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

text:
    P.O., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D02-2391.
    District Court of Appeal of Florida, Fourth District.
    March 5, 2003.
    Barbara D. Stull, Port St. Lucie, for appellant.
    Crystal Y. Yates-Hammond, Fort Pierce, for appellee.
   PER CURIAM.

P.O., the mother, timely appeals an order terminating her parental rights as to her minor daughter, S.S. While we ultimately affirm the order of the trial court, we write to address appellant’s claim that the failure of the Department of Children and Families (“DCF”) to make sufficient efforts to assist her in complying with her case plan warrants reversal.

In February of 2000, DCF filed a verified shelter petition for the minor child S.S. The petition alleged S.S. had been left alone for over four (4) hours with inadequate supervision on December 27, 1999, that the mother, P.O., had tested positive for cocaine in January 7, 2000, and that S.S. had been located with her parents at a motel on February 2, 2000, where it was suspected P.O. was spending a tax refund check on drugs. Both parents admitted they were unemployed at that time. DCF referred P.O. to the Counseling and Recovery Center (“CRC”), a women’s recovery center for substance abuse.

P.O. met with CRC intake counselor Sue Lawrence on February 8, 2000, for a substance abuse assessment. As will be discussed more in depth, infra, Ms. Lawrence made extraordinary efforts to assist P.O. in complying with her case plan. When Ms. Lawrence met with P.O. for this first time, P.O. was experiencing severe depression, had trouble keeping a job, and was basically homeless. P.O. admitted she had been using alcohol and marijuana for at least ten years, and that she had begun using crack cocaine over the past year. Ms. Lawrence recommended P.O. enter CRC’s intensive day treatment program, which would allow P.O. to work outside the center, and exercise visitation with S.S. If P.O. could not maintain sobriety within the auspices of the day treatment program, residential treatment would be recommended.

P.O. returned at the end of February to begin her treatment. This visit did not go well; P.O. refused to sign in as required and left the center on the second day of treatment. Thereafter, Ms. Lawrence worked on getting P.O. back into the day program, and P.O. was readmitted in March of 2000. P.O.’s attendance was sporadic. She tested positive for cocaine twice during this time period, and her counselor recycled her partly through the first phase of the treatment due to behavioral and attendance issues. By July 2000, P.O. had progressed to the second phase of treatment. However, approximately one month later, she was discharged by her new counselor, due to a lack of progression in treatment.

Meanwhile, DCF had drawn up a case plan for P.O. and the father, which was accepted by the court in April of 2000. The case plan had a goal of reunification with a target date in December of 2000. The case plan required P.O. to submit to a parenting evaluation and follow all recommendations, obtain and maintain a stable income and safe drug-free housing, successfully complete a drug and alcohol abuse evaluation and follow all recommendations, successfully complete an anger management program, and notify DCF of any changes in her address within 72 hours. Thereafter, DCF and the parents reached a mediated agreement and S.S. was placed with the maternal grandparents. Then, around the time P.O. was discharged from CRC, DCF filed a petition to adjudicate S.S. dependent. An adjudication of dependency was entered on August 28, 2000. Temporary physical custody remained with the maternal grandparents. Then, per the grandparents’ request, S.S. was removed from their home and placed in foster care in October of 2000.

Subsequent to her discharge from CRC, P.O. suffered a relapse and contacted Ms. Lawrence, requesting assistance with getting into a residential treatment program. There was no residential space at CRC at that time. However, Ms. Lawrence offered to readmit P.O. at CRC as an interim client, which would have allowed her to wait for a residential bed to open up. P.O. was not receptive. Ms. Lawrence then gave P.O. directly, and her counsel at the time, contact information for a number of other residential programs.

Ms. Lawrence met with P.O. in person on September 25, 2000. Ms. Lawrence recommended P.O. enter a long-term residential program; however, P.O. was interested only in entering a 28 day detoxification program, which Lawrence did not believe was sufficient. After this meeting, Lawrence did not hear back from P.O. until her new counsel contacted Lawrence in November of 2000. Once again, Lawrence provided information on a number of residential programs. Lawrence also tried finding P.O. room at residential programs between that time and early 2001; however, she could not find any openings. Undeterred, Lawrence arranged to have P.O. readmitted at CRC, for the third time, as an interim client. P.O. came in late February 2001, stayed for a few days, and then left. She acknowledged she was still using crack cocaine at this time. Finally, in March of 2001, Lawrence contacted P.O.’s counsel and informed her P.O.’s case was going to be closed.

April 10, 2001, DCF filed a verified petition for the termination of parental rights as to both parents. As to P.O., the petition moved for termination on two grounds: (1) that she had engaged in conduct that threatened the life or well-being of the child irrespective of the provision of services, and (2) that she had materially breached the terms and conditions of her case plan. § 39.806(l)(e),(e), Fla. Stat. (2001). The matter came before the court in November of 2001.

At the adjudicatory hearing, it became abundantly clear DCF provided few, if any, bona fide services to P.O. during the pendency of her case plan. When S.S. was adjudicated dependent, DCF family services counselor Nicole Beatty was assigned as her personal counselor. Ms. Beatty testified in addition to the children to whom she is assigned, she also provides services to the parents of those children. Certainly she did not do such in the instant case. Although Ms. Beatty made the initial referral to CRC for P.O., she never met with P.O., nor did she follow P.O.’s progress while in CRC treatment. Ms. Beatty’s failure to engender contact with P.O. was exacerbated by the fact P.O.’s case plan suffered from many infirmities, including its failure to provide how many, much less any, face-to-face meetings were to be held between P.O. and DCF caseworkers, an omission in direct contravention of section 39.601(l)(c), Florida Statutes (2001). When questioned why DCF failed to provide any services to P.O., Beatty responded she had basically delegated the task of assisting P.O. in complying with her case plan to CRC, “like she does in all her cases.”

The court ultimately found there were clear and convincing grounds for termination, including P.O.’s failure to comply with her case plan, and that termination of P.O.’s parental rights was in S.S.’s best interests. §§ 39.809(1), 39.810, 39.811, Fla. Stat. (2001).

Section 39.806(l)(e), Florida Statutes, provides:

A petition for termination of parental rights may also be filed when a child has been adjudicated dependent, a case plan has been filed with the court, and the child continues to be abused, neglected, or abandoned by the parents. In this case, the failure of the parents to substantially comply for a period of 12 months after an adjudication of the child as a dependent child or the child’s placement in shelter care, whichever came first, constitutes evidence of continuing abuse, neglect, or abandonment unless the failure to substantially comply with the case plan was due either to the lack of financial resources of the parents or to the failure of the department [DCF] to make reasonable efforts to reunify the parent and child ....

While P.O. can hardly make a good faith argument that she substantially complied with her case plan, she argues she should not be penalized for such, alleging DCF failed to make reasonable efforts to reunify her and S.S. While this contention has considerable merit, it does not carry the day in the instant case. We agree with P.O. that DCF failed to comply with its statutorily mandated duties. DCF failed to provide any real services to P.O., acknowledging it had delegated the provision of such to a treatment center, CRC, which according to DCF agent Nicole Beatty constitutes standard DCF protocol. This court has frowned on similar conduct in the past. See P.A. v. Dep’t of Health and Rehabilitative Servs., 685 So.2d 92 (Fla. 4th DCA1997).

In P.A. this court reversed an order of termination that had been based on a mother’s failure to substantially comply with her case plan, finding the mother had in fact complied with the four goals of her case plan. In addition, this court noted the Department had failed to monitor her progress or help her receive the services she needed to become a capable parent, instead delegating those duties to an employee of the mental health center where she had been undergoing treatment. In this vein, the court provided, “germination would not have been proper if [the mother’s] ability to comply was affected by the department’s failure to provide reasonable assistance.” Id. at 93. Here, unlike the mother in P.A., the evidence established P.O. had in fact failed to substantially comply with the tasks of her case plan. Although DCF failed to make “reasonable efforts” to reunite P.O. with S.S., we do not find P.O.’s failure to substantially comply with her case plan was due to that lack of reasonable efforts on DCF’s behalf. CRC, primarily through Ms. Lawrence, bent over backwards in its attempt to help P.O. comply with her case plan, admitting her into its program on three separate occasions and apprising her of other available treatment facilities. Moreover, CRC had the means of providing P.O. with all of the various treatments she needed, providing both parenting and anger management courses in addition to substance abuse treatment. It is clear the crux of P.O.’s case plan was the resolution of her drug problem. Yet, over the course of her case plan, P.O. persisted in her drug usage, and evidenced resistance to treatment, in no small part due to behavioral issues. P.O.’s failure to substantially comply with her case plan, especially those requirements relating to drug treatment, constitutes sufficient grounds for the termination of her parental rights as to her daughter, S.S. § 39.806(l)(e).

P.O.’s additional arguments concerning deficiencies in the case plan itself are unconvincing. P.O. evinced a detailed and accurate knowledge of the elements of, and her responsibilities under, her case plan, yet failed to substantially comply with those requirements.

We further find the trial court’s finding that termination was in S.S.’s best interests is supported by the record. P.O.’s additional contention the trial court erred in appointing a guardian ad litem is without merit. A trial court may appoint a guardian ad litem for a minor child at any stage of the proceedings. See Fla. R. Juv. P. 8.215(a),(b).

Though we have ultimately approved of the order of termination, in no way do we approve of DCF’s actions leading up to, and during, the termination proceedings. We urge DCF to comply with its statutorily mandated duties under chapter 39.

AFFIRMED.

GUNTHER and HAZOURI, JJ., concur.

POLEN, C.J., concurs specially with opinion.

POLEN, C.J.,

concurring specially.

