author: CANADY, Judge.

text:
    MORTON PLANT HOSPITAL ASSOCIATION, INC., Petitioner, v. Shelby SHAHBAS, a minor, by and through Kathryn Shahbas, individually and as mother and natural guardian of Shelby Shahbas, a minor, John Shahbas, individually and as father and natural guardian of Shelby Shahbas, a minor, Patricia St. John, M.D., Bay Area Women’s Care, Inc., and Kristin Beard, R.N. n/k/a Kristin Kilgore, R.N., Respondents.
    No. 2D06-3856.
    District Court of Appeal of Florida, Second District.
    June 27, 2007.

      James A. Martin, Jr., Nancy S. Paikoff, and Jeffrey W. Gibson of Macfarlane Ferguson & McMullen, Clearwater, for Petitioner.
    Philip M. Burlington and Bard D. Roek-enbach of Burlington & Rockenbach, P.A., West Palm Beach, and Christian D. Searcy and Karen E. Terry of Searcy, Denney, Scarola, Barnhart & Shipley, P.A., West Palm Beach, ’ for Respondents Shelby Shahbas, Kathryn Shahbas, and John Shahbas.
    No appearance for Respondents Patricia St. John, M.D., Bay Area Women’s Care, Inc., and Kristin Beard, R.N., n/k/a Kristin Kilgore, R.N.
   CANADY, Judge.

Morton Plant Hospital Association, Inc. (the hospital), seeks certiorari review of a trial court order denying its objections to requests for documents made by the Shah-bases, the plaintiffs in a medical malpractice action against the hospital; Patricia St. John, M.D.; Bay Area Women’s Care, Inc.; and Kristin Kilgore, R.N. We deny the petition in part and grant the petition to the extent that the trial court ordered discovery of privileged records that do not contain information about any adverse medical incidents.

I.Background

The Shahbases filed a complaint against the above defendants alleging negligence that led to injuries sustained by Shelby Shahbas during her birth in December 2002. During discovery, the Shahbases filed a request to produce, seeking nine different categories of documents. The request included records from the hospital relating to the incident at issue, incidents involving Dr. St. John, the credentialing and recredentialing of Dr. St. John, the policies and procedures of the hospital, and medical incidents in the hospital generally. With the exception of the credentialing files, the Shahbases sought records created or filed after November 2, 2004, the effective date of Amendment 7 of the Florida Constitution. See art. X, § 25, Fla. Const, (entitled “Patients’ right to know about adverse medical incidents”). The hospital objected to most of the requests on the bases that the documents were irrelevant and privileged and that their production would be overly burdensome. The hospital also served a motion for protective order, which sought protection from the requests for records relating to Dr. St. John.

The trial court held a hearing on the hospital’s objections and the motion for protective order. After the hearing, by written order entitled “Order Regarding Amendment 7 Issues” the trial court denied the hospital’s objections and motion for protective order and ordered the hospital to respond to the Shahbases’ requests within forty-five days.

II.Certiorari Jurisdiction

“Certiorari review ‘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.’ ” Harley Shipbuilding Corp. v. Fast Cats Ferry Serv., LLC, 820 So.2d 445, 448 (Fla. 2d DCA 2002) (quoting Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995)). Discovery of certain types of information may cause material injury of an irreparable nature, including “cat out of the bag” material that could be used to injure another person or party outside the context of the litigation as well as material protected by privilege. Langston, 655 So.2d at 94. “[A] petition for writ of cer-tiorari is appropriate to remedy situations in which hospitals have been wrongly ordered to disclose statutorily privileged documents.” Tarpon Springs Gen. Hosp. v. Hudak, 556 So.2d 831, 832 (Fla. 2d DCA 1990).

III.Amendment 7

Article X, section 25, subsection (a) of the Florida Constitution provides: “In addition to any other similar rights provided herein or by general law, patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” (Emphasis added.) This provision is referred to as Amendment 7 and was approved by the voters in the general election on November 2, 2004.

In Florida Hospital Waterman, Inc. v. Buster, 932 So.2d 344, 348 (Fla. 5th DCA), rev. granted, 926 So.2d 1269 (Fla.2006), the court considered whether “Amendment 7 preempt[s] statutory privileges afforded health care providers’ self-policing procedures to the extent that information obtained through those procedures is discoverable during the course of litigation.” The court concluded that “[t]hrough this amendment, the people have clearly expressed their preference for. freedom of information regarding, adverse medical incidents over the privileges that protect the self-policing processes enacted by the Legislature and protected by the courts.” Id. at 352. The court relied on Advisory Opinion to the Attorney General Re Patients’ Right to Know About Adverse Medical Incidents, 880 So.2d 617, 620-21 (Fla. 2004), in which the supreme court stated that the primary purpose of Amendment 7 is to affect statutes that currently exempt the records of investigations, proceedings, and records of the peer review panel from discovery in a civil or administrative action. Buster, 932 So.2d at 353. The Buster court concluded that Amendment 7 is intended to eliminate privileges that previously guaranteed confidentiality of the self-policing process of health care providers. 932 So.2d at 351-52 n. 6. The Buster court certified as a question of great public importance whether Amendment 7 preempts statutory privileges afforded to health care providers’ self-policing procedures in the context of litigation discovery. Id. at 356. The court also certified two other questions relating to the application of Amendment 7 that are not at issue in this case. Id.

IV. Analysis

A. The Claim that Documents Created or Filed After November 2, 200k, Are Irrelevant

The hospital first claims that the documents sought by the Shahbases created or filed after November 2, 2004, are irrelevant and immaterial because the incident at issue occurred in December 2002. The hospital argues that the Shahbases based their request solely on Buster and did not offer any showing that the records are relevant or that they could lead to relevant material.

The Shahbases respond that relevancy is not the standard for discovery of information pursuant to Amendment 7 and that patients have the right to obtain records regardless of when treatment was provided. The Shahbases also argue that there may be relevant documents after November 2, 2004, because the investigation of the December 2002 incident may not have begun until then or may have lasted past November 2, 2004.

Traditionally, “discovery should be denied when it has been established that the information requested is neither relevant to any pending claim or defense nor will it lead to the discovery of admissible evidence,” Tanchel v. Shoemaker, 928 So.2d 440, 442 (Fla. 5th DCA 2006) (citing Langston, 655 So.2d at 94); see also Fla. R. Civ. P. 1.280(b)(1) (providing that “[p]arties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action” (emphasis added)). Documents relating to the events or information after the alleged incident have been held to be immaterial when there has been no showing of relevance to the alleged incident. See Tanchel, 928 So.2d at 442; Caterpillar Indus., Inc. v. Keskes, 639 So.2d 1129, 1131 (Fla. 5th DCA 1994).

However, Amendment 7 provides a patient with the right to “any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” Art. X, § 25(a). “ ‘[Ajdverse medical incident’ means medical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient.” Art. X, § 25(c)(3). Subsection (c)(2) provides that “[t]he term ‘patient’ means an individual who has sought, is seeking, is undergoing, or has undergone care or treatment in a health care facility or by a health care provider.” This includes “actual, prospective, or previous” patients. Notami Hosp. of Fla., Inc. v. Bowen, 927 So.2d 139, 143 (Fla. 1st DCA 2006), appeal filed, SC06-912 (Fla. May 5, 2006); see also Buster, 932 So.2d at 350 (“The term ‘patient’ is defined in very broad terms to include any individual who has received or is currently receiving medical care or treatment.”). Therefore, the Shahbases, as previous patients, are entitled to any of the hospital’s records relating to any adverse medical incident. There is no requirement that the records discoverable under Amendment 7 be relevant to any pending litigation. We therefore deny the hospital’s claim for relief that is based on the assertion that documents created or filed after November 2, 2004, are irrelevant.

B. The Claim that Documents Are Protected by the Work-Product Privilege

The hospital further claims that Amendment 7 does not preempt the work-product privilege and that the trial court erred in failing to recognize this and in failing to order protection from discovery or to at least conduct an in camera inspection. It argues that Dr. St. John’s credentialing files and documents relating to the investigation of the treatment of Shelby Shahbas or any medical negligence that could have injured Shelby Shahbas fall within the work-product privilege because they relate to the hospital’s investigation of the incident. The hospital contends that further proceedings would be necessary to determine if the Shahbases could make the showing required under Florida Rule of Civil Procedure 1.280(b)(3) “that the party seeking discovery has need of the materials in the preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means.”

The Shahbases respond that the hospital had the burden to show that the documents were privileged and that the hospital never met that burden and never filed a privilege log.

We recognize that it has been suggested that Amendment 7 does not affect the work-product and attorney-client privileges. See Buster, 932 So.2d at 352; Advisory Opinion to the Attorney Gen. Re Patients’ Right to Know About Adverse Med. Incidents, 880 So.2d at 621. However, we do not need to decide this issue because we do not read the trial court’s order as directing discovery of documents that may be privileged by the work-prod-uet doctrine. In its order, the trial court did not address the work-product privilege but did address the attorney-client privilege: “The Buster Court clearly indicated that attorney-client privilege has not been affected by the passage of Amendment 7. Should the hospital claim that privilege then a privilege log would be an appropriate response.”

When a party asserts the work-product privilege, it should file a privilege log. See Gen. Motors Corp. v. McGee, 837 So.2d 1010, 1032 (Fla. 4th DCA 2002) (“The way that a party claims privilege under [rule 1.280(b)(5) ] is to file a privilege log.”). Rule 1.280(b)(5) provides:

Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.

