author: WISE, Judge. SHAW, Judge,

text:
    Terrance E. PRUITT v. STATE of Alabama.
    CR-04-2495.
    Court of Criminal Appeals of Alabama.
    June 30, 2006.
    Rehearing Denied Aug. 11, 2006.
    Certiorari Denied Oct. 13, 2006 Alabama Supreme Court 1051688.

      Thomas M. Goggans, Montgomery, for appellant.
    Troy King, atty. gen., and Yvonne A.H. Saxon, asst. atty. gen., for appellee.
   WISE, Judge.

The appellant, Terrance E. Pruitt, pleaded guilty to obstructing justice using a false identity, a violation of § 13A-8-194, Ala.Code 1975; unlawful possession of marijuana in the first degree, a violation of § 13A-12-213(a)(2), Ala.Code 1975; unlawful use or possession with the intent to use drug paraphernalia, a violation of § 13A-12-260(e), Ala.Code 1975; and unlawful possession of a controlled substance, cocaine, a violation of § 13A-12-212(a)(l), Ala.Code 1975. Pruitt was sentenced, as a habitual offender with one prior felony conviction, to 10 years’ imprisonment for the cocaine-possession, marijuana-possession, and obstruction-of-justice convictions, and to one year in prison for the drug-paraphernalia conviction, the sentences to run concurrently. Before entering his guilty plea, Pruitt specifically reserved the right to appeal the trial court’s denial of his motion challenging the State’s use of the certificate of analysis to prove the composition of the substances. This appeal followed.

Because Pruitt does not challenge the factual allegations giving rise to the convictions, we note simply that the State’s factual basis indicated that law-enforcement officers initiated a traffic stop on Pruitt’s vehicle on June 4, 2004, and discovered a set of digital scales and what was later determined to be approximately four grams of marijuana and approximately four grams of cocaine, and that Pruitt attempted to conceal his identity by providing a false name to the officers.

Pruitt contends that the trial court erred in denying his challenge to the State’s use of the certificate of analysis in lieu of live testimony from the forensic scientist who performed the analysis on the drug evidence.

I.

Pruitt first argues that the State failed to provide at least 40 days’ notice of its intent to use the certificate of analysis as provided by § 12-21-301, AIa.Code 1975.

Section 12-21-301, Ala.Code 1975, provides:

“The party seeking to introduce a certificate of analysis shall not less than 40 days prior to the commencement of the hearing or trial, give written notice to all parties of intent to offer proof by a certificate of analysis. The notice shall include a copy of the certificate of analysis.”

Additionally, the Alabama Code provides the following procedure by which a party can request a hearing to show cause why the person performing the analysis of the substance should be subject to a subpoena for cross-examination:

“(a) The party against whom the certificate is offered may request, not later than 30 days prior to the commencement of the hearing or trial, a hearing to show cause why a subpoena should be issued for cross-examination of the person who performed the examination or analysis.
“(b) The request shall be in writing and shall contain a certification that the requesting party intends in good faith to conduct the cross-examination. The request shall also include a statement of the basis upon which the requesting party intends to challenge the findings contained in the certificate of analysis. The court shall grant the request for subpoena only for good cause shown. Good cause shall not include a challenge to the findings contained in the certificate of analysis, unless the requesting party first establishes a legitimate basis for the challenge. If the request for subpoena is granted, and the requesting party subsequently fails to conduct the cross-examination previously certified to, the court shall assess against the requesting party, all necessary and reasonable expenses incurred for the attendance in court of the certifying witness.”

Section 12-21-302, Ala.Code 1975.

In Lee v. State, 748 So.2d 904 (Ala.Crim.App.1999), this Court addressed a similar issue, as follows:

“Specifically, Lee argues that because the State failed to file notice more than 40 days before trial of its intent to offer proof of the test results by a certificate of analysis, the certificate of analysis should not have been admitted into evidence.
“The State conceded that ‘notice’ had not been filed, but it asserted that defense counsel was provided a copy of the certificate of analysis in the discovery materials sent to the defense the Monday before trial began on Wednesday. At this juncture, the defense agreed that discovery had been provided Monday morning. The trial court overruled the defense’s objection to the admission of the certificate. A few moments later, when the State requested the results of the analysis from its witness, defense counsel asked to be allowed to approach the bench and stated the following to the trial court:
“ ‘Your Honor, this is the extent of my discovery that I received on Monday in this particular case. I was confused. I thought the other case is the one. Yes, sir. That was this is [ (sic) ] the indictment for Mr. Pick-ren’s case. I did not receive a certificate of analysis ever or I did not receive it Monday.
“ ‘And, Your Honor, the statute § 12-21-301 states specifically that parties should receive a certificate of analysis not less than 40 days [before] the hearing or trial.’
“R. 28. The trial court again overruled the objection and the certificate of analysis was admitted into evidence. That certificate showed that the substance in case no. CC-98-1131 was cocaine.
“The State contends on appeal that any error in this regard was harmless error because, it says, defense counsel was aware of its intent to introduce the certificate of analysis, a copy of which had been provided to the defense in discovery. Therefore, according to the State, the defense should not have been surprised by the introduction of the certificate. This argument overlooks defense counsel’s assertion that he did not receive a certificate of analysis before trial. This argument also overlooks the statutory requirement that the party seeking to introduce the certificate ‘shall not less than 40 days prior to the commencement of the hearing or trial’ provide notice to the other party of its intent to rely on the certificate instead of direct testimony to prove that the substance was an illegal substance. Here, if the production of discovery was notice of the State’s intent to use the certificate, as it asserts, it was provided two days before trial. Moreover, the State made no assertion before trial that it intended to rely on the certifícate of analysis to prove that the substance was illegal.
“The statute was not complied with; thus, the certificate of analysis was improperly admitted into evidence. Therefore, the State did not prove beyond a reasonable doubt that Lee sold a controlled substance to Richardson and Vin-ing in case no. CC-98-1131. The convictions in case no. CC-98-1131 for two counts of distribution of a controlled substance must be reversed.”

748 So.2d at 909-10.

However, the facts here are distinguishable from those in Lee. Here, the State provided notice approximately 27 days before the suppression hearing and plea proceeding. Further, it is unclear from the record whether the trial would have been conducted on the same day as the plea proceeding had Pruitt not withdrawn his not-guilty plea to plead guilty.

Additionally, there is no indication in the record that Pruitt set forth a legitimate basis to challenge the use of the certificate of analysis in lieu of live testimony in his case. Nor does he argue that the timing of the notice prejudiced him in any way. To the contrary, his argument is simply that because the State did not provide the requisite 40 days’ notice, the certificate of analysis was inadmissible as a matter of law.

The trial court stated that Pruitt was free to subpoena the chemist if he chose to do so. The trial court further concluded that the 40-day notice requirement in § 12-21-301 was “simply procedural” and that, in Pruitt’s case, the State’s failure to comply with that requirement did not put Pruitt “in any disadvantage or violate any [of Pruitt’s] right[s].” (R. 34.) Having reviewed the record and applicable legal authority, we agree with the trial court. As this Court recently stated in Brown v. State, 939 So.2d 957, 960 (Ala.Crim.App.2005), “[t]he purpose behind [the time requirement in § 12-21-302], as well as the time requirement in § 12-21-301 is apparent: to allow sufficient time to secure the presence of the forensic scientist in those cases in which his or her presence is necessary.” As noted above, Pruitt has not argued that he was prejudiced by the State’s noncompliance with the 40-day statutory notice requirement, nor does the record indicate that any such prejudice existed in this case. Under the facts of this case, the State’s failure to comply with the 40-day requirement in § 12-21-301 was harmless. To the extent that language in Lee, supra, suggests that noncompliance with the 40-day requirement in § 12-21-301 can never be harmless, that holding is overruled. For these reasons, Pruitt is not entitled to any relief on this claim.

II.

Pruitt also argues that the State’s reliance on the certificate of analysis in lieu of calling the forensic scientist to testify violated his Sixth Amendment right to confrontation in light of the United States Supreme Court’s opinion in Crawford, v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).

In Crawford, the United States Supreme Court held that the Confrontation Clause prohibited the admission of testimonial hearsay statements in a criminal trial unless the hearsay declarant is unavailable to testify and the accused has had a prior opportunity to cross-examine the witness.

“Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers’ design to afford the States flexibility in their development of hearsay law — as does [Ohio v.] Roberts, [448 U.S. 56 (1980),] and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination. We leave for another day any effort to spell out a comprehensive definition of ‘testimonial.’ Whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations. These are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.”

541 U.S. at 68, 124 S.Ct. 1354 (footnote omitted).

In Perkins v. State, 897 So.2d 457 (Ala.Crim.App.2004), this Court interpreted Crawford to conclude that an autopsy report prepared by the Alabama Department of Forensic Sciences was nontestimonial in nature, was not violative of the Confrontation Clause, and was therefore admissible under the business-record exception to the hearsay rule. See Perkins, 897 So.2d at 464.

Although in a slightly different posture, we have addressed the impact of Crawford on the procedures set forth in § 12-21-300 et seq., Ala.Code 1975, in Brown, supra, as follows:

“In adopting § 12-21-300 et seq. the legislature clearly intended to reduce the burden on the Alabama Department of Forensic Sciences caused by the need for live testimony by its forensic scientists, and this Court is cognizant of the large number of cases currently before the department and of its limited resources. To have forensic scientists traveling across Alabama to testify in every case involving forensic evidence, even in those cases in which the opposing party has no intention of challenging the forensic evidence, would greatly reduce the amount of time those scientists have to actually conduct the examinations and analyses and would cause even more delays in the criminal justice system. It is equally apparent, however, that the legislature did not intend for certificates of analysis to be admissible in all cases, because it both limited the applicability of the statutes to certain cases and provided a method by which the opposing party could compel the attendance of the forensic scientist. Under § 12-21-302, the proper time for the opposing party to raise an objection to the admission of a certificate of analysis and to compel the attendance of the forensic scientist is at least 30 days before trial. The purpose behind this time requirement, as well as the time requirement in § 12-21-301 is apparent: to allow sufficient time to secure the presence of the forensic scientist in those cases in which his or her presence is necessary. Crawford, in addressing the admissibility of testimonial hearsay statements under the Confrontation Clause, does not affect these time requirements, and because Brown did not comply with the time requirement in § 12-21-302 — that a challenge to the admissibility of the certificate of analysis be raised at least 30 days before trial— whether Crawford impacts the other provisions of § 12-21-302, i.e., that the opposing party must establish a legitimate basis for wanting to cross-examine the forensic scientist and that if the opposing party fails to conduct the cross-examination, the costs of bringing the scientist to court will be taxed to the opposing party, need not be determined in this case.”

