author: MAY, J.

text:
    Kelda R. Pittman RYAN, Appellant, v. Christopher RYAN, Appellee.
    No. 4D05-162.
    District Court of Appeal of Florida, Fourth District.
    April 19, 2006.

      Isabel Julia-Miles, Boca Raton, for appellant.
    Peggy Rowe-Linn, West Palm Beach, for appellee.
   MAY, J.

The former wife appeals a final judgment of dissolution and raises multiple issues. We affirm in part and reverse in part.

The former wife first argues the trial court erred in denying her motion for continuance when her attorney withdrew shortly prior to trial. We find no error in the court’s decision on this issue. The trial court set the case to be tried sometime between October 14, 2004 and November 30, 2004 with calendar call set for October 13, 2004. On September 20, 2004, the wife terminated her original attorney. That attorney moved to withdraw on October 4, 2004. The former wife’s new attorney filed a notice of appearance and a motion to continue trial on October 19, 2004. The trial court denied the motion for continuance.

The trial began on November 8, 2004. The former wife’s counsel objected and indicated that her client was disadvantaged because she had only recently been retained and had been able to undertake only minimal discovery.

The trial court began the trial with what it called an “interactive opening statement” in which the court questioned the attorneys and attempted to narrow the issues. The court then encouraged the parties to reach a settlement and gave them time to do so. After two recesses, the former husband read a stipulation regarding child custody and support issues. The parties agreed to shared parental responsibility and stipulated to their respective incomes. The trial court spent the rest of the trial determining the value of various assets.

The former wife argues the trial court improperly denied her motion to continue when she was forced to obtain new counsel just prior to trial. We disagree. “A motion for continuance is addressed to the sound judicial discretion of the trial court and absent abuse of that discretion the court’s decision will not be reversed on appeal.” Ziegler v. Klein, 590 So.2d 1066, 1067 (Fla. 4th DCA 1991).

Factors to be considered in determining whether the trial court abused its discretion in denying the motion for continuance include whether the denial of the continuance creates an injustice for the movant; whether the cause of the request for continuance was unforeseeable by the movant and not the result of dilatory practices; and whether the opposing party would suffer any prejudice or inconvenience as a result of a continuance.

Fleming v. Fleming, 710 So.2d 601, 603 (Fla. 4th DCA 1998) (citation omitted).

Here, on August 27, 2004, the trial court set the non-jury trial for the period of October 14, 2004 to November 30, 2004. The prior attorney had represented her for at least a year. It was the former wife who made the decision to terminate her attorney. The need to find a new lawyer was not caused by the illness, death, or disability of her prior lawyer or of a critical trial witness. See, e.g., Mich. Nat’l Bank v. Ibis Landing Venture, Ltd., 899 So.2d 328 (Fla. 4th DCA 2005) (trial court abused its discretion in denying continuance four days into trial where bank’s counsel suffered from severe stress, exhaustion, and insomnia); Citrin v. De Venny, 833 So.2d 871 (Fla. 4th DCA 2003) (court erred in denying motion for continuance occasioned by hospitalization of, and surgery on, plaintiffs mother); Fleming, 710 So.2d 601 (court erred in denying motion for continuance where former wife’s first attorney failed to prepare and was subsequently disbarred). These are the circumstances under which trial courts have been found to have abused their discretion; not when the emergency is of the client’s creation. In addition, the parties were able to resolve most of the issues concerning this dissolution; i.e., child custody and support and the parties’ incomes. We therefore affirm the trial court’s denial of the motion for continuance.

The former wife next argues the trial court abused its discretion by awarding her lump sum alimony instead of permanent alimony. The husband responds that the wife failed to present evidence on this issue. “ ‘[T]he nature and amount of an award of alimony is a matter committed to the sound discretion of the trial court.’ ” Kovalchick v. Kovalchick, 841 So.2d 669, 670 (Fla. 4th DCA 2003) (quoting Geddes v. Geddes, 530 So.2d 1011 (Fla. 4th DCA 1988)). We review alimony awards for an abusé of discretion.

Section 61.08(2), Florida Statutes (2004), requires the trial court to consider any relevant economic factors, including standard of living during the marriage, age, earning ability, value of each party’s estate and contribution to the marriage. The trial court must make findings of fact regarding these indicia. § 61.08(1).

When a marriage falls within the “gray area” of length, no presumption in favor of or against an award of alimony exists. Nichols v. Nichols, 907 So.2d 620, 622 (Fla. 4th DCA 2005) (citation omitted). The trial court is given the discretion to fashion alimony based upon the applicable statutory factors. Id. .(quoting Doyle v. Doyle, 789 So.2d 499, 502 n. 1 (Fla. 5th DCA 2001)). A trial court’s failure to consider these factors requires a reversal. Id.

Here, the trial judge stated:

In addition, I will find that this is a marriage in the gray'area. But based upon the traditional roles of the parties, mom stay-at-home, working sporadically and intermittently, sometimes with the husband’s business, but doesn’t have a salable skill right now, I’m going to make an award of lump-sum alimony in the amount of $30,000. And that is going to be rolled into the 87,500, and so it will extend the — paid off at $2,000 a month.

The court then awarded the former wife “87,500 as lump sum alimony to equalize distribution.” Further, it awarded the wife an additional $30,000 as “lump sum alimony or bridge-the-gap alimony.”