Though I ultimately concur with the ultimate holding in the majority opinion, I write specially to express my extreme displeasure with DCF’s actions in the instant case.

Though I concur that P.A. is factually distinguishable from the instant case, I cannot help but notice that cases like P.A, and this case, are becoming more and more common before this court. On a startlingly regular basis, this court is asked to review dependency and termination proceedings where complaints are leveled that DCF has not fulfilled its statutory obligations. On a professional note, these cases are resulting in overload of our appellate dockets. On a personal note, these cases reflect just how deficient the provision of services to families in need by DCF has become.

Deficient performance by DCF, as evidenced in this court, has reached epidemic proportions. Though there is no formal mechanism for doing such, I am of the belief this court can practically take judicial notice that claims alleging deficient performance on behalf of DCF are well-founded. I am mindful that this court’s powers of compulsion and compliance with regard to DCF are limited to those actions within DCF’s power to comply. See Dep’t of Children and Families v. Anderson, 27 Fla. L. Weekly D2813 (Fla. 4th DCA Oct. 23, 2002), reh’g pending (holding court could not compel DCF to comply with its statutorily mandated duty to provide treatment to incompetent juvenile defendants where DCF lacked the resources to provide the treatment). Yet, there is absolutely no evidence in the record that DCF’s failure to fulfill its obligations under chapter 39 in the instant case was due to a lack of resources. See also Anderson, 27 Fla. L. Weekly D2313-14 (Stone, J., dissentingXnoting DCF offered no eviden-tiary proof, but only claims made by counsel, regarding its alleged lack of resources, and that an evidentiary hearing should be held before a determination was made that DCF had taken “all reasonable steps” in attempt to fulfill its statutory obligation). Rather, DCF’s failure to fulfill its obligations in the instant case seems the result of a systemic attitude on DCF’s behalf which can be classified as ambivalence at best. In fact, I would go so far as to characterize DCF as “lucky” in the instant case, lucky that CRC, by way of Ms. Lawrence, did DCF’s job (providing services to the mother), ultimately providing DCF with grounds to move for termination and move another file out of its office. If DCF had any genuine concern for the mother, or cared a whit whether or not she complied with her case plan (in furtherance of preserving the family unit), it is anything but apparent from the face of the record. DCF cannot continue to treat parents and children under its supervision as nothing more than pieces of paper, numbers and files that must be dealt with swiftly, with no regard for the results. Although the mother in the instant case was not prejudiced by DCF’s abject performance, the people of the State of Florida are prejudiced by such pervasive and defective performance by a governmental organ entrusted with such critical responsibilities. I join the majority in urging DCF to comply with its statutorily mandated duties under chapter 39. Florida’s families deserve nothing less.

      . The termination of the father’s parental rights have been appealed in a separate case pending before this court, case No. 4D02-2266.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Charles PARENT, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-485.
    District Court of Appeal of Florida, Fourth District.
    March 12, 2003.

      Charles Parent, Jasper, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice to Appellant’s filing his motion for jail credit explaining how the jail records support his claim for additional jail credit.

FARMER, SHAHOOD and HAZOURI, JJ., concur.


author: COPE, J.

text:
    Boonnuang P. KALOF, Appellant, v. Gregory E. KALOF, Appellee.
    No. 3D02-29.
    District Court of Appeal of Florida, Third District.
    March 12, 2003.
    Ira Pozen, Miami, for appellant.
    Marcus & Marcus and Marc H. Cohen, Stuart, for appellee.
    Before COPE, GODERICH and FLETCHER, JJ.
   COPE, J.

Boonnuang P. Kalof, the former wife, appeals a final judgment of dissolution of marriage. We affirm the dissolution of marriage, but remand for a hearing on the wife’s motion to set aside the marital settlement agreement.

I.

The former wife and the former husband, Gregory E. Kalof, reached a marital settlement agreement at a mediation in April, 2001. In August 2001 successor counsel for the wife filed a motion to vacate the marital settlement agreement. She alleged duress and lack of disclosure of marital assets, among other things. For present purposes we assume, but do not decide, that the motion was legally sufficient. See Casto v. Casto, 508 So.2d 330 (Fla.1987); see also Macar v. Macar, 803 So.2d 707 (Fla.2001).

The trial court denied the motion as untimely. The court interpreted Florida Family Law Rule of Procedure 12.740(f)(1) as providing a ten-day time limit for the filing of the motion to vacate a mediated marital settlement agreement. Since the wife filed her motion four months after the signature of the mediated settlement agreement, the court denied the wife’s motion as untimely.

The court entered judgment on the basis of the marital settlement agreement, and the wife has appealed.

II.

We conclude that the trial court misapprehended this part of Rule 12.740(f). The Rule provides in part:

(f) Report on Mediation.
(1) If agreement is reached as to any matter or issue, including legal or factual issues to be determined by the court, the agreement shall be reduced to writing, signed by the parties and their counsel, if any and if present, and submitted to the court unless the parties agree otherwise. By stipulation of the parties, the agreement may be electronically or stenographically recorded and made under oath or affirmed.... If counsel for any party is not present when the agreement is reached, the mediator shall cause to be mailed a copy of the agreement to counsel within 5 days. Counsel shall have 10 days from service of a copy of the agreement to serve a written objection on the mediator, unrepresented parties, and counsel. Absent a timely written objection, the agreement is presumed to be approved by counsel and shall be filed with the court by the mediator.

Fla. Fam. L.R.P. 12.740(f)(1) (emphasis added).

This rule is addressing the rarely-seen circumstance in which counsel for one of the parties leaves the mediation before the settlement agreement is ready for signature, but the client remains at the mediation to sign the settlement agreement when put in final form. Under this rule the client can proceed to sign the settlement agreement without having it reviewed by his or her counsel. The mediator then mails a copy of the agreement to absent counsel within five days. Absent counsel then has ten days in which to object, failing which the agreement is binding.

It is our impression that the scenario just outlined rarely occurs in practice. Ordinarily the lawyers remain with their clients through and including the signing of the mediated settlement agreement. However, if counsel is called away on an emergency or must depart where, for example, the mediation has run much longer than the scheduled time, Rule 12.740(f)(1) allows the client to sign the settlement agreement subject to review by counsel later.

The former husband argues that this rule establishes a ten-day window within which anyone who was present at the mediation can move to set it aside, but that once ten days have elapsed, it cannot be set aside for any reason. As already stated, the former husband misreads the rule.

Once the mediated settlement agreement has been fully executed, the parties have entered into a binding contract like any other. The rule does not create a ten-day escape hatch during which anyone who signed the document may change his or her mind.

In the present case, the parties and counsel signed the mediated settlement agreement. They were bound to the contract at that time.

Under the case law, there is a limited set of circumstances in which a fully executed marital settlement agreement may be set aside. Casto; Macar. In this case, the wife has filed a motion based on that line of authority. As already stated, there is no ten-day time limit for fifing such a motion. It follows that the wife’s motion was timely filed. That being so, the wife was entitled to a hearing on her motion, and we remand for that purpose. We express no opinion on the merits thereof.

The former wife concedes that by making a motion to vacate the mediated marital settlement agreement, she has thereby waived the mediation privilege. See McKinlay v. McKinlay, 648 So.2d at 809-10.

We affirm the final judgment insofar as it dissolves the parties’ marriage. We reverse the remainder of the judgment and remand for further proceedings consistent herewith.

Reversed and remanded.

      . This is merely an available option under the rule. Naturally the client and counsel would be well within their rights to insist that counsel review the document before the client signs.

      . There was a similar misunderstanding of this rule in McKinlay v. McKinlay 648 So.2d 806, 808-09 (Fla. 1st DCA 1995), but in that case the misunderstanding was harmless. Since the request to set aside the mediated settlement agreement had been made within ten days, the McKinlay court considered the request to be timely and went on to address the merits of the wife’s claim.


text:
    James WATSON, Appellant, v. JOB CORP., and Res-Care, Inc., Appellees.
    No. 3D02-1897.
    District Court of Appeal of Florida, Third District.
    March 12, 2003.

      James Watson, in proper person.
    Wicker, Smith, O’Hara, McCoy, Graham & Ford, and Shelley H. Leinicke, for ap-pellees.
    Before SCHWARTZ, C.J., and SHEVIN, and RAMIREZ, JJ.
   PER CURIAM.

James Watson appeals the entry of an adverse summary judgment in which his personal injury claim was barred by workers’ compensation immunity. We affirm because Watson was a borrowed servant and his former employer is entitled to immunity from tort liability.

Nurse Finders, a temporary employment agency, placed Watson with Job Corp. to work as a nurse. Watson was later injured while on the job at Job Corp. and sued Job Corp. for negligence. The trial court granted summary judgment in Job Corp.’s favor, finding that Job Corp. was entitled to workers’ compensation immunity.

Section 440.11(2), Florida Statutes (2002), extends an employer’s immunity from tort liability to work related injuries of employees obtained through a help supply services company and also applies to companies that hire workers through temporary employment agencies. See B.E.T. Plant Servs., Inc. v. Dyer, 678 So.2d 841, 842 (Fla. 3d DCA 1996); Caramico v. Artcraft Indus., Inc., 727 So.2d 348, 349 (Fla. 5th DCA 1999). It is undisputed that Nurse Finders supplied Job Corp. with temporary help and that Watson was an employee under Job Corp.’s direction and control at the time he was injured. Watson was thus a borrowed servant of Job Corp.

Therefore, Job Corp. is entitled to the statutory employer immunity.

Affirmed.


text:
    Archie Bell McNEAL, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0096.
    District Court of Appeal of Florida, First District.
    March 13, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Banks v. State, 801 So.2d 153 (Fla. 1st DCA 2001) review granted 826 So.2d 991 (Fla.2002).

