author: LEWIS, J.

text:
    Kenneth FRIEDMAN, M.D., Petitioner, v. HEART INSTITUTE OF PORT ST. LUCIE, INC., Respondent.
    No. SC02-502.
    Supreme Court of Florida.
    Sept. 25, 2003.

      Robert W. Wilkins of Berrocal and Wilkins, Jupiter, FL; David B.B. Helfrey and Philip C. Graham of Helfrey, Simon & Jones, PC., St. Louis, MO; and Roy L. Morris, Arlington, VA, for Petitioner.
    Andrew C. Hall, Adam Lamb, and Michael L. Cotzen, and Doron Weiss of Hall, David and Joseph, P.A., Miami, FL; and Stephen Navaretta of Navaretta and Na-varetta, P.A., Port St. Lucie, FL, for Respondents.
   LEWIS, J.

We have for review Friedman v. Heart Institute of Port St. Lucie, Inc., 806 So.2d 625 (Fla. 4th DCA 2002), which expressly and directly conflicts with the decision in Rosen v. Zoberg, 680 So.2d 1050 (Fla. 3d DCA 1996). Jurisdiction is proper under article V, section 3(b)(3) of the Florida Constitution. As explained herein, we approve the decision below and disapprove that portion of the Rosen decision which conflicts with concepts set forth herein.

Facts and Procedural History

Petitioner Friedman, a physician, was employed by the respondent medical corporation until his termination by the corporation on January 11, 2000. Subsequently, the corporation filed an action alleging that Friedman was in violation of his employment agreement with the medical group. Specifically, the corporation contended that the doctor had opened a competitive practice within fifty miles of his former employer, breaching his agreement not to compete with the Heart Institute. In accordance with the parties’ contract, the medical corporation sought injunctive relief to prohibit Friedman from competing within a fifty mile radius of a described intersection or, in the alternative, liquidated damages in the amount of $300,000.

Subsequently, the medical corporation was permitted to amend its complaint to include an additional count asserting violation of Chapter 726 of the Florida Statutes, the Florida Uniform Fraudulent Transfer Act (hereinafter “FUFTA”). The corporation alleged that Friedman had fraudulently transferred the proceeds from the sale of his home, over $400,000, to his fiancee, Christie LeMieux, in an effort to divest himself of assets. LeMieux was added as a party to the civil action. Friedman then moved to stay the fraudulent transfer claim and its concomitant discovery until after the medical corporation obtained a judgment on the underlying claim for damages resulting from breach of contract. The trial court denied the stay, and Friedman petitioned the Fourth District Court of Appeal for certiorari review of the trial court’s order.

The Fourth District denied the petition, stating succinctly:

In order to proceed under the Fraudulent Transfer Act it is not necessary that the creditor have a judgment. A “creditor” under the act is a “person who has a claim.” A “claim” on which a creditor can proceed can be “unliquidat-ed, ... contingent, ... unmatured.” The physician recognizes that it is unnecessary for the hospital to have a judgment in order to seek relief against the transferee, but argues that the claim should be stayed....
In section 726.108 the Act authorizes the court to grant a creditor broad relief against the transferee of a fraudulent transfer, including an injunction against further disposition of the asset or the appointment of a receiver to take charge of the asset. A stay of the fraudulent transfer proceedings would preclude the trial court from granting relief under section 726.108 pending the outcome of the claim for damages. We therefore conclude that the trial court did not abuse its discretion in denying the stay and deny certiorari.

Friedman, 806 So.2d at 626-27 (citations omitted). On November 18, 2002, this Court granted review of the Fourth District’s decision. See Friedman v. Heart Inst. of Port St. Lucie, Inc., 832 So.2d 104, 104 (Fla.2002) (table).

Analysis

The applicable statutory provisions in this area of the law are exceedingly clear. A “creditor” who possesses a “claim” may seek a number of remedies to prevent the fraudulent transfer of assets. Among the remedies -are avoidance of the transfer, attachment, an injunction, appointment of a receiver, and “any other relief the circumstances may require.” § 726.108(l)(b), Fla. Stat. (2002). A transfer is fraudulent if made “without receiving a reasonably equivalent value in exchange for the transfer or obligation and the debtor was insolvent at that time or the debtor became insolvent as a result of the transfer or obligation.” § 726.106(1), Fla. Stat. (2002).

To utilize the protections of chapter 726, however, a plaintiff must show that he or'she has a “claim” which qualifies the party as a “creditor.” See § 726.102(4), Fla. Stat. (2002). As defined in section 726.102, a “claim” is broadly constructed and “means a right to payment, whether or not the right is reduced to judgment, liquidated, unliquidated, fixed, contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured, or unsecured.” § 726.102(3), Fla. Stat. (2002). Thus, as is universally accepted, as well as settled in Florida, “A ‘claim’ under the Act may be maintained even though ‘contingent’ and not yet reduced to judgment.” Cook v. Pompano Shopper, Inc., 582 So.2d 37, 40 (Fla. 4th DCA 1991); see also Money v. Powell, 139 So.2d 702, 703 (Fla. 2d DCA 1962) (“In this state contingent creditors and tort claimants are as fully protected against fraudulent transfers as holders of absolute claims.”).

Two of Florida’s district courts of appeal have addressed the issue of whether dependent claims under FUFTA should be stayed pending resolution of underlying substantive claims. In Rosen, the plaintiff filed an action against her attorney for damages in connection with the “churning” of legal files and accompanying overbilling and emotional distress. See Rosen, 680 So.2d at 1051. After the attorney’s insurance carrier had previously been placed in receivership, Rosen filed an action alleging that the defendant had violated FUFTA by transferring or placing liens on his assets in favor of relatives or entities under his control. See id. The trial court refused to stay the FUFTA claim pending the resolution of the overbilling, or “Rosen I,” claims. See id.

On appeal, the Third District reversed and remanded, stating:

[W]e hold that the trial court abused its discretion in denying Rosen’s motions to stay Rosen II. The record demonstrates that resolution of Rosen I is dispositive of Rosen II. If Rosen does not prevail in Rosen I, she is not a creditor, and there is no basis for setting aside the transactions attacked in Rosen II. A stay is the proper vehicle to avoid a waste of judicial resources. On remand, the court shall enter an order staying this action pending resolution of Rosen I.