“Although waiver of the attorney-client privilege and work-product privileges is not favored in Florida, the rule is mandatory and a waiver can be found by failure to file a privilege log.” Gosman v. Luzinski, 937 So.2d 293, 295 (Fla. 4th DCA 2006). However, “[a] party is required to file a log only if the information is ‘otherwise discoverable.’” Id. at 296 (holding that until a trial court rules on a party’s objection to discovery based on it being overly burdensome and harassing, the party asserting a privilege is not required to file a privilege log).

Here, the hospital did not file a privilege log regarding documents that might be protected by the work-product privilege but rather raised other objections to the discovery. The trial court did not specifically address the work-product privilege or the hospital’s failure to file a privilege log,. but it did rule that the documents were otherwise discoverable. Now that the documents have been ruled discoverable, the hospital may assert the work-product privilege by filing a privilege log. We need not decide whether the work-product privilege is applicable until the claim of privilege has been properly presented to and considered by the trial court.

C. The Claim That the Production of Documents Will Violate Privacy Rights and Will Be Overly Burdensome

The hospital argues that the trial court erred in requiring discovery of documents relating to medical incidents or medical negligence involving Dr. St. John. The hospital claimed that production of these documents would be overly burdensome and would violate the state and federal privacy rights of other patients.

The Shahbases respond that the hospital did not demonstrate that the request for documents was overly burdensome because it did not attempt to quantify the number of documents to be reviewed or the number of employee hours needed to comply with the request.

As discussed above, Amendment 7 clearly provides that the Shahbases are entitled to any records relating to any adverse medical incidents, which would necessarily include those relating to Dr. St. John. Whether the request is overly burdensome is not a relevant consideration under Amendment 7.

In addition, the trial court’s order does not require the hospital to produce documents of other patients without redacting the patients’ private information. In producing the documents discoverable under Amendment 7, the hospital is required to protect the identity of the patients. Amendment 7 states that “[i]n providing such access [to medical records], the identity of patients involved in the incidents shall not be disclosed, and any privacy restrictions imposed by federal law shall be maintained.” Art. X, § 25(b).

D. The Claim Regarding Documents That Are Not Related to “Adverse Medical Incidents”

Last, the hospital claims that several of the Shahbases’ requests are overly broad in the context of Amendment 7 and do not relate to adverse medical incidents. The hospital contends that general requests for documents relating to policies and procedures and the credentialing and recredentialing of Dr. St. John are not permitted by Amendment 7 because these documents may likely contain information unrelated to adverse medical incidents. We agree.

Several of the requests submitted by the Shahbases cover documents that are not ■within the scope of Amendment 7. In request 1, the Shahbases seek documents relating “to the clinic’s policies and procedures after November 2, 2004, involving health care quality improvement, risk management, peer review, handling of adverse medical incidents, and credentialing issues.” Request 2 seeks “[e]ach and every policy and procedure relating to the rules to be followed after November 2, 2004, in the investigation of adverse medical incidents” and other incidents that could cause injury or death to a patient. Request 5 seeks “[e]aeh and every document related to the credentialing and re-credentialing process for Patricia St. John, M.D.” This request did not include a date, but the trial court ordered the hospital to produce such documents created after November 2, 2004.

Amendment 7 allows for the production of records relating to any adverse medical incidents, including “incidents that are reported to or reviewed by any health care facility peer review, risk management, quality assurance, credentials, or similar committee, or any representative of any such committees.” Art. X, § 25(c)(3). Amendment 7 does not require production of documents relating to general policies and procedures of such committees or other documents that do not contain information about particular adverse medical incidents. The documents sought in requests 1 and 2 relating to policies and procedures are by their nature outside the scope of Amendment 7. And request 5 concerning documents relating to the credentialing and recredentialing of Dr. St. John is overly broad because it encompasses documents that do not contain information about particular adverse medical incidents.

At the hearing below, the Shahbases essentially conceded that the documents would be privileged but for the adoption of Amendment 7 because in requesting the nine sets of documents, they specifically did not ask for documents that were created before November 2, 2004. They stated that they based their requests on Amendment 7 and the Buster opinion.

Because the Shahbases are entitled under Amendment 7 only to those documents which contain information about an adverse medical incident, the trial court departed from the essential requirements of law in ordering a blanket disclosure of privileged documents on the basis of Amendment 7. See Hudak, 556 So.2d at 832.

V. Conclusion

We grant the petition and quash the order of the trial court to the extent it ordered production of privileged documents that do not relate to adverse medical incidents. We otherwise deny the petition. We remand for the trial court to enter an order consistent with this opinion.

Petition denied in part; petition granted in part.

DAVIS and LaROSE, JJ, Concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    William STRICKLAND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-2928.
    District Court of Appeal of Florida, First District.
    June 28, 2007.
    Rehearing Denied July 31, 2007.

      William Strickland, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


author: LAWSON, J.

text:
    William J. HOLMES and Judith A. Holmes, Appellant, v. MARION COUNTY, Appellee.
    No. 5D06-3225.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2007.
    Rehearing Denied July 25, 2007.
    Craig B. Willis, of Fixel Maguire & Willis, Tallahassee, for Appellant.
    Thomas L. Wright, County Attorney, and Thomas D. MacNamara, Chief Assistant County Attorney, Ocala, for Appellee.
   LAWSON, J.

William J. and Judith A. Holmes, past owners and operators of a construction and debris landfill, appeal from a final judgment denying their claim for damages under the Bert J. Harris, Jr. Private Property Rights Protection Act, (“Bert Harris Act”), section 70.001, Florida Statutes (2006). We affirm.

The Holmes purchased a forty-six-acre parcel of property in Marion County, Florida, in 1986. A portion of this property had been used as a sand and clay mining site, authorized under Marion County’s land use and zoning regulations as a permitted use of agricultural land. The Holmes continued this use until 1992, when they sought to convert the mined land to a landfill. Although they began accepting fill prior to receiving the appropriate permits, the Holmes ultimately did secure a five-year operational permit for a construction and demolition landfill from the Department of Environmental Protection, (“DEP”), and a limited special use permit to accept offsite clean fill, including construction and demolition debris, approved by resolution of the Marion County Board of County Commissioners, (“Board”), on May 18, 1993. The resolution and permit expressly provided that the authorization was for a limited duration, and would expire on May 31, 2000. To secure the permit, the Holmes had to demonstrate that the special use was compatible with surrounding land uses, was consistent with the policies and objectives of the County’s comprehensive plan, and would not adversely affect the public interest. They were able to make this showing in 1993.

In 1998, the Holmes sought and received an extension of their DEP permit for another five-year period, to expire on August 24, 2003. In July of 1999, they filed an application with Marion County, seeking to extend their special land use permit for an additional three years beyond the May 31, 2000 expiration date, to August 24j 2003. At the public hearing held on the matter, a number of citizens testified in opposition to the Holmes’ application. For example, adjacent landowners testified that trucks going into the landfill left debris strewn over the roads surrounding the property; that heavy dust filled the air as a result of the truck traffic and landfill operation; that noise from the landfill interfered with the peaceful enjoyment of surrounding lands; and that the landfill emitted noxious fumes that blanketed the area. Considering all of the evidence, the Board found that the Holmes had not met their burden of demonstrating that extension of the special use would be compatible with surrounding land uses and would not adversely' affect the public interest. Based upon these findings, the Board denied the application.

On October 12, 2000, the Holmes filed a claim under the Bert Harris Act against Marion County, claiming $2.6 million in damages based upon their inability to continue the landfill operation beyond expiration of the 1993 special use permit. It appears undisputed that the Holmes would have made at least an additional $1.5 million on the sale of their property if the special use permit had been extended for an additional three years. Therefore, there is no dispute that the inability to operate a landfill on the property beyond expiration of the original special use permit resulted in a substantial “loss” to the Holmes. The only question is whether this loss, is compensable under the Bert Harris Act.

As explained in Osceola County v. Best Diversified, Inc., 936 So.2d 55, 58 n. 3 (Fla. 5th DCA 2006), the Bert Harris Act “creates a separate and distinct cause of action for property owners where governmental regulation has ‘inordinately burdened’ the' property, but does not amount to a ‘taking’ under the Florida or federal constitutions.” An “inordinate burden” is defined by the Act, in relevant part, as governmental action limiting the use of real property “such that the property owner is permanently unable to attain the reasonable, investment-backed expectation for the existing use of the real property or a vested right to a specific use” of the property. § 70.001(3)(e), Fla. Stat. (2006).

The Holmes acknowledge that the time-limited special use permit did not create a vested right to continue using their property as a landfill beyond expiration of the permit. In seeming contradiction, however, they argue that since they were lawfully operating a landfill when the Bert Harris Act became law, the landfill became an “existing use” that the County had to automatically re-permit indefinitely to avoid liability under the Act. We reject this argument for the simple reason that issuance of a time-limited permit cannot create a reasonable expectation that the specially permitted use will be allowed to continue indefinitely. Rather, the only “reasonable, investment-backed expectation” that the Holmes could have had was that they could only operate their landfill until May 31, 2000, unless they could secure a new special use permit by demonstrating that continued operation of the landfill beyond that date would be compatible with surrounding land uses; would be consistent with the County’s comprehensive plan; and, would not adversely affect the public interest. When they could not make this showing, the permit extension was properly denied. Because the denial did not “inordinately burden” the Holmes’ property, as that term is defined in the Bert Harris Act, the trial court properly ruled that the Holmes did not have a valid claim under the Act.

AFFIRMED.

THOMPSON and SAWAYA, JJ., concur.

      . Of course, it also appears undisputed that the Holmes made a great deal of money by operating their landfill for the seven-year period allowed by the special use permit.


text:
    AMERICAN AIRLINES, INC., Appellant, v. Arthur GEDDES, Appellee.
    No. 3D05-737.
    District Court of Appeal of Florida, Third District.
    July 5, 2007.