Brown v. State, 939 So.2d at 960-61.

We now hold that the use of a certificate of analysis does not violate the Confrontation Clause in this case. This determination is not inconsistent with the United States Supreme Court’s holding in Crawford, because we conclude that a certificate of analysis offered pursuant to § 12-21-300 et seq. is nontestimonial in nature and is admissible under the business-record hearsay exception. A number of other states have reached similar conclusions. See, e.g., Commonwealth v. Verde, 444 Mass. 279, 827 N.E.2d 701 (2005) (certificate of analysis nontestimonial evidence that is admissible under business-record exception to the hearsay rule and is not violative of the Confrontation Clause); and State v. Cunningham, 903 So.2d 1110 (La.2005) (certificates of analysis not violative of Confrontation Clause as discussed in Crawford where statutory provisions allowing for certificates of analysis provide notice to the accused that certificates will be used and opportunity for accused to subpoena the person who performed the analysis).

In reaching a similar conclusion regarding autopsy reports in Perkins, this Court stated:

“Unlike the hearsay in Crawford v. Washington, the hearsay at issue in this case is nontestimonial in nature — an autopsy report on the victim, Wysteria Mathews. As the Court noted in White[ v. Illinois, 502 U.S. 346 (1992) ]: ‘[wjhere [the] proffered hearsay has sufficient guarantees of reliability to come within a firmly rooted exception to the hearsay rule, the Confrontation Clause is satisfied.’ 502 U.S. at 356, 112 S.Ct. [743].
“Both Alabama and federal caselaw have recognized that the business records exception is a firmly rooted exception to the hearsay rule. See, e.g., McNabb v. State, 887 So.2d 929, 969 (Ala.Crim.App.2001); Ohio v. Roberts, 448 U.S. [56,] 66 n. 8, 100 S.Ct. 2531 [ (1980) ]. Moreover, under Alabama law, ‘An autopsy report made in the regular course of business is admissible under the business records exception.’ 2 Charles W. Gamble, McElroy’s Alabama Evidence § 254.01(18) (5th ed.1996) (footnote omitted). See also Adams v. State, 955 So.2d 1037 (Ala.Crim.App.2003); Baker v. State, 473 So.2d 1127, 1129 (Ala.Crim.App.1984). The results of Dr. Embry’s autopsy and the supporting materials are business records, which bear the earmark of reliability or probability of trustworthiness and further the ‘ “integrity of the fact-finding process,” ’ see Coy v. Iowa, 487 U.S. 1012, 1020, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988) (quoting Kentucky v. Stincer, 482 U.S. 730, 736, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987)); because this evidence satisfies the core value of the Confrontation Clause, the State did not have to establish Dr. Embry’s unavailability.”

897 So.2d at 464. Much like an autopsy report, certificates of analysis prepared by the Alabama Department of Forensic Sciences are business records grounded in inherently trustworthy and reliable scientific testing, rather than opinionated assertions. As the Massachusetts Supreme Court noted in Commonwealth v. Verde, supra, a certificate of analysis is not based on speculation, opinion, or guesswork, but instead is founded in scientific testing to determine the physical and chemical composition of the substance and the amount or quantity of the substance. Thus, this Court’s holding in Perkins is extended to encompass certificates of analysis provided by the Alabama Department of Forensic Sciences. For these reasons, Pruitt is not entitled to any relief on this claim.

Based on the foregoing, the judgment of the trial court is affirmed.

AFFIRMED.

McMILLAN, P.J., and COBB and BASCHAB, JJ., concur. SHAW, J., concurs in part and concurs in the result in part, with opinion.

SHAW, Judge,

concurring in part and concurring in the result in part.

I concur as to Part I of the main opinion. As to Part II, in light of the fact that the United States Supreme Court in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), left “for another day any effort to spell out a comprehensive definition of ‘testimonial,’ ” 541 U.S. at 68, 124 S.Ct. 1354, I cautiously agree that the admission of the certificate of analysis in this case, pursuant to Ala. Code 1975, § 12-21-300, would not have violated the Confrontation Clause.

In Crawford, the Court signaled that fact-based business records “by their nature were not testimonial.” 541 U.S. at 56, 124 S.Ct. 1354. Picking up on this “window of insight” into the Justices’ thinking, the Massachusetts Supreme Court, in Commonwealth v. Verde, 444 Mass. 279, 282-84, 827 N.E.2d 701, 705-06 (2005), stated:

“Although the Court [in Crawford] left ‘for another day any effort to spell out a comprehensive definition of “testimonial,” ’ it provided that the term ‘applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.’ [Crawford v. Washington, 541
U.S. 36] at 68, 124 S.Ct. 1354 [ (2004) ]. The Court noted that ‘[t]hese are the modern practices with closest kinship to the abuses at which the Confrontation Clause was directed.’ Id. However, the Court also recognized that ‘[t]here were always exceptions to the general rule of exclusion’ of hearsay evidence and that several were well established when the confrontation clause was enacted. Id. at 56, 124 S.Ct. 1354. Specifically, the Court suggested in dictum that a business or official record would not be subject to its holding as this exception was well established in 1791. Id.
“Certificates of chemical analysis are neither discretionary nor based on opinion; rather, they merely state the results of a well-recognized scientific test determining the composition and quantity of the substance....
“Furthermore, we do not believe that the admission of these certificates of analysis implicate ‘the principal evil at which the Confrontation Clause was directed ... particularly its use of ex parte examinations as evidence against the accused.’ Crawford, supra at 50, 124 S.Ct. 1354. The documentary evidence at issue here has very little kinship to the type of hearsay the confrontation clause intended to exclude, absent an opportunity for cross-examination. Id. at 51-53, 124 S.Ct. 1354. Rather, it is akin to a business or official record, which the Court stated was not testimonial in nature. Id. at 56, 124 S.Ct. 1354.”

I find the rationale of the Massachusetts Supreme Court persuasive with respect to the interplay of certificates of analysis and the Confrontation Clause, although, admittedly, different approaches have been taken, and different conclusions reached, by other courts. See, e.g., Las Vegas v. Walsh, 124 P.3d 203 (Nev.2005), and People v. Rogers, 780 N.Y.S.2d 393, 8 A.D.3d 888 (2004). It is significant to me that certificates of analysis are not based on opinion but are grounded on scientific testing to determine the physical and chemical composition of the substance analyzed and the quantity of that substance. Because this Court holds that certificates of analysis are not testimonial in nature, the constitutionality of § 12-21-300 under Crawford is not implicated. Thus, the issues left open in Brown v. State, 939 So.2d 957 (Ala.Crim.App.2005) — whether Crawford impacts the other provisions of § 12-21-302, i.e., that the opposing party must establish a legitimate basis for wanting to cross-examine the forensic scientist and that if the opposing party fails to conduct the cross-examination, the costs of bringing. the scientist to court will be taxed to the opposing party — are now moot and need not be reached.

I note, however, that in Smith v. State, 898 So.2d 907 (Ala.Crim.App.2004) (Shaw, J., concurring in part and concurring in the result in part), and Perkins v. State, 897 So.2d 457 (Ala.Crim.App.2004) (Shaw, J., concurring in part and concurring in the result in part), I found it unnecessary to determine whether the autopsy reports in those cases were testimonial or nontesti-monial in nature. Because the Crawford Court did not provide a comprehensive definition of testimonial evidence and, in fact, suggested several different approaches that might be used to determine whether certain evidence is testimonial, I remain concerned that this Court’s holdings in Smith and Perkins were overly broad. Contrary to our holdings in those cases, it is not evident to me that all autopsy reports are nontestimonial in nature, without any consideration as to whether the findings in such reports are, on the one hand, fact-based, routine, descriptive, and nonanalytical, or, on the other hand, include contested conclusions or opinions that are central to the determination of the corpus delecti. Other courts have read Crawford as requiring that a middle ground be reached with respect to autopsy reports, i.e., that the distinction be made between factual, routine, descriptive, and nonanalytical findings and contested opinions and conclusions drawn from objective findings. See, e.g., State v. Lackey, 280 Kan. 190, 120 P.3d 332 (2005); Rollins supra; and People v. Bryant, 27 A.D.3d 1124, 815 N.Y.S.2d 372 (2006). Because of my concerns in this respect, I must concur in the result as to Part II of the main opinion.

      . Claim II in Pruitt’s brief.

      . Pruitt did make general assertions in furtherance of his Confrontation Clause challenge to the use of the certificate of analysis, which we address in Part II of this opinion, but those assertions did not have any impact on the question of the State's noncompliance with § 12-21-301.

      . We are not suggesting that the result reached in Lee was incorrect. To the contrary, under the facts of that case, the error was not harmless. Our overruling of Lee is limited to the extent that it holds that a reversal is mandated in any case in which the State is not in strict compliance with the 40-day notice requirement.

      . Our research reveals that although a number of appellants have previously argued this issue to this Court, see, e.g., Brown v. State, supra, the issue had not been preserved. Thus, this case represents the first time that the question has been properly presented to this Court post-Crawford.

      . Although we concluded in Brown that the challenge to the use of the certificate of analysis was not preserved for appellate review in that case, the above-cited excerpt is applicable to the present case.

      . Further, as is noted above, in Alabama, if an accused wishes to challenge any perceived inaccuracies in the findings in the certificate of analysis, or in the methods by which the findings were reached, § 12-21-300 et seq. provide the mechanism by which he may do so; thus, an accused is not without recourse by which to cross-examine the preparer of the certificate of analysis.

