text:
    Carl D. and Ardis SUMMERS, Appellants, v. Charles BLANTON, Appellee.
    No. 01-0964.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2003.

      Stanley F. Rosenberg, Winter Park, for Appellants.
    Jay M. Fisher, Maitland and Bill McCabe, Longwood, for Appellee.
   PER CURIAM.

This appeal arises from a workers’ compensation proceeding for a work-related accident in which the claimant, Charles Blanton, sustained a brain injury. Although the Judge of Compensation Claims ruled in February of 1997 that the injury was compensable, his employers had not paid any of the substantial award as of the time they filed this appeal. We have affirmed the order without opinion, and we now write to address our decision to impose sanctions against the appellants’ attorney for his violation of the appellate rules.

On May 3, 1995, Mr. Blanton was injured while clearing a wooded lot for his employers, Carl and Ardis Summers. He was operating a large front-end loader when a branch struck him in the head, causing a severe brain injury. He underwent an emergency right central cranioto-my on July 22, 1995, to remove a subdural hematoma resulting from the injury. His neurosurgeon subsequently determined that the hematoma was chronic with brain shift.

The claimant petitioned for workers’ compensation benefits in 1996, and the Judge of Compensation Claims ruled in February of 1997 that the accident was both work-related and compensable. The employers appealed the compensability order, which this Court affirmed in July of 1998. See Summers v. Blanton, 712 So.2d 411 (Fla. 1st DCA 1998).

Subsequently, a final hearing was set for November 16, 1998, to determine the amount of benefits, penalties and attorney’s fees due. This hearing was continued and rescheduled numerous times between November of 1998 and March of 2000. Attempts at mediation were likewise rescheduled a number of times between late 1998 and mid-1999. Virtually all of these continuances were at the request of the employers’ attorney, Stanley Rosenberg, who took over the case in late February of 1999, after the employers’ original attorney withdrew.

Mr. Rosenberg began an extensive pattern of last-minute dilatory tactics and abuse of procedure in this case soon after he began representing the employers in early 1999. The delay tools Mr. Rosenberg employed included a motion to continue the mediation and final hearing, filed on March 15, 1999, the day before the mediation was scheduled to occur; filing for Chapter 13 bankruptcy on behalf of the employers — and thereby automatically staying the workers’ compensation proceedings — less than 90 minutes before the mediation was scheduled to begin on March 16, 1999; a motion for continuance filed on September 8, 1999, the day before a scheduled status conference; a motion to continue the final hearing scheduled for November 12, 1999, filed on November 7, 1999; a phone call by Mr. Summers to the judge’s office less than one hour before the final hearing was set to begin on November 12, 1999, advising that Mr. Rosenberg was at the emergency room of a local hospital; a motion for continuance filed on January 26, 2000, two days before the rescheduled final hearing was set to occur (motion denied); and a phone call from Mr. Summers to the judge just before 5:00 pm on January 27th, the day before the final hearing was scheduled to be held, advising that Mr. Rosenberg was again in the hospital. The last phone call resulted in a continuance to March 6, 2000.

In addition, Mr. Rosenberg could not be reached by telephone to discuss scheduling matters. The judge attempted to contact him by phone to schedule a conference on the case eight separate times between September 8 and October 8, 1999. Each attempt was met with an answering machine. Although the judge left a message each time, Mr. Rosenberg never returned any of the judge’s eight calls. Nor did he respond to a letter the judge wrote to him, advising him of the numerous unsuccessful attempts to reach him by phone and asking that he contact the judge’s office upon receipt of the letter to schedule a telephone conference.

Following the judge’s unsuccessful attempts to reach him, Mr. Rosenberg filed yet another motion for continuance. The judge again attempted to reach him by telephone to schedule the motion for hearing. Once again, however, the calls were met with an answering machine, and Mr. Rosenberg never returned any of the judge’s calls. Therefore, the motion was never heard.

The judge ultimately entered an order on February 14, 2000, rescheduling the final hearing for March 6, 2000. The order expressly and categorically precluded any further continuances for any reason whatsoever. Despite the judge’s warnings, on the day the final hearing was scheduled to begin Mr. Summers faxed a letter to the judge stating that the judge knew that Mr. Rosenberg would be unavailable on March 6th, that he was presently “on the Pacific Coast,” and that neither Mr. Summers nor Mr. Rosenberg would attend the hearing that day. In keeping with his previous order, the judge went forward with the final hearing as scheduled, in the absence of either the employers or Mr. Rosenberg.

Thereafter, Mr. Rosenberg filed a motion to disqualify the judge. This motion was denied, and Mr. Rosenberg immediately responded to the denial by filing a petition for writ of prohibition in this court. We denied the petition on December 11, 2000. However, Mr. Rosenberg’s petition effectively delayed the entry of a final compensation order in the ease until early 2001, almost eleven months after the final hearing was held.

Once we returned jurisdiction to the lower tribunal, the judge entered a final compensation order on January 30, 2001. The order directed the employers to authorize treatment of the claimant’s chronic subdural hematoma and ongoing symptoms and to pay the claimant’s past medical expenses, temporary total disability, permanent total disability, and impairment income benefits totaling $50,871.92; interest in the amount of $6,012.36; penalties of $2,234.35; and attorney’s fees and taxable costs in the amount of $3,556.12. This order is the subject of the present appeal.

As with the lower tribunal, this court has been exceedingly patient with Mr. Rosenberg in granting extensions of time. After filing the notice of appeal, Mr. Rosenberg filed four motions for extension of time to file the initial brief. His first motion, on October 25, 2001, requested a 60-day extension of time to file the initial brief. We issued an order granting him 30 days’ extension and advising that no further extensions of time would be granted except in the case of emergency.

On December 13, 2001, Mr. Rosenberg filed an “emergency” motion for a 60-day extension of time to file the initial brief. We granted the motion in part via an order extending the time for service to January 22, 2002. As before, this order stated that no further extensions would be granted except in case of emergency.

Then, on January 25, 2002, Mr. Rosenberg filed another emergency motion for extension of time, requesting until February 16, 2002, to file the initial brief. By order entered on February 13, 2002, we extended the time to serve the initial brief by 5 days from the date of the order and advised that no further extensions would be granted.

After the claimant filed several motions to dismiss the appeal, Mr. Rosenberg filed a response on March 4, 2002, seeking to deny the motion and to accept his as yet unfiled initial brief as timely. We issued an order on March 7, 2002, requiring the appellants to file the initial brief no later than 5:00 pm on March 13, 2002. The order stated, “If the Initial Brief is not filed by that time, the clerk of this court shall issue an order dismissing the appeal without further notice to the Appellants.”

A first version of the initial brief was filed on March 13, 2002, but it did not comply with the appellate rules. We issued an order on March 27, 2002 directing the appellants to show cause within 10 days why the initial brief should not be stricken. Then, on April 15, 2002, Mr. Rosenberg filed an emergency motion for extension of time requesting until April 22, 2002 to file an amended initial brief. He subsequently filed an amended initial brief on May 2nd, but it, too, failed to conform to the appellate rules. Accordingly, we issued an order on May 6, 2002, giving appellants 10 days to serve a second amended brief.

By order entered May 21, 2002, we struck the first amended initial brief and advised that “no further extension of time for filing the Initial Brief shall be granted absent a showing of extreme emergency.” The appellants finally submitted a brief that complied with the appellate rules. Their second amended initial brief (captioned “Third Initial Brief’) was filed on June 5, 2002, nearly a year and a half after the final order of compensation was entered below.

As the foregoing history of the instant case demonstrates, Mr. Rosenberg has engaged in an egregious pattern of dilatory tactics to delay resolution of this claim almost since his first day as the appellants’ counsel in 1999. The Judge of Compensation Claims determined compensability six years ago, and Mr. Rosenberg took over the appellants’ case four years ago. But the claimant has yet to see a penny of the over $62,000 in benefits, interest, penalties and attorneys’ fees the judge awarded him. It has been eight years since the claimant sustained his work-related head injury and attendant permanent brain damage. He is now approximately 70 years old and has been sued by Halifax Hospital for nonpayment of the bill for his 1995 craniotomy, which cost more than $21,000, and which the employers have been ordered to pay. Moreover, the claimant’s attorneys have been working on this case for eight years, evidently without yet being paid for their work, a large part of which consisted of responding to Mr. Rosenberg’s ongoing delay tactics.

This court has authority under rule 9.140, Florida Rules of Appellate Procedure to impose sanctions against an attorney for violation of the appellate rules or for the filing of a frivolous appeal. The rule provides that sanctions may include reprimand, contempt, striking of briefs or pleadings, dismissal of proceedings, costs, attorney’s fees or such other sanctions as the court deems appropriate. We issued an order to show cause why sanctions should not be imposed and Mr. Rosenberg has responded to the order.

We conclude that Mr. Rosenberg’s pattern of last-minute delays at the appellate level is particularly deserving of sanctions, because it came at the end of a four-year span of dilatory tactics resulting in prolonged nonpayment of benefits to the elderly and seriously injured claimant. During the pendency of this appeal, Mr. Rosenberg has filed four motions for extension to time, and he ultimately did not file the initial brief until approximately a year and a half after the notice of appeal was filed. Given his protracted pattern of last-minute delays in the lower tribunal, which were based on very dubious grounds, an additional year and a half of delays in this court, during which the injured claimant remains unpaid, is unacceptable.

Moreover, Mr. Rosenberg knew or should have known when he filed this appeal that it lacked any merit, as it was based on the argument that the judge erred in holding the final hearing and ruling on the case in his absence. After exhausting the judge’s patience with multiple last-minute motions for continuance based on very flimsy (and recycled) grounds; having his client twice contact the judge at the last minute to announce that he would not attend a scheduled hearing; making himself completely inaccessible by telephone; and failing to respond to letters and numerous phone messages from the judge, Mr. Rosenberg must draw on a deep well of hubris to file an appeal to this court claiming that the judge should have continued the case a sixth time.

We can reach no other conclusion than that the present appeal was filed in bad faith, to further delay payment of any benefits to the claimant. Such tactics are not only unprofessional and reflect poorly on the legal community at large, they are patently unfair to the claimant, who has been waiting since 1996 to receive the money from the employers to which he has been held entitled.