      Hunton & Williams and Terence G. Con-nor and Grace M. Mora and Christopher P. Hammon and Lisa R. Askowitz, Miami, for appellant.
    Denise V. Powers, Coral Gables, for ap-pellee.
    Before FLETCHER, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

American Airlines, Inc. appeals from a final judgment entered pursuant to a jury verdict in an action for defamation and negligent supervision. We reverse.

Arthur Geddes sued his employer, American, and its human resources manager, Terry Meenan, for defamation (and American for negligent supervision). Ged-des claimed he was defamed by statements made in the course of an investigation of a charge brought against him by a co-worker. Geddes had been employed as an aircraft mechanic for about 20 years when in June of 2001 a certain friction developed in his unit over the placement of personal computers. The mechanics had begun bringing their personal computers from home, keeping them in a closet area near the break room where the mechanics await their work assignments.

On June .19, Geddes came into the break room and found that the cabinet containing his computer had been rolled out of the closet and left in an open area. He complained about this to his supervisor, Garnett Pennant, telling him he suspected mechanic Mike Coombs. The supervisor interviewed both- men, and when Coombs denied any involvement, he told both men that if any computers were allowed in the area then Geddes’ computer was also allowed. On June 25, 2001, another mechanic, Ernest Suarez, complained aloud that too many computers were cluttering up the area. Geddes, who was using his computer in the closet at the time, heard the statement and the two men got into an argument. Later that day, Suarez reported to supervisor Jose De Fran and manager Pedro Lau that Geddes, while holding a two-foot metal bar in his hand, had threatened to “cut out his intestines.”

De Fran and Lau began an investigation of Suarez’ claim. They first talked with mechanics identified by Suarez as witnesses to the verbal exchange. The men denied seeing or hearing anything. • Next, De Fran and Lau talked to Geddes to get his side of the story. Although he denied making any threats, De Fran and Lau did not believe Geddes, and suspended him pending further investigation. Meenan, who as the human resources manager was responsible for investigating disciplinary problems, was out of town at the time of the incident. Upon her return, she took over the investigation.

Meenan interviewed Geddes in the presence of his representative, shop steward Jimmy Knapp. Geddes initially denied that anything had occurred, but, after speaking privately with Knapp, he admitted to -using other than ‘church talk’ with Suarez and telling him. “If you touch my computer, you’ll see what happens.” Ged-des identified another mechanic, Eduardo Romero, as someone who witnessed the incident. Although acknowledging that the two men got into a heated argument, Romero stated that Geddes did not threaten to cut Suarez. Meenan then re-interviewed Suarez who confirmed his prior statements. She also went back and talked to the other mechanics identified as witnesses, including those involved in the June 19 incident. According to standard practice, Meenan kept the maintenance department’s chief operating officer, Luther Brewster, informed of her investigation.

On July 17, 2001, Meenan met with Ged-des to communicate the results of her investigation. Geddes was to be issued a “first advisory” which is the first step in American’s progressive discipline policy. Meenan helped De Fran prepare the advisory. After communicating it to Geddes, the first advisory and a “counseling record” memorializing receipt of the advisory were placed in Geddes’ personnel file. Regrettably, this did not bring an end to the situation. Later that same day, manager Mike Smith called Meenan and asked her to talk to some of the mechanics who were asking questions about Geddes’ suspension. It seems that rumors had begun to circulate among the mechanics concerning the incident.. At the meeting, Meenan refused, on the grounds of confidentiality, to discuss the particulars of Geddes’ situation. While generally addressing the company’s workplace policies, however, she referred to examples of sexual harassment and incidents of shooting in other workplaces that were in the news.

Geddes maintains that American’s investigation was maliciously motivated because of a prior suit against his employer. Meenan-was the only person involved in the investigation who was aware of the prior action as it was not in Geddes’ personnel file. She testified that she became aware of the existence of a judgment against Geddes, but not its particulars, after his suspension and interview, but before she brought him back to work. Meenan indicated that the judgment did not play any part in her recommendation.

The case was tried to a jury which came back with a somewhat confusing verdict. Both American and Meenan were found to have published a defamatory statement about Geddes. Meenan’s statements were determined to be true, uttered in good faith, privileged and made without malice. The exact opposite was found regarding American’s statements. (American was also found guilty of negligent supervision.) Thus, the verdict was in favor of Geddes against American, but exonerated Meenan. Negligence was attributed 90% to American and 10% to Geddes, with total damages of $100,000 awarded. We believe the trial court erred in entering final judgment on this verdict.

To recover in a defamation action, a plaintiff must show that the defendant published false and defamatory statements concerning him, without reasonable care as to whether those statements were true or false, which.resulted in actual damage to the plaintiff. See, e.g., Byrd v. Hustler Magazine, Inc., 433 So.2d 593 (Fla. 4th DCA 1983); Miami Herald Publ’g Co. v. Ane, 423 So.2d 376, 388 (Fla. 3d DCA 1982). Words are defamatory when they “tend to subject one to hatred, distrust, ridicule, contempt or disgrace or tend to injure. one in one’s business or profession.” Seropian v. Forman, 652 So.2d 490, 495 (Fla. 4th DCA 1995) (citing Adams v. News-Journal Corp., 84 So.2d 549 (Fla.1955)).

A defamatory statement does not become actionable, however, until it is published or communicated to a third person; statements made to the person alleging the defamation do not qualify. See e.g., American Ideal Mgmt., Inc. v. Dale Village, Inc., 567 So.2d 497, 498 (Fla. 4th DCA 1990); Grandar-Centeno v. Lara, 489 So.2d 142, 143 (Fla. 3d DCA 1986). When the entity alleged to have committed the defamation is a corporation, the courts haVe held that statements made to corporate executive or managerial employees of that entity are, in effect, being made to the corporation itself, and thus lack the essential element of publication. See, e.g., Lopez v. Ingram Micro, Inc., 1997 WL 401585, 10 Fla. L. Weekly D635 (S.D.Fla. Mar 18,1997); Hayes v. Wal-Mart Stores, Inc., 953 F.Supp. 1334 (M.D.Ala. 1996); Advantage Personnel Agency v. Hicks & Grayson, Inc., 447 So.2d 330 (Fla. 3d DCA 1984).

Moreover, one who publishes defamatory matter concerning another is not liable for the publication if the matter is published upon an occasion that makes it conditionally privileged and the privilege is not abused. See, e.g. Nodar v. Galbreath, 462 So.2d 803, 809 (Fla.1984); Abraham v. Baldwin, 52 Fla. 151, 42 So. 591, 592 (1906). “A communication made in good faith on any subject matter by one having an interest therein, or in reference to which he had a duty, is privileged if made to a person having a corresponding interest or duty, even though it contains matter which would otherwise be actionable, and though the duty is not a legal one but only a moral or social obligation.” Nodar, 462 So.2d at 809 (citing 19 Fla. Jur.2d Defamation and Privacy § 58 (1980)).

In his complaint, Geddes alleges generally that American defamed him by republishing Suarez’ statement to others and refusing to silence the rumors going around. Neither the complaint nor the evidence presented at trial identifies the precise statements alleged to have.been defamatory or the American employee making such statements (other than Meen-an, who was exonerated by the verdict). Excluding all statements made by Meenan, it is difficult to determine from the record what other statements support the jury’s finding of defamation against American. Assuming, for purposes of discussion, that some American employee, other than Meenan, repeated Suarez’ account of the threat by Geddes while the matter was being investigated, we find that Geddes nevertheless failed to meet his burden of proof on the defamation claim. All communication. between American executive/managerial employees are considered to be the corporation talking to itself, and, could not be the basis for any defamation claim because they lacked the essential element of publication to a third party. This, therefore, excludes any written or oral communications between executive and/or managerial personnel such as Gar-nett Pennant, Jose De Fran, Pedro Lau, Mike Smith and Luther Brewster.

With regard to statements made to non-managerial American personnel, the record establishes that they were either directed to coworkers identified by Geddes or Suarez as witnesses to the alleged threat, or other employees of the maintenance department who sought an explanation for Geddes’ suspension. The former were an integral part of the investigation and the latter all had an interest in the disciplinary practices of their employer and in the safety and security of their workplace. These statements were, therefore, privileged.

The claim for negligent supervision was based on the alleged defamation; as we have found no actionable claim of defamation, this claim also fails.

We, therefore, reverse the judgment below, and remand for entry of judgment in favor of American.

REVERSED AND REMANDED.

      . Access to an employee’s file is limited to the employee, his supervisors (with a manager’s permission), managers, and human resources personnel.

      . Geddes sued American for race discrimination in federal court in 1997. American prevailed, obtaining a judgment against Geddes for fees and costs for over $56,000.

      . Geddes points to Mike Coombs and Dan Brown as persons outside the investigatory process who did not have any privileged interest. But the testimony shows that Mike Coombs was brought into the investigation by Geddes himself when he accused Coombs of being responsible for ■ the June 19 incident which preceded and involved the same matter leading to the altercation between Suarez and Geddes. Geddes also admits that Dan Brown inserted himself in the controversy when, after hearing about Geddes' suspension, he complained to Meenan about Geddes’ unfair treatment and sought an explanation.


text:
    Juan YANES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-550.
    District Court of Appeal of Florida, Third District.
    July 5, 2007.

      Juan Yanes, in proper person.
    Bill McCollum, Attorney General, and Lucretia A. Pitts, Assistant Attorney General, for appellee.
    Before COPE, FLETCHER and LAGOA, JJ.
   PER CURIAM.

This is an appeal of an order denying a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850.