VAN NORTWICK, LEWIS AND HAWKES, JJ., concur.


text:
    David Lee HALL a/k/a David Lee Owden, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2915.
    District Court of Appeal of Florida, First District.
    March 13, 2003.
    Nancy A. Daniel, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Phillip W. Edwards, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This direct criminal appeal was brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the briefs, we agree that no reversible error occurred. We therefore affirm the appellant’s revocation of probation and imposition of the judgment and sentence. Because the record does not contain a written order of revocation of probation, we remand for the trial court to enter such an order, consistent with its oral pronouncement. See Walker v. State, 686 So.2d 758 (Fla. 1st DCA 1997). The appellant need not be present.

AFFIRMED.

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


text:
    Patrick L. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-3379.
    District Court of Appeal of Florida, First District.
    March 13, 2003.

      Patrick L. Johnson, Pro Se.
    Charlie Crist, Attorney General, and Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant challenges the summary denial of his motion for, postcon-viction relief under Florida Rule of Criminal Procedure 3.850. Among other claims, the appellant asserted that trial counsel was ineffective in failing to interview and present the testimony of two witnesses who could have buttressed his assertion of self-defense. In denying this claim the court attached a portion of the appellant’s trial testimony, but this excerpt does not negate the potential benefit of the testimony from the desired witnesses and the claim thus should not have been summarily denied on this basis. E.g. Adams v. State, 834 So.2d 302 (Fla. 1st DCA 2002). The appellant also presented a claim of ineffective assistance based on trial counsel’s failure to., move for discharge under the speedy trial rule, and this is a matter which may be entertained under rule 3.850. See Greeson v. State, 729 So.2d 397 (Fla. 1st DCA 1998); Waldburg v. State, 644 So.2d 608 (Fla. 1st DCA 1994). Although the court noted that arraignment had been repeatedly continued for the appellant to obtain counsel, this is not substantiated by any record attachment and there is no indication as to whether the circumstances would require such postponement to be necessarily charged against the appellant. The speedy trial claim thus should not have been summarily denied on this basis.

The appellant also claimed that counsel was ineffective in failing to object to prosecutorial comment which the appellant alleged was unsubstantiated by the evidence at trial. The attachments to the order denying relief do not negate this allegation, and the possibility that counsel’s forebearance might have been a matter of trial strategy cannot be explored on this record without an evidentiary hearing. E.g. Dauer v. State, 570 So.2d 314 (Fla. 2d DCA 1990). Without record attachments negating this claim, it also should not have been summarily denied.

The appealed order is reversed as to the denial of these three claims. The order is otherwise affirmed, and the ease is remanded.

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


text:
    Jerome H. JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-4577.
    District Court of Appeal of Florida, First District.
    March 13, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee,- for Appellee.
   PER CURIAM.

Appellant seeks review of a non-appeal-able non-final order. Accordingly, this appeal is dismissed for lack of jurisdiction. See Fla. R.App. P. 9.140(b)(1).

DISMISSED.

VAN NORTWICK and POLSTON, JJ., and SMITH, LARRY G., Senior Judge, concur.


text:
    Wynyard A. McDONALD, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-0161.
    District Court of Appeal of Florida, First District.
    March 13, 2003.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order to show cause, dated February 6, 2003, we dismiss for lack of jurisdiction. The appellant appeals the denial on the merits of her rule 3.800(c) motion to reduce or modify her sentence. A claim brought pursuant to rule 3.800(c) is not appealable on the merits because it is a discretionary determination made by the trial court. Jolly v. State, 803 So.2d 846, 846 (Fla. 1st DCA 2001); Daniels v. State, 568 So.2d 63(Fla. 1st DCA 1990); Shannon v. State, 765 So.2d 847, 848 (Fla. 4th DCA 2000).

DISMISSED.

ERVIN, WOLF and VAN NORTWICK, JJ., concur.


text:
    John D. TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-2664.
    District Court of Appeal of Florida, First District.
    March 13, 2003.

      Nancy Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General, and Karen M. Holland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This direct criminal appeal was brought pursuant to Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967). Having reviewed the entire record, we agree that no reversible error occurred. We affirm the appellant’s revocation of probation and imposition of judgment and sentence. However, because the written order of revocation of probation does not conform with the trial court’s oral pronouncement, we remand for the trial court to enter such an order, consistent with its oral pronouncement. Cozart v. State, 823 So.2d 234 (Fla. 1st DCA 2002).

AFFIRMED.

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


text:
    Robert SWEDLOW, Appellant, v. Mary Ann SWEDLOW, n/k/a Mary Ann D’Aquino, Appellee.
    No. 4D02-1369.
    District Court of Appeal of Florida, Fourth District.
    March 17, 2003.
    Susan R. Brown of Susan R. Brown, P.A., Hollywood, for appellant.
    Nancy Little Hoffmann of Nancy Little Hoffmann, P.A., Pompano Beach, for ap-pellee.
   PER CURIAM.

We reverse the trial court’s determination that the husband’s disability policy was a marital asset subject to equitable distribution. See Hoffner v. Hoffner, 577 So.2d 703, 704 (Fla. 4th DCA 1991); Hanks v. Hanks, 553 So.2d 340, 343 (Fla. 4th DCA 1989); Bloch v. Bloch, 688 So.2d 945, 947 (Fla. 3d DCA 1997). We affirm on all other issues. On remand, the sole issue for the circuit court is to increase the award of permanent alimony to the wife in light of the reclassification of the husband’s disability policy.

KLEIN, GROSS and TAYLOR, JJ., concur.


text:
    George CROMARTIE, Appellant, v. CITY OF ST. PETERSBURG/City of St., etc., Appellee.
    No. 1D02-0823.
    District Court of Appeal of Florida, First District.
    March 18, 2003.

      Stephen Grissett, Esq., St. Petersburg; Bill McCabe, Esq., Longwood, for Appellant.
    Nancy L. Cavey, Esq., St. Petersburg, for Appellee.
   PER CURIAM.

George Cromartie (“claimant”) seeks review of an order in which the Judge of Compensation Claims (“JCC”) denied his claim for psychiatric care and treatment. On appeal, claimant argues that the JCC erred in concluding that clear and convincing evidence existed to refute the expert medical advisor’s opinion that claimant sustained a psychiatric injury as a result of his compensable work-related injury. Within this contention, claimant also argues that the JCC applied an improper legal standard in determining that claimant did not suffer from a compensable psychiatric injury. Because it is unclear as to whether the JCC applied the correct standard of causation in denying claimant’s claim, we reverse the final order and remand with directions. As we reverse the final order due to its lack of clarity, we decline to address the merits of claimant’s main argument on appeal.

On June 26, 1998, claimant sustained a physical injury while in the course and scope of his employment as a maintenance worker for the appellee employer, the City of St. Petersburg. Following this injury, claimant allegedly began suffering from depression. Due to the conflicting opinions of claimant’s treating physicians, the JCC appointed an expert medical advisor to assess claimant’s mental health. The expert medical advisor, Dr. Warren, opined that claimant suffered from dementia secondary to a closed head injury as a result of his work-related injury. However, the JCC, in rejecting Dr. Warren’s testimony, determined that claimant’s medical records and the other physicians’ reports constituted clear and convincing evidence sufficient to refute Dr. Warren’s opinion.

In paragraph forty-one of the JCC’s order, the JCC set forth that it is well settled that recovery for a mental or emotional injury is only available where the alleged mental injury is the “direct and immediate result” of a physical injury. The JCC also set forth in paragraph forty-one that section 440.09(1), Florida Statutes, provides that “mental and nervous injuries occurring as a manifestation of an injury compensable under this section shall be demonstrated by clear and convincing evidence.” In paragraph forty-two, the JCC then set forth that one of the first interpretations of the major contributing cause doctrine and its applicability to a psychiatric case can be found in this Court’s prior opinion in Claims Management, Inc. v. Drewno, 727 So.2d 395 (Fla. 1st DCA 1999) (on reh’g). According to the JCC, this Court, in analyzing the standard of proof in cases where the claimant is seeking benefits based on psychiatric treatment allegedly as a result of the com-pensable injury, held in Drewno that the claimant must prove the physical injury was the major contributing cause of the subsequent psychological injury and that the causal relationship between the two injuries must be proven by clear and convincing evidence.

Subsequently, in paragraph fifty-two, .the JCC again set forth that a mental injury must be the direct and immediate result of a physical injury. In paragraph sixty, however, the JCC made a very general statement that “[tjhere must be a causal relationship between a physical injury and the resulting need for psychiatric treatment.” Finally, in paragraph sixty-seven, the JCC set forth that “the claimant’s expert’s opinion regarding causation are [sic] not supported by the medical evidence.... ” In denying claimant’s request for psychiatric care and treatment, the JCC also denied his claim for attorney’s fees and costs. This appeal followed.

Because the JCC’s application of an incorrect legal standard would preclude us from reaching the merits of her denial of the claim for psychiatric care, we address this issue first. Section 440.09, Florida Statutes (1997), provides, in pertinent part, as follows:

(1) The employer shall pay compensation or furnish benefits required by this chapter if the employee suffers an accidental injury or death arising out of work performed in the course and the scope of employment. The injury, its occupational cause, and any resulting manifestations or disability shall be established to a reasonable degree of medical certainty and by objective medical findings. Mental or nervous injuries occurring as a manifestation of an injury compensable under this section shall be demonstrated by clear and convincing evidence.
(a) This chapter does not require any compensation or benefits for any subsequent injury the employee suffers as a result of an original injury arising out of and in the course of employment unless the original injury is the major contributing cause of the subsequent injury,

(emphasis added). The above statute, which became effective on January 1,1994, was part of the extensive revisions that the Legislature made to the Workers’ Compensation Law. See Drewno, 727 So.2d at 397. Prior to such revisions, the Legislature made no reference to “clear and convincing evidence” or “major contributing cause” with regard to workers’ compensation coverage. See e.g., § 440.09, Fla. Stat. (1993).