The claimant’s motion for appellate attorney’s fees is granted. We order Mr. Rosenberg to pay the claimant’s attorney’s fees for this appeal from his own funds. He is not to charge the employers for this expense. It is our hope in imposing this sanction that Mr. Rosenberg will, in the future, abandon his unprofessional and unethical practice of delaying resolution of workers’ compensation cases without good cause, to the detriment of innocent claimants and to the vexation of the courts. This case is remanded to the Judge of Compensation Claims for a determination of the amount of appellate attorney’s fees. Furthermore, we direct the clerk of this court to forward a copy of this opinion to the Florida Bar.

Remanded.

WEBSTER, PADOVANO and HAWKES, JJ., CONCUR.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Michael HOLLAHAN, Respondent.
    No. 1D03-0478.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2003.
    Enoch J. Whitney, General Counsel, and Michael J. Alderman, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, Tallahassee, for petitioner.
    Curtis S. Fallgatter, Jacksonville, for respondent.
   PER CURIAM.

In 1995, Michael Hollahan’s driver’s license was revoked after his fourth conviction for driving under the influence. He applied to the Department of Highway-Safety and Motor Vehicles for reinstatement of his license but the application was denied based upon section 322.28(2)(e), Florida Statutes. That statute was amended in 1998 so that reinstatement of driving privileges was no longer permitted in these circumstances. See Ch. 98-223, § 9, Laws of Florida.

Hollahan sought relief in the Circuit Court for Duval County by filing a petition for writ of certiorari. The court concluded that the department must have applied the pre-1998 version of the statute because a hearing was held and no such hearing would have been necessary under the later version of the statute in light of Hollaharis stipulation to the correctness of his driving record. It further found that the department’s decision to deny the application was not based on competent and substantial evidence.

For review of the circuit court’s order, the department seeks a writ of certiorari from this court. After the filing of the petition, the department filed its motion for remand based on the decision in Florida Department of Highway Safety and Motor Vehicles v. Critchfield, 842 So.2d 782 (Fla.2003), where Chapter 98-223, Laws of Florida, was found to be in violation of the single subject requirement of the Florida Constitution. Hollahan states that he has no objection to the motion.

It is not entirely clear from the record before us that the outcome which the parties now agree is appropriate is that which was ordered by the circuit court. Accordingly, we grant the petition and quash the circuit court’s order of August 8, 2002, and remand to that court for proceedings consistent with Critchfield.

PETITION GRANTED.

BOOTH, VAN NORTWICK and LEWIS, JJ., concur.


text:
    CHEROKEE CONSTRUCTION COMPANY OF CENTRAL FLORIDA, INC., Appellant, v. Florida DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 1D03-3326.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2003.
    Brant Hargrove, Tallahassee, for Appellant.
    Marianne A. Trussell, Tallahassee, for Appellee.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of August 8, 2003, the Court has determined that the order on appeal is not final and that the appeal was commenced prematurely. See Johnson v. First City Bank of Gainesville, 491 So.2d 1217 (Fla. 1st DCA 1986). Ac-eordingly, the appeal is hereby dismissed for lack of jurisdiction.

WEBSTER, DAVIS and BROWNING, JJ., Concur.


text:
    Ernest A. GREENE, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1132.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, and Elizabeth Fletcher Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s order summarily denying his postconviction motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because the appellant’s written sentence does not conform to the trial court’s oral pronouncement, we reverse.

The appellant pled guilty to several offenses, including burglary while armed, and was sentenced as a habitual violent felony offender to eighteen years of imprisonment, followed by ten years of probation, on the burglary count. Pursuant to Heggs v. State, 759 So.2d 620 (Fla.2000), the appellant was resentenced to eighty months of imprisonment. However, the written sentence provided for a habitual violent felony offender sentence of eighty months, followed by ten years of probation. The appellant challenges the imposition of probation.

Resentencing pursuant to Heggs entitled the appellant to a de novo sentencing hearing with the full array of due process considerations. Trotter v. State, 825 So.2d 362, 368 (Fla.2002); Gonzalez v. State, 838 So.2d 1242 (Fla. 1st DCA 2003). Therefore, the trial court should have pronounced each and every term of sentencing to ensure that the written sentence would be given effect. See Williams v. State, 801 So.2d 284 (Fla. 4th DCA 2001).

In denying the appellant’s motion, the trial court disregarded the general rule that the court’s oral pronouncement prevails over the written sentence. See Ashley v. State, 850 So.2d 1265 (Fla.2003). When the trial court imposes sentencing terms that were not orally pronounced, the court violates the constitutional protection against double jeopardy. Id. Accordingly, the trial court’s order is reversed and the cause is remanded to the' trial court to strike the ten-year term of probation from the written sentence.

REVERSED and REMANDED.

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


text:
    Joseph C. TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1891.
    District Court of Appeal of Florida, First District.
    Sept. 10, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the trial court’s summary denial of his Florida Rule of Criminal Procedure 3.850 motion alleging ineffective assistance of counsel. The appellant claimed that his trial counsel affirmatively misadvised him with regard to the maximum sentence to which he might be exposed should he violate probation after entering into a plea agreement. He further claimed that but for this misadviee, he would not have entered his plea but would have proceeded to trial. The plea and sentencing colloquy attached to the appellant’s motion do not refute the appellant’s claim. Because the appellant’s claim is facially sufficient, we reverse the summary denial and remand for the trial court to either attach record portions conclusively refuting his entitlement to relief or else hold an evidentiary hearing on the claim. See Kasper v. State, 828 So.2d 1047, 1047 (Fla. 1st DCA 2002).

REVERSED and REMANDED.

WOLF, C.J., LEWIS and POLSTON, JJ., Concur.


text:
    Irving BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2986.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2003.
    Carey Haughwout, Public Defender, and Peggy Natale, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. Robinson v. State, 373 So.2d 898 (Fla.1979).

FARMER, C.J., WARNER and KLEIN, JJ., concur.


text:
    Elizar SAMSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-2675.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2003.
    Carey Haughwout, Public Defender, and Gary Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, Laurel R. Wiley and Marrett W. Hanna, Assistant Attorneys General, West Palm Beach, for appellee.
   PER CURIAM.

We have for review the pleas and sentences in this case. Elizar Samson (“Samson”) argues that his nolo contendere pleas were improperly accepted because he was incompetent at the time. We agree and reverse.

Samson was charged with eight counts of robbery with a deadly weapon. He was then adjudicated incompetent to proceed and institutionalized for treatment. At a later hearing, he pled nolo contendere to the counts charged and was sentenced to thirty-one year concurrent sentences of imprisonment on all counts. Prior to entering these pleas, no hearing was held adjudicating Samson’s legal status from incompetent to competent.

Florida Rule of Criminal Procedure 3.210(a) provides:

A person accused of an offense or a violation of probation or community control who is mentally incompetent to proceed at any material stage of a criminal proceeding shall not be proceeded against while incompetent.

An individual adjudicated incompetent is presumed to remain incompetent until adjudicated restored to competence. Alexander v. State, 380 So.2d 1188, 1189 (Fla. 5th DCA 1980) (citing Corbin v. State, 129 Fla. 421, 176 So. 435 (1937)). Furthermore, “the legal status of a defendant cannot be adjudicated from incompetent to competent without a hearing.” Id. at 1190.

Contrary to the State’s contention, the required hearing to determine whether Samson had been restored to competence did not occur. Florida Rule of Criminal Procedure 3.212 sets forth the required competency hearing procedures for determining whether a defendant previously adjudicated incompetent has been restored to competence. See Mora v. State, 814 So.2d 322, 333 (Fla.2002)(indicating that where a defendant’s competence is once questioned, Florida Rules of Criminal Procedure 3.210, 3.211, and 3.212 apply if his competence is again questioned). These procedures include the calling of court-appointed expert witnesses designated under Florida Rule of Criminal Procedure 3.211, a determination of competence to proceed, and the entry of an order finding competence. See Fla. R. Crirn. P. 3.212.

In the present case, the trial judge did not take the testimony of any of the examining physicians and did not enter a written order stating that Samson was restored to competence. Therefore, he remained incompetent to proceed and could not enter valid pleas. See Godinez v. Moran, 509 U.S. 389, 396, 113 S.Ct. 2680, 125 L.Ed.2d 321 (1993); Catinella v. State, 732 So.2d 444, 445 (Fla. 4th DCA 1999).

REVERSED AND REMANDED for further proceedings consistent with this opinion.

GUNTHER, KLEIN and GROSS, JJ., concur.


text:
    Mark A. TRUCHON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1386.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2003.
    Carey Haughwout, Public Defender, and Margaret Good-Earnest, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Fla. R.App. P. 9.140(b)(2)(A)(ii); Robinson v. State, 373 So.2d 898 (Fla.1979).

WARNER, POLEN and SHAHOOD, JJ., concur.


text:
    Emilio VAZQUEZ, Appellant, v. LABORATORY CORPORATION OF AMERICA and Florida Unemployment Appeals Commission, et al., Appellees.
    No. 3D03-899.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 2003.

      Emilio Vazquez, in proper person.
    John D. Maher (Tallahassee), for Florida Unemployment Appeals Commission.
    Before SCHWARTZ, C.J., and GREEN and WELLS, JJ.
   PER CURIAM.

The denial of unemployment compensation benefits below is affirmed because the record before the appeals referee amply supports the conclusion that the claimant voluntarily quit his position without good cause attributable to the employer.


text:
    Derrick AKINS, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1886.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2003.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

In this appeal, appellant challenges the revocation of his community control. The trial court found three violations of the control provisions. Although we conclude that the court erred in determining that appellant failed to follow the instructions of his community control officer when the specific condition violated was imposed by the officer, not the court, see Voudry v. State, 641 So.2d 466, 467 (Fla. 4th DCA 1994), there was competent substantial evidence to support the other two violations. We conclude from the record that the trial court would have revoked appellant’s probation based on these violations alone. We therefore affirm.

WARNER, POLEN and STEVENSON, JJ., concur.


text:
    Johnny NASH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-682.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 2003.
    Johnny Nash, in proper person.

      Charles J. Crist, Jr., Attorney General, and Thomas C. Mielke, Assistant Attorney General, for appellee.
    Before COPE, SHEVIN and WELLS, JJ.
   PER CURIAM.

We affirm defendant’s conviction and sentence. In the interest of judicial economy, on remand, defendant’s guidelines scoresheet shall be corrected to reflect that possession of a firearm by a convicted felon is a level 5 offense.

