text:
    Z.B., a child, Petitioner, v. DEPARTMENT OF JUVENILE JUSTICE, Respondent. G.T., a child, Petitioner, v. Department of Juvenile Justice, Respondent.
    Nos. 1D06-3988, 1D06-3989.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2006.
    Nancy Daniels, Public Defender; John W. Hedrick and Nancy L. Harvey, Assistant Public Defenders, Tallahassee, for Petitioners.
    Charlie Crist, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

We previously granted petitioners’ requests for habeas corpus relief and ordered them to be released from secure detention. We have consolidated these cases to explain our reasoning.

Petitioners were arrested separately and individually detained on allegations of violating probation. According to the VOP affidavit, Z.B. had violated his curfew and had twice stayed out all night. The risk assessment instrument (RAI) prepared by the Department of Juvenile Justice (DJJ) alleged that Z.B. was an absconder and he scored 11 points, which provided for nonse-cure or home detention. As to G.T., the YOP affidavit alleged that he had not completed community service, failed to write an essay and his attendance in a program was unsatisfactory. The RAI did not allege that G.T. was an absconder. G.T.’s corrected RAI scored a total of 3 points, which provided for the juvenile to be released from custody.

No sworn testimony was presented at either detention hearing. Z.B. argued that he had merely violated curfew and was not an absconder. The Assistant State Attorney argued that Z.B.’s RAI score should include 10 points for absconding. As to G.T., the Assistant State Attorney recommended that G.T. be placed in home detention. The trial judge indicated that it was “ridiculous” that G.T.’s alleged probation violations did not constitute new law offenses. G.T.’s mother objected to his release to home detention because “he was not following the rules.” The trial court found that G.T. had absconded from probation and, because he had failed to appear at his VOP arraignment, that he “presented a significant risk of failing to appear at subsequent hearings.” Both petitioners were ordered to be held in secure detention. Without the additional 10 points for absconding, neither petitioners’ RAI scores would have made them eligible for secure detention.

Petitioners sought habeas corpus relief in this court. They argued that they did not meet the definition of absconding set forth in DJJ’s Probation and Community Correction Handbook which defines absconding as “gone in a clandestine manner out of the jurisdiction of the courts in order to avoid legal process” or to “hide, conceal or absent himself clandestinely with the intent to avoid legal processes.”

DJJ filed a response in opposition arguing that a trial court may detain a juvenile in secure detention if the juvenile is alleged to be an absconder from probation. See § 985.215(2)(a), Fla. Stat. (2005); D.H. v. Esteves, 790 So.2d 1275 (Fla. 4th DCA 2001). DJJ stated that the juvenile statutes do not define absconder, but cited to T.C. v. Layne, 725 So.2d 1278 (Fla. 4th DCA 1999), where the court upheld a juvenile’s secure detention upon a finding that leaving home-based supervision overnight without permission was absconding.

Our analysis starts with the oft cited observation that the power to place in detention those charged with or found to have committed a delinquent act is entirely statutory. See S.W. v. Woolsey, 673 So.2d 152, 154 (Fla. 1st DCA 1996). Therefore, strict compliance with the statute is required. W.C. v. Smith, 898 So.2d 1137, 1138 (Fla. 1st DCA 2005). If the statute fails to authorize secure detention, a juvenile cannot be so held. Under section 985.213(2)(a), all detention determinations shall comply with all requirements and criteria provided in that part of chapter 985 and shall be based on a risk assessment of the child. The purpose of the RAI is to determine whether “pretrial” detention would be appropriate for a given juvenile. C.R.C. v. Portesy, 731 So.2d 770, 771 (Fla. 2d DCA 1999). If a juvenile qualifies for detention under the “admission criteria” of the RAI and section 985.215(2)(a)-(j), the inquiry then proceeds to tallying of points for various factors to yield a “risk assessment.” The RAI score must establish a need for detention.

Section 985.215(2)(a) does authorize detention for a child alleged to be an escapee or absconder from a probation program. However, it appears that although petitioners may have violated the curfew condition of their probation, petitioners cannot be considered “absconders” because they voluntarily returned to their approved residences. Petitioners do not meet DJJ’s Handbook’s definition of an absconder. There was no evidence presented that either petitioner was “gone in a clandestine manner out of the jurisdiction of the courts in order to avoid legal process” or to “hide, conceal or absent himself clandestinely with the intent to avoid legal processes.” Chapter 985 does not define the term “abscond,” nor does there appear to be any juvenile case law defining the term. Black’s Law Dictionary 7 (8th ed.2004) defines abscond as to “depart secretly or suddenly, especially to avoid arrest, prosecution, or service of process,” or “to leave a place, usually hurriedly, with another’s money or property.” The Interstate Compact on Juveniles, codified in Chapter 985, Part V, makes several references to juveniles who have “absconded, escaped or run away,” which suggests a leaving without the intent to return. In K.C. v. State, 848 So.2d 1193 (Fla. 2d DCA 2003), the juvenile was charged with violating probation by absconding from her residence in September 2001 and remaining at large until May 2002. K.C. appeared in court, but then again absconded in July 2002, leaving her whereabouts unknown and was noted to be on “runaway status” before she was ultimately taken into custody. Id. at 1194. In K.S. v. State, 835 So.2d 350, 351 (Fla. 4th DCA 2003), the juvenile was alleged to have absconded from her residence and the court found that she left home for extended periods of time in the company of older men. Finally, there are cases in which juveniles have been charged with both violating curfew and absconding, which suggests that curfew violations and absconding are not the same offense. See, e.g., K.G. v. State, 759 So.2d 752, 753 (Fla. 4th DCA 2000) (violation of aftercare affidavit alleged that juvenile had violated by leaving home without permission, disobeying curfew and absconding from aftercare program); Dep’t of Health & Rehab. Servs. ex rel. M.H. v. State, 447 So.2d 359, 360 (Fla. 1st DCA 1984) (finding a violation of community control where juvenile failed to abide by a curfew and absconded).

DJJ relies on T.C., where the juvenile was found to have “absconded” when she left her home-based supervision overnight without permission. Unlike the petitioners in these cases, T.C. did not return voluntarily and instead was arrested for trespass when she was found sleeping in a vacant house. Here, although both petitioners had violated their curfew, they returned home each time. In addition, although the trial court found that G.T. failed to appear for the VOP arraignment, section 985.215(2)(i) limits holding a child in secure detention for such an offense to a maximum of 72 hours in advance of the next scheduled court hearing. Section 985.215(2)(j) provides that a child may be placed in detention if he is detained on a judicial order for failure to appear and has previously willfully failed to appear at two or more court hearings of any nature on the same case regardless of the results of the RAI. Here, G.T. was alleged to have missed only one court hearing and he stated that he missed the hearing because he was at work. The fact that G.T.’s mother objected to his release to home detention is not a basis for holding the child in secure detention. Section 985.214 specifically provides that a child may not be placed into detention to “allow a parent to avoid his or her legal responsibility.”

Finally, we note that there are legal consequences for a juvenile who has violated probation. Section 985.215(2)(h) provides that a child alleged to have violated probation may be placed in a consequence unit and, if a consequence unit is not available, the child shall be placed on home detention with electronic monitoring. After a probation revocation hearing, if the court finds that the child has violated the conditions of probation, the court may impose any of the sanctions set forth in section 985.231, and may also impose any sanction it could have imposed at the original disposition hearing. § 985.231(l)(a)l.c., Fla. Stat. (2005).

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

      . A violation of probation does not automatically constitute a new law violation. Clearly, G.T.’s failure to perform community service, write an essay or attend a program are not criminal offenses under the Florida Statutes.

      . See §§ 985.501(1)(a) and 985.502, Fla. Stat. (2005).


source: Caselaw Access Project

author: ERVIN, J.

license: Public Domain

text:
    Dr. John FULLERTON, Appellant, v. The FLORIDA MEDICAL ASSOCIATION, INC., Dr. Jonathan B. Warach, Dr. Pravinchandra Zala, and Dr. Joseph O. Krebs, Appellees.
    Nos. 1D05-0185, 1D05-3632.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2006.

      James F. McKenzie of McKenzie, Taylor & Zaraur, P.A., Pensacola, and John Vail and Julie Schroeder of the Center for Constitutional Litigation, P.C., Washington, D.C., for Appellant.
    Angela C. Flowers of Kubicki Draper, Miami, for Appellee The Florida Medical Association.
    Robert V. Williams, and John A. Schifi-no of Williams, Schifino, Mangione & Steady, P.A., Tampa, for Appellees Dr. Jonathan B. Warach, Dr. Pravinchandra Zala, and Dr. Joseph 0. Krebs.
    Jon N. Ekdahl, Leonard A. Nelson, and Steve I. Ro of the American Medical Association, Chicago, Illinois; John D. Buchanan, Jr., of Henry, Buchanan, Hudson, Súber & Carter, P.A., Tallahassee, for Amicus Curiae American Medical Association.
    Rebecca O’Dell Townsend of The Solomon Tropp Law Group, P.A., Tampa, for Amicus Curiae Washington Legal Foundation.
   ON MOTIONS FOR REHEARING, CLARIFICATION, REHEARING EN BANC, OR CERTIFICATION

ERVIN, J.

Appellees seek rehearing, clarification, rehearing en banc, or certification of the court’s decision in these consolidated appeals. We deny the motions for rehearing, rehearing en banc, and certification, but grant the motion for clarification. We withdraw the opinion filed July 11, 2006, and substitute the following modified opinion.