      . See Rollins v. State, 392 Md. 455, 897 A.2d 821 (2006) (noting that dicta of the United States Supreme Court is instructive of the Supreme Court's views and should not be dismissed out of hand when there is no clear precedent to the contrary).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Miguel RODRIGUEZ and The Law Offices of William F. Souza/William F. Souza, Appellants, v. GRADUATE PLASTICS, INC. and Valley Forge Insurance Company, Appellees.
    No. 1D05-2508.
    District Court of Appeal of Florida, First District.
    Dec. 18, 2006.
    Rehearing Denied May 1, 2007.
    William F. Souza, North Miami Beach, for Appellants.
    Michelle Cabrera-Leon, Plantation, for Appellees.
   PER CURIAM.

The parties in this workers’ compensation proceeding mediated a lump sum settlement agreement. The settlement agreement required the employer/carrier, Graduate Plastics, Inc. and Valley Forge Insurance Company, to pay the claimant, Miguel Rodriguez, the sum of $9,000, from which claimant would then pay his attorney a fee of $1,600. In addition, in the settlement agreement, the employer/carrier agreed to pay claimant’s attorney an additional $4,000 in attorney’s fees. When the claimant failed to execute the settlement documents, the employer/carrier filed a motion to enforce. After a hearing, the Judge of Compensation Claims (JCC) entered an order finding that the parties had entered into a valid and enforceable settlement agreement. Neither the employer/carrier nor the claimant timely appealed this order.

Thereafter, pursuant to sections 440.20(ll)(c), 440.20(ll)(d), and 440.20(ll)(e), Florida Statutes (2002), the JCC entered an order approving the attorney’s fee to be paid to the claimant’s attorney by the claimant in the amount of $1,600. There was no child support ar-rearage. See Jacobsen v. Ross Stores, 882 So.2d 431, 432 (Fla. 1st DCA 2004)(recog-nizing that the parties are entitled to enter into a settlement agreement, and the only part which requires approval by the JCC is that regarding the attorney’s fees paid to the claimant’s attorney by the claimant). The order did not address the payment of the additional fees.

Claimant has appealed contending that the JCC should have also ordered the employer/carrier to pay claimant’s attorney the $4,000 which was part of the settlement agreement. Under section 440.20(ll)(c), however, “[t]he settlement agreement requires approval by the JCC only as to the attorney’s fees paid to the claimant’s attorney by the claimant.” Although, it is clear from the record before us that, as part of the negotiated settlement agreement, employer/carrier has agreed to pay claimant’s attorney $4,000, the JCC did not err in failing to include language in his order approving payment of the $4,000 additional fees. See Jacob-sen, 882 So.2d at 432.

AFFIRMED.

BROWNING, C.J., WOLF and VAN NORTWICK, JJ., concur.


author: ROTHENBERG, Judge.

text:
    Yoel SANCHEZ and Yordanys Meneses, Appellant, v. Elida NERYS, Appellee.
    No. 3D05-2434.
    District Court of Appeal of Florida, Third District.
    Feb. 14, 2007.
    Rehearing Denied May 18, 2007.
    Kubicki Draper and Angela C. Flowers, Ocala, for appellant.
    Mark J. Feldman, Miami, for appellee.

      Before FLETCHER, SHEPHERD, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The defendants, Yoel Sanchez (“Sanchez”) and Yordanys MeneseS (“Meneses”) (collectively referred to as “defendants”), appeal (1) a final judgment in favor of the plaintiff, Elida Nerys (“Nerys” or “plaintiff’), in the amount of $185,290.00; and (2) a final order awarding the plaintiff her attorneys’ fees and costs pursuant to section 768.79, Florida Statutes (2005). For the following reasons, we reverse both orders and remand for a new trial.

Nerys filed a personal injury action to recover for injuries allegedly suffered as a result of an autQmobile accident involving Nerys, who was a passenger in a vehicle driven by her daughter, and another vehicle owned by Sanchez but which was being driven by Meneses. During the course of the jury trial, the defendants, in support of their argument that the plaintiffs alleged injuries pre-dated the accident, presented the expert testimony of Dr. Salvador Ramirez. Over objection, on cross-examination, the plaintiffs counsel sought to impeach Dr. Ramirez by asking him whether he kept computer records detailing the cases in which he had served as an expert witness and the lawyers who hired him. Dr. Ramirez responded that he does not keep computer records of this information, but he does keep a list of court appearances. He testified that he does not, however, maintain a list of the lawyers who retain him as an expert. Over objection by the defendants, the plaintiffs counsel was allowed to continuously and improperly question Dr. Ramirez regarding his computer system, claiming, without support, that Dr. Ramirez had intentionally and deliberately destroyed and eliminated information on his computer pertaining to the number of cases he had been retained as an expert and the lawyers who had retained him. This impropriety was compounded by plaintiffs counsel’s remarks during closing argument, wherein counsel again accused Dr. Ramirez of deliberately destroying documents and arguing that his testimony should be disregarded as a result. There was no evidence in the record, however, .that Dr. Ramirez had created or destroyed any documents or information in his computer. The record, in fact, demonstrated that Dr. Ramirez did not input this information in his computer, and although not required to do so, maintained a list of his court appearances for a reasonable period of time and had produced this list to plaintiffs counsel prior to trial.

An expert witness’ credibility may be impeached by showing bias, partiality, improper relationships or motives. § 90.608, Fla. Stat. (2005); § 90.702, Fla. Stat. (2005). Florida case law and Florida Rule of Civil Procedure 1.280(b)(4)(A) provide “reasonable latitude for inquiry about the extent of a trial expert’s alignment with one side, or another” and “allow some discovery regarding work that the trial expert has done in other cases.” Flores v. Miami-Dade County, 787 So.2d 955, 958 (Fla. 3d DCA 2001). To demonstrate the probability of bias, an expert witness may be questioned about the scope of employment and the compensation arrangements for the pending' case; about the expert’s general litigation experience and the percentage of work performed for plaintiffs or defendants; about the identity of other cases wherein the expert has been retained; and may be asked to give an approximate estimate of the portion of the expert’s time or work devoted to services as an expert witness, which may be based on the number of hours, percentage of hours, or percentage of earned income derived from serving as an expert witness. Fla. R. Civ. ‘P. 1.280(b)(4)(A); Elkins v. Syken, 672 So.2d 517, 520-21 (Fla.1996). An expert, however, may not be compelled to compile or produce non-existent documents. Elkins, 672 So.2d at 521. Consequently, we conclude that the cross-examination of Dr. Ramirez went beyond permissible grounds on the issue of bias and amounted to a prohibited attack on Dr. Ramirez’s character when plaintiffs counsel repeatedly argued that Dr. Ramirez had intentionally destroyed documents that had never been created and of which he was under no duty to compile or produce.

In addition to the plaintiffs counsel’s improper cross examination of' Dr. Ramirez and the argdments flowing from this cross examination during closing argument, are plaintiffs counsel’s improper, inflammatory remarks and personal attacks upon defense counsel. Plaintiffs counsel’s arguments to the jury that defense counsel was “pulling a fast one,” “hiding something,” and “trying to pull something,” was tantamount to calling defense counsel liars and accusing them of perpetrating a fraud upon the court and jury. Owens Corning Fiberglas Corp. v. Morse, 653 So.2d 409, 411 (Fla. 3d DCA 1995); Sun Supermarkets, Inc. v. Fields, 568 So.2d 480, 481 (Fla. 3d DCA 1990). “As this court has stated on numerous occasions, these inflammatory and prejudicial remarks will not be condoned.” Owens, 653 So.2d at 411. We And, as we have previously found, that these types of remarks are “of the nature and type that neither a rebuke or retraction of the comments would ‘destroy their prejudicial and sinister influence.’ ” Sun Supermarkets, 568 So.2d at 481 (quoting E. S.S. Lines, Inc. v. Martial, 380 So.2d 1070, 1072 (Fla. 3d DCA 1980)).

Based upon a careful review of the record, we conclude that the improper attack upon Dr. Ramirez’s credibility, compounded by plaintiffs counsel’s improper and inflammatory closing argument, prejudiced the defendants, depriving them of a fan-trial and, warranting a new trial. See Manhardt v. Tamton, 832 So.2d 129, 131-32 (Fla. 2d DCA 2002).

As we are remanding for a new trial, we necessarily reverse the final judgment for attorneys’ fees and costs since the statutory basis for the award of fees and costs is dependent on the underlying judgment obtained by the plaintiff. See § 768.79, Fla. Stat. (2005); Allstate Ins. Co. v. Mazzorana, 731 So.2d 38, 40 (Fla. 4th DCA 1999).

REVERSED and REMANDED for a new trial in accordance with this opinion.


text:
    Russell OASIS, Appellant, v. Alberto J. ESPINOZA and Amaro Food Enterprises, Inc., a Florida corporation, Appellees.
    No. 3D06-569.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.

      Joel E. Perwin; Richard A. Friend, Miami, for appellant.
    Cooney, Mattson, Lance, Blackburn, Richards & O’Connor and Warren B. Kwavnick, Fort Lauderdale, for appellees.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The plaintiff, Russell Oasis, appeals from an order denying his motion for attorney’s fees and costs. We affirm.

Alberto J. Espinoza (“Espinoza”) struck the rear end of the plaintiffs vehicle while driving a delivery truck owned by Amaro Food Enterprises, Inc. (“Amaro Food”). Count I of the plaintiffs second amended complaint sought judgment against Amaro Food and Espinoza jointly and severally, alleging that Amaro Food “negligently entrusted, and/or maintained” its truck, and that Espinoza “negligently operated and/or maintained” Amaro Food’s truck. Counts II and III were against Amaro Food’s insurer, Mercury Insurance Company of Florida (“Mercury Insurance”). In their combined answer, Amaro Food and Espinoza denied negligence, but admitted that Espinoza operated the truck with Amaro Food’s consent.

Mercury Insurance settled with the plaintiff. Amaro Food and Espinoza, however, rejected the plaintiffs proposal for séttlement and proceeded to trial. After final judgment was entered in favor of the plaintiff in the amount of $11,470.63 against Amaro Food and Espinoza, jointly and severally, the plaintiff moved for an award of attorney’s fees and costs against defendants Amaro Food and Espinoza, jointly and severally, pursuant to section 768.79, Florida Statutes, and Florida Rule of Civil Procedure 1.442.