In point one, defendant-appellant Yanes maintains that his counsel should have objected to two of the State’s peremptory strikes which were made against Hispanic jurors. We affirm the denial of relief on authority of Carratelli v. State, 915 So.2d 1256 (Fla. 4th DCA 2005) (en banc), approved, SC06-97 (Fla. July 26, 2007), and Phillips v. Crosby, 894 So.2d 28, 36 (Fla.2004). Both cases take the position that postconviction relief cannot be granted in this context unless the lawyer’s error resulted in a jury that was not impartial.

We affirm the denial of relief on defendant’s point two. During jury selection the State exercised a peremptory challenge against juror Alvarez. At some places the trial court record indicates that juror Alvarez did not serve, while at other places the trial court record indicates that juror Alvarez did serve on the jury. The State asserts that this is probably a transcription error but acknowledges that a conclusive, determination cannot be made on the basis of the present record. We affirm the denial of relief on the authority of the cases just cited,- and James v. State, 843 So.2d 933 (Fla. 4th DCA 2003).

On’ defendant’s point three, he alleges that his sentencing guidelines score was calculated under the wrong score-sheet. On an ’ appeal from a summary denial of a Rule 3.850 motion, this court must reverse unless the postconviction record- shows conclusively that the appellant is not entitled to any relief. Fla. R.App. P. 9.141(b)(2)(D). The postconviction record now before us does not conclusively refute the defendant’s claim, so we reverse on point three. As to the applicable version of the guidelines, see Cairl v. State, 833 So.2d 312 (Fla. 2d DCA 2003) (en banc). As to the test for harmless error in this context, see State v. Anderson, 905 So.2d 111 (Fla.2005).

As to defendant’s point four, the post-conviction record likewise does not conclusively refute the defendant’s claim. See Ford v. State, 825 So.2d 358, 361 (Fla.2002) (“An evidentiary hearing should have been required in order to resolve whether what counsel did was tactical.”) “ ‘[A] claim that trial counsel failed to investigate or call exculpatory witnesses [when] facially sufficient ... must either be refuted by attachments or an evidentiary hearing held.’ ” Id. at 361 (citation omitted); Jacobs v. State, 880 So.2d 548 (Fla.2004); Gonzalez v. State, 913 So.2d 707, 708 (Fla. 3d DCA 2005); Honors v. State, 752 So.2d 1234, 1235-36 (Fla. 2d DCA 2000). We reverse on point four.

The postconviction record does not conclusively refute defendant’s point five. The defendant claims that his counsel mi-sadvised him that his statement to the police would be suppressed, and persuaded him to turn down a plea offer on the basis of that misadvice. We reverse on point five and remand for further proceedings on authority of Sharpe v. State, 861 So.2d 483 (Fla. 3d DCA 2003), and Gomez v. State, 832 So.2d 793 (Fla. 3d DCA 2002). Contra Morgan v. State, 941 So.2d 1198 (Fla. 4th DCA 2006) (certifying direct conflict with Gomez and Sharpe), rev. granted, No. SC06-2350, 956 So.2d 456.

We affirm the denial of relief on point six.

With regard to those issues on which we reverse, we remand for an evidentiary hearing or other appropriate relief. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Affirmed in part, reversed in part, and remanded for further proceedings consistent herewith.


author: TAYLOR, J.

text:
    L.R., the mother, Appellant, v. J.F., the father, Appellee.
    No. 4B06-4003.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2007.

      See also, 837 So.2d 1098.
    L.R., Dania, Pro Se.
    J.F., Cherrylog, GA, Pro Se.
   TAYLOR, J.

L.R., the mother, sought a change of custody of her minor daughter, T.F., who had been living with her father, J.F., in Georgia since the Broward County Circuit Court entered dependency orders between 1999 and 2003. The mother requested the court to allow T.F. to remain with her following her summer visitation, instead of returning to five with her father. At the custody hearing, the mother requested the court to appoint an. attorney to represent her. The court denied her request for appointed counsel, concluding that this matter was no longer a dependency case because protective supervision had been terminated. The trial court also declined the mother’s request to speak to T.F. at the hearing about her desire to live with the mother. We reverse and remand for further proceedings, with directions to the trial court to consider the mother’s financial eligibility for appointed counsel and to permit T.F. to testify at the new hearing.

T.F. was born to the mother and father during their marriage. The father also acted as stepfather to the mother’s natural son, N.R. On September 22, 1998, the Florida Department of Children and Families (DCF) filed a shelter petition' with respect to the two minor children. DCF alleged that the mother had a substance abuse problem and had- temporarily left the children with her sister in Broward County so that she could go on a “road-trip” to the Keys. The mother had not returned, and the father was in Georgia at the time.

After a brief placement with a relative, on February 5, 1999, the trial court in the dependency proceeding gave permission for the two minor children, T.F. and N.R., to live with the father in Georgia. On March 2, 1999, the parties were divorced in the State of Georgia. The divorce decree stated that an action relating to custody was pending in Broward County, Florida (referring apparently to the dependency proceeding), and thus, the Georgia court had no jurisdiction to decide the custody issue.

On April 7, 1999, the Florida court extended the father’s temporary custody of the children. On November 22, 1999, the parties entered into a stipulated case plan, which provided for the children to remain with the father in Georgia under protective supervision by the appropriate family agency in Georgia. This order was extended by orders entered on February 14, 2000 and May 15, 2000.

On June 12, 2000, the Florida dependency court found that the mother was not in substantial compliance with her ease plan and adjudicated the children dependent as to her. The order provided that the children remain in the temporary custody of the father. After appellate mediation, the parties entered into a settlement stipulation, which left the children in the temporary custody of the father. The court issued orders extending the father’s temporary custody on March 1, 2000, June 8, 2001, and August 17, 2001.

In a dependency order dated March 19, 2002, the court left the children in the custody of their father and granted the mother visitation during the children’s spring break, for two two-week periods during the summer, and on alternating holidays. The court also concluded that permanency had been achieved for the children and terminated protective supervision. It retained jurisdiction over the minor children until their age of majority.

The mother appealed the order. In L.F. v. Department of Children & Family Services, 887 So.2d 1098, 1102 (Fla. 4th DCA 2003), we concluded that the trial court could grant the father custody of T.F., his natural daughter, but there was no basis for granting him custody of N.R., his stepson. Id. Noting the trial court’s concern with keeping the children together, given the testimony of psychological harm if they were separated, we reversed the prior orders in their entirety and remanded the case for the court to reconsider all custody and visitation issues concerning the minor children.

On August 8, 2003, the trial court transferred custody of N.R., the stepson, to the mother. The record does not show that the court entered an order awarding custody of T.F. to the father. T.F. simply remained with the father in Georgia without further court order. In an order dated December 12, 2003, the trial court stated that DCF’s protective supervision would terminate on January 21, 2004. It added that, “The father/stepfather’s ore tenus motion to terminate jurisdiction as to the child [T.F.] is denied as this court has retained jurisdiction on the children.”

The record remained silent for nearly three years, until the mother wrote the trial judge on August 1, 2006, requesting an emergency hearing to re-open the case concerning her daughter. In the letter, she stated that T.F. had exhibited suicidal tendencies through self-mutilation and was in need of psychological counseling as a result of a prior sexual assault and inappropriate behavior by an adult male family friend. The mother requested that her prior attorney in the dependency proceeding be re-appointed to represent her.

The father filed an “Emergency Verified Motion for Return of Minor Child and Pick-up Order” dated August 14, 2006. In his motion, he alleged that the mother had wrongfully refused to return the daughter at the end of her summer visitation. He further alleged that the mother had similarly refused to return the child following five previous visitations. The father did not serve his motion on DCF.

The trial court held a hearing on September 5, 2006. The father was represented at the hearing by a special public defender, but the mother appeared pro se. At the hearing, the mother asked the trial court to appoint her a lawyer. The court refused to do so, stating, “This is not dependency.” The court also declined the mother’s request for the court to speak directly with the daughter about her desire to remain in Florida.

DCF did not appear or participate in the hearing. After hearing testimony of the mother and father, the trial court entered a written order granting the father’s motion that T.F. be immediately returned to his custody. The mother filed an appeal pro se, in which she raised four procedural points. We reverse as to two: that the trial court erred in not appointing an attorney to represent her in this proceeding and that the trial court erred in refusing to hear from T.F.

A parent has a constitutional right to counsel in any dependency proceeding which “can result in permanent loss of parental custody.” S.B. v. Dep’t of Children & Families, 851 So.2d 689, 692 (Fla.2003). Although DCF chose not to participate in these proceedings because its protective supervision terminated some time ago, we believe this matter continues to qualify as a dependency proceeding. We could find nothing in the record to suggest that the custody orders entered in this case resulted from any court proceedings other than this dependency case.

The dependency statute states unequivocally:

Parents must be informed by the court of their right to counsel in dependency proceedings at each stage of the dependency proceedings. .

§ 39.013(1), Fla. Stat. (2006). The trial court may elect to retain jurisdiction over a child even after protective supervision has been terminated, until the child reaches the age of majority. See § 39.013, Fla. Stat. (2006). The trial court elected to retain jurisdiction over T.F.

In 2006, the legislature added section 39.621(9). It provides:

(9) The permanency placement is intended to continue until the child reaches the age of majority and may not be disturbed absent a finding by the court that the circumstances of the permanency placement are no longer in the best interest of the child. If a parent who has not had his or her parental rights terminated makes a motion for reunification or increased contact with the child, the court shall hold a hearing to determine whether the dependency case should be reopened and whether there should be a modification of the order. At the hearing, the parent must demonstrate that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by the modification.

Here, the record does not appear to contain a permanent placement of T.F. After remand from the first appeal, T.F. just remained with her father without any court ruling on her permanent status. In any event, whether or not we consider the mother’s motion an attempt to seek reunification or increased contact with T.F. under the above statutory provision, we view this matter as a stage of the dependency proceeding to which the right to counsel attached.

