text:
    Thomas C. VAN HARE, Appellant, v. Cheryl L. VAN HARE, Appellee.
    Nos. 4D03-4176, 4D03-4283.
    District Court of Appeal of Florida, Fourth District.
    Dec. 10, 2003.

      Thomas C. Van Hare, Coconut Creek, pro se.
    Barbra Amron Weisberg of Barbra Am-ron Weisberg, P.A., and Holly Davidson Schuttler of Holly Davidson Schuttler, P.A., Boca Raton, for appellee.
   PER CURIAM.

We reverse two contempt orders, one finding the former husband in indirect criminal contempt associated with the court’s finding that he disparaged the former wife in front of their children, and the other for civil contempt for failing to pay child support, alimony, and medical expenses.

With regard to the criminal contempt, the trial court did not comply with any of the provisions of Florida Rule of Criminal Procedure 3.840. By that rule, a defendant is entitled to be represented by counsel, have compulsory process for the attendance of witnesses, and to testify in his or her own defense. Failure to comply with the procedural requirements of this rule is reversible error. Willis v. State, 855 So.2d 263 (Fla. 4th DCA 2003); Neilinger v. Jenne, 830 So.2d 245 (Fla. 4th DCA 2002); Baker v. Green, 732 So.2d 6, 7 (Fla. 4th DCA 1999).

As to the civil contempt, the former husband is in arrears and does not dispute such. The order provides that unless paid, upon filing of an affidavit of non-compliance, the former husband is to be committed and brought before the trial judge within forty-eight hours to determine whether he continues to have the present ability to pay the purge amount of $12,640.

At the time of the parties’ marital settlement agreement, a yearly income of $70,000 was imputed to the former husband.

The former husband testified at the contempt hearing that he lacked the ability to pay the monies owed. He testified, without contradiction, that his “field” is internet web design and that it had “bottomed out.” He stated that he had no savings, debts of over $100,000, and was having trouble finding clients.

The court asked the former husband why he had not looked for other gainful employment. The former husband responded that he must “gross” at least $3,500.00 a month in order to make his support payments and to live. He testified that he has not been able to find another field that will pay him that income. He testified further that he has been applying for jobs in his field, in international relations, as a development assistant expert.

The former wife did not present any evidence about the former husband’s sources of income and assets. Rather, she argued that the former husband had earned income of $73,580.00 in the previous twenty-one months and that he had taken a trip to Europe, both demonstrating an availability of funds. The former husband testified that the trip was fully paid as he was a speaker and received an honorarium. Of the $73,580 “gross” income, it was undisputed that the former husband had been paying arrears from the final judgment, as well as his support payments when possible. Having reviewed the record, we find that it is not sufficient to support the trial court’s finding that the former husband has the ability to pay the support/purge amount. See Cleveland v. Cleveland, 841 So.2d 648 (Fla. 4th DCA 2003)(recognizing that the presumption of ability to pay can be rebutted). We have previously construed rule 12.615(d)(1) of the Florida Family Law Rules of Procedure as requiring the trial court to identify the sources from which the appellant could obtain the funds to comply with an unpaid support order. Vazquez v. Vazquez, 827 So.2d 384 (Fla. 4th DCA 2002). Here, the court has not done so.

In Cleveland, this court found that the trial court erroneously arrived at the purge amount simply by calculating the entire amount of back support due. The same flaw is found in this case; that is, the purge amount equals the entire amount of alimony and child support past due with no source of funds identified to support either the finding of contempt or the purge. See also Larsen v. Larsen, 854 So.2d 293 (Fla. 4th DCA 2003). It is significant, here, that the former wife does not point to any source available that may be considered to determine the former husband’s ability to pay. See Koll v. Koll, 812 So.2d 529 (Fla. 4th DCA 2002); Sibley v. Sibley, 833 So.2d 847 (Fla. 3d DCA 2002); see also Bowen v. Bowen, 471 So.2d 1274 (Fla.1985). It was clearly not the former wife’s position that the former husband is secreting funds.

As worded, the order gives the former husband thirty days to obtain gainful employment to pay the $12,640.00 purge. Patently, even disbelieving most of the former husband’s testimony, there is insufficient evidence to support the trial court’s conclusion that the former husband has the present ability to purge his contempt.

Therefore, we reverse the order of criminal contempt due to lack of compliance with rule 3.840. Regarding the civil contempt, we reverse and remand for the trial court to revise the purge amount to reflect an amount that the former husband would have the present ability to satisfy within the thirty days required.

STONE, KLEIN and TAYLOR, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MERCURY CASUALTY COMPANY, Appellant, v. Clara FLORES, Appellee.
    No. 3D03-453.
    District Court of Appeal of Florida, Third District.
    Dec. 17, 2003.
    Rehearing Denied April 16, 2004.

      Cooney, Mattson, Lance, Blackburn, Richards & O’Connor and Warren B. Kwavnick, Fort Lauderdale, for appellant.
    Lopez & Best and Virginia M. Best, Miami, for appellee.
    Before SCHWARTZ, C.J., LEVY and SHEVIN, JJ.
   PER CURIAM.

We affirm the judgment finding that the alleged error, if any, in the admission of the evidence was entirely harmless. See Soler v. Kukula, 297 So.2d 600, 602 (Fla. 3d DCA 1974); Hall v. Haldane, 268 So.2d 403, 404-05 (Fla. 4th DCA 1972).


author: SILBERMAN, Judge.

text:
    Calvin BUFORD, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-513.
    District Court of Appeal of Florida, Second District.
    Dec. 24, 2003.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Calvin Buford appeals his sentences for attempted sexual battery on a child under twelve and lewd act on a child. We reverse the twenty-year sentence for lewd act on a child and remand for the trial court to impose a sentence that does not exceed the statutory maximum and to clarify Buford’s credit for prior time served in prison.

In 1991 Buford entered a guilty plea to attempted sexual battery on a child under twelve and lewd act on a child. Both offenses occurred in 1989. The trial court sentenced Buford to fifteen years in prison followed by ten years’ probation on count one, attempted sexual battery on a child under twelve. The trial court imposed ten years’ probation on count two, lewd act on a child, consecutive to the prison sentence in count one and concurrent with the probationary period in count one.

After serving approximately ten years in prison, Buford was released and began his probationary term. Buford violated his probation in 2002, and the trial court revoked his probation and imposed concurrent sentences of twenty years in prison on both counts. Buford filed a motion to correct sentencing error, arguing that the twenty-year sentence for lewd act on a child was excessive and that the sentence did not clearly state that all time previously served in prison on count one was to be credited to counts one and two, as the trial court intended. The trial court denied the motion.

On appeal, Buford first contends, and the State properly concedes, that the trial court erred in sentencing Buford to twenty years in prison on count two because the statutory maximum for lewd act on a child, a second-degree felony, is fifteen years. See §§ 775.082(3)(c), 800.04, Fla. Stat. (1989). The trial court denied Buford’s motion to correct sentencing error on this ground because Buford’s score-sheet called for a sentence between twelve and twenty-seven years, and the trial court stated that when the guideline score exceeds the statutory maximum, the court must impose the guideline sentence. The guidelines in effect in 1989 when Buford committed these offenses, however, did not allow for a sentence to exceed the statutory maximum. See § 921.001(5), Fla. Stat. (1989); Mays v. State, 717 So.2d 515, 516 (Fla.1998). Therefore, we reverse Buford’s sentence on count two and remand for the trial court to impose a sentence that does not exceed the statutory maximum of fifteen years.