The plaintiff argued that he was entitled to attorney’s fees and costs based upon the proposal for settlement he had served on the defendants and the final judgment entered by the trial court, which was at least twenty-five percent greater than his proposal for settlement. The plaintiffs proposal for settlement provides as follows:

Plaintiff, Russell Oasis, by his undersigned counsel and pursuant to § 768.79 Florida Statutes and Florida Rule of Civil Procedure 1.442, hereby offers that Final Judgment be entered in this cause against Defendants, Alberto J. Espinoza and Amaro Food Enterprises, Inc., jointly and severally, and in favor of Plaintiff, Russell Oasis, in the total sum of Six thousand seven hundred fifty ($6,750.00) dollars for all of said Plaintiffs claims, including attorney’s fees which attorney’s fees are not a part of said Plaintiffs legal claims.

The defendants successfully argued in the trial court that the plaintiff was not entitled to an award of attorney’s fees and costs because the plaintiffs proposal for settlement failed to comply with the requirements of Florida Rule of Civil Procedure 1.442(c)(3), which provides: “A proposal may be made by or to any party or parties and by or to any combination of parties properly identified in the proposal. A joint proposal shall state the amount and terms attributable to each party.”

In denying the plaintiffs motion for attorney’s fees and costs, the trial court relied on Florida Rule of Civil Procedure 1.442(c)(3); section 768.79, Florida Statutes (2005); and the Florida Supreme Court’s decision in Lamb v. Matetzschk, 906 So.2d 1037 (Fla.2005). As the issue in this appeal is whether the proposal for settlement complies with rule 1.442(c)(3) and section 768.79, we review the trial court’s denial of the plaintiffs motion for attorney’s fees and costs de novo. See Papouras v. BellSouth Telecomms., Inc., 940 So.2d 479, 480 (Fla. 4th DCA 2006)(holding that “[t]he question of whether a proposal for settlement complies with section 768.79, Florida Statutes (2005), and Florida Rule of Civil Procedure 1.442 is reviewed de novo

In Lamb, the Florida Supreme Court held that “the plain language of rule 1.442(c)(3) mandates that a joint proposal for settlement differentiate between the parties, even when one party’s alleged liability is purely vicarious.” Lamb, 906 So.2d at 1042 (emphasis added). In the instant case, the plaintiffs joint proposal for settlement to defendants Amaro Food and Espinoza did not “state the amount and terms attributable to each party,” as required by rule 1.442(c)(3). Thus, based upon Lamb, the plaintiffs joint proposal for settlement does not comply with rule 1.442(c)(3) and is invalid as a matter of law.

The plaintiff, however, argues that Lamb and its progeny are distinguishable because in Lamb, vicarious liability was disputed, whereas here, vicarious liability is undisputed. The plaintiff claims that where the liability of one defendant is based upon vicarious liability and the issue of vicarious liability is undisputed, to require apportionment of the offer between the active tortfeasor and vicarious tortfea-sor makes no sense; is in conflict with the purpose of the statute, which is to promote settlements; and is an expansion of the statute, the rule, and Lamb. We are unpersuaded by this argument.

Both rule 1.442(c)(3) and section 768.79 must be strictly construed because they are in derogation of the common law. See Willis Shaw Express, Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278-79 (Fla.2003). As rule 1.442(c)(3) clearly requires that “[a] joint proposal shall state the amount and terms attributable to each party” and the Florida Supreme Court in Lamb held that the rule applies even when one party’s alleged liability is purely vicarious, we conclude that it makes no legal difference whether vicarious liability is disputed or undisputed.

Affirmed.


text:
    Natividad de Jesus ZUNIGA and Roger Omar Nunez, Appellants, v. Chad Clifford EISINGER, Appellee.
    No. 3D06-1131.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.

      Leonardo A. Canton, Coral Gables, for appellants.
    Kubicki Draper and Sharon C. Degnan, Fort Lauderdale, for appellee.
    Before SHEPHERD, SUAREZ, and ROTHENBERG, JJ.
   ROTHENBERG, Judge.

The plaintiffs, Natividad de Jesus Zuni-ga and Roger Omar Nunez, appeal from an adverse final judgment entered in favor of the defendant, Chad Clifford Eisinger, following a jury trial on the issue of liability. We affirm.

The plaintiffs contend that the trial court abused its discretion in denying their motion for new trial based on several statements made by defense counsel during closing argument. Although the plaintiffs’ trial counsel failed to object contemporaneously to the argument they now claim was improper, by raising the issue in their motion for new trial, the plaintiffs have sufficiently preserved the issue for appellate review. See Murphy v. Int’l Robotic Sys., Inc., 766 So.2d 1010, 1027 (Fla.2000)(holding that a civil litigant may not seek appellate review based upon an improper unobjected-to closing argument unless the litigant raises a challenge to the argument in its motion for new trial).

In Murphy, the Florida Supreme Court established the appropriate standard of review when determining whether a civil litigant is entitled to a new trial based on unobjected-to statements made by opposing counsel during closing argument. The civil litigant must challenge the argument in the trial court by way of a motion for new trial, id. at 1027; establish that the argument was improper, id. at 1029; demonstrate that the argument was incurable, id. at 1030; and establish that the argument “so damaged the fairness of the trial that the public’s interest in our system of justice requires a new trial.” Id. at 1030. Based on this standard of review and our thorough review of the record on appeal, including the transcript of defense counsel’s closing argument and the plaintiffs’ motion for new trial, we conclude that the trial court did not abuse its discretion in denying the plaintiffs’ motion for new trial. Id. at 1030-31 (“On appeal, the appellate court must ... apply an abuse of discretion standard in reviewing either the trial court’s grant or denial of a new trial based on the unobjected-to closing argument.”).

The plaintiffs also contend that the trial court abused its discretion in allowing the introduction of the video deposition of the Director of Traffic Control for Miami-Dade County, which included testimony regarding certain Miami-Dade County traffic signal reports and intersection timing data records, as the plaintiffs claim these reports and records were inadmissible hearsay. The plaintiffs, however, did not object to the introduction of this deposition nor object to the introduction of the reports and records as inadmissible hearsay, and consequently have waived this argument on appeal. See Fittipaldi USA, Inc. v. Castroneves, 905 So.2d 182, 185 (Fla. 3d DCA 2005)(“Generally, to preserve an issue for appellate review, counsel is required to object contemporaneously with the offered testimony.”); see also State, Dep’t of Highway Safety & Motor Vehicles v. Pipkin, 927 So.2d 901, 903 n. 1 (Fla. 3d DCA 2005)(holding that because complaining party did not raise hearsay objection, the issue may not be considered on appeal).

Moreover, even if the plaintiffs had preserved their objections to this testimony, our ruling would be the same, as we conclude that the witness’ testimony was properly admitted. See Jackson v. State, 877 So.2d 816, 817-18 (Fla. 4th DCA 2004)(holding that “[c]omputer printouts, like business records, are admissible if the custodian or other qualified witness is available to testify as to manner of preparation, reliability and trustworthiness of the product”)(quoting Pickrell v. State, 301 So.2d 473, 474 (Fla. 2d DCA 1974)); Specialty Linings, Inc. v. B.F. Goodrich Co., 532 So.2d 1121, 1121 (Fla. 2d DCA 1988).

Lastly, the plaintiffs argue that the trial court abused its discretion in granting the defendant’s request to bifurcate the trial as to liability and damages. We disagree. In the motion to bifurcate, the defendant argued that the issue of liability was hotly contested, and if tried only on this issue, the trial would take approximately three to four days, whereas if tried as to both liability and damages, the trial would take approximately six to seven days. The defendant further explained that following the trial on liability, “this case will most likely resolve one way or the other.” The trial court granted the motion to bifurcate.

On appeal, the plaintiffs argue that by granting the motion to bifurcate they were unduly prejudiced because Natividad de Jesus Zuniga (“Ms. Zuniga”) suffered a brain injury as a result of the automobile accident, and therefore, she was unable to give an ample explanation of what occurred. As the record on appeal does not indicate that the plaintiffs either filed a response opposing the motion to bifurcate or objected to the bifurcation, the issue was not preserved for appellate review.

Nonetheless, the record demonstrates that the trial court addressed the plaintiffs’ concern. Prior to the commencement of Ms. Zuniga’s testimony, the trial court explained the following to the jury:

I would not have ordinarily given you any information about the case, but because we’re bifurcating this case, you’re not going to hear any medical evidence.
And the plaintiffs attorney and the plaintiff believe that it is important for you — and I’ve always obviously agreed — it’s important for you to understand Ms. [Zuniga’s] physical and mental issues because part of weighing the evidence is not only to listen to what a witness has to say but to look at how they answer, measure their demeanor, and how they respond, and in that way also make a decision as to whether what is being said to you or not is the truth.
So this information is given to you not to evoke sympathy but to explain the manner in which Ms. [Zuniga] is testifying.
When considering Ms. Zuniga’s testimony, you need to be aware of the injuries suffered by the plaintiff in this accident in that said injuries may have an effect on Ms. Zuniga’s ability to recall the events.

After explaining the numerous injuries suffered by Ms. Zuniga as a result of the automobile accident, the trial court explained:

These injuries affect Ms. Zuniga in the following manner: Loss of memory, vertigo at least twice a day — that means dizziness — double vision whenever she looks to the right without her glasses, disorientation, permanent loss of sensation of left hand. She’s suffered six or seven seizures requiring medical attention since the accident, suffers from minor seizures during her sleep once every two months which do not require hospitalization. She’s unable to drive. She suffers from severe headaches and is bedridden three to four times a week due to those headaches. These headaches are associated with the pain in her eyes. She takes Dilantin three times a day, and it does make her sleepy.
Let me remind you, this is not meant to invoke any sympathy. You’re not here to decide whether she has or doesn’t have those injuries, and you’re to take that into account only insofar as you’re judging her credibility while testifying and her memory of the events of the day in question.

