author: WALLACE, Judge.

text:
    Dwayne R. BOETTCHER; Larry E. Cheek; Karl T. and Phyllis J. Coles; Michael T. and Lara M. Coles; Gian A. and Susan S. Cossa; Gian A. Cossa; Susan S. Cossa; Linda and Joseph Costello; DNA Data Systems; Albert C. and Laura A. Damico; Paul and Diana Dexter; David Dunn; Robert Eckardt; Susan Eipert; Donald J. Farris; David Fenlon; Thomas Fountain; Judith J. Gaglani; Eugene Harley; Raghab Inkibar; Abdulkader M. Inkidar and Kathy J. Inkidar; Inkidar Enterprises, Inc.; Craig L. and Lisa J. Kaufman; Mark Stuart Keeler; Robert J. King, Jr.; Laura Irene Lizotte; Cherrie B. McKenzie; Dennis Noon; Dean W. Oswald; Jose Romeo Posada; Sydney B. Self, Jr.; Shi Jian; O. Phillip Smith; David Storf; Brian Troxell; James Varanelli; Mary A. and Gary W. Vinesett; Peter Williams; Daniel J. Ziegler, Appellants, v. IMC MORTGAGE COMPANY, Appellee.
    No. 2D03-3101.
    District Court of Appeal of Florida, Second District.
    May 12, 2004.

      Richard E. Brodsky of Brodsky & Mul-lin, P.A., Coconut Grove, for Appellants.
    John R. Hamilton of Foley & Lardner, Orlando; and Scott D. Richburg and Jessie L. Harrell of Foley & Lardner, Jacksonville, for Appellee.
   WALLACE, Judge.

In this case, we are called upon to determine whether the circuit court properly entered a final summary judgment in a dissenters’ rights action filed pursuant to section 607.1320, Florida Statutes (1999). IMC Mortgage Company, a Florida corporation (IMC), filed the action against IMC shareholders (the dissenters) who had opposed the sale of a substantial amount of IMC’s assets to a subsidiary of Citigroup, Inc., and then perfected their rights under the dissenters’ rights statute. On motion filed by IMC, the circuit court entered a final summary judgment that determined the “fair value” of the dissenters’ IMC shares on the relevant date to be $0.035 per share. We conclude that IMC failed to meet its burden on summary judgment of proving that the fair value of the dissenters’ shares was $0.035 per share as it maintained. Therefore, we reverse the final summary judgment, and we remand this case to the trial court for further proceedings.

Facts and Procedural History

IMC is a publicly held corporation. On November 15,1999, IMC sold a substantial amount of its assets to Citifinancial Mortgage Company, a subsidiary of Citigroup, Inc. Pursuant to section 607.1202, a majority of the shareholders of IMC were required to approve the sale. At a vote taken on November 12, 1999, the requisite majority of shareholders voted to approve the proposed transaction.

IMC shareholders who elected to dissent from the sale had dissenters’ rights pursuant to section 607.1320. A number of shareholders served notice of their intent to dissent from the sale and demanded payment of the fair value of their IMC shares. These shareholders also deposited or agreed to deposit all of their share certificates with IMC. The relevant date for the determination of the fair value of the dissenters’ shares was November 11, 1999, the day prior to the vote for approval of the sale.

IMC filed an action in the circuit court pursuant to section 607.1320(7) to determine the fair value of the dissenters’ shares. The dissenters answered and requested a determination of the fair value of them IMC shares as of the relevant date and judgment against IMC for the amount of the fair value of each of the dissenters’ shares.

IMC subsequently moved for summary judgment, contending that the fan-value of IMC stock on the relevant date was $0,035 per share. In support of its motion, IMC relied on the allegations of its complaint that had been verified by its president. Pertinent to the issue of the fair value of its shares, the complaint alleged facts purporting to establish that $0,035 per share was the closing price for IMC stock on the relevant date:

4. IMC is a publicly owned corporation and its shares are traded on an interdealer quotation system.
13. On November 11, 1999, the relevant date for determination of “fair value” of dissenters’ shares pursuant to § 607.1301(2), Fla. Stat. (1999), the stock closed at $00,035 on volume of 756,100.
15. During the approximate one month prior to November 11, 1999, IMC’s shares traded in a closing price range from $00.0271 to $00,054, on daily volume ranging from 756,100 to 25,100 shares.

Opposing IMC’s motion for summary judgment, the dissenters did not dispute the allegations of IMC’s complaint concerning the closing price of IMC’s stock on the relevant date or the closing price range during the one-month period prior to that date. The dissenters argued, instead, that the closing price of IMC stock on the relevant date was negatively affected by the impending transaction. In support of their position, the dissenters relied on the affidavit of Stephen K. Halpert, a law professor who was offered as an expert in the fields of corporate law, securities regulation, and financial markets. In his affidavit, Halpert opined:

5. It is my expert opinion that the closing market price of IMC common stock the day before the shareholder vote on the Citigroup Sale, which IMC asserts is 3.5 cents per share, is not indicative of and does not determine “fair value” under the Act for the purpose of compensating dissenting shareholders under the Act. To hold otherwise would be inconsistent with the text, purpose and history of the Act.
8. In particular, it is apparent to me that the closing price of IMC shares on the OTCBB on November 11, 1999 was primarily determined by the anticipated effect of the Citigroup Sale, rather than the intrinsic value of the IMC [sic]. According to the proxy statement dated September 29, 1999 that was circulated by the management of IMC to shareholders to solicit their votes to approve the Citigroup Sale (the “IMC Proxy”), if the transaction were not approved, IMC would file for bankruptcy, which, according to management, would result in IMC shareholders losing their entire interest. Given management’s representation of the alleged alternative in the IMC Proxy, shareholder approval was likely to be regarded by the market as virtually certain.
9. Moreover, because dissenters’ rights are only available to shareholders entitled to vote, and because voting on the Citigroup Sale transaction was limited to IMC shareholders of record on September 17, 1999, a purchaser of IMC shares in the OTCBB market on November 11, 1999 would not be entitled to dissent and be paid “fair value” for his shares. Fla. Statutes § 607.1302(b) [sic]. Thus, even a buyer who believed on November 11, 1999 that IMC was worth more than represented by management in the proxy would be unwilling to pay a price greater than the maximum possible residual value of IMC shares after the Citigroup Sale transaction. Since the relevant section of the Act defines “fair value” so as to exclude the anticipated effects of the challenged corporate action (unless exclusion would be inequitable), determining the “fair value” of IMC’s common stock on the basis urged by IMC would clearly be violative of the Act, and it would be highly inequitable if the Court were to apply the valuation method urged by IMC.
11. For the foregoing reasons, granting Plaintiff summary judgment on the basis of the closing market price on November 11, 1999 would bind defendants to the consequences of the Citigroup Sale notwithstanding their dissent, and would deny them the remedy of a fair valuation as intended by the Florida Business Corporation Act. Instead, to fulfill the requirements of the Act, the Court must conduct a factual inquiry to ascertain the “fair value” of IMC common stock, exclusive of any depreciation that resulted from the transaction.

Relying upon Halpert’s affidavit, the dissenters argued that IMC was not entitled to a summary judgment because it had failed to establish the fair value of its shares on the relevant date.

After a hearing, the circuit court granted IMC’s motion. In its final summary judgment, the circuit court accepted IMC’s evidence of value and found that “[t]he fan-value of Defendants’ [the dissenters’] shares of IMC common stock on November 11, 1999, was $0,035 per share.” From the final summary judgment, the dissenters have taken this appeal.

Summary Judgment

A final order granting a summary judgment is subject to de novo review. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). A party moving for a summary judgment must conclusively demonstrate that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law. Fla. R. Civ. P. 1.510; Holl v. Talcott, 191 So.2d 40, 43 (Fla.1966); First N. Am. Nat’l Bank v. Hummel, 825 So.2d 502, 503 (Fla. 2d DCA 2002). Once the moving party meets its burden, then the party opposing entry of a summary judgment must prove the existence of genuine triable issues. Roll, 191 So.2d at 43-44; First N. Am. Nat’l Bank, 825 So.2d at 503.

In this case, the allegations of IMC’s verified complaint purported to establish the fair value of its shares on the relevant date. On the other hand, the dissenters did not submit any evidence concerning the fair value of IMC’s shares. Instead, the dissenters offered an affidavit that challenged IMC’s methodology as insufficient to establish the fair value of its shares within the meaning of the statute. Under this state of the record, the issue presented is whether IMC met its burden of demonstrating its entitlement to summary judgment.

IMC argues that the Halpert affidavit was insufficient to withstand summary judgment. As IMC correctly observes, Professor Halpert did not offer an opinion concerning what the preferable method of valuation would be or what value that method would produce. Citing Lufthansa German Airlines Corp. v. Mellon, 444 So.2d 1066 (Fla. 3d DCA 1984), IMC argues that the dissenters “cannot create a genuine issue of material fact sufficient to preclude summary judgment by attempting to create facts within IMC’s unrebut-ted evidence.” However, before deciding the summary judgment issue, we must first consider the meaning of the term “fair value” as it is used in section 607.1301(2), Florida Statutes (1999).