Affirmed.


text:
    Marie J. BIENAIME, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS, etc., et al., Appellees.
    No. 3D03-728.
    District Court of Appeal of Florida, Third District.
    Sept. 10, 2003.
    Marie J. Bienaime, in proper person.
    John D. Maher (Tallahassee), for Appel-lee, Unemployment Appeals Commission.
    Before COPE, SHEVIN and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See St. Augustine Church v. Florida Unemployment Appeals Comm’n, 754 So.2d 183, 185 (Fla. 3d DCA 2000) (employee was guilty of misconduct where record contained competent substantial evidence to support referee finding of insubordination); see also Stahl v. Florida Unemployment Appeals Comm’n, 502 So.2d 78, 79 (Fla. 3d DCA 1987) (insubordinate challenge of foreman’s authority in the presence of other employees constituted misconduct).


text:
    Robert WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-1078.
    District Court of Appeal of Florida, Fourth District.
    Sept. 10, 2003.
    Carey Haughwout, Public Defender, and Alan T. Lipson, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Robert Wilson appeals his attempted armed robbery and armed robbery convie-tions. We affirm the convictions. With respect to Wilson’s sentence for count I, however, the State has conceded that the trial court lacked jurisdiction to rule on the 3.800(b)(2) motion more than sixty days after such motion was filed absent the timely filing of a motion for extension of time. See Edmond v. State, 832 So.2d 782 (Fla. 4th DCA 2002); Jackson v. State, 793 So.2d 117 (Fla. 2d DCA 2001). We, therefore, reverse the sentence imposed for count I and remand for the entry of a new sentencing order.

AFFIRMED in part, REVERSED in part and REMANDED.

WARNER, POLEN and STEVENSON, JJ., concur.


author: PER CURIAM. SAWAYA, C.J.,

text:
    Ana M. PENA, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-4080.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2003.
    Michael D. Dicembre, Orlando, for Appellant.
    Charles J Crist, Jr., Attorney General, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

We affirm the denial of Appellant’s rule 3.800(a) motion to correct illegal sentence. We base our decision on Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002) (on grant of rehearing), and Carlson v. State, 27 Fla. L. Weekly D2162, — So.2d —, 2002 WL 31202145 (Fla. 5th DCA Oct. 4, 2002). We certify conflict with Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003).

AFFIRMED; CONFLICT CERTIFIED.

ORFINGER and MONACO, JJ., concur.

SAWAYA, C.J., concurs and concurs specially with opinion.

SAWAYA, C.J.,

concurring and concurring specially.

Although I concur in the majority’s decision to affirm, I do so with the utmost reluctance and write to express my reservations and the reasons for my concurrence.

Ana M. Pena entered a plea to trafficking in excess of twenty-five pounds of marijuana in violation of section 893.135(l)(a)l., Florida Statutes. Pena is alleged to have committed this offense on November 12, 1999. As part of her sentence, Pena received a three-year minimum mandatory prison sentence. Pena subsequently filed a Motion To Correct Illegal Sentence pursuant to rule 3.800(a), Florida Rules of Criminal Procedure, wherein she alleged that the minimum mandatory sentence she received is illegal based on the decision in Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), review dismissed, 821 So.2d 302 (Fla.2002). The court in Taylor held that chapter 99-188, Laws of Florida, which included provisions that amended section 893.135(l)(a)l. to include the requirement for the minimum mandatory sentence for the offense Pena committed, was unconstitutional because it violated the single subject requirement of the Florida Constitution. In Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002) (on grant of rehearing), this court agreed with the holding in Taylor that chapter 99-188 was unconstitutional because it violated the single subject rule of the Florida Constitution.

The State argued that the Legislature responded to Taylor and Hersey in 2002 by enacting chapters 02-208, 02-209, 02-210, 02-211, and 02-212, Laws of Florida, to reenact the provisions originally contained in chapter 99-188, but in such a way as not to run afoul of the single subject rule. Important to the instant case is chapter 02-212, Laws of Florida, which reenacted the provisions of 99-188 that purported to amend section 893.135(l)(a)l. to include the requirement for the minimum mandatory sentence. The State further argued that the Legislature expressly made the 2002 enactments retroactive to July 1, 1999, and that this court in Hersey specifically held that the reenactment legislation could be applied retroactively. Based on Hersey, the trial court denied Pena’s motion.

In my view, chapter 02-212, Laws of Florida, should not be applied retroactively. I agree with the rationale of the court in Green v. State, 839 So.2d 748 (Fla. 2d DCA 2003), which held that retroactive application of the reenactment legislation, specifically chapter 212, Laws of Florida, constitutes an impermissible violation of the Ex Post Facto Clauses of the federal and Florida constitutions. However, Hersey and other decisions from this court, which I very respectfully suggest were wrongly decided, say that the reenactment legislation may be applied retroactively. See, e.g., Carlson v. State, 27 Fla. L. Weekly D2162, - So.2d -, 2002 WL 31202145(Fla. 5th DCA Oct.4, 2002). But for the prior caselaw out of this court, I believe that Pena would be entitled to the relief she requests. Hence the reason for my reservations and my reluctant concurrence.

To say there is a lack of consistency in Florida law regarding whether chapter 99-188 was unconstitutional and whether the subsequent legislative reenactments may be applied retroactively is, perhaps, a gross understatement. As to the issue whether chapter 99-188 violates the single subject requirement, the First and Third District Courts say it does not. Watson v. State, 842 So.2d 275 (Fla. 1st DCA 2003); State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003). The Second and Fifth District Courts, on the other hand, say that it does. Hersey; Taylor. Moreover, among those courts that say it does, there is disagreement whether the reenactment legislation may be applied retroactively. The Second District Court says it may not. Green (holding that the reenactment of the sentencing provisions of chapter 99-188 cannot be applied retroactively because this would violate the Ex Post Facto Clauses of the United States and Florida Constitutions). This court says it may be retroactively applied. Carlson; Hersey. The Fourth District Court has followed this court. Nieves v. State, 833 So.2d 190 (Fla. 4th DCA 2002) (citing Hersey).

As I have indicated, if not for this court’s decisions in Hersey, Carlson and their progeny, I would hold that Pena’s sentence should be reversed and this case remanded for resentencing pursuant to section 893.135(l)(c)l., Florida Statutes (1997), which does not provide for imposition of a mandatory minimum prison sentence. In Hersey, this court held in accordance with the decision in Dobbert v. Florida, 432 U.S. 282,, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), that “the enactment of chapter 02-210, Laws of Florida, cured chapter 99-188’s constitutional infirmity” and “applie[d] retroactively.” Hersey, 881 So.2d at 680. Subsequently, in Carlson, this court, on the authority of Hersey, affirmed a sentence for trafficking in cannabis that included a three-year mandatory minimum term that had been imposed in accordance with section 893.135(l)(a)l. I will now explain the reasons why I believe that Hersey and Carlson were wrongly decided.

This court’s rationale in Hersey for applying the decision in Dobbert to justify the retroactive application of chapter 02-210, Laws of Florida, was more fully explained in Carlson:

In Dobbert v. Florida, 432 U.S. 282, 97 S.Ct. 2290, 53 L.Ed.2d 344 (1977), the United States Supreme Court held that the “operative fact” that a statute existed, even if such statute was subsequently determined to be unconstitutional, was sufficient to put appellant on notice of what the State intended to do under the circumstances. The fact that the State ultimately corrected the defect in the legislation to require exactly that which it had invalidly required earlier and then mandated a retroactive application of the amendment does not, according to Dobbert, violate the ex post facto provision of the United States Constitution.

Carlson, 27 Fla. L. Weekly at D2162-63.

The problem I have with the application of Dobbert to justify retroactive application of the reenacted legislation stems from the Florida Supreme Court’s pronouncement in Heggs v. State, 759 So.2d 620, 630-31 (Fla.2000), that a single subject violation by the Legislature renders an enactment void. Like the court in Green, I have a very difficult time accepting the notion that the Dobbert “operative fact” rationale, which essentially provides that the very existence of an unconstitutional statute provides notice to the defendant of the penalties that the State would seek to impose upon conviction, applies to a void enactment such as chapter 99-188, Laws of Florida. Moreover, chapter 99-188 effected a substantive change in the law whereas in Dobbert, the court was concerned with retroactive application of a statute that effected a procedural change. For these reasons, I agree with the rationale adopted by the court in Green that retroactive application of the legislative reenactments of the provisions of chapter 99-188, which include chapter 02-212, could not occur without violating the Ex Post Facto Clauses of the federal and Florida constitutions.

Both the United States Constitution and the Florida Constitution prohibit enactment of laws that increase the punishment for a criminal offense after the crime has been committed. See U.S. Const, art. I, § 10 (“No State shall ... pass any ... ex post facto Law....”); Art. I, § 10, Fla. Const. (“No ... ex post facto law ... shall be passed.”). In my view, the inquiry here should be whether the sentence imposed on Pena via the retroactively-applied enactment increases the punishment for the crime she committed. Pena is charged with trafficking in cannabis in violation of section 893.135(l)(c)l. Pursuant to the retroactively-applied reenactment, Pena received a sentence that included a minimum mandatory prison sentence of three years that was not required under the prior version of the statute. Hence, Pena received a more severe punishment under the reenacted statute in violation of the Ex Post Facto Clauses of both the Florida and federal constitutions. Therefore, I believe that Pena’s motion should have been granted. See Barber v. State, 849 So.2d 361, 362 (Fla. 2d DCA 2003) (“A claim that a mandatory minimum sentence was illegally imposed is cognizable in a rule 3.800(a) motion where the error is apparent on the face of the record.”); McCabe v. State, 844 So.2d 703 (Fla. 2d DCA 2003); Sims v. State, 838 So.2d 658 (Fla. 2d DCA 2003); Leath v. State, 805 So.2d 956 (Fla. 2d DCA 2001).

Nevertheless, although I believe that Hersey and Carlson were wrongly decided and an ex post facto violation has occurred here, I must apply those decisions as binding precedent to the instant case. Therefore, I reluctantly vote to affirm.

      . Although the court in Carlson referenced chapter 02-210, it is clear that the proper reenactment provision at issue was chapter 02-212.