Therefore, on the merits, we find that the plaintiffs were not unduly prejudiced, and that the trial court did not abuse its discretion in granting the motion to bifurcate. See Barker v. State, 877 So.2d 59, 62 (Fla. 4th DCA 2004)(“A trial court’s decision to bifurcate is generally subject to an abuse of discretion standard of review.”).

Accordingly, we affirm.


text:
    James SMITH, Steven R. Barrett and John B. Riley, Appellants, v. CITY OF OPA-LOCKA and James B. Wright, Appellees.
    No. 3D06-1577.
    District Court of Appeal of Florida, Third District.
    Feb. 28, 2007.
    Rehearing and Rehearing En Banc Denied May 18, 2007.
    James H. Greason; John B. Riley, St. Petersburg, for appellants.
    Geller, Geller, Fisher Garfinkel and Peggy Fisher (Hollywood); A. Quinn Jones, III, Opa-locka City Attorney, for appellees.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. Smith v. City of Pinellas Park, 836 So.2d 1255 (Fla. 2d DCA 1976).


text:
    Thomas BOWEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0743.
    District Court of Appeal of Florida, First District.
    March 2, 2007.
    Rehearing Denied April 30, 2007.
    Thomas Bowen, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

HAWKES, THOMAS, and ROBERTS, | JJ., concur.


text:
    Alonso VALENCIA, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D07-315.
    District Court of Appeal of Florida, Third District.
    March 7, 2007.
    Rehearing Denied May 2, 2007.
    Alonso Valencia, in proper person.
    Bill McCollum, Attorney General, for respondent.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

We deny the defendant’s petition for habeas corpus. The defendant’s appellate counsel was not ineffective. See Valle v. Moore, 837 So.2d 905 (Fla.2002); Coney v. State, 937 So.2d 255 (Fla. 3d DCA 2006); Price v. State, 931 So.2d 1004 (Fla. 3d DCA 2006).

Petition denied.


author: PER CURIAM. PER CURIAM.

text:
    Gonzalo ESTRADA, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-329.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2007.
    Order Denying Rehearing and Clarifying Conflict May 16, 2007.
    Gonzalo Estrada, Florida City, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Spera v. State, 923 So.2d 543 (Fla. 4th DCA 2006).

STONE, POLEN and MAY, JJ., concur.

On Motion FOR Rehearing and Motion to CERTIFY Conflict

PER CURIAM.

We deny appellant’s motion for rehearing but grant his motion to certify conflict. As our affirmance was based in part on Spera v. State, 923 So.2d 543 (Fla. 4th DCA 2006), as we did in Spera, we certify conflict with Keevis v. State, 908 So.2d 552 (Fla. 2d DCA 2005).

STONE, POLEN and MAY, JJ., concur.


text:
    Hank M. EVANS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0499.
    District Court of Appeal of Florida, First District.
    March 8, 2007.
    Rehearing Denied April 30, 2007.

      Hank M. Evans, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(B).

ALLEN, DAVIS, and BENTON, JJ., concur.


author: WELLS, Judge.

text:
    ARCHDIOCESE OF MIAMI, INC., Petitioner, v. Yolanda G. MIÑAGORRI, Respondent.
    No. 3D06-3015.
    District Court of Appeal of Florida, Third District.
    March 14, 2007.
    Rehearing Denied May 18, 2007.

      J. Patrick Fitzgerald and Roberto J. Diaz, Miami; Gaebe, Mullen, Antonelli, Esco & Dimatteo and Benjamin M. Esco, Coral Gables, for petitioner.
    Eddy 0. Marban, for respondent.
    Before RAMIREZ, WELLS, and LAGOA, JJ.
   WELLS, Judge.

The Archdiocese of Miami, Inc. seeks to prohibit the court below from entertaining Yolanda Miñagorri’s whistleblower claim stemming from an altercation between Mi-ñagorri and her immediate supervisor. See §§ 448.101-.105, Fla. Stat. (2006) (Florida’s Private Sector Whistleblower Act). We grant relief but withhold our writ on the assumption that the court below will comply with this opinion.

Miñagorri’s complaint alleges that in August 2005, while the principal of St. Kevin Catholic School, Miñagorri was assaulted and battered when Father Jesus Saldaña, her immediate supervisor, grabbed her by the arm and verbally threatened her. According to Miñagorri, when she complained to the Archdiocese about Father Saldaña’s behavior, the Archdiocese retaliated by terminating her employment.

In count II of her four count complaint, Miñagorri makes a Private Sector Whistle-blower Act claim under section 448.102(3), which prohibits employers from taking retaliatory action against employees who object to or refuse to participate in activities, policies or practices of the employer which are “in violation of a law, rule, or regulation.” § 448.102(3), Fla. Stat. (2006). Mi-ñagorri seeks equitable and monetary relief provided under the Act, including front pay and reinstatement to her position. § 448.103(2), Fla. Stat. (2006). The Archdiocese claims that the court below lacks subject matter jurisdiction to entertain this claim under the First Amendment’s bar against secular court review of religious policy and administration. We agree.

The First Amendment to the United States Constitution, in pertinent part, provides that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.” U.S. Const. amend. I. In Watson v. Jones, 80 U.S. (13 Wall.) 679, 20 L.Ed. 666 (1871), the United States Supreme Court interpreted this clause as placing matters of church government and administration beyond the purview of civil authorities:

[Wjhenever the questions of discipline, or of faith, or ecclesiastical rule, custom, or law have been decided by the highest of these church judicatories to which the matter has been carried, the legal tribunals must accept such decisions as final, and as binding on them, in their application to the case before them.

Id. at 727; McClure v. Salvation Army, 460 F.2d 553, 559 (5th Cir.1972).

This interpretation, known as the “ecclesiastical abstention doctrine,” precludes courts from exercising jurisdiction where an employment decision concerns a member of the clergy or an employee in a ministerial position:

The First Amendment and the ecclesiastical abstention doctrine preclude civil courts from inquiring into ecclesiastical matters. Courts may not consider employment disputes between a religious organization and its clergy because such matters necessarily involve questions of internal church discipline, faith, and organization that are governed by ecclesiastical rule, custom, and law. See Gonzalez v. Roman Catholic Archbishop of Manila, 280 U.S. 1, 16, 50 S.Ct. 5, 74 L.Ed. 131 (1929); see also Gellington v. Christian Methodist Episcopal Church, Inc., 203 F.3d 1299, 1304 (11th Cir.2000).

Se. Conference Ass’n of Seventh-Day Adventists, Inc. v. Dennis, 862 So.2d 842, 843-44 (Fla. 4th DCA 2003); see McClure, 460 F.2d at 558-60 (confirming that the ecclesiastical abstention doctrine enunciated in Watson precludes secular court review of employment decisions concerning a church and its minister).

Thus, where, as here, a claim challenges a religious institution’s employment decision, the inquiry is whether the employee is a member of the clergy or serves a ministerial function. See Alicea-Hernandez v. Catholic Bishop of Chicago, 320 F.3d 698, 703-04 (7th Cir.2003). If so, secular review is generally precluded:

The ministerial exception, a doctrine rooted in the First Amendment’s guarantees of religious freedom, precludes subject matter jurisdiction over claims involving the employment relationship between a religious institution and its ministerial employees, based on the institution’s constitutional right to be free from judicial interference in the selection of those employees. See generally Serbian E. Orthodox Diocese for the U.S. and Can. v. Milivojevich, 426 U.S. 696, 96 S.Ct. 2372, 49 L.Ed.2d 151 (1976); Lewis v. Seventh Day Adventists Lake Region Conference, 978 F.2d 940 (6th Cir.1992).

Hollins v. Methodist Healthcare, Inc., 474 F.3d 223, 225 (6th Cir.2007); see also Alicea-Hernandez, 320 F.3d at 703 (the church need not proffer any religious justification for constructive termination of ministerial employee because “[t]o rule otherwise would enmesh the court in endless inquiries as to whether each discriminatory act was based in Church doctrine or simply secular animus”); EEOC v. Roman Catholic Diocese of Raleigh, N.C., 213 F.3d 795, 801 (4th Cir.2000) (finding that “[t]he exception precludes any inquiry whatsoever into the reasons behind a church’s ministerial employment decision” and that “[t]he church need not ... proffer any religious justification for its decision”); Rayburn v. Gen. Conference of Seventh-Day Adventists, 772 F.2d 1164, 1169 (4th Cir.1985) (while it is important to determine if the employee holds a ministerial position, a court “may not then inquire whether the reason for [the ministerial employee’s] rejection had some explicit grounding in theological belief’ because “the free exercise clause of the First Amendment protects the act of a decision rather than a motivation behind it”); Powell v. Stafford, 859 F.Supp. 1343, 1348 (D.Col.1994) (concluding that the church did not have to prove that it terminated a ministerial employee for a “religious reason” because “religious organizations have a per se right to select its ministerial employees”); Goodman v. Temple Shir Ami, Inc., 712 So.2d 775, 777 (Fla. 3d DCA 1998) (concluding that “[i]nquiring into the adequacy of the religious reasoning behind the dismissal of a spiritual leader is not a proper task for a civil court”).