The trial court failed to take into account all of the requisite statutory factors; i.e., the former wife’s age and earning capacity and the couple’s standard of living. In doing so, the court abused its discretion in its award of alimony. At least, the trial court failed to make these requisite findings in its final judgment of dissolution. These omissions require a reversal. Nichols, 907 So.2d at 622. We therefore reverse and remand the case to the trial court to make the requisite findings. This does not necessarily require the trial court to alter its conclusion if it can be supported by the evidence after consideration of the requisite factors.

Affimed in part and Reversed in part.

GROSS, J., and IMPERATO, CYNTHIA G., Associate Judge, concur.


source: Caselaw Access Project

author: CANADY, Judge.

license: Public Domain

text:
    Deborah L. BRISCOE, Appellant, v. William L. BRISCOE, Appellee.
    No. 2D05-3912.
    District Court of Appeal of Florida, Second District.
    April 19, 2006.

      Eduardo J. Mejias of Thompson Law Firm, P.A., Bonita Springs, for Appellant.
    J.L. “Ray” LeGrande of LeGrande & LeGrande, P.A., Fort Myers, for Appellee.
   CANADY, Judge.

Deborah L. Briscoe appeals an order denying her supplemental petition to modify the parties’ final judgment of dissolution of marriage to change the co-primary rotating custody agreement. The appellant argues that the order should be reversed because (1) the appellee was procedurally barred from contesting the supplemental petition and (2) the denial of the petition was inconsistent with a recent decision of the Florida Supreme Court.

In her procedural argument the appellant contends that she was entitled to a modification because the appellee failed to file a proper answer to the supplemental petition. This argument is without merit. See Barnett v. Barnett, 718 So.2d 302, 304 (Fla. 2d DCA 1998); Causin v. Leal, 881 So.2d 20, 22 (Fla. 4th DCA 2004); Seibert v. Seibert, 436 So.2d 1104, 1105 (Fla. 4th DCA 1983).

In her second argument, the appellant correctly contends that the ruling of the trial court was based on authorities which have been disapproved by the supreme court. The circuit court denied the supplemental petition, ruling in relevant part that (1) there was not a legally sufficient change in circumstances as articulated in Gibbs v. Gibbs, 686 So.2d 639 (Fla. 2d DCA 1996); (2) “the co-parenting split parenting plan ... is not unworkable and doomed to failure”; and (3) the case of Wade v. Hirschman, 872 So.2d 952 (Fla. 5th DCA 2004), appeared to be the most controlling authority.

After the order of the trial court was entered, the Florida Supreme Court granted review of the Wade case and reversed the Fifth District’s decision. See Wade v. Hirschman, 903 So.2d 928, 934 (Fla.2005). In doing so, the supreme court not only disapproved the “doomed to failure” test as set forth in the Fifth District’s Wade opinion, but also rejected the “detriment” standard for custody modifications articulated in Gibbs. See id. Essentially, the supreme court determined that the Fifth District made it too easy to modify rotating custody agreements by permitting modification without a substantial change in circumstances, while this court in Gibbs made it too difficult by requiring a showing of detriment.

The record before us does not clearly reflect that the circuit court would have denied the modification petition if it had not applied requirements inconsistent with the supreme court’s holding in Wade. Reversal is therefore required. See Yeates v. Yeates, 915 So.2d 735 (Fla. 2d DCA 2005). On remand, the trial court shall reconsider the petition in light of the supreme court’s decision in Wade.

Reversed and remanded.

NORTHCUTT and STRINGER, JJ., Concur.


author: WALLACE, Judge.

text:
    Robert NICKERSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-3847.
    District Court of Appeal of Florida, Second District.
    April 19, 2006.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Ap-pellee.
   WALLACE, Judge.

Robert Nickerson appeals the sentences that were imposed on him as a result of a resentencing hearing. Because we find that the trial court failed to honor Mr. Nickerson’s right to counsel at the hearing and also violated his protections against double jeopardy, we reverse and remand for resentencing.

BACKGROUND

The State charged Mr. Nickerson with violating his probation for a previous felony DUI conviction in case number 01-2990 and with two new offenses (driving while license permanently revoked and felony DUI) in case number 02-5091. In a hearing held on June 25, 2003, Mr. Nickerson admitted the violation of probation and pleaded no contest to the two new offenses. The trial court sentenced Mr. Nickerson to forty-two months’ imprisonment for the probation violation and to forty-two months’ imprisonment followed by eighteen months of community control followed by four years’ probation for each of the two new offenses. The court declared in its oral pronouncement of sentence that the forty-two months’ imprisonment on the two new offenses would run concurrently with the forty-two months’ imprisonment on the probation violation. The written sentence accurately reflected the trial court’s oral pronouncement that the sentences would run concurrently. An appointed public defender initially represented Mr. Nickerson in both cases but moved to withdraw when a private attorney filed a notice of appearance. The private attorney represented Mr. Nicker-son at the plea hearing and at the initial sentencing hearing.

On October 16, 2003, Mr. Nickerson, pro se, filed a motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). In his motion, Mr. Nickerson argued that his total sentence of nine years in both cases was greater than the five years that the law allows for his third-degree felony convictions. The trial court denied the motion with respect to the probation case because the sentence of forty-two months’ imprisonment was below the statutory maximum. The trial court granted the motion and ordered a resen-tencing hearing on the new offenses case.

At the resentencing hearing, the trial court — contrary to its prior order — decided to resentence Mr. Nickerson on both the probation case and the new offenses case. On the probation case, the trial court sentenced Mr. Nickerson to “three years, six months[’] imprisonment to be followed by 18 months[’] community control.” The trial court sentenced Mr. Nickerson to four years’ probation on each of the new offenses. The four-year probationary terms were designated to run concurrently with each other but consecutively to the sentence imposed on the probation case.