The mother also argues on appeal that the trial court erred in excluding T.F. from the hearing and not Speaking to her regarding her desire to remain with the mother in Florida. Juvenile Procedure Rule 8.255 supports the mother’s position. Subsection (b) of the rule makes clear that a child has a right to be present in juvenile matters “unless the court finds that the child’s mental or physical condition or age is such that a court appearance is not in the best interest of the child.” No such finding was made below. Moreover, in asking the trial court to speak with her daughter, the mother was clearly trying to call the child as a witness. Subsection (d)(1) of the rule states that a child “may be called to testify in open court by any party to the proceeding or the court, and may be examined or cross-examined.” Fla. R. Juv. P. 8.255(d) (2006). It was error for the court to refuse to hear from the child.

For the reasons stated above, we reverse and remand with directions to the trial court to consider the mother’s financial eligibility for appointment of counsel and to hold a new hearing on her request for a change in custody. T.F. may attend the hearing and be called as a witness.

Reversed and Remanded.

POLEN and STEVENSON, JJ., concur.

      . In this opinion, we refer to J.F. simply as “father,” although he is a father to T.F. and a stepfather to N.R.


author: LAGOA, Judge.

text:
    Sterling A. CLOWERS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2832.
    District Court of Appeal of Florida, Third District.
    July 5, 2007.
    Sterling A. Clowers, in proper person.
    Katherine Fernandez Rundle, State Attorney, and Penny H. Brill, Assistant State Attorney, for appellee.
    Before SUAREZ, ROTHENBERG, and LAGOA, JJ.
   LAGOA, Judge.

Defendant Sterling A. Clowers appeals the trial court’s order denying his public records request. For the following reasons, we affirm.

Defendant filed, pursuant to Section 119.01, Florida Statutes (2006), a motion for production of the State Attorney’s prosecutorial files in order to prepare a motion for postconviction relief. In the motion, Defendant alleged that because he was previously declared indigent, and continued to “assert his indigent status” the trial court should grant his motion and issue an order allowing Defendant to receive the files “without cost.” The trial court denied the motion as legally insufficient on its face. This appeal ensued.

The State concedes that the Defendant is entitled to copies of its files. See Roesch v. State, 633 So.2d 1, 2 (Fla. 1994) (“There is no doubt that certain portions of the state attorney’s investigation files are public records under chapter 119 once a defendant’s conviction and sentence become final.”). The State argues, however, that a defendant must pay the State for such copies for use in preparation of a postconviction motion. Id. at 2-3. We agree. Indeed, while an indigent prisoner may obtain free copies for a plenary appeal, there is no such provision to obtain them afterward. See Ridge v. Adams, 643 So.2d 116, 117 (Fla. 5th DCA 1994). Sections 119.07(l)(a) and (4), Florida Statutes (2006), require the custodian of public records to furnish copies upon payment prescribed either by statute or the actual cost of duplication. Moreover, as the Florida Supreme Court has stated, “[t]here is no provision in Chapter 119 for providing copies of the public records free of charge to indigent persons.” Roesch, 633 So.2d at 2. Because “[i]t is the legislature which has seen fit to designaté portions of the State Attorney’s files as public records.... it is up to the legislature if it wishes to make special provisions for indigent inmates to have free access to those records.” Id. at 3.

Accordingly, we affirm the trial court’s order denying Defendant’s public records request.

      . We review a nial court’s denial of a public records request for abuse of discretion. See Glock v. Moore, 776 So.2d 243, 254 (Fla. 2001).

      . The State advised the Defendant that the 'charge for copying was .15 cents per page. The > Defendant was further advised that a representative could be sent to review the requested files.


author: SHAHOOD, C.J.

text:
    MAGNER INTERNATIONAL CORP., Appellant, v. Zygmunt BRETT and Unixcam Group, LLC, Appellees.
    No. 4D06-5036.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2007.
    Rehearing Denied Aug. 6, 2007.

      Andrew Fulton, IV of Kelley & Fulton, P.A., West Palm Beach, for appellant.
    Robert A. Skolnick of Kupfer, Kupfer & Skolnick, P.A., Coral Springs, for appel-lees.
   SHAHOOD, C.J.

Appellant, Magner International Corp. (“Magner”), appeals an order denying its emergency motion for temporary injunction to enforce a non-compete agreement. Appellant urges that the trial court erred in denying its motion by ruling that the Employment Agreement between Zyg-munt Brett and Magner Corporation was not legally assigned to the appellant. We agree and reverse.

Brett was employed by Magner Corporation, a Connecticut corporation, from February 1, 1992 to August 31, 2000. While working for Magner Corporation, Brett signed an Employment Agreement which contained, among other provisions, non-compete and non-solicitation clauses.

Magner Corporation was involved in the marketing and sale of currency and coin-counting and authentication machines for use in the processing of currency and coins. Magner Corporation sold these machines in both the domestic and international markets. Sometime in 2000, the principals of Magner Corporation, Douglas R. Magee, Jr. and Paul R. Brunner, chose to sever their relationship, with the intent that Magee would sell the machines domestically and Brunner would sell the machines to international customers.

In contemplation of a corporate reorganization and separation, Magner was incorporated in Florida by Brunner.

The principals entered into an Agreement and Plan of Corporate Separation and Reorganization (“Reorganization Plan”) whereby the domestic and international operations of Magner Corporation were to be severed as part of a tax-free reorganization. Magner took over the international operations, and Magner Corporation, which merged into Magner Corporation of America, took over domestic operations.

Brett, who was employed by Magner Corporation since 1992, accepted employment with Magner and began working for that company. An assignment was executed by Magee, in his capacity as treasurer of Magner Corporation, purporting to assign to Magner the 1992 Employment Agreement.

Brett resigned in October 2006, effective November 1, 2006. On November 6, 2006, Magner filed a complaint against Brett and Unixcam Group, LLC, Brett’s new employer, and contemporaneously filed its emergency motion for temporary injunction, the denial of which formed the basis for this appeal.

Magner argues that the trial court erred in finding that it did not have standing to enforce the provisions of the non-compete and non-solicitation clause in the Employment Agreement. As a result of a tax-free split of Magner Corporation, Magner acquired all of the assets of the international division of the predecessor entity, including the rights under the Employment Agreement. In addition, there was an assignment of the Employment Agreement to Magner.

Brett, on the other hand, argues that the trial court correctly denied Magner’s Emergency Motion for Temporary Injunction because Brett’s employment agreement was with Magner Corporation, which had been dissolved and two separate corporations had been formed. Further, he urges that as a result of the dissolution his contract was not properly assigned to Magner.

Paragraph 8 of the Employment Agreement provided that it “shall be interpreted and enforced in accordance with the laws of the State of Connecticut.”

“Florida courts are obligated to enforce choice-of-law provisions unless a showing is made that the law of the chosen forum contravenes strong public policy or that the clause is otherwise unreasonable or unjust.” Gilman + Ciocia, Inc. v. Wetherald, 885 So.2d 900, 902 (Fla. 4th DCA 2004) (citations omitted). No such showing was made; therefore, the choice-of-law provision in the contract is valid and enforceable. The law of Connecticut must be applied.

In Connecticut,

Where an employee enters into a restrictive covenant ... it becomes a valuable asset of the business and upon the sale of that business the benefits of the covenant may be assigned to the purchaser. Where ... the proprietor of the business sells it in the entirety to another, in equity the seller will be deemed to have assigned so much of the benefit of the contract as is severable and necessary for the protection of the business sold to the purchaser.

Torrington Creamery v. Davenport, 126 Conn. 515, 12 A.2d 780, 783 (1940) (citations omitted).

Non-compete agreements may be assigned upon the sale of a business or automatically assigned where the entire business is sold to another entity. In Madrigal Audio Laboratories, Inc. v. Cello, 799 F.2d 814, 821 (2d Cir.1986), the court held that “Connecticut adheres to the'view, rejected by most jurisdictions, that an employee’s covenant not to compete is an assignable asset of the employer” (citations omitted).

This principle was applied in Blum, Shapiro & Co., P.C. v. Searles & Houser, LLC, No. CV 990586283S, 1999 WL 669824 (ConmSuper. Aug. 11, 1999), where the court found that the plaintiff company was not entitled to enforce the covenant not to compete because the plaintiff company did not acquire all of the assets of the defendant company; the two entities did not merge and the plaintiff company assigned no value to any covenant not to compete nor to goodwill in acquiring certain assets of the defendant company. Compare Stay Alert Safety Servs., Inc. v. Fletcher, No. CV054007660S, 2005 WL 2009036 (ConmSuper. July 13, 2005) (plaintiff company that purchased defendant company could enforce non-compete clauses in employment contracts for employees from the defendant company); Kelly Servs., Inc. v. Savic, No. 3:05CV1960 (AHN), 2006 WL 3254482 at 9-11 (D.Conn. Sept.5, 2006) (covenant assignable where the employment contract containing the covenant was specifically referred to as an asset of the sold company, although covenant eventually found unenforceable due to subsequent actions by employer).

In order for the terms of a non-compete employment agreement to be enforced by the purchasing company, under Connecticut law, that company must either acquire all of the assets of the company that initially held the employment agreement or upon sale be assigned the rights to the covenant. Here, Magner Corporation was divided by a reorganization agreement.

In this case, the Reorganization Plan stated that Magner Corporation is having all assets of its international division transferred “to a newly organized Florida corporation, to be known as Magner International Corp.” in exchange for 100 shares of common stock in International. The Plan went on to state that Magner Corporation “has formed a wholly-owned subsidiary, Magner Corporation of America” and that Magner Corporation will merge with and into Magner Corporation of America. Magner was never identified as a subsidiary of Magner Corporation.