In these consolidated appeals, Dr. John Fullerton, a medical practitioner and an expert witness in a medical-malpractice action, appeals separate final judgments entered on prior orders granting the appel-lees’ motions to dismiss Dr. Fullerton’s amended complaints alleging counts in defamation, tortious interference with an advantageous business relationship, conspiracy through abuse of economic power, witness intimidation brought against all of the defendant/appellees, and a count against defendant/appellee Florida Medical Association (FMA), a professional peer-review association, for violation of Florida’s RICO Act. Because we decide that the lower court erroneously concluded that section 766.101, Florida Statutes (2003), and the federal Health Care Quality Improvement Act, 42 U.S.C. §§ 11101-11152 (HCQIA), immunize the FMA and the individual defendant physicians from all liability, we reverse the final judgments of dismissal and remand the cases for further consistent proceedings.

Following Dr. Fullerton’s testimony as an expert witness in a medical-malpractice action brought against doctors Jonathan B. Warach, Pravinchandra Zala, and Joseph O. Krebs (individual defendants and appel-lees in case no. 1D05-0185), which resulted in-a judgment exonerating them from liability, they forwarded a letter to the FMA complaining of Dr. Fullerton’s testimony, stating, among other things, that his opinion testimony fell below reasonable professional standards, that it was made “for the sole purpose of propagating a frivolous lawsuit for financial gain,” and that he specifically “presented false testimony and false theories about stroke in the hope to prove negligent medical care in an 80-year-old diabetic with previous strokes who suffered a stroke despite appropriate care.” Defendants concluded their letter with a request to the FMA to issue an opinion addressing whether Fullerton’s testimony “fall[s] below standards,” and, if so, to report its findings to the Board of Medicine for appropriate disciplinary action in order “to prevent the Medical profession from being terrorized by similar experts.”

Following the publication of the letter, Dr. Fullerton filed his initial complaint with a copy of the letter attached, naming both the FMA and the individual physicians as defendants. He alleged that while he is licensed to practice medicine in California and Florida, he is not a member of the FMA; that he resides in California where he primarily practices his profession. He generally alleged that the statements in the letter were false and were submitted for processing by the FMA’s Expert Witness Committee (EWC) of FMA’s Council on Ethical and Judicial Affairs (CEJA), which was organized for the purpose “of intimidating, hindering, and deterring persons, including plaintiff Fullerton, from appearing as expert witnesses on behalf of plaintiffs in cases involving medical malpractice,” thereby depriving injured plaintiffs of the ability to pursue medical-malpractice lawsuits. He continued that because of the actions of FMA and the defendant doctors, who acted in concert to inhibit expert testimony in medical-malpractice cases, he had suffered damages and would suffer irreparable harm to his reputation and to his capacity to earn income in the future if the defendant FMA’s CEJA and EWC programs were permitted to continue their operations.

All of the defendants filed motions to dismiss, raising as grounds that the claims were barred by the Florida and federal immunity statutes. At the hearing conducted on the motions to dismiss, plaintiffs counsel argued that although the FMA is statutorily designated a professional-review committee, the immunity statutes were not designed to apply to expert-witness testimony; rather, they were enacted for the purpose of addressing the quality of health care provided by physicians in the treatment of their patients.

At the conclusion of the hearing, the court ruled that the statutory immunity privilege provided in both section 766.101 and the HCQIA barred the plaintiffs claims in the absence of allegations of intentional fraud. As a result, the court granted the motions to dismiss without prejudice in order for Dr. Fullerton to amend his complaint in an effort to state a cause of action for intentional fraud with the specificity required by Florida Rule of Civil Procedure 1.120(b).

Following plaintiffs election not to amend the complaint brought against the individual physicians, the trial court entered final judgment of dismissal with prejudice, and the appeal from same is designated as case number 1D05-0185. Plaintiff later filed an amended complaint against the defendant FMA, asserting essentially the same allegations and the same counts, resulting in the trial court’s dismissal with prejudice of all counts except defamation, which the court dismissed without prejudice to allow him to amend by specifically alleging extrinsic evidence of intentional fraud. The court also dismissed the amended defamation complaint for the same reasons given for the dismissal of the prior complaints, and the appeal therefrom is styled case number 1D05-3632.

This court’s review standard of a trial court’s grant of a motion to dismiss is de novo. See Shands Teaching Hosp. & Clinics, Inc. v. Beech St. Corp., 899 So.2d 1222, 1227 (Fla. 1st DCA 2005). Moreover, because the lower court’s dismissal orders depended primarily on its interpretation of the pertinent immunity statutes, our review standard of its legal construction is de novo. We find nothing in Florida’s medical peer-review statutes reasonably supporting an interpretation that a peer-review committee is shielded from liability for an act taken by the committee on a claim that a physician’s testimony in a medical-malpractice action fell below acceptable professional standards. The peer-review immunity statute, section 766.101(3)(a), provides in part:

There shall be no monetary liability on the part of, and no cause of action for damages shall arise against, any member of a duly appointed medical review committee, or any health care provider furnishing any information ... for any act or proceeding undertaken or performed within the scope of the functions of any such committee if the committee member or health care provider acts without intentional fraud.

In rejecting a challenge that the statute violated Florida’s constitutional access to courts provision, the state supreme court ruled that the statute did not have the effect of abolishing all causes of action that had previously existed before its enactment; rather, its provisions permitted “a defamation action against a committee member or health care provider when the plaintiff can establish extrinsic evidence of malice or fraud.” Feldman v. Glucroft, 522 So.2d 798, 800 (Fla.1988). The statute was later described as “plac[ing] a burden on the plaintiff to plead extrinsic evidence before authorizing a lawsuit in which such evidence could be discovered.” Dhaduvai v. Belsito, 663 So.2d 1356, 1357 (Fla. 2d DCA 1995). The plaintiff meets the statutory burden by filing a complaint “con-tainting] allegations of extrinsic evidence of either a lack of good faith or intentional fraud.” Id. at 1357, n. 2.

It is obvious that the lower court’s interpretation of section 766.101(3)(a) in the case at bar was largely influenced by the above cases, which, however, did not involve a question of whether the statute’s immunity provisions apply to expert-witness testimony in a medical-malpractice action. In our judgment, because neither Florida’s peer-review statutes nor the HCQIA clearly and unambiguously expresses the legislative intent that such testimony should be scrutinized by peer review, we conclude the statutes provide no immunity to the defendants.

The parties do not dispute that the FMA EWC is a “committee of a state or local professional society of health care providers,” as defined in section 766.101(l)(a)l.c, or that the term “health care providers” includes licensed physicians. See § 766.101(l)(b), Fla. Stat. Other pertinent provisions of the peer-review statute, however, offer little support to the lower court’s application of immunity to the facts alleged. Florida’s peer-review procedure was created for the purpose of “evalu-at[ing] and improv[ing] the quality of health care rendered by providers of health service or ... determining] that health services rendered were professionally indicated or were performed in compliance with the applicable standard of care or that the cost of health care rendered was considered reasonable by the providers of professional health services in the area.” § 766.101(l)(a), Fla. Stat.

Appellees argue that the submission of expert-witness testimony in medical-malpractice actions is a provision of health care by a health care provider. They point out that the preamble to chapter 73-50, Laws of Florida, which created the medical-review committee procedure, recited the need for establishing such committees “for the purpose of reviewing standards of care, utilization and expense in the rendering of health services in an effort to deter or eliminate some of the causes of the increased claims and costs of providing health services.” Based on this language, the appellees contend that the review of an expert witness’s medical testimony by a professional peer-review committee implements the legislative goal seeking the reduction of costs in the rendering of health services. They continue that unprofessional expert medical testimony threatens the quality of health care because if such testimony is not made subject to review, physicians are frequently pressured into performing unnecessary procedures that drive up the cost of health care, and subject patients to unnecessary and potentially dangerous treatments for the purpose of guarding against baseless malpractice claims. As a result, they assert that an assessment by a board-certified peer-review committee of the quality of an expert’s opinion serves to promote the legislative goal of improving the quality of health care.

If such was indeed one of the purposes leading to the act’s adoption, the legislature failed to express its intention with the clarity one would reasonably expect it to use in bringing about such a substantial change to the privilege traditionally accorded witness testimony. Although a medical-review procedure that subjects the substandard practice of physicians to peer review is unquestionably remedial legislation and entitled to a liberal construction, cf. De Bowes v. De Bowes, 149 Fla. 545, 7 So.2d 4 (1942), a broad construction should not be accorded if its effect is to confer powers not expressly or reasonably implied in the statute’s provisions. See Becker v. Amos, 105 Fla. 231, 141 So. 136 (1932).

Moreover, if the statute were construed in the manner appellees advocate, such construction would ignore one of the cardinal tenets of statutory interpretation, requiring that statutes enacted in derogation of rights established by the common law be given a narrow, not a liberal construction. The common law has long recognized that an absolute civil privilege extends to a witness’s testimony in connection with or in the course of an existing judicial proceeding. See Ange v. State, 98 Fla. 538, 123 So. 916, 917 (1929); Stucchio v. Tincher, 726 So.2d 372, 375 (Fla. 5th DCA 1999). As noted in Fariello v. Gavin, 873 So.2d 1243, 1245 (Fla. 5th DCA 2004): “By virtue of this immunity, defamatory statements made in the course of judicial proceedings by parties, witnesses and counsel are absolutely privileged, no matter how false or malicious those statements might be, provided the statements are relevant to the subject of the inquiry.” The consequence of the rule is that “[t]orts such as perjury, libel, slander, and other actions based on statements made in connection with a judicial proceeding are not actionable.” Id. Thus, a statute which conflicts with a rule of common law is required to be construed strictly, with the result that no change in the common law can be said to be legislatively intended unless the statute speaks plainly in such regard or cannot otherwise be given effect. See McGhee v. Volusia County, 679 So.2d 729, 731 (Fla.1996).

