himself from any responsibility to compensate his counsel by claiming the insurance proceeds are exempt homestead property, not subject to attachment by means of a charging lien. See Art. X, § 4(a), Fla. Const.

The parties do not dispute the hurricane-damaged property is constitutionally exempt homestead property. See Cutler v. Cutler, 994 So.2d 341, 343 (Fla. 3d DCA 2008) (“To qualify for protection under Article X, section 4 of the Florida Constitution, a parcel of property must meet constitutionally defined size limitations and must be owned by a natural person who is a Florida resident who either makes or intends to make the property that person’s residence.”). In the event a homestead is damaged through fire, wind or flood, the proceeds of any insurance recovery are imbued with the same privilege. Orange Brevard Plumbing & Heating Co. v. La Croix, 137 So.2d 201, 203-04 (Fla.1962). Because Quiroga did not and, as a matter of public policy in this State, cannot through an unsecured agreement, such as the contingent fee agreement in this case, enter into an enforceable contract to divest himself from the exemptions afforded him through Article X, section 4(a), see Chames v. DeMayo, 972 So.2d 850, 853 (Fla.2007), this Court is compelled to affirm the order under review, the equities of the matter notwithstanding. See Pub. Health Trust of Dade County v. Lopez, 531 So.2d 946, 951 (Fla.1988) (“The homestead protection has never been based upon principles of equity.”) (citing Bigelow v. Dunphe, 143 Fla. 603, 197 So. 328, 330 (1940)); Pierrepont v. Humphreys (In re Newman’s Estate), 413 So.2d 140, 142 (Fla. 5th DCA 1982) (“The homestead character of a piece of property ... arises and attaches from the mere existence of certain facts in combination in place and time.”).

Affirmed.

      . Article X, section 4(a) reads as follows insofar as pertinent here:
      There shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon, except for the payment of taxes and assessments thereon, obligations contracted for the purchase, improvement or repair thereof, or obligations contracted for house, field or other labor performed on the realty, the following properly owned by a natural person: (1) a homestead ...


text:
    Nancy C. WEAR, Appellant, v. ALCA CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D08-3134.
    District Court of Appeal of Florida, Third District.
    April 7, 2010.
    Rehearing Denied May 25, 2010.
    Nancy C. Wear, in proper person.
    Gaebe, Mullen, Antonelli & DiMatteo, Miriam R. Merlo, and Anne C. Sullivan, Coral Gables, for appellee.
    Before COPE and GERSTEN, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Nancy C. Wear appeals from a final judgment entered in favor of Alca Condominium Association, Inc. contrary to a jury’s verdict. Because the trial court, in essence, improperly granted a judgment notwithstanding the verdict, we reverse and remand with instructions that the jury’s verdict be reinstated. See Melgen v. Suarez, 951 So.2d 916, 917 (Fla. 3d DCA 2007).

Reversed and remanded.


text:
    Eliyahu LEVY and Ramona Levy, Appellants, v. J.S.L. CONSTRUCTION CO. etc., Appellee.
    No. 3D09-816.
    District Court of Appeal of Florida, Third District.
    April 7, 2010.
    Airan2, Airan-Pace, Crosa & Fernandez and D.S. Airan, Michelle A. Crosa, and Vivian Lasaga, for appellants.
    Pepe & Nemire and Thomas F. Pepe, Coral Gables, for appellee.
    Before COPE, GERSTEN, and SUAREZ, JJ.
   PER CURIAM.

Affirmed. See Art. X, § 4(a), Fla. Const.; Trytek v. Gale Indus., Inc., 3 So.3d 1194 (Fla.2009).


author: CORTINAS, J.

text:
    INVEGO AUTO PARTS, INC., Appellant, v. Felix Israel RODRIGUEZ, Appellee.
    No. 3D09-843.
    District Court of Appeal of Florida, Third District.
    April 14, 2010.