Fair Value

Shareholder notice and consent requirements and dissenters’ rights statutes “are intended to insure that directors do not fundamentally change the nature of the shareholders’ investments without the check and balance of informed shareholder approval, and the opportunity for dissenters to withdraw from the corporation.” S. End Improvement Group, Inc. v. Mulliken, 602 So.2d 1327, 1332 (Fla. 4th DCA 1992). A critical part of Florida’s statutory scheme giving dissenters the right to withdraw from the corporation is section 607.1301(2), which defines the term “fair value” for purposes of the dissenters’ rights statute: “ ‘Fair value,’ with respect to a dissenter’s shares, means the value of the shares as of the close of business on the day prior to the shareholders’ authorization date, excluding any appreciation or depreciation in anticipation of the corporate action unless exclusion would be inequitable.”

Research discloses no reported Florida cases interpreting the term “fan-value” as used in the dissenters’ rights statute. Courts in other jurisdictions have generally rejected the notion that “fair value” is synonymous with “fair market value.” See Pueblo Bancorporation v. Lindoe, Inc., 63 P.3d 353, 363 (Colo.2003); Tri-Continental Corp. v. Battye, 74 A.2d 71, 72 (Del.1950); Wenzel v. Hopper & Galliher, P.C., 779 N.E.2d 30, 38 (Ind.Ct. App.2002); First W. Bank Wall v. Olsen, 621 N.W.2d 611, 617 (S.D.2001); Matthew G. Norton Co. v. Smyth, 112 Wash.App. 865, 51 P.3d 159, 163-65 (2002); HMO-W, Inc. v. SSM Health Care Sys., 234 Wis.2d 707, 611 N.W.2d 250, 255 (2000). Pertinent to our consideration of the meaning of the term “fair value” is the statutory requirement that the valuation process must exclude “any appreciation or depreciation in anticipation of the corporate action unless exclusion would be inequitable.” § 607.1301(2), Fla. Stat. (1999). The requirement to exclude both positive and negative effects of the impending transaction from the valuation process follows from the statutory criterion of fair value instead of fair market value. As one commentator explains:

Statutes establishing dissenters’ rights and alternative remedies such as judicial buy-outs uniformly refer to “fair” price as opposed to “fair market” price. The rationale underlying this language is the recognition that the events that trigger the valuation process may either disrupt or preclude the market for the shares, if in fact such a market ever existed — as in the case of a closely held corporation.... Courts generally have noted that, these statutory provisions have been enacted for the benefit of minority shareholders and that minority shareholders ought not to be punished in the valuation process.

Charles W. Murdock, The Evolution of Effective Remedies for Minority Shareholders and Its Impact Upon Valuation of Minority Shares, 65 Notre Dame L.Rev. 425, 484 (1990) (footnotes omitted). For these reasons, the omission to exclude market-driven forces resulting from anticipation of the impending transaction would not be in accord with the goal of ascertaining the fair value of the shares to be valued.

In Armstrong v. Marathon Oil Co., 32 Ohio St.3d 397, 513 N.E.2d 776 (1987), the Supreme Court of Ohio had occasion to construe a dissenters’ rights statute requiring payment of the “fair cash value” of the dissenters’ shares. The Ohio statute included the following mandate: “In computing such fair cash value, any appreciation or depreciation in market value resulting from the proposal submitted to the directors or to the shareholders shall be excluded.” Id. at 784 n. 11. Concerning this requirement, the Ohio court said:

[T]he statute requires that any effects of the subject transaction which are caused by either appreciation or depreciation of the market price must be removed from such price. Admittedly, merely adopting the market price established by the trading activity on the day before the vote to initiate the merger may not suffice to fully eliminate such effects. However, Ohio’s statutory mandate is sufficiently broad to allow inquiry into such factors as may have created a price disparity. The valuation remedy clearly is a remedy that does not give dissenting shareholders any element of value attributable to the transaction from which they have dissented. On the other hand, any factors relating to the merger which have artificially depressed the stock’s price ought not to create a windfall for the tenderer at the expense of the dissenter.

Id. at 788 (footnotes omitted). For similar reasons, absent factors making exclusion inequitable, the determination of the “fair value” of IMC’s shares in the circuit court required the exclusion of any appreciation or depreciation in IMC’s shares based upon anticipation of the consummation of the proposed asset sale.

Analysis

In light of the meaning of “fair value” within the dissenters’ rights statute, we conclude that IMC was not entitled to a summary judgment. In order to meet its burden of demonstrating its entitlement to summary judgment, IMC was required to establish a prima facie case that the fair value of IMC shares on the relevant date was, as it contended, $0.035 per share. The dissenters were not required to prove the existence of genuine issues of material fact unless IMC first met its burden. See Holl, 191 So.2d at 43-44; First N. Am. Nat’l Bank, 825 So.2d at 503.

IMC’s verified complaint did not address the factor of excluding the appreciation or depreciation in the value of its shares in anticipation of the proposed transaction. Moreover, IMC did not suggest in its verified complaint or otherwise that such exclusion would be inequitable. The only evidence IMC offered on the valuation issue was the closing price of its shares on the relevant date and the closing price range of the shares during the one-month period prior to the relevant date. For the purpose of determining the fair value of IMC’s shares, the exclusion of any appreciation or depreciation in anticipation of the proposed transaction was required by section 607.1301(2) unless exclusion would be inequitable. Since the closing price of IMC shares on the relevant date did not exclude appreciation or depreciation in anticipation of the proposed transaction and IMC did not contend that exclusion was inequitable, IMC’s submission of evidence of the closing price of its shares on the relevant date was insufficient to establish a prima facie case on the issue of fair value. Therefore, IMC failed to carry its burden of demonstrating its entitlement to summary judgment.

For this reason, we reverse the final summary judgment in favor of IMC, and we remand this case to the circuit court for further proceedings.

Reversed and remanded.

FULMER and KELLY, JJ., Concur.

      . The facts, which are drawn from the pleadings, answers to interrogatories, documentary evidence, and supporting affidavits, are reviewed in the light most favorable to the dissenters as the nonmoving party. See Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256, 259 (Fla.2002).

      . IMC did not file an affidavit in support of its motion for summary judgment. A verified complaint may serve the same purpose as an affidavit supporting or opposing a motion for summary judgment. See Rinzler v. Carson, 262 So.2d 661, 665 (Fla.1972); Booth v. Bd. of Pub. Instruction of Dade County, 67 So.2d 690, 691 (Fla.1953). However, in order to be so considered, the allegations of the verified complaint must meet the requirements of the rule governing supporting and opposing affidavits. See Fla. R. Civ. P. 1.510(e); Cent Bank & Trust Co. v. Davis, 102 So.2d 600, 603-04 (Fla.1958). In this case, the dissenters did not raise a procedural objection to the adequacy of IMC's verified complaint under the rule.

      .Although the dissenters did not dispute IMC's allegations about the closing price of IMC's shares, they did contend that IMC was not entitled to a summary judgment solely on the basis of the closing stock market price on the relevant date because IMC's shares were not traded on an efficient market. The dissenters offered evidence that, on the relevant date, IMC's shares were not traded on a national securities exchange or on the NASDAQ Stock Market (NASDAQ). IMC's stock was de-listed from the NASDAQ in April 1999. Thereafter, IMC's stock was traded on the Over the Counter Bulletin Board (the OTCBB). According to the dissenters, the market for IMC's shares was "illiquid,'' and the closing price of IMC stock on the OTCBB was not a reliable measure of value. The dissenters contended that these matters created a genuine issue of material fact concerning whether IMC stock was traded on an efficient market. According to the dissenters, this issue precluded the entry of a summary judgment for IMC. Our resolution of this case makes it unnecessary for us to address this issue.

      . The statutory definition of "fair value” has been amended effective October 1, 2003. Ch.2003-283, § 21, at 2914, § 44, at 2931, Laws of Fla. The amendment is not applicable to this case.

      . "Florida’s dissenters’ rights statutes are based, in part, on the Revised Model Business Corporation Act (RMBCA), adopted by the American Bar Association in 1984, and relevant portions of the Georgia Business Code (1989).” Michael V. Mitrione, Dissenters' Rights, in Florida Corporate Practice § 11.1 (Fla. Bar CLE 4th ed.2002). Therefore, we may look for guidance to cases from other jurisdictions that have adopted the provisions of the RMBCA in substantially the same form. We may also look to the law of Delaware for guidance because “[t]he Florida courts have relied upon Delaware corporate law to establish their own corporate doctrines." Connolly v. Agostino’s Ristorante, Inc., 775 So.2d 387, 388 n. 1 (Fla. 2d DCA 2000) (quoting Int’l Ins. Co. v. Johns, 874 F.2d 1447, 1459 a. 22 (11th Cir. 1989)).