In Drewno, we rejected the E/C’s argument that pursuant to section 440.09(1), an industrial accident must constitute the major contributing cause of any alleged psychiatric injuries. 727 So.2d at 398. We concluded that “it is sufficient if resulting manifestations, diseases and conditions are shown to be directly and proximately linked to the initial injury.” Id. (emphasis added). We further determined that the test for proximate medical causation requires a claimant to demonstrate his or her resultant mental conditions within a reasonable degree of medical certainty and by objective medical findings, with the proof being established by clear and convincing evidence. Id. at 399. We then reiterated that such test is for proximate medical causation, not major contributing cause, as mental conditions are manifestations of the original physical injury. Id.; see also Selecta Farms v. Martinez, 768 So.2d 1272, 1273 (Fla. 1st DCA 2000) (reversing an award of a psychiatric evaluation and possible treatment as nothing in the record linked any need the claimant may have had for this benefit to the claimant’s compensable injury).

From a review of the JCC’s order in this case, it is unclear to us as to what standard of causation she applied to claimant in denying his claim for psychiatric care and treatment. While she initially set forth that a psychiatric injury must be the direct and immediate result of a physical injury, she then addressed the major contributing cause doctrine, inaccurately stating our conclusion in Drevmo with regard to such. Contrary to the JCC’s finding, we did not hold that a claimant must demonstrate that his or her initial physical injury was the major contributing cause of his or her mental injury. Rather, we held that a claimant need only prove that his or her mental injury or manifestation is directly and proximately linked to his or her initial physical injury. See Drewno, 727 So.2d at 398. Moreover, the JCC subsequently set forth that a “causal connection” must exist between a claimant’s injuries, without expressly addressing what type of causal connection she applied in denying claimant’s claim. Nor did the JCC elaborate on the causation issue when she concluded that the opinions of claimant’s experts regarding causation were not supported by the medical evidence.

The failure to apply the correct legal standard or to provide this Court with a sufficient basis to determine that the appropriate legal principles have been followed is grounds for reversal. See Axilrod v. State, Dep’t of Children and Family Servs., 799 So.2d 1103, 1108 (Fla. 4th DCA 2001); see also Wilson v. Wilson, 827 So.2d 401, 403 (Fla. 2d DCA 2002) (reversing and remanding the trial court’s order as it was unclear to the court whether the trial court applied the correct legal standard); Clay County Sch. Bd. v. Robison, 725 So.2d 425, 425 (Fla. 1st DCA 1999) (reversing and remanding the JCC’s order because the JCC failed to apply the statutory standards governing notice of injury and causation); Walker v. Friendly Vill. of Brevard, 559 So.2d 258, 262 (Fla. 1st DCA 1990) (holding that because the trial court applied an incorrect legal standard, it should be given the opportunity to review the evidence again in light of the correct legal standard). Accordingly, because it is unclear to us as to whether the JCC applied the correct standard of causation, we reverse the final order and remand with directions that the JCC apply the correct standard of causation as set forth in Drewno, 727 So.2d at 398, to claimant’s claim for psychiatric care and treatment.

REVERSED and REMANDED with directions.

BARFIELD, BROWNING and LEWIS, JJ., concur.


text:
    Richard Scott DOSS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D02-4930.
    District Court of Appeal of Florida, First District.
    March 18, 2003.

      Richard Scott Doss, pro se, petitioner.
    Charlie Crist, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petitioner is granted a belated appeal from the order of the Circuit Court for Bay County which denied a motion for DNA testing in case number 86-1417. The order failed to inform the movant of his right to take an appeal of the order within 30 days as required by Florida Rule of Criminal Procedure 3.853(f). See State ex rel. Shevin v. District Court of Appeal, Third District, 316 So.2d 50 (Fla.1975). Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the lower tribunal to be treated as a notice of appeal. Fla. RApp. P. 9.141(c)(5)(D).

ERVIN, WOLF and VAN NORTWICK, JJ., concur.


text:
    George KUBSKI, M.D., Petitioner, v. STATE of Florida, Department of Health, Respondent.
    No. 1D02-3462.
    District Court of Appeal of Florida, First District.
    March 18, 2003.
    Lawrence E. Brownstein, West Palm Beach, for Petitioner.
    Pamela H. Page, Department of Health, Prosecutorial Services Unit, Tallahassee, for Respondent.
   PER CURIAM.

Dr. George Kubski petitions this court for review of nonfinal agency action, contending that the Department of Health exceeded that which was necessary to protect the public interest by suspending his license to practice psychiatry by emergency order. We agree because we find this case to be indistinguishable from Cunningham v. Agency for Health Care Administration, 677 So.2d 61 (Fla. 1st DCA 1996). Under the standard set forth in Cunningham, we approve the Department’s order insofar as it prevents Dr. Kubski from prescribing narcotics until his disciplinary proceeding has been completed. However, we quash the order to the extent it exceeds this condition and remand for the Department to enter a more narrowly tailored emergency order. The Department is not, of course, precluded from revoking or suspending Dr. Kubski’s license to practice psychiatry in the event it finds sufficient supporting facts.

Accordingly, the petition for review is granted, the order on appeal is quashed in part, and this matter is remanded for further proceedings consistent with this opinion.

BARFIELD, POLSTON, and HAWKES, JJ., concur.


text:
    STATE of Florida, Appellant, v. W.D., A Child, Appellee.
    No. 1D02-3456.
    District Court of Appeal of Florida, First District.
    March 18, 2003.
    Charlie Crist, Attorney General, Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, David A. Davis, Assistant Public Defender, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See I.T. v. State, 694 So.2d 720 (Fla.1997) (a juvenile judge may rely on a statutory provision aimed at adult criminal cases if there is no counterpart in the laws relating to juveniles and nothing to suggest that the legislature intended to treat juveniles differently from adults).

WEBSTER, PADOVANO and HAWKES, JJ., concur.


text:
    Gary W. TENNYSON, Appellant, v. Marylee TENNYSON, Appellee.
    No. 1D02-3034.
    District Court of Appeal of Florida, First District.
    March 18, 2003.

      Appellant, Pro se.
    Susan V. Carroll, Esq., Panama City, for Appellee.
   PER CURIAM.

Appellant, the former husband, appeals an order holding him in indirect criminal contempt for failure to comply with an order of the trial court directing him to make certain alimony payments to his former wife. Appellant argues the trial judge erred in conducting the show cause hearing in his absence, contrary to the requirements of Fla. R.Crim. P. 3.840. We agree. Because criminal contempt proceedings are punitive in nature, alleged criminal contemnors are entitled to the same constitutional due process protections afforded other. criminal defendants. Gidden v. State, 613 So.2d 457 (Fla.1993). Accordingly, the court may not, ordinarily, enter an adjudication in absentia. Bradley v. State, 420 So.2d 417 (Fla. 1st DCA 1982). Though Fla. R.Crim. P. 3.180 provides for exceptions to this general rule, none are applicable here.

Here, it appears the trial judge’s purpose was not to punish appellant, but instead, to obtain appellant’s compliance with appellant’s support obligations to his former wife. The purge provision in the order allowed appellant to avoid incarceration by paying the purge amount, allowing appellant to carry the key to his cell door in his pocket. Pugliese v. Pugliese, 347 So.2d 422, 424 (Fla.1977). Accordingly, the trial judge could have proceeded in accordance with Fla. Fam. L.R.P. 12.615 for civil contempt.

Therefore, we REVERSE and REMAND to the trial court to re-conduct the contempt proceedings pursuant to either Fla. R.Crim. P. 3.840 or Fla. Fam. L.R.P. 12.615.

DAVIS, BROWNING and POLSTON, JJ., concur.


text:
    Willie Lee CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 1D02-1212.
    District Court of Appeal of Florida, First District.
    March 18, 2003.
    Nancy A. Daniels, Public Defender and Fred Parker Bingham, II, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General and Karen M. Holland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Reed v. State, 837 So.2d 366 (Fla.2002); State v. Delva, 575 So.2d 643 (Fla.1991); compare Johnson v. State, 833 So.2d 252 (Fla. 4th DCA 2002)(holding it was fundamental error to fail to give jury instruction providing that knowledge that substance is illegal is element of crime of drug possession where knowledge was an issue in the trial).

VAN NORTWICK AND POLSTON, JJ., and LARRY G. SMITH, Senior Judge, concur.


text:
    Delane M. FUTCH and Milton M. Futch, her husband, Appellants, v. DAVE VALENTINE INSURANCE, INC., a Florida corporation, Appellee.
    No. 1D02-1397.
    District Court of Appeal of Florida, First District.
    March 18, 2003.
    Steven R. Browning of Spohrer, Wilner, Maxwell & Matthews, P.A., Jacksonville, Attorneys for Appellant.
    Stephen M. Masterson of Bush, Brooks & Augspurger, P.A., Tallahassee, Attorneys for Amicus Curiae Florida Defense Lawyers Association.
    William M. Corley, Sonya H. Hoener and Susan K. Curtis of Marks Gray, P.A., Jacksonville, Attorneys for Appellee.
   PER CURIAM.

AFFIRMED. See Hilyer Sod, Inc. v. Willis Shaw Express, Inc., 817 So.2d 1050 (Fla. 1st DCA 2002); Allstate Ins. Co. v. Materiale, 787 So.2d 173 (Fla. 2d DCA 2001).