■ The facts demonstrate that Mag-ner Corporation originally contained two divisions, a domestic division and an international division. The international division was taken over by Magner International (“Magner”) based in Florida. The domestic division remained with Magner Corporation which merged with Magner Corporation of America. However the transaction may be characterized, the entire business of Magner Corporation did not transfer to Magner; therefore, under Torrington, Magner is not deemed to have received the benefits of the non-compete employment agreement made between Brett and Magner Corporation. Nevertheless, there was an assignment.

Paragraph 9 of the Employment Agreement reads:

This Agreement shall be binding upon the parties hereto, their respective heirs, executors, administrators, successors and assigns; however, neither this Agreement nor the obligations, duties and responsibilities set forth herein shall be assignable or delegable by Employee without the prior written consent of Employer.

Torrington specifically states that “upon the sale of that business, the benefits of the covenant may be assigned to the purchaser.” 12 A.2d at 783. Tor-rington only mentions a sale in the entirety where no assignment is provided. “A sale is a transfer of goods for consideration, and the seller is generally the party that receives the consideration and effects the transfer.” Caring Ways Adult Daycare Ctrs., Inc. v. Saybrook Auto Sales, No. CV040103721, 2005 WL 3047261 at *3 (ConmSuper. Oct. 25, 2005) (quoting Am. Container Corp. v. Hanley Trucking Corp., 111 N.J.Super. 322, 268 A.2d 313, 316 (1970)). The assignment was made pursuant to the “Separation Agreement” in which consideration was provided. As a result, a valid assignment was made under Torrington, giving Magner standing to enforce the covenant not to compete.

Therefore, the trial court erred in denying appellant’s emergency motion for temporary injunction.

Reversed and Remanded.

GROSS and MAY, JJ., concur.


author: MONACO, J.

text:
    Michael TOWERS, Petitioner, v. CITY OF LONGWOOD and Judith Putz, Respondent.
    No. 5D07-206.
    District Court of Appeal of Florida, Fifth District.
    July 6, 2007.

      Michael Towers, Longwood, Pro Se.
    Donovan A. Roper of Roper & Roper, P.A., Apopka, for Respondent, City of Longwood.
    Thomas C. Greene, Sanford, for Respondent, Judith Putz.
   MONACO, J.

Petitioner, Michael Towers, seeks a writ of certiorari to quash the lower court’s order granting a motion for protective order concerning a deposition duces tecum of a non-party witness at which the deponent, Judith Putz, was to produce certain documents described in the notice. Because the order constitutes a departure from the essential requirements of law that would cause the petitioner material ■ injury throughout the remaining proceedings, and because the error could not be adequately remedied by appeal, we grant the writ.

In the amended complaint Mr. Towers, and two other corporate plaintiffs, asserted five claims for relief growing out of a dispute between the plaintiffs and the City of Longwood concerning the proposed development of certain properties within the Downtown Historic District of that municipality. For his part, Mr. Towers sought declaratory relief with regard to the developments, while asserting, inter alia, that city officials acted in bad faith when dealing with the projects. Ms. Putz, the proposed deponent, was a member of the City of Longwood Historic Preservation Board, and later sat on the City’s Land Planning Agency. She admits to being a “vocal opponent” of projects such as those proposed by the plaintiffs. While the amended complaint is long and rambling, it does allege specifically that Ms. Putz took certain actions leading to the frustration of the planned development.

Mr. Towers served a notice of' taking deposition duces tecum directed to Ms. Putz, by which she was instructed to appear for deposition with a variety of documents concerning the development proposed by Mr. Towers. Ms. Putz moved for a protective order asking the trial court both to prohibit Mr. Towers from taking her deposition, and to relieve her of the obligation of producing the listed documents. Her initial argument was based primarily on the inconvenience that a deposition would cause her at the time that it was scheduled. At the hearing on the motion, however, she urged that a protective order be granted because of the over-broad nature of the document subpoena, and because in her view she had nothing relevant to contribute- by her testimony. After a spirited argument, the trial court granted the motion for protective order in all respects without stating the reason. The court later entered a written order confirming its ruling in which it stated:

1. ... Judy Putz is not a party to this action.
2. That the Plaintiff, Michael Towers, has admitted that his cause of action in part is an attempt to investigate whether Mrs. Putz (Deponent) has unauthorized ex-parte communications regarding lot split ordinance while on the L.P.A. [Land Planning Agency].
3. That the request to depose the Deponent does not relate to issues involved in the litigation.
4. That the Deponent is not the Clerk or Custodian of records for the City of Longwood and the records requested by Plaintiff, Michael Towers, should be obtained from the Custodian of records.
5. That the balance of the documents requested by the Plaintiff, Michael Towers, is no more than a mere fishing expedition on his part based on a mere suspicion.

Mr. Towers thereafter petitioned this court for certiorari relief.

Ordinarily appellate courts will only grant certiorari relief where a trial court’s order constitutes a departure from the essential requirements of the law, and causes a party to suffer material injury throughout the remaining proceedings that cannot be adequately remedied by appeal. See Lunceford v. Fla. Cent. R.R. Co., Inc., 728 So.2d 1239, 1241 (Fla. 5th DCA 1999); Travelers Indent. Co. v. Hill, 388 So.2d 648, 650 (Fla. 5th DCA 1980). In general, “trial court orders refusing to compel discovery are not reviewed by certiorari because it is believed any harm caused by the denial can be adequately remedied on appeal from the. final order.” See Beekie v. Morgan, 751 So.2d 694, 698 (Fla. 5th DCA 2000).

Under some circumstances, however, this Court has granted certiorari relief directed to a trial court’s improvident grant of a protective order. See, e.g., Beekie, 751 So.2d at 698; Lunceford, 728 So.2d at 1240-41. In Bush v. Schiavo, 866 So.2d 136, 140 (Fla. 2d DCA 2004), for example, the Second District noted that a complete bar to the taking of certain depositions might cause harm to the party seeking to use that method of discovery that could not be remedied on appeal “because there is no practical way to determine after judgment how the denial of the right to depose alleged material witnesses would have affected the outcome” of the proceedings. See also Travelers Indem., 388 So.2d at 650. We conclude that the present case is analogous to Bush and Travelers in that Mr. Towers has been completely barred from obtaining discovery from Ms. Putz, and is one of the exceptional discovery cases that lends itself to certiorari treatment.

Rule 1.280(b)(1), Florida Rules of Civil Procedure states:

... Parties may obtain discovery regarding any matter, not privileged, that is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party, including the existence, description, nature, custody, condition, and location of any books, documents, or other tangible things and the identity and location of persons .having knowledge of any discoverable matter. It is not .ground for objection that the information sought will be inadmissible at the trial if the. information sought appears reasonably calculated to lead to the discovery of admissible evidence.

Unquestionably, “[a] trial court possesses broad discretion in overseeing discovery, and protecting the parties that come before-it.” See Bush, 866 So.2d at 138 (citing Rojas v. Ryder Truck Rental, Inc., 625 So.2d 106, 107 (Fla. 3d DCA 1993)). To that end, rule 1.280(c), Florida Rules of Civil Procedure provides that where good cause is demonstrated, the trial court “may make any order to protect a party or person from . annoyance, embarrassment, oppression or undue burden or expense that justice requires.” The burden of demonstrating good cause for the issuance of such a protective order, however, falls upon the party seeking that relief. See Bush, 866 So.2d at 138; Office of Att’y Gen. v. Millennium Commc’ns & Fulfillment, Inc., 800 So.2d 255, 258 (Fla. 3d DCA 2001). Here, that good cause was not shown by Ms. Putz or the City.

Mr. Towers seeks to take the deposition of a person who is specifically named in the body of his amended complaint, and who was sitting on a city board that was directly involved in the dispute he is having with the City of Longwood. The fact, as the trial court notes, that the petitioner’s “cause of action in part is an attempt to investigate whether Mrs. Putz has unauthorized ex-parte communications regarding lot splitting ordinance while on the L.P.A.,” is hardly a reason to prohibit her deposition from being taken. If anything, it militates in favor of allowing the deposition to be taken. If the trial court has concluded that the case involves potential ex parte communications on the part of Ms. Putz concerning her opposition to the petitioner’s project, then her deposition would by very definition concern relevant facts discoverable in accordance with Rule 1.280(b). Moreover, it would be utterly impossible to tell whether Ms. Putz has any information that is relevant to the suit if Mr. Towers is prohibited from asking any questions of her.

It may be when all is said and done that Ms. Putz has nothing to contribute that is germane to the issues before the trial court. Absolutely barring Mr. Towers from taking her deposition, however, is simply wrong based on the allegations of the complaint and the liberality of discovery. Litigants would never be able to take a non-party deposition if all the non-party had to do to get out of it is to say that he or she has nothing relevant to say.

Turning now to the order relieving Ms. Putz of the obligation to produce documents, we note that the trial court failed to address the individual requests and simply noted that the listed items are either public records or a “fishing expedition.” It is clear from the allegations of the amended complaint and the arguments .that were made before the trial court, however, that Ms. Putz is individually in possession of many of the requested documents. That some documents are of public record does not mean that she is relieved of producing them if she indeed has them in her possession, custody or control. If she does not have them, she need only say that she does not have them. If any of the documents are protected by a privilege, she needs to have that issue specifically addressed by the court. Should there be a question about individual documents, the trial court can examine them in camera. The trial court’s broad labeling of the entire document production process as a fishing expedition, however, without addressing the individual categories of documents sought is insufficient, particularly where it is obvious from looking at the notice to produce and the allegations of the complaint that the document production is being directed at many relevant items. The document production must, therefore, be reconsidered by the trial court.