We find no clear legislative expression that the testimonial privilege long accorded to witnesses was intended to be modified by the language of section 766.101, which was expressly created for the purpose of evaluating and improving the quality of health care rendered by providers of health service. The term “render” is defined, among other things, as doing a service for another. Merriam-Webster’s Collegiate Dictionary 990 (10th ed. 1998). A physician who renders a medical service is ordinarily considered to be providing medical care to his or her patient. This conclusion becomes even more evident when one considers the provisions of section 766.101 in connection with those of section 458.305(3), Florida Statutes (2003), which defines the practice of medicine as the “diagnosis, treatment, operation, or prescription for any human disease, pain, injury, deformity, or other physical or mental condition.”

Based upon our examination of all pertinent provisions of the statute, we agree with appellant that it fails to immunize the FMA from liability when that body acts to evaluate the testimony of a medical expert given in a medical-malpractice action.

We also agree that the HCQIA, 42 U.S.C. §§ 11101-11152, provides no immunity to the FMA in its role as an examiner of the quality of a non-member physician’s judicial testimony. In 1986, Congress created the HCQIA for the purpose of improving the “quality of medical care by restricting the ability of physicians who have been found to be incompetent from repeating this malpractice by moving from state to state without discovery of such finding.” Imperial v. Suburban Hosp. Ass’n, Inc., 37 F.3d 1026, 1028 (4th Cir. 1994).

Congress made the following findings supporting its enactment of the HCQIA:

(1) The increasing occurrence of medical malpractice and the need to improve the quality of medical care have become nationwide problems that warrant greater efforts than those that can be undertaken by any individual State.
(2) There is a national need to restrict the ability of incompetent physicians to move from State to State without disclosure or discovery of the physician’s previous damaging or incompetent performance.
(3) This nationwide problem can be remedied through effective professional peer review.
(4) The threat of private money damage liability under Federal laws, including treble damage liability under Federal antitrust law, unreasonably discourages physicians from participating in effective professional peer review.
(5) There is an overriding national need to provide incentive and protection for physicians engaging in effective professional peer review.

42 U.S.C. § 11101. In order to carry out the findings expressed, professional review bodies were created, and both they and those providing information to them were accorded immunity from liability and damages under any law of the United States or any state, with the exception only where the health-care provider knowingly provided false information. 42 U.S.C. § 11111. Section 11111(a)(1) provides in pertinent part:

Limitation on damages for professional review actions

If a professional review action (as defined in section 11151(9) of this title) of a professional review body meets all the standards specified in section 11112(a) of this title, except as provided in subsection (b)[] of this section—
(A) the professional review body,
(B) any person acting as a member or staff to the body,
(C) any person under a contract or other formal agreement with the body, and
(D) any person who participates with or assists the body with respect to the action, shall not be liable in damages under any of the United States or of any State (or political subdivision thereof) with respect to the action....

A reading of the above provisions clearly reveals two essential requisites must be met in order for a professional-review body to be entitled to the immunity authorized: (1) the body must be engaged in a professional-review action as defined in section 11151(9), and (2) it must meet all of the standards set out in section 11112(a). The only standard applicable to the issue before us is the first stated therein, requiring that the peer review be taken “in the reasonable belief that the action was in the furtherance of quality health care.” 42 U.S.C. § 11112(a)(1). The narrow question we must address is whether the HCQIA can be reasonably construed as authorizing peer review of a physician’s testimony given in a medical-malpractice action for the purpose of furthering the quality of health care. In our judgment, it cannot. This conclusion is made evident by the language of section 11151(9), defining professional-review action as

an action or recommendation of a professional review body which is taken or made in the conduct of professional review activity, which is based on the competence or professional conduct of an individual physician (which conduct affects or could affect adversely the health or welfare of a -patient or patients), and which affects (or may affect) adversely the clinical privileges, or membership in a professional society, of the physician. Such term includes a formal decision of a professional review body not to take an action or make a recommendation described in the previous sentence and also includes professional review activities relating to a professional review action. ...

(Emphasis added.)

It appears from our examination of the above statutes that the term professional-review action, as it relates to a formal decision of a review body to take or not take action, encompasses the review of the professional conduct of a physician that might affect his or her patient’s health, with the result that his or her right to clinical privileges or membership in a professional society could be impacted. Nothing in the provisions of the above statute, however, expressly provides or reasonably implies the professional body is empowered to review thé quality of a physician’s testimony in a medical-malpractice proceeding.

In so concluding, we are not unaware that the Seventh Circuit Court of Appeals in Austin v. American Association of Neurological Surgeons, 253 F.3d 967 (7th Cir. 2001), indicated in dicta that a professional-review body was authorized by the HCQIA to assess the quality of a physician’s testimony given in a medical-malpractice action. In Austin, a neurosurgeon was suspended from membership in the American Association of Neurological Surgeons, and he filed an action for damages and injunctive relief against the association, alleging that the suspension was in retaliation for his having testified as an expert witness for the plaintiff in a medical-malpractice action brought against another neurosurgeon, also a member of the Association. The Seventh Circuit affirmed the trial court’s entry of summary judgment against the neurosurgeon, and it concluded with the following observations:

We note finally that there is a strong national interest, which we doubt not that Illinois would embrace, in identifying and sanctioning poor-quality physicians and thereby improving the quality of health care. Although Dr. Austin did not treat the malpractice plaintiff for whom he testified, his testimony at her trial was a type of medical service and if the quality of his testimony reflected the quality of his medical judgment, he is probably a poor physician. His discipline by the Association therefore served an important public policy exemplified by the federal Health Care Quality Improvement Act, 42 U.S.C. §§ 11101 et seq., which encourages hospitals to conduct professional review of its staff members and report malpractice to a federal database. As an inducement to the vigorous performance of this reporting function, the Act immunizes hospitals from liability for disciplinary actions they take against staff physicians, provided only that the hospital is acting in good faith. See 42 U.S.C. §§ 11101, 11111, 11112.

Id. at 974.

Although we take issue with the Seventh Circuit’s comments in Austin, implying that the HCQIA’s provisions include the authorization of a professional body’s review of the quality of a physician’s testimony in a malpractice action, we note several distinguishing facts in Austin from those at bar, the most notable being that Dr. Fullerton, unlike Dr. Austin, was not a member of the professional association that entertained a complaint to discipline him. Therefore, even if the statutes could be interpreted as permitting peer review of a member physician’s malpractice testimony, the FMA had no cause under the circumstances to subject Dr. Fullerton to its discipline.

Accordingly, we reverse the final judgments of dismissal. Our decision in this case is predicated solely on the determination that the trial court’s primary reason for dismissal was the erroneous conclusion that the immunity provisions of section 766.101, Florida Statutes (2003), and the federal HCQIA bar appellant’s claims against the FMA and the individual defendant physicians. We express no opinion regarding the sufficiency of the counts of the amended complaint to state a cause of action, and the parties are free to pursue these matters on remand.

REVERSED and REMANDED.

KAHN, C.J., and VAN NORTWICK, J., concur.

      . The exception provided in subsection (b) is irrelevant to the resolution of the issue before us in that it involves the failure of a health care entity to report required information— facts that are not alleged in the instant case.


author: PER CURIAM.

text:
    Napoleon REDDICK, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D05-5044.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2006.
    Napoleon Reddick, pro se, Petitioner.
    Charlie Crist, Attorney General; Carrie R. McNair and Sean F. Callaghan, Assistant Attorneys General, Tallahassee, for Respondent.
   PER CURIAM.

After losing 90 days of future gain-time as a consequence of a prison disciplinary proceeding, Napoleon Reddick sought relief in the circuit court by petition for writ of mandamus. The circuit court denied relief on the merits, and Reddick does not challenge that determination. However, he asserts that his claim constituted a “collateral criminal proceeding” and that the circuit court therefore erred when it declared him indigent but placed a lien on his prison account to cover the court’s filing fee pursuant to section 57.085(5), Florida Statutes (2005). See § 57.085(10), Fla. Stat. (2005); Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). In addition, by motion for review pursuant to Florida Rule of Appellate Procedure 9.430, Reddick has challenged the circuit court’s order imposing a lien for appellate filing fees.

We agree with Reddick that the circuit court’s imposition of these liens was error. See Muhammad v. Crosby, 922 So.2d 236 (Fla. 1st DCA 2006) (under Schmidt, any challenge to discipline that results in a loss of gain-time is a collateral criminal proceeding). Accordingly, we grant the petition for writ of certiorari to the extent of quashing the circuit court’s order imposing a lien to cover the filing fees associated with the petition for writ of mandamus, grant Reddick’s motion for review, and vacate the portion of the circuit court’s order imposing a lien for appellate filing fees. We further direct the circuit court to ensure the reimbursement of any funds that have been withdrawn from petitioner’s account to satisfy the improper lien orders.

ERVIN, BARFIELD, and POLSTON, JJ., concur.


text:
    John A. McMILLION, Jr., Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES DISTRICT: 02 JACKSON UNIT: APD, Appellee.
    No. 1D06-2429.
    District Court of Appeal of Florida, First District.
    Sept. 27, 2006.
    John A. McMillion, Jr., pro se, Appellant.
    John S. Slye, General Counsel, Department of Children and Families, and Gail Scott Hill, Assistant General Counsel, Agency for Persons with Disabilities, Tallahassee, for Appellee.
   PER CURIAM.

APPEAL DISMISSED. See Fla. R.App. P. 9.110(b); Delgado v. J. Byrons, Inc., 877 So.2d 822 (Fla. 4th DCA 2004) (holding that appellate court lacked jurisdiction to consider appeal where the notice of appeal was not filed within 30 days after judgment was entered).

BARFIELD, PADOVANO, and HAWKES, JJ., concur.


text:
    Inty MORALES, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1418.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 2006.