      . Generally, a procedural change applied retroactively, such as a change in the roles of the court and jury in sentencing similar to that addressed in Dobbert, does not offend the Ex Post Facto Clause. See Weaver v. Graham, 450 U.S. 24, 32 n. 17, 101 S.Ct. 960, 67 L.Ed.2d 17 (1981) (citing Dobbert); see also Lynce v. Mathis, 519 U.S. 433, 447 n. 17, 117 S.Ct. 891, 137 L.Ed.2d 63 (1997).


author: PLEUS, J.

text:
    Robin ENGRAM, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3740.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2003.
    James B. Gibson, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

Engrain appeals his judgment and sentence for felony battery. He argues that the trial court erred by denying his motions for mistrial after the jury heard two references to collateral crimes and one comment on his right to remain silent. He also argues that the trial court erred by increasing his sentence after he had begun serving it. We affirm the judgment without discussion but vacate the sentence and remand with directions to impose the original sentence.

At the sentencing hearing on November 12, 2002, the state requested that Engram be sentenced both as a habitual offender (HO) and a prison releasee reoffender (PRR), but the trial judge did not think both classifications were proper for a single offense. Consequently, the judge designated Engram a PRR and sentenced him to five years in prison.

Three days later, on November 15, 2002, Engram was brought back to court, where the trial judge stated that both designations should have been imposed. He also noted that under the current ease law, it was necessary to make the habitual offender sentence longer than the PRR sentence. Thus, he vacated the original sentence, imposed a new sentence of five years and one month and designated Engram a PRR and an HO.

Engram correctly argues that imposition of a harsher sentence after a defendant has already begun serving his original sentence violates double jeopardy principles. Ashley v. State, 850 So.2d 1265 (Fla.2003); Grant v. State, 770 So.2d 655 (Fla.2000). The state concedes this point. The trial judge was under the mistaken impression that he was required to impose the HO sentence when, in fact, it was discretionary. See State v. Cotton, 769 So.2d 345 (Fla.2000). Accordingly, we vacate the sentence and remand for imposition of the original sentence.

SENTENCE VACATED; REMANDED.

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


author: MONACO, J.

text:
    Robert L. BROTHERS, III, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-3169.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2003.
    James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   MONACO, J.

The appellant, Robert L. Brothers, III, was convicted at jury trial of robbery, in violation of section 812.13(2)(c), Florida Statutes (2002), based largely on circumstantial evidence. The sole issue on appeal is whether the trial court erred in denying the motion of Mr. Brothers for a judgment of acquittal.

When the evidence against a criminally accused person is circumstantial, a motion for judgment of acquittal should be granted if the state fails to present evidence from which the jury can exclude every reasonable hypothesis except that of guilt. See State v. Law, 559 So.2d 187, 188 (Fla.1989); Wilson v. State, 493 So.2d 1019, 1022 (Fla.1986); Everett v. State, 831 So.2d 738 (Fla. 4th DCA 2002). Upon careful review of the transcript, we have concluded that the State introduced sufficient competent evidence that was inconsistent with the theory of events put forth by Mr. Brothers. The trial judge was, therefore, correct in denying the motion seeking a judgment of acquittal.

AFFIRMED.

GRIFFIN and THOMPSON, JJ„ concur.


text:
    Joseph Y. KONIKOV, aka Yosef Konikov and Chana Konikov, Appellants, v. SANDLAKE HILLS, SECTION II, HOMEOWNERS’ ASSOCIATION, INC., Appellee.
    No. 5D03-1670.
    District Court of Appeal of Florida, Fifth District.
    Sept. 12, 2003.
    Frederick H. Nelson, of The Law Firm of Frederick H.Nelson, Altamonte Springs, for Appellant.
    Arthur J. Ranson, III, of Zimmerman, Shuffield, Kiser & Sutcliffe, P.A., Orlando, for Appellee.
   CONFESSION OF ERROR

PER CURIAM.

Pursuant to the Appellee’s confession of error, the Order Granting a Temporary Injunction in this case, is reversed and this cause is remanded for further proceedings.

REVERSED and REMANDED.

PETERSON, PLEUS, AND TORPY, JJ., concur.


author: SHAHOOD, J.

text:
    Deborah RICE-LAMAR, Appellant, v. CITY OF FORT LAUDERDALE, a municipality, Appellee.
    No. 4D01-1934.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2003.

      Reginald J. Clyne and Donnise A. De-souza of Clyne & Self, P.A., Coral Gables, for appellant.
    Gordon D. Rogers and Kelly Cheary Sulzberger of Muller Mintz, P.A., Miami, for appellee.
   ON MOTION FOR REHEARING AND/OR CLARIFICATION

SHAHOOD, J.

We deny appellee’s motion for rehearing and grant the motion for clarification. We withdraw our previously issued opinion and substitute the following in its place.

This appeal arises from an action by Deborah Rice-Lamar (Lamar) against the City of Fort Lauderdale (City) pursuant to the Florida Whistleblower Act, section 112.3187, Florida Statutes (Supp.1996). Lamar alleged that she was fired from her position as the City’s Affirmative Action Specialist because she attempted to express her opinion regarding the City’s alleged discriminatory practices in the City’s official affirmative action report to the City Commission. The trial court entered final summary judgment against Lamar and in favor of the City, based on collateral estop-pel. Following the denial of her motion for reconsideration, she filed this appeal raising four issues.

This state-court action follows a prior action brought by Lamar against the City and her former supervisors in federal court. In that action, Lamar sought damages for violations of Title VII of the Civil Rights Act of 1964, as amended in 42 U.S.C. § 2000e, et. seq., 42 U.S.C. §§ 1981, 1983 and 1985, the First and Fourteenth Amendments to the United States Constitution, and various state claims, including a whistleblower claim pursuant to the Florida Whistleblower Act, section 112.3187, Florida Statutes (Supp. 1996). See Rice-Lamar v. City of Fort Lauderdale (Lamar I), 54 F.Supp.2d 1137, 1140 (S.D.Fla.1998), affirmed, Rice-Lamar v. City of Fort Lauderdale (Lamar II), 232 F.3d 836, 838 (11th Cir.2000). The facts and circumstances leading up to these two actions, many of which are set forth in the opinions of the federal district and circuit courts, are the following.

Facts

Lamar is an African-American female who was employed by the City as its Affirmative Action Specialist from June 20, 1988 through October 21, 1996. She was responsible for planning, directing and implementing a variety of internal equal employment opportunity and affirmative action programs within established policies and guidelines and recommending new policies and procedures. In addition, she was to advise departmental and personnel officials, as well as the City Manager, on potential Equal Employment Opportunity (EEO) liabilities, recommend strategies for achieving long-term affirmative action goals, and prepare annual affirmative action reports. Her work was to be reviewed by an administrative supervisor, through conferences, periodic reports and observations of results achieved. Her supervisors were the City Manager, George Hanbury (“Hanbury”), the Assistant City Manager, Pete Witsehen (“Witschen”), the Director of Administrative Services, Bruce Larkin (“Larkin”), and the Director of Personnel, John Panoch (“Panoch”). Her direct supervisor was Panoch.

Prior to January 1995, Lamar’s employment record was unblemished and her performance was considered to be “above average.” See Lamar I, 54 F.Supp.2d at 1140. Sometime during 1995, she prepared the City’s official 1995 Affirmative Action Report which indicated that the City needed to take a new direction to end the systemic discrimination within the City government. See id. The report contained Lamar’s own personal commentary and conclusions concerning the situation at the City. See id. According to Lamar, she was instructed by her supervisors to publish only the statistical numbers which, she claimed, concealed the City’s discriminatory practices. See id.

On January 19, 1995, Lamar received a written reprimand from Panoch for, among other things, (1) failure to complete the 1995 Affirmative Action Report by the due date of December 2,1994 and (2) failure to complete the Minority/Women’s Business Enterprise Directory (“MBE/WBE Directory”) for the City Commission, which was due December 22, 1994. Lamar was given until January 31, 1995 to complete both projects and later received a one-day suspension for failure to meet the second deadline. See id. Lamar did not appeal this disciplinary action. See id.

The deadline was revised a second time and extended to March 1995. Again, Lamar failed to meet the deadline. When she forwarded her final draft, in March 1995, the report still contained her personal narrative (regarding the correlation between high crime rate in the inner city and the failure to hire a sufficient number of police officers), which she had been directed to remove. A five-day suspension was recommended. Lamar appealed the recommendation, and the suspension was reduced to four days. She did not appeal this disciplinary action. See id. at 1140.

In February 1996, a City employee, Clifton McCree (McCree) shot several coworkers and committed suicide. He left a suicide note stating that his attack was to punish his former co-workers for the unfair and racist treatment he received. As a result of the shootings, the City hired Crisis Management International, Inc., to provide psychological services. During this time period, various meetings were held, which related to the shooting incident. Lamar was excluded from these meetings. In e-mails to Panoch, she took issue with the crisis management team’s conclusion that racism did not appear to be an issue amongst the African-American employees interviewed following the fallout from the shooting. Lamar believed that the City was suppressing or denying the issue. Panoch advised Lamar that they would wait and see if the team advised them that racism was an issue, but, at that time, there was no evidence to support Lamar’s personal views on the matter. Larkin, the Director of Administrative Services expressed displeasure at the fact that Lamar never completed her report for the last fiscal year and requested that she spend her time completing her specific assignments. Lamar was eventually told that it would be insubordination for her to speak to anyone without first directing her statements through Panoch and Larkin, her other immediate supervisor. See id.

On June 19, 1996, Lamar presented the 1996 Affirmative Action Report at the department head meeting. As with the 1995 Report, Lamar included her own commentary and conclusions in the Report. She commented, “we are still a City plagued with racism, glass ceilings for women and brick walls for people of color, a tolerance for the perceptions of unfairness and a proverbial silence about it all.” See id. Lamar continued, “[hjowever, differences must first be acknowledged before either tolerated or valued. Recommendations on the City’s diversity initiative are forthcoming; however, I will take this opportunity to foretell that they will acknowledge our need to address some basic problems of ‘ism’ while moving toward an environment which values diversity and manages diversity for the betterment of all.” Lamar II, 232 F.3d at 838.