RIGHT TO COUNSEL

Mr. Nickerson argues that the trial court erred by denying him his right to counsel at the resentencing hearing. We agree. “Once a trial court determines that a defendant’s sentence is illegal and the defendant is entitled to re-sentencing, the full panoply of due process considerations attaches.” Gonzalez v. State, 838 So.2d 1242, 1243 (Fla. 1st DCA 2003) (citing State v. Scott, 439 So.2d 219, 220 (Fla.1983)). Those considerations include the right to be represented by counsel. McGough v. State, 876 So.2d 26, 26 (Fla. 1st DCA 2004); see also Wells v. State, 789 So.2d 1092, 1093 (Fla. 2d DCA 2001) (stating, “An indigent prisoner is entitled to the appointment of counsel at resentencing following a successful motion for postconviction relief.”). Even if — as the order granting Mr. Nickerson’s motion suggested — he was not entitled to have an attorney appointed, the court was required to give Mr. Nickerson an opportunity to obtain private counsel for the hearing or to show the court that he was unable to do so. Vannier v. Burk, 651 So.2d 789, 790-91 (Fla. 4th DCA 1995). “[D]ue process requires that the defendant be afforded a reasonable time to obtain private counsel.” Id. at 790. Mr. Nickerson did not waive his right to counsel. See Gonzalez, 838 So.2d at 1243 (finding that because there was no express “waiver of counsel in the record ... the trial court erred in failing to appoint counsel at the re-sentencing hearing”).

In this case, the trial court began the resentencing hearing by swearing in Mr. Nickerson and asking him whether he had an attorney. Mr. Nickerson explained that he had called his private attorney’s office and that the office told him to call back the next day. The court declared:

[Y]ou were brought here because of what this Court views as a clerical error. You were given three years, six months followed by 18 months of community control, and then four years probation, but it was written up as concurrent rather than consecutive. You cannot get concurrent [sic], because that would be nine years.

After the court resentenced Mr. Nicker-son, the following colloquy occurred:

THE COURT: ... Do you understand, sir?
THE DEFENDANT: Let me ask you a question. What’s happened now?
THE COURT: I changed your sentence. You’re getting the same sentence really, I just divided them up between the two cases.
THE DEFENDANT: So what do I got?
THE COURT: You got just what you had, sir. You had three years, six months in DOC, that will be followed by 18 months of house arrest. Then the second case will kick in and you’ll have four years of probation.
THE DEFENDANT: So I got to do 36 months prison, which I’m doing now, and then 18 months of house arrest and then—
THE COURT: Four years probation. I believe I gave you early rollover, early term, which means if you do half of your supervision period, don’t mess it up, that you can get off early.
THE DEFENDANT: I still got four years probation after that, my sentence is running concurrent?
THE COURT: They were intended to be consecutive.
THE DEFENDANT: That was at the time a plea bargain that we settled.
THE COURT: You know what?
THE DEFENDANT: Don’t I get a chance to get a lawyer to argue? You’re just going to go ahead and sentence?
THE COURT: I just went ahead and sentenced you. You can get a hundred thousand lawyers.

Generally speaking, a defendant need not be present or represented by counsel when the purpose of a resentenc-ing is the performance of a ministerial-type function or the correction of a clerical error. See Smith v. State, 870 So.2d 61, 62 (Fla. 2d DCA 2003); Windisch v. State, 709 So.2d 606, 607 (Fla. 2d DCA 1998). Here, the trial court mischaracterized the original sentencing error as a clerical error. The court incorrectly stated that Mr. Nickerson’s sentence was illegal because it ran concurrently instead of consecutively. In the new offenses case, Mr. Nickerson was convicted of two third-degree felonies. The sentence for a third-degree felony is not to exceed five years. See § 775.082(3)(d), Fla. Stat. (2002); Stephens v. State, 677 So.2d 1325, 1325 (Fla. 2d DCA 1996) (stating that a “sentence, which includes the incarcerative portion of the sentence and the probationary or community control period, may not exceed the statutory maximum for the offense”). At the initial sentencing hearing, Mr. Nickerson was sentenced to a total of nine years’ imprisonment, community control, and probation for each of the two new third-degree felonies, to run concurrently. This was an illegal sentence for each count, not a clerical error; merely redesignating these sentences to run consecutively to the sentence for the probation violation would not, as the trial court suggested, make these sentences legal. Because the defects in these sentences required the correction of a judicial error rather than a clerical error, Mr. Nickerson was entitled to be represented by counsel at his resentencing hearing. See Gonzalez, 838 So.2d at 1243.

DOUBLE JEOPARDY

The trial court’s order that granted Mr. Nickerson’s motion to correct illegal sentence in the new offenses case denied his motion in the probation case. Nevertheless, at the resentencing hearing, the court sentenced Mr. Nickerson to “three years, six months[’] imprisonment to be followed by 18 months[’3 community control as to 2001-2990 [the probation case], and a consecutive four yearsf] probation as to 2002-5091 [the new offenses case].” The court explained, “I just divided [the sentence] up between the two cases.” Mr. Nickerson argues that the trial court violated his right not to be placed in double jeopardy for the same offense by adding a period of community control to the sentence of incarceration that he had already begun to serve on the probation case. Once again, we agree.