      . We do not address the separate but related issue of whether evidence of market price excluding any appreciation or depreciation in anticipation of the impending sale, by itself, would have satisfied IMC's initial burden on motion of summary judgment had IMC offered such evidence. We note that courts in other jurisdictions suggest that for purposes of the dissenters' rights statute, the market price of the stock should not be used as the sole measure of its value. Delaware cases have equated "fair value” to " 'the true or intrinsic value’ of the shareholders' proportionate interest in the company, valued on a going-concern rather than a liquidated basis.” Cede & Co. v. Technicolor, Inc., 542 A.2d 1182, 1186 (Del.1988); see also Cavalier Oil Corp. v. Harnett, 564 A.2d 1137, 1142 (Del. 1989); Atl. States Constr., Inc. v. Beavers, 169 Ga.App. 584, 314 S.E.2d 245, 249 (1984); Independence Tube Corp. v. Levine, 179 Ill. App.3d 911, 129 Ill.Dec. 162, 535 N.E.2d 927, 931 (1988); Sieg Co. v. Kelly, 568 N.W.2d 794, 798 (Iowa 1997); Lucas v. Pembroke Water Co., 205 Va. 84, 135 S.E.2d 147, 150 (1964). Accordingly, courts should consider "proof of value by any techniques or methods which are generally considered acceptable in the financial community and otherwise admissible in court.” Weinberger v. UOP, Inc., 457 A.2d 701, 713 (Del.1983). This may include net asset values, market price, earnings, and the like. Id. at 712. Under this view, the market price of a company's stock is only one relevant factor among many to be considered in determining the fair value of dissenting stockholders’ shares. Tri-Continental Corp., 74 A.2d at 72.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    J.B., Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D03-2729.
    District Court of Appeal of Florida, Third District.
    May 12, 2004.
    llene Herscher, for appellant.
    Calianne P. Lantz; Hillary S. Kambour, for appellee.
    Before GERSTEN, GREEN, and SHEPHERD, JJ.
   PER CURIAM.

We affirm the order terminating the father’s parental rights. Contrary to the father’s assertions on appeal, the State amply established, by clear and convincing evidence, that he had abused, neglected or abandoned his children and/or that the children were at substantial risk of future abuse, neglect or abandonment. See Gaines v. Dep’t of Children & Families, 711 So.2d 190, 192 (Fla. 5th DCA 1998); see also S.D. v. Dep’t of Children & Family Servs., 805 So.2d 10, 11-14 (Fla. 3d DCA 2001); In the Interest of D.R., 812 So.2d 447, 447-48 (Fla. 2d DCA 2002); M.B. v. Dep’t of Children & Families, 739 So.2d 716, 717 (Fla. 5th DCA 1999).

Affirmed.


author: ALTENBERND, Chief Judge.

text:
    DEPARTMENT OF REVENUE, o/b/o Amelia PRESTON, Appellant, v. James (Willie) CUMMINGS, Appellee. Department of Revenue, o/b/o Tina L. Cummings, Appellant, v. Henry J. Stafford, II, Appellee. Department of Revenue, o/b/o Sallie M. Clark, Appellant, v. Larry J. Peruzzi, Appellee. Department of Revenue, o/b/o Sandra Stephens, Appellant, v. Vennis Norris Ellis, Appellee. Department of Revenue, o/b/o Susan Marie Thompson, Appellant, v. William O. Stanton, III, Appellee. Department of Revenue, o/b/o Kelly Inglis, Appellant, v. Christopher E. Hotalen, Appellee.
    Nos. 2D02-5333, 2D02-5318, 2D02-5279, 2D02-5277, 2D02-5264, 2D02-5261.
    District Court of Appeal of Florida, Second District.
    May 12, 2004.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellants.
    No appearance for Appellees James (Willie) Cummings, Henry J. Stafford, II, Larry J. Peruzzi, Vennis Norris Ellis, William O. Stanton, III, Christopher E. Hota-len.
   ALTENBERND, Chief Judge.

In these six consolidated cases, the Department of Revenue, on behalf of six mothers, filed complaints against six putative biological fathers seeking to determine paternity and to establish child support for various children. In each case, the mother was married to a man other than the alleged biological father at the time of the child’s birth. The circuit court dismissed each complaint for failure to join the legal father, i.e., the mother’s husband at the time of a child’s birth, as an indispensable party. We affirm the orders dismissing these cases. The factual allegations in these complaints do not establish a legal basis for the Department’s decision to ignore the presumption of each child’s legitimacy by pursuing support from a putative biological father without joining the legal father. Indeed, it appears likely that the Department should initiate child support proceedings against the legal fathers instead of the putative fathers in all of these cases. Our decision requires us to certify conflict with the First District’s decision in State, Department of Revenue v. Pate, 824 So.2d 1038 (Fla. 1st DCA 2002) (holding legal father listed on child’s birth certificate was not indispensable party to paternity action brought by Department to establish child support).

In each of these cases, the Department filed a standard form complaint entitled, “Complaint to Establish Paternity, Child Support and Other Relief Without Affecting Legal Rights of Husband of Mother at Time of Birth.” The Department named only the alleged biological fathers in the complaints. Paragraph 5 of each complaint stated, “The mother of the minor child(ren) was married to a man other than the Respondent at the time the child(ren) was conceived or born, but Petitioners do not seek to affect any legal rights relating to this child(ren) said individual may possess.”

The boilerplate language in each complaint did not disclose the individual circumstances of each case. However, most of the complaints attached another form, a document referred to in the complaint as an affidavit, but actually entitled “Complaint to Establish Paternity, Child Support and Other Relief.” On this form, each mother filled in the blanks and signed the form, which was notarized under oath. Each of these forms provided varying amounts of information. In some cases, the child or children bear the surname of their legal father, while in others they bear the surname of their biological father. There was little or no information in these forms regarding the legal fathers, the status of their marriage to the mothers, or their relationships with the children. The Department did not attach any marriage certificates or judgments dissolving marriages to the complaints. Similarly, there were no birth certificates attached to the complaints that might disclose how each child’s parentage is listed on that document.

The Department served the putative biological fathers with these complaints. Three did not answer the complaint and have not appeared in these proceedings to date. One filed a pro se answer but failed to appear at the hearing held before the circuit court regarding the dismissal. One appeared at the hearing but failed to file a written response to the complaint. The sixth putative biological father had a grandfather who appeared at the hearing and attempted to answer the complaint, indicating that his grandson was incarcerated, indigent, and suffering from problems with alcohol. None of the alleged biological fathers have appeared in this proceeding.

Although the Department did not name the legal fathers of the children as defendants to the complaints, the Department sought to issue to each legal father a “notice of action to legal father.” This notice provided:

YOU ARE HEREBY NOTIFIED that the above-styled action has been filed to determine the paternity of the child(ren) born on the dates indicated in the Complaint to determine paternity and Exhibits attached thereto, a copy of which is attached hereto. In filing this action, Petitioners seek to have the named Respondent ordered to pay child support for the child(ren) who are the subject of this action. YOU ARE NOT THE NAMED RESPONDENT. If you were legally married to the mother named in the Complaint at the time the ehild(ren) [sic] was either conceived or born, you may have legal rights or responsibilities you wish to assert.
Although in filing this action the Petitioners do not seek to affect any rights you may possess, YOU SHOULD CONSULT WITH AN ATTORNEY OF YOUR OWN CHOOSING WITH REGARD TO YOUR RIGHTS AND POTENTIAL RESPONSIBILITIES. Your failure to file a pleading and/or attend a hearing in this cause will be interpreted as your having no objection to the Respondent being adjudicated to be the biological father of the named child(ren).

In five of the cases, the Department attempted to personally serve the legal, fathers, but all of the notices were returned unserved. The Department asserts it also mailed the notices by regular United States mail to each legal father. No legal father has appeared in these proceedings to date.

Each case was filed in a circuit court division over which Judge Logan presided. Judge Logan reviewed these complaints and became understandably concerned about the Department’s procedure and the interests of the legal fathers and the children who might be affected by these proceedings. Judge Logan set a status conference to address whether the legal fathers were indispensable parties to these actions in light of Department of Health & Rehabilitative Services v. Privette, 617 So.2d 305 (Fla.1993), and R.H.B. v. 826 So.2d 346 (Fla. 2d DCA 2002). After this hearing, Judge Logan dismissed these complaints for failure to join the legal fathers as indispensable parties.

Because neither the putative biological fathers nor the legal fathers for these children have appeared in this appeal, this court is proceeding solely upon a brief filed by the Department. Further, this court has no way of determining whether the legal fathers, or indeed some of the putative biological fathers, are receiving copies of this court’s proceedings, because they are being mailed to addresses provided by the Department.