Id. at 1052 (citations omitted). Thus, under Rosen, it is an abuse of discretion if a trial judge fails to stay a dependent FUF-TA claim pending resolution of underlying substantive claims, and a FUFTA claimant cannot proceed as a “creditor” if he or she does not already possess a judgment.

In the decision below, the court reached an entirely opposite conclusion. As noted, the district court here determined that “[a] stay of the fraudulent transfer proceedings would preclude the trial court from granting relief under section 726.108 pending the outcome of the claim for damages.” Friedman, 806 So.2d at 627. Therefore, the lower appellate court determined that the trial court did not abuse its discretion in denying the stay, and denied certiorari. See id. Under the Fourth District’s decision, the progression of a dependent FUF-TA claim is not always stayed as a matter of course, because the statute automatically endows plaintiffs under the Act with “creditor” status. This status allows FUFTA claimants to effect the progression of their cases to judgment at the same time their substantive underlying claims are also being litigated and resolved.

The petitioner’s arguments in favor of the validity of Rosen fail in the face of the clarity of chapter 726 and the well-settled principle that “[a] ‘claim’ under the Act may be maintained even though ‘contingent’ and not yet reduced to judgment.” Cook, 582 So.2d at 40; see also Invo Florida, Inc. v. Somerset Venturer, Inc., 751 So.2d 1263 (Fla. 3d DCA 2000); Money, 139 So.2d at 703. Indeed, if automatically staying discovery and progression of FUF-TA claims was standard and a failure to do so an abuse of discretion, the goal of protecting creditors from wrongful asset transfers would likely be nearly entirely frustrated. Therefore, we disapprove the Third District’s conclusion that a claimant which does not possess a judgment “is not a creditor,” Rosen, 680 So.2d at 1052, and would not be entitled to proceed under the applicable statutory provisions as to putatively fraudulent transactions. As noted by the court below, under section 726.102(3) and (4), a creditor is merely a person who “has a claim,” and a “claim” may be “unliquidated, ... contingent, [or] unmatured.” Friedman, 806 So.2d at 626 (quoting § 726.102(3)-(4), Fla. Stat. (2002)). Thus, a creditor such as the medical group in the instant case may seek the benefits under FUFTA, and any motion to stay the chapter 726 claim would be properly addressed to the sound discretion of the trial court.

While the instant action does not present any cognizable constitutional questions for resolution by this Court, and we do not today consider any constitutional issues, reference to our decision in Rasmussen v. South Florida Blood Service, Inc., 500 So.2d 533 (Fla.1987), certainly guides our consideration of any privacy concerns corollary to this cause. In Rasmussen, the plaintiff sought discovery of various blood donation records from the South Florida Blood Service, in an attempt to ascertain the source of his AIDS infection. See id. at 534. Justice Barkett, writing for the majority, offered the following observations and conclusions:

The potential for invasion of privacy is inherent in the litigation process. Under the Florida discovery rules, any non-privileged matter that is relevant to the subject matter of the action is discoverable. The discovery rules also confer broad discretion on the trial court to limit or prohibit discovery in order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense. Under this authority, a court may act to protect the privacy of the affected person.
In deciding whether a protective order is appropriate in a particular case, the court must balance the competing interests that would be served by granting discovery or by denying it. Thus, the discovery rules provide a framework for judicial analysis of challenges to discovery on the basis that the. discovery will result in undue invasion- of privacy. This framework allows for broad discovery in order to advance the state’s important interest in the fair and efficient resolution of disputes while at the same time providing protective measures to minimize the impact of discovery -on competing privacy interests. .

Id. at 535 (quotation marks and citations omitted).

Under Florida law, the petitioner’s concerns regarding the effect of discovery on dependent FUFTA claims are more properly addressed not by automatically staying the actions, but by other means and the placement of discretionary limitations upon discovery by trial courts. “[T]he constitutional right of privacy undoubtedly expresses a policy that compelled disclosure through discovery be limited to that which is necessary for a court to determine contested issues.... ” Woodward v. Berkery, 714 So.2d 1027, 1036 (Fla. 4th DCA 1998). Thus, as is always the case, “the scope and limitation of discovery is within the broad discretion of the trial court.” SCI Funeral Servs. of Fla., Inc. v. Light, 811 So.2d 796, 798 (Fla. 4th DCA 2002).

In exercising its discretion to prevent injury through abuse of the action or the discovery process within the action, trial courts are guided by the principles of relevancy and practicality. Clearly, “the disclosure of personal financial information may cause irreparable harm to a person forced to disclose it, in a case in which the information is not relevant.” Straub v. Matte, 805 So.2d 99, 100 (Fla. 4th DCA 2002); see also Mogul v. Mogul, 730 So.2d 1287, 1290 (Fla. 5th DCA 1999). As noted by this Court, “As appropriate, the trial court may conduct an in-camera inspection of the subject records. In that context, the trial court may balance (on an ad hoc basis) ‘the right to privacy and the right to know.’ ” Alterra Healthcare Corp. v. Estate of Shelley, 827 So.2d 936, 945-46 (Fla. 2002); (quoting Montana Human Rights Div. v. City of Billings, 199 Mont. 434, 649 P.2d 1283, 1290 (1982)); see also Pyszka, Kessler, Massey, Weldon, Catri, Holton & Douberley, P.A. v. Mullin, 602 So.2d 955, 955 (Fla. 3d DCA 1991). Additionally, Florida’s trial courts are endowed with the authority to require the proponent of a claim to post bond. See, e.g., Med. Facilities Dev., Inc. v. Little Arch Creek Props., Inc., 675 So.2d 915, 918 (Fla.1996).

Certainly, the substance of the Florida Rules of Civil Procedure, buttressed by litigant-protecting caselaw, strikes the proper balance between allowing appropriate discovery and protecting litigants’ privacy and equitable interests. While the general rule in Florida is that personal financial information is ordinarily discoverable only in aid of execution after judgment has been entered, see Gruman v. Bankers Trust Co., 379 So.2d 658, 659 (Fla. 3d DCA 1980); Cooper v. Fulton, 117 So.2d 33, 35-36 (Fla. 3d DCA 1960), where materials sought by a party “would appear to be relevant to the subject matter of the pending action,” the information is fully discoverable. Epstein v. Epstein, 519 So.2d 1042, 1043 (Fla. 3d DCA 1988). A party’s finances, if relevant to the disputed issues of the underlying action, are not excepted from discovery under this rule of relevancy, and courts will compel production of personal financial documents and information if shown to be relevant by the requesting party. See id.; Jacobs v. Jacobs, 50 So.2d 169, 173 (Fla.1951); Florida Gaming Corp. of Delaware v. American Jai-Alai, Inc., 673 So.2d 523, 524 (Fla. 4th DCA 1996) (“[T]he financial information at issue was relevant to the calculation of damages under the breach of contract count. Discovery of these matters was proper.”); Citibank, N.A. v. Plapinger, 461 So.2d 1027, 1027 (Fla. 3d DCA 1985); Ashcraft v. Harvey, 315 So.2d 530, 531 (Fla. 4th DCA 1975).