      Marlon E. Bryan, Hollywood; Elizabeth K. Russo, Miami, and James H. Wyman, Ft. Lauderdale, for appellant.
    DiBello, Lopez & Castillo and Darin A. DiBello and Felix J. Lopez and Clayton D. Hackney, for appellee.
    Before SHEPHERD, CORTIÑAS, and ROTHENBERG, JJ.
   CORTINAS, J.

Invego Auto Parts, Inc., a would-be purchaser of real property, appeals the trial court’s order denying specific performance based on its finding that Invego was not ready, willing, and able to purchase the subject property at the time it exercised its option to purchase. We find that Inve-go proved that it was ready, willing, and able to purchase and, accordingly, we reverse.

A decree of specific performance is an equitable remedy granted at the discretion of the trial court. It can be granted only when “1) the plaintiff is clearly entitled to it, 2) there is no adequate remedy at law, and 3) the judge believes that justice requires it.” Castigliano v. O’Connor, 911 So.2d 145, 148 (Fla. 3d DCA 2005) (citing Mrahunec v. Fausti, 385 Pa. 64, 121 A.2d 878, 880 (1956)). In order to invoke the remedy of specific performance, “the plaintiff must do more than merely prove his case by a preponderance of the evidence, ... he must prove the contract as alleged in his complaint by competent and satisfactory proof which must be clear, definite, and certain.” Miller v. Murray, 68 So.2d 594, 596 (Fla.1953) (quoting Miller v. Gardner, 144 Fla. 339, 198 So. 21, 23 (1940)). Otherwise, “the trial court has no discretion to award specific performance.” Shapiro v. Jacobs, 948 So.2d 880, 882 (Fla. 3d DCA 2007) (citing Castigliano, 911 So.2d at 148). Thus, the plaintiff must prove that “[a]s a condition precedent to specific performance ... [it] either pa[id] the contract sum; tendered] it; ... [was] ready, willing and able to do so; or ... [was] excused from so doing.” Glave v. Brandlein, 196 So.2d 780, 781 (Fla. 4th DCA 1967).

A plaintiff can prove it was “financially ready and able to buy” if it

(1) ... ha[d] the needed cash in hand, or (2) ... [was] personally possessed of assets-which in part may consist of the property to be purchased-and a credit rating which enable [it] with reasonable certainty to command the requisite funds at the required time, ... or (3) ... ha[d] definitely arranged to raise the necessary money-or as much thereof as [it] is unable to supply personally-by obtaining a binding commitment for a loan to [it] for that purpose by a financially able third party, irrespective of whether such loan be secured in part by the property to be purchased.

Hollywood Mall v. Capozzi, 545 So.2d 918, 920-21 (Fla. 4th DCA 1989) (italics omitted).

Invego argues that it was ready, willing, and able to perform when it notified Felix Rodriguez, the owner of the property, of its intention to exercise the option. It submitted into evidence documentation showing that it had used the mortgages on $16 million worth of property as collateral to obtain a $1 million loan from a Colombian bank and that this loan was available for a ten-year period. The bank’s commercial manager testified as to the authenticity of the loan guarantee document and confirmed that the financing had been in place when Invego had attempted to exercise the option. Together, this evidence is sufficient to prove that Invego had a binding commitment to obtain the necessary funding from a financially able third party.

“When a case is tried without a jury, the trial judge’s findings of fact are clothed with a presumption of correctness on appeal, and these findings will not be disturbed unless the appellant can demonstrate that they are clearly erroneous.” Univ’l Bevs. Holdings, Inc. v. Merkin, 902 So.2d 288, 290 (Fla. 3d DCA 2005) (citations omitted). Therefore, “[although we are reluctant to reverse a judgment of a trial court on a fact issue, it is our duty to do so when there are no facts on the record which would support that judgment.” Capozzi, 545 So.2d at 921 (citing Oceanic Int’l Corp. v. Lantana Boatyard, 402 So.2d 507, 511 (Fla. 4th DCA 1981)). This is one of those instances. Although it was Invego’s burden to prove its own capacity, it did so by clear and convincing evidence when it presented the loan guarantee, which was supported by the testimony of the bank’s representative. The burden then switched to Rodriguez to rebut Invego’s evidence, but Rodriguez failed to present a single piece of evidence or testimony to disprove Invego’s assertion that it was ready, willing, and able.