“Once a sentence has been imposed and the person begins to serve the sentence, that sentence may not be increased without running afoul of double jeopardy principles.” Ashley v. State, 850 So.2d 1265, 1267 (Fla.2003). The trial court originally sentenced Mr. Nickerson to three years, six months’ imprisonment in the probation violation case, a valid sentence for the underlying third-degree felony. Mr. Nickerson had begun to serve that sentence when the trial court increased it at the resentencing hearing. Although the court could have properly reconfigured the sentence on the two counts in the new offenses case to arrive at a sentence identical in length to the one it had originally imposed, it did not do so. By increasing the length of the sentence that Mr. Nick-erson had already begun to serve in the probation case, the trial court contravened double jeopardy principles.

CONCLUSION

For the reasons stated, we reverse the sentences imposed by the trial court, and we remand these cases to the trial court for a second resentencing hearing. Upon remand, we direct the trial court to reinstate the original sentence imposed in the probation case (01-2990). Further, the trial court shall conduct a sentencing hearing in the new offenses case (02-5091). Mr. Nickerson shall have the right to be represented by counsel at the sentencing hearing unless he waives that right.

Reversed and remanded with directions.

LaROSE, J., and THREADGILL, EDWARD F., Senior Judge, Concur.


author: SILBERMAN, Judge.

text:
    Tammy Joy SMITH n/k/a Tammy Joy Morel, Appellant, v. Nathaniel John SMITH, Appellee.
    No. 2D05-1690.
    District Court of Appeal of Florida, Second District.
    April 19, 2006.

      John A. Colton of Burgess, Harrell, Mancuso, Olson & Colton, P.A., Sarasota, for Appellant.
    Lawrence A. Jacobs, Bradenton, for Ap-pellee.
   SILBERMAN, Judge.

Tammy Joy Smith n/k/a Tammy Joy Morel (the Former Wife) appeals an order on the supplemental petition of Nathaniel John Smith (the Former Husband) for modification of the parties’ final judgment of dissolution of marriage. The appealed order requires the Former Wife to relocate back to Manatee County from Dade County with the parties’ child. We reverse and remand for further proceedings.

The parties’ marriage was dissolved on September 22, 1999. The final judgment incorporated the parties’ Marital Settlement Agreement (MSA), which provided that the parties would have shared parental responsibility of their minor daughter, that the Former Wife would be the primary residential parent, and that the Former Husband would have “free and liberal visitation privileges.” The MSA provided for almost daily contact between the Former Husband and the child. In February 2003, the trial court entered an order, based on the Former Wife’s petition, modifying the visitation schedule so that the Former Husband had visitation every other weekend and every other weekday.

In October 2003, the Former Wife and her new husband decided to move to Dade County with the parties’ child and three children from the Former Wife’s new marriage. The Former Wife notified the Former Husband of the move and attempted to arrange a mediation to address changes in the visitation schedule. The Former Husband filed a motion and amended motion to prohibit relocation of the parties’ child to Dade County. The Former Wife filed a motion to permit relocation. On February 9, 2004, the Former Husband filed his supplemental petition for modification, requesting a change in child custody and that he be designated the primary residential parent.

On April 6, 2004, the trial court entered an order allowing the Former Wife to move with the parties’ child to Dade County, based on a provision in the MSA. The MSA stated as follows:

The Wife, being the residential parent, shall have the sole responsibility for determining the residence of the minor child. However, if the Wife contemplates a change in residence which substantially affects the visitation of the Husband the parties shall confer and attempt to resolve any issues created thereby. In no event shall the Wife relocate out of the State of Florida without providing at least ninety (90) days notice to the Husband.

(Emphasis added.) In November 2004, the court held an evidentiary hearing on the Former Husband’s modification petition. In January 2005, the court entered its written order denying a change of custody but ordering the Former Wife to relocate back to Manatee County. Although the order stated that the court undertook to determine whether modification was appropriate, the order actually reflects a detailed analysis of the statutory factors applicable to requests to relocate, contained in section 61.13(2)(d), Florida Statutes (2004). In this appeal, the Former Wife challenges the January 2005 order and raises issues concerning due process, the applicable legal standard for modification of custody, and res judicata.

DUE PROCESS

The Former Wife correctly argues that the order requiring her to relocate back to Manatee County from Dade County violated her right to due process of law. This court recognized in Sabine v. Sabine, 834 So.2d 959, 960 (Fla. 2d DCA 2003), that when “a judgment is not based on an issue that had been framed by the pleadings, noticed for hearing, or litigated by the parties, it may not stand” because “[t]he failure to follow these basic procedural requirements implicates due process concerns.” See also Neumann v. Neumann, 857 So.2d 372, 373 (Fla. 1st DCA 2003) (stating “that an order adjudicating issues not presented by the pleadings, noticed to the parties, or litigated below denies fundamental due process”).

Here, the Former Husband’s modification petition did not seek to have the Former Wife move back to Manatee County, and it did not raise any issue regarding relocation. The Former Wife was not on notice that relocation would be addressed at the November 2004 hearing on the modification petition, and the parties did not try the issue by consent. Rather, at the beginning of the hearing, the Former Husband’s counsel stated to the court that “we’re seeking that the former husband be designated the primary residential parent.” The subject of the Former Wife moving back to Manatee County was not mentioned except when the Former Husband’s counsel gave his rebuttal closing argument. Counsel stated, “Quite frankly, we think that [the Former Wife] should move back to Manatee County and we wouldn’t have all of these issues.”

By adjudicating an issue that was not before it, the trial court denied the Former Wife due process. Therefore, we reverse the order on the Former’s Husband’s modification petition and remand for further proceedings.