In this case, the parties concede that Miñagom is a ministerial employee. Although the ministerial exception has most often been raised in response to employment discrimination claims under Title VII of the Civil Rights Act of 1964 (Title VII), 42 U.S.C. § 2000e et seq., which specifically bars discrimination on the basis of religion, it has also been applied to claims under the Americans with Disabilities Act of 1990(ADA), 42 U.S.C. § 12101 et seq, and the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et seq., as well as to common law claims brought against a religious employer. See, e.g., Ogle v. Church of God, 153 Fed.Appx. 371 (6th Cir.2005) (applying ministerial exception to breach of contract and a number of tort claims); Werft v. Desert Sw. Annual Conference of United Methodist Church, 377 F.3d 1099, 1100 n. 1 (9th Cir.2004) (Title VII and ADA claims, noting that “£j]ust as there is a ministerial exception to Title VII, there must also be one to any federal or state cause of action that would otherwise impinge on the Church’s prerogative to choose its ministers”); Starkman v. Evans, 198 F.3d 173 (5th Cir.1999) (applying ministerial exception to ADA and state anti-retaliatory statute claims); Minker v. Baltimore Annual Conference of United Methodist Church, 894 F.2d 1354 (D.C.Cir.1990) (applying ministerial exception to ADEA claim); Hutchison v. Thomas, 789 F.2d 392 (6th Cir.1986) (applying ministerial exception to common law fraud, defamation, breach of contract and tort claims). We see no reason why the ministerial exception should not be applied to the instant whistleblower claim. See Malichi v. Archdiocese of Miami, 945 So.2d 526, 528 (Fla. 1st DCA 2006) (finding that the Free Exercise Clause of the First Amendment precluded judicial review of a priest’s workers’ compensation claim because it constituted an internal employment dispute between a priest and his church); Dennis, 862 So.2d at 843 (barring the trial court from exercising jurisdiction over a negligence claim brought against the church by its own pastor who claimed that the church had failed to adequately follow its own internal procedures when suspending him in response to allegations that he had made “unwelcome, sexually-suggestive overtures” to a member of the church’s congregation); see also Alicea-Hernandez, 320 F.3d at 700 (communications manager for church precluded from bringing charge of discrimination based on national origin and gender under Title VII after she was allegedly constructively discharged from her employment by the church); Roman Catholic Diocese of Raleigh, N.C., 213 F.3d at 797 (EEOC precluded from bringing claims of gender discrimination and retaliation under Title VII against the church on behalf of a music teacher who was not hired for a newly created music director position); Rayburn, 772 F.2d at 1164 (white female member of church precluded from bringing sex and race discrimination claims under Title VII after she was denied a pastoral position in the church); Shaliehsabou v. Hebrew Home of Greater Washington, Inc., 247 F.Supp.2d 728, 728 (D.Md.2003) (kosher supervisor precluded from bringing an action against a Jewish elder care facility under state’s wage and hour law and the Fair Labor Standards Act for unpaid overtime wages); Powell, 859 F.Supp. at 1345 (teacher at a Catholic high school precluded from bringing an ADEA age discrimination claim after the church failed to renew his employment contract); Pardue v. Center City Consortium Schs. of the Archdiocese of Washington, Inc., 875 A.2d 669, 671 (D.C.2005) (Catholic school principal precluded from bringing race discrimination and retaliation claims under the District of Columbia Human Rights Act after the church constructively terminated her employment contract); Goodman, 712 So.2d at 777 (affirming dismissal of rabbi’s suit for non-renewal of his employment contract and defamation); Sabatino v. Saint Aloysius Parish, 288 N.J.Super. 233, 235, 672 A.2d 217 (1996) (female principal of a parochial elementary school precluded from bringing gender discrimination, breach of contract and tort claims after she was not hired as principal of a new school by the church). Moreover, allowing the whistleblower claim to proceed would especially run afoul of the First Amendment because the requested remedy of reinstatement would require the Archdiocese to employ Miñagorri, a concededly ministerial employee.

Accordingly, we grant relief with the writ withheld.

      . In light of this holding, we do not address whether Miñagorri has stated a claim under the Private Sector Whistleblower Act. We also find Miñagorri's whistleblower claim distinguishable from third-party tort actions brought by parishioners against their respective churches based upon alleged sexual misconduct by a clergy member, see Doe v. Evans, 814 So.2d 370 (Fla.2002) and Malicki v. Doe, 814 So.2d 347 (Fla.2002), for the same reasons set forth by the First District in Mali-chi:

      Although we find that this court lacks jurisdiction to consider Appellant's claim, we acknowledge our supreme court’s holdings that permit third parties to file negligent-hiring and negligent supervision claims against hierarchical churches. We find Appellant’s claim distinguishable from both Evans and Malicki because Appellant's claim would excessively entangle civil courts in the resolution of a completely internal church matter involving no third parties.

        Malichi, 945 So.2d at 532 (citations omitted); see also Rapp v. Jews for Jesus, Inc., 944 So.2d 460, 464 (Fla. 4th DCA 2006) (finding that the First Amendment did not bar the plaintiff’s third-party tort claims based upon Malicki where "[n]one of the tort claims in this case flowed from an employment dispute between a church and a member of the clergy”).


text:
    Ronald SPRING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0680.
    District Court of Appeal of Florida, First District.
    March 15, 2007.
    Rehearing Denied April 27, 2007.
    Ronald Spring, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

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


text:
    Johnny L. BRYANT, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D06-1871.
    District Court of Appeal of Florida, First District.
    March 21, 2007.
    Rehearing Denied May 1, 2007.

      Johnny L. Bryant, pro se, Appellant.
    Bill McCollum, Attorney General, and Linda Horton Dodson, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The circuit court’s order denying appellant’s petition for writ of mandamus is affirmed. However, as appellee correctly concedes, appellant’s claim below constituted a “collateral criminal proceeding,” and the circuit court was therefore without authority to impose liens on appellant’s inmate trust account to recoup the filing fees and costs. See Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003); Jackson v. McDonough, 31 Fla. L. Weekly D2299, — So.2d —, 2006 WL 2527244 (Fla. 1st DCA Sept.5, 2006). Accordingly, we quash the portions of the circuit court’s orders on indigency for this appeal and for the initiation of the petition for writ of mandamus below which imposed a lien on appellant’s inmate trust account. The circuit court shall direct the reimbursement of any funds that have been withdrawn from appellant’s account to satisfy the improper hen orders.

ALLEN, DAVIS, and BENTON, JJ., concur.


author: SHEPHERD, J.

text:
    Dalia MINALLA, Appellant, v. EQUINAMICS CORPORATION, Appellee.
    Nos. 3D06-2880, 3D06-2850.
    District Court of Appeal of Florida, Third District.
    March 21, 2007.
    James A. Bonfiglio, Boynton Beach, for appellant.

      Tabas, Freedman, Soloff & Miller, and Robert Miller, Joel L. Tabas and Stacey F. Soloff, Miami, for appellee.
    Before FLETCHER and SHEPHERD, JJ„ and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

Dalia Minalla appeals an interlocutory order granting Equinamics Corp.’s motion for payment of rent pursuant to section 83.60(2) of the Florida Residential Landlord Tenant Act. §§ 83.40-83.682, Fla. Stat. (2005). Because there is a substantial, unresolved question in this case concerning whether Equinamics is an owner or landlord entitled to invoke the benefit of the statute, we reverse the order requiring payment of rent by Minalla.

Section 83.60(2), Florida Statutes (2005) provides:

In an action by the landlord for possession of a dwelling unit, if the tenant interposes any defense other than payment, the tenant shall pay into the registry of the court the accrued rent as alleged in the complaint or as determined by the court and the rent which accrues during the pendency of the proceeding, when due.... Failure of the tenant to pay the rent into the registry ... constitutes an absolute waiver of the tenant’s defenses other than payment, and the landlord is entitled to an immediate default judgment for removal of the tenant with a writ of possession to issue without further notice or hearing thereon.

83.60(2), Fla. Stat. (2005)(emphasis added).

This provision was included in the Florida Residential Landlord Tenant Act when it initially was adopted in 1973, see Ch. 73-330, Laws of Florida, to assure that a devious, sometimes “judgment proof’ tenant cannot both live rent free and dispute some non-monetary aspect of the tenancy at the same time. K.D. Lewis Enters. Corp. v. Smith, 445 So.2d 1032, 1035 (Fla. 5th DCA 1984). Ordinarily, the identity of the owner or landlord of the leased property is readily apparent. Here, however, Minalla alleges she was tricked into conveying her home to Equinamics in a transaction which is impressed with characteristics of a sale, but in reality is a disguised loan secured by her home. If this is accurate, then Equinamics is not an owner of Minalla’s residence but rather a lender who must proceed to oust Minalla via a foreclosure action. In addition, Equinam-ics has no right to insist on payments of “rent” into the court registry under section 83.60(2) of the Florida Residential Landlord Tenant Act.

Equinamics is the record owner of the residence under an agreement executed between the parties on November 22, 2004. On that date, Minalla executed a special warranty deed conveying her residence to Equinamics in return for a one-year lease back of the residence to Minalla with an option for her to re-purchase it later. As part of the transaction, Minalla received $10,000 in cash. Equinamics reduced Mi-nalla’s monthly lease payments by half to meet her economic needs. She also executed an Assignment of Escrow, Bill of Sale, and Name Affidavit in connection with the transaction. However, there was no settlement statement, title insurance, or tax or insurance proration. The first mortgage on the property remained undisturbed.

A month later, Equinamics borrowed $65,000 on the residence and paid the first mortgage on the property through a combination of those funds and Minalla’s reduced payments until Minalla stopped the payments. Since that time, Minalla has made the payments on the first mortgage to stave off foreclosure by the first mortgagee. In addition, since November 22, Minalla has maintained the interior and exterior of her home, the structure, the electrical, plumbing, and all major appliances. By her assessment, Equinamics has not reached into its own pocket to pay a single debt or expense relating to the property since it obtained title. Minalla apparently could not borrow on the equity in the residence herself because of creditworthiness issues of her own.

Minalla asserts that Equinamics impressed the transaction upon her as a result of a business practice by which it surfs the public real estate records via Internet, locates distressed residential property owners at risk of losing their homes— preferably ones with equity unreachable by the owner — and offers them interim assistance in the form of transactions of this nature. In this case, Equinamics contacted Minalla approximately sixty days after she and the first mortgagee entered into a stipulation of record in a pending foreclosure action brought against her by the first mortgagee whereby she waived all defenses, consented to amounts due, and was given six months to refinance and pay off the entire mortgage, failing which the mortgagee could obtain a foreclosure judgment against her ex parte upon the filing of an affidavit of default. In this predicament, Minalla averred that Equinamics was her only realistic option.

Based upon the facts of this case, it is apparent that the transaction by which Equinamics received title to the Minalla residence was not an ordinary real estate transaction. Likewise, the circumstances under which Minalla continued to remain on the property after she executed the special warranty deed to Equinamics was not possessed of the trappings of a usual landlord tenant relationship.