Second, Buford argues, citing Tripp v. State, 622 So.2d 941 (Fla.1993), and Cook v. State, 645 So.2d 436 (Fla.1994), that he is entitled to have credit for time previously served in prison on count one applied to counts one and two. The State agrees but contends that the sentence is sufficiently clear to apprise the Department of Corrections to credit Buford on both counts. On remand, we direct the trial court to clarify in the written sentence that credit for prior incarceration on count one is to be applied to counts one and two.

Reversed and remanded.

ALTENBERND, C.J., and DAVIS, J., Concur.


text:
    William Scott LANG, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-4435.
    District Court of Appeal of Florida, Second District.
    Dec. 24, 2003.

      James Marion Moorman, Public Defender, and Terri L. Baekhus, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Cerese Crawford Taylor, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Affirmed without prejudice to any right Lang might have to seek appropriate post-conviction relief.

COVINGTON and VILLANTI, JJ., and GREEN, OLIVER L„ Senior Judge, Concur.


author: GERSTEN, J. GREEN, J.

text:
    MERCY HOSPITAL, INC., Appellant, v. Barbara BAUMGARDNER, and Ethbert Baumgardner, and Anne M. Jones Valentine, Appellees.
    Nos. 3D02-3095, 3D02-2686.
    District Court of Appeal of Florida, Third District.
    Dec. 24, 2003.
    Rehearing Denied April 5, 2004.
    Stephens Lynn Klein Lacava Hoffman & Puya, and Marlene S. Reiss, and Robert M. Klein; Lewis Fishman, for appellant.
    Podhurst Orseck Josefsberg Eaton Meadow Olin & Perwin, and Joel S. Per-win, for appellees.
    William A. Bell; Parenti, Falk, Waas, Hernandez & Cortina, and Gail Leverett Parenti, for the Florida Hospital Association, as amicus curiae.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   GERSTEN, J.

Mercy Hospital, Inc. (“Mercy Hospital”) appeals an adverse summary judgment finding the hospital liable for a staff physician’s failure to comply with a financial responsibility statute. Plaintiffs Barbara and Ethbert Baumgarder and Anne Valentine (hereafter collectively referred to as “the plaintiffs”), cross-appeal the dismissal of their negligence claims against the hospital. We affirm on the main appeal and the cross-appeal.

The plaintiffs obtained judgments against Dr. Cesare DiRocco (“Dr. DiRoc-co”) after successfully pursuing separate lawsuits for malpractice. Dr. DiRocco had privileges to practice medicine at Mercy Hospital, where the malpractice occurred.

Thereafter, Dr. DiRocco filed for bankruptcy, and the plaintiffs were unable to recover on their judgments. The plaintiffs then brought separate actions against Mercy Hospital alleging strict liability under Florida’s financial responsibility law, Section 458.320(2)(b), Florida Statutes (2002), and negligence for failure to ensure that staff physician Dr. DiRocco complied with the statute.

Mercy Hospital moved to dismiss both complaints, and the plaintiffs filed motions for summary judgment on all claims. The trial court granted the plaintiffs’ motions for summary judgment on the strict liability claims and entered individual judgments of $250,000 each for the plaintiffs. Mercy Hospital appeals the adverse summary judgment. The plaintiffs cross-appeal the dismissal of their negligence claims.

Section 458.320(2) requires physicians to comply with one of three financial responsibility options in order to obtain hospital staff privileges. A physician must have coverage in the amount of $250,000 per claim, by either establishing an escrow account, acquiring professional liability insurance, or maintaining a letter of credit. See § 458.320(2), Fla. Stat. (2002). Alternatively, a physician is exempt from the requirements of Section 458.320(2) if he or she agrees to pay any medical-malpractice judgment creditor $250,000 of any judgment, informs patients the doctor does not carry medical malpractice insurance, and provides written notification to the Florida Department of Health demonstrating compliance with the statute. See § 458.320(5)(g), Fla. Stat. (2002).

Mercy Hospital argues the trial court erred in granting summary judgment for the plaintiffs, contending Section 458.320(2) does not impose liability upon a hospital to ensure a physician’s compliance. We disagree for the reasons expressed by our sister districts in Robert v. Paschall, 767 So.2d 1227 (Fla. 5th DCA 2000), review denied, 786 So.2d 1187 (Fla.2001), and Baker v. Tenet Healthsystem Hosp., Inc. 780 So.2d 170 (Fla. 2d DCA 2001).

As noted in Robert v. Paschall, 767 So.2d 1227, 1228 (Fla. 5th DCA 2000): “The obvious intent of the legislature [in enacting Section 458.320(2) ] was to make sure that a person injured by the medical malpractice of a doctor with staff privileges would be able to ultimately recover at least $250,000 of compensable damages. We read section 458.320(2)(b) as imposing a statutory duty on the hospital to assure the financial responsibility of its staff-privileged physicians who use the hospital for medical treatment and procedures.” See also Baker v. Tenet Healthsystem Hosp., Inc. 780 So.2d 170 (Fla. 2d DCA 2001)(hos-pital has a statutory duty to assure staff-privileged physicians are financially responsible).

We agree with the well-reasoned decisions of the Fifth and Second Districts. The statute mandates financial responsibility as a condition to maintaining staff privileges and imposes a duty on the hospital to ensure compliance. Accordingly, we affirm on the main appeal. Finding no error in the trial court’s well reasoned decision to dismiss the negligence claims, we affirm on the cross-appeal as well.

Affirmed.

FLETCHER, J., concurs.

GREEN, J.

(dissenting).

Because the legislature has not expressly provided, or evidenced any intent to provide, a private cause of action against a hospital for a staff physician’s failure to comply with a licensing statute, I must respectfully dissent.

Chapter 458 is regulatory and its specified legislative purpose is “to ensure that every physician practicing in this state meets minimum requirements for safe practice.” § 458.301, Fla. Stat. (1999). Physicians who fall below the minimum standards “shall be prohibited from practicing in this state.” Id. To that end, Chapter 458 is a licensing statute.

As a condition of licensing, a physician is required to demonstrate a financial ability to pay medical malpractice claims. § 458.320(1), Fla. Stat. (1999). As a continuing condition of hospital staff privileges, a physician is also required to establish financial responsibility by:

(a) Establishing and maintaining an escrow account consisting of cash or assets eligible for deposit in accordance with s. 625.52 in the per claim amounts specified in paragraph (b).
(b) Obtaining and maintaining professional liability coverage in an amount not less than $250,000 per claim, with a minimum annual aggregate of not less than $750,000 from an authorized insurer as defined under s. 624.09, from a surplus lines insurer as defined under s. 626.914(2), from a risk retention group as defined under s. 627.942, from the Joint Underwriting Association established under s. 627.351(4), through a plan of self-insurance as provided in s. 627.357, or through a plan of self-insurance which meets the conditions specified for satisfying financial responsibility in s. 766.110.
(c)Obtaining and maintaining an unexpired irrevocable letter of credit, established pursuant to chapter 675, in an amount not less than $250,000 per claim, with a minimum aggregate availability of credit of not less than $750,000. The letter of credit shall be payable to the physician as beneficiary upon presentment of a final judgment indicating liability and awarding damages to be paid by the physician or upon presentment of a settlement agreement signed by all parties to such agreement when such final judgment or settlement is a result of a claim arising out of the rendering of, or the failure to render, medical care and services. Such letter of credit shall be nonassignable and nontransferable. Such letter of credit shall be issued by any bank or savings association organized and existing under the laws of this state or any bank or savings association organized under the laws of the United States that has its principal place of business in this state or has a branch office which is authorized under the laws of this state or of the United States to receive deposits in this state.