LEGAL STANDARD FOR MODIFICATION OF CUSTODY

The order on appeal reflects that the trial court analyzed the statutory factors relating to requests for relocation rather than the law applicable to requests for custody modification. Thus, on remand, the trial court must reconsider the evidence and the Former Husband’s modification petition using the correct law.

In Wade v. Hirschman, 903 So.2d 928 (Fla.2005), the Florida Supreme Court resolved a conflict among the district courts of appeal regarding the law applicable to custody modification proceedings. There, the Florida Supreme Court held that in a modification of child custody proceeding, “satisfaction of the substantial change test is necessary in order to overcome the res judicata effect of the final judgment.” Id. at 934. The substantial change test requires the moving party to prove “both that the circumstances have substantially, materially changed since the original custody determination and that the child’s best interests justify changing custody.” Id. at 931 n. 2 (quoting Cooper v. Gress, 854 So.2d 262, 265 (Fla. 1st DCA 2003)). In addition, “the substantial change must be one that was not reasonably contemplated at the time of the original judgment.” Id. (quoting Cooper, 854 So.2d at 265). The court stated that proof of detriment “is not an element of the substantial change test necessary to modify a child custody award.” Id. at 934.

Because the trial court did not apply the correct law, on remand the court shall reconsider the Former Husband’s modification petition under the standard announced in Wade. The fact that the Former Wife had moved to South Florida cannot, by itself, be considered a substantial change because the Former Wife’s relocation was contemplated and addressed in the MSA. The Former Husband has, however, alleged other facts regarding a substantial change in circumstances, such as the living arrangements in the Former Wife’s new residence and the fact that the Former Wife took the child out of school and home-schooled her for a period of time without consulting the Former Husband. Due to the passage of time since the entry of the trial court’s order and in light of the Wade decision, on remand the trial court shall allow the parties to present additional evidence to resolve the modification petition. See Yeates v. Yeates, 915 So.2d 735, 736 (Fla. 2d DCA2005).

RES JUDICATA AS TO RELOCATION ISSUE

Finally, we address the parties’ arguments as to the doctrine of res judicata. The Former Wife contends that the relocation issue was resolved by the April 2004 order, which was not appealed, and that the doctrine of res judicata bars the Former Husband from relitigating the relocation issue. The Former Husband argues that the doctrine of res judicata does not apply because in entering the April 2004 order, the trial court considered only the MSA and did not consider the child’s best interests, while the January 2005 order reflects that the court considered the child’s best interests.

In Wade, the supreme court stated that after a court enters a final judgment in a dissolution proceeding that provides for the custody of a child, .

it is res judicata of the facts and circumstances at the time the judgment became final. Thus, there is a presumption in favor of the reasonableness of the original decree. This presumption may be overcome when changes in circumstances have arisen which warrant and justify modification of the original decree.

903 So.2d at 932-33 (citation omitted). Here, the final judgment incorporated the parties’ MSA, and the MSA provided that the Former Wife had the sole responsibility to determine the child’s residence. After the Former Wife informed the Former Husband that she had decided to move to Dade County, the trial court heard the Former Husband’s amended petition to prohibit the removal of the parties’ child from Manatee County and the Former Wife’s motion for an order permitting her to move with the child. In April 2004, the court determined that the plain language of the MSA specifically allowed the Former Wife to determine the child’s residence, and the court authorized the move.

The record reflects that the Former Husband raised the issue of the child’s best interests in the amended petition to prohibit removal of the child. The order of April' 2004 ruled against the Former Husband’s position and allowed the Former Wife to move to Dade County with the child. The Former Husband did not appeal that order, and he cites to no authority that allows a party to relitigate a final order allowing relocation. Thus, we conclude that the doctrine of res judicata prohibits the Former Husband from relitigat-ing the relocation issue on remand.

CONCLUSION

In summary, because the trial court’s order on the modification petition violated the Former Wife’s due process rights and because the trial court applied the incorrect law, we reverse and remand for further proceedings, consistent with this opinion, on the Former Husband’s modification petition.

Reversed and remanded.

NORTHCUTT and SALCINES, JJ., Concur.

      . We note that at the time the trial court entered the order now on appeal, it did not have the benefit of Wade.


text:
    GEICO GENERAL INSURANCE COMPANY, Petitioner, v. Lorraine HOY, Respondent.
    No. 2D05-4709.
    District Court of Appeal of Florida, Second District.
    April 19, 2006.

      Frank A. Zacherl, John T. Kolinski, and Kai E. Jacobs of Shutts & Bowen, LLP, Miami, for Petitioner.
    Mark C. Menser of Viles & Beckman, P.A., Fort Myers, for Respondent.
   WALLACE, Judge.

GEICO General Insurance Company petitions for a writ of certiorari to review a nonfinal order that requires it to produce its claim file to its insured, Lorraine Hoy. Because Ms. Hoy’s pending action against GEICO includes a claim for coverage under the uninsured/underinsured motorist (UM) policy provided by GEICO, we grant GEICO’s petition and quash the discovery order.

FACTS AND PROCEDURAL HISTORY

On May 19, 2000, Ms. Hoy was involved in an accident with an uninsured motorist in Lee County. Ms. Hoy apparently was hospitalized as a result of the accident. She incurred a bill for hospital services from Lee Memorial Hospital for an amount exceeding $31,000. When the accident occurred, GEICO was Ms. Hoy’s UM carrier. On June 4, 2000, GEICO issued a check for $10,000 — the amount that GEI-CO contends is the maximum UM benefit payable under the policy. Because the hospital had a statutory lien for the monies due it for the services it had provided to Ms. Hoy, GEICO made its check payable to the order of Lee Memorial Hospital as well as to Ms. Hoy and her husband. This check was never cashed.