As we stated in Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987), “Litigation of a non-issue will always be inconvenient and entail considerable expense of time and money for all parties in the case.... [W]e do not ignore petitioner’s valid privacy interest in avoiding unnecessary disclosure of matters of a personal nature. We believe, however, that our discovery rules provide sufficient means to limit the use and dissemination of discoverable information via protective orders.” Martin^-Johnson, 509 So.2d at 1100. Dependent FUFTA claims should not automatically be stayed, and any motion requesting halting the progression of an action is properly addressed and resolved by the trial court in the exercise of its sound discretion as to both how the action may proceed and the discovery matters related thereto. We see no need to limit this discretion with specific rules or formulas, and note that there are a number of decisions which provide guidance for courts performing the balancing of the various interests affected by a party’s motion seeking to stay a civil action. See, e.g., Landis v. N. Am. Co., 299 U.S. 248, 251, 57 S.Ct. 163, 81 L.Ed. 153 (1936); Volmar Distribs., Inc. v. New York Post Co., Inc., 152 F.R.D. 36, 38 (S.D.N.Y.1993); Guirola-Beeche v. United States Dep’t of Justice, 662 F.Supp. 1414, 1416 (S.D.Fla.1987).

Conclusion

In accordance with the foregoing, we approve the decision of the Fourth District below, Friedman v. Heart Institute of Port St. Lucie, Inc., 806 So.2d 625 (Fla. 4th DCA 2002), and disapprove that portion of Rosen v. Zoberg, 680 So.2d 1050 (Fla. 3d DCA 1996), to the extent it conflicts with Friedman and is inconsistent with this opinion.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, QUINCE, CANTERO, and BELL, JJ., concur.


source: Caselaw Access Project

author: BELL, J.

license: Public Domain

text:
    MIAMI-DADE COUNTY, Petitioner, v. OMNIPOINT HOLDINGS, INC., Respondent.
    No. SC02-815.
    Supreme Court of Florida.
    Sept. 25, 2003.

      Robert A. Ginsburg, Miami-Dade County Attorney, and Jay W. Williams and Robert L. Kraweheck, Assistant County Attorneys, Miami, FL, for Petitioner.
    Deborah L. Martohue of Hayes & Mar-tohue, P.A., St. Petersburg, FL, for Respondent.
    Alejandro Vilarello, City Attorney, and Joel Maxwell, Deputy City Attorney, Miami, FL; and Robert S. Glazier of the Law Office of Robert S. Glazier, Miami, FL, for the City of Miami, Florida, Amicus Curiae.
    Elizabeth Hernandez, City Attorney, Coral Gables, FL; and William Grodnick, City Attorney, Hialeah, FL, for City of Coral Gables, Florida and City of Hialeah, Florida, Amici Curiae.
    Eileen Ball Mehta and Stanley B. Price of Bilzin, Sumberg, Baena, Price & Axel-rod, LLP, Miami, FL, for Builders Association of South Florida, Inc.; Latin Builders Association; Chamber South; Sweet Home Missionary Baptist Church, Inc. of Miami; Greater New Bethel Baptist Church, Inc. of Opa Loeka; and New Birth Baptist Church, Inc., Amici Curiae.
    Lynn M. Dannheisser, City Attorney, and Hans Ottinot, Deputy City Attorney, Sunny Isles Beach, FL, for City of Sunny Isles Beach, Florida, Amicus Curiae.
   BELL, J.

We have for review Miami-Dade County v. Omnipoint Holdings, Inc., 811 So.2d 767 (Fla. 3d DCA 2002), which expressly and directly conflicts with this Court’s decision in Broward County v. G.B.V. International, Ltd., 787 So.2d 838 (Fla.2001). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. As discussed below, because the Third District’s decision exceeds the proper scope of second-tier cer-tiorari review by addressing, sua sponte, the facial constitutionality of the ordinances at issue, we quash that decision and remand for further review.

FACTUAL AND PROCEDURAL BACKGROUND

Omnipoint Holdings, Inc. (Omnipoint) applied for an “unusual use” exception to the Miami-Dade County zoning ordinances in order to erect a 148-foot (fourteen-story) telecommunications monopole. The proposed site of the monopole is zoned for limited business use. The county’s zoning ordinances do not permit telecommunications towers in the limited business district as a matter of right. However, towers may be erected in the limited business district if an unusual use exception is granted by the zoning board.

Omnipoint also sought a modification to the prior site plan for the property and a nonuse variance of the zoning regulations to allow the tower to be set back eighty-four feet from the rear property line, instead of the 164 feet typically required. The county’s limited business district zoning regulations restricted building height to forty-five feet for all uses permitted as of right. At the time Omnipoint’s request was presented to the zoning board, a public storage facility existed on the target property; two fully developed single-family town-home neighborhoods were immediately north and south of the proposed tower site; a 150-foot telecommunications tower was located on an adjacent parcel to the east; and seventy-five-foot electric utility poles lined the roadway to the north. Otherwise, the tallest building in the area was two stories high.

Miami-Dade County staff issued a report recommending that the zoning board approve Omnipoint’s requests. At a hearing before the zoning board, the staff report, photographs, zoning maps, and testimony were introduced. Homeowners testified that the cell tower, by virtue of its size, use, aesthetics, and location on the site, would be incompatible with the character of the surrounding area. After the hearing, the zoning board issued a resolution denying Omnipoint’s application, finding as follows:

[T]he requested modification, ... unusual use, ... and non-use variance of zoning regulations ... would not be compatible with the area and its development and would not be in harmony with the general purpose and intent of the regulations and would not conform with the requirements and intent of the Zoning Procedure Ordinance and the requested unusual use ... would have an adverse impact upon the public interest and should be denied without prejudice.