      Inty Morales, Lake City, pro se.
    No appearance for appellee.
   PER CURIAM.

Appellant’s Response to Order July 19, 2006, and Clarification of Facts filed on July 28, 2006, is treated as the initial brief and the appeal is summarily affirmed under rule 9.315(a), Florida Rules of Appellate Procedure (2006).

POLEN, FARMER and SHAHOOD, JJ., concur.


author: POLEN, J.

text:
    DONOVAN CONSTRUCTION, INC., and Thomas Donovan, Appellants, v. Mark A. VACKER, Essex Insurance Company, and Ocampo and Associates, Inc., Appellees.
    No. 4D05-4105.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 2006.
    Caroline Nitsche Carlson of Pivnik & Nitsche, P.A., Miami, for appellants.
    Jenelle E. La Chuisa of Law Offices of Clinton D. Flagg, PA, Coral Gables, for appellee Essex Insurance Company.
   POLEN, J.

This appeal arises from a final summary judgment entered against appellant Donovan Construction, Inc. (“DCI”) based on late notice to its insurer. We reverse, holding that material issues of fact remained.

The standard of review of a trial court’s ruling on a motion for summary judgment posing a pure question of law is de novo. Fayad, v. Clarendon Nat’l Ins. Co., 899 So.2d 1082, 1085 (Fla.2005).

Appellee Essex Insurance Company provided commercial general liability insur-anee to DCI and its president, Thomas Donovan against claims resulting from their construction business. On December 15, 1997, DCI entered into a contract with Mark Vacker to construct an addition to his residence. In July 1999, DCI was informed that the wooden planks of the vaulted ceiling in the addition were buckling. DCI inspected the area and re-nailed the wooden planks to the ceiling. In July 2000, DCI was advised that the problem with the wooden planks had recurred. DCI inspected the area and concluded that there were no construction defects. Vacker’s architect determined that there were no construction deficiencies and that the problem was one of design and recommended that a dehumidifier -be installed. DCI complied and installed a dehumidifier. Approximately two weeks after its installation, Vacker asked that the dehumidifier be removed because it was too noisy.

On May 3, 2004, Thomas Donovan directed his insurance agent, Associated Underwriters of Florida, to notify Essex of Vacker’s “possible” claims. At no time did Essex contact Donovan regarding the potential claim nor, to DCI’s knowledge, take any actions as a result thereof.

On January 7, 2005, Vacker served DCI with his complaint for negligence, breach of contract and breach of implied warranty for damages. The complaint claimed that, “while engaged in the construction and installation of the addition, DCI committed negligence by allowing the air conditioning system to leak and by permitting chronic water intrusion which has caused and continues to cause microbiological contamination, including the growth of toxic and/or allergenic fungi and bacteria including As-pergillus species and Penicillium species, which pose a serious health hazard to the occupants of the Residence, and damage to the Residence itself.” The complaint indicated that Vacker noticed visible mold growth within the closets and bathroom in the addition on or about July 2003. Attached to the complaint was a September 12, 2003 report from Florida Mold Consultants which set forth the company’s findings of mold. This report was not provided to DCI prior to the complaint.

On January 25, 2005, AXA Corporate Solutions, DCI’s other insurer, wrote to Essex advising them of Vacker’s complaint against DCI. Also on this date, Essex notified DCI of its denial of said claims.

DCI tendered the defense of this matter to Essex and requested that they be indemnified. Essex refused to defend and indemnify DCI on numerous grounds, including DCI’s failure to comply with the policies’ notice provisions. In response, DCI filed a third party complaint for breach of contract against Essex asserting that Essex breached its obligations under its insurance policies by failing to defend and indemnify DCI for the damages alleged by Vacker in his complaint. Essex countered by filing a motion for final summary judgment against DCI, asking the court to find, as a matter of law, that Essex had no duty to defend or indemnify DCI for Vacker’s alleged damages.

DCI filed an opposition to Essex’s motion for summary judgment, along with a cross-motion for summary judgment. The trial court entered an order granting final summary judgment in favor of Essex as to late notice, finding that DCI failed to give Essex timely notice of Vacker’s claim against them, thereby releasing Essex from its duty to defend DCI. In the summary judgment hearing, the court stated the following:

I find that Essex Insurance Company’s motion should be granted only on one basis. And that is, I find that there was not a question of fact for the finder of facts. The alleged notice in this case was just so untimely as to not be a material fact that’s in dispute for the finder of facts. There is late notice in the case. Formal notice was not given until years after. So as a result of that, I find that their motion for summary should be granted.

The standard of review of a trial court’s ruling on a motion for summary judgment posing a pure question of law is de novo. Fayad, 899 So.2d at 1085. “[A] party moving for summary judgment must show conclusively the absence of any genuine issue of material fact and the court must draw every possible inference in favor of the party against whom a summary judgment is sought.... If the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.” Moore v. Morris, 475 So.2d 666 (Fla.1985).

We hold that the trial court erred in granting Essex’s motion for summary judgment with respect to late notice. Viewing the evidence most favorably to DCI and drawing every possible inference in its favor, we find that there is a genuine issue of material fact concerning when DCI knew of the mold problems and whether it failed to timely notify Essex. Because the evidence permits different reasonable inferences as to these questions, it is an issue of fact for the jury.

Based on the foregoing, we reverse on the issue of late notice and remand for further proceedings to determine unresolved issues.

Reversed.

STONE and FARMER, JJ., concur.


author: CORTIÑAS, Judge.

text:
    HIDDEN BAY MASTER ASSOCIATION, INC., Appellant, v. MIAMI-DADE COUNTY DEPARTMENT OF PROPERTY APPRAISAL, Miami-Dade County Tax Collector, MTAG Custodian for Montana Asset Management, LLC, and William V LLC, Appellees.
    No. 3D05-1790.
    District Court of Appeal of Florida, Third District.
    Sept. 27, 2006.

      Becker & Poliakoff and Mitchell W. Mandler and Manjit S. Gill, Coral Gables, for appellant.
    Murray A. Greenberg, Miami-Dade County Attorney, and Thomas W. Logue, Assistant Miami-Dade County Attorney, for appellees.
    Before WELLS, CORTINAS, and ROTHENBERG, JJ.
   CORTIÑAS, Judge.

Hidden Bay Master Association (“Hidden Bay”) appeals from a final order granting Appellee’s, Miami-Dade County Department of Property Appraisal’s (“Property Appraiser”), motions to dismiss and for summary judgment.

Hidden Bay is a condominium association created in March 2000, for the purposes of owning, maintaining, and administering Hidden Bay’s common areas, and collecting assessments from the unit owners to pay the expenses necessary for maintaining the common elements. By April 2001, Hidden Bay’s developer (“Developer”), pursuant to Hidden Bay’s bylaws, was required to transfer control of Hidden Bay to its unit owners, because ninety percent (90%) of the units had been conveyed by the Developer. However, the Developer did not transfer legal title of the common areas to Hidden Bay until March 2003.

The Property Appraiser is responsible for determining the value, for tax purposes, of all property located within the county. On the tax dates at issue, January 1, 2001 and January 1, 2002, the Property Appraiser assessed Hidden Bay’s common elements at their full value.

The Property Appraiser issued tax notices and the Tax Collector issued tax bills to the Developer for the tax assessment on the full value of the common elements. Neither the Developer nor Hidden Bay paid these taxes, and tax certificates were sold to third parties.

On March 30, 2005, Hidden Bay filed a complaint against the Property Appraiser seeking a declaratory judgment, an action for mandamus, and a temporary injunction. Hidden Bay alleged that the property should have been taxed as if it was owned either by Hidden Bay or jointly by the unit owners, as set forth in section 193.023(5), Florida Statutes (2001). As such, Hidden Bay alleged that the value of the common areas should have been proportionally added to the assessments of the individual condominium units, instead of being assessed separately. Hidden Bay further alleged that the Property Appraiser taxed the subject property twice by assigning values to the common areas while also adding these same values proportionately to the assessments of the individual owners’ condominium units.

In response, the Property Appraiser filed its motions to dismiss and for summary judgment, on the ground that the sixty-day statute of non-claim, section 194.171(2), Florida Statutes (2001), expired. On June 30, 2005, after a hearing, the trial court granted the Property Appraiser’s motions, concluding that the action was time-barred based on both section 194.171(2) and Ward v. Brown, 894 So.2d 811 (Fla.2004).

We review de novo the trial court’s order which determined, as a matter of law, that Hidden Bay’s claims were time-barred. See City of Hollywood v. Petrosino, 864 So.2d 1175, 1177 (Fla. 4th DCA 2004).

Hidden Bay contends that its claims are not governed by section 194.171 because the Property Appraiser violated section 193.023(5), Florida Statutes (2001), by appraising the common areas at their full market value. Hidden Bay argues that, since this error resulted in the overpayment of taxes, it is subject to correction at any time pursuant to section 12D-8.021, Florida Administrative Code, or alternatively, within four (4) years of the tax year for which the taxes were paid pursuant to section 197.182, Florida Statutes (2001). Additionally, Hidden Bay contends that the Property Appraiser erroneously determined that Hidden Bay’s Developer owned the common areas, and an erroneous listing of ownership of property can also be corrected at any time pursuant to rule 12D-8.021(l)(a)22, Florida Administrative Code and Bankunited Financial Corp. v. Markham, 763 So.2d 1072 (Fla. 4th DCA 1999). Finally, Hidden Bay argues that the trial court improperly relied on Ward in granting the Property Appraiser’s motions to dismiss and for summary judgment because Ward involved a property appraiser’s exercise of judgment, which is subject to the sixty-day statute of non-claim, rather than an error of fact, which can be corrected at any time.