We accordingly grant the petition for writ of certiorari and quash the trial court’s Order On Amended Motion For Protective Order.

WRIT GRANTED.

TORPY and LAWSON, JJ., concur.


author: THOMAS, J.

text:
    James Horace COOPER, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-1211.
    District Court of Appeal of Florida, First District.
    July 6, 2007.

      Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, Attorneys for Appellant.
    Bill McCollum, Attorney ' General, and Sheron L. Wells, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

Appellant challenges the trial court’s denial of his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(b)(2). Because Appellant’s sentence for DUI manslaughter exceeds the statutory maximum for a second-degree felony, we reverse.

On October 18, 2005, Appellant was sentenced to 15 years’ probation for multiple counts, including one count of DUI manslaughter, a second-degree felony. On January 4, 2006, Appellant violated the conditions of his probation by driving without a valid driver’s license and failing to report his change of address. The trial court sentenced him to 20 years in prison for the DUI manslaughter charge, and 5 years concurrent for the two related charges.

Appellant filed a motion to correct his illegal sentence, alleging that the trial court erred- in sentencing him to 20 years in prison on the DUI manslaughter charge because the maximum punishment for a second-degree felony is 15 years. §§ 316.193(3)(c)(3)(a); 775.082(3)(c), Fla. Stat. (2005). The trial court, relying on Floyd v. State, found that Appellant’s overall sentence of 20 years was appropriate because it was within the range computed on the guidelines scoresheet. 707 So.2d 833 (Fla. 1st DCA), aff'd, 721 So.2d 1163 (Fla.1998).. This ruling is in error.

Appellant’s scoresheet shows a “lowest permissible prison sentence” of 140 months (11 years, 8 months) for DUI manslaughter. Because Appellant’s “sentence floor” is not higher than the 15-year statutory maximum sentence for DUI manslaughter, the maximum permissible sentence under the Criminal Punishment Code for this offense is 15 years. See Moore v. State, 859 So.2d 613, 618 (Fla. 1st DCA 2003) (“The trial court remained free to sentence up to the statutory maximum on each offense”) (emphasis added); § 921.0024(2), Fla. Stat. (2005).

Although the State acknowledges that Appellant’s sentence for DUI manslaughter is illegal, it notes that Appellant’s total sentence of 20 years for all offenses is not. The State argues that because Appellant could be legally sentenced to an overall 20-year sentence by merely reducing the sentence for manslaughter to the allowable 15 years and adding a consecutive 5-year sentence for either of the other offenses, there is no sentencing error.

This argument was specifically rejected by the Fifth District in Wheeler v. State, 864 So.2d 492 (Fla. 5th DCA 2004). There, the court concluded, “[T]he fact that the court could have imposed consecutive sentences does not cure the illegality of the sentences actually imposed. Similarly, the fact that the court may order consecutive sentences on remand does not cure the illegality of the sentences.” Id. at 492-93 (citing Leonard v. State, 760 So.2d 114, n. 4 (Fla.2000) (holding that illegal sentence should not remain uncorrected merely because it was to be served concurrent to another sentence)). We find the Fifth District’s analysis persuasive. The sentence for each charge must be a legal sentence. Accordingly, we reverse the trial court’s order denying Appellant’s motion to correct sentencing error. On remand, the trial court shall recalculate Appellant’s sentence in a manner consistent with this opinion.

REVERSED and REMANDED with instructions consistent with this opinion.

BENTON and PADOVANO, JJ., concur.

      . Appellant’s statutory maximum sentence for all offenses is 35 years (the sum of 15 years for second-degree DUI manslaughter, 15 years for second-degree charge of fleeing or attempting to elude, and 5 years for third-degree charge of driving without a valid driver's license).

      . The Criminal Punishment Code allows the sentences to be imposed either concurrently or consecutively. § 921.0024(2), Fla. Stat. (2005).


author: DAVIS, Judge.

text:
    Tiffany SEFFERNICK, Appellant, v. Michael MERIWETHER, o/b/o Ethan MERIWETHER, Appellee.
    No. 2D06-4585.
    District Court of Appeal of Florida, Second District.
    July 6, 2007.
    Rehearing Denied Aug. 6, 2007.
    Toni A. Butler of Toni A. Butler, P.A., for Appellant.
    Lisa P. Kirby of Lisa P. Kirby, P.A., Naples, for Appellee.
   DAVIS, Judge.

Tiffany Seffernick appeals the final judgment of injunction for protection against domestic violence entered against her by the trial court. Because the petitioner, Michael Meriwether, failed to present to the trial court sufficient evidence to support the granting of the injunction, we reverse.

Seffernick is the mother of a minor son, who at the time of the incident was fifteen months old. Meriwether petitioned for an injunction for protection against domestic violence on behalf of the minor child, alleging that he is the child’s father.- At the hearing on the petition, Meriwether testified that he found Seffernick on the floor of their home with her wrist cut from an apparent suicide attempt. Determining that she was not in need of medical assistance, he helped her clean up the blood and put her .to bed.

He then took the minor child outside with him while he telephoned family members. Seffernick came out of the house and demanded that she be allowed to hold the child. When Meriwether, who was holding the child, refused to hand him over to Seffernick, she physically .tried to take the child from Meriwether by “grabbing at [the child].” Meriwether testified that the danger to the child was enhanced because the parties were standing on concrete during the confrontation. He acknowledged that he pushed Seffernick away and ran to a neighbor’s house, where he called for assistance and awaited the arrival of the police. When the police arrived, Seffer-nick agreed to go with them to the hospital, where she was admitted pursuant to the Baker Act.

Based on this testimony, the trial court entered a final judgment of injunction for protection against domestic violence against Seffernick. By the terms of the nine-month injunction, temporary custody of the child was placed with Meriwether and the parties were ordered to contact the Children’s Advocacy Center to arrange visitation for Seffernick.

Although on appeal Seffernick raises issues . regarding the trial court’s jurisdiction,. Meriwether’s standing, and the trial court’s consideration of the best interests of the child, we need not reach these issues because we conclude that there was insufficient evidence to support issuing the injunction. Florida statutes provide for the issuing of an injunction for protection when a person is either the victim of domestic violence or has reasonable fear to believe he or she is “in imminent danger of becoming the victim of any act of domestic violence.” § 741.30(l)(a), Fla. Stat. (2006); see also Young v. Smith, 901 So.2d 372 (Fla. 2d DCA 2005)! Section 741.28(2) defines domestic violence as “assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family- or household member by another family or household member.”

In the instant case, Meriwether filed the petition on the behalf of the minor child. Accordingly, in order to issue the injunction, the trial court had to find that either the child had been the victim of domestic violence or was in “imminent danger of becoming the victim” of such an act at the hands of Seffernick. The only evidence presented below was that Seffernick injured herself and “grabb[ed] at” the child in an attempt to take him away from Meri-wether. Such actions do not meet the statutory definition of domestic violence. Additionally, when the petition was filed, Seffernick was in the hospital pursuant to the Baker Act. The hearing on the petition was delayed - for approximately six weeks, during which time Seffernick .was living apart from Meriwether and the child. There was no evidence presented to support a finding that the child was in “imminent danger” of being victimized by Seffer-nick. Accordingly, we conclude that the trial court erred in entering the final judgment of injunction.

We note, however, that the trial court was placed in an unenviable position. In light of Seffernick’s suicide attempt, the trial court had reason to be concerned about the child living alone with his mother. However, the domestic violence proceeding was not the proper forum to address that concern. Meriwether could have filed a paternity action and sought temporary custody based on Seffernick’s conduct. Alternatively, he could have pursued a dependency action privately or through the Department of Children and Family Services. We do commend the trial court for recognizing the need to provide for the care of the child; however, it erred in substituting this proceeding — with all of the resulting consequences of issuing such an injunction — for an appropriate paternity or dependency proceeding. See Young, 901 So.2d at 373 (“[A] determination that a person had either victimized a [family member] with an act of violence or placed that [family member] in a reasonable fear of imminent danger, is a serious finding of fact that can have many unintended collateral consequences.”).

Reversed.

STRINGER, J., and HARRIS, CHARLES M., Associate Senior Judge, Concur.

      . § 394,463, Fla. Stat. (2006>. •

      . Although Meriwether alleged in the petition that he is the minor child’s father, the testimony at the hearing indicated that both parties acknowledged that a paternity action was needed to adjudicate him to be the father and to address issues such as custody and visitation.

      . We recognize that until Meriwether is adjudicated to be the father, he is, by law, a stranger to the child. He could have, however, sought assistance from the Department of Children and Family Services to insure that the child was properly cared for, or he might have filed a private petition seeking the court’s determination that the child was in need of protection and asking that the child be placed with him until the paternity action could be Completed. Furthermore, he had ample opportunity to commence an appropriate proceeding as there was a lengthy delay between the issuance of the temporary injunction and the evidentiary hearing.


text:
    Robert EY, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-1053.
    District Court of Appeal of Florida, Second District.
    July 11, 2007.

      Robert Ey, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Danilo Cruz-Carino, Assistant Attorney General, Tampa, for Appellee.
   PER CURIAM.

Robert Ey appeals an order dismissing with-prejudice his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court dismissed this motion with prejudice, even though the State had conceded that an evidentiary hearing was required on portions of -the motion. The trial court dismissed the motion because Mr. Ey allegedly refused to leave the county jail to attend the hearing. In imposing this sanction, the trial court relied on unsworn information conveyed to it by the bailiff, who in turn apparently received the information from someone at the jail.