In light of the overwhelming evidence that Invego was ready, willing, and able to perform, the trial court erred in not awarding specific performance.

Reversed and remanded.


text:
    Widtson GABRIEL a/k/a Winston Gabriel, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2699.
    District Court of Appeal of Florida, Third District.
    April 14, 2010.
    Widtson Gabriel a/k/a Winston Gabriel, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, GERSTEN, and LAGOA, JJ.
   PER CURIAM.

Widtson Gabriel (“the defendant”) appeals the denial of his motion to correct sentence to reflect jail time credit. We affirm without prejudice.

Here, the defendant’s motion states only that he was arrested on August 1, 2008 and was released on probation on October 16, 2008. This is insufficient to state a claim for jail time credit. Fla. R.Crim. P. 3.800. However, the defendant should be given an opportunity to amend his motion. See Spera v. State, 971 So.2d 754 (Fla.2007).

Accordingly, we affirm the denial of the defendant’s motion because it is legally insufficient.

Affirmed.


text:
    Cortez McMILLAN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2416.
    District Court of Appeal of Florida, Third District.
    April 14, 2010.
    Cortez McMillan, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before RAMIREZ, C.J., GERSTEN, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Cortez McMillan (“the defendant”) appeals from the summary denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. We affirm in part, and remand for further proceedings.

In his initial motion, the defendant raised two issues. Thereafter, he filed two amendments to his Rule 3.850 motion, raising three additional issues. The trial court denied the issues raised in the initial motion, but has not yet ruled on the issues raised in the amendments to the motion.

Accordingly, we affirm the trial court’s order denying on issues one and two, but remand for further proceedings on issues three through five.

Affirmed in part, and remanded for further proceedings.


author: SUAREZ, J.

text:
    S.R., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-1964.
    District Court of Appeal of Florida, Third District.
    April 14, 2010.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before GERSTEN, SUAREZ, and CORTINAS, JJ.
   SUAREZ, J.

We affirm. No objection to the restitution order was raised below and cannot now be raised on appeal. See J.S. v. State, 717 So.2d 175, 177 (Fla. 4th DCA 1998) (“When the trial court questioned the attorneys about the propriety of restitution for lost wages, both attorneys agreed that lost wages were recoverable. Having failed to object to this restitution issue at the hearing, appellant failed to preserve this issue for appellate review.”) and cases cited therein; see also Fla. R.App. P. 9.140(e) (“a sentencing error may not be raised on appeal unless the alleged error has first been brought to the attention of the lower tribunal: (1) at the time of sen-fencing; or (2) by motion pursuant to [rule] 3.800(b)”).

Affirmed.


author: SCHWARTZ, Senior Judge. CORTIÑAS, J.

text:
    Renee ROTTA, Appellant, v. Dan ROTTA, Appellee.
    No. 3D09-1836.
    District Court of Appeal of Florida, Third District.
    April 14, 2010.
    Rehearing and Rehearing En Banc Denied May 28, 2010.
    Lee Milich, Ft. Lauderdale, for appellant.
    Mitrani, Rynor, Adamsky & Toland, Pamela A. Chamberlin, and Sholom Boyer, for appellee.
    Before RAMIREZ, C.J., and CORTINAS, J., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

Upon review of a final judgment of dissolution of marriage, we hold as follows:

(1) The portion of the judgment returning to the husband $400,000 he had voluntarily and unconditionally paid the wife to reduce a self-acknowledged debt to her is vacated both because (a) that relief was never pled, asserted, claimed in any other fashion, or a subject of the trial, See Dysart v. Hunt, 383 So.2d 259, 260 (Fla. 3d DCA 1980) (“[A] judgment upon a matter entirely outside of the issues made by the pleadings cannot stand.”) (citing Cortina v. Cortina, 98 So.2d 334, 337 (Fla.1957)); Udell v. Udell, 950 So.2d 528 (Fla. 4th DCA 2007); Douglas v. Douglas, 616 So.2d 574, 575 (Fla. 5th DCA 1993) (It was improper for the trial court to award mortgage payments as part of equitable distribution “in the absence of a claim for such contained in a pleading.”); and (b) cannot substantively be justified. See Lotspeich Co. v. Neogard Corp., 416 So.2d 1163, 1164 (Fla. 3d DCA 1982) (The trial court’s “personal dislike” for the terms of a settlement agreement was not valid reason for directing a verdict against the defendant.); Steiner v. Physicians Protective Trust Fund, 388 So.2d 1064, 1066 (Fla. 3d DCA 1980) (“Courts may not rewrite a contract or interfere with the freedom of contract or substitute their judgment for that of the parties thereto in order to relieve one of the parties from the apparent hardship of an improvident bargain.”); Churchville v. GACS Inc., 973 So.2d 1212, 1216 (Fla. 1st DCA 2008) (“It is never the role of a trial court to rewrite a contract to make it more reasonable for one of the parties or to relieve a party from what turns out to be a bad bargain.”) (citing Barakat v. Broward County Hous. Auth., 771 So.2d 1193, 1195 (Fla. 4th DCA 2000)).

(2) The award of a portion of the Guardian Ad Litem fees against the wife is reversed for a new hearing, as unsupported by any evidence of what those services were or their claimed value.

(3) Contrary to the ruling below, the ex-wife was entitled to prejudgment interest on the fixed obligations owed her by the husband. See Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212 (Fla.1985); Lyons v. Wyman, 658 So.2d 1104 (Fla. 4th DCA 1995); Nielsen-Miller Construction Co. v. Pantlin/Prescott, Inc., 602 So.2d 1366 (Fla. 4th DCA 1992).

The judgment is otherwise affirmed.

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

RAMIREZ, C.J., concurs.

CORTIÑAS, J.

(dissenting).

Although much of the final judgment of dissolution of marriage was pursuant to stipulation of the parties and based on the prenuptial agreement, the primary dispute involved the determination of marital debts: the former husband claimed approximately $310,000 from the former wife, and the former wife claimed nearly $750,000 from the former husband. The only uncontested debt was for $239,323.04 evidenced by promissory notes from the former husband to the former wife; the former husband’s three financial affidavits acknowledged an “estimated” debt of $550,000. Shortly after he filed for divorce, the former husband wrote the former wife three checks for $10,000, $12,000, and $400,000, “in partial payment of a marital debt.” He testified that the $400,000 figure was an “arbitrary number”; the total amount of the marital debt remained under dispute until the final judgment was entered a year and a half later. It was clearly not a Valentine’s Day gift to his soon-to-be ex-wife.

The trial court, after considering the various alleged debts, determined that the former wife owed the former husband approximately $98,000 from six claims, and the former husband owed the former wife only the $239,323.04 debt evidenced by the promissory notes. Reasonably, the court ordered that the former husband’s $422,000 checks be credited toward his debt to the former wife and that the former wife repay the former husband $182,676.80, the amount by which the checks exceeded his debt.