In response, the Property Appraiser argues that the trial court correctly found that it lacked jurisdiction under the sixty-day rule of section 194.171. Additionally, the Property Appraiser asserts that Ban-kunited is inapplicable as Ward effectively overruled it by holding that actions challenging the assessment of ad valorem taxes must be brought within sixty (60) days of the assessment. Alternatively, the Property Appraiser asserts that even if Bankunited was not overruled by Ward, it is distinguishable from the instant case.

Bankunited involved a dispute between tax certificate holders and the property appraiser over an alleged error in the classification of the property. Bankunited, 763 So.2d at 1073. After appellants purchased tax certificates on property owned by the developer, but projected to become part of a condominium’s common elements, the property appraiser changed his method of assessing the property. Id. The property appraiser began assessing the tax certificate holders’ property as a common element appraised at a minimal amount. Id. The tax certificate holders sued to force the property appraiser to increase the assessments on the basis that the common elements were never deeded to the condominium association. Id.

On appeal, the Fourth District found that section 194.171 does not apply to bar the tax certificate holders’ action because errors in classification of property are not subject to the sixty-day statute of non-claim. Id. at 1074-75. The Fourth District noted that the tax certificate holders were not challenging the value of the property for purposes of the tax assessment, but rather who must pay the taxes on the property. Id. at 1075. However, the Fourth District also noted that, if the property was still owned by the developer, the property would be taxable for its assessed value. Id.

In the instant case, the property was still owned by the Developer when the Property Appraiser assessed it. Therefore, the Property Appraiser did not commit an error in determining the ownership of the property. Thus, Hidden Bay’s argument that, pursuant to section 193.023(5), the Property Appraiser erroneously appraised the common areas at their full market value is unavailing, as the Developer still owned the property at issue.

Moreover, the Florida Supreme Court’s decision in Ward held that, even when the taxpayers are challenging an assessment as void due to improper classification or for any other reason, they are still bound by the jurisdictional requirements of section 194.171. Ward, 894 So.2d at 816. In Ward, the Florida Supreme Court held that “the mandatory sixty-day provision of section 194.171(1) applies broadly to taxpayers’ actions challenging the assessment of taxes against their property regardless of the legal basis of the challenge.” Id. at 812. Ward involved a challenge by lessees of property owned by the county against the property appraiser for imposing ad valorem taxes on their allegedly exempt leasehold interests. Id. The Florida Supreme Court affirmed the First District, finding that the taxpayers’ action was subject to the sixty-day filing period of section 194.171, irrespective of whether they were “claiming an exemption or claiming that the assessors’ action [was] illegal, unlawful, or void as an improper ‘classification’ or for some other reason.” Id. at 816. In making its decision, the Florida Supreme Court traced the legislative scheme and intent for collecting taxes, and disapproved of the Second and the Fifth Districts’ decisions in Dept. of Revenue v. Pepperidge Farm, Inc., 847 So.2d 575 (Fla. 2d DCA 2003) and Florida Governmental Utility Authority v. Day, 784 So.2d 494 (Fla. 5th DCA 2001), which found that claims challenging the classification of property were not governed by section 194.171.

The Ward court, guided by legislative intent and public policy, held that section 194.171 was adopted in order to ensure timely payment of taxes to facilitate the continuing function of county governments. Ward, 894 So.2d at 815. It relied on Lake Worth Towers, Inc. v. Gerstung, 262 So.2d 1 (Fla.1972), to support its reasoning that there should be a limited time period when tax processes may be judicially disturbed because tax revenues are allocated or expended upon receipt. Ward, 894 So.2d at 815.

Following this reasoning, the Florida Supreme Court rejected the Ward appellants’ argument that their claim, being a challenge to the classification of their property, is subject to a four-year statute of limitations. Id. The court warned that, if the four-year statute of limitations were broadly applied, tax assessment challenges would restrict “counties from collecting revenues during the pendency of extended taxation challenges.” Id. The Florida Supreme Court held that applying a four-year statute of limitations to classification challenges while applying a sixty-day filing period to other claims, “would be contrary to the spirit and purpose of the tax assessment statutes, as well as the explicit provisions of section 194.171.” Id.

Here, we are presented with a classification challenge because Hidden Bay argues that the Property Appraiser erroneously assessed the property at its full market value in the Developer’s name, rather than as a common element, which should have been assessed proportionately to each unit. Since the property at issue was still owned by Hidden Bay’s Developer in 2001 and 2002, we cannot find that the property appraiser misjudged the value or classification of the property. Therefore, we will not permit Hidden Bay to use section 197.182 and the Florida Administrative Code “to circumvent [their] failure to properly and timely challenge the tax assessment of their properties as required by section 194.171(2).” Ward, 894 So.2d at 816.

Affirmed.

      . Section 193.023(5), Florida Statutes, states, in relevant part:
      In assessing any parcel of a condominium or any parcel of any other residential development having common elements appurtenant to the parcels, if such common elements are owned by the condominium association or owned jointly by the owners of the parcel, the assessment shall apply to the parcel and its fractional or proportionate share of the appurtenant common elements.
      § 193.023(5), Fla. Stat. (2001).

      . In reviewing this allegation on appeal from the summary judgment, we note that there is nothing in the record to support appellants’ claim that the Property Appraiser taxed the common areas twice.

      . Section 194.171, Florida Statutes, states, in relevant part:
      (2) No action shall be brought to contest a tax assessment after 60 days from the date the assessment being contested is certified for collection under s. 193.122(2)....

      (6) The requirements of subsections (2), (3), and (5) are jurisdictional. No court shall have jurisdiction in such cases until after the requirements of both sections (2) and
      (3) have been met.
      § 194.171, Fla. Stat. (2001).

      .Section 197.182(l)(c), Florida Statutes, states, in relevant part, "[cjlaims for refunds shall be made in accordance with the rules of the department. No refund shall be granted unless claim is made therefore within 4 years of January 1 of the tax year for which the taxes were paid.”


author: HAZOURI, J.

text:
    STATE of Florida, Appellant, v. Jayson SANTIAGO, Appellee.
    No. 4D05-3389.
    District Court of Appeal of Florida, Fourth District.
    Sept. 27, 2006.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Dea Abramschmitt, Assistant Public Defender, West Palm Beach, for appellee.
   HAZOURI, J.

The state appeals a dismissal of an information charging the defendant, Jayson Santiago, with lewd or lascivious molestation. We reverse.

The state filed an information charging that Santiago “did intentionally touch in a lewd or lascivious manner the buttocks, or clothing covering them, of [N.B.], a person less than twelve years of age.... ” Santiago filed a Florida Rule of Criminal Procedure 3.190(c)(4), Motion to Dismiss, asserting that the undisputed facts failed to establish a prima facie case. The state filed a Traverse, admitting and denying specific allegations in Santiago’s motion. The facts which are undisputed are that Santiago was arrested on August 11, 2004 for lewd and lascivious molestation. Santiago was nineteen years old at the time of the incident and made contact with the clothing covering the buttocks of N.B., a person less than twelve years of age. Santiago made no comments to the victim prior to, or subsequent to the contact with the victim’s clothed buttocks and did not have contact with the victim prior to, or subsequent to the contact.

In his Motion to Dismiss, Santiago asserted that the state had failed to assert any lewd or lascivious intent. The state argued that intent is to be determined by a jury, not a judge, in a(c)(4) motion. We agree.

“The function of a ‘(c)(4)’ motion is to ascertain whether the undisputed facts which the state will rely on to prove its case, establish a prima facie case, as a matter of law, so as to permit a jury to determine the defendant guilty of the crime charged.” State v. Walthour, 876 So.2d 594, 595 (Fla. 5th DCA 2004). “The appellate standard of review is de novo.” Id. “A rule 3.190(c)(4) motion to dismiss is akin to a civil motion for summary judgment.” State v. Hart, 677 So.2d 385, 386 (Fla. 4th DCA 1996). “The motion is decided only on the undisputed facts. In considering the evidence, the court must draw all inferences in favor of the state and against the defendant.” Id. “A motion to dismiss under subdivision (c)(4) of ... rule [3.190] shall be denied if the state files a traverse that with specificity denies under oath the material fact or facts alleged in the motion to dismiss.” State v. Kalogeropolous, 758 So.2d 110, 111 (Fla.2000).

Santiago was charged with touching the buttocks of N.B. in a lewd or lascivious manner, contrary to sections 800.04(5)(a) and 800.04(5)(b), Florida Statutes. The sections read as follows:

(a) A person who intentionally touches in a lewd or lascivious manner the breasts, genitals, genital area, or buttocks, or the clothing covering them, of a person less than 16 years of age ..., commits lewd or lascivious molestation.
(b) An offender 18 years of age or older who commits lewd or lascivious molestation against a victim less than 12 years of age commits a felony of the first degree....

§§ 800.04(5)(a)-(b), Fla.Stat. (2004).

In this case, it was undisputed that Santiago placed his hands on the buttocks of N.B. The only fact in dispute was whether Santiago acted with lewd or lascivious intent, a requisite element to be proved for the crime of lewd or lascivious molestation. This case is similar to Method v. State, 920 So.2d 141 (Fla. 4th DCA 2006). In Method, the defendant was charged with three counts of lewd or lascivious conduct committed against a person less than sixteen years of age. The trial court denied the defendant’s motion to dismiss and was affirmed on review. The court noted that “a motion to dismiss should be granted ‘when it can “reasonably” be said that the acts are not lewd and lascivious as a matter of law.’ ” Id. at 143 (quoting State v. Mitchell, 624 So.2d 859, 860 (Fla. 5th DCA 1993)). However, the court found,

Whether Method’s acts, as alleged in the information, were intentional acts of a lewd and lascivious nature depend upon a factual determination of Method’s intent when he grabbed or touched the children. Thus, it is an issue which the jury must decide based upon all factual inferences and not one for the court as a matter of law.