On certiorari review, the circuit court granted Omnipoint’s petition and quashed the decision of the zoning board. The circuit court held that the board’s decision was unsupported by competent, substantial evidence and constituted “unlawful discrimination among providers of equivalent services” under the Federal Telecommunications Act, 47 U.S.C. § 332 (1996). The circuit court remanded the case to the zoning board with instructions “to determine Omnipoint’s application in accordance with” the court’s opinion. Omnipoint did not allege in its petition that the zoning ordinance provisions were unconstitutional, and the circuit court did not address the constitutionality of those provisions. Miami-Dade filed a petition for writ of certio-rari in the Third District Court of Appeal.

On second-level certiorari review, the Third District denied the county’s petition and left intact the circuit court’s remand. The district court found no error in the circuit court’s opinion. In fact, the Third District reached the same ultimate result, but it did so on a fundamentally different basis. Sua sponte, the district court declared the relevant portions of the county code governing unusual uses, modifications of prior approvals, and nonuse variances facially unconstitutional because they lacked objective criteria to guide zoning boards in their decision-making process. See Omnipoint, 811 So.2d at 768-70.

Miami-Dade filed a petition to invoke this Court’s discretionary jurisdiction, alleging that the district court opinion, was in direct and express conflict with decisions of this Court restricting the scope of second-tier certiorari review. Additionally, Miami-Dade argued that the district court opinion conflicted with our decisions holding that constitutionality issues should not be addressed when a case can be resolved on other grounds. We granted jurisdiction.

SCOPE OF SECOND-TIER CERTIORARI REVIEW

Miami-Dade alleges that the Third District exceeded the scope of second-tier cer-tiorari review when it declared the ordinances unconstitutional.

A. APPLICABLE LAW

After a zoning board rules on an application for a special zoning exception, the parties may twice seek review in the court system. First, a party may seek certiorari review at the circuit court level. This review is a matter of right. See Florida Power & Light Co. v. City of Dania, 761 So.2d 1089, 1092 (Fla.2000). As we delineated in City of Deerfield Beach v. Vaillant, 419 So.2d 624 (Fla.1982), and reiterated in G.B.V., the circuit court’s “first-tier” review is three-pronged. The circuit court must determine “(1) whether procedural due process is accorded, (2) whether the essential requirements of the law have been observed, and (3) whether the administrative findings and judgment are supported by competent substantial evidence.” G.B.V., 787 So.2d at 843 (quoting Vaillant, 419 So.2d at 626).

The parties may then seek “second-tier” certiorari review of the circuit court decision by petitioning for review in the district court. Second-tier certiorari review is not a matter of right and is similar in scope to common law certiorari review. See Florida Power, 761 So.2d at 1092-93. The scope of the district court’s review on second-tier certiorari is limited to whether the circuit court (1) afforded procedural due process, and (2) applied the correct law. G.B.V., 787 So.2d at 843 (quoting Vaillant, 419 So.2d at 626). In other words, this two-pronged, second-tier review is simply another way of deciding whether the lower court “departed from the essential requirements of law.” Heggs, 658 So.2d at 530. A ruling constitutes a departure from the essential requirements of law when it amounts to “a violation of a clearly established principle of law resulting in a miscarriage of justice.” Tedder v. Florida Parole Comm’n, 842 So.2d 1022, 1024 (Fla. 1st DCA 2003) (quoting Combs v. State, 436 So.2d 93, 96 (Fla.1983)). The district court may not review the record to determine whether the underlying agency decision is supported by competent, substantial evidence. Florida Power, 761 So.2d at 1093. Therefore, as a practical matter, the circuit court’s final ruling in most first-tier cases is conclusive because second-tier review is so extraordinarily limited. Id. at 1092.

Additionally, a petition seeking cer-tiorari review is not the proper procedural vehicle to challenge the constitutionality of a statute or ordinance. Vaillant, 419 So.2d at 626. For example, in First Baptist Church of Perrine v. Miami-Dade County, 768 So.2d 1114, 1115 (Fla. 3d DCA 2000), the petitioner, on second-tier certio-rari review, attempted to challenge the constitutionality of the same county ordinance at issue here. The Third District properly declined to exceed the proper scope of second-tier certiorari review and stated:

The Church attempts to challenge the constitutionality of section 33-311 of the Miami-Dade County Code, which section establishes the Zoning Board and creates the criteria to be used by the Zoning Board in its consideration of zoning application [sic]. We decline to address the merits of this issue because a petition for certiorari is not the proper procedural vehicle to challenge the constitutionality of this ordinance. See City of Deerfield Beach v. Vaillant, 419 So.2d 624, 626 (Fla.1982) (The district court, in reviewing the circuit court’s judgment determines “whether the circuit court afforded procedural due process and applied the correct law.”). The constitutionality of the ordinance must be determined in original proceedings before the circuit court, not by way of a petition for writ of certiorari. See Nostimo, Inc. v. City of Clearwater, 594 So.2d 779 (Fla. 2d DCA 1992). Furthermore, this issue was never brought before the circuit court in the proceedings below and should not be considered initially by this Court.

Id. at 1115 n. 1 (emphasis added).

B. APPLICATION OF LAW

On first-tier certiorari review, the circuit court in this case applied the Vail-lant test and quashed the zoning board’s decision because it violated the second and third prongs. Specifically, the circuit court found:. (1) the board’s decision did not comport with the requirements of the Federal Telecommunications Act; and (2) there was no competent, substantial evidence in the record to support the denial of the application. The first prong was not addressed because the question of procedural due process was not raised by either party.

On its review, the district court did not address either prong of a proper second-tier certiorari review. The first prong, whether procedural due process was afforded to the parties, was not an issue raised by the parties. There was no need to consider the issue. However, the district court also did not address the second and final element of second-tier certiorari review, whether the circuit court applied the correct law. This issue was raised by Miami-Dade and should have been adequately addressed.

Instead of limiting itself to addressing the two prongs of second-tier certiorari review, the district court reached an issue neither party raised in any phase of the proceedings. Sua sponte, the Third District considered the facial constitutionality of the Miami-Dade County ordinances. The district court stated that although “[ajrguably Omnipoint did not preserve the constitutional question,” portions of the county code are “fundamentally unfair and unjust” and proceeded to hold them invalid. Omnipoint, 811 So.2d at 769 n. 6. The district court justified reaching the question of constitutionality solely on the authority of In re R.W., 481 So.2d 548, 549 (Fla. 5th DCA 1986) (holding patently unconstitutional a termination of parental rights statute that set forth no standards or guidelines for performance agreements, thus leaving “the substance of such agreements entirely to the whims and caprices of the individual social worker who drafts them”), aff'd, 495 So.2d 133 (Fla.1986). In R.W., the appellant specifically raised the issue of the constitutionality of the statute. By contrast, neither party in this case raised the constitutionality of the ordinances as an issue for the Third District to address.