Afterwards, the hospital agreed to accept $5000 in full satisfaction of its lien. Ms. Hoy signed a release in favor of GEI-CO in which she acknowledged receipt of $10,000, released GEICO from further liability under the policy for the May 19 accident, and agreed to pay GEICO any recovery that she might obtain in an action arising from the accident up to the amount of GEICO’s $10,000 payment. On July 10, 2000, GEICO reissued the $10,000 payment in the form of two checks: one for $5000 payable to Mrs. Hoy and her husband, and one for $5000 payable to Lee Memorial Hospital. Unlike the first check, these checks apparently were negotiated.

In November 2001, Ms. Hoy filed an action against the uninsured motorist for damages arising out of the May 19 accident. The uninsured motorist defaulted, and in August 2003, Ms. Hoy obtained a partial summary judgment against him on the issue of liability.

In May 2004, while the action against the uninsured motorist was still pending, Ms. Hoy sued GEICO for breach of the insurance contract (Count I), for negligent legal representation (Count II), for fraudulent misrepresentation in connection with GEICO’s negotiations with the hospital (Count III), and for fraudulently inducing her to sign the release (Count IV). Ms. Hoy’s complaint did not include a statutory bad faith claim. In connection with the claim for negligent legal representation, Ms. Hoy contended that GEICO had undertaken to provide her with legal representation by giving her legal advice about her rights, advising her to enter into agreements pertaining to coverage for the accident and limiting her rights to recovery, and negotiating on her behalf with the hospital. Ms. Hoy’s complaint sought damages against GEICO in an amount exceeding $15,000 and also asked the circuit court to invalidate the release. GEICO answered the complaint and asserted various affirmative defenses, .including payment and the release executed by Ms. Hoy.

In connection with the action against GEICO, Ms. Hoy requested GEICO to produce numerous documents, including “[t]he entire claim file of [GEICO] concerning the incident alleged herein, excluding only correspondence and memoranda between [GEICO] and their [sic] counsel.” GEICO objected "to the production of its claim file on the grounds that the documents requested were irrelevant, not reasonably calculated to lead to the discovery of admissible evidence, and privileged as attorney work product. After a hearing, the circuit court overruled GEICO’s objection and entered an order requiring it to produce the claim file to Ms. Hoy’s counsel, excepting only items subject to the attorney-client privilege. In the order, the circuit court offered this rationale for compelling production of the claim file:

The claim ... is over and done with. [Ms. Hoy] wants to examine how the claim was resolved in [her] cause of action. The claim file is not work product. There is no ongoing claim by [Ms. Hoy] vs. the tortfeasor. This suit is between an insured and insurer.

Following the entry of the order for production, GEICO filed its petition for certio-rari review.

DISCUSSION

A. The Legal Background

Generally speaking, “the contents of an insurer’s accident investigation file constitute[] work product.” W. Am. Ins. Co. v. Neva Prods., Inc., 490 So.2d 117, 118 (Fla. 2d DCA 1986). A court cannot compel disclosure of the file in a “first party claim for coverage under the policy.” U.S. Fire Ins. Co. v. Clearwater Oaks Bank, 421 So.2d 783, 784 (Fla. 2d DCA 1982). “ ‘The analysis differs however when an insurance company is sued for bad faith.’ ” Allstate Indem. Co. v. Ruiz, 899 So.2d 1121, 1123 (Fla.2005) (quoting Allstate Indem. Co. v. Ruiz, 780 So.2d 239, 240 (Fla. 4th DCA 2001), with approval). In a bad faith suit, “the plaintiff may obtain discovery of the original claim file.” Clearwater Oaks Bank, 421 So.2d at 784.

B. The Parties’ Arguments

Against this legal background, GEICO begins its argument by asserting that the circuit court went astray when it concluded that “[t]he claim ... is over and done with.” GEICO stresses that Ms. Hoy’s claim for breach of contract is a claim for coverage under the policy. Therefore, the claim is not “over and done with,” and disclosure of its claim file is premature at best. In addition, GEICO observes that the circuit court has not yet determined or awarded damages in Ms. Hoy’s separate action against the uninsured motorist. GEICO surmises that Ms. Hoy is attempting to obtain a judgment against the uninsured motorist and to collect this judgment against GEICO if she is successful in setting aside the release. According to GEI-CO, the pendency of Ms. Hoy’s action against the uninsured motorist underscores the prejudice it will suffer if it is required to produce its claim file before its liability to Ms. Hoy under the insurance contract has been finally determined.

In response, Ms. Hoy argues that her suit against GEICO is not an action for coverage or a bad faith suit, but rather an action for negligent legal representation. She claims that as GEICO’s client, she has a right to her own files.

C. Analysis

The arguments of the parties demonstrate that the proper characterization of Ms. Hoy’s claims is critical to the analysis in this case. After a thorough review of the record, we agree with GEICO’s assessment of the claims Ms. Hoy is asserting against it in the circuit court. Ms. Hoy’s argument that she is not making a claim against GEICO for coverage under the policy will not withstand examination. In Count I of her complaint, Ms. Hoy alleges:

4. Defendant issued and delivered to Plaintiff an insurance policy protecting Plaintiff against losses and damages resulting from the negligence of uninsured/underinsured motorists....
8. Plaintiff is entitled to uninsured/underinsured motorist coverage through Defendant’s policy issued to Plaintiff.
9. Hoy made a demand for full uninsured/underinsured motorist benefits.
10. Defendant did not pay to Plaintiff the full amount of the uninsured/un-derinsured motorist benefits.
12. Under Defendant’s insurance policy, the Plaintiff is entitled to recover against Defendant for her injuries, damages and losses set forth above, which were caused by the negligence of [the motorist].
13. Plaintiff has notified the Defendant of the uninsured/underinsured motorist claims, and has otherwise performed all conditions precedent to entitle her to recover under the policy.
WHEREFORE the Plaintiff, LORRAINE HOY[,] demands judgment against Defendant, GEICO GENERAL INSURANCE COMPANY, for damages plus costs of this action, pre-judgment interest, and demands a trial by jury of all issues triable by jury.