§ 458.320(2)(a),(b),(c). A staff physician’s coverage is inclusive of the coverage provided for licensure. Id.

Moreover, this financial responsibility statute expressly provides that physicians need not comply with the enumerated financial requirements if they agree to certain conditions. § 458.320(5). Specifically,

(5) The requirements of subsections (l)[and] (2) ... shall not apply to:
(g) Any person holding an active license under this chapter who agrees to meet all of the following criteria:
1. Upon the entry of an adverse final judgment arising from a medical malpractice arbitration award, from a claim of medical malpractice either in contract or tort, or from noncompliance with the terms of a settlement agreement arising from a claim of medical malpractice either in contract or tort, the licensee shall pay the judgment creditor the lesser of the entire amount of the judgment with all accrued interest or either $100,000, if the physician is licensed pursuant to this chapter but does not maintain hospital staff privileges, or $250,000, if the physician is licensed pursuant to this chapter and maintains hospital staff privileges, within 60 days after the date such judgment became final and subject to execution, unless otherwise mutually agreed to in writing by the parties. Such adverse final judgment shall include any cross-claim, counterclaim, or claim for indemnity or contribution arising from the claim of medical malpractice. Upon notification of the existence of an unsatisfied judgment or payment pursuant to this subparagraph, the department shall notify the licensee by certified mail that he or she shall be subject to disciplinary action unless, within 30 days from the date of mailing, he or she either:
a. Shows proof that the unsatisfied judgment has been paid in the amount specified in this subparagraph; or
b. Furnishes the department with a copy of a timely filed notice of appeal and either:
(I) A copy of a supersedeas bond properly posted in the amount required bylaw; or
(II) An order from a court of competent jurisdiction staying execution on the final judgment pending disposition of the appeal.

§ 458.320(5)(g)(l). Failure to comply with the conditions of subsection 1 results in an emergency order of suspension which may be followed by disciplinary action. § 458.320(5)(g)(2),(3),(4).

Conspicuously absent from the statute is any language providing a third-party injured patient with a private cause of action against a hospital for a staff physician’s breach of statute. Without such language, or at a bare minimum, clear legislative intent, courts have repeatedly declined to infer the existence of a private cause of action to a regulatory statute. See, e.g., Murthy v. N. Sinha Corp., 644 So.2d 983, 986 (Fla.1994) (holding that regulatory statutes governing construction industry did not create private cause of action absent evidence in language or legislative history of intent to create private cause of action). See also Fla. Physicians Union v. United Healthcare of Fla., Inc., 837 So.2d 1133, 1137 (Fla. 5th DCA 2003)(“The courts of this state have long been reluctant to find the legislature intended private parties to have causes of action to enforce statutes ... without strong indication that was the legislature’s intent.”); Moyant v. Beattie, 561 So.2d 1319, 1320 (Fla. 4th DCA 1990)(“In general, a statute that does not purport to establish civil liability, but merely makes provision to secure the safety or welfare of the public as an entity, will not be construed as establishing a civil liability.”). Because there is no statutory language creating a private cause of action, or indication that the legislature ever intended to create a private cause of action, we cannot create one by judicial fiat.

For that reason, I believe that Robert v. Paschall, 767 So.2d 1227 (Fla. 5th DCA 2000) and Baker v. Tenet Healthsystem Hosps., Inc., 780 So.2d 170 (Fla. 2d DCA 2001) were wrongly decided. In Robert, the Fifth District held that a hospital was liable, up to a limit of $250,000, for a staff-privileged physician’s failure to comply with the financial responsibility statute. Robert, 767 So.2d at 1228. The court held that this cause-of action against the hospital did not arise, however, until a judgment had been entered against a staff physician which was not satisfied. Id. at 1228-29. In inferring this private cause of action, the Robe's! court stated:

We believe this holding is compatible with the legislative intent to make sure that plaintiffs, such as the Roberts, are compensated assuming they are so entitled, at least up to $250,000.

Id. at 1229. Similarly, the Second District, relying on Robert, affirmed a dismissal without prejudice of a plaintiffs claim against a hospital under section 458.320, finding the claim premature because the plaintiff had yet to establish liability on the part of the staff physician. Baker, 780 So.2d at 171.

Prior to these cases, there was nothing in the common law to suggest that a hospital had a duty to ensure that its staff physicians were financially responsible. As the First District has said:

[N]o case, either in Florida or elsewhere, has recognized the tort of negligent selection of a financially “incompetent” physician.... It is true that the corporate negligence doctrine is premised on the notion that it is foreseeable that a hospital’s failure to properly investigate an applicant for staff privileges would present a foreseeable risk of harm to the hospital’s patients.... No concurrent public reliance on a hospital’s monitoring of a staff physician’s malpractice judgment-paying skills has been noted in the cases.

Beam v. Univ. Hosp. Bldg., Inc., 486 So.2d 672, 673 (Fla. 1st DCA 1986), (citations omitted).

We cannot assume that the legislature intended to create a cause of action and abrogate the common law without clear, unambiguous and affirmative language to that effect. See Raisen v. Raisen, 379 So.2d 352, 353-54 (Fla.1979)(stating that, as a general rule, common law should be changed through legislative enactment, not judicial decisions); Assoc, for Retarded Citizens—Volusia, Inc. v. Fletcher, 741 So.2d 520, 525 (Fla. 5th DCA 1999)(“Had it been the intent of the legislature to abrogate the well-settled common law rule ... the legislature no doubt would have specifically said so.”). There is no such language in section 458.320. Thus, I believe that the Second and Fifth Districts overstepped their authority in creating a private cause of action where one was not expressly provided for by the legislature and we should decline to follow their lead in this case. I would therefore reverse and certify conflict with the holdings from these Districts.

      . The statute provides that financial ability can be demonstrated in various ways: 1) The establishment and maintenance of an escrow account; 2) professional liability coverage or 3) obtaining and maintaining an unexpired, irrevocable letter of credit. § 458.320(l)(a),(b),(c).

      .Specifically, the statute provides:
      2. The Department of Health shall issue an emergency order suspending the license of any licensee who, after 30 days following receipt of a notice from the Department of Health, has failed to: satisfy a medical malpractice claim against him or her; furnish the Department of Health a copy of a timely filed notice of appeal; furnish the Department of Health a copy of a supersedeas bond properly posted in the amount required by law; or furnish the Department of Health an order from a court of competent jurisdiction staying execution on the final judgment pending disposition of the appeal.
      3. Upon the next meeting of the probable cause panel of the board following 30 days after the date of mailing the notice of disciplinary action to the licensee, the panel shall make a determination of whether probable cause exists to take disciplinary action against the licensee pursuant to subparagraph 1.
      4. If the board determines that the factual requirements of subparagraph 1. are met, it shall take disciplinary action as it deems appropriate against the licensee. Such disciplinary action shall include, at a minimum, probation of the license with the restriction that the licensee must make payments to the judgment creditor on a schedule determined by the board to be reasonable and within the financial capability of the physician. Notwithstanding any other disciplinary penalty imposed, the disciplinary penalty may include suspension of the license for a period not to exceed 5 year. In the event that an agreement to satisfy a judgment has been met, the board shall remove any restriction on the license.


text:
    Anthony Larnell JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-3831.
    District Court of Appeal of Florida, Second District.
    Dec. 31, 2003.
    Rehearing Denied Feb. 4, 2004.
    James Marion Moorman, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Dale E. Tarpley, Assistant Attorney General, Tampa, for Appel-lee.
   PER CURIAM.