While not seriously disputing the proposition that the substance of a transaction controls over form when considering the legal effect of a real estate transaction or any other business transaction, see § 697.01(1), Fla. Stat. (2005)(“[a]ll conveyances, obligations, conditioned or de-feasible, bills of sale or other instruments of writing conveying or selling property ... for the purpose or with the intention of securing the payment of money ... shall be deemed and held mortgages ... ”); Rothschild Reserve Int’l, Inc. v. Silver, 830 So.2d 224, 225 (Fla. 4th DCA 2002)(“Section 697.01(1), Florida Statutes (2000) provides that all instruments of writing, conveying property for the purpose of securing the payment of money, are deemed mortgages subject to foreclosure.”); Valk v. J.E.M. Distribs. of Tampa Bay, Inc., 700 So.2d 416, 419 (Fla. 2d DCA 1997)(“whether a conveyance should be declared a mortgage under the statute depends on the particular facts, and, as the statute provides, is a question of the parties’ intent”), Equinamics nevertheless insists that as holder of record title to the property, it is entitled to require Minalla to pay rent into the court registry so long as she continues to live on the property. Like the trial court, Equinamics says this is necessary to “maintain the status quo,” until the issue of title finally is resolved. In this argument', Equinamics is in error.

Although a landlord generally is entitled to require a tenant in possession to deposit rents into the court registry during the course of any landlord tenant dispute where the tenant interposes any defense other than payment, the rule yields where title is in issue. This exception is well illustrated by the recent Fourth District Court of Appeal case, Frey v. Livecchi 852 So.2d 896 (Fla. 4th DCA 2003). In Frey, Pamela Livecchi, the owner of a Broward County home, entered into a one-year residential lease agreement with the Freys. Id. at 897. The Freys alleged that at the end of the lease agreement they had entered into an option to purchase the property. Id. Livecchi, on the other hand, denied the existence of any such option and asserted that at the end of the lease, the Freys became month-to-month tenants. Id. At the end of the period, Livecchi sent the Freys a notice to vacate the premises. Id. The Freys responded with a complaint for specific performance based upon the purported option. Id. Without conducting an evidentiary hearing on this • dispute, the trial court ordered the Freys to put the disputed past due “rent” in the registry of the court or face an order of eviction. Id. The court of appeal reversed stating:

Section 83.60(2), Florida Statutes, requires payment of rent into the registry of the court in residential landlord tenant disputes under Part II of Chapter 83. 83.60, Fla. Stat. (1999). However, section 83.60 does not apply when the occupancy is under a contract for sale of a dwelling unit or the property of which it is a part. 83.42(2), Fla. Stat. (1999). The Freys claim that this provision is inapplicable because they were not tenants under the statute. Rather, their claim is based on their rights under a contract for sale. The resolution of this factual dispute would determine whether section 83.60 is applicable. Because such a determination would be disposi-tive, we hold that the trial court was required to conduct an evidentiary hearing before determining whether the Freys were required to pay money into the court registry. Because the trial court failed to conduct such a hearing, we find that the trial court erred in imposing such a requirement, erred in entering the default judgment, and reverse the entry of the final default judgment.

Id. at 897-98; see also Grimm v. Huckabee, 891 So.2d 608 (Fla. 1st DCA 2005). Cf. Blanco v. Novoa, 854 So.2d 672, 673 (Fla. 3d DCA 2003)(reversing a motion to pay accrued “rent” into the registry of the court where the trial court “construed the agreement between Blanco and Novoa to be a [true] lease” rather than a mortgage); First Hanover v. Vazquez, 848 So.2d 1188 (Fla.3d DCA 2003)(affirming the grant of a motion for default and non-payment of rent where tenant ratified the conveyance of property by bringing action for damages for fraudulent inducement apparently without placing title in issue). As in Frey, there is a factual dispute in' this case concerning who is the true owner of the property. Because the trial court’s order requiring payments by Minalla of monies into the registry was made without conducting an evidentiary hearing concerning the nature of the transaction and who is the true owner of the residence, the court erred in imposing the payment requirement upon her.

Reversed.

      . We have jurisdiction. See First Hanover v. Vazquez, 848 So.2d 1188 (Fla. 3d DCA 2003)(order denying motion for default and writ of possession appealable under Fla. R.App. P. 9.130(a)(3)(C)(ii) as an order determining the right to immediate possession of property); see also Fla. R.App. P. 9.310(a)(3)(B); Hughes v. First Fed. Sav. & Loan Ass’n, 621 So.2d 557 (Fla. 4th DCA 1993)(order requiring payment into court registry is injunctive in nature).

      . In her amended complaint, Minalla alleges in Count I that this hybrid transaction — -which she nicknames a SLO for "sale, lease, option” — is a close-ended secured consumer credit transaction under the Federal Truth in Lending Act giving her ¿ right to rescind under 15 U.S.C. § 1635 and Reg. Z 226.23, and damages under 15 U.S.C. § 1640(a); in Count II that the SLO is a Home Ownership and Equity Protection Act Amendments (HOEPA) loan under 15 U.S.C. § 1602(aa) and Reg. Z 226.31, giving right to an addi-tiónal basis to rescind under § 1635 and enhanced actual damages under § 1640(a)(4); in Count III that the SLO violates Florida’s usury statute, § 687.02(1), Florida Statutes (2005); in Count IV a quiet title claim; and in Count VI[sic] seeks declaratory relief on the basis that enforcing the SLO as a "sale lease option” would enforce an illegal equity skimming contract in violation of section 697.08, a third degree felony, which it claims allows Minalla civil damages as being "against public policy.”


text:
    Luis Alberto GUERRA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-3220.
    District Court of Appeal of Florida, Third District.
    March 28, 2007.
    Rehearing Denied May 2, 2007.
    Luis Alberto Guerra, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, CORTIÑAS, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Coday v. State, 946 So.2d 988 (Fla.2006).


author: BENTON, J.

text:
    Nora O’CONNOR, Appellant, v. HILLSBOROUGH COUNTY SECURITY SVCS./CAMBRIDGE INTEGRATED SERVICES GRP EMPLOYER, Appellees.
    No. 1D06-2356.
    District Court of Appeal of Florida, First District.
    March 30, 2007.

      Jodi A. Zakaria and Alfred L. Deutsch-man of Deutschman & Zakaria, Inverness, for Appellant.
    Ann L. Robbins, Esquire, Tampa, for Appellees.
   BENTON, J.

In this workers’ compensation case, Nora O’Connor’s entitlement to permanent total disability benefits is undisputed. Nor does she question her former employer’s right to take a social security offset beginning on August 24, 2005, the day the former employer, Hillsborough County Security Services, and its servicing agent, Cambridge Integrated Services GRP Employer, filed a Notice of Action/Change (a DWC^4 form) with the Division of Workers’ Compensation asserting the right to an offset. But she does appeal the order of the judge of compensation claims insofar as it authorizes recoupment of “over-payments” from August 31, 1997, until August 13, 2005. We reverse this part of the order.

The burden was on the employer (and the employer’s servicing agent) to prove the right to recover overpayments they claimed as an offset. See Hardrives of Delray, Inc. v. O’Neal, 752 So.2d 693, 694 (Fla. 1st DCA 2000) (“[W]hen a social security offset has been challenged by a claimant, one may not be taken until and unless the employer and carrier prove that it is warranted.”); Santos v. K-Mart, 629 So.2d 1071, 1072 (Fla. 1st DCA 1994) (“The employer carries the burden, if raised by a claimant as an issue for hearing, to prove that a social security offset was appropriately taken.”). The claimant raised the issue in the present case, as to offsets for any period before August 24, 2005.

“At one time, the cases held that an unexplained overpayment of workers’ compensation benefits should be presumed to have been an irrevocable gift to the employee who received the overpayment.” Brown v. L.P. Sanitation, 689 So.2d 332, 333 (Fla. 1st DCA 1997). See also Belam Fla. Corp. v. Dardy, 397 So.2d 756, 758 (Fla. 1st DCA 1981) (holding “any overpayment of compensation is a gratuity in the absence of a finding that a reasonable basis exists for the overpayment”) (emphasis omitted). “While section 440.15(13) has reversed the statutory presumption that an overpayment is a gratuity, it has not altered the mechanism specified in section 440.15(10) for perfecting entitlement to a social security disability offset.” Monroe v. Publix # 148, 790 So.2d 1249, 1252 (Fla. 1st DCA 2001).

When Ms. O’Connor began receiving permanent total disability benefits on August 22, 1997, on account of a compensable injury that occurred on September 20, 1993, she was also receiving social security disability benefits. Asked to execute a Request for Social Security Disability Benefit Information (a DWC-14 form), she did so promptly on March 25, 1998, authorizing the Social Security Administration to release any information it had to her former employer and its servicing agent. See § 440.15(10)(c), Fla. Stat. (1998) (“The employee shall, upon demand by ... the employer, or the carrier, authorize the Social Security Administration to release disability information relating to her....”); Fla. Admin. Code R. 4L-3.021(1) (1998). The parties stipulated to her full cooperation, and that she never refused to sign a DWC-14 form.

On a form dated July 22,1998, the Social Security Administration indicated it was taking an offset against social security benefits in the amount of $450.80, and that it had not “calculated” the date on which it would stop taking the offset. Whether any such offset was in fact being taken at that time (or could lawfully have been taken) we need not decide. But the Social Security Administration eventually advised the employer or its servicing agent that it had stopped taking offsets on August 31, 1997, advice both parties seem to take as fact.

When the employer and servicing agent first asserted an offset against appellant’s workers’ compensation benefits on August 24, 2005, the Notice of Action/Change announced their intention to take not only an offset going forward, but also an additional deduction to recoup past overpayments: twenty percent of each biweekly permanent total disability benefits check until the putative overpayment was recovered in full. See § 440.15(12), Fla. Stat. (2005). When Ms. O’Connor disputed any right to recoupment, the parties entered into a stipulation and waived an evidentiary hearing, agreeing to submit the matter to the judge of compensation claims on legal memoranda and stipulated exhibits.