Id.

Whether Santiago acted with lewd or lascivious intent must be decided by the trier of fact and is not subject to dismissal by the trial court upon Santiago’s Motion to Dismiss. We reverse and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

STONE and SHAHOOD, JJ., concur.


author: EVANDER, J. GRIFFIN, J.,

text:
    A.G., Mother & R.G., Father of R.G., a Child, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D05-4325.
    District Court of Appeal of Florida, Fifth District.
    Sept. 29, 2006.
    J. Manuel Acevedo, Sanford, for Appellant A.G. Mother of R.G.
    Helen N. Silva, Sanford, for Appellant Father of R.G.
    Charles D. Peters, Orlando, for Appellee Department of Children and Families.
    Patricia M. Propheter, Orlando, for Florida Guardian ad Litem Program.
   EVANDER, J.

The trial court adjudicated R.G., a child, dependent as to both parents, R.G. (“Father”) and A.G. (“Mother”). The Department of Children and Families (“DCF”) properly concedes error as to the Father. We find the trial court also erred in adjudicating the child dependent as to the Mother.

The record reflects that an adjudicatory hearing was scheduled for October 28, 2005, on the petition for dependency filed against both parents. At the beginning of the hearing, the Mother’s attorney advised the judge:

Seriously, I would truly be happy to have (DCF’s attorney) proffer his evidence as to what he believes makes this child dependent, and I’ll proffer mine and let you make a decision.

The trial judge apparently accepted this proposal and both attorneys made proffers. It is unnecessary to state the details of each proffer. It is sufficient to say the proffered “facts” by each attorney were significantly different. An adjudication of dependency of the child as to the Mother may well have been justified if the facts were as proffered by DCF’s attorney. An adjudication of dependency could not stand if the facts were as proffered by the Mother’s attorney.

The court then addressed the Mother directly. The Mother stated: “I take care of my son. I have more than — more than enough evidence to prove that.” The trial judge then announced he was finding the child dependent as to both parents. The Father’s counsel then argued a motion to dismiss the petition as to the Father. The trial judge denied the motion and reaffirmed his decision to adjudicate the child dependent as to both parents.

It is important to note that there was no evidence, no sworn testimony, and no stipulated facts presented to the trial court at the adjudicatory hearing.

Although we do not condone the Mother’s attorney’s offer to have the case resolved by proffers, we decline to affirm the trial court’s decision on “invited error” grounds. At the time of the Mother’s attorney’s offer, it was possible that each attorney would proffer identical or similar facts which would support only one possible outcome on the issue of whether the child should be adjudicated dependent as to the Mother. However, once the two attorneys proffered significantly different facts which would yield different outcomes depending on which attorney’s proffer was accepted, due process required the trial court to proceed with an evidentiary hearing. Lane v. Lane, 599 So.2d 218 (Fla. 4th DCA 1992).

Additionally, even if the Mother’s attorney had proffered facts which would support a finding of dependency, it would have been incumbent on the trial judge to make inquiry directly of the Mother to determine whether any admission or consent to a finding of dependency was made voluntarily and with a full understanding of the nature of the allegations and the possible consequences of the admissions or consent. Fla. R. Juv. P. 8.325(c). See also In Interest of C.M., 632 So.2d 1093 (Fla. 1st DCA 1994). There was simply no competent evidence to support the trial court’s order. In Interest of A.L., 711 So.2d 600 (Fla. 2d DCA 1998). The order adjudicating the child dependent is hereby reversed and the cause remanded.

REVERSED and REMANDED.

SAWAYA, J., concurs.

GRIFFIN, J., concurs in part and dissents in part with opinion.

GRIFFIN, J.,

concurring in part, dissenting in part.

I disagree that the trial court erred by following the procedure requested by appellant’s counsel that DCF “proffer his evidence as to what he believes makes this child dependent, and I’ll proffer mine and let you make a decision.” Nor do I think that Rule 8.325 applies to a circumstance such as this. I also conclude that the determination of dependency as to the mother is supported by the record.

      . It should be noted the Mother's appellate counsel was not the attorney who represented her in the trial court.


author: THOMAS, J.

text:
    MERCURY INSURANCE COMPANY OF FLORIDA, Appellant, v. Philip B. MARKHAM and Michael W. Roberts, Appellees.
    No. 1D05-2078.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2006.

      Kathy J. Maus of Butler Pappas Weih-muller Katz Craig LLP, Tallahassee; Anthony J. Russo of Butler Pappas Weihmul-ler Katz Craig LLP, Tampa, Attorneys for Appellant.
    T. Bradley McRae of McRae & McRae, Lake City; Louis K. Rosenbloum, Pensacola, Attorneys for Appellee Philip B. Markham.
    Thomas T. Demás, Lake City, Attorney for Appellee Michael W. Roberts.
   THOMAS, J.

This case requires us to determine whether the appealed partial summary judgment determining insurance coverage is a final order under rule 9.110(m), Florida Rules of Appellate Procedure (2005), and Canal Insurance Company v. Reed, 666 So.2d 888 (Fla.1996), where there is no unresolved underlying personal injury action between the insured and the injured party. We hold that rule 9.110(m) does not create jurisdiction to consider this appeal, and we dismiss the appeal.

This case arose after Appellee Philip Markham suffered an injury when a truck, owned and insured by Appellee Michael Roberts but driven by someone else, hit Markham in a parking lot. Markham brought a claim against both the driver and Roberts. Roberts filed a claim with his insurer, Mercury Insurance Company; Mercury rescinded Roberts’ policy and denied the claim due to Roberts’ alleged material misrepresentation that his truck had not been modified or altered. After Markham and Roberts settled their personal injury claim in excess of the policy limits, the trial court issued a final, non-executable judgment in favor of Markham. In their settlement agreement, Roberts assigned his rights under his insurance policy to Markham. Markham then filed a complaint against Mercury and Roberts.

After a period of discovery, both Mercury and Markham filed motions for partial summary judgment on the issue of insurance coverage. The trial court granted Markham’s motion, finding the term “modified” to be ambiguous. When an ambiguity exists in an insurance policy, the policy provision is strictly construed against the drafter. Fayad v. Clarendon Nat’l Ins. Co., 899 So.2d 1082, 1089 (Fla.2005). Therefore, the trial court found insurance coverage as a matter of law in favor of Markham and entered an order granting partial summary judgment in his favor. Most importantly for purposes of this appeal, however, the trial court did not rule on the issue of damages which may be awarded against Mercury.

Mercury immediately appealed the trial court’s order granting partial summary judgment under rule 9.110(m), which allows for review of “[jjudgments that determine the existence or nonexistence of insurance coverage in cases in which a claim has been made against an insured and coverage thereof is disputed by the insurer” During oral argument, we requested that the parties address the issue presented here.

We now reject both parties’ assertions that we have jurisdiction to consider this appeal. When rule 9.110(m) is analyzed in context with the supreme court’s decision in Reed, which was the genesis for the rule, it is clear to us that rule 9.110(m), does not confer jurisdiction on this court to consider Mercury’s appeal.

In Reed, an insurance company brought a third-party action against the insured, seeking a declaration of no coverage under the policy. The underlying personal injury action between the insured and the injured party remained pending in the trial court and could not be resolved until the coverage issue between the insurer and the insured was resolved. Here, there is no such underlying personal injury action because it was already resolved with the settlement between Markham and Roberts. Instead, this case involves a typical partial summary judgment, which is non-final because it only determines liability between two parties, leaving other issues yet to be resolved. See McGurn v. Scott, 596 So.2d 1042 (Fla.1992) (citing Gore v. Hansen, 59 So.2d 538 (Fla.1952) (explaining that an order is final when there is no judicial labor to be done other than execution of the judgment)). Here, unlike the situation in Reed, there is no danger of delaying the underlying action absent prompt appellate review; therefore, the summary judgment is not subject to immediate and expedited review under rule 9.110(m). Consequently, we dismiss the appeal.

DISMISSED.

ALLEN and DAVIS, JJ., concur.


text:
    Antonio MULLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D04-4635.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2006.
    Antonio Muller, pro se, Petitioner.
    Charlie Crist, Attorney General, and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner seeks certiorari review of the trial court’s denial of his motion for mitigation of sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). Although an order denying a motion to mitigate sentence on the merits is not appealable, an appellate court may exercise its certio-rari jurisdiction to review a case where, as in the instant case, the motion was denied for lack of jurisdiction based on the motion’s untimeliness. See Atkins v. State, 851 So.2d 829 (Fla. 1st DCA 2003); Jolly v. State, 803 So.2d 846 (Fla. 1st DCA 2001). In this case, petitioner’s motion was filed within 60 days of this court’s issuance of mandate on petitioner’s direct appeal. Therefore, the trial court had jurisdiction to consider petitioner’s motion, and its failure to do so is a departure from the essential requirements of the law. See Atkins; Jolly.

Accordingly, we grant the petition for writ of certiorari, vacate the order, and remand with directions to consider petitioner’s motion on its merits.

ERVIN, WEBSTER, and THOMAS, JJ., concur.


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

text:
    Carnell GRAYER, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0553.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2006.
    Carnell Grayer, pro se, Appellant.
    Charlie Crist, Attorney General, and Sean F. Callaghan, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, an inmate, challenges the order by which the trial court imposed a lien against his inmate account pursuant to section 57.081, Florida Statutes, in connection with his trial court mandamus petition. Because such liens are not authorized under section 57.081, we reverse the order under review. Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005).