All four of Lamar’s supervisors expressed serious reservations about the content of the report and requested that she make various substantive changes before the report was delivered to the City Commission. See id. In particular, she was directed to remove the personal commentary and to draft a report which focused on the statistical data collected on minority and female representation in the City workplace. See id. Lamar refused to make most of the changes. See Lamar I, 54 F.Supp.2d at 1140; Lamar II, 232 F.3d at 838.

On July 22, 1996, Lamar delivered a revised copy of the 1996 report to Larkin and Panoch with a note that the report was ready for printing and distribution. On July 26, 1996, Larkin met with Lamar and offered her the opportunity to resign; she refused, stating that the report honestly and objectively outlined racial problems and tensions in the City. See Lamar II, 232 F.3d at 838. Three days later, Lamar distributed the revised version of the 1996 Affirmative Action Report, which had not yet been approved, to City Manager Han-bury and to all but one of the other department heads. She also distributed the MBE/WBE Directory. See Lamar I, 54 F.Supp.2d at 1141.

On August 5, 1996, Lamar responded to Larkin’s request for her resignation, blaming the delay in producing the required reports on computer problems and also claiming that Larkin and Panoch were harassing her in an attempt to have her suppress her affirmative action analysis in her reports. See id. One week later, Lamar was notified of possible disciplinary action for incompetent performance based, among other things, on the delinquent and unauthorized distribution of the MBE/ WBE Directory and the unauthorized distribution of the revised 1996 Affirmative Action Report. The City Manager eventually approved the disciplinary action, which was to dismiss Lamar effective October 21, 1996.

Federal Court Proceedings

Approximately one year after she was terminated, Lamar filed a twelve-count federal action against the City and her former supervisors. See Lamar I, 54 F.Supp.2d at 1139. The essence of Lamar’s complaint was that she was retaliated against for exercising her freedom of speech rights and was discriminated against based on race and gender when she attempted to express her personal opinion regarding the City’s alleged discriminatory practices in the City’s official 1995 Affirmative Action Report. See id. at 1140. The federal district court, sua sponte, declined to exercise its supplemental jurisdiction over the state claims and dismissed them, but the federal claims proceeded.

Afer discovery and the filing of a joint pretrial stipulation, the district court granted final summary judgment in favor of the City and the four supervisors on all counts. See id. at 1140. On Lamar’s First Amendment claim that she was retaliated against for expressing her free speech and that the City was systematically discriminating against its minority and women employees, the court held that while her expression did address matters of public concern, the manner in which she chose to make her views known was disruptive. See id. at 1144. The court noted that Lamar’s allegations of protected activity related to her attempt to be a part of the crisis management meetings and to publish the Affirmative Action Reports she had prepared. See id. These meetings were internal meetings within the City and the Affirmative Action Reports were reports prepared by Lamar as an employee of the City and were the City’s formal documents. Thus, while Lamar may have had a First Amendment right to make her opinions on racial discrimination known to the public, she was not entitled to do so in a report prepared for the City that would also represent the City’s position. See id. The court found that Lamar’s refusal to make changes to the report as requested by her supervisor constituted insubordination. See id.

As to her discrimination claims based on race and gender, the court held that Lamar was disciplined for refusing to follow her supervisors’ instructions, and although the subject matter of the dispute between Lamar and her supervisors involved race and gender discrimination, the City’s actions in terminating Lamar were not due to race or gender. Rather, they were due to her insistence on including her own conclusions in the Affirmative Action Reports against her supervisors’ wishes. See id. at 1146. The court also held that the supervisors were entitled to qualified immunity on the claims asserted against them because Lamar’s dismissal for insubordination was not unlawful. See id. at 1146-47. On appeal, the Eleventh Circuit affirmed the District Court. See Lamar II.

State Court Proceedings

Following the dismissal of her state claims from the federal action, Lamar refiled her claims, including her Florida whistleblower claim, in state court. In moving to dismiss her complaint, the City requested that all references to the McCree shooting be stricken as immaterial and irrelevant. The court granted the City’s request to dismiss and strike, with leave to amend.

Lamar amended her complaint asserting only a public whistleblower claim, but again made references to the McCree shooting incident. On the City’s second motion to strike, the court ordered Lamar to delete all references to the McCree incident, but allowed her to refer to the incident by date. In her second amended complaint, Lamar again asserted a public whistleblower claim, and added claims for slander, libel and tortious interference. She alleged that she was reprimanded, suspended and discharged in retaliation for her attempts to publish the affirmative action reports, express her “professional” opinion regarding the February 1996 [McCree] incident and conduct an audit which would have revealed discriminatory employment practices.

During the pendency of the federal court appeal, the City filed its motion for summary judgment in the state action, arguing that Lamar was collaterally es-topped by the federal district court decision from relitigating the reasons for her termination. The City relied upon the federal court’s findings that Lamar was dismissed for legitimate, non-discriminatory reasons; that no causal connection existed between the alleged protected activity and the discharge; and that Lamar’s memorandum to the City Manager was insufficient as a matter of law to constitute a protected disclosure under the Whistle-blower Act. The state circuit court granted summary judgment based on collateral es-toppel and the judgment entered by the federal district court in Lamar I. The final judgment was held in abeyance until Lamar’s appeal to the Eleventh Circuit was resolved. Following the Eleventh Circuit’s affirmance of the district court decision, the state circuit court entered final judgment against Lamar. This appeal now follows.

Analysis

Lamar maintains that her state whistleblower action is a separate and distinct cause of action from her federal discrimination claims; therefore, it was error to grant summary judgment based on the doctrine of collateral estoppel. Otherwise, she argues, the federal district court would not have declined to exercise supplemental jurisdiction and severed the state claims from the federal ones.

Collateral estoppel, or issue preclusion, is a judicial doctrine which, in general terms, prevents identical parties from relitigating issues which have already been decided. See Dep’t of Health and Rehabilitative Servs. v. B.J.M., 656 So.2d 906, 910 (Fla.1995)(citing Mobil Oil Corp. v. Shevin, 354 So.2d 372, 374 (Fla.1977)). The essential elements of the doctrine are that the parties and issues are identical, and the particular matter is fully litigated and determined in a contest which results in a final decision of a court of competent jurisdiction. See id. Courts have emphasized that collateral estoppel precludes relit-igation of issues actually litigated in a pri- or proceeding. See id. Collateral estop-pel does not require prior litigation of an entire claim, only a particular issue. See Club & Cmty. Consulting Corp. v. Brown, 728 So.2d 822, 823 (Fla. 4th DCA 1999).

In granting summary judgment in favor of the City based on collateral estoppel on Lamar’s state court claim, the court relied upon the decisions rendered in Lamar I and Lamar II. This was error. The doctrine of collateral estoppel is not applicable because the issues litigated in the federal action were different from those presented in the state action. The issue of whether Lamar’s discharge was in retaliation for her alleged disclosure of the City’s allegedly discriminatory practices was not previously litigated and resolved in the federal action.

Florida’s Whistleblower statute, section 112.3187(2), Florida Statutes, prevents agencies from taking retaliatory action against an employee who reports to an appropriate agency violations of law on the part of a public employer that create a substantial and specific danger to the public’s health, safety, or welfare. The statute also prevents agencies from taking retaliatory action against any person who discloses information to an appropriate agency alleging improper use of governmental office, gross waste of funds, or any other abuse or gross neglect of duty on the part of an agency, public officer or employee. See id. The act is remedial in nature and should be construed liberally in favor of granting access to the remedy so as not to frustrate the legislative intent. See Irven v. Dep’t of Health and Rehabilitative Servs., 790 So.2d 403, 406 (Fla.2001); Martin County v. Edenfield, 609 So.2d 27, 29 (Fla.1992).

In her federal action, Lamar filed discriminatory actions alleging that she was reprimanded, suspended and discharged based on her race and gender and that she was retaliated against because of her protected speech under the First Amendment. She did not raise a federal retaliation claim under Title VII. On the other hand, her state whistleblower claim is completely race and gender neutral. It is, therefore, separate and distinct from either her discrimination claim or her First Amendment protected speech claim. Although the facts giving rise to her claim are the same, the issues are entirely different.

Lamar’s state whistleblower claim is based on her alleged reprimand and discharge as a result of her disclosure of a report which purportedly demonstrated that the City was in violation of various federal and state laws regarding its discriminatory employment practices towards minorities and women. As noted by the federal court, the elements necessary to support a claim under the Whistleblower statute are distinct from the elements necessary to support a Title VII discrimination action or a First Amendment protected speech claim. See Lamar I. As a result, the federal court’s conclusion that Lamar was not terminated for discriminatory (race/gender related) reasons or for exercising her First Amendment right to free speech is not determinative of the issues relating to her state whistleblower claim. The fact that the federal court determined that she was terminated for insubordination is not determinative on whether she was retaliated against for her disclosure of alleged discriminatory practices by the City. Accordingly, summary judgment based on collateral estoppel was not proper.

Alternatively, the City argues that summary judgment was proper because there are no genuine issues of material fact. The City relies upon the fact that the trial court adopted the findings of the federal court, which were based on Lamar’s version of the facts and the facts contained in the Joint Pretrial Stipulation. As discussed above, however, the conclusions of the federal court pertain to separate and distinct claims and have no bearing on whether issues of fact exist with regard to Lamar’s state whistleblower claim.

To establish a prima facie claim under Florida’s Whistleblower statute, the requisite elements set forth under a Title VII retaliation claim are applied:

To establish a prima facie case of retaliation under Title VII, a plaintiff must show that (1) he engaged in statutorily protected expression; (2) he suffered an adverse employment action; and (3) there is some causal relation between the two events. We previously have noted that the causal link requirement under Title VII must be construed broadly; “a plaintiff merely has to prove that the protected activity and the negative employment action are not completely unrelated.” Once the prima fa-cie case is established, the employer must proffer a legitimate, non-retaliatory reason for the adverse employment action. The plaintiff bears the ultimate burden of proving by a preponderance of the evidence that the reason provided by the employer is a pretext for prohibited, retaliatory conduct.

Olmsted v. Taco Bell Corp., 141 F.3d 1457, 1460 (11th Cir.1998) (citations omitted); see also Sierminski v. Transouth Fin. Corp., 216 F.3d 945, 950 (11th Cir.2000)(applying Title VII retaliation analysis to claim arising under private-sector Florida Whistleblower Act on a case of first impression).