Count I cannot be read as anything other than a claim for coverage under the policy. Thus it does not matter how Ms. Hoy characterizes Counts II, III, and IV. Even the circuit court agreed with GEICO’s assessment. In its order compelling GEICO to produce its claim file, the circuit court said: “[Count] I sues for underin-sured/uninsured coverage.”

When a litigant files claims for both coverage and bad faith in the same action, the insurer’s claim file is not discoverable until the issue of coverage has been resolved. Ruiz, 899 So.2d at 1130; Allstate Ins. Co. v. Baughman, 741 So.2d 624, 626 (Fla. 2d DCA 1999). The Fifth District has applied the policy of resolving a coverage issue before the bad faith claim to an instance where the coverage claim was coupled with a “claim for unfair settlement practices.” Hartford Ins. Co. v. Mainstream Constr. Group, 864 So.2d 1270, 1272 (Fla. 5th DCA 2004). In Mainstream, the Fifth District reasoned that if the insurer has no responsibility under the policy, “the insured would suffer no damages resulting from its insurer’s unfair settlement practices.” Id.

Ms. Hoy contends that because GEICO has already paid the $10,000 in available coverage, it cannot now claim that the question of coverage remains unresolved. However, when a claimant who has obtained a determination of coverage seeks an additional benefit amount in conjunction with a bad faith suit against the insurer, “discovery of the insurer’s claim file is not permissible.” Am. Bankers Ins. Co. of Fla. v. Wheeler, 711 So.2d 1347, 1348 (Fla. 5th DCA 1998). In Wheeler, the claimant “obtained a determination of coverage” and then sought additional benefits based on the same incident. Id. The trial court issued an order compelling production of the insurer’s claim file. Id. The Fifth District held that the trial court had departed from the essential requirements of the law by compelling the disclosure. Id. The Wheeler court explained that because the insurer denied that additional benefits were due, “the issue of coverage [was] still partially pending.” Id.

Similarly, when a claimant seeks to rescind a release given to the insurer and alleges breach of contract and bad faith, the issue of coverage is not settled. See State Farm Mut. Auto. Ins. Co. v. Cook, 744 So.2d 567, 568 (Fla. 2d DCA 1999). In Cook, the claimant gave a release to the insurer and to the driver of another vehicle. Id. Afterwards, the claimant filed an action against the insurer and two alleged tortfeasors, including the driver, for damages resulting from two automobile accidents. Id. In the action, the insured sought to rescind the release and also alleged breach of contract and bad faith claims against the insurer. Id. The insurer filed a motion to stay the bad faith claims pending resolution of the other claims. Id. In addition, the insurer requested an order protecting it from being required to produce various documents relevant to the bad faith claims, including its claim files and litigation files. Id. The trial court denied the motion to stay and the motion for a protective order. Id. at 567. On petition for review by certiorari, this court quashed the order denying the stay and also quashed the order denying the protective order to the extent that it required production of materials relating to the bad faith claims. Id. at 567-68. We explained our decision by stating that the claim and litigation files were not “subject to discovery until the bad faith claims are ripe.” Id. at 568.

CONCLUSION

Because Ms. Hoy is pursuing a claim for coverage under the policy and seeking to void the release she previously signed, the circuit court departed from the essential requirements of the law by ordering GEI-CO to produce its claim file for inspection by Ms. Hoy’s counsel. We have previously held that requiring the disclosure of an insurer’s claim file during the litigation of coverage issues would result “in irreparable harm that cannot be adequately addressed on a plenary appeal.” Baughman, 741 So.2d at 625. Accordingly, we grant the petition, and we quash the circuit court’s order requiring GEICO to produce its claim file.

Petition granted; order quashed.

LaROSE, J., and THREADGILL, EDWARD F., Senior Judge, Concur.

      . One of the decisions that Ms. Hoy relies on in support of this claim is Jones v. Allstate Ins. Co., 146 Wash.2d 291, 45 P.3d 1068 (2002). We express no opinion on the merits of this or any other of Ms. Hoy's claims.

      . After Ms. Hoy filed her action against GEI-CO, it apparently learned of the pending lawsuit Ms. Hoy had filed against the uninsured motorist. GEICO moved to intervene in that action, and the circuit court granted its motion.


author: ALTENBERND, Judge.

text:
    David W. WOOD, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 2D05-2941.
    District Court of Appeal of Florida, Second District.
    April 19, 2006.
    Michelle Trunkett of Florida Rural Legal Services, Fort Myers, for Appellant.
    Geri Atkinson-Hazelton, General Counsel, and Louis A. Gutierrez, Senior Attorney, Unemployment Appeals Commission, Tallahassee, for Appellee Unemployment Appeals Commission.
   ALTENBERND, Judge.