Further, unlike R.W., the county’s ordinances in this case, even if facially unconstitutional, do not approach the fundamental defectiveness or unjustness evident in R.W. The authority cited by the Fifth District in R.W. as authority to declare the statute unconstitutional was the United States Supreme Court’s decision in Hormel v. Helvering, 312 U.S. 552, 61 S.Ct. 719, 85 L.Ed. 1037 (1941), in which the Court stated:

Ordinarily an appellate court does not give consideration to issues not raised below. For our procedural scheme contemplates that parties shall come to issue in the trial forum vested with authority to determine questions of fact. This is essential in order that parties may have the opportunity to offer all the evidence they believe relevant to the issues which the trial tribunal is alone competent to decide; it is equally essential in order that litigants may not be surprised on appeal by final decision there of issues upon which they have had no opportunity" to introduce evidence.

Id. at 556, 61 S.Ct. 719. The Hormel Court did note that “[tjhere may always be exceptional cases or particular circumstances which will prompt a reviewing or appellate court, where injustice might otherwise result, to consider questions of law which were neither pressed nor passed upon by the court or administrative agency below.” Id. at 557, 61 S.Ct. 719. This case does not present the types of patent injustice considered in Hormel and R.W. Indeed, in the filings and arguments before this Court, both Omnipoint and Miami-Dade (as well as the numerous amici curiae) argue that the ordinances in question are facially constitutional.

CONCLUSION

For the reasons stated above, we hold that the Third District exceeded the proper scope of second-tier certiorari review when it, sua sponte, held the ordinances in question facially unconstitutional. Accordingly, we quash the decision of the Third District Court of Appeal and remand to that court with instructions to review the circuit court’s decision pursuant to the standards established by this Court in Vaillant, G.B.V., and Florida Power.

We decline to address whether this case could have been resolved on other grounds. We also decline to address the remaining issues raised by the parties that are beyond the scope of the conflict issue. See Kelly v. Community Hosp. of Palm Beaches, Inc., 818 So.2d 469, 470 n. 1 (Fla.2002).

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, LEWIS, QUINCE, and CANTERO, JJ., concur.

      . The unlawful discrimination claim was related to the adjacent 150-foot telecommunications tower.

      . More accurately, though stating it was leaving intact the circuit court's remand, the Third District actually went a step further. It modified the circuit court’s remand by saying it was "for the purpose of the Board's granting approval of Omnipoint’s application for the monopole.” Miami-Dade County v. Omnipoint Holdings, Inc., 811 So.2d 767, 770 (Fla. 3d DCA 2002). The circuit court had properly limited its remand to the board "with instructions to determine the application in accordance” with its opinion. The Third District’s modification exceeded a court's certiorari review power. An appellate court has no power in exercising its jurisdiction in certiorari to direct the respondent to take any particular action. It can only quash the order or decision under review and remand for further proceedings. See Broward County v. G.B.V. International, Ltd., 787 So.2d 838, 844 (Fla.2001).


author: CANTERO, J. ANSTEAD, C.J.,

text:
    Naji NEHME, etc., Petitioner, v. SMITHKLINE BEECHAM CLINICAL LABORATORIES, INC., etc., et al., Respondents.
    No. SC02-1680.
    Supreme Court of Florida.
    Sept. 25, 2003.

      Earl Denney of Searcy, Denney, Scaro-la, Barnhart & Shipley, P.A., West Palm Beach, FL; and Philip M. Burlington of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, FL, for Petitioner.
    Mercer K. Clarke and Spencer T. Kuvin of Clarke, Silvergate, Williams & Montgomery, Miami, FL; Andrew T. Bayman of King & Spalding, Atlanta, Georgia; Jennings L. Hurt, III, John P. Daly, and Karissa 0. McAloon of Rissman, Weisberg, Barrett, Hurt, Donahue & McLain, P.A., Orlando, Florida; and Arthur J. England, Jr. And Julissa Rodriguez of Greenberg Traurig, P.A., Miami, FL, for Respondents.
    Gail Leverett Parenti of Parenti, Falk, Waas, Hernandez & Falk, Coral Gables, Florida, and Hal B. Anderson of Billing, Cochran, Heath, Lyles & Mauro, P.A., Fort Lauderdale, FL, for Florida Defense Lawyers Association, Amicus Curiae.
   CANTERO, J.

In this case, we must interpret a statute of repose applicable to medical malpractice cases. Section 95.11(4)(b), Florida Statutes (1993), extends the normal four-year statute of repose for such actions to seven years when “fraud, concealment, or intentional misrepresentation of fact” prevents discovery of the injury. The Fifth District Court of Appeal has certified the following question of great public importance:

DOES THE TERM CONCEALMENT AS USED IN SECTION 95.11(4)(b), FLORIDA STATUTES, ENCOMPASS NEGLIGENT DIAGNOSIS BY A MEDICAL PROVIDER?

Nehme v. Smithkline Beecham Clinical Labs., Inc., 822 So.2d 519, 522 (Fla. 5th DCA 2002). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. We answer the question in the negative and approve the decision of the Fifth District Court of Appeal.

I.

On May 23, 1994, thirty-year-old Rhonda Nehme had a gynecological examination and pap smear at the Volusia County Public Health Department. The slide of the pap smear was delivered to Smith-kline Beecham Clinical Laboratories, Inc. Smithkline then sent the slide to Shutze & Techman, P.A., the predecessor corporation of Premiere Medical Laboratories, P.A., for interpretation. In a June 1994 report, a cytotechnologist at Shutze & Techman interpreted the slide as “normal” and “within normal limits.” Because the slide was interpreted as normal, no other cytologist or pathologist reviewed it, nor was the slide chosen for a random oversight review. Later expert testimony revealed that the interpretation was “egregious” and that the cytopathological evidence of malignancy was as “big as a house.” Mrs. Nehme was diagnosed with cervical cancer in February 1997, of which she died in December 1997.