The City argues that it is a question of law for the court to decide whether Lamar has met the disclosure requirements under section 112.3187. See Cummins v. Lake County Bd. of County Comm’rs, 671 So.2d 893 (Fla. 5th DCA), rev. denied, 678 So.2d 337 (Fla.1996)(affírming summary judgment in favor of employer on grounds that employee’s internal communications did not rise to the level necessary to constitute a disclosure under section 112.3187(5) and that the Lake County personnel to whom employee expressed his concerns were not within the scope of persons to whom disclosure is protected under section 112.3187(6)). But this case presents mixed questions of law and fact.

Section 112.3187(5) provides that the information disclosed must include any violation or suspected violation of any federal, state or local law which creates and presents a substantial and specific danger to the public’s health, safety or welfare or any act or suspected act of gross mismanagement, malfeasance, gross waste of public funds, or gross neglect of duty. Section 112.3187(6) directs that for disclosures concerning a local governmental entity, the information must be disclosed to a chief executive officer as defined in section 447.203(9) or other appropriate local official and section 112.3197(7) protects employees who disclose information on their own initiative in a written and signed complaint or employees who file any written complaint to their supervisory officials.

Both parties in this case dispute whether Lamar made the required disclosure, whether the disclosure was a protected disclosure, and whether she complied with the notice requirements of section 112.3187(6). Also, questions of fact remain as to whether Lamar’s disclosure was made before or after she was disciplined and whether the action taken against her, would have been taken absent the disclosure. In addition, the City itself has taken inconsistent positions as to the basis for Lamar’s termination. These issues would preclude summary judgment regardless of the collateral estoppel issues.

Next, we find no error in the trial court’s order striking any reference to the McCree incident. While Lamar was prohibited from referring to the incident by name, she was allowed to allege in her second amended complaint that the February 1996 incident resulted, in large part, from the City’s discriminatory practices and that the City allegedly attempted to exclude her from the crisis management meetings dealing with this incident.

Rule 1.140(f), Florida Rules of Civil Procedure permits “[a] party [to] move to strike ... redundant, immaterial, impertinent, or scandalous matter from any pleading at any time.” “A motion to strike matter as redundant, immaterial or scandalous should only be granted if the material is wholly irrelevant, can have no bearing on the equities and no influence on the decision.” See McWhirter, Reeves, McGothlin, Davidson, Rief & Bakas, P.A. v. Weiss, 704 So.2d 214, 216 (Fla. 2d DCA 1998)(quoting Pentecostal Holiness Church, Inc. v. Mauney, 270 So.2d 762, 769 (Fla. 4th DCA 1972)).

Lamar claims that the issues surrounding the McCree shootings were not wholly irrelevant to her whistleblower claim. Rather, she argues, the incident was direct evidence that the City’s alleged discriminatory practices had a substantial impact on health and safety issues and amounts to gross mismanagement or gross neglect of duty. She claims that the incident was relevant to her claim because, in her opinion, it was an outgrowth of discriminatory employment practices. We do not agree, however, that Lamar has demonstrated a causal connection between the City’s alleged discriminatory practices and the violent outburst by a former employee. More importantly, she has failed to show how the incident was related to her whistle-blower claim that she was retaliated against based on her disclosure of information.

Finally, we hold that the trial court abused its discretion in granting the City’s protective order and preventing Lamar from deposing the City’s Mayor and Vice-Mayor. See generally Waite v. Wellington Boats, Inc., 459 So.2d 425, 426 (Fla. 1st DCA 1984)(a trial court’s decision to grant, deny, or limit discovery is a matter of discretion which should be set aside only upon a showing of. abuse). The Mayor advised that he would not be inconvenienced by having his deposition taken in this matter. See, e.g., Fla. R. Civ. P. 1.280(c)(“for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires”). Further, since Lamar alleges that the Affirmative Action Report was prepared at the request of the Vice Mayor due to his and the Mayor’s concerns about discrimination in the workplace, the positions of both of these officials are highly relevant to the whistle-blower claim.

Accordingly, we reverse and remand the summary judgment order and remand for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

TAYLOR, J., and NELSON, DEBRA STEINBERG, Associate Judge, concur.

      . The Federal district court noted that Lamar’s state claims presented novel and complex questions of state law which would predominate over the federal claims.

      . Lamar filed a notice of voluntary dismissal against her four supervisors without prejudice.

      . In the order dismissing Lamar’s state claims without prejudice, the District court stated,
      The Court notes that the Plaintiff, in her employment discrimination claims, alleges that she was subjected to discrimination based upon her race and gender. Conversely, the Plaintiff's state law claims are based in part on allegations that the Defendant was reprimanded, suspended and ultimately discharged by Plaintiff for attempting to reveal Defendant’s discriminatory employment practices, and that the Defendants intentionally inflicted emotional distress upon the Plaintiff.
      These state claims require completely different elements of proof wholly separate and distinct from the federal claims at issue. The Court finds that the state claims would tend to dominate the federal claims and obscure the significance of the federal claims. See Winn v. North American Philips Corp., 826 F.Supp. 1424, 1426 (S.D.Fla.1993).

      . The trial court did not reach this issue.


text:
    In re Walton J. BARNES.
    No. 2003-OB-2166.
    Supreme Court of Louisiana.
    Aug. 1, 2003.
   ORDER

Considering the Petition for Transfer to Disability Inactive Status,

IT IS ORDERED that Walton J. Barnes, Louisiana Bar Roll number 2770, be and he hereby is transferred to disability inactive status pursuant to Supreme Court Rule XIX, § 22(B), until further order of this court.

Pursuant to Supreme Court Rule XIX, § 26(E), this order shall be effective immediately.

/s/ Jeannette Theriot Knoll

Justice, Supreme Court of Louisiana


text:
    STATE ex rel. Demetrius EASTER v. STATE of Louisiana.
    No. 2002-KH-2331.
    Supreme Court of Louisiana.
    Sept. 19, 2003.
   In re Easter, Demetrius;—Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Caddo, 1st Judicial District Court Div. 0, No. 188,803; to the Court of Appeal, Second Circuit, No. 36565-KH.

Denied.


author: 2EDWARD A. DUFRESNE, JR., Chief Judge.

text:
    RELIABLE AMUSEMENT COMPANY, INC. v. Joseph POCHE, Jr. and Bayou Gaming, Inc.
    No. 03-CA-301.
    Court of Appeal of Louisiana, Fifth Circuit.
    July 29, 2003.
    Guy E. Wall, Attorney, New Orleans, LA, for Plaintiff-Appellee.
    Brett A. Sulzer, L.L.C., Baton Rouge, LA, for Defendant-Appellant.
    Panel composed of Judges EDWARD A. DUFRESNE, JR., SOL GOTHARD and CLARENCE E. McMANUS.
   2EDWARD A. DUFRESNE, JR., Chief Judge.

This is an appeal by Bayou Gaming, Inc. from a preliminary injunction relating to the placement of video poker and coin operated machines at the Galva Lounge, located at 113 Bait Alley in Akers, Louisiana. For the following reasons, we affirm that judgment.

The facts are as follows. Joseph Poche, Jr., the original owner of the lounge, contracted with Reliable Amusement Company, Inc. for placement of video poker and other coin operated machines at the location. The lease was for seven years and commenced in May of 2002. It also contained a clause that it would bind “any successor and/or assign” of the business. For reasons not fully explained on the record, but apparently relating to Poche’s divorce proceedings, the Louisiana State Police deactivated the poker machines on September 5, 2002, and they were removed from the lounge. It appears that Poche at that time began discussions with Bayou Gaming to get new video poker machines installed.

Sometime around October 7, Reliable learned that its remaining pool tables and juke box had been moved out of the lounge and Bayou’s tables and juke box had been installed. After some brief contact between representatives of the two companies, Reliable filed the present action for injunctive relief. On October 24, a temporary restraining order issued ordering Bayou not to substitute its machines |3for those of Reliable. The hearing on the preliminary injunction was set for October 31.

At that hearing, the evidence showed that Reliable’s pool tables and juke box had been reinstalled and Bayou’s had been removed. However, it was also shown that on October 29, Poche had sold Galva Lounge to Galva Lounge, Inc., a recently formed corporation owned solely by Yvonne Scott, the president of Bayou Gaming, Inc.

In her oral reasons for judgment the trial judge stated that the “successor and/or assign” clause of the Reliable-Poche lease made that agreement binding on Galva Lounge, Inc. Based on this finding she issued the preliminary injunction at issue here prohibiting removal of the Rehable machines from the premises or installing competing machines. Bayou Gaming, Inc. now appeals.

Two assignments of error are urged here. First, Bayou argues that the preliminary injunction should not have issued because Reliable failed to show that it would suffer irreparable harm. Second, it argues that the original contract between Rehable and Poche did not bind Galva Lounge, Inc.

As to the first assignment, La.Code Civ. Pro., Art. 3601 provides that an injunction shall issue either where irreparable injury may result or in other cases provided by law. In Louisiana Gaming Corporation v. Jerry’s Package Store, 93-320 (La.App. 3rd Cir.12/8/93), 629 So.2d 479, a case similar to the present matter, the court held that a contractual obhgation not to do was sufficient to support an injunction without a showing of irreparable harm. We agree with this result and therefore rule that the present preliminary injunction properly issued based on the contract between Reliable and Poche.

Bayou’s second argument is also without merit. The Reliable-Poche contract provides that it shall be binding on “any successor and/or assign.” When Gal-va Lounge, Inc. acquired the business from Poche it became his “successor |4and/or assign” and thus is bound by that contract. We therefore reject this assignment as well.

For the foregoing reasons, the judgment issuing the preliminary injunction is hereby affirmed.

AFFIRMED.


author: 1LEON A. CANNIZZARO, Jr., Judge.

text:
    Carlos CUBAS v. James Everett BROWN and Liberty Mutual Insurance Company.
    No. 2003-CA-0664.
    Court of Appeal of Louisiana, Fourth Circuit.
    Sept. 3, 2003.
    Rehearing Denied Sept. 25, 2003.

      Lamar M. Richardson, Mandeville, LA, for Plaintiff/Appellant, Carlos Cubas.
    Timothy f. Upton, Allen I. Boudreaux, Jr., Nicholas J. Chauvin, Allen I. Bou-dreaux, Jr. & Associates, Metairie, LA, for Defendant/Appellee, Jairo Osorio.
    (Court composed of Judge MICHAEL E. KIRBY, Judge MAX N. TOBIAS, Jr., Judge LEON A. CANNIZZARO, Jr.).
   1LEON A. CANNIZZARO, Jr., Judge.