BOOTH, WOLF and KAHN, JJ., concur.


author: PADOVANO, J.

text:
    Christy Jo FLANAGAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D01-3401.
    District Court of Appeal of Florida, First District.
    March 18, 2003.

      Spiro T. Kypreos, Pensacola, for Appellant.
    Charlie Crist, Attorney General and Janelle C. Gillaspie, Assistant Attorney General, Office of the Attorney General, Tallahassee, for Appellee.
   PADOVANO, J.

This is an appeal from a final order adjudicating the appellant, Christy Jo Flanagan, guilty of indirect criminal contempt and sentencing her to five and one-half months in the county jail. We conclude that the order to show cause did not meet the minimum requirements of rule 3.840 of the Florida Rules of Criminal Procedure and, therefore, we reverse.

The contempt charges arose from the appellant’s conduct as a defense witness in the first-degree murder trial of Bruce Sherwood. It appears from the record that the appellant made a gesture in the courtroom in which she expressed her support for the defendant, and that she subsequently made an extrajudicial comment in which she expressed her anger toward a prosecution witness. The appellant contends that the evidence is insufficient to support a finding that she violated a prior court order and that the judgment must be reversed, in any event, on the ground that the order to show cause did not set forth any facts alleging the conduct charged.

It is doubtful that the appellant’s conduct could be characterized as a direct violation of the trial court’s order directing the witnesses to refrain from discussing their testimony, but we need not decide that issue, because the appellant’s procedural argument is dispositive. The rule governing indirect criminal contempt provides that an order to show cause why the defendant should not be held in contempt must state “the essential facts constituting the criminal contempt charged.” Fla. R.Crim. P. 3.840(a); State v. Wood, 700 So.2d 401, 403 (Fla. 1st DCA 1997); Hill v. State, 643 So.2d 1178 (Fla. 2d DCA 1994). If the order fails to do so, the requirements of the rule can still be met if a sworn affidavit containing the essential facts is attached to the order to show cause. See Wood, 700 So.2d at 403; Giles v. Renew, 639 So.2d 701, 702 (Fla. 2d DCA 1994). The order to show cause in the present case did not state the essential facts constituting the charge of indirect criminal contempt, nor was it accompanied by a sworn affidavit alleging the essential facts.

Reversed.

BARFIELD and KAHN, JJ., concur.


text:
    Leon E. BRANNON, d/b/a, Leon’s C & D Disposal Facility, Petitioner, v. PANHANDLE ENGINEERING SERVICES, INC., and James H. Slonina, P.E., Respondents.
    No. 1D03-0377.
    District Court of Appeal of Florida, First District.
    March 18, 2003.

      John J. Uskert of the Law Offices of John J. Uskert, P.A., Panama City; Jerry W. Gerde of Johnston, Harris Gerde & Jelks, P.A., Panama City, for petitioner.
    No appearance for respondents.
   PER CURIAM.

Through this petition for writ of certio-rari, petitioner seeks review of interlocutory orders which found that the defendants’ potential liabilities were limited to certain dollar amounts. However, petitioner has failed to demonstrate any injury which cannot be remedied on appeal from a final judgment. See Lynch v. City of Deerfield Beach, 369 So.2d 1042 (Fla. 4th DCA 1979). Accordingly, the petition for writ of certiorari is denied.

PETITION DENIED.

ERVIN, WOLF and VAN NORTWICK, JJ., concur.


text:
    Teresa L. DEMAR, Appellant, v. STATE of Florida, Appellee.
    No. 1D00-4751.
    District Court of Appeal of Florida, First District.
    March 18, 2003.

      Nancy A. Daniels, Public Defender and Edgar Lee Elzie, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General and Karen M. Holland, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Teresa L. Demar challenges her convictions and sentences for child abuse and aggravated child neglect. We affirm the convictions without comment, but vacate the sentence for Count II, child abuse, and remand for resentencing.

Charged with aggravated child abuse in Count II of the Information, the jury found appellant guilty of the lesser offense, child abuse, a third degree felony. § 827.03(1), Fla. Stat. (1999). The maximum sentence for a third degree felony is five years. § 775.082, Fla. Stat. (1999). The guideline scoresheet prepared for appellant established a permissible range of 64.5 months (5.37 years) to 20 years. The trial court sentenced appellant to llk years imprisonment followed by 5 years of probation. Appellant argues that because her sentence exceeds the statutory maximum, it is illegal.

Under the Criminal Punishment Code, which governs this case, a sentence may exceed the statutory maximum when that sentence falls within the sentencing guidelines range. See Maddox v. State, 760 So.2d 89, 101 n. 9 (Fla.2000). However, as recently clarified by the supreme court, when the statutory maximum is exceeded “by the lowest permissible sentence under the [guidelines prepared pursuant to the] code, the lowest permissible sentence under the code becomes the maximum sentence which the trial judge can impose.” Butler v. State, 838 So.2d 554 (Fla.2003) (emphasis added). Thus, the maximum sentence the trial court could have imposed in the instant case is 64.5 months. Accordingly, we vacate the sentence as to Count II and remand for resentencing.

Finally, we strike several conditions of probation which, as the state correctly concedes, are erroneous. First, we strike from the requirements of probation the provision that appellant obtain a job within 30 days of release from prison. See Kirkland v. State, 666 So.2d 974, 976 (Fla. 1st DCA 1996). Second, we strike the requirement that appellant pay $1,952.72, the cost of investigation; appellant was not given an opportunity to be heard on the issue nor was her ability to pay considered, contrary to section 938.27(5), Florida Statutes. See Cathcart v. State, 643 So.2d 702 (Fla. 4th DCA 1994). Third, we strike that portion of the probation order directing appellant’s probation officer to determine appellant’s “ability to pay monetary obligations.” See McClough v. State, 669 So.2d 1099, 1100 (Fla. 5th DCA 1996).

Accordingly, appellant’s convictions are affirmed; her sentence as to count II (child abuse) is vacated, and several conditions of probation, as noted above, are struck; the cause is remanded for resen-tencing.

AFFIRMED in part, REVERSED in part and REMANDED.

ERVIN, WOLF and VAN NORTWICK, JJ., concur.


text:
    Thomas B. JONES, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-1325.
    District Court of Appeal of Florida, Fifth District.
    March 18, 2003.
    James B. Gibson, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Boroughs v. State, 684 So.2d 274 (Fla. 5th DCA 1996).

SHARP, W., SAWAYA and ORFINGER, JJ., concur.


text:
    Justin PITTMAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2243.
    District Court of Appeal of Florida, Fifth District.
    March 18, 2003.
    James B. Gibson, Public Defender, and Allison Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Goley v. State, 584 So.2d 139 (Fla. 5th DCA 1991).

THOMPSON, C.J., SAWAYA, and MONACO, JJ., concur.


text:
    G.A.A., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 5D02-2650.
    District Court of Appeal of Florida, Fifth District.
    March 18, 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 Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. State v. Causey, 503 So.2d 321 (Fla.1987).

SHARP, W., PLEUS and ORFINGER, JJ., concur.


author: SALCINES, Judge.

text:
    Darryl Cornelius WILBURN, Appellant, v. STATE of Florida, Appellee.
    No. 2D01-3712.
    District Court of Appeal of Florida, Second District.
    March 19, 2003.
    James Marion Moorman, Public Defender, and Terri L. Backhus, Special Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   SALCINES, Judge.

Darryl Cornelius Wilburn appeals his convictions for aggravated assault with a firearm and shooting into an occupied vehicle. We affirm his conviction for shooting into an occupied vehicle without discussion. We reverse his conviction for aggravated assault with a firearm.

At trial, the jury was instructed on aggravated assault with a firearm. In this appeal, Wilburn correctly argues that the trial court erred by instructing the jury on aggravated assault with a firearm because the elements of the offense were not set forth in the information.

The instruction for aggravated assault with a firearm was presented to the jury as a lesser included offense of aggravated battery with a firearm. Aggravated assault is not a necessarily lesser included offense of aggravated battery. Stokes v. State, 773 So.2d 1239 (Fla. 4th DCA 2000). “ ‘[I]t can be considered an included offense only, if at all, where the information charges the elements of both and the facts necessary to support both.’ ” Id. at 1240 (quoting Salas v. State, 591 So.2d 257, 258 (Fla. 4th DCA 1991)).

The information filed against Wilburn did not set forth all the elements of aggravated assault with a firearm. See §§ 784.011-.021, Fla. Stat. (1999). Specifically, the information did not allege that Wilburn created the requisite fear in the mind of his victim. See § 784.011(1). Thus, the instruction on aggravated assault with a firearm was unwarranted because it exceeded the allegations of the charging document.

The State argues that this case should nonetheless be affirmed because defense counsel either did not lodge the appropriate objection at trial or otherwise waived the defect. The State also argues that the error was harmless because the information placed Wilburn on notice of the charge. We disagree.

The State’s preservation argument is not entirely unfounded. Although defense counsel did object to the form of the instruction, he did not object to the giving of the instruction itself. Additionally, defense counsel never raised the issue of the deficiency in the charging document. Nonetheless, this court has granted appellate relief in similar cases, despite the lack of an objection to the erroneously given jury instruction, reasoning that a defendant may raise such an error at any time. See Mateo v. State, 757 So.2d 1229 (Fla. 2d DCA 2000) (reversing an aggravated battery conviction where the defendant was charged with sexual battery); but see Nesbitt v. State, 819 So.2d 993 (Fla. 5th DCA 2002) (certifying conflict).

