author: VAN NORTWICK, J. KAHN, J.,

text:
    COMMONWEALTH LAND TITLE INSURANCE COMPANY, Petitioner, v. Kenneth HIGGINS and Deete Higgins, on behalf of themselves and all others similarly situated, Respondents.
    No. 1D07-0946.
    District Court of Appeal of Florida, First District.
    March 6, 2008.

      Mark A. Brown, Joseph Hagedorn Lang, Jr., and Marty J. Solomon of Carlton Fields, P.A., Tampa, for Petitioner.
    P. Scott Russell, IV, of P. Scott Russell, P.A., Jacksonville; Stanley M. Grossman, D. Brian Hufford, and Robert J. Axelrod of Pomerantz, Haudek, Block, Grossman & Gross, LLP, New York; and Jeffrey M. Liggio of Liggio, Benrubi & Williams, P.A., West Palm Beach, for Respondents.
   VAN NORTWICK, J.

Commonwealth Land Title Insurance Company has filed a petition for writ of certiorari seeking this court’s review of an order granting a motion to compel discovery filed by Kenneth E. Higgins and Deete Higgins, respondents and plaintiffs below. The respondents sued Commonwealth on their own behalf and on behalf of a putative class of homeowners, alleging that they were not provided a discounted title insurance rate, known as the “reissue rate,” for which they may have been eligible when they refinanced their homes for the period July 1, 1999 to the present. The question presented here is whether the trial court abused its discretion when, prior to a class certification determination, it ordered, in effect, full merits discovery of all “documents concerning, referring or relating to title insurance reissue rates” in the possession of Commonwealth and approximately 1,000 of its independent title insurance agents. We find that Commonwealth introduced uncontradicted evidence demonstrating that the precertification discovery requested is unduly burdensome and will result in irreparable injury at this stage of the litigation; and that the trial court departed from the essential requirements in ordering full merits discovery of the closing files of Commonwealth and its agents. Accordingly, we conclude that the trial court abused its discretion and grant certiorari relief.

Factual and Procedural Background

In their putative class action suit, the respondents raise claims of breach of third party beneficiary contract and unjust enrichment on behalf of themselves and others who did not receive a discounted title insurance reissue rate when they refinanced their home mortgages. Commonwealth is a title insurance underwriter, licensed to sell title insurance in the State of Florida. See § 627.7711(3), Fla. Stat. (2003). The respondents allege that they were entitled to receive the statutory reissue premium rate for title insurance from Commonwealth, pursuant to section 627.7825(27), Florida Statutes, and Florida Administrative Code Rule 690-186.003, when they refinanced their mortgage on June 6, 2003. The respondents assert that under section 627.780, Florida Statutes (2003), a title insurance company and its agents are prohibited from deviating from the rates established by Florida law. The complaint alleges that Commonwealth “has a non-delegable duty associated with the sale of title insurance ... to calculate the correct premium;” that the actions of Commonwealth’s agents involved in the sale of title insurance are attributable to Commonwealth;, that Commonwealth “systematically failed to train its sales and other agents, employees, apparent agents, and representatives adequately concerning the applicability of the reissue rates that should have been made available to” the respondents and the other members of the class; and that, in the course of conducting title searches on the property of the respondents and other class members, Commonwealth would have learned that the parties were refinancing their mortgages.

The complaint further alleges that when the respondents purchased their home in 1999 they obtained an owner’s title insurance policy from Commonwealth. When they refinanced their mortgage loan in 2003, the new lender obtained a lender’s title insurance from Commonwealth under which the respondents were third party beneficiaries. At the time of the 2003 refinancing, the respondents were charged and paid at closing a premium of $1,390.00, which is the full premium based upon the applicable initial loan rate under Florida law. The reissue rate applicable to refinancing of their home, however, was $819.00. Thus, according to the complaint, Commonwealth overcharged the respondents by $571.00 in 2003.

The respondents filed requests for production and sets of interrogatories seeking, among other things, “documents concerning, referring, or relating to title insurance reissue rates.” Commonwealth objected to each request and interrogatory and ultimately filed a Motion for Protective Order. In this motion, Commonwealth stated that complying with the discovery requests “would be a monumental task” because Commonwealth has over 1,000 independent agents who issue hundreds of policies each year. Commonwealth further claimed it had “no practicable systematic method for locating such documentation within agents’ files because each agent documents its files in its own way, and such documentation is not ordinarily provided by the agent to Commonwealth.” Commonwealth further stated:

While Commonwealth recognizes that there is likely some documentation in these files that may be relevant to the class certification issues in this case, the overwhelming burden presented by review of independent agents’ files is not justified in light of the relationship between these documents and the burden Plaintiffs bear on their anticipated motion for class certification.

Commonwealth asserted that, although some documents in the agents’ files would show that some transactions involved consumers eligible for the reissue rate who were not told of their right thereto, “the individual issues of what unnamed members of the putative class knew and were told overwhelm any common issues in this case” and “this documentation cannot assist Plaintiffs in carrying their burden on class certification” because “Plaintiffs could carry that burden only by demonstrating that there is a method whereby, at trial, they could prove their own case and simultaneously prove the case of each unnamed member of the putative class.” Commonwealth concludes, “In other words, only by demonstrating that they do not need these documents could Plaintiffs prevail on the issue of class certification.”

In support of its Motion for a Protective Order, Commonwealth introduced an affidavit of the Florida general counsel for Land America Financial Group, Inc., Commonwealth’s parent corporation. This affidavit shows that Commonwealth does not maintain the closing files which contain the requested documents. Rather, the files are maintained by 1,073 title insurance agents which are separate, distinct, and independent entities from Commonwealth, including 445 lawyers and law firms in Florida. These agents and the requested documents are located in separate facilities in 168 cities throughout Florida. In response to the discovery request, Commonwealth produced a CD-Rom containing the equivalent of 6,155 pages of Excel spreadsheets detailing the agent number, policy number, policy date, amount of insurance, type of premium (i.e. original or reissue), and amount of premium for each of the 319,744 non-simultaneously issued loan policies from July 1999 (the beginning of the putative class period) through April 2006 (when the data were generated). The affidavit further states that, based on the experience of the affiant in the title insurance industry, the issuance of non-simultaneously issued loan policies “most often suggest[] a financing transaction.” As a result, the affidavit states that the respondents are seeking production of approximately 319,744 loan closing files in the possession of the independent title agents. The affiant explained that the respondents’ loan closing file produced below contains 216 pages of documents, which, in affiant’s view, is not unusual in size. Thus, if each of the 319,774 closing files contains an average of 216 pages, the discovery request involves 69,064,704 pages of documents.

The respondents then filed a Motion to Compel Discovery from Defendant. A hearing occurred and, in an order rendered on January 26, 2007, the trial court granted the motion to compel. The subject order directs Commonwealth to “forthwith respond fully and completely to interrogatories and request for production at issue on this motion.” The order further provides: “To the extent that information sought can not be derived except by review of paper files, [Commonwealth] may implement alternatives which have been suggested by Plaintiffs through counsel in their discussions and correspondence with [Commonwealth], including producing files to Plaintiffs so that Plaintiffs may review the files themselves.” Commonwealth now seeks relief in the form of a writ of certiorari.

PreceHification Discovery

Under rule 1.220(d)(1), Florida Rules of Civil Procedure, a court “may order postponement of the determination [of class certification] pending the completion of discovery concerning whether the claim or defense is maintainable on behalf of a class.” As a general rule, however, precertification discovery should be limited to matters relevant to class certification, not the merits of the case. Policastro v. Stelk, 780 So.2d 989, 991 (Fla. 5th DCA 2001); see also Baptist Hosp. of Miami v. DeMario, 683 So.2d 641, 643 (Fla. 3d DCA 1996)(granting a petition for certiorari, quashing the trial court’s order denying petitioner’s motion for protective order, and remanding with directions that the trial court stay merits discovery “pending its determination of [respondent’s] standing to serve as the class representative”); and Taran v. Blue Cross Blue Shield of Fla., Inc., 685 So.2d 1004, 1006 (Fla. 3d DCA 1997)(affirming denial of full merits discovery pending determination of plaintiffs’ standing, citing Baptist Hosp.).

Further, federal courts have frequently restricted precertification discovery to class certification matters and otherwise limited the scope and burden of such discovery. As a federal court has observed:

Certainly, class determination is preferable before substantial discovery on the merits has been conducted. Where the plaintiffs seek to represent a large national class on a broad spectrum of [issues], discovery can require immense commitments of time, money and resources and involve innumerable documents and records. Neither party would benefit from such extensive expenditures when it could have been determined in the early stages that a class action was not appropriate or that the class must be more limited in scope than originally alleged by the plaintiffs.

Karan v. Nabisco, Inc., 78 F.R.D. 388, 396 (W.D.Pa.1978); see also Washington v. Brown & Williamson Tobacco Corp., 959 F.2d 1566, 1570-71 (11th Cir.1992)(“To make early class determination practicable and to best serve the ends of fairness and efficiency, courts may allow classwide discovery on the certification issue and postpone classwide discovery on the merits”); Steioart v. Winter, 669 F.2d 328, 331 (5th Cir.1982)(“In light of the mandate of Rule 23(c)(1) that a certification determination be made ‘(a)s soon as practicable after the commencement of (the) action,’ we think it imperative that the district court be permitted to limit pre-certification discovery to evidence that, in its sound judgment, would be ‘necessary or helpful’ to the certification decision.”); Grigsby v. North Mississippi Med. Ctr., Inc., 586 F.2d 457, 460 (5th Cir.1978)(distriet court “acted well within its discretion in circumscribing plaintiffs’ request [to class certification matters] to prevent an undue burden on defendants”).