In her memorandum, Ms. O’Connor argued she had complied with all requests to furnish DWC-14 forms relating to her social security benefits, and that, pursuant to Monroe, the employer had no right to recover any offset for social security benefits against compensation payments it owed for any time before the employer perfected its right to an offset by filing a Notice of Action/Change. See 790 So.2d at 1251 (“Filing a notice of action/change and subtracting the offset from compensation payments suffices to perfect an employer’s right to a social security disability offset. No order of a judge of compensation claims is required.”). See generally Fla. Admin. Code R. 4L-3.0091(1) (1998). She argued that the employer and its servicing agent knew or should have known of the right to take an offset as early as March of 1998, but delayed filing a Notice of Action/Change for seven years because they failed to exercise due diligence.

The employer and its servicing agent argued that, when they contacted the Social Security Administration in 1998 to determine whether they could take an offset, they were incorrectly advised that the Social Security Administration was taking an offset itself, and believed they were not entitled to take an offset for that reason. Their memorandum argued:

Efforts were then made by the adjusters for the E/SA to get the SS Administration to cease taking an offset so that the E/SA could apply the offset. Phone calls to the SS Administration were made, the servicing agent contacted Health Advocates, Inc. for assistance in getting the SS Administration to cease the offset, releases from the Claimant were requested in order to obtain SS updates, etc. After regularly writing and phone calling, by 7-28-05, the E/SA was able to speak to a SS Administration supervisor, Mr. Rogers, who confirmed that the SS Administration had ceased taking an offset and, in fact, it had ceased on 8-31-97. Clearly, incorrect information had been provided to the E/SA by the Administration, in writing, and by phone, and the E/SA had relied on that incorrect information in calculating the Claimant’s PT benefits.

But this argument, among other things, went well beyond the stipulated evidence, which consisted solely of a petition for benefits filed on September 7, 2005; a June 15, 1998, letter to Patsy Iampieri; the Pretrial Stipulations, Pretrial Compliance Questionnaire, and Order; the Notice of Aetion/Change dated August 24, 2005; and the request for social security disability benefit information (form DWC-14) dated July 22,1998.

Framing the question as whether the employer or its servicing agent “unreasonably delayed in commencing application of the offset,” the judge of compensation claims concluded — with no stated rationale — that the initial three-month delay after Ms. O’Connor supplied the servicing agent with the DWC-14 form before it was filed with the Social Security Administration was not unreasonable, and said further:

Claimant does not contend that Employer/Servicing Agent did not make repeated attempts to ascertain the status of the SSA offset. Instead, Claimant argues that no timely effort was made to begin taking the offset when it became clear that an offset was warranted. The undersigned disagrees.The record reflects that it was not until August 13, 2005 that SSA confirmed that it ha[d] ceased taking its offset effective August 31, 1997. Claimant was paid full PTD benefits in addition to 5% supplemental benefits from August 22, 1997 through August 13, 2005....

But the employer and servicing agent did not present evidence of contact with the Social Security Administration before the telephone call in August of 2005, except for a single occasion in 1998. They presented no evidence that the information they got then was, in fact, false; and they did not explain why they failed to ask Ms. O’Con-nor or her counsel what social security benefits she was receiving.

Nothing in the evidence suggests that Ms. O’Connor and her counsel were anything other than completely forthcoming about her social security disability benefits, and not just in complying with every request to fill out a DWC-14 form: She disclosed by letter from counsel dated June 15, 1998, that she was receiving $192 in social security disability benefits, but that they were “trying to ascertain whether ... she is entitled to more” social security disability benefits. The letter closed: “If you need any further information about the social security disability amount, please feel free to call.... I look forward to hearing from you.”

In Monroe, which was decided after Hardrives of Delray, Inc., we stated unequivocally that it was necessary to (file the prerequisite Notice of Action/Change and) actually take the offset in order to perfect entitlement:

[A] recipient of permanent total disability benefits is entitled to full benefits, the concurrent receipt of social security disability benefits notwithstanding, until the employer or carrier takes a social security disability offset, at least where the recipient has complied with a request to execute a Request for Social Security Disability Benefits Information (LES Form DWC-14) and furnished the completed form to the (former) employer or its workers’ compensation insurance carrier in timely fashion.

790 So.2d at 1253. The claimant in this case timely completed DWC-14 forms, but entitlement to the offset was not perfected until the Notice of Action/Change was filed on August 24, 2005.

We decided in Upson v. Orange County School Board, 811 So.2d 733, 736 (Fla. 1st DCA 2002), that “any past ‘overpayments’ have not given the E/SA a right to repayment because the claimant was entitled to his full benefits until the E/SA took an offset.” Accord Monroe, 790 So.2d at 1253. Here the employer and servicing agent argue nevertheless that their seven-year delay in perfecting entitlement to an offset should be excused, on account of misinformation they say they received— not from the claimant, but from the Social Security Administration — at the very beginning of the seven-year period. They cite Hardrives of Delray, Inc., for the proposition that an employer is entitled to recoup overpayments for an offset where the failure to take the offset was traced to an “innocent mistake” based on information provided by the Social Security Administration. See 752 So.2d at 694. But the employer did take an offset in Har-drives, after perfecting the right to do so, and did not seek to recover a single penny from the claimant. See id. Hardrives does not support appellant’s position.

Crucial findings on which the judge of compensation claims relied below are based, not on evidence, but on allegations in the legal memorandum appellees filed. Arguments made in a legal memorandum are not evidence. See, e.g., Sanchez v. Woerner Mgmt., Inc., 867 So.2d 1173, 1175 (Fla. 1st DCA 2004) (“[T]he unsworn memorandum had no evidentiary value, and therefore should not have been admitted as an exhibit. It is in the nature of a pleading and not an evidentiary document.”). The judge of compensation claims erred in relying on allegations in the legal memorandum which had no support in the record. Findings of fact must be supported by competent, substantial evidence. See, e.g., Swanigan v. Dobbs House, 442 So.2d 1026, 1027 (Fla. 1st DCA 1983).

The order is reversed insofar as it allows recoupment, and the case is remanded for further proceedings.

BARFIELD and POLSTON, JJ., concur.


author: GROSS, J.

text:
    David H. KUEHL, Petitioner, v. Ric L. BRADSHAW, Sheriff of Palm Beach County, Respondent.
    No. 4D07-627.
    District Court of Appeal of Florida, Fourth District.
    March 30, 2007.
    Rehearing Denied May 16, 2007.

      Carey Haughwout, Public Defender, Daniel Cohen, and James Snowden, Assistant Public Defenders, West Palm Beach, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for respondent.
   GROSS, J.

David Kuehl seeks mandamus, certiora-ri, or habeas corpus relief from his sentence of incarceration. We deny all writs.

Kuehl entered into a plea agreement for the crime of the sale of cocaine which called for a sentence of six months in jail. The agreement provided that if Kuehl surrendered in court on January 2, 2007, at 8:30 a.m. without committing any new crimes, the judge would mitigate his sentence to 30 days in jail. Kuehl surrendered to the court two hours late and the trial judge did not mitigate Kuehl’s sentence.

On January 18, 2007, Kuehl moved to mitigate his sentence, arguing that he should not be punished for a de minimis violation of the plea agreement. The trial court denied the motion without a hearing. On February 1, 2007, Kuehl moved for reconsideration and requested a hearing. Kuehl’s motion explained that he was two hours late because he overslept while visiting his girlfriend at the hospital and was forced to rely on public transportation to get to court. The trial court denied the motion.

The denial of a rule 3.800(c) motion to mitigate is not appealable; however, there is a narrow exception that provides for certiorari review where the motion is denied as untimely. See Terry v. State, 940 So.2d 1288 (Fla. 5th DCA 2006); Diaz v. State, 931 So.2d 1002 (Fla. 3d DCA 2006). Mandamus is proper to compel a public official to perform a ministerial duty. The trial court did not have a ministerial duty to hold a hearing on the motion to mitigate. Outside of the timeliness issue, certiorari is not the proper procedural vehicle for reviewing the denial of a rule 3.800(c) motion; the issue presented in this case may be reached by a direct appeal of the sentence. See Eulo v. State, 786 So.2d 43 (Fla. 4th DCA 2001). Habeas corpus is not a substitute for appeal, so that issues that should or could have been raised on direct appeal are barred in habeas corpus proceedings. See Hargrave v. Wainwright, 388 So.2d 1021 (Fla.1980).

We discuss the merits of Kuehl’s argument because of the frequency with which the issue arises. Kuehl’s voluntary plea bargain contemplated exactly what happened. His two-hour tardiness was not de minimis. In Eulo, a direct appeal, we remanded for resentencing, holding that a fifteen minute tardiness was de minimis when it resulted in an increase in the sentence by four and one-half years. These types of cases are fact sensitive. Eulo took place at the Broward County Courthouse where 15 minute delays are not uncommon due to “long lines and the resulting delays connected with the elevators in the Broward court house, as well as the fact that the court house is inaccessible to the public from the rear, where the parking is located.” Id. at 44 n. 2. This case arose at the Palm Beach County Courthouse which does not currently present the same accessibility problems.

We distinguish Amaya v. State, 653 So.2d 1112 (Fla. 3d DCA 1995). That case involved a defendant tending to a sick child, so it appears that the tardiness was involuntary; also, nothing in Amaya “indicates that Amaya specifically agreed to the exact time of his surrender. Additional punishment was added because Amaya arrived late from furlough.” Eulo, 786 So.2d at 45 (Warner, J., dissenting).

Navedo v. State, 847 So.2d 585 (Fla. 3d DCA 2003), involved a defendant who was almost six hours late for a scheduled surrender because he overslept. This tardiness led to a four year sentence enhancement. In reversing the lower court, the third district felt that Amaya controlled its decision in Navedo. If Navedo stands for the proposition that a 5 hour 50 minute tardiness for a scheduled surrender date is always de minimis when a defendant oversleeps, we disagree with that conclusion. However, we decline to certify an express and direct conflict with Navedo, because of the difference in both the factual circumstances and the procedural posture of that case, which was a direct appeal.

The type of plea bargain here at issue is not improper. Trial courts should have broad discretion to determine whether a defendant has complied with the terms of the agreement.

KLEIN and HAZOURI, JJ., concur.