Further, Wilburn’s challenge to the instruction was not waived. See Ray v. State, 403 So.2d 956 (Fla.1981), called into doubt on other grounds, Greene v. State, 714 So.2d 554 (Fla. 2d DCA 1998). At trial, defense counsel did not make an argument relating to the aggravated assault instruction either in closing or in rebuttal. Likewise, defense counsel did not attempt to mislead the court or to take advantage of the erroneous instruction.

Finally, even if a harmless error analysis could be applied as urged by the State, it would be unavailing in this case. Although the information used the word “assault,” the mere use of that word, without any other reference to the offense of aggravated assault with a firearm or a recitation of the elements of that offense, was not sufficient to place Wilburn on notice of the charge.

Accordingly, we reverse Wilburn’s conviction for aggravated assault with a firearm. If not barred by the statute of limitations, the State may file another information and proceed against Wilburn for aggravated assault with a firearm. See Mauldin v. State, 696 So.2d 801, 802 (Fla. 2d DCA 1997).

Affirmed in part and reversed in part.

CASANUEVA, J., and THREADGILL, EDWARD F., Senior Judge, concur.

      . Wilburn does not challenge his conviction for possession of a firearm by a convicted felon.


text:
    Michael O. COOK, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-3028.
    District Court of Appeal of Florida, Third District.
    March 19, 2003.
    Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General, and Michael J. Neimand, Assistant Attorney General, for appellee.
    Before JORGENSON and SHEVIN, JJ., and NESBITT, Senior Judge.
   PER CURIAM.

Affirmed. See State v. Franklin, 836 So.2d 1112 (Fla. 3d DCA 2003).


text:
    Alex WILLIAMS, Appellant, v. MAXIM HEALTHCARE SERVICES, INC., Appellee.
    No. 3D01-1278.
    District Court of Appeal of Florida, Third District.
    March 19, 2003.
    William R. Jones, III; Bambi G. Blum, for appellant.
    Kubicki Draper and Caryn L. Bellus, for appellee.
    Before SCHWARTZ, C.J., GERSTEN and SHEVIN, JJ.
   PER CURIAM.

Affirmed. J.T.A. Factors, Inc. v. Philcon Servs., Inc., 820 So.2d 367 (Fla. 3d DCA 2002); Southwin, Inc. v. Verde, 806 So.2d 586 (Fla. 3d DCA 2002).


text:
    NATURAL SOLUTIONS CORPORATION, Louis A. Isakoff and Jimmy W. Foshee, Petitioners, v. TERRABIND INTERNATIONAL, INC., Richard Weinert, Richard Jurgenson and Joseph Kroll, Respondents.
    No. 4D02-3896.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2003.
    Mary O’Donnell of Ward, Damon & Pos-ner, P.A., West Palm Beach, for petitioners.
    Justin Kam of Feingold & Kam, Palm Beach Gardens, for respondents.
   PER CURIAM.

Petitioners, Natural Solutions Corporation (NSC), Louis A. Isakoff, and Jimmy W. Foshee, seek certiorari review of an order compelling production of documents contained in NSC’s former counsel’s file. We grant the petition and quash the order only as to petitioner NSC.

Respondents, Terrabind International, Inc., Richard Weinert, Richard Jurgenson, and Joseph Kroll, sued petitioners for abuse of process and malicious prosecution after NSC voluntarily dismissed its earlier lawsuit against respondents. Respondents alleged that the underlying action by NSC lacked merit. In that lawsuit, NSC was initially represented by James McCann of Akerman, Senterfitt & Eidson, P.A. As an affirmative defense to respondents’ claims for abuse of process and malicious prosecution, petitioners asserted that NSC’s lawsuit was initiated and prosecuted upon the advice of its then-counsel, McCann. Thereafter, respondents deposed McCann and subpoenaed documents from his file. Petitioners asserted privilege objections to the deposition questions and subpoenaed documents. Following an in camera inspection, the trial court found that the documents were protected by the attorney-client and work product privileges; however, it ruled that the privileges were waived by petitioners’ assertion of an “advice of counsel” defense to the lawsuit brought against them for malicious prosecution and abuse of process. As support, the trial court relied on First Southern Baptist Church of Mandarin, Florida, Inc. v. First National Bank of Amarillo, 610 So.2d 452 (Fla. 1st DCA 1992), and Savino v. Luciano, 92 So.2d 817 (Fla.1957).

On June 3, 2002, approximately three months before the court ordered disclosure of the documents, NSC filed a bankruptcy petition in Reno, Nevada. On June 6, 2002, NCS filed a Suggestion of Bankruptcy with the trial court. When respondents sought disclosure of the McCann file and moved for an in camera inspection, petitioners objected, arguing that the trial court lacked authority to continue any judicial proceedings, or otherwise take any action against NSC, because of NSC’s pending bankruptcy and the automatic stay imposed by 11 U.S.C. § 362.

We agree with petitioners that the trial court departed from the essential requirements of the law in compelling petitioner NSC to produce the documents in question because all proceedings against NSC were automatically stayed following the filing of its bankruptcy petition and no relief from the automatic stay had been granted. See Personalized Air Conditioning, Inc. v. C.M. Sys. of Pinellas County, Inc., 522 So.2d 465, 466 (Fla. 4th DCA 1988). The automatic stay, however, does not apply to petitioners Foshee and Isa-koff, who have not filed for bankruptcy.

Petitioners also argue that the petition should be granted as to petitioners Isakoff and Foshee because they do not possess any documents to produce pursuant to the court’s order. They assert that NSC was the only plaintiff in the prior action against respondents and thus the only party that generated and received attorney-client privileged documents in the underlying action. However, the record shows that Foshee and Isakoff filed a privilege log indicating that they were individually in possession of the requested documents and a Notice of Compliance stating that they had individually produced these documents in response to the trial court’s order.

We conclude that the trial court departed from the essential requirements of the law only in compelling petitioner NSC to produce the McCann file. Therefore, we grant the petition and quash the order for production only as it relates to petitioner NSC.

GRANTED in part and DENIED in part.

FARMER, STEVENSON and TAYLOR, JJ., concur.

      . McCann later withdrew from representing NSC and was succeeded by attorneys James Stroup and Farris Martin.

      . We do not address petitioners' argument that only the bankruptcy trustee could waive NSC's attorney-client privilege as this issue was not raised and presented to the trial judge. See, e.g., Leonhardt v. Masters, 679 So.2d 73, 74 (Fla. 4th DCA 1996); Sparta State Bank v. Pape, 477 So.2d 3, 4 (Fla. 5th DCA 1985).


author: MAASS, ELIZABETH T., Associate Judge.

text:
    CITY OF COCONUT CREEK, a Florida municipal corporation, Appellant, v. CITY OF DEERFIELD BEACH, a Florida municipal corporation, and Deerfield Beach Energy Center, LLC, Appellees.
    No. 4D02-1413.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2003.

      Nancy E. Stroud and Mark A. Rothen-berg of Weiss Serota Helfman Pastoriza & Guedes, P.A., Fort Lauderdale, and Paul Stuart, City Attorney, and Nancy A. Cousins, Assistant City Attorney, Coconut Creek, for appellant.
    Andrew S. Maurodis, City Attorney, Deerfield Beach, for appellee City of Deer-field Beach.
    Elliot H. Scherker of Greenberg Trau-rig, P.A., Miami, and Jeffrey Gilbert of Greenberg Traurig, P.A., Fort Lauderdale, for appellee Deerfield Energy Center, LLC.
   MAASS, ELIZABETH T., Associate Judge.

Appellant, City of Coconut Creek (“Coconut Creek”), appeals an order dismissing with prejudice its amended complaint challenging the consistency of a development order with Broward County’s Comprehensive Plan and alleging substantive and procedural due process violations in the development order approval process. We conclude that appellant failed to satisfy a statutory condition precedent to suit within the time required, and must assert its substantive and procedural due process claims through certiorari. We affirm the dismissals, but reverse solely for the dismissals as to counts II and III to be redesignated as being without prejudice.

According to Coconut Creek’s amended complaint, it owns land adjacent to property owned by appellee Deerfield Beach Energy Center, L.L.C. (“Energy Center”), in Deerfield Beach, Florida. Energy Center’s land was annexed by Deerfield Beach in 1990 under an act that subjected it to Broward County’s Comprehensive Plan and Code of Ordinances until December 1, 2002. Coconut Creek alleges that neither Broward County’s Comprehensive Plan nor its zoning code permits power plants on Energy Center’s property and that on June 18, 2001, Deerfield Beach’s Development Review Committee, nonetheless, granted site plan approval for Energy Center to build a power plant.

Count I of Coconut Creek’s amended complaint sought to enjoin issuance of the site plan approval, under section 163.3215, Florida Statutes (2001). Counts II and III sought to enjoin the approval’s enforcement based on alleged substantive and procedural due process violations in the approval process.

For the purposes of this proceeding, the parties agree that the site plan approval is a “development order” as defined by section 163.3164(7), Florida Statutes (2001); that the development order is required to be consistent with the comprehensive plan under section 163.3194(l)(a), Florida Statutes (2001); and that Coconut Creek is an “aggrieved or adversely affected party” entitled to bring suit to challenge the consistency of the site plan approval with the comprehensive plan, under section 163.3215(1). Consequently, Coconut Creek’s contention that the site plan approval is inconsistent with the comprehensive plan is controlled by section 163.3215. See § 163.3215(3)(b) (“Suit under this section shall be the sole action available to challenge the consistency of a development order with a comprehensive plan adopted under this part”).