We recognize that there is not always a bright line between issues relating to class certification and issues relating to the merits of a claim or defense. See Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 & n. 12, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978)(reasoning that “the class determination generally involves considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiffs cause of action’ ” and that “ ‘[evaluation of many of the questions entering into determination of class action questions is intimately involved with the merits of the claims’” (quoting Mercantile Nat’l Bank v. Langdeau, 371 U.S. 555, 558, 83 S.Ct. 520, 9 L.Ed.2d 523 (1963); see generally, 15 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 3911, at 485 n. 45 (1976)). Here, Commonwealth acknowledges that the files sought may contain some information relevant to class certification, although it asserts that discovery of all of the files is not necessary for class certification and is overly burdensome. Especially in the context of precer-tification discovery, the trial court must balance the need to discover facts relevant to class certification issues with the burdens imposed by the discovery request. To achieve this balance,

[t]he discovery permitted must be sufficiently broad in order that the plaintiffs have a realistic opportunity to meet these [class certification] requirements; at the same time, the defendant must be protected from discovery which is overly burdensome, irrelevant, or which invades privileged or confidential areas. Discovery is not to be used as a weapon, nor must discovery on the merits be completed precedent to class certification.

National Organization for Women, Farmington Valley Chapter v. Sperry Rand Corp., 88 F.R.D. 272, 277 (D.C.Conn.1980) (citation omitted).

The Manual for Complex Litigation provides practical guidance for a court faced with substantial precertification discovery:

Some precertification discovery may be necessary if the allegations in the pleadings — with affidavits, declarations, and arguments or representations of counsel — do not provide sufficient, reliable information. To make this decision, the court should encourage counsel to confer and stipulate as to relevant facts that are not genuinely disputed, to reduce the extent of precertification discovery, and to refíne the pertinent issues for deciding class certification....
It is often useful ... to require a specific and detailed precertification discovery plan from the parties. The plan should identify the depositions and other discovery contemplated, as well as the subject matter to be covered and the reason it is material to determining the certification inquiry under Rule 23.... If some merits discovery is permitted during the precertification period, consider limits that minimize the time and effort involved, such as requiring the use of questionnaires or interrogatories rather than depositions, and consider limiting discovery to a certain number or a sample of proposed class members.

Manual for Complex Litigation (4th) § 21.14 (2006).

In limiting precertification discovery, courts recognize the cost of compliance that may be imposed on the party responding to discovery. Judge Frank H. Easterbrook has observed that discovery is not only “a tool for uncovering facts essential to accurate adjudication,” but also “a weapon capable of imposing large and unjustifiable costs on one’s adversary.” Frank H. Easterbrook, Discovery as Abuse, 69 B.U.L. Rev. 635, 636 (1989). Since the costs of compliance are usually borne by the responding party, a party making burdensome discovery requests can improve its negotiation position by maximizing those costs. “The prospect of these higher costs leads the other side to settle on favorable terms.” Id.

Certiorari Review

Discovery orders granting over-broad, unduly burdensome, or oppressive discovery are traditionally reviewed by certiorari. See Horne v. Sch. Bd. of Miami-Dade County, 901 So.2d 238, 240 (Fla. 1st DCA 2005)(“0rders granting discovery requests have traditionally been reviewed by certiorari because once discovery is wrongfully granted, the complaining party is beyond relief’ (citation omitted)); Goodyear Tire & Rubber Co. v. Cooey, 359 So.2d 1200, 1201 (Fla. 1st DCA 1978)(stat-ing “[i]t is well established that interlocutory orders rendered in connection with discovery proceedings may be reviewed by common law certiorari when petitioner can demonstrate that the order complained of does not conform to the essential requirements of law and may cause material injury through subsequent proceedings for which remedy by appeal will be inadequate,” and granting certiorari quashing discovery order). Review by certiorari is appropriate when a discovery order departs from the essential requirements of law, causing material injury of an irreparable nature which cannot be remedied on appeal from a final order. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987); see also Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). “[A]s a condition precedent to invoking a district court’s certiorari jurisdiction, the petitioning party must establish that it has suffered an irreparable harm that cannot be remedied on direct appeal.” Jaye v. Royal Saxon, Inc., 720 So.2d 214, 215 (Fla.1998). Thus, the reviewing court must first conduct a jurisdictional analysis to determine whether the petitioner has made a prima facie showing of the element of irreparable harm. See, e.g., Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 649 (Fla. 2d DCA 1995) (court must first determine jurisdictional requirements of (1) an irreparable injury, (2) that cannot be corrected by plenary appeal, before deciding whether petitioner has shown departure from essential requirements of law); accord Bared & Co., Inc. v. McGuire, 670 So.2d 153, 156 (Fla. 4th DCA 1996); Beekie v. Morgan, 751 So.2d 694 (Fla. 5th DCA 2000).

In support of certiorari review, Commonwealth argues that the discovery ordered is overly broad and unduly burdensome causing irreparable harm and that the relevance of the requested documents to the class certification issue is not sufficient to justify the burden of attempting to review and produce them at the precertification stage of the litigation.

The uncontradicted evidence in this record establishes that for Commonwealth and the non-party title insurance agents the burden of collecting the requested closing files would be immense. For the 445 attorney title agents, the closing files would be required to be retrieved from storage and attorney-client privileged information in those files would have to be redacted prior to copying or producing the files. Assuming that the 445 attorney agents possess a proportionate share of the closing files, that would require 15 minutes to review each file for privileged information, and that the review could be accomplished by paralegals at a relatively low rate of $50 per hour, the cost of this privilege review alone would be $1,658,675. Finally, assuming a conservative copying cost of 10 cents per page, the cost of simply copying the closing files would exceed $6.9 million.

Florida courts have declined to grant certiorari relief from orders allowing pre-certification merits discovery where the petitioners have failed to carry the burden of demonstrating that the order will result in irreparable injury. See, e.g., Richardson v. Gyves, 874 So.2d 658 (Fla. 4th DCA 2004); Florida Power & Light Co. v. Thomas, 838 So.2d 1240 (Fla. 1st DCA 2003). Here, however, Commonwealth has amply demonstrated that the appellees’ discovery request is unduly burdensome and will result in irreparable injury.

Similarly, in Union Fidelity Life Insurance Company v. Seay, 378 So.2d 1268, 1269 (Fla. 2d DCA 1979), the Second District reviewed an order denying a motion for a protective order on a request for production seeking “all records concerning the denial of coverage for claims filed under a particular policy language, without limitation as to time or as to the number of claims for which records must be produced.” The court granted certiorari and quashed the order, stating that “the records requested are 45,000 policies which are stored on computer software in Tre-vose, Pennsylvania. We find the production of these records to be unduly oppressive and burdensome to petitioner unless further discovery establishes such to be necessary.”

Appellate courts in other jurisdictions have limited precertification discovery where the trial court granted discovery broader than necessary to establish the elements for establishing class certification. In Chimenti v. American Express Co., 97 A.D.2d 351, 467 N.Y.S.2d 357, 358 (N.Y.App.Div. 1st Dept.1983), the plaintiff filed a putative class action seeking damages from American Express based upon its alleged misrepresentations and breach of contract for failing to honor the travelers check refund policy allegedly contained in the agreement entered into on purchase of the checks. The trial court certified a class and granted broad discovery. The Appellate Division reversed the class certification and substantially limited the discovery. The court explained:

However, the discovery request approved by Special Term, directing defendant to produce the names and addresses of all potential class members throughout the United States, is unduly broad for the limited purpose of allowing plaintiff access to proof of numerosity and the existence of a class.

Id. at 359 (citation omitted).

The respondents argue that the burden imposed by the discovery sought here does not warrant certiorari relief, citing Allstate Ins. Co. v. Hodges, 855 So.2d 636, 639-40 (Fla. 2d DCA 2003), and Topp Telecom, Inc. v. Atkins, 763 So.2d 1197, 1199-1201 (Fla. 4th DCA 2000). In Topp, the court held that for the economic cost imposed by a discovery request to constitute an “undue burden,” the burden must be so severe that it would “cast the recipient into financial ruin.” 763 So.2d at 1200. Thus, “[a]n erroneous order compelling discovery when the cost and effort to do so is burdensome but not destructive is simply not ‘sufficiently egregious or fundamental to merit the extra review and safeguard provided by certiorari.’ ” Id. (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 531 (Fla.1995)).

Even if we were to agree that the Topp Telecom “financial ruin” test was the correct legal standard to apply generally in certiorari proceedings challenging an order allowing burdensome discovery, an issue we do not address, as the cases discussed above establish, it is not the correct standard to apply at the precertifi-cation stage of a putative class action. See Karan v. Nabisco, Inc., 78 F.R.D. at 396; see also In re Gen. Motors Corp. Pick-Up Truck Fuel Tank Prods. Liab. Litigation, 55 F.3d 768, 780 (3d Cir.1995)(noting staging of class certification and merits discovery); Stewart v. Winter, 669 F.2d at 331 (“we think it imperative that the district court be permitted to limit pre-certification discovery to evidence that, in its sound judgment, would be ‘necessary or helpful’ to the certification decision.”); Grigsby v. N. Miss. Med. Ctr., Inc., 586 F.2d at 460(district court “acted well within its discretion in circumscribing plaintiffs’ request [to class certification matters] to prevent an undue burden on defendants”); Burstein v. Applied Extrusion Techs., Inc., 153 F.R.D. 488, 491 n. 7 (D.Mass.1994)(declining to allow merits discovery during class certification discovery); Rodriguez v. Banco Central, 102 F.R.D. 897, 902-03 (D.P.R.1984)(appropriate for court to limit precertification discovery to the issue of whether the requirements of Rule 23 are met).