Anthony Jackson appeals a judgment for burglary of a dwelling, opposing an officer without violence, and petit theft. We affirm the judgment without further comment. As the State concedes, however, the face of the judgment contains a scrivener’s error. The judgment indicates that Mr. Jackson was adjudicated guilty of petit theft as a first-degree misdemeanor. See § 812.014(1), (2)(e), Fla. Stat. (2001). In fact, Jackson was adjudicated guilty of pet-it theft as a second-degree misdemeanor. See § 812.014(1), (3)(a), Fla. Stat. (2001).

We remand the judgment for the circuit court to correct this error.

ALTENBERND, C.J., and NORTHCUTT and CASANUEVA, JJ., Concur.


text:
    Janice MILIN, et al., Appellants, v. NORTHWEST FLORIDA LAND, L.C., et al., Appellees.
    No. 1D03-1666.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2003.

      David G. White, Esq., Pensacola, for Appellants.
    T.A. Borowski, Jr., Esq. and J. Scott Duncan, Esq., Pensacola, for Appellees.
   PER CURIAM.

Appellants seek review of the trial court’s order imposing a temporary injunction. Because the trial court’s order failed to address the four criteria necessary to support the issuance of the injunction and failed to set forth sufficient factual findings that support each of the four criteria, we reverse the trial court’s order and remand with directions.

As we have previously set forth in City of Jacksonville v. Naegele Outdoor Advertising Co., 634 So.2d 750, 752 (Fla. 1st DCA 1994):

[T]he issuance of a preliminary injunction is an extraordinary remedy which should be granted sparingly, which must be based upon a showing of the following criteria: (1) The likelihood of irreparable harm; (2) the unavailability of an adequate remedy at law; (3) substantial likelihood of success on the merits; and (4) consideration of public interest.

(quoting Thompson v. Planning Comm’n, 464 So.2d 1231, 1236 (Fla. 1st DCA 1985)). Pursuant to Florida Rule of Civil Procedure 1.610(c), “[ejvery injunction shall specify the reasons for entry....” We have emphasized that “[cjlear, definite, and unequivocally sufficient factual findings must support each of the four conclusions necessary to justify entry of a preliminary injunction.” See Spradley v. Old Harmony Baptist Church, 721 So.2d 735, 737 (Fla. 1st DCA 1998) (quoting Naegele, 634 So.2d at 754).

For instance, in Tom v. Russ, 752 So.2d 1250, 1251 (Fla. 1st DCA 2000), in noting that the trial court’s injunction failed to address the likelihood of success on the merits or considerations of public interest, we reversed and remanded with instructions to the trial court to either enter an order that satisfied all requirements for entry of a temporary injunction, including the requirement of a bond, or, if appropriate, an order denying the injunction. See also Yardley v. Albu, 826 So.2d 467, 470 (Fla. 5th DCA 2002) (reversing the trial court’s injunction because the court’s order recited legal aphorisms or parroted the essential injunction criteria and remanding with instructions to delineate factual findings to support each of the four criteria); Spradley, 721 So.2d at 737 (holding that the injunction was fatally deficient because the court’s order did not contain any findings or provide any reasons for issuing the injunction); Bellach v. Huggs of Naples, Inc., 704 So.2d 679, 680 (Fla. 2d DCA 1997) (reversing and remanding the court’s injunction because the order, which failed to make specific findings regarding the four injunction criteria, was defective); Snibbe v. Napoleonic Soc’y of Am., Inc., 682 So.2d 568, 570 (Fla. 2d DCA 1996) (reversing and remanding the trial court’s injunction because the court’s order did not make specific factual findings as to the four elements necessary to support the issuance of the injunction); Liberty Fin. Mortgage Corp. v. Clampitt, 667 So.2d 880, 881-82 (Fla. 2d DCA 1996) (reversing and remanding because, although the trial court’s injunction addressed irreparable injury, it did not address the three other criteria necessary to support the issuance of an injunction).

In the instant case, the only factual finding made by the trial court was that the parties had maintained the disputed property in a condition during the litigation that was the “status quo” and that the status quo had been maintained until very recently. Although appellee is correct that the function of a temporary injunction is to preserve the status quo pending the final outcome of a case, see Brock v. Brock, 667 So.2d 310, 311 (Fla. 1st DCA 1995), the trial court failed to address the four criteria necessary for the issuance of an injunction and failed to set forth any factual findings in support of the four criteria, as did the courts in the foregoing cases. As such, the temporary injunction is defective and must be reversed. See, e.g., Yardley, 826 So.2d at 470; Tom, 752 So.2d at 1251; Bellach, 704 So.2d at 680. Upon remand, the trial court is instructed to enter an order that satisfies all requirements for entry of a temporary injunction or, if appropriate, an order denying the injunction. See Tom, 752 So.2d at 1251.

REVERSED and REMANDED with directions.

WEBSTER, LEWIS and HAWKES, JJ., concur.


text:
    Michael P. SZYMANOWSKI, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-4054.
    District Court of Appeal of Florida, Fourth District.
    Dec. 31, 2003.

      Michael P. Szymanowski, Lake City, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION FOR REHEARING, CLARIFICATION, OR CERTIFICATION

PER CURIAM.

We grant Michael Szymanowski’s Motion for Rehearing, Clarification, or Certification of this Court’s opinion affirming the trial court’s summary denial of his Motion to Withdraw Plea. We withdraw our previous opinion and substitute this opinion in its place.

The State charged Appellant with two counts of attempted first degree murder of his ex-girlfriend and her boyfriend on August 17, 1996. Appellant entered a negotiated plea of nolo contendere to both counts on October 5, 1998 and received twelve years imprisonment followed by ten years probation under the 1995 sentencing guidelines.

After the 1995 guidelines were declared unconstitutional in Heggs v. State, 759 So.2d 620 (Fla.2000), Appellant filed a 3.800(a) motion to correct illegal sentence alleging that his twelve year sentence, which was a mid-guidelines sentence, exceeded the 1994 sentencing guidelines. The trial court granted his motion and upon re-sentencing, Appellant sought to withdraw his plea after the State requested a 137.5 month sentence, the maximum sentence allowable under the 1994 guidelines. Appellant argued that since he had received a mid-guidelines sentence of twelve years under the 1995 guidelines, he should therefore be re-sentenced to a mid-guidelines sentence of 110 months under the 1994 guidelines rather than the maximum sentence under the 1994 guidelines. The trial court would not consider counsel’s argument at the re-sentencing and instructed him to file a motion to withdraw plea after re-sentencing. The trial court then imposed a 137.5 month sentence with three year mandatory minimum, followed by ten years of probation.

Following re-sentencing, Appellant filed a rule 3.850 motion to withdraw plea and vacate sentence alleging his plea was not knowingly, voluntarily or intelligently made. He again argued that a mid-guidelines sentence was initially negotiated with the State and therefore, he should be re-sentenced to a mid-guidelines sentence of 110 months imprisonment based on a range of 82.5 to 137.5 months rather than to the maximum. He also alleged a violation of the original plea agreement because the trial court imposed a three year mandatory minimum sentence, not part of his negotiated plea.

The trial court struck the three year minimum sentence but denied his motion to withdraw his plea. The trial court reviewed the plea colloquy transcript and concluded Appellant’s negotiated plea was to a specific term of years rather than to a mid-guidelines sentence.

The burden lies with the State to show that a rule 3.850 motion should be denied either because it has no basis in law or because record attachments conclusively show that the movant is not entitled to relief. See Fla. R.Crim. P. 3.850(d). Here, we find the record attachment did not conclusively establish that Appellant was not entitled to relief given his allegations. The plea colloquy merely shows that the trial court informed him that he scored between nine and fifteen years and inquired whether he wanted to enter a plea and receive a twelve year sentence, a sentence we observe is a mid-guidelines sentence although not specifically so labeled in the record.