We reject the appellee’s argument on appeal that the order should be affirmed upon the theory that the trial court might have imposed the lien pursuant to section 57.085, Florida Statutes. The trial court specifically ruled in its order to show cause that, “[u]nder Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003), this case is a ‘collateral criminal proceeding’ not subject to the fee deferral provisions of section 57.085, Florida Statutes[,]” and the appellee neither contested this ruling in the trial court nor filed a cross-appeal of the ruling in this court. And, in any event, the record in this case is not sufficiently developed for conclusive determination that the trial court’s ruling respecting the inapplicability of section 57.085 to this proceeding was erroneous. See, e.g., State Dept. of Reve nue ex rel. Rochell v. Morris, 736 So.2d 41 (Fla. 1st DCA 1999).

The order under review is accordingly reversed, and this case is remanded to the trial court with instructions that the trial court direct a refund of any monies deducted from the appellant’s inmate account pursuant to the order under review.

BARFIELD and ALLEN, JJ., concur.

KAHN, C.J., dissents with opinion.

KAHN, C.J.,

dissenting.

The circuit court erred by finding that section 57.081 would authorize a lien in the present case. See Cason v. Crosby, 892 So.2d 536 (Fla. 1st DCA 2005). I would, nevertheless, conclude that the circuit court’s treatment of the lien is harmless error. In his petition, Grayer failed to argue that the disciplinary charge at the heart of the petition directly affected the length of his sentence. Accordingly, pursuant to Schmidt v. Crusoe, 878 So.2d 361, 367 (Fla.2003), I would conclude that the matter at hand is not a criminal collateral matter. Because the matter, as it now stands before us, is not a criminal collateral matter, the petition was subject to section 57.085(5), Florida Statutes, which authorizes liens on inmate accounts. I would, therefore, affirm without prejudice to Grayer’s right to file an amended petition that might satisfy the Schmidt standard, if he can do so.


text:
    Terrence LOONEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-1752.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2006.
    Terrence Looney, pro se, Petitioner.
    Charlie Crist, Attorney General, and Daniel A. David, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and case number 1D05-2531 is hereby reinstated, provided that the filing fee in that case is either paid or waived by the lower tribunal within 30 days of date of this opinion.

PETITION GRANTED.

ERVIN, POLSTON, and HAWKES, JJ., concur.


text:
    Brendan B. HORAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-2908.
    District Court of Appeal of Florida, First District.
    Oct. 3, 2006.

      Brendan B. Horan, pro se, Petitioner.
    Charlie Crist, Attorney General, and Philip W. Edwards, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition is granted and case number 1D05-0258 is hereby reinstated. Because appellant has been certified as insolvent, the circuit court is directed to enter an order within 30 days of date of this opinion regarding appellant’s right to appointed counsel for the appeal.

Appellant shall ensure filing of the record in case number 1D05-0258 within 45 days of date of this opinion. Time for service of the initial brief is extended to 30 days after filing of the record.

PETITION GRANTED.

ERVIN, POLSTON, and HAWKES, JJ., concur.


author: KELLY, Judge.

text:
    Henry JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-2706.
    District Court of Appeal of Florida, Second District.
    Oct. 4, 2006.
    James Marion Moorman, Public Defender, and William L. Sharwell, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Ap-pellee.
   KELLY, Judge.

Henry Jackson appeals from his judgment and sentence for battery, possession of cocaine, and possession of paraphernalia. We affirm Jackson’s judgment and sentence but remand for correction of the written sentencing documents.

Jackson filed a motion under Florida Rule of Criminal Procedure 3.800(b)(2) seeking to have the costs assessed against him stricken because they were imposed on a per count basis, rather than a per case basis, and because the sentencing documents did not reference the statutes authorizing their imposition. The State responded that the present case originated as four separate cases which were merged under a single case number for “clarity and efficiency.” Our review of the record confirms that this case was merged with three other cases and disposed of under a single case number. It also confirms that the statutory authority for each cost was properly set forth. However, the written sentencing documents fail to specify the original case number associated with each statutory cost, thus making it appear that costs were imposed on a per count basis. Although we find no error, we remand this case with directions to clarify the written sentencing documents in accordance with this opinion. In all other respects, Jackson’s judgment and sentence is affirmed.

Affirmed; remanded with directions.

ALTENBERND, J., and DANAHY, PAUL W., Senior Judge, Concur.


author: WARNER, J.

text:
    Thomas J. BARRY, Appellant, v. GEICO GENERAL INSURANCE COMPANY, Appellee.
    No. 4D05-2060.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 2006.

      Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach and Edward M. Ricci and John B. Patterson of Ricci-Leopold, Palm Beach Gardens, for appellant.
    Angela C. Flowers of Kubicki Draper, Orlando, for appellee.
   WARNER, J.

In a bad faith action against an insurance company for failure to settle, an insured appeals the final judgment in favor of the insurance company claiming that the court erred in failing to grant a new trial based upon newly discovered evidence when, after trial, the insurance company expert acknowledged errors in his testimony. The insured also complains that the court should have granted a new trial based upon cumulative errors. We conclude that on both issues the trial court did not abuse its discretion in denying the motion for new trial.

On January 5, 2001, Thomas Barry rear-ended a motorcyclist, Milos Coric, who was then hit by another motorist, resulting in Coric’s death. Barry reported the accident and the death to his insurance company, a GEICO affiliate. The Monday after the accident, the assigned claims adjuster, Ms. Stone, reviewed the file, noting Barry’s coverage was $15,000 for injury to one person. Stone contacted Barry and told him that she would offer Coric’s next of kin the policy limit in order to protect Barry from an excess judgment.

Two weeks later, on January 22, Stone contacted the insurance company which insured Coric to secure the name of Coric’s next of kin, his wife Ann Capelli. The agent also informed Stone that his company had tendered its policy limits to Capelli to the “Estate of Milos Coric.” Stone, however, did not think she could rely on the other insurance company’s assertion that Ann Capelli was Coric’s spouse.

Stone also learned that another GEICO affiliate insured the other motorist involved and the claims adjuster handling that claim worked in the same room as she did. That other insurance adjuster settled the claim with Capelli by sending her a check made out to the Estate of Milos Coric on January 28. Stone was not aware of this settlement.

On that same day, Stone called Capelli to discuss settlement but did not reach her. Capelli and Stone exchanged phone messages but did not speak. Stone then wrote Capelli offering her the policy limits of $15,000. She also offered to provide an attorney to assist her in setting up an estate if one had not been set up. This offer was a result of advice she had received from a lawyer in GEICO’s home office in Maryland, whom she had contacted to ensure she was handling the claim correctly. That lawyer had advised her that she could not send a check and release to Capelli before an estate was established.

During the next month Stone took no further action, waiting for a response to her letter from Capelli. Stone testified at trial that she was respecting the grief that Capelli must have been enduring. Stone then called Capelli again but did not reach her. Stone sent a field representative to contact Capelli. Capelli told the representative that she had received the GEICO check from the other motorist but had not cashed it, because the estate was still being set up. Capelli requested that GEICO issue its check under the Barry policy for $15,000 payable to the Estate of Milos Coric. At no time did Capelli place any time deadline on GEICO for completion of the settlement.

On March 7, Stone wrote GEICO’s home office lawyer asking if she could go ahead and issue the check. The lawyer wanted to know how the other GEICO affiliate had handled the other motorist’s case. Stone then continued investigating whether Capelli was Coric’s legal spouse. By March 13th, the lawyer advised Stone to send the check and release. Two days later, on March 15th, Stone sent Capelli a release and check for $10,000, and a letter informing her that GEICO was tendering its limits in the amount of $10,000. At trial, Stone conceded that the amount was a mistake, because Barry’s limits were $15,000.

The release Stone sent contained language releasing not only Barry and GEI-CO but “all persons, firms, or corporations of and from any and every claim, demand, right or cause of action ... in any way growing out of any and all personal injuries and consequences thereof....” Despite this language, Stone testified at trial that she intended that the release only cover Barry and GEICO. The GEICO lawyer testified that this was not the release that GEICO uses, and its training manual prohibits this type of release in a wrongful death case.

On the same day that Stone sent the check, Capelli was appointed as personal representative of the estate. Capelli received the check and release, and on March 23rd she asked Stone for a coverage affidavit. Although Stone sent the coverage affidavit, Capelli filed a wrongful death suit on March 28. At that point GEICO learned that Capelli had engaged an attorney on January 19th. It also learned of the mistake in the check, and the GEICO lawyer ordered Stone to send out a new check. On April 12, Stone sent Capelli’s lawyer a letter apologizing for the mistake and enclosed a check for the remaining $5,000. The attorney rejected the check and told GEICO that Capelli was going forward with the suit. GEICO hired a lawyer to represent Barry, and the case resulted in a jury award against Barry for $1,121,678.

Barry then filed suit against GEICO for bad faith for failure to handle the claim in an appropriate manner, resulting in Capel-li’s rejection of the settlement amount. At trial, Capelli testified that she was willing to settle the case for $15,000. Her attorney testified that the wrongful death suit was filed because GEICO issued the check for the wrong amount, and GEICO’s release required Capelli to release everyone. He testified that Capelli would not have sued if GEICO had written a $15,000 check and released only Barry and GEI-CO. However, he admitted that the same language was contained in the release furnished by the GEICO affiliate insuring the other motorist. In that release, he simply crossed out the over-inclusive language before accepting the settlement. A lawyer-expert in insurance bad faith cases also testified that GEICO acted in bad faith in handling the claim.

GEICO presented the testimony of Scott Krevans, a lawyer-expert in insurance bad faith, who opined that GEICO did not act in bad faith. He testified that although GEICO immediately attempted settlement and Stone had tried to work with Capelli, her refusal to communicate with Stone made it clear that she was not intending to settle. Krevans also testified that Capelli could not have settled the case before March 15, when she was appointed personal representative. Krevans further stated that the actions of Capelli and her attorney were inconsistent with a willingness to settle. These included Capelli’s failure to speak to the insurance company and her attorney’s failure to notify the insurance company that he represented Capelli, which indicated to him that this was not a claim which could have been settled.