Section 163.3215(4) provides that:

As a condition precedent to the institution of an action pursuant to this section, the complaining party shall first file a verified complaint with the local government whose actions are complained of setting forth the facts upon which the complaint is based and the relief sought by the complaining party. The verified complaint shall be filed no later than 30 days after the alleged inconsistent action has been taken. The local government receiving the complaint shall respond within 30 days after receipt of the complaint. Thereafter, the complaining party may institute the action authorized in this section. However, the action shall be instituted no later than 30 days after the expiration of the 30-day period which the local government has to take appropriate action. Failure to comply with this subsection shall not bar an action for a temporary restraining order to prevent immediate and irreparable harm from the actions complained of.

Site plan approval was given on June 18, 2001. The original complaint was filed in circuit court on July 13, 2001. Counsel stipulated process was served on the City of Deerfield Beach the same day. Deer-field Beach served its motion to dismiss on August 2, 2001 alleging, among other grounds, Coconut Creek’s failure to comply with the statutory presuit notice requirement. After a September 13, 2001, hearing, on September 19, 2001, the trial judge entered an order dismissing the complaint. On September 28, 2001, Coconut Creek filed the amended complaint under review. Though Coconut Creek alleges it complied with all conditions precedent under section 163.3215, it acknowledges that it never filed a separate verified complaint with Deerfield Beach. The trial court dismissed the amended complaint with prejudice following a February 22, 2002, hearing, and this appeal followed.

Section 163.3215(4) is clear. A complaining party

shall first file a verified complaint with the local government whose actions are complained of setting forth the facts upon which the complaint is based and the relief sought by the complaining party. The verified complaint shall be filed no later than 30 days after the alleged inconsistent action has been taken.

It is undisputed that Coconut Creek never complied with this condition precedent.

Where the presuit notice requirement of section 163.3215(4) has not been met, case law is clear in this and every other district that has considered the issue that the action should be dismissed. See Jensen Beach Land Co. v. Citizens for Responsible Growth of the Treasure Coast, Inc., 608 So.2d 509, 510 (Fla. 4th DCA 1992) (“We understand Section 163.3215 ... to require that a court challenge the consistency of a zoning order with the comprehensive plan which does not merely seek a temporary restraining order to prevent immediate and irreparable harm be preceded by timely filing of a complaint with the entity that entered the order. Because this condition precedent was not met, we find that the circuit court lacked jurisdiction to hear this matter.”); Lee v. St. Johns County Bd. of County Comm’rs, 776 So.2d 1110, 1112 (Fla. 5th DCA 2001) (“Legislative intent is clear that a challenge to a development order must be brought within the narrow time limits of section 163.3215 or not at all.”); Brady v. City of Jacksonville, 764 So.2d 715, 715 (Fla. 1st DCA 2000) (“Because [appellants] failed to comply with a condition precedent under section 163.3215(4) ... before filing their verified complaint in circuit court, we affirm the circuit court’s denial of relief.”); Bal Harbour Vill. v. City of N. Miami, 678 So.2d 356, 360 (Fla. 3d DCA 1996); Bd. of Trs. of the Internal Improvement Trust Fund v. Seminole County Bd. of County Comm’rs, 623 So.2d 593, 596 (Fla. 5th DCA 1993) (complaint filed with county more than thirty days after development order rendered required dismissal).

Prior to the 1985 adoption of the Growth Management Act, the common law required that a party seeking to challenge the consistency of a development order with a comprehensive plan show that it had a legally recognized right, apart from the general public’s, which was adversely affected by the order. See Citizens Growth Mgmt. Coalition, Inc. v. City of West Palm Beach, 450 So.2d 204, 208 (Fla.1984). The Growth Management Act liberalized standing. See Pinecrest Lakes, Inc. v. Shidel, 795 So.2d 191, 200 (Fla. 4th DCA 2001), review denied, 821 So.2d 300 (Fla.2002). Edgewater Beach Owners Ass’n v. Walton County, 833 So.2d 215, 219-20 (Fla. 1st DCA 2002). Coconut Creek’s right to challenge the consistency of Energy Center’s site plan approval with Broward County’s Comprehensive Plan is a creature of statute. See Fla. Wildlife Fed’n v. State Dep’t of Envtl. Regulation, 390 So.2d 64 (Fla.1980) (broadening of standing to seek enforcement of environmental law is substantive, not procedural). As such, the statute must be strictly construed. See Hanley v. Kajak, 661 So.2d 1248, 1248-49 (Fla. 4th DCA 1995) (holding that mechanics lien law as a creature of statute to be strictly construed). It should be applied as written, and not modified to reflect what the deciding authority thinks it should say. See City of Hollywood v. Lombardi, 770 So.2d 1196, 1200 (Fla.2000). As this court has observed, “[i]n a special statutory proceeding ... the trial court does not have the same discretion to bend time requirements that might be allowed under the rules of civil procedure.” Dracon Constr., Inc. v. Facility Constr. Mgmt., Inc., 828 So.2d 1069, 1071 (Fla. 4th DCA 2002).

The requirement that the governmental entity issuing a development order alleged to be inconsistent with its comprehensive plan be placed on notice and offered an opportunity to review its action prior to being brought to court is not specious. The procedure offers the governmental entity the chance to assess its position, without the attendant financial and political consequences of litigation. It permits an early resolution of the dispute, perhaps one without judicial intervention. See Thomas v. Suwannee County, 734 So.2d 492, 498 (Fla. 1st DCA 1999). It places the government on notice of the party’s position and intent to pursue it. See Educ. Dev. Ctr., Inc. v. Palm Beach County, 751 So.2d 621, 623 (Fla. 4th DCA 1999).

Our courts have repeatedly affirmed that failure to comply with a statutory condition precedent, absent waiver or estoppel, requires dismissal. See Hosp. Corp. of Am. v. Lindberg, 571 So.2d 446, 449 (Fla.1990) (“We therefore hold that, in medical malpractice actions, if a presuit notice is served at the same time as a complaint is filed, the complaint is subject to dismissal with leave to amend.”); Levine v. Dade County Sch. Bd., 442 So.2d 210, 212-13 (Fla.1983) (holding that complaint against school board was properly dismissed with prejudice where plaintiff failed to provide written notice to Department of Insurance required by section 768.28(6), and time for compliance expired); Mancini v. Personalized Air Conditioning & Heating, Inc., 702 So.2d 1376, 1377 (Fla. 4th DCA 1997) (finding that failure to provide notice under section 770.01 prior to commencing libel suit required dismissal). If there remains sufficient time to comply with the statutory precondition, the action should be dismissed with leave to amend. If the time to comply with the precondition has expired, the action should be dismissed with prejudice.

Coconut Creek argues that its failure should be excused under the holding of Thomas. There, the Suwannee County Zoning Board of Adjustments granted a special exception allowing construction of a migrant labor camp in an area zoned for agricultural use. Neighbors sued the county, contending the use was inconsistent with the comprehensive plan. The neighbors filed the verified complaint -with the county the same day they instituted suit. In reversing the trial court’s dismissal of the action with prejudice, the first district found that the proper remedy for the premature filing of the complaint was to abate the action. See 734 So.2d at 498. Further, since the county’s thirty-day time to respond to the verified complaint had expired prior to hearing on the motion, the motion should have been denied.

Thomas is inapplicable. It dealt with the proper remedy where a legal action is prematurely taken, though the condition precedent has been met, and applied the general principle that if the mere passage of time will cure a defect, the action should be abated, not dismissed. See Williams v. State, 324 So.2d 74, 79 (Fla.1975) (holding premature notice of appeal goes into limbo until order rendered, then matures); Pura v. State, 789 So.2d 436, 438-39 (Fla. 5th DCA 2001) (finding premature demand for discovery in criminal action revived on filing of information); Hattaway v. McMillian, 903 F.2d 1440 (11th Cir.1990) (affirming trial court’s denial of defendant’s motion for judgment notwithstanding the verdict where section 768.28(6) notice filed day before suit filed); Fitzgerald v. McDaniel, 833 F.2d 1516, 1519-20 (11th Cir.1987) (affirming trial court’s denial of motion to dismiss based on filing of claim against governmental entity prior to expiration of six months from date of statutory notice or denial of claim). See generally Grip Dev., Inc. v. Coldwell Banker Residential Real Estate, Inc., 788 So.2d 262, 270-71 n. 8 (Fla. 4th DCA 2000) (Farmer, J., dissenting) (“Just as one recognizes a difference in consequences from being in line beforehand and getting there after the train has already left the station, so the law applies different consequences to filing or doing an act prematurely and filing or doing an act too late.”).

No complaint as contemplated by the statute was ever filed with Deerfield Beach. Service of process does not satisfy the statutory requirement. Campagnulo, 588 So.2d at 983 (“It is evident that the legislature intended to distinguish the furnishing of a prefiling notice from the filing of a complaint. To approve the district court’s decision would require us to rewrite that statute and effectively eliminate the notice requirement as a condition precedent to maintaining this type of action.”); Malunney v. Pearlstein, 539 So.2d 493, 495-96 (Fla. 2d DCA 1989) (filing of complaint does not satisfy statutory pre-suit notice). Deerfield Beach promptly served its motion to dismiss, raising the defect. While compliance with a statutory precondition may be excused by waiver or estop-pel, neither is present here. See Ingersoll v. Hoffman, 589 So.2d 223, 224 (Fla.1991); Menendez v. N. Broward Hosp. Dist., 537 So.2d 89, 91 (Fla.1988); City of Pembroke Pines v. Atlas, 474 So.2d 237, 238 (Fla. 4th DCA 1985); Prestige Dev. Group, Inc. v. Russell, 612 So.2d 691, 692 (Fla. 1st DCA 1993).

In summary, Coconut Creek’s consistency challenge fails because it exists solely as a creature of statute; Coconut Creek never complied with a statutory condition precedent; the time for complying with the condition has expired; and Coconut Creek’s failure to comply was not based on any action or inaction by Deerfield Beach, which timely raised the defect.