The respondents also cite to the decisions of other state and federal courts that have granted class certification in eases, like the case before us, that involve claims relating to an alleged failure to charge a re-issue rate for title insurance sold in a mortgage refinancing transaction. See Cohen v. Chicago Title Ins. Co., 242 F.R.D. 295 (E.D.Penn.2007); Mitchell-Tracey v. United Gen. Title Ins. Co., 237 F.R.D. 551 (D.Md.2006); Dubin v. Sec. Union Title Ins. Co., 162 Ohio App.3d 97, 832 N.E.2d 815 (2005); In re Coordinated Title Ins. Cases, 2 Misc.3d 1007(A), 784 N.Y.S.2d 919 (N.Y.Sup.Ct. Jan. 8, 2004); Mitchell v. Chicago Title Ins. Co., No. CT 02-017299, 2003 WL 23786983 (Minn.Dist.Ct. Dec. 22, 2003)(unreported decision). These cases, however, do not involve a discovery order entered prior to class certification. In each of these cases, the court has certified the class and is addressing the burden of merits discovery or the manageability of the case given the task of reviewing many thousands of loan and policy transaction files. Thus, we do not find these cases persuasive with respect to precertification discovery issues. Interestingly, although these decisions do not discuss precertification discovery matters, one can infer from these decisions that precertification discovery of the refinancing files short of full merits discovery must have been undertaken to provide the factual basis for class certification.

Although we grant the petition for writ of certiorari sought by Commonwealth, our decision here does not deny respondents the discovery of the Commonwealth closing files as necessary to establish facts relating to class certification. On remand, the trial court has the discretion to limit discovery to decrease substantially the time, effort and expense involved in responding, including limiting discovery to a certain random sample of the files. See John Randall Whaley, Craig M. Freeman & Richard J. Arsenault, Precertification Discovery: A User’s Guide, 80 Tul. L. Rev. 1827, 1878 (2006)(“Where the defendant can prove the exorbitant cost in identifying its customers or insureds, the court may consider a random sampling that provides some information to the plaintiff.”). Further, the trial court has the discretion to require the parties to jointly produce a detailed discovery plan “which prioritizes ‘class’ related discovery, while not depriving a plaintiff or defendant from engaging in ‘merits’ discovery when facts and issues are inextricably intertwined ...;” In Re: Hamilton Bancorp, Inc., Sec. Litigation, No. 01CV0156, 2002 WL 463314 (S.D.Fla. Jan. 14, 2002).

BENTON, J., concurs.

KAHN, J., dissents with written opinion.

KAHN, J.,

dissenting.

Petitioner, Commonwealth Land Title Insurance Company (Commonwealth), has filed a petition for writ of certiorari seeking this court’s review of an order granting Plaintiffs’ Motion to Compel Discovery. I would conclude the discovery ordered here does not transgress the restrictive standard governing certiorari review. The discovery is also relevant to the pending issue of class certification. For these reasons, I would deny the petition.

Introduction

In support of its petition, Commonwealth argues (1) “record evidence demonstrates that the discovery ordered is overly broad and unduly burdensome” and (2) “any relevance of these documents to the class certification issue is not sufficient to justify the burden of attempting to review and produce them.” “[Rjeview by certio-rari is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.” Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995); see Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987). The Florida Supreme Court has explained:

In certiorari proceedings, an order may be quashed only for certain fundamental errors.... [N]ot every erroneous discovery order creates certiorari jurisdiction in an appellate court. Some orders entered in connection with discovery proceedings are subject to adequate redress by plenary appeal from a final judgment.
.... Litigation of a non-issue will always be inconvenient and entail considerable expense of time and money for all parties in the case. The authorities are clear that this type of harm is not sufficient to permit certiorari review.... Even when the order departs from the essential requirements of the law, there are strong reasons militating against certiorari review. For example, the party injured by the erroneous interlocutory order may eventually win the case, mooting the issue, or the order may appear less erroneous or less harmful in light of the development of the case after the order.

Martin-Johnson, 509 So.2d at 1099-1100 (citations omitted).

Discovery Ordered Not Overly Broad and Unduly Burdensome

First, Commonwealth has not shown the discovery ordered is overbroad and unduly burdensome, as those terms are used in Florida law. Commonwealth argues the order creates a “massive” burden for itself and its independent title agents because of the number of files involved (over 319,000), the location of those files (“in more than 2,000 separate facilities in 168 cities across the state belonging to 1,073 separate businesses, approximately 445 of which are lawyers or law firms”), and the “irregularly sized and stapled documents” in the files (which would require a higher photocopying charge). Such burden does not warrant certiorari relief, however, as “[mjost economic concerns regarding the cost of litigation do not involve the essential requirements of the law or a violation of a clearly established principle of law resulting in a miscarriage of justice.” Allstate Ins. Co. v. Hodges, 855 So.2d 636, 639-40 (Fla. 2d DCA 2003); see Topp Telecom, Inc. v. Atkins, 763 So.2d 1197, 1199-1201 (Fla. 4th DCA 2000).

Commonwealth argues the order at issue should be quashed because Commonwealth presented to the trial court uncon-tradicted evidence (the affidavit of Stacy Kalmanson) concerning the considerable time and expense required by the discovery order. The Fourth District has explained that such a claim would not warrant certiorari review:

Assuming that the objector’s evidence in support of the claim of undue burden were legally sufficient and uncontradict-ed, it is difficult to understand how, even if the order is erroneous, it would rise to the level of irreparable harm. We stress that in this case we deal with a claim that requested discovery is burdensome and unduly onerous. We distinguish the kind of claim made here with an objection contending that the requested discovery would effectively ruin the objector’s business. The kind of discovery involved here would simply require unwarranted effort and expense to comply with the request but that burden, though claimed to be inordinate would not cast the recipient into financial ruin. It seems clear to us that the mere fact of unwarranted effort and expense is not, by itself, synonymous with a “departure from the essential requirements of law” [e.s.] for which immediate review is necessary.

Topp Telecom, 763 So.2d at 1199-1200 (underlined emphasis added). The Fourth District went on to explain:

Whether a discovery burden is undue or excessive is usually a function of economics. While we do not denigrate the idea of economic concerns, especially in the world of business and commerce where economic success is the very purpose, we merely stress that most economic concerns do not rise to the level required by Martin-Johnson.
They do not involve the essential requirements of law. They do not involve a “violation of clearly established principle of law resulting in a miscarriage of justice.” Combs v. State, 436 So.2d 93, 96 (Fla.1983). The fact that a party may be forced to furnish discovery when the cost to do so is deemed inordinate does not involve a failure “to afford procedural due process” and “whether the circuit court applied the correct law.” Haines City Community Development v. Heggs, 658 So.2d 523, 530 (Fla.1995). An erroneous order compelling discovery when the cost and effort to do so is burdensome but not destructive is simply not “sufficiently egregious or fundamental to merit the extra review and safeguard provided by certiorari.” Haines City, 658 So.2d at 531. As important as economic concerns and business disruption are to commercial parties, they are not elementary in the way contemplated by Martin-Johnson.

Id. at 1200-01 (footnote omitted); accord Hodges, 855 So.2d at 641. I note the Topp Telecom court’s recognition that a trial court may further address the discovery issue when allocating costs at the conclusion of the case:

Of course the mere fact that a trial judge has allowed burdensome discovery to proceed does not forestall later reallocation of the costs incurred when the prevailing party seeks to tax costs at the end of the case. In taxing costs, the trial judge has considerable discretion and it is certainly within such discretion to determine at the end of the case that overly burdensome discovery requests by the losing party should be compensated to some extent by allowing specific requests for costs incurred thereby. It will be at this stage that the parties can have full review of the issues dealing with the allocation of those costs.

Topp Telecom, 763 So.2d at 1200-01 n. 5. Although some might not necessarily agree with the statement in Topp Telecom concerning the requirement of financial ruin, I note that nothing of that sort was alleged here. In fact, although Commonwealth has posited a dollar amount for compliance, it has not shown the relative financial burden such an expenditure would bear to its overall business.

Discovery Ordered Relevant to Class Certification

Also, Commonwealth has not shown the order at issue improperly allows merits discovery before a class certification determination. “Discovery in civil cases must be relevant to the subject matter of the case and must be admissible or reasonably calculated to lead to admissible evidence.” Langston, 655 So.2d at 94. In putative class action cases such as this one, “Florida Rule of Civil Procedure 1.220(d)(1) provides for discovery prior to class certification.” Policastro v. Stelk, 780 So.2d 989, 991 (Fla. 5th DCA 2001). The Fifth District has explained, “The rule does not contemplate merits discovery prior to class certification; rather, the rule permits discovery ‘concerning whether the claim or defense is maintainable on behalf of a class.’ ” Policastro, 780 So.2d at 991; see Fla. R. Civ. Pro. 1.220(d)(1) (“As soon as practicable after service of any pleading alleging the existence of a class under this rule and before service of an order for pretrial conference or a notice for trial, after hearing the court shall enter an order determining whether the claim or defense is maintainable on behalf of a class on the application of any party or on the court’s initiative.... In making the determination the court ... may order postponement of the determination pending the completion of discovery concerning whether the claim or defense is maintainable on behalf of a class.”).

In this case, the requests for production and sets of interrogatories sought, among other things, “documents concerning, referring, or relating to title insurance reissue rates.” Significantly, in its Motion for Protective Order, Commonwealth conceded that “some of the information contained in the independent title insurance issuing agents’ files could lead to the discovery of admissible evidence on the class certification issues in this case.” Thus, Commonwealth may not now deny entirely the relevance of the discovery here at issue. Plaintiffs have sought class action status, defining the class as all persons or entities “who refinanced their mortgages or fee interest, between July 1, 1999 and the present, where there has been no change in the fee ownership and who were charged a title insurance premium in an amount in excess of the reissue premium to which they were entitled.” Because “the information sought by respondent is the very information that is needed to determine whether a class action can be maintained,” Coastal Physician Services of Broward County, Inc. v. Ortiz, 720 So.2d 324, 326-27 (Fla. 4th DCA 1998), and is thus relevant, as conceded by Commonwealth, the trial court did not depart from the essential requirements of law in ordering its production. See id. (denying petition for writ of certiorari seeking review of order requiring discovery of “[a]ny and all documents, computer records, computer tape or discs or other medium containing information relating or pertaining in any way to any and all persons in every state and country to whom the attached form of document is, was, would have been and/or may have been sent” where the attached document was a form bill for collection of payment for health care services and where plaintiff had requested class action status for lawsuit, alleging that all persons who received this specific billing notice were members of the class).