The Department argues that the legal fathers of these children — the men to whom the mothers were married at the time of each child’s birth — are not indispensable parties to this action. See Pate, 824 So.2d 1038. The Department asserts that it can pursue a paternity action against the biological fathers and enter a judgment determining paternity without affecting the legal fathers’ rights. As such, the Department argues that it need only provide some form of informal notice to the legal fathers of the proceedings or any hearings in these cases. We disagree. As these complaints are pleaded, the circuit court cannot determine who has a duty to support these children without the joinder of the legal fathers.

Indispensable parties are “necessary parties so essential to a suit that no final decision can be rendered without their joinder.” Hertz Corp. v. Piccolo, 453 So.2d 12, at 14 n. 3 (Fla.1984). An indispensable party has also been described as “one whose interest will be substantially and directly affected by the outcome of the case” and “one whose interest in the subject matter is such that if he is not joined a complete and efficient determination of the equities and rights between the other parties is not possible.” Amerada Hess Corp. v. Morgan, 426 So.2d 1122, 1125 (Fla. 1st DCA 1983); Allman v. Wolfe, 592 So.2d 1261, 1263 (Fla. 2d DCA 1992).

These paternity cases seek to determine the man who has a legal duty to support the children involved. See § 409.2564(1), Fla. Stat. (2002) (requiring Department of Revenue to institute “action as is necessary to secure the obligor’s payment of current support” when regular support payments are not being made to obligee receiving public assistance); D.F. v. Dep’t of Revenue, 736 So.2d 782, 785 n. 3 (Fla. 2d DCA 1999), aff'd, 823 So.2d 97 (Fla.2002) (noting paternity action is filed to establish legal father who will be legally responsible to support child). Thus the indispensable parties to these actions are those persons who may have a legal duty to support the children involved. Further, if the duty to support cannot be completely divorced from other parental rights, those persons whose parental rights to the children may be affected by the proceedings would also be indispensable parties.

When a child is born during a marriage, the legal duty to support that child presumptively rests with the parties to the marriage. This is because a child born during a marriage is presumed to be the legitimate and legal child of the husband and wife. See Achumba v. Neustein, 793 So.2d 1013, 1014 (Fla. 5th DCA 2001); G.T. v. Adoption of A.E.T., 725 So.2d 404, 410 (Fla. 4th DCA 1999). This presumption has been described as “one of the strongest rebuttable presumptions known to law.” G.T., 725 So.2d at 410; Eldridge v. Eldridge, 153 Fla. 873, 16 So.2d 163, 163 (1944). It was created to protect the welfare of the child, Privette, 617 So.2d at 307, and particularly the child’s interests in legitimacy, stability, and support. See R.H.B., 826 So.2d at 350; Ownby v. Ownby, 639 So.2d 135, 138 n. 3 (Fla. 5th DCA 1994). Indeed, in Privette the supreme court held that a child has a due process constitutional right to retain his or her legitimacy if doing so is in the best interest of the child and that the husband-legal father has a constitutional right to maintain the relationship with his child unim-pugned. 617 So.2d at 307.

The presumption of legitimacy is codified in section 382.013(2)(a), Florida Statutes (2002). Subsection (2) of this statute is entitled “Paternity” and provides in part (a): “If the mother is married at the time of birth, the name of the husband shall be entered on the birth certificate as the father of the child, unless paternity has been determined otherwise by a court of competent jurisdiction.” Subsections (2)(b) to (e) then explain when and how paternity should appear on the birth certificate if the mother is not married at the time of the child’s birth. Under this statutory scheme, the birth certificate serves as a legal document indicating an initial determination of paternity for all children born during a marriage. Thus chapter 742, Florida Statutes (2002), entitled “Determination of Parentage,” specifically provides, “This chapter provides the primary jurisdiction and procedures for the determination of paternity for children born out of wedlock.” § 742.10, Fla. Stat. (2002). Section 742.011 permits a paternity action only “when paternity has not been established by law or otherwise.”

Moreover, so long as a couple remains married, the husband and legal father stands in loco parentis to the child and owes a duty of support to the child. R.H.B., 826 So.2d at 347 (citing Albert v. Albert, 415 So.2d 818, 820 (Fla. 2d DCA 1982); Taylor v. Taylor, 279 So.2d 364 (Fla. 4th DCA 1978)); see also G.T., 725 So.2d at 411 (stating, “[a] husband is presumed to be the father of a child born during the marriage and must provide for support of the child unless and until the husband meets his burden of disproving paternity”).

Finally, if these paternity actions were allowed to proceed and the Department established that a putative biological father of a child was in fact the biological father of a child, the Department intends for the trial court to enter a judgment of paternity. Despite the title of the Department’s complaint, this cannot be accomplished without affecting the legal rights of both the legal father and the child. Section 382.013(2)(d), Florida Statutes (2002), mandates that the name of the man who is determined to be the biological father in a paternity action be placed upon the birth certificate. Upon receipt of such a judgment, the Department of Health is required to prepare and file a new birth certificate reflecting the name of the biological father as the legal father. See § 382.015(2), Fla. Stat. (2002). Certainly the legal recognition of the biological father will also affect the heretofore legal father’s rights to the care, custody, and control of the child. See Achumba, 793 So.2d at 1015; G.F.G. v. S.G., 686 So.2d 1382, 1386 (Fla. 5th DCA 1997) (rejecting concept of “dual fathership”); see also Privette, 617 So.2d at 309 n. 7 (describing action to establish paternity of biological father to child born during marriage to another man as “species of termination proceeding” that has “the effect of vesting parental rights in putative natural father and removing parental rights from the legal father”); but see Daniel v. Daniel, 695 So.2d 1253, 1255 (Fla.1997) (distinguishing between paternity and legitimacy and stating that “legitimacy will not be affected by a determination of paternity or any orders of support that may follow such a determination”).

Piecing together these various legal principles, the law suggests that not only is the legal father an indispensable party, he is the person the Department must usually first pursue in determining who has a duty to support the child. If the presumption of legitimacy or legal fatherhood has any meaning, it must require that the State and the courts, strangers to the marital and familial relationships in these cases, look first to the legal father in trying to establish court-ordered child support. If the legal father remains in loco parentis, he may be required to fulfill the duty to support the child, R.H.B., 826 So.2d at 347, and the Department may have no basis to look elsewhere for the child’s support.

Further, although the presumption of legitimacy is rebuttable, there are many circumstances in which a person cannot seek to rebut the presumption. See, e.g., Privette, 617 So.2d at 308 n. 3. These include circumstances where res judicata applies because a prior judgment determined the child’s parentage, see D.F. v. Dep’t of Revenue, 823 So.2d 97, 100 (Fla.2002); where a parent is equitably es-topped from denying parentage, see C. C.C.A. v. J.M.A., 744 So.2d 515 (Fla. 2d DCA 1999); or where a person not otherwise responsible for the support of the child contracts to support the child, see L.S.H. v. P.L.H., 739 So.2d 1264 (Fla. 2d DCA 1999). If these circumstances exist, the child’s legitimacy may not be subject to question, particularly by the State. See Privette, 617 So.2d at 309 (stating that Department’s suit for paternity was about impugning legitimacy of child and parental rights of child’s present legal father for sake of money allegedly owed to State of Florida; acknowledging State may have compelling interest in determining paternity but must pursue least restrictive means).

Admittedly, there are times when a legal father may have no duty to support a child of the marriage that is not his biological child. See Daniel, 695 So.2d 1253; Albert v. Albert, 415 So.2d 818 (Fla. 2d DCA 1982); Gantt v. Gantt, 716 So.2d 846 (Fla. 4th DCA 1998); Lynn v. Lynn, 358 So.2d 908 (Fla. 1st DCA 1978). In such a case, when confronted with a complaint filed by the State seeking child support, the legal father may seek to disavow his parental rights and responsibilities in favor of a biological father. But see Gantt, 716 So.2d at 847 (stating that if blood test of legal father is “negative,” court “should determine if the circumstances justify a deviation from the ‘established rule of law” ” that legal father has no duty to support child that is not his own, adopted, or for whom he has not contracted to support; citing Daniel, 695 So.2d at 1254).

The legal father also has the right to seek to retain his relationship with the child and to fulfill the rights and responsibilities of parenthood. If the mother is in agreement with the husband’s assertion of his legal rights to the child, there may be no basis for adjudicating paternity in a person other than the legal father. See S.D. v. A.G., 764 So.2d 807 (Fla. 2d DCA 2000) (prohibiting putative biological father from intervening in divorce to establish paternity when legal mother and father objected); S.B. v. D.H., 736 So.2d 766 (Fla. 2d DCA 1999) (prohibiting putative biological father from pursuing action for paternity for child born to intact marriage once both mother and legal father object); see also G.F.C., 686 So.2d 1382. Even if the mother disagrees and supports questioning the child’s parentage, the court is still required to perform an analysis of the child’s best interests before ordering a blood test or determining parentage or legitimacy. See Privette, 617 So.2d at 308-09; Alchin v. Alchin, 667 So.2d 477 (Fla. 2d DCA 1996); Hebner v. Barry, 834 So.2d 305 (Fla. 4th DCA 2003).