On appeal, the former wife contends that the $422,000 was a “partial settlement” that the trial court should not have disturbed. Nowhere does the former wife indicate what was settled by the former husband’s payments, but clearly nothing was, as the parties continued to litigate all of the alleged debts for another year and a half; in fact, she admitted at trial that she did not know to which of his debts the payment should apply in the event she prevailed on them all. Furthermore, there is nothing in the record to support this argument, nor did the former wife ever make it at trial. She is therefore precluded from raising it for the first time here because it “must [have been] presented to the lower court and the specific legal argument or ground to be argued on appeal or review must [have been] part of that presentation if it is to be considered preserved [for appeal].” Tillman v. State, 471 So.2d 32, 35 (Fla.1985). The former wife argues that the former husband in his financial affidavits admitted a $550,000 marital debt, completely disregarding that the affidavits themselves identify the amount as “estimated.” See West v. West, 399 So.2d 428, 431 (Fla. 5th DCA 1981) (holding that estimated figures in a financial affidavit are permissible if not “grossly overstated or reasonable”). The former wife also argues that the $422,000 payments are evidence of the former husband’s indebtedness of at least that amount, ignoring Florida law prohibiting a partial payment in settlement of a debt from serving as evidence of the indebtedness. See § 90.408, Fla. Stat. (1976) (“Evidence of an offer to compromise a claim which was disputed as to validity or amount ... is inadmissible to prove liability or absence of liability for the claim or its value.”).

Finally, at oral argument, the former wife asserted that the former husband had not asked for rescission of any portion of the $422,000, and therefore, because “a judgment upon a matter entirely outside of the issues made by the pleadings cannot stand,” Dysart v. Hunt, 383 So.2d 259, 260 (Fla. 3d DCA 1980) (quoting Cortina v. Cortina, 98 So.2d 334, 337 (Fla.1957)), he cannot have his overpayment returned. This is patently absurd. The former husband, unlike the former wife in Dysart, did not file a claim for money damages. Indeed, it was the former wife who made a claim for the former husband’s money. However, the trial court determined that she was not entitled to this money. In lieu of allowing the superfluous funds to disappear into the ether, the trial court logically returned them to their true owner. Furthermore, this was an option the former husband had explored in his trial memorandum: professing to owe the former wife only the sums indicated by the promissory notes but acknowledging a preemptive overpayment, he reasoned that “the remainder of the funds owed should be either returned to the former husband by the former wife and/or applied towards any other items that the [c]ourt deems to be owed to the former wife.” The trial court correctly credited the former husband’s payments against his share of the marital debt and properly ordered that the former husband would be returned the amount he overpaid. The monetary calculations could not have been simpler.

Similarly, as occurred with regard to the former husband’s $400,000 partial payment, for the first time on appeal, the former wife also disputes the reasonableness of the guardian ad litem’s fees. Shortly after the guardian was appointed, the trial judge issued an order stating that “[a]ny and all fees and costs incurred by the [guardian] shall be billed to [the former husband] ... without prejudice for an assessment and allocation of those fees and costs at final hearing.” A year later in the Agreed Joint Stipulation, it was the former husband, who had already paid $110,000, who “objected] to the fees and costs requested by the [guardian] as being unreasonable.” The trial court, on two separate occasions, invited the former wife to object to its consideration of the guardian’s fees, but she merely argued that she should not be required to pay and declined to raise any further claims or present any evidence. From the record, it is apparent that she had no objection to the reasonableness of the fees when she thought the former husband would be paying them. However, the trial court decided the former husband had already paid his fair share and ordered her to pay the remaining $37,000: the final judgment delineates that the court “took into account the evidence presented by the parties as it relates to a) the parties’ ability to pay and need for payment; b) the factors enumerated in Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985), and Standard Guar. Ins. Co. v. Quanstrom,, 555 So.2d 828 (Fla.1990) as to the reasonableness of the fees; c) the amounts already paid by the parties for [the guardian’s fees and other fees]; and d) the equities involved, including the payment by [the former husband] of legal fees of [the former wife] incurred in litigating the amount of fees to be awarded.”

The former wife’s claim on appeal that the trial court made no finding as to the reasonableness of the guardian’s fees was not raised below and, as such, cannot support a finding that the trial court abused its discretion in ruling that the former wife was responsible for the remaining fees. The parties stipulated that the trial court would be responsible for allocating the fees; the court did so based on the equities as it, with its year and a half of experience with this case, understood them.