Finally, it is well-settled that traditional site plan review is a quasi-judicial act. See Park of Commerce Assocs. v. City of Delray Beach, 636 So.2d 12, 15 (Fla.1994). Consequently, review other than on a consistency challenge is limited to certiorari, and the trial court properly dismissed counts II and III. See id.; Educ. Dev. Ctr., Inc. v. Palm Beach County, 721 So.2d 1240, 1241 (Fla. 4th DCA 1998); Keller v. Town of Palm Beach, 707 So.2d 429, 429-30 (Fla. 4th DCA 1998); Grace v. Town of Palm Beach, 656 So.2d 945, 945-46 (Fla. 4th DCA 1995). However, since these dismissals were not adjudications on the merits of the claims raised, they should have been designated as being without prejudice. See Smith v. St. Vil, 714 So.2d 603 (Fla. 4th DCA 1998).

We affirm the trial court’s dismissal of Coconut Creeks’ amended complaint with prejudice, but reverse solely for the dismissals as to counts II and III to be redesignated as being without prejudice.

SHAHOOD and GROSS, JJ„ concur.

      . The statute was substantially rewritten in 2002 to eliminate the requirement that a verified complaint be filed with the local government and to require suit to be filed within thirty days of an order’s becoming final. See Ch.2002-296, § 10, Laws of Fla.

      . Since the statute has a remedial purpose, its verification requirement should be liberally construed. See Edgewater, 833 So.2d at 220; Educ. Dev. Ctr., Inc. v. Palm Beach County, 751 So.2d 621, 623 (Fla. 4th DCA 1999) (finding that complaint filed with governmental entity sufficient if it is verified by one affected party, but places entity on notice of all parties involved and the basis for their claim).

      . See Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1022-23 (Fla.1979) (stating that failure to allege compliance with notice to Department of Insurance under section 768.28(6) required action be dismissed with leave to amend); Citron v. Shell, 689 So.2d 1288, 1291-92 (Fla. 4th DCA 1997), disapproved on other grounds hy Cohen v. Dauphinee, 739 So.2d 68 (Fla.1999) (finding that claimant who failed to comply with condition precedent to medical malpractice action should be given opportunity to cine noncompliance within unexpired portion of limitations period).

      . See Williams v. Campagnulo, 588 So.2d 982, 983 (Fla.1991) (holding that failure to timely file presuit notice in medical malpractice action as required by section 768.57 within limitations period required dismissal); Levine, 442 So.2d at 212-13 (finding complaint against governmental entity properly dismissed with prejudice where claimant failed to file section 768.28(6) notice to Department of Insurance and time for provision of notice had expired); Privas v. Brisson Custom Homes, Inc., 817 So.2d 983, 984-85 (Fla. 4th DCA 2002) (reversing judgment foreclosing lien where final contractor’s affidavit not timely served on homeowner within statutory time limit); Bishop Signs, Inc. v. Magee, 494 So.2d 532, 533-34 (Fla. 4th DCA 1986) (upholding dismissal with prejudice where contractor failed to deliver final contractor’s affidavit five days prior to suit); Veal v. Escambia County, 773 So.2d 625, 625-26 (Fla. 1st DCA 2000) (finding a failure to comply with section 163.3213(3), which required substantially affected person seeking to challenge consistency of land development regulation with comprehensive plan to file petition with local government outlining facts on which petition is based and reason regulation believed inconsistent prior to filing suit, justified dismissal); Furnans v. Santa Rosa Island Auth., 315 So.2d 481, 482 (Fla. 1st DCA 1975) (finding a failure to comply with section 403.412(2)(c), which required plaintiff to file verified complaint with governmental agency charged with regulating environmental act, setting forth facts on which based and manner complaining party has been affected, prior to instituting claim under Environmental Protection Act of 1971 required dismissal with prejudice).

      . The Thomas court recognized the principle at issue in this case. "If the objecting neighbors had failed to file a verified complaint with Suwannee County within thirty days, the statute would have barred their claim of inconsistency with the comprehensive plan.” 734 So.2d at 496 n. 6.

      . Coconut Creek has sought review of its due process challenges under a companion Petition for Writ of Certiorari. Consequently, we have not recast counts II and III to seek that relief. See Fla. Rule App. P. 9.040(c).

      . The trial court properly dismissed count I with prejudice, since Coconut Creek is unable to state a claim that the site plan approval is inconsistent with a comprehensive plan, but we note that there has been no adjudication on the merits concerning consistency. Further, we make no comment on Coconut Creek’s right to challenge the consistency of any future development order with the controlling comprehensive plan.


author: WARNER, J.

text:
    Marcia GOLD, Appellant, v. M. Adam BANKIER, as Personal Representative of the Estate of Doris Reinfeld, and Cindy Schnur, Appellees.
    No. 4D01-5002.
    District Court of Appeal of Florida, Fourth District.
    March 19, 2003.

      Steven M. Goldsmith of Steven M. Goldsmith, P.A., Boca Raton, for appellant.
    Jani E. Maurer, Boca Raton and Neal B. Shniderman, Fort Lauderdale, for appellee Cindy Schnur.
    Eric C. Christu and Devon G. Coughlan of Elk, Bankier & Christu, Boca Raton, for appellee Adam Bankier.
   WARNER, J.

When the deceased Doris Strauss Rein-feld’s will was filed for probate, one of her daughters objected to probate on various grounds regarding the execution of the will and undue influence. Although the objection was later withdrawn, the daughter/beneficiary moved to remove the personal representative of the estate on the ground that the representative undervalued a significant asset. In response, the decedent’s other daughter moved for summary judgment, alleging that the issue of the valuation of the asset was res judicata because its existence was known at the time the objection to probate was withdrawn. The trial court agreed, prompting this appeal. We hold that res judicata does not apply on these facts and reverse.

Appellant Marcia Gold (“Gold”) and ap-pellee Cindy Schnur (“Schnur”) are sisters, and the daughters of the deceased Doris Reinfeld (“Reinfeld”). After Reinfeld’s death, her will, executed just a few months earlier, was admitted to probate, and M. Adam Bankier (“Bankier”) was appointed personal representative. Gold filed an objection to the probate of the will, alleging the following: decedent’s will was not executed in accordance with Florida law; decedent was not of sound mind when she executed the will; Schnur committed undue influence and fraud to get decedent to execute the will; Bankier, who drafted the will, used coercion and duress in order to get decedent to execute the will; and Bankier is not eligible to serve as personal representative because he was also Schnur’s personal attorney, creating a conflict of interest.

Gold ultimately agreed to dismiss the objections to probate and entered into a stipulation with Bankier and Schnur that “the objection of Marcia Gold to probate shall be dismissed, with prejudice, and that no further objections to probate exist in this matter.” The court entered an agreed order dismissing the objection to probate.

Several months later Gold filed a petition to remove Bankier as personal representative for breach of his fiduciary duty. Specifically, she asserted that Bankier undervalued the decedent’s interest in apartments that were willed in trust to the two daughters. By reducing the value of this asset for estate tax purposes, Bankier exposed Gold to a larger capital gains tax upon the sale of the apartments, as her tax basis in the property would be lower than it should otherwise have been. She also alleged that Bankier did not treat her equally with Schnur in the valuation, as Schnur benefitted from the lower value in the estate.

Schnur moved for summary judgment, claiming that the petition to remove the personal representative was barred by the doctrine of res judicata. Schnur claimed that Gold’s knowledge of Bankier’s valuation of the apartments at the time she stipulated to the dismissal with prejudice of her objection to probate bars her from raising the valuation issue in a subsequent action. The trial court agreed and entered a final order of summary judgment.

Four elements are required in order for a matter to be considered res judicata: “(1) [ijdentity in the thing sued for; (2) identity of the cause of action; (3) identity of persons and parties to the action, and (4) identity of the quality in the person for or against whom the claim is made.” Donahue v. Davis, 68 So.2d 163, 169 (Fla.1953) (citations omitted). Gold argues the first two elements are not present in the instant appeal. We agree that not all of the elements of res judicata have been proven. We address only the second element, because if that is not satisfied, res judicata does not bar the action.

“Identity of the causes of action is established where the facts which are required to maintain both actions are identical.” Cole v. First Dev. Corp. of Am., 339 So.2d 1130, 1131 (Fla. 2d DCA 1976) (citing Gordon v. Gordon, 160 Fla. 838, 36 So.2d 774 (1948)). Here, the facts required to maintain each action were completely separate and distinct, as were the causes of action. Gold objected to the probate of the will on the ground of undue influence and improper execution. She sought the invalidation of the will itself based upon conduct which occurred prior to the decedent’s death. Conversely, the petition for removal of the personal representative acknowledged the validity of the will and sought removal based upon activity of the representative during the administration of the estate. The facts pertinent to this action occurred after the decedent’s death. Because the action seeking removal of the personal representative required the assertion of facts not presented in the action objecting to probate, there is no identity of the causes of action.

Schnur contends that res judicata should still bar the petition for removal because Gold knew about the apartment valuation at the time she objected to probate. Res judicata bars not only those issues that were subject to adjudication on the merits but also bars those issues that could have properly been included in the same action. See In re Haskin’s Estate, 63 So.2d 320, 321 (Fla.1953). But, as we have shown, the petition for removal could not have been properly brought in the initial action, because the facts upon which it relies are entirely different from those upon which the objection to probate were based.

Having determined no identity of the causes of action existed between Gold’s actions, we conclude that res judicata did not bar the petition for removal of the personal representative. We therefore reverse the final summary judgment and remand for further proceedings.

Reversed.

GUNTHER, J., and HARNAGE, HENRY H., Associate Judge, concur.