Other Cases Involving Similar Claim

Finally, I note that other state and federal courts have granted class certification in cases involving the claims of failure to charge a reissue rate in a mortgage refinancing. See Cohen v. Chicago Title Ins. Co., 242 F.R.D. 295 (E.D.Pa.2007); Mitchell-Tracey v. United Gen. Title Ins. Co., 237 F.R.D. 551 (D.Md.2006); Dubin v. Sec. Union Title Ins. Co., 162 Ohio App.3d 97, 832 N.E.2d 815 (2005); Piscioneri v. Commonwealth Land Title Ins. Co., No. 010764/2002, 2 Misc.3d 1007(A), 784 N.Y.S.2d 919, 2004 WL 690380 (N.Y.Sup. Ct. Jan. 8, 2004) (unreported disposition); Mitchell v. Chicago Title Ins. Co., No. CT 02-017299, 2003 WL 23786983 (Minn.Dist. Ct. Dec. 22, 2003) (unreported decision). These cases do not involve a discovery order prior to class certification. Such distinction, however, is not important, as Commonwealth cannot seriously contend the trial court erroneously allowed merits discovery before class certification, particularly given the concession on relevance.

At least three of those courts explicitly addressed, in the context of manageability, the defense argument that review of individual agent files constitutes a burdensome, unduly difficult, or impossible task. See Cohen, 242 F.R.D. at 301-02; Mitchell-Tracey, 237 F.R.D. at 560; Piscioneri, 2004 WL 690380 at *18. For instance, consonant with the Plaintiffs’ position here, the court in Piscioneri stated:

[T]he defense argues that simply identifying members of the putative class is a gargantuan task arguing that the mere managerial tasks of the litigation weigh heavily against certification. The defendants contend that the structure of the mortgage policy premium sales business, and industry methods of record keeping, mean that it would take years to search the policy-holder files to determine eligibility for the reduced rate. In order to even identify the members of the classes defined in plaintiffs’ complaints, the files of hundreds of thousands of loan policy transactions will have to be analyzed, and the vast majority of these files are in the hands of title insurance sellers involved in agency relationships with the defendants. Further, defendants assert that even a thorough search of their records would not necessarily clarify which policy holders were entitled to, or did or did not receive the reduced rate.
The record suggests this is not an insurmountable task....
While the process of reviewing all files may indeed be immense, this court is not persuaded that the task cannot be managed. There is reluctance, here, as well, to halt the pursuit of alleged misconduct affecting a potentially very large number of consumers because of the state of the defendants’ records.

2004 WL 690380 at *18. In Cohen, the court stated:

Chicago Title would have this Court believe a class action would be unmanageable because it has no computerized database collecting the policies written by its more than 200 agents in Pennsylvania. Chicago Title argues the normal course of business within the industry make[s] it difficult, if not impossible, to search the policyholder files to determine who may have been eligible for the discounted reissue rate. Title insurance commitments are issued on standard forms provided by Chicago Title and title searches are conducted on a title plant owned by a Chicago Title entity named Fidelity National. Absent some affirmative evidence searches are impossible, this Court may reasonably infer and find a search for affected class members is not impossible.

242 F.R.D. at 302. Lastly, in Mitchell-Tracey, the court stated:

Defendants contend that the structure of the title insurance business and the normal course of business within the industry make it difficult, if not impossible, to search the policyholder files to determine who may have been eligible for the discounted reissue rate. Plaintiffs argue the contrary and assert that the data collection is not only possible, but that the data are readily available and reasonable methods are available to collect the data. I agree with Plaintiffs.
It strains credulity to suggest, as Defendants do, that the Defendants (and their agents) lack the ability to compile information on insurance policies that they have issued, even if those policies have been issued by independent agents.... Although the task may prove to be a laborious one, this court is not persuaded that it is one that cannot be reasonably managed, and Plaintiffs plainly are willing to do the work.

237 F.R.D. at 560. The same reasoning applies here.

Conclusion

Petitioner has not met the standard for certiorari review. Although I would deny certiorari, I would not, however, preclude any claims of privilege that may be raised by individual agents. I commend the trial court’s effort to allow compliance by measures short of the full production feared by Petitioner. Significantly, the order reserves to Commonwealth the ability to “implement alternatives.” Potential cost-reducing measures may include, for instance, sampling of the closing files. See John Randall Whaley, Craig M. Freeman & Richard J. Arsenault, Precertification Discovery: A User’s Guide, 80 Tul. L. Rev. 1827, 1878 (2006) (“Where the defendant can prove the exorbitant cost in identifying its customers or insureds, the court may consider a random sampling that provides some information to the plaintiff.”). Although such alternatives may exist, short of ultimate production of numerous files, this factor alone does not ripen the order into a candidate for certiorari review. The objects of discovery here are Petitioner’s files on the policies sold by Petitioner’s agents. Petitioner sold the policies and accepted premiums from the Plaintiffs and others. Petitioner can hardly claim now it cannot produce the policies or non-privileged information contained in the files. I respectfully dissent.

      . Commonwealth's independent title insurance agents are not parties to this action and have not been heard with respect to the respondents’ discovery request to produce the agents’ closing files.

      . Section 627.7825, Florida Statutes (2002), provides that "premium rates to be charged by title insurers ... from July 1, 1999 through June 30, 2002, for title insurance contracts shall be as set forth in [the statute].” Subsection (1) governs original title insurance rates and provides the following prescribed rates:
      Per Thousand
      From $0 to $100,000 of liability written $5.75
      From $100,000 to $1 million, add $5.00
      Over $1 million to and up to $5 million, add $2.50
      Over $5 million and up to $10 million, add $2.25
      Over $10 million, add $2.00
      Subsection (2) governs reissue rates and provides as follows:
      (2) REISSUE RATES.—
      (a)The reissue premium charge for owner's, mortgage, and leasehold title insurance policies shall be:
      Per Thousand
      Up to $100,000 of liability written $3.30
      Over $100,000 and up to $1 million, add $3.00
      Over $1 million and up to $10 million, add $2.00
      Over $10 million, add $1.50
      The minimum premium shall be $100.
      (b)Provided a previous owner’s policy was issued insuring the seller or the mortgagor in the current transaction and that both the reissuing agent and the reissuing underwriter retain for their respective files copies of the prior owner's policy or policies, the reissue premium rates in paragraph (a) shall apply to:
      1. Policies on real property which is unimproved except for roads,, bridges, drainage facilities, and utilities if the current owner’s title has been insured prior to the application for a new policy;
      2. Policies issued with an effective date of less than 3 years after the effective date of the policy insuring the seller or mortgagor in the current transaction; or
      3. Mortgage policies issued on refinancing of property insured by an original owner's policy which insured the title of the current mortgagor.
      (c)Any amount of new insurance, in the aggregate, in excess of the amount under the previous policy shall be computed at the original owner's or leasehold rates, as provided in subsection (1) [which provides for original title insurance rates].
      Section 627.7825 was repealed, see Chapter 2003-261, § 1978 at 2709, Laws of Florida, and the applicable rates after June 30, 2002 are governed by Florida Administrative Code Rule 690-186.003(2), effective July 1, 2002, which is identical in all material respects to the statute, and remains in force to the present.

      .Section 627.780(1), Florida Statutes (2003), provides that "[a] person may not knowingly quote, charge, accept, collect, or receive a premium for title insurance other than the premium adopted by the commission.”

      . The record reflects that there is a dispute concerning whether the respondents could access the data on the CD produced by Commonwealth. From the record, the parties appear willing to work together to assure that the respondents could obtain the information on the CD.

      . Florida Rule of Civil Procedure 1.220 is based on Federal Rule of Civil Procedure 23. Richardson v. Gyves, 874 So.2d 658, 659 (Fla. 4th DCA 2004)(Klein, J., concurring). “When Florida rules of procedure are patterned after federal rules, Florida has a longstanding tradition of relying on federal case law.” Id. (citations omitted).


source: Caselaw Access Project

author: THOMAS, J. VAN NORTWICK, J.,

license: Public Domain

text:
    CRUM SERVICES and Frank Winston Crum Insurance, Appellants, v. Ruben Alberto Soto LOPEZ, Appellee.
    No. 1D07-410.
    District Court of Appeal of Florida, First District.
    March 6, 2008.
    Juliana L. Curtis of Dixon & Associates, Tampa, for Appellants.
    Kristin J. Longberry of Alvarez, Sam-bol, Winthrop & Madson, P.A., Orlando, for Amicus Curiae Florida Association of Professional Employer Organizations.
    Jane-Robin Wender of Wender & Associates, P.A., Lake Worth, for Appellee.
   THOMAS, J.

This appeal involves a dispute between an injured worker (“Claimant”), his employer, Porto & Garcia Roofing (“P & G Roofing”), and P & G Roofing’s employee leasing company, Crum Services (“Crum”). Claimant was injured while working on a roofing project for P & G Roofing, and we are asked to determine which entity is legally responsible for compensating Claimant for his injuries. We disagree with the findings of the Judge of Compensation Claims (JCC) that Claimant was an employee of Crum, and reverse.

Crum, a professional employer organization, provides leased employees to its clients. Specifically, Crum enters into contractual agreements to provide payroll services and workers’ compensation benefits for the employees it leases to its clients.

Claimant sought compensation for his injury. At trial, evidence was presented that Daniel Del Sol offered Claimant a job on the spot with P & G Roofing to perform manual labor on a roofing job at the rate of $80 per day. Claimant never filled out any paperwork for Crum, P & G Roofing, or any other entity. On May 26, 2005, after working for three days, Claimant suffered a broken ankle when the ladder on which he was standing slipped and fell. According to Claimant, Mr. Del Sol took him to the doctor and a follow-up orthopedist appointment, paid for both appointments, and promised Claimant he would be paid $200 per week for missed time from work. Claimant was unable to return to steady work until September 2005. The only remuneration Claimant received was $175 for his three days of work, paid directly by Mr. Del Sol.