This is an appeal from the trial court’s granting of an exception of insufficiency of service based on the plaintiffs failure to request service within ninety days of commencement of the action pursuant to La. C.C.P. art. 1201(C).

STATEMENT OF FACTS AND PROCEDURAL HISTORY

This case arises out of an automobile accident. The plaintiff/appellant, Carlos Cubas, was a guest passenger in a vehicle driven by the defendani/appellee, Jairo Osorio, when it was rear ended by a vehicle driven by James Brown. Cubas filed suit against Osorio, Brown, and their insurers. Osorio filed suit against Brown. The two matters were consolidated.

Cubas did not request service on Osorio within ninety days as required by La. C.C.P. art. 1201(C). Osorio filed an exception of insufficiency of service, and the matter was set for argument. Two days before the hearing, Osorio executed a | yformal acceptance of service and waiver of citation. Although Cubas’ attorney received the waiver from Osorio’s plaintiff attorney, Osorio’s defense attorney proceeded with the exception. The trial court granted the exception and dismissed the case as to Osorio, the defendant, without prejudice. Cubas appealed.

APPLICABLE LAW AND DISCUSSION

Cubas contends that the trial court erred in granting the exception of insufficiency of service because Osorio waived service. He argues that La. C.C.P. art. 1201(C) sets no time limitation on the waiver and does not support the trial court’s opinion that the waiver must occur within the ninety-day period. Moreover, Cubas asserts that if the waiver were required within the ninety-day period, it would be unnecessary, and service could still be requested.

We disagree. The purpose of the article is to obviate the necessity of service if a written waiver is obtained. La. C.C.P. article 1201 states, in pertinent part:

B. The defendant may expressly waive citation and service thereof by any written waiver made part of the record.
C. Service of the citation shall be requested on all named defendants within ninety days of commencement of the action. When a supplemental or amended petition is filed naming any additional defendant, service of citation shall be requested within ninety days of its filing. The defendant may expressly waive the requirements of this Paragraph by any written waiver.

This case presents a unique set of circumstances whereby the defendant/plaintiff signed a written waiver of service after the ninety-day period but continued to pursue his exception of insufficiency of service. Pretermitting the question of whether Osorio’s plaintiff attorney was acting in the best interest of his client, the ultimate issue before the Court is whether the ninety-day service | ¡¡requirement can be waived after it has passed. Louisiana courts have not specifically addressed this issue.

In 1997, the Legislature enacted legislation to address the problems created by withholding service. Particularly, La. C.C.P. art. 1672(C) was added to correlate with the addition to La. C.C.P. art. 1201(C), which now mandates that service be requested within ninety days of commencement of the action. When the latter service requirement is not complied with, La. C.C.P. art. 1672(C) requires an involuntary dismissal without prejudice to be entered upon the motion of the defendant.

Cubas correctly argues that La.C.C.P. art. 1201 B does not set a time limitation for the filing of the waiver. It requires only that the waiver be written and made part of the record. However, subsection C of La.C.C.P. art. 1201 commands that citations be requested on all named defendants within ninety days of commencement of the action. As Cubas did not request service of citation on Osorio within ninety days of commencement of the suit and did not execute a written waiver of the service within that time period, the trial court did not err in granting Osorio’s exception of insufficiency of service. Johnson v. Brown, 2003-0679 (La.App. 4 Cir. 6/25/03), 851 So.2d 319.

CONCLUSION

For the reasons assigned, the judgment of the trial court granting the exception of insufficiency of service is affirmed.

AFFIRMED.

      . Osorio was represented by two attorneys: one who represented him in his capacity as a plaintiff against the defendant Brown, and the other who represented him as the insured defendant in the case which Cubas filed against him.


author: PITTMAN, C.J.,

text:
    Christine LANE and Cordelia Griffin, Wrongful Death Beneficiaries of Willie Lawrence Muse, Deceased v. R.J. REYNOLDS TOBACCO COMPANY; Phillip Morris USA Inc.; Corr-Williams Company, Inc., Successor by Merger to Corr-Williams Tobacco Company, and C.W.C. Acquisition Company; Hattiesburg Grocery Company; and Brown & Williamson Tobacco Corporation. Christine Lane and Cordelia Griffin, Wrongful Death Beneficiaries of Willie Lawrence Muse, Deceased v. Liggett Group, Inc., Liggett & Myers, Inc., and Brooke Group Ltd.
    Nos. 2001-CA-00384-SCT, 2001-CA-01032-SCT.
    Supreme Court of Mississippi.
    May 8, 2003.
    Rehearing Denied Sept. 25, 2003.

      John Hubert Anderson, Hattiesburg, attorney for appellants.
    Michael W. Ulmer, Lewis W. Bell, Jackson, Stephanie E. Parker, John F. Yarber, Atlanta, GA, Michael B. Wallace, Rebecca L. Hawkins, Walker (Bill) Jones, III, Sheryl Bey, Stuart G. Kruger, Tiffanee N. Wade, Jackson, Brooke Ferris, Jon Mark Weathers, Hattiesburg, Robert L. Gibbs, Jackson, Andrea LaWerne Ford Edney, William E. Huffman, Jr., and William L. Durham, II, attorneys for appellees.
    Jesse Lee Howell, Thomas A. Cook, attorneys for appellees.
   PITTMAN, C.J.,

for the Court.

¶ 1. The Court consolidated two appeals regarding related products liability suits against cigarette manufacturers, distributors, and retailers. Both suits were filed in the Forrest County Circuit Court by the wrongful death beneficiaries of Willie Lawrence Muse. The first suit, No.2001-CA-00884, was dismissed on the pleadings pursuant Miss. R. Civ. P. 12(c). The second suit, No.2001-CA-01032, was dismissed on the pleadings pursuant to Miss. R. Civ. P. 54(b).

¶ 2. There are two issues on appeal: First, did the court err in denying the plaintiffs’ motion for leave to amend; Second, did the court err by holding that the plaintiffs’ did not state a claim upon which relief could be granted. Finding no error, we affirm.

FACTS

¶ 3. Willie Lawrence Muse smoked cigarettes from 1943 until he died from squamous cell carcinoma of the mouth on October 10,1997.

¶4. On November 30, 1998, Muse’s daughter, Christine Lane (“Lane”), filed a wrongful death suit in the Circuit Court of Forrest County against several manufacturers, distributors and retailers of cigarettes (“Liggett”). She twice amended her complaint: first on December 3, 1998, joining additional defendants; second, on December 4, 1998, adding Cordelia Griffin as a plaintiff.

¶ 5. Following various procedural and discovery requests, on September 12, 2000, Liggett filed a motion for judgment on the pleadings pursuant Miss. R. Civ. P. 12(c). Citing the Mississippi Product Liability Act (MPLA) codified in Miss.Code Ann. § 11-1-63 (2001), they argued that the claims failed as a matter of law because the alleged injuries to Muse were caused by an inherent characteristic of cigarettes which is a generic aspect of the product that cannot be eliminated without compromising the product’s usefulness or desirability, and that this aspect is recognized by the ordinary person with the ordinary knowledge common to the community.

¶ 6. Counsel for Lane orally contested the motion at a hearing on December 5, 2000. At the conclusion of the hearing, counsel requested five days to submit a response to the court in opposition to Lig-gett’s motion, which he failed to do. On December 18, 2000, the trial judge granted the defendants’ motion and entered a judgment on the pleadings.

¶ 7. On December 28, 2000, counsel for Lane filed both a Motion for Order to Alter or Amend and a Motion for Order Allowing Plaintiffs to Amend. On January 31, 2001, a hearing was held on the motions. On February 1, 2001, the trial court denied the motions on and dismissed the complaint. Lane filed a “Second Amended Complaint” that same day. The amended complaint filed after the dismissal alleged, in addition to the allegations contained in the previous complaint, that the defendants conspired to conceal the addictive nature of nicotine and any harmful effects of smoking.

¶ 8. The second of the consolidated cases parallels the first. On October 9, 2001, Lane refiled the amended complaint from February, but substituting new defendants (“RJR”). Citing the previous decision of the trial court, RJR responded by filing motion for judgement on the pleadings based on theories of collateral estoppel and res judicata. Following a hearing, the trial judge granted the motion and dismissed the matter.

STANDARD OF REVIEW

¶ 9. There are two standards of review applicable to this appeal. First, motions for leave to amend are within the discretion of the trial court. A denial of motion for leave to amend is reviewed under the abuse of discretion standard and not reversed unless the trial court abused its discretion. Frank v. Dore 635 So.2d 1369, 1375 (Miss.1994) (citing Bourn v. Tomlinson Interest, Inc. 456 So.2d 747, 749 (Miss.1984); McDonald v. Holmes 595 So.2d 434, 436 (Miss.1992)).

¶ 10. Second, the Court employs the broader de novo standard in determining whether a circuit court erred in granting a Rule 12(c) motion for judgment on the pleadings. Hartford Cas. Ins. Co. v. Halliburton Co., 826 So.2d 1206, 1210 (Miss.2001) (citing City of Tupelo v. Martin, 747 So.2d 822, 829 (Miss.1999)). A Rule 12(c) motion for judgment on the pleadings serves a similar function to the Rule 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted. Id. Unlike summary judgment, both Rule 12(b)(6) and Rule 12(c) are decided on the face of the pleadings alone. Hartford Cas. Ins. Co., 826 So.2d at 1210. Because the granting of a judgment on the pleadings raises a question of law, the de novo standard applies. Id.

DISCUSSION

I. DID THE CIRCUIT JUDGE ERR IN DENYING THE PLAINTIFFS’ MOTION TO AMEND THEIR PLEADINGS.

¶ 11. Lane claims that she had a right to amend her complaint within 30 days after the first dismissal. Citing Miss. R. Civ. P. 15(a), she argues that the trial judge improperly denied this right. At the time of the trial court’s decision, Rule 15(a) stated, in part:

On sustaining a motion to dismiss for failure to state a claim upon which relief can be granted, pursuant to Rule 12(b)(6), or for judgment on the pleadings, pursuant to Rule 12(c), thirty days leave to amend shall be granted, provided matters outside the pleadings are not presented at the hearing on the motion. Otherwise a party may amend his pleading only by leave of court or upon written consent of the adverse party; leave shall be freely given when justice so requires.