In September 1999, over five years after the pap smear report, petitioner Naji Nehme filed a medical malpractice and wrongful death complaint alleging that the cytotechnologist had misinterpreted the pap smear and that a proper interpretation would have revealed the existence of the malignancy. The petitioner sought damages on behalf of the estate, himself, and the Nehmes’ six minor children. The respondents Smithkline, Premier, and Dr. Shutze moved for summary judgment, arguing that the case was barred by the four-year statute of repose as set forth in section 95.11(4)(b), Florida Statutes, which requires that any medical malpractice action be commenced no later than four years from the date of the incident or occurrence. The trial court granted summary judgment in favor of the respondents.

On appeal, the petitioner argued that the statute of repose should be extended to the full seven years allowed by section 95.11(4)(b) in cases of fraud, concealment, or intentional misrepresentation of fact. The Fifth District disagreed and affirmed in accordance with Myklejord v. Morris, 766 So.2d 1160 (Fla. 5th DCA 2000) (plurality opinion), review denied, 789 So.2d 347 (Fla.2001). Nehme, 822 So.2d at 522. The Fifth District noted, however, that Myklejord is not binding precedent because only one of the judges on the panel concurred in its reasoning. Nehme, 822 So.2d at 521-22. The Fifth District also recognized that both the plurality and the dissent in Myklejord relied on Nardone v. Reynolds, 333 So.2d 25 (Fla.1976). Therefore, because the “language in Nardone can be read to support a conclusion either way, as evidenced by Myklejord,” the Fifth -District certified the question of great public importance. Nehme, 822 So.2d at 522.

II.

At issue is whether the term “concealment” as used in section 95.11(4)(b), Florida Statutes, encompasses negligent diagnosis by a medical provider. As an initial matter, however, the parties disagree as to whether the pre-1996 or post-1996 version of section 95.11(4)(b) applies in this case. The petitioner relies on the post-1996 version of the statute, while the respondents argue the pre-1996 version should apply. The Fifth District relied on the posh-1996 version. See Nehme, 822 So.2d at 521 (citing § 95.11(4)(b), Fla. Stat (2000)). The pre-1996 version of the statute provides:

An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued. An “action for medical malpractice” is defined as a claim in tort or in contract for damages because of the death, injury, or monetary loss to any person arising out of any medical, dental, or surgical diagnosis, treatment, or care by any provider of health care. The limitation of actions within this subsection shall be limited to the health care provider and persons in privity with the provider of health care. In those actions covered by this paragraph in .which it can be-shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury within the Jp-^year period, the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence, but in no event to exceed 7 years from the date the incident giving rise to the injury occurred.

§ 95.11(4)(b), Fla. Stat. (1993) (emphasis added). The post-1996 version does not contain the above-underlined phrase. See § 95.11(4)(b), Fla. Stat. (Supp.1996). The law that enacted the amendment in 1996 provided: “this act shall take effect July 1, 1996, and shall not apply to causes of action arising from acts, events, or occurrences that take place before that date.” Ch. 96-167, § 2; Laws of Fla. The “act, event, or occurrence” which the cause of action arose out of in this case was the alleged negligent diagnosis of Mrs. Nehme’s pap smear slide in 1994. Therefore, the pre-1996 version of section 95.11(4)(b) applies.

As quoted above, section 95.11(4)(b), Florida Statutes (1993), extends the normal four-year statute of repose in a medical malpractice action to seven years in cases of “fraud, concealment, or intentional misrepresentation of fact.” The statute does not define “concealment,” and the parties disagree about its meaning. The petitioner contends that the term “concealment” does not require knowledge, while the respondents argue that it does.

“Because the statute does not define the term [concealment], the Court must resort to canons of statutory construction in order to derive the proper meaning.” Seagrave v. State, 802 So.2d 281, 286 (Fla.2001). ■ “One of the most fundamental tenets of statutory construction requires that we give statutory language its plain and ordinary meaning, unless words are defined in the statute or by the clear intent of the legislature.” Green v. State, 604 So.2d 471, 473 (Fla.1992). “When necessary, the plain and ordinary meaning of words can be ascertained by reference to a dictionary.” Seagrave, 802 So.2d at 286; see also L.B. v. State, 700 So.2d 370, 372 (Fla.1997) (stating that “a court may refer to a dictionary to ascertain the plain and ordinary meaning which the legislature intended to ascribe to the term”).

To extend the repose period, the statute requires that “concealment” prevent “the discovery of the injury.” “Conceal” is defined as (1) to prevent disclosure or recognition of; and (2) to place out of sight. Merriam Webster’s Collegiate Dictionary 238 (10th ed.1994). More specifically, “concealment” is defined as (1) the act of refraining from disclosure; esp. an act by which one prevents or hinders the discovery of something; and (2) the act of removing from sight or notice; hiding. Black’s Law Dictionary 282 (7th ed.1999). Under these definitions, concealment connotes knowledge.

Other tools of statutory construction also lead us to conclude that concealment implies knowledge. Under the doctrine of noscitur a sociis (a word is known by the company it keeps), one examines the other words used within a string of concepts to derive the legislature’s overall intent. See Cepcot Corp. v. Dept. of Bus. & Prof'l Reg., 658 So.2d 1092, 1095 (Fla. 2d DCA 1995); Carraway v. Armour & Co., 156 So.2d 494 (Fla.1963). Here, the string of concepts in the statute is “fraud, concealment, or intentional misrepresentation of fact.” “Fraud” is generally defined as (1) a knowing misrepresentation of the truth or concealment of a material fact to induce another to act to his or her detriment; and (2) a misrepresentation made recklessly without belief in its truth to induce another person to act. Black’s Law Dictionary 670 (7th ed.1999). “Intentional misrepresentation of fact” is the intentional (done with the aim of carrying out the act) act of making a false or misleading statement about something. Id. at 814, 1016. Applying the doctrine of noscitur a sociis, because both “fraud” and “intentional misrepresentation of fact” involve a level of knowledge or intent, we conclude that the legislative intent was to extend the repose period when intentional acts prevent discovery of the injury. A negligent diagnosis, without more, does not constitute concealment. Here, no evidence suggested that the respondents knew the 1994 slide reading was erroneous.

III.