We fail to see hoW these seemingly endless possibilities can be fully explored in these paternity suits without the joinder of the legal fathers. These complaints do not reveal any facts that would conclusively establish that the legal fathers do not owe a duty of support. See, e.g., Robinson v. State, Dep’t of Revenue, 661 So.2d 363 (Fla. 1st DCA 1995) (holding Privette does not shield putative biological father from paternity action when mother and legal father were previously divorced and their final judgment acknowledged husband was not legal father and owed no duty of support). Absent such specific allegations, the legal fathers are indispensable parties whose presence is required to conclusively determine who owes a duty to support to these children.

As we have stated before, cases concerning quasi-marital children present major public policy issues that are difficult, if not impossible, to address within the case law method. See S.D., 764 So.2d at 809. In the absence of additional statutory guidance from the legislature, we must provide narrow holdings that do not attempt to announce public policy rules broader than those required by the facts in a particular case. Id. In this case, we hold only that a legal father of a child is an indispensable party in any action to determine paternity and to place support obligations on another man unless the pleading conclusively establishes that the legal father’s rights to the child have been divested by some earlier judgment. We therefore affirm the dismissal of these cases as pleaded for failing to join the legal father.

Our conclusion requires us to conflict with Pate, 824 So.2d 1038. In Pate, the First District held that a legal father is not an indispensable party in a paternity action brought by the Department to establish paternity and child support of a child born during the mother’s marriage to another man. Pate’s conclusion rested primarily on two footnotes in Privette, 617 So.2d 305. In footnote 4, the supreme court indicated that a legal father “must be given notice of the hearing” and an opportunity to be heard. Id. at 308 n. 4. In contrast, in footnote 5 the supreme court declared that the child, as represented by a guardian ad litem, “is an indispensable party.” Id. at 308 n. 5. Thus Pate concluded the supreme court did not intend to make the legal father an indispensable party or it would have stated as much explicitly.

Although the supreme court’s language in Privette is open to some interpretation, Privette involved a petition for certiorari seeking to quash an order requiring a blood test. The case therefore had a narrow scope and standard of review, and the court was not called upon to determine whether a legal father was indispensable to the action. Unlike the First District, we conclude that when the Department seeks to establish the paternity of a child born during the mother’s marriage to another man, the notice and opportunity to be heard that must be provided to a legal father pursuant to Privette will generally require the joinder of the legal father as an indispensable party, unless the factual allegations in the complaint conclusively establish the legal father’s rights have already been divested by an earlier judgment. We therefore certify conflict with Pate.

Affirmed.

COVINGTON and CANADY, JJ., Concur.

      . See, e.g., § 382.013(2)(a), Fla. Stat. (2002); Dep’t of Health & Rehabilitative Servs. v. Privette, 617 So.2d 305 (Fla.1993).

      . Because a quasi-marital child has an established legal father on the face of his or her birth certificate pursuant to policies established by the legislature, and because that man and the child must lose this legal relationship upon the entry of a paternity judgment pursuant to section 382.015(2), this court has questioned whether a paternity action under chapter 742 is the appropriate lawsuit to resolve these issues. See R.H.B., 826 So.2d 346. As discussed in R.H.B., we suspect that the supreme court may have inadvertently permitted such an action in Gammon v. Cobb, 335 So.2d 261 (Fla.1976).

      . See also Chris W. Altenbernd, Quasi Marital Children: The Common Law’s Failure in Pri-vette and Daniel Calls for Statutory Reform, 26 Fla. St. U.L.Rev. 219 (1999).


author: DAVIS, Judge.

text:
    FLORIDA HEALTH SCIENCES CENTER, INC., d/b/a Tampa General Hospital and The Florida Board of Regents, Appellants, v. DIVISION OF ADMINISTRATIVE HEARINGS and Sandra Nap Britt and Frank Britt, on behalf of and as natural guardians of David Britt, Appellees. Florida Birth-Related Neurological Injury Compensation Association, Appellant, v. Sandra Nap Britt and Frank Britt, as parents and natural guardians of David Britt, a minor, Appellees.
    Nos. 2D01-3919, 2D01-3970.
    District Court of Appeal of Florida, Second District.
    May 12, 2004.

      David S. Nelson of Barr, Murman, To-nelli, Slother & Sleet, Tampa, for Appellant Florida Health Sciences Center, Inc.
    Michael N. Brown and Patricia E. Davenport of Allen Dell, P.A., Tampa, for Appellant The Florida Board of Regents.
    Wilbur E. Brewton and Kelly B. Plante of Brewton, Plante & Plante, P.A., Tallahassee; and Kenneth J. Plante of Roetzel & Andress, L.P.A., Tallahassee, for Appellant Florida Birth-Related Neurological Injury Compensation Association.
    Trida B. Valles, Roland J. Lamb, and William E. Hahn of Hahn, Morgan & Lamb & Lamb, P.A., Tampa, for Appel-lees.
   DAVIS, Judge.

This action arose due to the neurological injuries suffered by the child of Sandra and Frank Britt and implicated the Florida Birth-Related Neurological Injury Compensation Plan (the Plan). The Plan is a statutorily created procedure that limits the liability of health care providers when certain requirements are met.

The administrative law judge (ALJ) here found that the statutorily required notice was not provided by the University of South Florida (USF) faculty physician who assisted in the delivery of the Britts’ son, David. The ALJ concluded that because the physician did not provide notice, neither the physician nor the hospital where the child was born could claim immunity from civil liability under the Plan. The hospital, Florida Health Sciences. Center, Inc., d/b/a Tampa General Hospital (TGH); Florida Birth-Related Neurological Injury Compensation Association (NICA); and the physician’s employer, The Florida Board of Regents (FBOR) (collectively “Appellants”), now challenge that order.

The Plan is a legislatively created program that provides compensation, irrespective of fault, to parents of children found (1) to have suffered certain birth-related neurological injuries, and (2) to havé been delivered by a participating physician. §§ 766.303, 766.309, Fla. Stat. (1997). The funds for the program are raised by assessments charged to all hospitals and physicians in the state of Florida. § 766.314. However, physicians, who choose to participate in .the Plan pay higher assessments than nonparticipating physicians. Id. Compensation awarded under the Plan is an exclusive remedy and a defense to any malpractice action the parents might file against any health care provider related to the delivery of the child. § 766.303. However, “before an obstetrical patient’s remedy is limited by the NICA plan, the patient must be given pre[ jdelivery notice of the health care provider’s participation in the plan.” Galen of Fla., Inc. v. Braniff, 696 So.2d 308, 309 (Fla.1997); see also § 766.316 (“Each hospital with a participating physician on its staff and each participating physician ... shall provide notice to the obstetrical patients thereof as to the limited no-fault alternative for birth-related neurological injuries.”).

Pursuant to section 766.304, the ALJ “shall hear and determine all [NICA] claims.” Section 766.309 more specifically provides:

(1) The administrative law judge shall make the following determinations based upon all available evidence:
(a)Whether the injury claimed is a birth-related neurological injury. If the claimant has demonstrated, to the satisfaction of the administrative law judge, that the infant has sustained a brain or spinal cord injury caused by oxygen deprivation or mechanical injury and that the infant was thereby rendered permanently and substantially mentally and physically impaired, a rebuttable presumption shall -arise that the injury is a birth-related neurological injury as defined in s. 766.302(2).
(b) Whether obstetrical services were delivered by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital; or by a certified nurse midwife in a teaching hospital supervised by a participating physician in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital.
(c) How much compensation, if any, is awardable pursuant to s. 766.31.

§ 766.309(l)(a)-(c).

In the instant case, because David Britt suffered serious neurological difficulties at birth, his parents filed a civil action against FBOR and TGH. The trial court then abated the action to allow the ALJ to determine the “applicability and ... com-pensability” of the Britts’ claims.

Following a hearing on the Britts’ petition for NICA coverage, the ALJ made the following findings: (1) the child suffered a compensable injury; (2) the delivering physician was a participant in the NICA program; (3) TGH provided the statutorily required notice; and (4) the evidence failed to demonstrate that Mrs. Britt received notice on behalf of the delivering physi-t cían.

In addressing whether notice had been provided, the ALJ specifically stated that because the health care providers raised NICA immunity in the Britts’ original action, it was necessary to resolve the notice issue in the administrative proceeding. The ALJ cited the Fifth District’s opinion in O’Leary v. Florida Birth-Related Neurological Injury Compensation Ass’n, 757 So.2d 624 (Fla. 5th DCA 2000), to support this assertion. In O’Leary, the Fifth District noted that the NICA statute does not specifically exclude the determination of the adequacy of notice from the ALJ’s duties. Id. at 627. The Fifth District therefore concluded that such a determination was a necessary part of the larger question of compensability that is to be determined by the ALJ. Id. at 627-28.