Testimony from both Mr. Del Sol and a P & G Roofing representative established that Mr. Del Sol was an employee of P & G Roofing at the time of the accident, and that P & G Roofing had pulled the permits for the job. Although Mr. Del Sol testified that he had authority to hire workers on behalf of P & G Roofing, the P &' G Roofing representative acknowledged that any employee hired on its behalf is required to fill out certain documents in order to be considered an employee of Crum. In fact, the contractual agreement entered into between P & G Roofing and Crum specifically states that Crum’s services will be provided to any employee of P & G Roofing who qualifies as a “Leased Employee.” In order to qualify as a Leased Employee, the agreement states that an employee must complete an employment application, W-4 withholding form, and Form 1-9, and that these forms “must be delivered to us [Crum] before the employee commences employment.” Furthermore, the agreement specifically provides that P & G Roofing “assume[s] full responsibility for workers’ compensation claims of other Parties hired by or working for you, whether as an employee, independent contractor, or in any other status.”

After hearing the testimony of the parties, the JCC found that P & G Roofing, as the general contractor on the worksite, is statutorily responsible for providing workers’ compensation coverage to Claimant. The JCC further found, however, that regardless of the specific language in the Lease Agreement, Crum agreed to “step into the shoes” of P & G Roofing and provide workers’ compensation coverage for all of P & G Roofing’s employees; thus, Crum is the proper carrier to provide workers’ compensation coverage to Claimant. Accordingly, the JCC ordered Crum to provide a primary care physician, temporary partial disability benefits, and attorneys’ fees. We respectfully disagree.

There is no question that a general contractor is responsible for providing workers’ compensation benefits to any employee of an uninsured subcontractor working on its job site. See § 440.10(1)(b), Fla. Stat. (2004). However, that is not the issue before us. The question here is whether a service leasing company is responsible for providing workers’ compensation benefits to all employees whom a contractor hires for a particular job site, or only those employees who meet the requirements agreed to by the parties.

Although we have not specifically addressed this issue, Specialty Employee Leasing v. Davis, 737 So.2d 1170 (Fla. 1st DCA 1999), offers guidance. In Davis, we held that an employee leasing company is not responsible for a claimant’s workers’ compensation coverage where there is no evidence that the claimant was an employee of the leasing company at the time of the accident. Id. at 1172. Although factually distinguishable, we adopt the reasoning of Davis. Because Crum never had an employer-employee relationship with Claimant under the terms of the Lease Agreement, Claimant’s workers’ compensation coverage falls to P & G Roofing rather than Crum. This view is bolstered by the plain language of the Lease Agreement: “You [P & G Roofing] assume full responsibility for workers’ compensation claims of other Parties hired by or working for you, whether as an employee, independent contractor, or in any other status.” It is clear that P & G Roofing is responsible for workers’ compensation coverage for those employees at the job site who do not meet the requirements of a “leased employee” under the Lease Agreement.

Furthermore, we reject the JCC’s contention that Claimant is a “statutory employee” of Crum under section 440.10(1)(b), Florida Statutes (2005). Under this provision, all of the employees of a contractor or subcontractor

shall be deemed to be employed in one and the same business or establishment, and the contractor shall be liable for, and shall secure, the payment of compensation to all such employees, except to employees of a subcontractor who has secured such payment.

§ 440.10(1)(b), Fla. Stat. (2005). This section is designed to ensure that employees engaged in the same contract work are covered by workers’ compensation, regardless of whether they are employees of the general contractor or its subcontractor. Andrews v. Drywall Enters., 569 So.2d 821, 823 (Fla. 1st DCA 1990). In other words, if Crum is deemed to be the “contractor” here and P & G Roofing the “subcontractor,” then Crum is responsible for providing workers’ compensation coverage for all of P & G Roofing’s employees.

The important distinction here, however, is that

“to be regarded as a ‘contractor’ ..., the company’s primary obligation in performing a job or providing a service must arise out of a contract. Furthermore, the ‘primary obligation’ refers to an obligation under the prime contract between the contractor and a third party, not to any agreement between the contractor and subcontractor.”

See Miami Herald Publ’g v. Hatch, 617 So.2d 380, 383 (Fla. 1st DCA 1993) (emphasis in original) (internal quotations and citations omitted). Here, Crum has no obligation to a third party; its only obligation is to provide the contracted services to P & G Roofing. It is P & G Roofing that has an agreement with an outside party to complete the roofing project, and it is clearly the contractor in this relationship. Because section 440(1)(b) requires a contractor-subcontractor relationship, no “statutory employment” attaches.

For the same reason, we distinguish this case from Gator Freightways, Inc. v. Roberts, 550 So.2d 1117 (Fla.1989). The supreme court agreed with this court’s opinion that “the legislative intent was to ‘insure that a person performing a contractor’s work, even as an employee of a subcontractor, shall be entitled to workers’ compensation protection with the primary employer if the subcontractor fails to provide such coverage.’ ” Id. at 1119 (citing Roberts v. Gator Freightways, Inc., 538 So.2d 55, 60 (Fla. 1st DCA 1989)). In essence, Roberts holds that a general contractor cannot contract around its obligation to provide workers’ compensation coverage to those employees working on its contractual undertaking. That is not the case here. Under our analysis, the general contractor (P & G Roofing) is responsible for providing workers’ compensation coverage for all employees at its site. The employee leasing agency is not the general contractor, and is only responsible for providing coverage to those employees whom it agrees to cover.

We reject Claimant’s policy argument that this decision creates a “gap” in coverage for a contractor’s employees who do not qualify for workers’ compensation coverage under the contractor’s employee leasing agreement. First, any such gap would have been closed here had P & G Roofing followed the agreed-upon employment procedures. Had the proper paperwork been completed, Claimant would have been a leased employee of Crum, and Crum would have been obligated to provide workers’ compensation coverage under the Lease Agreement. Second, as mentioned above, the contractor is still required to provide coverage for all employees working on its job site. Third, if a contractor does not have adequate coverage, the Legislature has provided specific remedies for an injured worker. For example, section 440.11(1)(a), Florida Statutes (2004), allows Claimant to bring a claim against P & G Roofing under either workers’ compensation law or in tort. In a tort action, the Legislature has eliminated an employer’s ability to raise the defenses of negligence of a fellow servant, assumption of the risk, or comparative negligence. § 440.06, Fla. Stat. (2004). Although it appears the Legislature has already addressed the present situation, it is within the province of the Legislature to determine if further remedies are necessary.

Because we agree with Crum that the JCC erred in finding that Claimant qualified as an employee of Crum, we REVERSE and REMAND for entry of an order consistent with this opinion.

LEWIS, J., concurs; VAN NORTWICK, J., specially concurring with written opinion.

VAN NORTWICK, J.,

specially concurring.

I concur with the majority opinion that the JCC erred in ruling that under the facts of this case appellee was an employee of Crum Services, an employee leasing company. See generally, Hazealeferiou v. Labor Ready, 947 So.2d 599, 602-605 (Fla. 1st DCA 2007). I write to express my concern that the instant case does demonstrate that, under the employee leasing arrangement common in Florida, workers’ compensation coverage “gaps” exist which allow claimants such as appellee to “fall through” the system.

Here, claimant Lopez was working on a construction site for which workers’ compensation coverage was provided through an employee leasing contract between Lopez’s employer, P & G Roofing, and Crum. As the majority opinion explains, however, because his employer failed to provide notice to Crum as required by the employee leasing contract, appellee is without workers’ compensation coverage for his employment injury. Further, it is unrealistic to expect that a civil action against P & G Roofing will provide appellee with a viable remedy. The record reflects that P & G has failed to appear in this proceeding and, like many small subcontractors, P & G is very likely “judgment proof.” As a result, under these circumstances either appellee is left without medical care for his injury or the Florida taxpayers will bear the cost of his care. I urge the legislature to give consideration to statutory amendments that will better assure seamless workers’ compensation coverage under employee leasing arrangements.

      . Despite being legally noticed and subpoenaed, P & G Roofing has not participated in this lawsuit in any way, resulting in the JCC certifying contempt proceedings to the circuit court. The evidence in this case comes from the deposition of a P & G Roofing representative in an unrelated case that was admitted into evidence.


author: BENTON, J.

text:
    Kelvin FRANKLIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5072.
    District Court of Appeal of Florida, First District.
    March 6, 2008.

      Nancy A. Daniels, Public Defender, Tallahassee, and Donna A. Gerace and M. Lilja Dandelake of M. Lilja Dandelake, P.A., Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, J.

Kelvin Franklin appeals his conviction for battery on a law enforcement officer in violation of sections 784.03 and 784.07, Florida Statutes (2004), and consequent five-year prison sentence. An inmate at Hamilton Correctional Institution at the time of the events that gave rise to the charge, he was convicted of striking a corrections officer from behind with his fist. He contends the trial court erred by not requiring the State to disclose the names of other persons present when the corrections officer sustained the blow. We agree and reverse.

That Mr. Franklin was in the vicinity — and part of a mass disturbance taking place in the prison yard at the time — is not in dispute. Taking the stand in his own defense, however, he testified that he did not hit the corrections officer. Instead, he testified, another inmate, with whom he had struggled, landed a punch on the back of the corrections officer’s head. When the inmate Mr. Franklin identified as the perpetrator testified as a witness for the defense, he corroborated Mr. Franklin’s version of events. Only the corrections officer testified that Mr. Franklin was his assailant.

Well before trial, defense counsel had filed a motion to compel production of certain documents in the custody of the Department of Corrections which contained the names of other inmates in the prison yard at the time of the incident, some of whom were transferred to other prisons the night of the melee, because of their involvement in the mass disturbance that afternoon. See Reese v. State, 694 So.2d 678, 682 n. 2 (Fla.1997) (quoting Sinclair v. State, 657 So.2d 1138, 1141 (Fla.1995)) (requiring the State to disclose documents within its possession, actual or constructive). “[T]he State is charged with constructive knowledge of information possessed by other departments of the executive branch.” Giles v. State, 916 So.2d 55, 58 (Fla. 2d DCA 2005). Defense counsel requested the names of all inmates present in the yard the afternoon the corrections officer was hit, or at least the names of all of the inmate transferees, so that he could interview them in an attempt to find eyewitnesses to the battery who would buttress the defense.