Although the Fifth District did not discuss statutory construction, it reached the same conclusion. The Fifth District followed Myklejord, 766 So.2d at 1160, a plurality opinion from that district that considered the same issue. In Myklejord, the appellant’s cancer was not detected by the appellee health care providers. The appellant claimed the health care providers were negligent in failing to diagnose the cancer. Appellant’s claim was filed more than six years after the alleged negligent act occurred. Judge Pleus found:

The complaint does not set forth any facts which would establish a basis to extend the statute of repose beyond four years.
“Concealment” required to extend the statute of repose in medical malpractice matters to seven years requires fraud, intent to conceal or some other active element. Nardone v. Reynolds, 333 So.2d 25 (Fla.1976). See also Almengor v. Dade County, 359 So.2d 892 (Fla. 3d DCA 1978). Concealment also requires knowledge (by the tortfeasor) about plaintiffs condition which is not conveyed to plaintiff. Nardone, 333 So.2d at 37. In such instances, the plaintiff is being actively misled about his or her true condition by the tortfeasor. Conceptually, this intentional withholding of information acts to delay plaintiffs ability to discover the tortfeasor’s wrongdoing or the nature of the injury itself.
We find no rational basis for making negligent diagnosis subject to a seven-year repose period where other acts of simple negligence are governed by a four-year period.

Myklejord, 766 So.2d at 1162. Judge Sa-waya concurred in result only, and Judge Dauksch dissented. Judge Dauksch also relied on Nardone but came to the opposite conclusion:

It is clear that the Florida Supreme Court [in Nardone ] intends that a duty is to be imposed on a physician when an adverse condition (malignant cells on a slide for example) is either known to the doctor or is readily available to him/her through “efficient diagnosis.” It is undisputed that the diagnosis here by Morris was inefficient. See also Mangoni v. Temkin, 679 So.2d 1286 (Fla. 4th DCA), rev. dismissed, 686 So.2d 582 (Fla.1996), in which the court held that the act giving rise to the negligence action may also be the act which gives rise to the fraudulent concealment action which would extend the Statute of Repose to up to seven years.

Myklejord, 766 So.2d at 1163 (Dauksch, J., dissenting). Thus, the dissent would have answered the issue in the affirmative to “say that a negligent mis-diagnosis or failure to diagnose can constitute concealment as contemplated by the statute.” Id.

Both the plurality and the dissent in Myklejord relied on Nardone. In Nar-done, a boy had several brain operations and other procedures in early 1965. By the time he was discharged in July of that year, he was blind and comatose and had suffered irreversible brain damage. His parents filed a malpractice action in May of 1971. The medical providers argued the suit was untimely because it was not filed within the four-year limitations period. The Fifth Circuit Court of Appeals certified four questions to this Court, and we concluded in part:

After careful analysis of the variant views of other jurisdictions in this country and previous views espoused by this Court and other Florida Appellate Courts, we hold that, although generally the fraud must be of such a nature as to constitute active concealment to prevent inquiry or elude investigation or to mislead a person who could claim a cause of action, we do recognize the fiduciary, confidential relationship of physician-patient imposing on the physician a duty to disclose; but, this is a duty to disclose known facts and not conjecture and speculation as to possibilities. The necessary predicate of this duty is knowledge of the fact of the wrong done to the patient.

Nardone, 333 So.2d at 39 (emphasis added). The respondents rely on this language to support their position. The petitioner, on the other hand, relies on language immediately following this passage, as well as our conclusion near the end of the opinion:

Where an adverse condition is known to the doctor or readily available to him through efficient diagnosis, he has a duty to disclose and his failure to do so amounts to a fraudulent withholding of the facts, sufficient to toll the running of the statute. But, where the symptoms or the condition are such that the doctor in the exercise of reasonable diligence cannot reach a judgment as to the exact cause of the injury or condition and merely can conjecture over the possible or likely causes, he is under no commanding duty to disclose a conjecture of which he is not sure. Therefore, his silence as to a possible condition or cause which he is unable to verify in the exercise of reasonable diligence does not standing alone constitute sufficient fraudulent withholding to toll the statute of limitations.
... As above explained and pursuant to the peculiar facts of this case above described, the third question is answered in the negative. Although the confidential and fiduciary nature of the doctor-patient relationship does impose a duty on the physician to disclose known causes (or causes that should be known through exercise of reasonable care and due diligence) readily available to him through efficient diagnosis and failure to do so constitutes sufficient concealment to toll the statute, there is no concomitant duty imposed on the physician to relate all merely possible or likely causes of the injury.

Id. at 39-40 (emphasis added).

We note two points about Nardone. First, Nardone did not interpret the language in section 95.11(4)(b). That language was not included until 1975. See ch. 75-9 § 7, Laws of Fla. Instead, Nardone discussed and interpreted the Florida doctrine of tolling limitations by fraudulent concealment. Therefore, Nardone is not precisely on point. Second, the language from Nardone on which the petitioner relies can be reconciled with Nardone’s holding and the language on which respondents rely. Nardone holds that a doctor has a duty to disclose an adverse condition that is known or is readily available through efficient diagnosis. This “efficient diagnosis” language is predicated on the doctor’s “knowledge of the fact of the wrong done to the patient.” Nardone, 333 So.2d at 39 (emphasis added). Here, the respondents had no knowledge of the fact of the wrong done to the patient. Cf. Mangoni v. Temkin, 679 So.2d 1286, 1288 (Fla. 4th DCA 1996) (finding that where doctors knew of an adverse condition but failed to disclose its existence to the claimant, the doctors’ silence may have effectively concealed their own neglect of a medical condition that demanded attention). One cannot conceal what one does not know.

IV.

At least one Florida court has interpreted the term “concealment” as used in the statute differently. In Hernandez v. Amisub, 714 So.2d 539 (Fla. 3d DCA 1998), the plaintiff alleged that a hospital was negligent in leaving a pad inside his body following surgery, and that the hospital had misrepresented material facts concerning the pad count. Upon remand and the close of the plaintiffs case, the hospital moved for a directed verdict, asserting that the plaintiff had proved neither concealment nor intentional misrepresentation, which precluded the seven-year statute of repose. The trial court granted the hospital’s motion. Id. at 541. On appeal, the Third District reversed:

Notwithstanding the hospital’s assertion to the contrary, there was no need for Hernandez to prove that the Hospital or its employees had actual knowledge that a pad had been left inside Hernandez’ abdomen, in order for Hernandez’ claim to succeed. There is no indication in section 95.11(4)(b) that the term “concealment” includes a scienter element. The term “conceal” does not necessarily infer intent or deliberation. Indeed, given the facts here, it is quite unlikely — even unthinkable — that anyone would intentionally or deliberately “conceal” a foreign object in a patient’s body. Moreover, even under an “intentional misrepresentation” claim, the misrepresentation need not be deliberate. Misrepresentation may also be shown by carelessness or recklessness as to the truth of the matter asserted. See Ocean Bank of Miami v. Inv-Uni Investment Corp., 599 So.2d 694 (Fla. 3d DCA 1992).
We believe that Hernandez proved “concealment” or, alternatively, “intentional misrepresentation of fact” here. The specific misrepresentation was the Hospital’s report that it had performed an accurate count of lap pads at the conclusion of Hernandez’ operation when it had not. Not only was the count not properly performed, as evidenced by the pad left inside Hernandez’ body, but the Hospital demonstrated reckless disregard for the truth by its false report indicating that the count had been properly performed.