Also inexplicably, the majority accredits the former wife’s disingenuous demand for prejudgment interest on the $239,323.04 in promissory notes whose sole purpose was to protect the former wife from judgment in an unrelated civil suit. These notes were clearly negotiable instruments under section 673.1041, Florida Statutes (1992); however, the former wife claims that because they provide for an “undertaking or instruction ... to do [an] act in addition to the payment of money,” namely, repaying the amount to the couple’s son in the event of the death of either party, they are not. She apparently misses the part of the statute that states that the act must be “in addition to the payment of money”: paying money, no matter to whom or under what circumstances, is the contemplated result of a negotiable instrument. The majority likewise misses the entire statute, citing cases decided prior to its enactment. Furthermore, as the former wife was only benefited by the notes, she has not “suffered an actual, out-of-pocket loss” that is a prerequisite for an award of prejudgment interest. See Alvarado v. Rice, 614 So.2d 498, 499 (Fla.1993). The notes themselves, and the correct resolution of this issue, could not be simpler.

I would affirm the trial court’s well-reasoned order.

      . As late as two weeks before trial, the former wife listed the former husband’s debts to her as "tba,” or "to be announced,” on her financial affidavit; she revealed the $750,000 figure only at trial.

      . The former wife still has not paid the 2003 judgment against her.


text:
    A.C., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES and the Guardian Ad Litem Program, Appellees.
    No. 3D09-1113.
    District Court of Appeal of Florida, Third District.
    April 14, 2010.
    Michael F. Vander Wyden, for appellant.
    Karla Perkins, for Department of Children and Families; Hillary Kambour, for Guardian ad Litem Program.
    Before RAMIREZ, C.J., and SUAREZ and SALTER, JJ.
   SUAREZ, J.

A.C. appeals the denial of her motion to withdraw, vacate, or set aside her consent to termination of parental rights. We affirm the trial judge’s denial of A.C.’s motion as he correctly determined that A.C. knowingly consented to the surrender of rights and that no fraud, duress, or undue influence was demonstrated.

In October 2008, A.C. signed an affidavit voluntarily consenting to a surrender of her rights to her minor child. At that time, the trial judge held a hearing on the consent to terminate her rights and questioned A.C. extensively as to whether she had voluntarily signed the consent to termination and whether she understood she was giving up her parental rights and her right to trial. The trial judge cautioned her that the prospective adoptive parent was not guaranteed and that she could not withdraw her consent. A.C. acknowledged that she was not under the influence of drugs, alcohol or medication and that she understood all that was happening. The trial judge then entered a final judgment of termination of rights.

A.C. then filed her motion to withdraw, vacate or set aside consent to termination of parental rights alleging a change in the adoptive parent and fraud, duress, and undue influence. The trial judge held an evidentiary hearing and found that no fraud, duress, or undue influence had been demonstrated and found that A.C. had knowingly consented to the termination of her rights. He denied her motion to vacate the final judgment of termination of rights.

We affirm the trial judge’s denial of the motion to withdraw consent on the holding that there was no showing of fraud, duress, or undue influence. A.C. exercised her own free will, understood all of her rights and freely consented to the termination. See W.T. v. Dep’t of Children and Families, 846 So.2d 1278 (Fla. 5th DCA 2003) (upholding consent to termination of rights where evidence established mother was competent, understood the terms of surrender of her rights, had not been promised anything or threatened, and was advised as to future chances of keeping children which did not amount to duress).

      . The evidentiary hearing cleared up any possible confusion as to the reference to A.C.'s other child in paragraph 8 of the affidavit of consent. The lack of a notary’s signature on the affidavit does not render the affidavit defective in light of the evidentiary hearing. See D.S. v. J.L., 18 So.3d 1103 (Fla. 1st DCA 2009).