Miss. R. Civ. P. 15(a). The Court agrees, but notes that on April 17, 2003, Rule 15(a) was amended by replacing “thirty days leave to amend shall be granted” with “leave to amend shall be granted when justice so requires upon conditions and within time as determined by the court.”

¶ 12. Recently, this issue was considered in Poindexter v. Southern United Fire Ins. Co., 838 So.2d 964 (Miss.2003). Writing for a plurality of the Court, Justice Cobb noted that, unlike the federal rule, our Rule 15(a) at that time provided an absolute right to amend. Id. at 970. The plurality concluded that a denial of such right was an abuse of discretion. Id. We adopt this view today. Therefore, in accordance with a plain reading of the rule, the Court rejects the futility exception to the former absolute right to amend. See Sligh v. First Nat’l Bank of Holmes County, 704 So.2d 1020, 1024 (Miss.1997).

¶ 13. In the instant case, following dismissal, Lane was entitled to 30 days leave to amend. However, by January 31, 2001, Lane had yet to file an amended complaint and when requested by the trial judge, was unable to submit a copy to the court. The right to amend was automatic, and there is no need to petition the court for thirty days leave. Sligh v. First Nat’l Bank of Holmes County, 704 So.2d at 1024. Nevertheless, because she failed to exercise her right, the decision of trial court is affirmed.

II. DID THE CIRCUIT COURT ERR IN GRANTING JUDGMENT ON THE PLEADINGS.

¶ 14. Broadly speaking, the second issue is whether the MPLA bars all suits based on injuries that arise out of the use tobacco products. Lane contends that § 11-1-63 does not preclude all product liability claims against tobacco companies as a matter of law. Instead, she argues MPLA limits claims arising out of the use of unaltered tobacco, but not those arising out of the use of altered tobacco. Lane alleges that manufacturers’ defectively designed product led to Muse’s cancer and that the defect is not an “inherent characteristic” of tobacco, but rather is a result of the intentional mixing of toxic compounds.

¶ 15. Liggett submits that the trial court’s decision was a proper application of the law. They contend that the “defects alleged by the Lane are generic aspects of cigarettes that cannot be eliminated without substantially compromising the usefulness or desirability of the product and which are recognized by the ordinary person with ordinary knowledge common to the community.” Moreover, Liggett argues that the Legislature and the drafters of the Restatement of Torts 2d specifically intended to limit tobacco related product liability claims.

¶ 16. Generally, to recover in a products liability action based on a design defect, plaintiffs must prove that at the time the product left the control of the manufacturer or seller: (1) the product was designed in a defective manner; (2) the defective condition rendered the product unreasonably dangerous to the user or consumer; and (3) the defective and unreasonably dangerous condition of the product was the proximate cause of plaintiffs damages. Bobby Marzine Harges, An Evaluation of the Mississippi Products liability Act of 1993, 68 Miss. L.J. 697, 712 (1994) (paraphrasing Miss.Code Ann. § 11-1-68 (1993)).

¶ 17. Mississippi’s products liability law is based on Restatement (Second) of Torts § 402A. Horton v. Am. Tobacco Co., 667 So.2d 1289, 1295 (Miss.1995) (citing Sperry-New Holland v. Prestage, 617 So.2d 248, 253-54 (Miss.l993)(holding “Section 402A is still the law in Mississippi”)). See also Smith v. Mack Trucks, Inc., 819 So.2d 1258 (Miss.2002).

¶ 18. Section 11-1-63 states, in pertinent part:

In any action for damages caused by a product except for commercial damage to the product itself:
(a) The manufacturer or seller of the product shall not be liable if the claimant does not prove by the preponderance of the evidence that at the time the product left the control of the manufacturer or seller:
(i)1. The product was defective because it deviated in a material way from the manufacturer’s specifications or from otherwise identical units manufactured to the same manufacturing specifications, or
2. The product was defective because it failed to contain adequate warnings or instructions, or
3. The product was designed in a defective manner, or
4. The product breached an express warranty or failed to conform to other express factual representations upon which the claimant justifiably relied in electing to use the product; and
(ii) The defective condition rendered the product unreasonably dangerous to the user or consumer; and
(iii) The defective and unreasonably dangerous condition of the product proximately caused the damages for which recovery is sought.
(b) A product is not defective in design or formulation if the harm for which the claimant seeks to recover compensatory damages was caused by an inherent characteristic of the product which is a generic aspect of the product that cannot be eliminated without substantially compromising the product’s usefulness or desirability and which is recognized by the ordinary person with the ordinary knowledge common to the community.

Miss.Code Ann. § ll-l-63(a)-(b) (2002) (emphasis added). Section ll-l-63(b) incorporates the principles of § 402A. Pres-tage, 617 So.2d at 254. In the past, the Court has used the accompanying comment, specifically comment i, for guidance. Id.; See also, Harges, supra at 713.

¶ 19. Comment i is commonly known as the “inherent characteristics rule” and states:

Unreasonably dangerous [:] The rule stated in this Section applies only where the defective condition of the product makes it unreasonably dangerous to the user or consumer. Many products cannot possibly be made entirely safe for all consumption, and any food or drug necessarily involves some risk of harm, if only from over-consumption. Ordinary sugar is a deadly poison to diabetics, and castor oil found use under Mussolini as an instrument of torture. That is not what is meant by “unreasonably dangerous” in this Section. The article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. Good whiskey is not unreasonably dangerous merely because it will make some people drunk, and is especially dangerous to alcoholics; but bad whiskey, containing a dangerous amount of fuel oil, is unreasonably dangerous. Good tobacco is not unreasonably dangerous merely because the effects of smoking may be harmful; but tobacco containing something like marijuana may be unreasonably dangerous. Good butter is not unreasonably dangerous merely because, if such be the case, it deposits cholesterol in the arteries and leads to heart attacks; but bad butter, contaminated with poisonous fish oil, is unreasonably dangerous.

Restatement (Second) of Torts § 402A cmt. i (1965) (emphasis added).

¶20. Strictly interpreted, § 11-1-63 precludes all product liability actions against tobacco companies. The harm from tobacco use has been well documented, and elimination of the sources of the harm would greatly reduce the desirability of cigarettes. The complaint filed by Lane alleges nothing to avoid the limitations set forth in either § 11-1-63 or the comment.

¶21. Likewise, the adoption of a law based on § 402A indicates that it was the intent of the Legislature to abate the large volume of tobacco litigation. Specifically, the comment states that the effects of smoking do not render tobacco unreasonably dangerous. Although not adopted by the Legislature, the comment is instructive.

¶22. In a similar ease, Chief Justice Hawkins discussed the effect the “inherent characteristics” standard would have on future product liability claims arising out of the use of tobacco. Horton v. Am. Tobacco Co., 667 So.2d 1289, 1293-98 (Miss.1995)(Hawkins, C.J., concurring in part & dissenting in part). With Presiding Justice Prather and Justice Smith joining, Chief Justice Hawkins stated that all future tobacco litigation based solely on products liability law will be governed by § 11-1-63 and dismissed via Rule 12(b) or summary judgment. Id. at 1297. (“The plaintiffs claims in Horton eluded such a fate only because they preceded the enactment of § 11-1-63.”) Id. He maintained that with the MPLA the Legislature sought to curb “judicial excess” and, citing various authorities, declared that when a person buys a perfectly legal product, which he or she knows is designed to do certain things, a seller cannot be liable if the plaintiff is injured because the product did precisely that what it was designed to do. Id. at 1296-97 (citations omitted). Additionally, he noted that there was no distinction between “smoking” and tobacco. Id. at 1297.

K23. Liggett relies on a Fifth Circuit case from Texas. In Sanchez, the Fifth Circuit held that the plaintiffs’ claims, although masked as RICO and fraud claims, were barred by the Texas statute codifying § 402A. Sanchez v. Liggett & Myers, Inc., 187 F.3d 486, 491 (5th Cir.1999). Finding all claims against tobacco companies, or derivatives thereof, barred by the statute, the court upheld the district court’s Rule 12(c) dismissal. Id.

¶ 24. For support, Lane only cites Thomas v. R.J. Reynolds Tobacco Co., 11 F.Supp.2d 850 (S.D.Miss.1998). In Thomas, the district court stated that it was possible that a plaintiff could establish a cause of action against the in-state defendants in state courts by arguing that cigarettes were defectively designed so as to render them unreasonably dangerous. Id. at 850 (emphasis added). The interpretation of § 11-1-63 was that plaintiffs stood a chance of recovering damages if they could prove both that the defendants manipulated the content of what should have been good tobacco and that the product was defective. Id. at 851-53. Opting for a stricter construction of § 11-1-63, this Court declines to follow the decision by the learned district judge.

¶25. In the instant case, the Court agrees with Liggett and the opinion by Chief Justice Hawkins. “Section 402A specifically states that there can be no products liability based on smoking.” Horton, 667 So.2d at 1295 (Hawkins, C.J. concurring in part & dissenting in part). The Court finds that the Legislature intended to eliminate products liability claims stemming from tobacco use. Strictly applying § 11-1-63, the Court finds that state law definitively precludes this lawsuit.

¶ 26. Except for Thomas, Lane fails to provide any argument or support for this Court to hold otherwise. Liggett’s argument is well supported by the opinion of Chief Justice Hawkins and Sanchez. As a matter of law, the alleged defects are inherent and are “recognized by the ordinary person with ordinary knowledge common to the community.”

CONCLUSION

¶ 27. We adopt the plurality’s view from Poindexter v. Southern United Fire Ins. Co. Following the dismissal, the plaintiffs had a right to amend their complaint. However, during the thirty-day period, their failure to submit an amended complaint allowed the period to lapse.

¶28. Finally, the dismissal was proper in light of § 11-1-63. State law precludes all tobacco cases that are based on products liability. For these reasons, the judgment of the circuit court is affirmed.

¶ 29. AFFIRMED.

SMITH, P.J., WALLER, COBB, EASLEY AND CARLSON, JJ., CONCUR. DIAZ AND GRAVES, JJ., DISSENT WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., NOT PARTICIPATING.

      . We note that the Legislature has since amended § 11-1-63. See H.B. 19, 2002 3rd Ex. Session (Miss.).