Mr. Ey filed a timely motion for rehearing, explaining that the reasons and circumstances surrounding his failure to appear for the hearing were justifiable and that the trial court did not-obtain accurate information when it dismissed his case with prejudice. The trial court denied this motion without a hearing. The State concedes that the trial court did not adequately address the motion for rehearing.

We note that the motion for postconviction relief, which was filed in- January 2006, may be of little practical assistance to Mr. Ey because it appears to address convictions and sentences imposed in October 2003 that run concurrently with a substantially longer sentence imposed in 2001. Nevertheless, we conclude that the trial court improperly denied his motion for rehearing. Accordingly, we reverse and remand for the trial court to either conduct a hearing on the motion for rehearing or to grant that motion and conduct a hearing on the issues that had been previously scheduled for the hearing when Mr. Ey did not appear.

Reversed and remanded.

NORTHCUTT, C.J., and ALTENBERND and STRINGER, JJ., Concur.


author: SHEPHERD, J.

text:
    CASITA, L.P., et al., Appellants, v. MAPLEWOOD EQUITY PARTNERS L.P., et al., Appellees.
    No. 3D06-1292.
    District Court of Appeal of Florida, Third District.
    July 11, 2007.

      Gibson Dunn & Crutcher and Mitchell Karlan, New York, NY; Thomas & Lo-Cicero and Gregg D. Thomas, Susan Tillot-son Bunch and Deanna K. Shullman, Tampa, for appellants.
    Akerman Senterfitt and Nancy A. Cop-perthwaite, Miami, Brian P. Miller, Salt Lake City, UT, Samantha J. Kavanaugh and Kevin C. Schumacher, Miami, for ap-pellees.
    Before GREEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

In this non-final appeal from an order denying a motion to dismiss for lack of personal jurisdiction, we answer a question unresolved in Wendt v. Horowitz, 822 So.2d 1252, 1253 n. 2 (Fla.2002), whether injury alone to a Florida plaintiff caused by a tortious act committed outside the state is sufficient to invoke the jurisdiction of the courts of this state under Section 48.193(l)(b), of the Florida long-arm statute. • Joining the majority of our sister courts of appeal to the north, see Consol. Energy Inc. v. Strumor, 920 So.2d 829 (Fla. 4th DCA 2006), Homeway Furniture Co. of Mount Airy, Inc. v. Horne, 822 So.2d 533 (Fla. 2d DCA 2002), Thompson v. Doe, 596 So.2d 1178, 1179 (Fla. 5th DCA 1992) decision approved by Doe v. Thompson, 620 So.2d 1004 (Fla.1993), we today conclude that it is not.

In this case, two Florida-based investment funds and affiliates, the “Maplewood entities,” seek to have the Florida courts assert personal jurisdiction over four nonresident appellants, two of whom have no contacts with Florida, and two of whom have only minimal Florida contacts unre-' lated to the cause of action. The complaint alleges that the Casita entities — one a disappointed fund investor — have knowingly, willfully, and maliciously embarked on an aggressive campaign to destroy the reputation and business of Maplewood by publishing false and disparaging written and oral statements about the Maple-wood’s competence and honesty, causing Maplewood injury to reputation, goodwill, loss of potential investors and diminished profits. Maplewood seeks to recover from the Casita entities compensatory and punitive damages for defamation, tortious interference with business relations, and tortious interference with contractual relations. Although Maplewood alleges the defamatory statements occurred both inside and outside the state, the proofs presented at the hearing refute the former allegation. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla. 1989)(When a defendant, by competent proof contests the allegations of the complaint concerning jurisdiction, the burden falls to the plaintiff to prove the basis of upon which jurisdiction may be obtained).

Our standard of review is de novo. Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000). Our inquiry requires us to first determine whether the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of any section of the Florida long-arm statute, § 48.193, Fla. Stat. (2005), and, if so, whether sufficient minimum contacts are demonstrated to satisfy due process under the Fourteenth Amendment to the United States Constitution. Execu-Tech, 752 So.2d at 584. Ma-plewood contends that the courts of this state can lawfully assert personal jurisdiction over the defendants in this case under section 48.193(l)(b) of Florida’s long-arm statute (2005). The section states:

Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(b) Committing a tortious act within this state.

The statute expressly requires that the tort be committed in Florida. Under Florida law, the tort of defamation is committed in the place where it is published. See, e.g., Firstamerica Dev. Corp. v. Daytona Beach News-Journal Corp., 196 So.2d 97, 102 (Fla.1966); Achievers Unlimited v. Nutri Herb, 710 So.2d 716, 719 (Fla. 4th DCA 1998)(“Florida courts subscribe to the rule that the tort of libel occurs wherever the offending material is circulated.”). A telephonic, electronic, or written communication is deemed “published” in Florida, subjecting the publisher to long-arm jurisdiction under section 48.193(l)(b) of the Florida Statutes if the communication was made into this state by a person outside the state, even if that person has no other contacts with the state. Horowitz, 822 So.2d at 1258 (citing Carida v. Holy Cross Hosp., 424 So.2d 849 (Fla. 4th DCA 1982)(slanderous telephone calls into state can support a finding of tortuous act committed in Florida), overruled on other grounds, Doe v. Thompson, 620 So.2d at 1004; Silver v. Levinson, 648 So.2d 240 (Fla. 4th DCA 1994)(mailing of defamatory letter into Florida); Achievers Unlimited, Inc. v. Nutri Herb, Inc., 710 So.2d 716 (Fla. 4th DCA 1998)(defamatory statements over telephone to Florida residents by nonresident); Acquadro v. Bergeron, 778 So.2d 1034 (Fla. 4th DCA 2001)(telephone conversations made into Florida), approved, 851 So.2d 665 (Fla. 2003).) In this case, Maplewood is unable to offer any proof that the Casita entities published the injurious statements within Florida. Accordingly, Maplewood’s effort to assert jurisdiction over the Casita entities under section 48.193(l)(b) fails.

Maplewood argues that authority from one of our sister courts analyzes the exercise of personal jurisdiction based upon intentional torts under section 48.193(l)(b) of the Florida Statutes using broader concepts. See Allerton v. State Dep’t of Ins., 635 So.2d 36, 40 (Fla. 1st DCA 1994); Int’l Harvester Co. v. Mann, 460 So.2d 580 (Fla. 1st DCA 1984). But see Doe v. Thompson, 620 So.2d at 1006 (noting disapproval on other grounds). Maplewood urges that in these cases, the First District Court of Appeal approved personal jurisdiction over the respective defendants under section 48.193(l)(b) of the Florida Statutes based upon a tort committed solely outside the territorial boundaries of this state which was “intended to cause injury” in Florida. In Maplewood’s words, “targeted and intentional tortious acts aimed at Florida [are sufficient to] establish the requisite minimum contacts and comport with the requirements of due process of law under Fla. Stat. 48.193(l)(b).” We are not so sanguine about Maplewood’s reading of the facts of these cases. Carefully considered, it appears to us in each case that part of the alleged tortious conduct occurred in Florida. Cf. Wood v. Wall, 666 So.2d 984 (Fla. 3d DCA 1996)(finding personal jurisdiction to exist over non-resident promoter defendants “alleged to have committed purposeful, non-fortuitous, intention acts on [the plaintiff] and his associates located in Florida”). Moreover, we find Maplewood’s argument to be little more than the facts of this case in repackaged rhetoric.

Finally, while it is not necessary for us to breach any constitutional question to resolve this case, we pause to record our concern that acceptance of the argument made by Maplewood could raise a substantial federal constitutional question. See, e.g., Burger King Corp. v. Rudzewicz, 471 U.S. 462, 476, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985)(holding that “[s]o long as a commercial actor’s efforts are ‘purposefully directed’ toward residents of another State, we have consistently rejected that an absence of physical contacts can defeat jurisdiction there [under the due process clause]”); World-Wide Volkswagen Gorp. v. Woodson, 444 U.S. 286, 295-96, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980), (“ ‘Foreseeability’ of injury alone has never been a sufficient benchmark for personal jurisdiction under , the Due Process Clause.”). We may not extend the Florida long-arm law beyond its constitutional limits. Steinhilber v. Lamoree, 825 F.Supp. 1003, 1005 (S.D.Fla.1992), aff'd, 15 F.3d 1097 (11th Cir.l994)(“The Florida long-arm statute must also be strictly construed to ensure compliance with due process requirements.”); see also Pluess-Staufer Indus., Inc. v. Rollason Eng’g & Manuf., Inc., 635 So.2d 1070, 1072 (Fla. 5th DCA 1994)(“Long-arm statutes are to be strictly construed.”). However, because we hold that the trial court is without jurisdiction pursuant to section 48.193(l)(b) of the Florida Statutes, we need not reach the issue of whether Florida may constitutionally exercise jurisdiction over the Casita entities.

Reversed and remanded with directions that the complaint be dismissed without prejudice on the ground of lack of personal jurisdiction.

      . We have jurisdiction. See Fla. R.App. P. 9.130(a)(3)(C)(i).

      . The plaintiffs in the case are: (1) Maple-wood Equity Partners, L.P., a domestic equity investment fund organized under the laws of Delaware; (2) Maplewood Equity Partners (Offshore) Ltd., an offshore equity investment fund organized under the laws of the Cayman Islands; (3) Maplewood Management, L.P., a Delaware limited partnership, which is the funds manager of both funds; Maplewood Partners L.P., a Delaware limited partnership, the funds’ advisor; and (5) Maplewood Holdings, LLC, a Delaware limited liability company, the general partner in Maplewood Partners and Maplewood Management. The funds, their manager and their advisor all have their principal place of business in Coral Gables, Florida. The plaintiffs sometimes collectively are referred to as "Maplewood.”