The ALJ here concluded in its order that the notice requirements of the statute had not been met, that the Britts could either accept NICA compensation or pursue their civil action against the health care providers, and that should the Britts choose to go forward with a civil action, the health care providers would be prohibited from raising the statute’s immunity provisions as a defense. Whether the ALJ had the jurisdiction to reach these legal conclusions regarding notice is the issue presented in this case.

Based on the plain and unambiguous language of section 766.309, the ALJ is authorized to determine whether the injury is a compensable injury under the statute’s definition of such, whether the physician was a participating physician, and how much compensation, if any, is to be awarded. Therefore, we affirm the ALJ’s findings here that David Britt suffered a com-pensable injury and that he was delivered by a participating physician.

However, since the entry of the ALJ’s order, this court, in All Children’s Hospital, Inc. v. Department of Administrative Hearings, 863 So.2d 450 (Fla. 2d DCA 2004), has very specifically defined the jurisdiction of the ALJ in regard to the giving of notice. This court determined that not only does the ALJ lack the jurisdiction to determine the legal significance of the failure of a party to give notice, the ALJ also lacks jurisdiction to determine any issue related to notice, including the legal question of what notice is sufficient and the factual issue of whether notice was given. All Children’s Hosp., 863 So.2d at 456-57.

Section 766.31 specifically states that if the ALJ determines that the injury is a birth-related neurological injury and that the delivering physician is a participant in the Plan, he shall award compensation. Hence, the awarding of compensation does not depend on the sufficiency of the health care providers’ notice. See also Galen, 696 So.2d at 311 (“Because the assertion of NICA exclusivity is an affirmative defense, factual disputes concerning notice should be submitted to the jury where a jury trial is requested on all questions of fact.”). No part of the NICA statute confers on the ALJ any authority to determine issues related to notice.

Accordingly, the ALJ here exceeded his statutory authority by addressing the sufficiency of notice and the resulting effect on the Britts’ civil action. We therefore reverse those portions of his final order. In so doing, we certify conflict with the Fifth District’s opinion in O’Leary, 757 So.2d 624, the Third District’s opinion in University of Miami v. M.A., 793 So.2d 999 (Fla. 3d DCA 2001), and the Fourth District’s opinions in Gugelmin v. Division of Administrative Hearings, 815 So.2d 764 (Fla. 4th DCA 2002), and Behan v. Florida Birth-Related Neurological Injury Compensation Ass’n, 664 So.2d 1173 (Fla. 4th DCA 1995), to the extent that these opinions hold that the AL J has the authority to determine issues related to notice in NICA proceedings.

We also note that in Bayfront Medical Center, Inc. v. Division of Administrative Hearings, 841 So.2d 626 (Fla. 2d DCA 2003), we affirmed the ALJ’s findings regarding sufficiency of notice. However, in that case the sufficiency of notice issue was not in dispute and therefore not properly before this court. Accordingly, we consider any reference to the sufficiency of notice issue in Bayfront to be dicta.

Affirmed in part; reversed in part; and conflict certified.

SILBERMAN and COVINGTON, JJ„ Concur.

      . During the pendency of this appeal, the Florida Legislature amended section 766.309 to add a new subsection which reads:
      (4) If it is in the interest of judicial economy or if requested to by the claimant, the administrative law judge may bifurcate the proceeding addressing compensability and notice pursuant to s. 766.316 first, and addressing an award pursuant to s. 766.31, if any, in a separate proceeding. The administrative law judge may issue a final order on compensability and notice which is subject to appeal under s. 766.311, prior to issuance of an award pursuant to s. 766.31.
      Ch.2003-416, § 77 at 89, Laws of Fla.
      Although it might be argued that this language, at least by inference, gives the ALJ the jurisdiction to address the notice issues, this amendment does not apply to this case. Section 86 of chapter 2003-416, Laws of Florida, specifically states that the amendments to chapter 766, Florida Statutes, "shall apply only to any medical incident for which a notice of intent to initiate litigation is mailed on or after the effective date of the act." The effective date of the act was September 15, 2003; thus the amendment does not apply to this case. We offer no opinion as to whether this amendment does, in fact, confer on the ALJ the jurisdiction in question herein.


text:
    Gisela E. AGUILAR, Appellant, v. FLORIDA DEPT. OF AGRICULTURE AND CONSUMER SERVICES, DIVISION OF LICENSING, Appellees.
    No. 3D03-2152.
    District Court of Appeal of Florida, Third District.
    May 12, 2004.
    Gisela E. Aguilar, in proper person.
    Stephen S. Mathues, Assistant General Counsel for the Department of Agriculture and Consumer Services, Division of Licensing.
    Before GODERICH, GREEN, and SHEPHERD, JJ.
   PER CURIAM.

The respondent below, Gisela E. Aguilar, timely appeals from an amended final order that ordered her to pay a $50 administrative fine within 30 days by cashier’s check or money order to the Department of Agriculture and Consumer Services, Division of Licensing. The amended final order also provided that Aguilar’s “[failure to make timely payment shall result in the automatic suspension of any licenses issued to Respondent or the denial of any licenses applied for pursuant to Section 493.6118(6), Florida Statutes.”

We have reviewed both the brief submitted by Aguilar and the record on appeal, but find no basis for reversing the amended final order. However, we would like to note that section 493.6118(6) provides in part that “[a]n individual’s ... license becomes automatically suspended if a fíne imposed against the individual ... is not paid within 30 days after the date of the final order, and remains suspended until the fine is paid.” § 493.6118(6), Fla. Stat. (2003) (emphasis added). Further, section 493.6118(6) also provides that “[n]otwith-standing the provisions of this subsection, an individual’s ... license may not be suspended ... when the licensee ... has an appeal from a final order pending in any appellate court.”

Affirmed.


author: FLETCHER, Judge.

text:
    Eufemia GONZALEZ, etc., Appellant, v. CITY OF CORAL GABLES, Appellee.
    No. 03-2341.
    District Court of Appeal of Florida, Third District.
    May 12, 2004.
    Bernstein & Maryanoff; Brian D. Glat-zer and Jason Turchin, Miami, for appellant.
    John E. Oramas, for appellee.
    Before GODERICH, FLETCHER, and RAMIREZ, JJ.
   FLETCHER, Judge.

Appellant, Eufemia Gonzalez, as mother and next friend of Ana Maria Etcheverry, seeks reversal of a summary final judgment entered in favor of the City of Coral Gables in this negligence action. We affirm.

This case arises from a slip and fall accident which occurred at a Coral Gables Fire Station. As a result, Ana Maria Et-cheverry was injured. At the time of the accident, Ana Maria was fifteen years old and a student at Miami Northwestern Senior High. She was at the fire station in connection with her participation in a program known as the Coral Gables Fire Rescue Explorer Program. This program involves training students as fire rescue personnel, for which they receive school credit. In order to participate a student is required to submit, among other things, hold harmless agreements signed by the student and his or her parent or guardian.

Eufemia Gonzalez filed suit as mother and next friend of her minor daughter. Based on the mother’s hold harmless agreement on behalf of Ana Maria, the trial court entered summary final judgment in favor of the city. We agree with the trial court’s conclusion. The city’s explorer program falls within the category of commonplace child oriented community or school supported activities for which a parent or guardian may waive his or her child’s litigation rights in authorizing the child’s participation. See Shea v. Global Travel Marketing, Inc., 870 So. 2d 20 (Fla. 4th DCA 2003). Mrs. Gonzalez signed a hold harmless agreement enabling Ana Maria to participate in the program, thus the City of Coral Gables cannot be held liable for the alleged negligence which caused the child’s injuries.

Affirmed.

      . We are dealing here only with the mother's agreement on behalf of her daughter.


text:
    Anthony STOKES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-974.
    District Court of Appeal of Florida, Third District.
    May 12, 2004.
    Bennett H. Brummer, Public Defender and Manuel Alvarez, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Fredericka Sands, Assistant Attorney General, for appellee.
    Before SCHWARTZ, C.J., and SHEVIN and WELLS, JJ.
   PER CURIAM.

Affirmed. See Smithers v. State, 826 So.2d 916, 930 (Fla.2002)(“A ruling on a motion for a mistrial is within the sound discretion of the trial court and should be ‘granted only when it is necessary to ensure that the defendant receives a fair trial.’ Gore v. State, 784 So.2d 418, 427 (Fla.2001).”), cert. denied, 537 U.S. 1203, 123 S.Ct. 1275, 154 L.Ed.2d 1045 (2003).


text:
    Oscar PALMA, Appellant, v. Rubiella VASQUEZ and Aurelio Vasquez, Appellees.
    No. 3D03-245.
    District Court of Appeal of Florida, Third District.
    May 12, 2004.
    Simon & Nelson, Miami, and Rachelle Bocksch, for appellant.
    Adams & Adams, and Jaime J. Baca, Miami, for appellees.
    Before GERSTEN, FLETCHER, and WELLS, JJ.
   PER CURIAM.