Notwithstanding the Florida Supreme Court’s determination in Heggs that a sentence imposed under the 1995 guidelines is not “illegal” if it does not exceed the 1994 sentencing guidelines without a departure, this Court has permitted defendants who have entered pleas during the Heggs window period to challenge the voluntary nature of their pleas pursuant to rule 3.850 provided they have alleged that a specific guidelines level sentence was negotiated and intended in exchange for their plea. See Honeycutt v. State, 805 So.2d 987 (Fla. 4th DCA 2001) (remanding for further proceedings where defendant alleged that he entered into a plea agreement for a minimum 1995 guidelines sentence); see also Latalian v. State, 786 So.2d 1242 (Fla. 4th DCA 2001) (vacating appellant’s sentence and remanding for further proceedings where appellant initially received a minimum 1995 guidelines sentence, but upon Heggs re-sentencing appellant received an almost identical sentence except it was at the top of the guidelines under the 1994 sentencing guidelines).

In this case, the State did not conclusively refute Appellant’s claim that he negotiated a mid-guidelines sentence. The plea transcript wherein the trial court merely confirmed Appellant’s acceptance of a twelve year sentence does not conclusively show that the Appellant negotiated for a specific term of years rather than a mid-guidelines sentence. Appellant, on the other hand, provided the trial court with a copy of the prosecutor’s hand-written note reflecting that one of the victims wanted him to receive a mid-guidelines sentence and that the prosecutor would consider her desire. Since the prosecutor’s note indicated he would consider the victims’ desire and Appellant received, a sentence of twelve years imprisonment, which at the time of the initial sentencing was a mid-guidelines sentence, the parties may very well have negotiated and intended that Appellant receive a mid-guidelines sentence in exchange for his plea. Thus, the trial court should have either conducted an evidentiary hearing to determine whether Appellant entered his plea conditioned upon receiving a mid-guidelines sentence or attached other record support conclusively establishing that he agreed to a specific term of years and did not negotiate a specific guidelines level sentence.

Accordingly, we reverse and remand for either an evidentiary hearing or additional record support conclusively showing Appellant is not entitled to relief.

In the event the trial court determines that Appellant agreed to enter his plea in exchange for a mid-guidelines sentence, the trial court should either allow the State to agree to a “mid-guidelines” sentence pursuant to the 1994 sentencing guidelines, or allow the State to withdraw from the plea agreement and proceed to trial. See Honeycutt, 805 So.2d at 987-988 (citations omitted).

We again certify conflict with the First District’s decision in Booker v. State, 771 So.2d 1187 (Fla. 1st DCA 2000) (post-conviction relief alleging an involuntary plea is precluded under Heggs where the challenged sentence could have been imposed under the 1994 guidelines), review dismissed, 804 So.2d 328 (Fla.2001).

REVERSED AND REMANDED.

GUNTHER, STONE and KLEIN, JJ., concur.

      . The relevant portion of the plea colloquy was as follows:
      COURT: Where does the defendant fall in the sentencing guidelines?
      STATE: He’s 109.65 months for the bottom, which is 9 years and 183.75 for the top, which is basically 15 years.
      COURT: All right. And you concur with that assessment Mr. [Defense Counsel]?
      DEFENSE: Judge, I've reviewed the score-sheet and I agree.
      COURT: Twelve years is the guidelines sentence.
      * * *
      COURT: Well Mr. Szymanowski, do you at this time wish to enter pleas of no contest to each of these charges, attempted first degree murder, in exchange to be sentenced on each count to 12 years Florida State Prison with credit for time served?
      DEFENDANT: Yes, sir.


author: VILLANTI, Judge.

text:
    Jeffrey L. SNYDER, Appellant, v. STATE of Florida, Appellee.
    No. 2D02-2228.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 2004.

      Robert W. Merkle and Ward A. Meyth-aler of Merkle & Magri, P.A., Tampa, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appel-lee.
   VILLANTI, Judge.

Jeffrey Snyder appeals the sentence entered by a successor judge following a successful motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). He also appeals the denial of his motion to disqualify the successor judge. Because the trial court properly denied the motion to disqualify as untimely, we affirm the denial of that motion. However, because the trial court erred in allowing sentencing by a successor judge without a showing of necessity, we vacate the sentence and remand for resentencing.

On October 30, 1998, Snyder pleaded guilty to eleven counts of grand theft and one count of securities fraud. Following his guilty plea, Snyder was sentenced to fourteen years’ imprisonment. This sentence was at the bottom end of the sentencing guidelines in effect at that time. In addition to the prison sentence, the court ordered restitution totaling over $1.5 million.

After his sentencing, Snyder entered into a settlement agreement with some of the victims of his crimes. The agreement contained a release of approximately $1,029,854 of the criminal restitution orders. Snyder filed this release as a satisfaction of the restitution orders.

On December 19, 2001, Snyder filed a motion to correct illegal sentence pursuant to rule 3.800(a) on the ground that he had been sentenced pursuant to the 1995 sentencing guidelines, which were declared unconstitutional in Heggs v. State, 759 So.2d 620 (Fla.2000). On April 25, 2002, the trial court held a resentencing hearing so that Snyder could be sentenced under the 1994 guidelines, which were constitutionally valid. However, the original sentencing judge did not preside over the resentencing; instead, a successor judge presided. This successor judge sentenced Snyder to 104 months’ imprisonment, which was at the high end of the sentencing range under the 1994 guidelines. The successor judge also ordered that “[rjesti-tution remains as previously imposed in this case.”

Snyder filed a notice of appeal of the resentencing on May 23, 2002. On October 11, 2002, pursuant to Florida Rule of Criminal Procedure 3.800(b), Snyder filed a motion to correct sentencing errors, alleging a successor judge was allowed to resentence him without a showing of necessity and the successor judge failed to become familiar with the facts of the case. On October 18, 2002, Snyder filed a motion to disqualify the successor judge. The trial court denied both motions, and Snyder again appealed.

We affirm the trial court’s denial of the motion to disqualify the successor judge because the motion was not timely. A motion to disqualify must be filed “within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion.” Fla. R. Jud. Admin. 2.160(e). The facts constituting the grounds for the motion were necessarily discovered at the resentencing hearing on April 25, 2002; however, Snyder did not file his motion to disqualify until October 18, 2002. Therefore, the motion was not timely, and we affirm on this issue.

We agree, however, that a successor judge should not have been permitted to resentence Snyder absent a showing of necessity as required by Florida Rule of Criminal Procedure 3.700(c)(1). Rule 3.700(c)(1) provides as follows:

In any case, other than a capital case, in which it is necessary that sentence be pronounced by a judge other than the judge who presided at trial or accepted the plea, the sentencing judge shall not pass sentence until the judge becomes acquainted with what transpired at the trial, or the facts, including any plea discussions, concerning the plea and the offense.

This court has held that it is error for a trial court to allow resentencing by a successor judge without a showing of necessity. Persaud v. State, 821 So.2d 411 (Fla. 2d DCA 2002); Clemons v. State, 816 So.2d 1180 (Fla. 2d DCA 2002); Campbell v. State, 622 So.2d 603 (Fla. 2d DCA 1993).