GEICO questioned Krevans regarding the language of the release. Krevans testified that the release used, releasing all persons, was standard in the industry and was still used by his law firm and himself. GEICO then asked whether the release was overbroad, and Krevans stated that it was not but asked to explain. Before he could explain his understanding of the law, the court excused the jury. Krevans then explained his view of the law which the court found wanting, because the case law did not support his opinion on the validity of the release. When the jury returned, the court instructed the jury, “I would direct that you are to disregard the testimony of the witness as it relates to the release and whether it was overbroad and as to who it would release.” On cross-examination, Barry’s attorney asked about the GEICO training manual’s prohibition of this type of release in wrongful death cases. Krevans again maintained that the release was “perfectly acceptable.”

The jury returned a verdict in favor of GEICO, finding that GEICO did not act in bad faith in failing to settle the claim of the estate against Barry. The day after the jury reached its verdict, Krevans wrote a letter to all attorneys involved in the case. He admitted after the judge had questioned him regarding the release, he went back and checked his firm’s release and discovered that the questioned language had been removed years ago from the release his firm used. Despite this, he maintained that this did not change his opinions regarding the release, and he still maintained that the release was appropriate, nor did he waver in his opinion that GEICO did not commit bad faith. Barry moved for a new trial based upon this newly discovered evidence as well as other matters occurring at trial. The trial court denied the motion.

The standard of review of a ruling on a motion for new trial based on newly discovered evidence is whether the trial court abused its discretion. See Whitley v. Warren, 884 So.2d 431 (Fla. 4th DCA2004).

A motion for new trial based on newly discovered evidence should be granted when: 1) it appears that the new evidence is such that it will probably change the result if a new trial is granted, 2) the evidence has been discovered since the trial, 3) the evidence could not have been discovered before the trial by the exercise of due diligence, 4) the evidence is material to the issue, 5) the evidence is not merely cumulative or impeaching.

Id. at 432.

Although the Krevans letter regarding his firm’s release was discovered after trial and could not have been discovered prior to trial, the trial court did not abuse its discretion in denying the motion where the disclosure did not meet the other three criteria. The fact that Krevans’ firm did not use the release in question is not material to the issue of bad faith. Instead, it would be evidence to impeach Krevans’ opinion. Krevans, however, maintained in his letter that the release was acceptable, despite his firm’s position. The trial court also instructed the jury to disregard Krevans’ opinion as to the over-breadth of the release. Further, the evidence of the law firm’s use of a different form is not the type of evidence that would probably change the result in this case. GEICO already established that Capelli’s attorney crossed out the over-inclusive language in the other release submitted to him by GEICO. Therefore, the jury could still conclude the inclusion of such language in the Barry release did not constitute bad faith on GEICO’s part and was not a legitimate reason as to why Capelli refused the settlement with Barry. The trial court did not abuse its discretion in denying the motion for new trial.

Barry also makes a claim of cumulative error on the part of the trial court in three rulings. In the first, GEICO’s attorney in opening statement commented that Capelli’s attorney stood to earn $500,000 from this case, suggesting he would be a biased witness with a financial interest in the outcome of the case. The next day Barry objected to the statement of the dollar amount of the fee. The court sustained the objection and gave a curative instruction that the specific fee amount was not in evidence. However, the court determined that the attorney’s financial interest would be a fair inquiry.

The second ruling involved cross-examination of Capelli’s attorney. GEICO’s counsel asked him two questions to which he responded that he could not answer based on attorney-client privilege. Those questions asked why the attorney did not send a request for insurance information to GEICO and whether he had told Capelli not to communicate with GEICO. After the second question, Barry moved for a mistrial, which the court denied. However, the court gave a curative instruction drafted by Barry’s counsel which told the jury to disregard previous questions dealing with material covered by attorney-client privilege.

Finally, the court overruled an objection to an answer GEICO’s expert Kre-vans gave to a jury-initiated question. During his testimony, the jury submitted a question which read as follows:

In Mr. Krevans’ opinion, (or for that matter in the defense’s opinion), was there a reason why Ms. Capelli’s attorney didn’t make GEICO aware of then-appointment as her legal representative?

The court read the question to counsel for both parties to which Barry’s counsel responded, “The only objection I have is that he has no legal duty to do that. I think the question is a proper question, and I can cover that on cross.” After the court read the question to Krevans, the following colloquy took place:

Krevans: You want me to answer that? Court: You may answer it.
Krevans: I can give you my opinion. My opinion is that the reason Mr. Overbeck did not make GEICO aware of his involvement is because he was trying to manufacture a bad faith claim.

Barry objected and moved for a mistrial because the testimony violated an earlier order on a motion in limine regarding the conduct of Capelli and her attorney. In that order, the court denied the motion to prevent mention of Capelli and her attorney’s pre-suit conduct, because it found that based upon Powell v. Prudential Property & Casualty Insurance Co., 584 So.2d 12 (Fla. 3d DCA 1991), the insurer had the burden of showing that there was no realistic possibility of settlement. The court’s only limitation on the defense was to prevent it from suggesting that Capelli or her lawyer had any duty to mitigate or make a counteroffer. That was not the subject of Krevans’ answer to the juror’s question. In denying the motion for mistrial the court found that Barry had failed to object to the juror’s question, even though he had reviewed it prior to Kre-vans being allowed to answer. The trial court thought that Barry should have known that the witness would have given that type of answer.

We agree with the trial court that the error was invited. See, e.g., Fuller v. Palm Auto Plaza, Inc., 683 So.2d 654, 655 (Fla. 4th DCA 1996). Barry told the court that he did not have a problem with asking the question of Krevans. Had he been concerned by a potential response, he should have questioned Krevans on his answer before the jury heard it. Moreover, the particular answer was not covered by the order in limine.

None of the incidents individually are reversible, as they were either not error or were cured with instruction. However, on appeal Barry contends that cumulatively they improperly attempted to shift the focus to Capelli’s motives and her attorney’s conduct in refusing to settle. Although Barry is correct that the focus of an insurance bad faith case is not on the motive of the claimant but of the insurer in fulfilling its duty to its insured, see Berges v. Infinity Ins. Co., 896 So.2d 665, 677 (Fla.2004), that does not mean that all inquiries into prior conduct and motives are irrelevant and prejudicial. In a bad faith case, the insurer has the burden to show that there was no realistic possibility of settlement within the policy limits. See Powell, 584 So.2d at 14. This question is decided based upon the totality of the circumstances. See Berges. The conduct of Capelli and her attorney would be relevant to the question of whether there was any realistic possibility of settlement. Despite Capelli’s testimony at trial that she would have settled the case if GEICO had not made the mistake, her actions and those of her attorney suggested otherwise. The jury could have concluded that the failure of her attorney to notify GEICO of his representation coupled with her refusal to meet with Stone on the settlement, among other incidents, showed that she did not want to settle with GEICO for the policy limits. Thus, GEICO did not inject irrelevant information into the case, and therefore we reject Barry’s argument as to the cumulative nature of the errors.

Concluding that Barry has shown no abuse of discretion by the trial court in denying the motion for new trial, we affirm.

KLEIN and GROSS, JJ., concur.


text:
    Randy E. SIMMONS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-18.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 2006.
    Rehearing Denied Oct. 4, 2006.
    Randy E. Simmons, in proper person.
    Charles J. Crist, Jr., Attorney General, and Paulette R. Taylor, Assistant Attorney General, for appellee.
    Before COPE, C.J., and SHEPHERD and ROTHENBERG, JJ.
   On Order to Show Cause

PER CURIAM.

Upon motion of the State, this court entered an order for the appellant, Randy E. Simmons, to show cause why he should not be barred from filing further postcon-viction motions or appeals challenging the scoring of victim injury points on his score-sheet. The appellant has filed numerous postconviction motions on this point, even though relief has been repeatedly denied. After consideration of the appellant’s response, the court grants the State’s motion and bars the appellant from filing further postconviction motions challenging the victim injury points on the appellant’s score-sheet in Miami-Dade County Circuit Court case number 88-16281. See Martin v. State, 833 So.2d 756, 760 (Fla.2002); Attwood, v. Singletary, 661 So.2d 1216 (Fla.1995).


text:
    Patricia RIZZOTTO, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-4786.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 2006.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm, but remand the case to the trial court with directions to enter a corrected order of revocation of probation. The order provided correctly states that appellant was found to have violated condition 11; however, condition 11 was that appellant have no contact with her father at his residence. The order provided states that appellant violated condition 11 by changing her residence without first procuring the consent of her probation officer.

POLEN, FARMER and SHAHOOD, JJ., concur.


text:
    Barbara JOSEPH, Appellant, v. Lena CHANIN and Peggy Ann Aronowitz, Appellees.
    No. 4D06-588.
    District Court of Appeal of Florida, Fourth District.
    Oct. 4, 2006.
    Jay L. Kauffman and James A. Herb of Herb & Kauffman, P.A., Boca Raton, for appellant.
    Robert Rivas of Sachs Sax Klein, Tallahassee, for appellee Lena Chanin.
   PER CURIAM.

We accept appellee’s concession of error and reverse the order on appeal because the post-judgment motion requesting costs was untimely served in accordance with Florida Rule of Civil Procedure 1.525. See Saia Motor Freight Line, Inc. v. Reid, 930 So.2d 598 (Fla.2006) (holding that the requirement to serve a motion for attorney fees or costs within thirty days after filing of judgment applies even where the final judgment reserves jurisdiction to award same).

STEVENSON, C.J., STONE and GROSS, JJ., concur.