Affirmed. See Tobin v. Leland, 804 So.2d 390 (Fla. 4th DCA 2001).


text:
    Angel E. SANCHEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-747.
    District Court of Appeal of Florida, Third District.
    May 12, 2004.
    Bennett H. Brummer, Public Defender, and Robert Godfrey, Assistant Public Defender, for appellant.
    Charles J. Crist, Jr., Attorney General and Roberta G. Mandel, Assistant Attorney General, for appellee.
    Before COPE, GODERICH, and FLETCHER, JJ.
   PER CURIAM.

Angel E. Sanchez appeals from the trial court’s denial of his motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850, alleging that his plea was based on attorney mis-advice and Sanchez’ failure to understand the consequences of his plea. After a review of the record of the evidentiary hearing on Sanchez’ motion, we reverse and remand with directions to vacate the plea. The parties will then be placed in the position in which they stood prior to the plea agreement.

Reversed and remanded with directions.


author: SHEVIN, Judge.

text:
    Jonna S. REAVES, Appellant, v. ANC RENTAL CORPORATION, and Florida Unemployment Appeals Commission, Appellees.
    No. 3D03-835.
    District Court of Appeal of Florida, Third District.
    May 12, 2004.
    Jonna S. Reaves, in proper person.
    John D. Maher, for appellee, Florida Unemployment Appeals Commission.
    Before SHEVIN, WELLS and SHEPHERD, JJ.
   SHEVIN, Judge.

We reverse the order of the Unemployment Appeals Commission, affirming the appeals referee’s denial of benefits to appellant on grounds of misconduct. Accepting the factual findings made by the appeals referee, we conclude that the appellant’s conduct was sufficient to justify her termination, but “did not rise to the level of misconduct necessary so as to deprive [appellant] of unemployment benefits.” Hernandez v. Florida Orthopedics, Inc., 861 So.2d 525, 526 (Fla. 3d DCA 2003)(quoting Santiago v. Home Depot USA, Inc., 716 So.2d 350 (Fla. 3d DCA 1998)). See Tacher v. Unemployment Appeals Comm., 721 So.2d 813 (Fla. 4th DCA 1998); Wark v. Home Shopping Club, Inc., 715 So.2d 323 (Fla. 2d DCA 1998); Hall v. Fla. Unemployment Appeals Comm., 700 So.2d 107 (Fla. 1st DCA 1997).

Reversed and remanded.


text:
    STATE ex rel. Andrea HALL v. STATE of Louisiana
    No. 99-KH-0326.
    Supreme Court of Louisiana.
    Sept. 24, 1999.
   PER CURIAM.

The court of appeal affirmed relator’s 1990 conviction in 1992. State v. Hall, 606 So.2d 972 (La.App. 3d Cir.1992). Relator did not seek review timely in this court, and the conviction became final as to direct review. La.Code Crim. Proc. Art. 922 B; La.S.Ct.R. X, § 5(a).

Relator filed an untimely application for review in this court in 1994. This court, in accordance with State v. Jacobs, 504 So.2d 817, 818 n. 1 (La.1987), considered relator’s untimely application, not as a step in direct review, but as an alternative to requiring relator to employ the redundant procedure of asserting, by post-conviction application in the lower courts, the same claims that had already been rejected there on direct review. Utilizing this judicially efficient procedure, this court denied relator’s 1994 application. State ex rel. Hall v. Whitley, 93-0051 (La.11/11/94), 644 So.2d 385.

In 1996, relator filed the instant application for post-conviction relief. The district court denied the application, and the court of appeal denied certiorari. State v. Hall, 98-0625 (La.App. 3d Cir.12/18/98). This court, noting that relator failed to file the application in the district court within three years from the date his conviction became final, as required by La.Code Crim. Proc. Art. 930.8 and State ex rel. Glover v. State, 93-2330 (La.9/5/95, 660 So.2d 1189), denied the application. 99-0326 (La.7/2/99), 747 So.2d 8.

Relator then filed this application for reconsideration, arguing that he filed the 1996 application in the district court within three years of this court’s denial of his 1994 application. However, relator’s conviction became final in 1992, and this court’s treatment of his untimely 1994 application under the Jacobs procedure did not “unfinalize” the conviction. The application was properly denied as not filed within three years of finality of the conviction.

Accordingly, the application for reconsideration is denied.

VICTORY, J., not on panel.

       Victory, J., not on panel. Rule IV, Part 2, § 3.

      . Rather than requiring relator to present the same arguments again to the lower courts by post-conviction application, this court's use of the Jacobs procedure in effect treated the application as one for post-conviction relief, which the lower court presumably would have denied because they had rejected the same arguments on direct review.


author: 11 KNOLL, Justice,

text:
    STATE of Louisiana ex rel. Jarrell NEAL v. Burl CAIN.
    No. 2002-KP-2258.
    Supreme Court of Louisiana.
    Oct. 3, 2003.
   In re Neal, Jarrell; — Plaintiff; Applying for Supervisory and/or Remedial Writs, Parish of Jefferson, 24th Judicial District Court, Div. F, No. 98-3238.

Writ granted; case remanded. The district court’s judgment denying relator’s pro se application for post-conviction relief is vacated, and the district court is directed to give counsel reasonable opportunity to prepare and litigate expeditiously an application for post-conviction relief. See State ex rel. Hampton v. State, 00-2523 (La.8/31/01), 795 So.2d 1198.

TRAYLOR, J., dissents for reasons assigned by KNOLL, J.

KNOLL, J., dissents from the order and assigns reasons.

11 KNOLL, Justice,

dissenting.

I respectfully disagree that defendant, Jarrell Neal, is entitled to post-conviction counsel under the circumstances of this case, and dissent for the following reasons.

Louisiana Revised Statute § 15:149.1 states:

In a capital case in which the trial counsel was provided to an indigent defendant and in which the jury imposed the death penalty, the court, after imposition of the sentence of death, shall appoint the Indigent Defense Assistance Board, which shall promptly cause to have enrolled counsel to represent the defendant on direct appeal and in any state post-conviction proceedings, if appropriate. (Emphasis added).

La.Rev.Stat. § 15:149.1 (2003). An examination of the legislative history of this statute reveals that the concluding phrase of this statute grants to the trial court the discretion to determine whether an appointment of counsel is appropriate. See House Bill No. 2035 of the 1999 Regular Session and accompanying minutes.

In the present case, the trial court ruled:

Although defendant raises the following issues, he has failed to brief them. Instead defendant seeks appointed counsel. Defendant has made no showing that he is entitled to appointed counsel. Further in failing to provide even a minimum attempt to discuss a single issue, he has abandoned the issues by failing to brief them. Accordingly, it is ordered by the court that defendant’s Application for Post Conviction Relief be and the same is hereby denied. (Emphasis added).

The trial court in its discretion found that defendant made no showing that he is entitled to counsel and determined that the appointment of counsel in this case was not appropriate. I find defendant has failed to established that the trial court abused its discretion and the trial court’s ruling should stand.

I recognize that the sentence of death is the ultimate punishment for a crime and that strict adherence to our law is required before this ultimate sentence will be enforced. This Court and the United States Supreme Court highly scrutinize these cases and we are quick to reverse and remand these cases for the slightest prejudicial error because the sentence is death. By the same token, these cases must be brought to a final conclusion in the post-conviction stages if the sentence of death is to have any deterrent effect. In my view, most of the deterrent effect of the death sentence is lost in the languid delays caused by the manipulation of post-conviction proceedings which is contrary to the purpose of these proceedings.

The United States Supreme Court has recognized the importance of finality in state capital cases. McCleskey v. Zant, 499 U.S. 467, 491, 111 S.Ct. 1454, 113 L.Ed.2d 517 (1991), reh’g denied, 501 U.S. 1224, 111 S.Ct. 2841, 115 L.Ed.2d 1010 (1991); Reed v. Ross, 468 U.S. 1, 10, 104 S.Ct. 2901, 82 L.Ed.2d 1 (1984); Engle v. Isaac, 456 U.S. 107, 127, 102 S.Ct. 1558, 71 L.Ed.2d 788 (1982), reh’g denied, 456 U.S. 1001, 102 S.Ct. 2286, 73 L.Ed.2d 1296 (1982), and reh’g denied, 457 U.S. 1141, 102 S.Ct. 2976, 73 L.Ed.2d 1361 (1982); Murray v. Carrier, 477 U.S. 478, 487, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986); In re Blodgett, 502 U.S. 236, 239, 112 S.Ct. 674, 116 L.Ed.2d 669 (1992); Gomez v. United States Dist. Ct. for Northern Dist. of Cal., 503 U.S. 653, 654, 112 S.Ct. 1652, 118 L.Ed.2d 293 (1992); Sawyer v. Whitley, 505 U.S. 333, 338, 112 S.Ct. 2514, 120 L.Ed.2d 269 (1992), reh’g denied, 505 U.S. 1244, 113 S.Ct. 21, 120 L.Ed.2d 948 (1992). “Without finality, the criminal law is deprived of much of its deterrent effect.” Teague v. Lane, 489 U.S. 288, 309, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), reh’g denied, 490 U.S. 1031, 109 S.Ct. 1771, 104 L.Ed.2d 206 (1989); McCleskey, 499 U.S. at 491, 111 S.Ct. 1454. The Supreme Court has held that “[p]erpetual disrespect for the finality of convictions disparages the entire criminal justice system.” McCleskey, 499 U.S. at 492, 111 S.Ct. 1454.