Filed after Mr. Franklin’s initial demand for discovery had triggered reciprocal discovery obligations, the defense motion to compel should have been treated as a request for additional discovery pursuant to Florida Rule of Criminal Procedure 3.220(f) (2004) (authorizing the trial court to “require such other discovery to the parties as justice may require” upon “a showing of materiality”), and should have been granted. Instead, the trial judge ruled that the documents the motion requested were immaterial, improperly placing the burden on the defense to show how it would use at trial information it did not have and was never supplied.

Not knowing the names of the inmates on the list prejudiced the defense’s ability to prepare. See State v. Schopp, 653 So.2d 1016, 1020-21 (Fla.1995); Richardson v. State, 246 So.2d 771, 774-75 (Fla.1971). The other inmates’ presence in the prison yard at the time of the events giving rise to the charge against Mr. Franklin made their names material within the meaning of Florida Rule of Criminal Procedure 3.220(f). In the discovery context, material means reasonably calculated to lead to admissible evidence. Additional eyewitness testimony might have led to a different result at trial. In any event, where “the record is insufficient to determine that the defense was not materially affected,” the rule is that “the error must be considered harmful.” Schopp, 653 So.2d at 1020-21.

Reversed and remanded.

WEBSTER and POLSTON, JJ., concur.


author: PER CURIAM.

text:
    David Warrens TANNER, Former Husband, Appellant, v. Maria Baeza TANNER, Former Wife, Appellee.
    No. 1D07-4962.
    District Court of Appeal of Florida, First District.
    March 6, 2008.
    Bryan S. Gowdy and John S. Mills of Mills & Creed, Jacksonville; Jeanine B. Sasser, Jacksonville, for Appellant.
    Diana S. Farhat, Jacksonville, and James J. Taylor, Jr., of Taylor & Taylor, Keystone Heights, for Appellee.
   PER CURIAM.

The former husband seeks review of an order setting aside a consent final judgment dissolving the parties’ marriage. The trial court based its decision on findings that, notwithstanding a sworn written statement by the former wife that she “entered into th[e] agreement freely and voluntarily,” “there was overreaching in the agreement and mis-representation [sic] by the Husband of the nature of the proceedings as non-adversarial.” Having carefully reviewed all of the evidence presented to the trial court, we conclude that no reasonable person could have reached the conclusion reached by the trial court and that, accordingly, the trial court abused its discretion. There is no evidence even of a bad bargain on the part of the former wife; rather, the evidence establishes nothing more than that, upon reflection, the former wife felt the terms of the agreement were not in her best interest. “Buyer’s remorse” is not a sufficient basis for overturning a marital settlement agreement freely and voluntarily entered into. See generally Casto v. Casto, 508 So.2d 330 (Fla.1987). The order setting aside the consent final judgment dissolving the parties’ marriage is reversed.

REVERSED.

WEBSTER, BENTON, and POLSTON, JJ., concur.


text:
    Ronald FORD, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-3203.
    District Court of Appeal of Florida, First District.
    March 6, 2008.
    Ronald Ford, pro se, Appellant.
    Bill McCollum, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant Ronald Ford appeals an order denying his rule 3.850 motion in which he asserts that his counsel was ineffective because prior to entering his plea, she affirmatively misadvised him as to who was responsible for concurrently imposing the sentences in the instant case to his sentence imposed for his conditional release violation. The record indicates that the appellant requested, as a condition of entering his plea, that the sentences be concurrently imposed, and that counsel provided advice which could reasonably lead him to believe that they would be concurrently imposed. The sentences have been consecutively imposed. Neither the plea hearing transcript nor the plea form attached by the trial court in support of its order conclusively refute the claim. However, the record contains a letter in which trial counsel misadvises the appellant, and makes reference to having previously provided him the same misadvice, that it was up to the Parole Commission or the Department of Corrections [DOC] to concurrently impose the sentences. This is incorrect. See § 921.16(1), Fla. Stat. (2005) (“Sentences of imprisonment for offenses not charged in the same indictment, information, or affidavit shall be served consecutively unless the court directs that two or more sentences be served concurrently”); Richardson v. State, 947 So.2d 1219, 1220 (Fla. 1st DCA 2007) (“[T]he trial court must exercise its discretion to order a sentence imposed for an offense committed while on community release concurrently or consecutively to his or her community release sentence and cannot defer the structure of the sentence to the [DOC] because the [DOC] lacks such sentencing authority”); Bruce v. State, 679 So.2d 45 (Fla. 3d DCA 1996) (“Where the trial judge fails to specify whether sentences imposed for offenses not charged in the same information or indictment be served concurrently, section 921.16(1) dictates that such sentences be served consecutively”). Counsel failed to ask the court to concurrently impose the sentences.

Although the appellant has submitted a claim which is not refuted by the record, he does not state that he desires to withdraw his plea, but instead seeks to have the court order that the sentences be concurrently imposed. The appellant has asserted that his plea was involuntary due to misadvice from counsel, and to constitute a legally sufficient claim he must state that he seeks to withdraw his plea. We therefore reverse and remand for the trial court to allow the appellant the opportunity to amend his motion to state that he seeks to withdraw his plea. See Spera v. State, 971 So.2d 754 (Fla.2007).

REVERSED AND REMANDED.

ALLEN, WOLF, and POLSTON, JJ., concur.


text:
    Jeremy ELLIS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-3505.
    District Court of Appeal of Florida, First District.
    March 6, 2008.

      Jeremy Ellis, pro se, Petitioner.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Jeremy Ellis seeks belated appeal from judgments and sentences entered in case numbers 2005CF964, 2005CF991, and 2005CF1073 in the Circuit Court in and for Leon County. A timely motion to withdraw plea pursuant to Florida Rule of Criminal Procedure 3.170(7) postponed rendition of the judgments and sentences. See Fla. R.App. P. 9.020(h). The record reflects that petitioner asked his attorney to appeal at the conclusion of the hearing on the motion to withdraw plea and that request was not honored. Ellis did have an appeal to this court in case number 1D06-0884, but that appeal concerned orders denying certain postconviction motions, including one which denied a motion to withdraw plea as successive to the rule 3.170(l) motion. The judgments and sentences and denial of the first motion to withdraw plea have not been reviewed and Ellis has not had representation of counsel for preparation of a brief on direct appeal.

The petition is therefore granted and Jeremy Ellis is afforded belated appeal from the above-described judgments and sentences. Upon issuance of mandate in this cause, a copy of this opinion will be provided to the clerk of the circuit court, who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). The circuit court is directed to appoint counsel to represent Ellis on appeal if he qualifies for such an appointment.

PETITION GRANTED.

WEBSTER, BENTON, and POLSTON, JJ., concur.


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

text:
    D.J., Maternal Grandmother of D.E., Appellant, v. J.E. and P.E., Paternal Grandparents of D.E., Appellees.
    No. 1D07-3711.
    District Court of Appeal of Florida, First District.
    March 6, 2008.
    C. Erica White of Collins & White, Tallahassee, for Appellant.
    Rosalyn Bonds Green, and Michael Rayne, Tallahassee, for Appellees.
   PER CURIAM.

AFFIRMED.

VAN NORTWICK and ROBERTS, JJ., concur, BROWNING, C.J., Concurs With Written Opinion.

BROWNING, C.J.,

concurring.

I concur with the majority opinion and write only to give my abbreviated reasons for such concurrence.

First, Appellant failed to provide this court with a transcript of the lower court proceedings, which prohibits review of any discretionary factual determination by the trial court. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979). Appellant’s other argument that the trial court should have consolidated her chapter 751 petition with Appellees’ chapter 751 petition does not provide a basis for reversal. Appellant did not include her chapter 751 in the record on appeal, nor has she cited anything in the record that indicates that she requested such consolidation before the trial court. Finally, Fla. R. Juv. P. 8.205, relied upon by Appellant, is inapplicable here, because her chapter 751 petition does not constitute a dependency or termination proceeding that is governed by such rule.


text:
    Mikel M. BRIGHT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5072.
    District Court of Appeal of Florida, First District.
    March 6, 2008.
    Mikel M. Bright, pro se, Petitioner.
    Bill McCollum, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Mikel M. Bright is hereby afforded belated appeal from judgment and sentence in case number 04-2004-CF-656-A in the Circuit Court in and for Bradford County. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). Counsel shall be appointed to represent appellant in this appeal from judgment and sentence if he qualifies for such an appointment.

PETITION GRANTED.

WEBSTER, BENTON, and POLSTON, JJ., concur.


text:
    CITIZENS PROPERTY INSURANCE CORPORATION, Appellant, v. BEACHVIEW CONDOMINIUM OWNERS’ ASSOCIATION, INC., Appellee.
    No. 1D07-5769.
    District Court of Appeal of Florida, First District.
    March 6, 2008.

      G. Alan Howard and Robert M. Dees of Milana, Howard, Nicandri, Dees & Gillam, P.A., Jacksonville, for Appellant.
    J. Nixon Daniel, III, and Terrie L. Didier of Beggs & Lane, Pensacola, for Appel-lee.
   PER CURIAM.

In Citizens Property Insurance Corp. v. Beachview Condominium Owners’ Ass’n, Inc., 971 So.2d 272 (Fla. 1st DCA 2008), this court reversed and remanded a judgment for the insured. In the instant appeal, the insurer seeks review of an order awarding attorney’s fees and costs to the appellee/plaintiff in the same proceeding. In light of the reversal of the underlying judgment, the attorney’s fees and costs order is REVERSED and REMANDED for further proceedings.

BENTON, LEWIS, and POLSTON, JJ., concur.


text:
    Artagus J. ROBINSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5981.
    District Court of Appeal of Florida, First District.
    March 6, 2008.
    Nancy Daniels, Public Defender, and David P. Gauldin, Assistant Public Defender, Tallahassee, Petitioner.
    Bill McCollum, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Artagus J. Robinson is hereby granted belated appeal from judgment and sentence in case number 2007-CF-2171 in the Circuit Court for Leon County. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court to be treated as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D). Counsel shall be appointed to represent appellant in the appeal if he qualifies for such an appointment.