The State correctly concedes that there was no showing of necessity to allow a successor judge. The State argues, however, that Snyder waived any objection to the successor judge by not objecting at the resentencing hearing. Although Snyder did not object to the successor judge at the time of resentencing, the record is clear that Snyder did raise the necessity issue in a motion timely filed pursuant to rule 3.800(b). Moreover, nothing in rule 3.700 requires that the defendant object to the successor judge at the time of sentencing. Cf. Persaud, 821 So.2d 411 (considering defendant’s objection to successor judge raised in a rule 3.800(b) motion). Therefore, without a showing of necessity, it was error for a successor judge to resentence Snyder, and Snyder’s objection was properly preserved.

Snyder also argued in his rule 3.800(b) motion that the successor judge failed to acquaint himself with the facts of the case as required by rule 3.700. Snyder provides several examples of what he argues are evidence of the successor judge’s failure to become familiar with the case. Because our holding vitiates the need to address the merits of this argument, we note only that Snyder is correct that rule 3.700 requires a successor judge to become acquainted with the facts and to make an independent evaluation of the case. See Persaud, 821 So.2d at 415. The requirement that a judge conduct an independent evaluation prohibits a successor judge from merely relying on the perceived intentions of the original judge. Id.; Moore v. State, 378 So.2d 792 (Fla. 2d DCA 1979). We caution, however, that absent a plea agreement stipulating that Snyder would be sentenced at the bottom of the guidelines, Snyder is not entitled to be sentenced at the bottom of the 1994 guidelines simply because he was originally sentenced at the bottom of the 1995 guidelines. Cf. Dunbar v. State, 787 So.2d 240 (Fla. 2d DCA 2001) (noting a defendant may be permitted to withdraw a negotiated plea if it was entered with the understanding the defendant would be sentenced at the bottom of the 1995 sentencing guidelines).

Because we are remanding for re-sentencing, we also write concerning one other issue that is likely to recur on remand. Snyder argues that the successor judge erred by reinstating the restitution liens that had been in place pursuant to his original sentence. He submits that the effect of reinstating the liens is to make him responsible for the full amount of restitution, thereby voiding the satisfactions of judgment he had filed pursuant to civil settlement agreements with some of the victims. The trial court’s order indicated that the satisfactions of judgment have not been voided and that the restitution liens would be considered satisfied in full as to each victim if the entire amount of restitution had been paid to that victim. We note the supreme court’s recent holding in Kir by v. State, 863 So.2d 238 (Fla.2003), permits the trial court to do exactly what it did: require a defendant to satisfy restitution imposed as part of his criminal sentence irrespective of any civil settlement agreement he may have reached with the victim.

Because it was error for a successor judge to resentence Snyder without a showing of necessity, we reverse and remand for resentencing by the original judge or, if it is necessary that a successor judge resentence Snyder, by a successor judge after the requisite showing of necessity is made.

Affirmed in part, reversed in part, and remanded.

CANADY, J., and SEXTON, SUSAN, Associate Judge, Concur.


author: BROWNING, J.

text:
    Lois HUTCHINSON, Appellant/Cross-Appellee, v. LYKES SMITHFIELD PACKING and Gallagher Bassett Services, Inc., and Travelers Property & Casualty, Appellees/Cross-Appellants.
    No. 1D02-2622.
    District Court of Appeal of Florida, First District.
    Jan. 8, 2004.
    Manuel Franco, Tampa; and Bill McCabe, Longwood, for AppellanVCross-Appellee.

      R.G. McCormick, Jr., of The Bleakley Law Firm, Tampa, for Appellees/Cross-Appellants.
   BROWNING, J.

The claimant, Lois Hutchinson, appeals a final order of the Judge of Compensation Claims (JCC) finding that Hutchinson suffered only a temporary aggravation of a pre-existing condition and awarding medical and temporary indemnity benefits only through July 31, 2000 (the date of maximum medical improvement). Appellees, the Employer/Carrier, cross-appeal the final order. Concluding that Employer/Carrier’s failure to comply with the clear requirements of section 440.20(4), Florida Statutes (2000), waived their right to challenge compensability of Hutchinson’s pulmonary condition, we reverse the final order, insofar as it limits the waiver of compensability, and remand for further proceedings. Travelers Ins. Co. v. Collins, 825 So.2d 451 (Fla. 1st DCA 2002); Franklin v. Northwest Airlines, 778 So.2d 418 (Fla. 1st DCA 2001).

In July 1967, Hutchinson commenced working for Employer assembling corrugated cardboard boxes. Hutchinson reported that at the workplace on May 11, 2000, a loosened vacuum exhaust hose emitted thick, oily and black smoke, filling her work area for 15-25 minutes. Complaining of a sore throat and difficulty breathing, she went into South Florida Baptist Hospital on May 13, 2000. Hutchinson, who was in her early 60s, did not return to work after her hospitalization. She was accepted as totally disabled by the Social Security Administration in October 2000.

According to the deposition testimony of Miguel Aguila, who was the adjuster in charge of Hutchinson’s file, a Notice of Injury for the May 11, 2000, industrial accident was received on May 16, 2000. A “field case nurse” was assigned to investigate the compensability of Hutchinson’s claim. In a deposition, Elaine Quailey, who is a registered nurse, testified that pursuant to a contract with the Carrier, her then-employer had designated her as the certified nurse/case manager of Hutchinson’s claim. Quailey testified that after reviewing Hutchinson’s medical chart— which showed an admitting diagnosis of an exacerbation of chronic obstructive pulmonary disease (COPD) — she visited Hutchinson at the hospital on or around May 17, 2000, and obtained a history. At that point, Quailey determined that Employer/Carrier would be responsible only for the “acute exacerbation,” i.e., Employer/Carrier would get Hutchinson back to her pre-injury status, which was chronic bronchitis. Hutchinson told Quailey that she had never been told that she had COPD. While at the hospital, Quailey told Hutchinson that Employer/Carrier would be taking care of only the exacerbation, i.e., hospital care, and that Hutchinson’s private health insurance carrier would be taking over afterwards. In any event, Employer/Carrier paid the bill at South Florida Baptist Hospital. Hutchinson’s medical records state that she was a longtime heavy cigarette smoker. According to Aguila, Quailey informed him about a possible issue relating to compensability and a pre-existing condition.

Dr. Ackerman, a specialist in pulmonary diseases, critical care, and internal medicine, became Hutchinson’s primary treating physician soon after her hospitalization. Believing that her condition was caused by her industrial accident, Hutchinson wanted a second medical opinion. Quailey set up a June 26, 2000, evaluation by authorized physician Dr. Goldstein, a specialist in internal and pulmonary medicine, whom Hutchinson chose from a list of specialists. Quailey asked Dr. Goldstein to determine whether Hutchinson’s COPD pre-existed the May 11, 2000, industrial accident, and if so, whether the industrial accident caused a temporary or permanent aggravation of the condition. As Quailey continued to correspond with Dr. Goldstein during Summer and Fall 2000 regarding Employer/Carrier’s concerns, the deadline in section 440.20(4), Florida Statutes (2000), for Employer/Carrier to act passed.

According to that specific statutory provision:

(4) If the carrier is uncertain of its obligation to provide benefits or compensation, it may initiate payment without prejudice and without admitting liability. The carrier shall immediately and in good faith commence investigation of the employee’s entitlement to benefits under this chapter and shall admit or deny compensability within 120 days after the initial provision of compensation or benefits. Upon commencement of payment, the carrier shall provide written notice to the employee that it has elected to pay all or part of the claim pending further investigation, and that it will advise the employee of claim acceptance or denial within 120 days. A carrier that fails to deny compensability within 120 days after the initial provision of benefits or payment of compensation waives the right to deny compensability, unless the carrier can establish material facts relevant to the issue of compensa-bility that it could not have discovered through reasonable investigation within the 120-day period.