A procedural system which permits an endless repetition of inquiry into facts and law in a vain search for ultimate certitude implies a lack of confidence about the possibilities of justice that cannot but war with the effectiveness of underlying substantive commands. .. .There comes a point where a procedural system which leaves matters perpetually open no longer reflects humane concern but merely anxiety and a desire for immobility.

McCleskey, 499 U.S. at 492, 111 S.Ct. 1454. Likewise, the Supreme Court does “not in the least condone, but instead condemn, any efforts on the part of habeas petitioners to delay their filings until the last minute with a view to obtaining a stay because the district court will lack time to give them the necessary consideration before. the scheduled execution.” Sawyer, 505 U.S. at 341, n. 7, 112 S.Ct. 2514; Gomez, 503 U.S. at 654, 112 S.Ct. 1652. “Equity must take into consideration the State’s strong interest in proceeding with its judgment and [defendant’s] obvious attempt at manipulation.” Gomez, 503 U.S. at 654, 112 S.Ct. 1652.

With this recognition of the importance of finality, the Supreme Court began to reign in the use of writs of habeas corpus. Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977), reh’g denied, 434 U.S. 880, 98 S.Ct. 241, 54 L.Ed.2d 163 (1977); Kuhlmann v. Wilson, 477 U.S. 436, 106 S.Ct. 2616, 91 L.Ed.2d 364 (1986); McCleskey, 499 U.S. at 493, 111 S.Ct. 1454; Murray, 477 U.S. at 478, 106 S.Ct. 2639, Once known as the Great Writ, habeas petitions lost their infinitum quality with the development by the Supreme Court of its procedural default jurisprudence, Murray, 477 U.S. at 478, 106 S.Ct. 2678, and abuse of the writ jurisprudence, McCleskey, 499 U.S. at 493, 111 S.Ct. 1454. “[T]he doctrines of procedural default and abuse of the writ are both designed to lessen the injury to a State that results through reexamination of a state conviction on a ground that the State did not have the opportunity to address at a prior, appropriate time; and both doctrines seek to vindicate the State’s interest in the finality of its criminal judgments.” McCleskey, 499 U.S. at 493, 111 S.Ct. 1454.

Following the Supreme Court’s lead, the Federal government enacted in 1996 the Antiterrorism and Effective Death Penalty Act, 28 U.S.C. §§ 2261 et seq., which envisioned a “quid pro quo arrangement under which states are accorded stronger finality rules on federal habeas review in return for strengthening the right to counsel for indigent capital defendants.” Wright v. Angelone, 944 F.Supp. 460, 463 (E.D.Va.1996); see also, Death Row Prisoners of Pennsylvania v. Ridge, 948 F.Supp. 1258 (E.D.Pa.1996). Those states that enact statutes or rules meeting the requirements set forth in 28 U.S.C. § 2261, which require the appointment of counsel and the apportionment of funds to indigent capital defendants, are entitled to the stronger finality rules on federal habeas review contained in 28 U.S.C. § 2263, which imposes a strict time limitation on state capital defendants for the filing of post-conviction habeas proceedings in federal court. 28 U.S.C. §§ 2261 and 2263 (2003).

In 1999, the Louisiana State Legislature enacted La. R.S. 15:149.1 and La. R.S. 15:152.1(E), which provide indigent capital defendants with the statutory right to counsel and funding in post-conviction proceedings, if appropriate. La.Rev.Stat. §§ 15:149.1 and 15:152.1(E) (2003). The Legislature enacted these provisions in an effort to make post-conviction procedures more efficient and effective and to move these capital cases expeditiously through the courts. See Minutes of House Committee on Administration of Criminal Justice Meeting on April 29, 1999.

The United States Supreme Court, the federal government, and the Louisiana State Legislature have recognized the need for and importance of finality in state capital cases and have taken action to assist state courts in reaching that finality in a more efficient and effective manner so as to lessen the delay in the execution of judgments.

With these prefatory comments in mind, I find it significant that the defendant in the present case admits to filing a pro se application for post-conviction relief solely to delay the tolling of the federal statute of limitation for the filing of post-conviction habeas petitions. Indeed, in his brief defendant states:

It has become the practice to assist indigent inmates who wish to avail themselves of their statutory right to counsel with the filing of a pro se application for post-conviction relief. This application asserts constitutional error upon information and belief, as well as the further need to research, investigate, and present all facts supporting particularized claims to the state courts. Petitioner is aware that he is incapable of filing a fully researched, investigated, and particularized petition without an attorney. (Emphasis added)

Defendant does not make allegations that would entitle him to relief in post-conviction proceedings. Notably, the trial court found defendant failed “... to provide even a minimum attempt to discuss a single issue ...” and that defendant abandoned the issues by failing to even brief them. Moreover, defendant made no showing that he was entitled to appointed counsel. Under these circumstances, I fail to see how the trial court can be found to have abused its discretion in not appointing defendant counsel for processing his post-conviction proceeding.

Defendant’s ploy stands in direct conflict with the efforts of the Legislature to expedite capital proceedings. His pro se application serves no other purpose than to delay. This delay tactic exacts further costs on the courts, Schneckloth v. Bustamonte, 412 U.S. 218, 260, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)(Powell, J., concurring), and provides incentive to litigants to withhold claims for manipulative purposes, Reed, 468 U.S. at 13, 104 S.Ct. 2901; Wainwright, 433 U.S. at 89, 97 S.Ct. 2497.

Although this Court has approved and arguably encouraged this “practice” by capital defendants in post-conviction proceedings, I strongly believe that this "practice” is in direct contravention of the purpose behind the enactment of La. R.S. 15:149.1 and 15:152.1 and serves to defeat the efforts taken by the Legislature to meet society’s need for efficiency and finality in capital cases, and most importantly, lessens the detrimental effect of capital punishment.

This defendant has “had a total and complete appeal of his double [first-degree] murder convictions, which this Court affirmed,” State v. Neal, 00-0674 (La.6/29/01), 796 So.2d 649, and the United States Supreme Court denied certiorari, Neal v. Louisiana, 535 U.S. 940, 122 S.Ct. 1323, 152 L.Ed.2d 231 (2002), reh’g denied, 535 U.S. 1075, 122 S.Ct. 1957, 152 L.Ed.2d 859 (2002). Roy, 703 So.2d at 590-91 (Knoll, J., dissenting). Accordingly, I would deny defendant’s writ and reinstate the trial court’s ruling, finding that defendant failed to establish the trial court abused its discretion.

      . See State ex rel. Hampton v. State, 00-2523 (La.8/31/01), 795 So.2d 1198 (vacating district court's judgment denying defendant's application for post-conviction relief and directing district court “to give counsel reasonable opportunity to prepare and litigate expeditiously an application for post-conviction relief”); State v. Hoffman, 00-1609 (La.6/14/00), 768 So.2d 592 (directing district court to recall warrant of execution and to "immediately notify the Louisiana Indigent Defense Assistance Board and provide the Board with reasonable time in which: (1) to enroll counsel to represent the defendant in any state post-conviction proceedings, if appropriate, pursuant to its authority under La.Rev.Stat. 15:149.1; and (2) to litigate expeditiously the claims raised in that original application, if filed, in state courts”), cert. denied, 531 U.S. 946, 121 S.Ct. 345, 148 L.Ed.2d 277 (2000); State ex rel. Robertson v. State, 00-1059 (La.4/26/00), 760 So.2d 1163 (vacating district court's judgment denying defendant’s application for post-conviction relief and directing district court "to immediately conduct a hearing, with the Louisiana Indigent Defense Assistance Board for the purpose of appointment of counsel”); Tyler v. State, 99-2459 (La.8/25/99), 746 So.2d 1291 (staying defendant’s execution and ordering district court “to refer this matter to the Louisiana Indigent Defense Assistance Board for appointment of counsel”); State v. Koon, 98-1214 (La.5/6/98), 710 So.2d 240 (ordering district court "to stay ... execution, appoint counsel for [defendant], and set a reasonable time for counsel to file an application for post conviction relief, if appropriate”)(Traylor and Knoll, JJ., vote to deny); State ex rel. Roy v. State, 97-2466 (La.10/10/97), 703 So.2d 590 (ordering district court "to stay ... execution, appoint counsel for [defendant], and set a reasonable time for counsel to file an application for post conviction relief, if appropriate”) (Traylor and Knoll, JJ., dissenting).