WEBSTER, BENTON, and POLSTON, JJ., concur.


text:
    Thomas M. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-6207.
    District Court of Appeal of Florida, First District.
    March 6, 2008.
    Thomas M. Smith, pro se, Petitioner.
    Bill McCollum, Attorney General, and Joshua R. Heller, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and Thomas M. Smith is hereby afforded belated appeal from the order denying postconviction relief dated June 18, 2007, in Bay County case number 97-1507-C. Upon issuance of mandate in this cause, a copy of the opinion will be provided to the clerk of the circuit court who shall treat it as a notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

WEBSTER, BENTON, and POLSTON, JJ., concur.


text:
    Crystal BUCKNER, Appellant, v. FLORIDA UNEMPLOYMENT APPEALS COMMISSION and Brinker International Payroll CO., Appellees.
    No. 1D08-0340.
    District Court of Appeal of Florida, First District.
    March 6, 2008.
    Crystal Buckner, pro se, Appellant.
    No appearance for Appellees.
   PER CURIAM.

Because the notice of appeal was not filed within 30 days of rendition of the final order, this appeal is dismissed for lack of jurisdiction. Fla. R.App. P. 9.110(b). This disposition is without prejudice to appellant’s right to pursue relief in the lower tribunal. See W.T. Holding, Inc., v. State, Agency for Health Care Admin., 682 So.2d 1224 (Fla. 4th DCA 1996).

DISMISSED.

WEBSTER, BENTON, and POLSTON, JJ., concur.


text:
    FIRST AMERICAN TITLE INSURANCE COMPANY, Petitioner, v. James V. RAFFONE, on behalf of himself and all others similarly situated, Respondent.
    No. 1D07-0955.
    District Court of Appeal of Florida, First District.
    March 6, 2008.
    Charles A. Newman, admitted pro hac vice, Douglas W. King, admitted pro hac vice, of Bryan Cave, LLP, St. Louis, Missouri; Thomas R. Tatum, Harris K. Solomon of Brinkley, McNerney, Morgan, Solomon & Tatum, LLP, Ft. Lauderdale; and Reed W. Grimm of Taylor, Day, Currie, Boyd & Johnson, Jacksonville, for Petitioner.
    P. Scott Russell TV, of P. Scott Russell, P.A., Jacksonville; Stanley M. Grossman, D. Brian Hufford, and Robert J. Axelrod of Pomerantz, Haudek, Block, Grossman & Gross, LLP, New York; and Jeffrey M. Liggio of Liggio, Benrubi & Williams, P.A., West Palm Beach, for Respondent.
   PER CURIAM.

GRANTED. See Commonwealth Land Title Ins. Co. v. Higgins, No. 1D07-0946, 975 So.2d 1169, 2008 WL 595923 (Fla. 1st DCA, March 6, 2008).

BENTON, and VAN NORTWICK, JJ, concur.

KAHN, J., DISSENTS.


author: SAWAYA, J.

text:
    Varian MITCHELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2182.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2008.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Respondent.
   SAWAYA, J.

Varían L. Mitchell appeals the trial court’s summary denial of his rule 3.850 motion for postconviction relief, which alleged ineffective assistance for defense counsel’s failure to object to a sentencing scoresheet error. We reverse and remand for an evidentiary hearing or for attachment of the portions of the record that refute Mitchell’s claim.

In his motion, Mitchell alleges that the trial court incorrectly scored a previous conviction, which was specifically listed as “Att Traff Cocaine,” as a level 7 offense when it should have been scored as a level 6 offense. Mitchell points out that, because the conviction was for an attempt, it should have been scored one offense level below the completed offense, pursuant to Florida Rule of Criminal Procedure 3.704(d)(10). He also points out that if the trial court had properly scored the crime as . a level 6 offense, the scoresheet would have included 9 points rather than the 14 points actually factored into the computation. Mitchell argues that this reduction would have made a non-state prison sanction the lowest permissible sentence, rather than the 12.9-month state prison sentence required by the allegedly improper scoresheet and, therefore, his trial counsel rendered ineffective assistance by failing to object to this error.

The trial court summarily denied this ground of Mitchell’s motion, finding that Mitchell’s prior conviction for attempted trafficking pursuant to subpara-graph 893.135(1)(b)1., Florida Statutes (2004), is a level 7 offense under chapter 921, Florida Statutes. We are unable to affirm based on this finding because the sentencing scoresheet, which reflects a pri- or conviction for violation of subparagraph 893.135(1)(b)1., fails to specify which of the three sub-subparagraphs thereof, a., b., or c., Mitchell was convicted of violating and this information is not found elsewhere in the record.

While, at first blush, this may seem to be a matter of trivial concern, it is of considerable consequence to the outcome here. Each of the sub-subparagraphs carries a different mandatory minimum penalty, dependent upon the quantity of cocaine involved, and each constitutes a different offense level under chapter 921, varying from level 7 to level 9. Accordingly, it is necessary to know which sub-subpara-graph applies in order to properly review Mitchell’s claim for relief; without record evidence of the applicable sub-subpara-graph, it is impossible to know whether the court reduced this prior offense by one level as required by Florida Rule of Criminal Procedure 3.704(d)(10).

When a trial court summarily denies a motion for postconviction relief without holding an evidentiary hearing or attaching portions of the record to refute the allegations, review is limited to determining whether, accepting the defendant’s allegations as true, the motion conclusively shows the defendant is not entitled to relief. Davis v. State, 571 So.2d 118, 119 (Fla. 5th DCA 1990). Mitchell alleges that his prior conviction was for a violation of sub-subparagraph a., and the trial court has attached no evidence to the contrary. Taking Mitchell’s allegation as true, which we must, the correct scoresheet calculation would provide for a lower permissible sentence than did the scoresheet under which he was sentenced. Moreover, Mitchell may be entitled to be resentenced if the evidentiary hearing confirms a scoresheet error, given the more defendant-friendly “would have been imposed” standard applicable to motions filed under rule 3.850. Under the “would have been imposed” standard, such a mistake is not harmless error, as the court in State v. Anderson, 905 So.2d 111, 115-16 (Fla.2005), explained:

The would-have-been-imposed test applies this standard to scoresheet error. It requires an examination of the record for conclusive proof that the scoresheet error did not affect or contribute to the sentencing decision. If the reviewing court cannot determine conclusively from the record that the trial court would have imposed the same sentence despite the erroneous scoresheet, remand for resentencing is required.

The supreme court then held:

Because it is essential for the trial court to have the benefit of a properly calculated scoresheet when deciding upon a sentence, we agree that the would-have-been-imposed standard should apply to motions filed under rule 3.850 to correct scoresheet error.

Id. at 118.

The record does not conclusively show either that Mitchell is not entitled to relief or that the trial court would have imposed the same sentence using a correct score-sheet. Therefore, we reverse and remand for an evidentiary hearing or for attachment of those portions of the record conclusively establishing that Mitchell is not entitled to relief. If a hearing is required and it confirms an error, resentencing will be necessary unless the court conclusively establishes that it would have imposed the same sentence even under the corrected scoresheet.

REVERSED and REMANDED.

GRIFFIN and EVANDER, JJ., concur.

      . A violation of sub-subparagraph 893.135(1)(b)1.a. is a level 7 offense, see § 921.0012(3)(g), Fla. Stat. (2004); a violation of sub-subparagraph 893.135(1)(b)1.b. is a level 8 offense, see § 921.0012(3)(h), Fla. Stat. (2004); and a violation of sub-subpara-graph 893.135(1)(b)1.c. is a level 9 offense, see § 921.0012(3)(i), Fla. Stat. (2004).


author: PLEUS, J.

text:
    Gregory CARTER, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-936.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2008.

      James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mary G. Jolley, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PLEUS, J.

The defendant appeals from his sentence claiming the trial court imposed a presumptively vindictive sentence upon re-sentencing him for sexual battery, and that special probationary condition (h) is invalid. We summarily reject the first contention, finding no basis whatsoever for the vindictiveness claim. However, we find merit in the challenge to the probationary condition.

Special probationary condition (h) provides:

As directed by your Officer, you will enroll in, regularly attend, and successfully complete, such programs as are reasonably related to your past and future criminality, or the rehabilitative purposes of probation; including but not limited to alcohol and drug treatment and counseling, mental health counseling, vocation and education courses, rehabilitation programs, evaluation and therapy.

The defendant argues that permitting his probation officer to select the appropriate rehabilitative programs he should attend amounts to an improper delegation of the trial court’s authority and that a similar condition was struck down by this Court in Mitchell v. State, 954 So.2d 1263 (Fla. 5th DCA 2007).

In Mitchell, this Court, without citation of authority, held that the trial court erred in including a special condition of probation “which delegated to the probation officer the authority to order alcohol and drug testing in order for the probation officer to determine whether any substance abuse treatment was necessary.”

In Larson v. State, 572 So.2d 1368, 1371 (Fla.1991), the Florida Supreme Court explained that a trial court cannot delegate to a probation officer the sole authority to revoke a defendant’s probation as that is a purely judicial function. The court continued:

However, reasonable delegations of incidental discretion are permissible if sufficiently circumscribed by the trial court. This may be true whether or not the defendant objects. For example, we believe this can include authority for a probation officer to supervise the counseling required of some defendants so long as this discretion is to be used only for rehabilitative purposes and does not take on the character of an essentially judicial act....

Id.

The court then upheld a condition of probation requiring the defendant undergo psychological evaluation under the direction of his probation officer, explaining:

[T]he trial court did not violate the law by delegating some limited discretion to a probation officer. It is entirely proper for a probation officer to supervise conditions aimed at rehabilitation, including counseling. Nothing in this record suggests that this delegation of discretion has led to a punitive result or is so broad as to usurp an essentially judicial function.

Id. at 1372.