Employer/Carrier presented no evidence that a 120-day written notice was ever sent to Hutchinson advising her that Employer/Carrier had elected to provide benefits but were reserving their right to investigate, and possibly later deny, the claim. Employer/Carrier’s records indicate that a Notice of Denial was not filed until November 20, 2000, just over six months after the initial provision of benefits in May 2000. Under these circumstances, having failed to provide a timely denial of compensability within the statutory 120-day “pay and investigate” period, Employer/Carrier waived the right to deny compensability of Hutchinson’s condition. See Collins, 825 So.2d at 451; Franklin, 778 So.2d at 418 (holding that by waiting 17 months after receiving notice of claimant’s workplace injury to deny compensa-bility, employer/carrier waived right to relief and were deemed to have accepted compensability). In fact, the JCC correctly found the May 11, 2000, industrial accident is compensable based on Employer/Carrier’s lack of timely compliance with section 440.20(4), Florida Statutes (2000), and on Employer/Carrier’s failure to satisfy their burden to establish material facts relevant to the compensability issue that could not have been discovered through reasonable investigation within the 120-day period. See Garner v. Clay County Dist. Sch. Bd., 798 So.2d 821 (Fla. 1st DCA 2001).

Hutchinson contends that despite finding a waiver of compensability, the JCC erred in limiting Employer/Carrier’s responsibility to just the temporary aggravation of Hutchinson’s COPD disorder. Hutchinson is correct. See Collins, 825 So.2d at 451. In Collins, the claimant was injured in a workplace accident in January 1996 when he was struck by a pallet being moved by a forklift. The employer/carrier authorized treatment for the injury to Collins’ right foot resulting from the accident; later, a physician was authorized to treat Collins’ lower back pain. After initially providing treatment of Collins’ lower back, the employer/carrier denied the compensability of the lower back condition. Collins petitioned for additional treatment of his lower back. Id. at 451-52. The JCC found that because the industrial accident was not the major contributing cause of Collins’ lower back condition, the claim was not compensable. Nevertheless, the JCC determined that the employer/carrier had waived the right to deny compensability of the lower back condition by failing to deny compensability within the 120-day statutory period after commencing payment of compensation. Id. at 452. Competent substantial evidence in Collins disclosed that the report of a doctor authorized to treat the claimant’s back had placed the employer/carrier on notice that the lower back condition comprised a pre-existing degenerative disc condition as well as an aggravation. Id. The JCC’s ruling in Collins’ favor was affirmed. Id.

Like the claimant in Collins, Hutchinson had a pre-existing (pulmonary) condition that was aggravated or exacerbated by her May 11, 2000, industrial accident. Within days of Hutchinson’s industrial accident and during her hospitalization in mid-May 2000, Employer/Carrier became aware of Hutchinson’s medical records and history, including her well-documented pre-existing COPD condition. Employer/Carrier initially provided benefits and failed to deny the compensability of Hutchinson’s COPD disorder in the manner provided by statute and within the 120-day statutory period. Aguila testified that the medical benefits payout ledger indicated that Employer/Carrier had made payments in late December 2000 and early January 2001 for services provided to Hutchinson during the period from August through November 2000. The last service was provided after Employer/Carrier filed the Notice of Denial.

Hutchinson’s argument is bolstered by our holding in Franklin, 778 So.2d at 418. The claimant, Franklin, had a long history of back problems that required hospitalization and treatment. Subsequently, in January 1997, she sustained additional injuries to her back in a workplace accident. An MRI taken one month later revealed degenerative disc disease. In April 1997, Franklin reported the incident as a compensable accident. Id. at 419. Upon receiving the Notice of Injury form, the employer/carrier authorized medical treatment for Franklin from May 1997 through at least March 1998, and benefits were paid from February 1997 through March 1998. Id. at 420. As early as April 1997, the carrier’s adjustor acknowledged that Franklin had pre-existing back problems. While accepting Franklin’s injuries as compensable then, the adjustor recognized there could be an issue regarding compensability. However, the authorization of medical services/treatment was not denied until September 1998 (well beyond 120 days after the initial provision of compensation or benefits), when the employer/carrier announced for the first time that the alleged injury was not causally related to employment and was not compensable. Id. The JCC found that Franklin had a long history of pre-exist-ing back problems; that her injury did not arise out of her employment; and that her employment was not the major contributing cause of her disability or need for treatment. The JCC rejected Franklin’s argument that even if the claim was not compensable, the employer/carrier were estopped under the 120-day rule from denying compensability. The claim was denied and dismissed. Id. at 419 & 421. We reversed and remanded with instructions to the JCC to enter 'an order awarding Franklin the benefits claimed at the final hearing. Id. at 422.

As in Franklin, once Employer/Carrier knew, or reasonably should have known, that Hutchinson had medical needs, three options were available: 1) pay for those medical needs; 2) pay and investigate according to the terms of section 440.20(4), Florida Statutes (2000); or 8) deny com-pensability. Id. at 421; Bynum Transp., Inc. v. Snyder, 765 So.2d 752, 754 (Fla. 1st DCA 2000). If Employer/Carrier had any concerns about the compensability of Hutchinson’s reported incident, as Quai-ley’s testimony clearly indicates they did soon after the industrial accident, they could have investigated within the statutory 120-day period. Just as the employer/carrier’s failure to comply with the statutory provisions in Franklin waived the right to challenge compensability of Franklin’s back problems (some of which pre-existed the industrial accident), Employer/Carrier’s lack of compliance with the statute waived their right to challenge the compensability of Hutchinson’s COPD condition. Employer/Carrier are deemed to have accepted compensability of Hutchinson’s pulmonary condition. Franklin, 778 So.2d at 422.

On the authority of Collins and Franklin, we AFFIRM that portion of the final order finding that Employer/Carrier waived compensability by failing to satisfy the requirements of section 440.20(4), Florida Statutes (2000); REVERSE that part of the order limiting the waiver of com-pensability; and REMAND for further proceedings consistent with this opinion and the pertinent cases cited herein.

BARFIELD and WEBSTER, JJ., CONCUR.


author: ALTENBERND, Chief Judge.

text:
    In the Interest of J.T., a child. C.T., mother, Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D03-2564.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2004.
    Tiffany Kendal Koogler, Valrico, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Tanya E. DiFilippo, Assistant Attorney General, for Appellee.
   ALTENBERND, Chief Judge.

This is another case in which an order adjudicating a child dependent was entered based upon a “default.” The Department of Children and Family Services concedes error. For the same reasons that we reversed in K.K. v. Department of Children & Families, 862 So.2d 903 (Fla. 2d DCA 2003), T.E.D. v. Department of Children & Families, 867 So.2d 405 (Fla. 2d DCA 2003), S.B. v. Department of Children & Family Services, 858 So.2d 1184 (Fla. 2d DCA 2003), and G.A. v. Department of Children & Family Services, 857 So.2d 310 (Fla. 2d DCA 2003), we reverse in this case. This opinion does not require the trial court to alter custody or current visitation rights, but the trial court must review these issues and make a lawful decision as soon as possible following issuance of our mandate.

Reversed and remanded.

WHATLEY and CANADY, JJ„ Concur.


author: CASANUEVA, Judge.

text:
    Dean TORRES, Appellant, v. STATE of Florida, Appellee.
    No. 2D03-3311.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 2004.
    Robert R. Jacobs, II, Public Defender, and Timothy E. Moffitt, Assistant Public Defender, Fort Myers, for Appellant.
    Stephen B. Russell, State Attorney, and Carrie Ann Pollock, Assistant State Attorney, Fort Myers, for Appellee.
   CASANUEVA, Judge.