Hernandez, 714 So.2d at 541-42 (footnotes omitted). The Third District concluded that “[bjecause [the plaintiff] produced sufficient evidence to show that the Hospital concealed evidence or intentionally misrepresented facts, [the plaintiff] was brought within the extended seven-year statutory period of repose in section 95.11(4)(b).” Hernandez, 714 So.2d at 542.

The Third District defined “conceal” as “to hide or withdraw from observation; to withhold knowledge of.” Although this definition requires that the person concealing the information know about the information withheld, the Third District stated that “there was no need for Hernandez to prove that the Hospital or its employees had actual knowledge that a pad had been left inside Hernandez’s abdomen, in order for Hernandez’s claim to succeed.” Hernandez, 714 So.2d at 541. We find that Hernandez read the definition of the term “concealment” too broadly and thus erred in reasoning that no knowledge is required to prove concealment under section 95.11(4)(b).

V.

Finally, we recognize that the medical malpractice statute of repose may, in some cases, extinguish a cause of action before a claimant discovers it. The very purpose of a statute of repose is to extinguish valid causes of action, sometimes before they even accrue. See Kush v. Lloyd, 616 So.2d 415, 421 (Fla.1993) (stating that a statute of repose “eliminate[s] a cause of action before it has accrued”). “In contrast to a statute of limitations, a statute of repose precludes a right of action after a specified time which is measured from the incident of malpractice ... rather than establishing a time period within which the action must be brought measured from the point in time when the cause of action accrued.” University of Miami v. Bogorff, 583 So.2d 1000, 1003 (Fla.1991). Although, as in this case, a statute of repose may cause injustice by eliminating a valid cause of action, statutes of repose address a countervailing concern — that is, the difficulty in defending against a lawsuit many years after the conduct at issue occurred. As time passes, memories fade, documents are destroyed or lost, and witnesses disappear. See Kush, 616 So.2d at 421-22 (“In creating a statute of repose which was longer than the two-year statute of limitation, the legislature attempted to balance the rights of injured persons against the exposure of health care providers to liability for endless periods of time.”). We have upheld section 95.11(4)(b) as constitutional, finding that the statutory repose period for medical malpractice actions does not violate the constitutional requirement of access to courts, even when applied to a cause of action which did not accrue until after the period had expired. Carr v. Broward County, 541 So.2d 92, 95 (Fla.1989); see also Pullum v. Cincinnati, Inc., 476 So.2d 657, 659-60 (Fla.1985) (recognizing that statutes of repose are a valid legislative means to restrict or limit causes of action in order to achieve certain public interests), appeal dismissed, 475 U.S. 1114, 106 S.Ct. 1626, 90 L.Ed.2d 174 (1986).

VI.

For the reasons stated, we answer the certified question in the negative and hold that the term “concealment” as used in section 95.11(4)(b), Florida Statutes, does not encompass negligent diagnosis by a medical provider. The decision of the district court of appeal is approved.

It is so ordered.

ANSTEAD, C.J., and WELLS, PARIENTE, QUINCE, and BELL, JJ.„ concur.

ANSTEAD, C.J., concurs specially with an opinion, in which PARIENTE, J., concurs.

LEWIS, J., recused.

ANSTEAD, C.J.,

specially concurring.

While I concur in the majority opinion because its reasoning appears sound, I do so with some concern about the fundamental fairness and lack of civil “due process” that appears to accompany our holding. The majority opinion refers to evidence that the misinterpretation of the pap smear slide was “egregious” because the malignancy was as “big as a house.” Nevertheless, the deceased was told that the slide was “normal” and she, of course, had no reason to know that report was false, and that the opposite was true. Taken to its natural conclusion our holding means that an innocent person who suffers devastating consequences through an egregious mistake by a medical provider may lose her entitlement to civil justice even before she becomes aware that a wrong was committed. That is precisely the effect of the Legislature’s enactment of the statute of repose we construe today, and it is important that this effect be known.

Limitation periods are usually predicated upon the concept that people should not be allowed to sleep upon their rights and that society needs to get on with its business without the indefinite fear of legal action. But a key ingredient in that concept is that people have notice that they have been harmed by the wrong of another. Indeed, it appears by the provision we interpret today that the Legislature wanted to be sure that the information as to mistake or injury was not withheld from a victim by the offender so as to prevent the victim from knowing what had happened to her. However, under the statutory scheme we construe today, it matters not that the innocent victim had no notice or that the misinterpretation was egregious. The arguably short period of time provided under this statute of repose simply ran out six months after the victim died.

PARIENTE, J., concurs.

      . That question was:
      Under the Florida doctrine of tolling limitations by fraudulent concealment, where there is knowledge by the parents of the incompetent minor of the physical-mental condition but not the cause as set forth in I above, does non-disclosure by one or more of the alleged malpractitioners of possible causes of the such [sic] condition unaccompanied by misrepresentation toll the statute: (a) as to all of the alleged malpractitioners? (b) as to individual alleged malpractitioners who did not participate in the asserted ‘concealment’?

        Nardone, 333 So.2d at 27-28. Nardone answered this question in the negative.

      . We state no opinion about whether the facts in Hernandez proved either fraud or intentional misrepresentation of fact.

      . Art. I, § 21, Fla. Const.

      . Respondents also argue that the “concealment exception” to the statute of repose period is not even applicable in this case because the petitioner believed, well within the four-year repose period, that a "doctor or somebody did something wrong.” Neither the trial court nor the district court addressed this issue and, given our resolution of the certified question, we also decline to address it.