In Law v. State, 705 So.2d 632, 634 (Fla. 5th DCA 1998), this Court, relying on the standard set out in Larson, dismissed a challenge to a probationary condition “requiring [the defendant] to complete a drug or alcohol rehabilitation program as recommended by [his] probation [officer].” This Court rejected the claim that the condition vested unbridled discretion in the probation officer. Accord Wheatley v. State, 629 So.2d 896 (Fla. 1st DCA 1993) (upholding condition which ordered defendant to “submit to drug/alcohol evaluation and counseling as directed by your Officer”); Rowland v. State, 548 So.2d 812 (Fla. 1st DCA 1989) (approving condition that “You will receive alcohol, drug and psychological evaluation and counseling as directed by your probation officer”); Boudreaux v. State, 578 So.2d 457 (Fla. 1st DCA 1991) (condition of probation requiring defendant to undergo substance abuse screening and if deemed necessary by his probation officer, receive counseling not improper).

The distinction between a permissible and impermissible delegation of authority lies with whether the probation officer is merely supervising a specific, judicially-ordered condition of probation (permissible) or whether the probation officer has been delegated the authority to impose what amounts to additional conditions of probation (impermissible). See e.g., Ackerman v. State, 835 So.2d 354 (Fla. 5th DCA 2003) (probation officer went beyond judicially-imposed conditions of probation by prohibiting probationer from “contact with playgrounds or other places where children congregate”).

Thus, in the Law line of cases, it was permissible for the trial court to have ordered the defendant to complete a drug or alcohol rehabilitation program as further recommended or directed by the probation officer while in Mitchell, it was improper for the court to delegate to the probation officer the authority to actually order alcohol and drug testing in order for the probation officer to determine whether substance abuse treatment was necessary. Accord Q.M. v. State, 969 So.2d 1182 (Fla. 1st DCA 2007) (condition of probation requiring juvenile to attend family counseling if recommended by Dep’t of Juvenile Justice stricken as improper delegation of judicial authority).

In the instant case, special condition (h) does not simply grant to the probation officer authority to supervise or direct a specific condition of probation ordered by the court. Rather, it allows the probation officer to actually impose a wide variety of programs related to rehabilitation, “programs including but not limited to alcohol and drug treatment and counseling, mental health counseling, vocation and education courses, rehabilitation programs, evaluation and therapy.” This is far more than mere supervision or direction of a judicially-imposed condition of probation. It is a broad, rather than circumscribed delegation of judicial authority to the probation officer to effectively impose conditions of probation and as such is improper under the standard enunciated in Larson. However, rather than simply eliminating this salutary aspect of probation, we remand to the trial court for clarification of the probationary condition, to judicially designate applicable rehabilitation programs while authorizing the probation officer to then supervise and effectuate the probationary condition.

AFFIRMED; CAUSE REMANDED FOR CLARIFICATION OF PROBATIONARY CONDITION (h).

PALMER, C.J. and MONACO, J., concur.


author: GRIFFIN, J.

text:
    Travis REED, Appellant, v. ALPHA PROFESSIONAL TOOLS, et al., Appellees.
    No. 5D07-864.
    District Court of Appeal of Florida, Fifth District.
    March 7, 2008.
    John Calhoun Bales and C. Samuel Newman, of John Bales Attorneys, A Bales Professional Association, St. Peters-burg, for Appellant.
    Frank D. Hosley and Martin J. Jaffe, of Seipp & Flick & Kissane LLP, Lake Mary, for Appellees.
   GRIFFIN, J.

This is an appeal from an order dismissing a products liability suit with prejudice as a remedy for spoliation.

On October 26, 2005, Appellant, plaintiff below, Travis Reed [“Reed”], filed a products liability action in three counts, strict liability, negligence and negligent failure to warn, against each of two defendants below, Alpha Professional Tools and Beno J. Gundlach Company [collectively “Distributors”], the distributors of a marble edge polishing wheel. The suit alleged that Reed was operating a grinder with the polishing wheel attached when the polishing wheel broke into pieces. At least one piece struck Reed in his left eye, causing permanent blindness. The suit also alleged that the polishing wheel was purchased less than a month before the incident and that Reed was wearing safety glasses while operating the grinder and wheel. The complaint asserted that the marble edge polishing wheel’s design and manufacture were defective.

After the accident, Reed’s counsel obtained possession of the polishing wheel, the electric grinder and the safety glasses [collectively “the evidence”]. On March 6, 2006, after the complaint and answer were filed, Distributors filed a. motion for inspection of the polishing wheel. At the October 9, 2006, hearing, Reed’s counsel informed the court that the evidence was lost. Reed’s counsel told the court that the evidence could not be located following a July 2006 move by counsel’s firm from its Tampa office building to new offices in St. Petersburg, which were still undergoing renovations on the date of the move and for some time afterwards. Reed’s counsel hypothesized that the evidence may have been stolen by a worker.

Shortly thereafter, on November 7, 2006, Distributors filed a motion for dismissal with prejudice or, in the alternative, for the entry of an appropriate spoliation remedy. In support of their motion, Distributors filed an affidavit by their expert, Jennifer Yaek, a licensed engineer, who attested that Distributors were prejudiced as a result of the destruction of evidence. Mainly, this affidavit catalogued various potential issues that she could not investigate, such as fracture initiation sites, abuse, misuse, and possible foreign material that may have been on the wheel’s surface. Also complained of was the inability to inspect the marble being polished at the time of the accident, the grinder and the safety glasses. On December 11, 2006, Reed filed his response to Distributors’ motion along with several affidavits by firm employees that attested to the fact that the evidence was properly secured prior to the move.

At the December 13, 2006, hearing on Distributors’ dismissal motion, Distributors urged dismissal of the suit, claiming prejudice at not having the evidence for their expert to inspect. Reed argued that prevailing law disfavored dismissal as excessively harsh when the loss of the evidence was not intentional, the plaintiff was able to proceed without the lost evidence and where a lesser sanction would eliminate any disadvantage to the defense. The trial court took the case under advisement, indicating an intention to conduct a ruling hearing after the new year.

Subsequently, Reed filed a motion to continue ruling, requesting the opportunity to permit discovery of the experts. Reed also filed an affidavit by his expert who attested that he had inspected the evidence prior to its loss; had taken extensive photographs and that his. opinion that the product was defective could be substantiated entirely by the detailed close-up photographs that he had taken. Distributors opposed a continuance. On February 19, 2007, the trial court entered its order of dismissal, concluding that Distributors were “completely unable to- proceed with a defense” without the lost evidence; and dismissed the case with prejudice. It does not appear that the continuance motion was ruled upon.

Distributors contend that the controlling authority in this case is this court’s opinion in Torres v. Matsushita Elec. Corp., 762 So.2d 1014 (Fla. 5th DCA 2000), and that the only difference between this case and Torres is the product at issue. The trial court appears to have relied on Torres. It is true that there are some similarities between this case and Torres. Most notably, it is clear in both cases that the loss of the product was inadvertent. It is perhaps understandable, given the length and structure of the Torres decision, to misapprehend its holding, but this case is fundamentally different from Torres. The premise on which Torres was based was that the plaintiffs defect claims could not be proved by direct evidence since the product had been lost. The Torres court had before it the question of whether the plaintiff, who had lost the product on which the suit was based, would be allowed to .establish a prima facie case of negligence through use of the so-called “Greco Inference,” even though the defendant manufacturer had no- opportunity to rebut the inference, as described in Cassisi v. Maytag Co., 396 So.2d 1140 (Fla. 1st DCA 1981) because of the loss of the product. See Torres, 762 So.2d at 1016. In Torres, the majority concluded that use of the inference would leave the defendant completely unable to defend. In order to prevent that unfair result, the Torres court decided that the inference would not be available to the plaintiff. Without it, the plaintiff was unable to proceed. Hence, the dismissal.

This is not a Greco/Cassisi case. Unlike Torres, in this case, extensive photographs of the item had been made and the plaintiff has asserted that he can prove his claim based on the photographs and other specimens of the allegedly defective product. Unlike Torres, identification of the product is not an issue. Unlike Torres, in this case, the parties can be placed on an equal footing by limiting the plaintiff to the physical evidence available to both parties, i.e. the photographs. Although the defendant will not be able to inspect the product, it will benefit from the inherent limitations on the plaintiffs proof and will be able to match the plaintiffs access to the available evidence.

To some extent, the issue on which the trial judge focused is a problem of syntax. In Torres, without the spoliated product, the defendant was left completely unable to defend. This case, on the other hand, is more like a situation where the defendant is unable to defend completely. The defendant enumerates a variety of testing and inspections that it cannot do because it does not have the product. To the extent that Torres contemplates dismissal based on prejudice to the defendant, its reach is to the complete inability to defend, not the inability to defend completely. Spoliation is not a strict liability concept — “lose the evidence, lose the case” — no matter whether the plaintiff or the defendant was responsible for the loss. For a variety of reasons, the product is not always available after the incident causing injury. Depending on the circumstances, a products liability claim may nevertheless be proven. The goal in spoliation cases is to assure that the non-spoliator does not bear an unfair burden.

Our conclusion that the trial court erred by dismissing this case is also influenced by the timing of the dismissal and the state of the record. Here, again unlike Torres, little discovery has taken place. Neither party’s expert has been deposed and the filed affidavits are both sparse and conclusory. Where, as here, the decision to dismiss is based on the defense expert’s opinion of prejudice, the plaintiff should have the opportunity to test those opinions in discovery. The court cannot correctly evaluate the Distributors’ claim of prejudice until this has been done. Depending on the state of the record once essential discovery has been done and the record has been developed, the trial court may or may not correctly arrive at the same conclusion.

REVERSED and REMANDED.

SAWAYA and COHEN, JJ„ concur.

      . Greco v. Bucciconi Eng’g Co., 283 F.Supp. 978 (W.D.Pa. 1967).

      . The Torres majority’s decision to affirm dismissal of the design defect claim is less easy to understand or explain. Apparently, the majority concluded that the only potential design flaw was one that would manifest itself only after significant wear, therefore, the presence of the product would be indispensable.