Held in contempt and sentenced to a suspended jail sentence and administrative probation for violation of an injunction for protection against repeat violence, Dean Torres contends that the trial court erred in basing its finding solely on inadmissible hearsay. We agree with Mr. Torres that the evidence was legally insufficient for the trial court to find that he violated the injunction and reverse.

The injunction in this case was in effect to protect the daughter of the complaining witness, Donald Cramer, who was the only person called to testify in the State’s case. Mr. Cramer testified that when he answered the telephone, a male voice asked for his daughter by name. Not recognizing the voice, Mr. Cramer gave the phone to his daughter, who then had a conversation with that person. Subsequently, Mr. Cramer became concerned; shortly after she received the call his daughter “became missing.” Mr. Cramer filed a report and gave the police the phone number of that call from his caller I.D.

At this point in the trial the assistant state attorney posed a series of questions to which objections were sustained, all of which dealt with how the Cape Coral Police Department handled the information Mr. Cramer gave them. For example, when the State asked whether Dean Torres was ever determined to be the person who made the call, a hearsay objection was sustained. Mr. Cramer then went on to testify that he did not know if the Cape Coral police had contacted the defendant; however, he filed an affidavit for violation of the injunction based on information he received from the Cape Coral Police Department. Although the trial court sustained a hearsay exception to a question asking why Mr. Cramer believed the person on the telephone was Dean Torres, Mr. Cramer was permitted to testify, over objection, as follows: “I had been hearing reports of a Poppy calling and being— calling her; and so when I heard the phone conversation, stated the name was Poppy, and I guess I put two and two together and.... ” A defense motion to strike was overruled, and the State went on to elicit from Mr. Cramer that the person who called identified himself as Poppy. Over objection, Mr. Cramer stated that he “learned that Poppy was Dean Torres.”

This recitation of the evidence demonstrates that the court permitted the State to evade the proscription against hearsay when it allowed Mr. Cramer to testify that he “had been hearing reports of a Poppy calling” and that he “learned that Poppy was Dean Torres.” Even though Mr. Cramer did not testify as to any specific out-of-court statements, this is a distinction without a difference: it is apparent that the State’s sole witness possessed no independent knowledge concerning the identity of the person who called the Cramer household on the date alleged.

Without the impermissible hearsay, the evidence was insufficient to find that Mr. Torres violated the injunction against repeat violence. Accordingly, we reverse and remand with directions to discharge the defendant.

Reversed and remanded.

ALTENBERND, C.J., and NORTHCUTT, J., Concur.


text:
    VAN BERBER & ASSOCIATES, INC., Appellant, v. Kelly COOK and Elena Cook, his wife, Richard Matassa, and Florida Neighborhood Centers, LLC, a Florida Limited Liability Company, Appellees.
    No. 2D03-4411.
    District Court of Appeal of Florida, Second District.
    Jan. 16, 2004.
    Rehearing Denied March 9, 2004.

      John A. Guyton, III, of Rywant, Alvarez, Jones, Russo & Guyton, P.A., Tampa, for Appellant.
    Karen B. Lopez of Karen B. Lopez, P.A., St. Petersburg, and John D. Fernandez, Clearwater, for Appellees Kelly and Elena Cook.
    No Appearance for Appellees Richard Matassa and Florida Neighborhood Centers.
   CASANUEVA, Judge.

We review the circuit court’s partial denial of a summary judgment in which the court failed to apply the workers’ compensation immunity provisions to a statutory employer. See Fla. R.App. P. 9.130(a)(3)(C)(v). We reverse.

Van Bebber and Associates, Inc., was the general contractor and construction manager for a renovation project on which Kelly Cook was a subcontractor’s employee. The plans for the renovation project had been either designed or ordered by Van Bebber. Richard Matassa, a professional engineer, sealed and certified the plans, which failed to disclose or identify a retention pond hidden beneath a concrete slab. During the renovation project Mr. Cook was directed to cut a trench in this concrete slab. When the cut was made over the retention pond, Mr. Cook fell through the slab and sustained injuries. Mr. Cook and his wife then sued Van Bebber, Matassa, and others for their alleged negligence.

Mr. Cook also asserted a claim and received injury benefits under his employer’s workers’ compensation insurance. As an affirmative defense to the civil action brought by the Cooks, Van Bebber asserted that the Cooks’ claims were barred by the exclusivity provisions of section 440.11, Florida Statutes (1999), and sought summary judgment on this ground. Finding that on the date of the accident Mr. Cook was a statutory employee of Van Bebber, the circuit court entered summary judgment in favor of Van Bebber on all claims asserting that Van Bebber negligently managed the construction; the court declined, however, to enter summary judgment on the claim that Van Bebber negligently designed the project plans. We conclude that the court erred by denying summary judgment on the latter claim.

It is undisputed that Van Bebber was Mr. Cook’s statutory employer. Therefore, the exclusivity of liability provision of section 440.11 bars any recovery for his injuries from Van Bebber, unless the circumstances fall under a recognized exception. For instance, if an employee is injured by a co-employee engaged in unrelated works, or if the employer acts as a second persona unrelated to its status as an employer, then workers’ compensation immunity is not available to the employer. See, e.g., Percy v. Falcon Fabricators, Inc., 584 So.2d 17 (Fla. 3d DCA 1991) (regarding the “dual persona” exception). We reject Mr. Cook’s contentions that this case presents any exception that would negate Van Bebber’s workers’ compensation immunity and address one of his arguments briefly.

Mr. Cook argues that the “dual persona” exception to the immunity provided by Florida’s Workers’ Compensation law applies here. In Percy, the Third District reviewed a final summary judgment in favor of the employer in a products liability action brought by an employee. The employee was injured at her workplace by the explosion of a pressure cooker manufactured by a company that had merged with her employer. The court held:

We join those jurisdictions that have adopted the dual persona doctrine and hold that an injured employee may sue her employer in tort when that employer is the corporate successor of the manufacturer of the defective product that caused the injury, and the product was manufactured before the corporate merger.

Percy, 584 So.2d at 18.

The “dual persona” exception as set forth in Percy does not apply in this case, which involves neither a corporate successor nor a product. By distinguishing Percy, we are not called upon to and do not determine whether we should recognize the “dual persona” exception as expressed in Percy. We do note that Percy issued in 1991, and in the many years following it our legislature has neither rejected nor accepted its reasoning.

Furthermore, inasmuch as Mr. Cook attempts to distinguish Van Bebber’s actions as a construction manager or general contractor from its role as designer of plans, we find this to be a “dual capacity” argument, much disfavored and also not applicable to these facts. Cf. Tatum v. Med. Univ. of S.C., 346 S.C. 194, 552 S.E.2d 18, 23-24 (2001) (rejecting a “dual capacity” argument and noting that this doctrine has been disfavored, as it has been used to destroy employer immunity simply when there are separate legal theories that can be brought against the employer (citing Arthur Larson & Lex K. Larson, Larson’s Workers’ Compensation Law § 113.01[2] (1999))); see also Sullivan v. Atl. Fed. Sav. & Loan Ass’n, 454 So.2d 52 (Fla. 4th DCA 1984). We decline to adopt the “dual capacity” doctrine because it would circumvent the legislative plan and purpose as codified in chapter 440.

Reversed and remanded with instructions to enter summary judgment in favor of Van Bebber on count one.

COVINGTON and WALLACE, JJ., Concur.