David Wood appeals an order of the Unemployment Appeals Commission (UAC) affirming the determination of an appeals referee that he was disqualified from receiving unemployment benefits because he voluntarily left his employment with Youngquist Brothers, Inc. This case appears to be the result of a miscommuni-cation between employer and employee similar to the one described in Lewis v. Lakeland Health Care Center, Inc., 685 So.2d 876 (Fla. 2d DCA 1996). Mr. Wood apparently believed he had been discharged in connection with a workers’ compensation claim. At least some of the employer’s representatives believed he had voluntarily declined to return to work for no stated reason. Because the employer failed to present competent, substantial evidence that Mr. Wood voluntarily left his employment, and thus this finding by the appeals referee is not supported by the record, we reverse.

Mr. Wood was employed by Youngquist Brothers as a full-time shop laborer and welder from the fall of 2002 until the summer of 2004. On May 28, 2004, Mr. Wood received a serious insect bite while on the job. The bite became infected and required surgery. Beginning in June 2004, Mr. Wood had to take a medical leave of absence and the matter was referred to Youngquist Brothers’ workers’ compensation carrier. During Mr. Wood’s leave of absence, it appears that he and Youngquist Brothers had little direct contact and that both of them communicated with or through .a workers’ compensation claims adjustor.

From the documents that Mr. Wood introduced into evidence before the appeals referee, it appears undisputed that Mr. Wood’s treating physician saw him on August 12, 2004, observed that he still had some soreness in the area of the wound but determined that he was well enough to return to work on September 6, 2004. The doctor wanted to examine Mr. Wood on September 7 after a day’s work, “for one last check prior to his release.” Although the record suggests that the workers’ compensation adjustor received this report, it is unclear whether anyone at Youngquist Brothers had received it.

At the hearing before the appeals referee, Youngquist Brothers was represented by a human resources representative who does not appear to have ever had any direct contact with Mr. Wood. The human resources representative testified that she had received a copy of a form from the insurance company stating that Mr. Wood was released to return to work on August 12. The form is not in our record, and there was no medical testimony at this hearing. There was no evidence that Mr. Wood received a copy of this form or that the employer told him to report to work on August 12 in violation of his treating physician’s medical directions. Mr. Wood believes that the workers’ compensation adjustor was confused about the date, August 12, which was the date of the examination when his physician told him that he was not yet ready to return to work. In turn, it appears that management at Youngquist Brothers was confused about the date of Mr. Wood’s release, having not received the report from Mr. Wood’s treating physician setting the return date of September 6, and thus possibly expected Mr. Wood to return to work in mid-August.

It is undisputed that on the Saturday preceding September 6, Mr. Wood went to his jobsite. He testified that he talked to Mr. McCullers, a company vice president. The vice president was uncertain whether Mr. Wood had been released to come back to work by the workers’ compensation adjustor. This person did not testify at the hearing. According to Mr. Wood, Mr. McCullers also asked Mr. Wood to return his uniforms to the company due to some accounting issue with the company that provided Youngquist Brothers the uniforms. Mr. Wood returned the uniforms as instructed. This apparently led a coworker who testified at the hearing to conclude that Mr. Wood had voluntarily left his employment, although Mr. Wood did not tell the coworker or anyone else that he was not returning to work.

After speaking with Mr. McCullers, Mr. Wood called the workers’ compensation adjustor about obtaining the clearance necessary to return to work. The representative told Mr. Wood that he had lost his job when he failed to return to work in mid-August and that there was nothing that could be done about it. According to Mr. Wood, the adjustor urged him to accept a settlement for the injury and sign a voluntary resignation form. He refused. Mr. Wood testified he continued to try to contact Mr. McCullers to determine when he could return to work but was consistently told that the vice president did not know whether Mr. Wood could return to the job.

In October, Mr. Wood, unable to get a straight answer, gave up and sought unemployment benefits. On his application, he specifically indicated that he was discharged by Tim McCullers due to tension over the workers’ compensation claim and issues as to when he would return to work. When a claims examiner made an initial determination that Mr. Wood was entitled to unemployment benefits, Youngquist Brothers appealed the decision, asserting that “Mr. Wood voluntarily quit employment ... for unknown reasons.” Thus, the issues were properly framed for the appeals referee, and the evidentiary hearing specifically involved whether Mr. Wood was fired or abandoned his employment.

After the evidentiary hearing, the appeals referee concluded:

The testimony presented at this hearing clearly shows that the employer had no intention of discharging the claimant and took no actions that would lead to that end. Under these circumstances, it is concluded that the claimant quit.

The situation presented here is similar to that presented in Lewis, 685 So.2d 876. In Lewis, the employee testified that when she called a supervisor on the telephone to tell the supervisor that she could not report to work that day, she was terminated. A representative of the employer, however, was under the impression that the employee had quit her job during the telephone conversation.

This court explained:

It is clear that an employee has the initial burden to prove she is eligible for unemployment benefits. In establishing eligibility, an employee does not need to prove that she was fired, but only that she is “unemployed.” § 443.091(l)(e), Fla. Stat. (1995); Florida Indus. Comm’n v. Ciarlante, 84 So.2d 1 (Fla.1955); Newkirk v. Florida Indus. Comm’n, 142 So.2d 750 (Fla. 2d DCA 1962).... The fact that an employee quits is in the nature of an affirmative defense, and it can usually be well documented by an employer. Given the public policy of, and the statutory requirement to liberally construe, chapter 443, we hold that the employer has the initial burden to establish that the employee voluntarily left the employment. See §§ 443.021, .031, Fla. Stat. (1995). See also Marz v. Department of Employ. Servs., 256 N.W.2d 287 (Minn.1977) (applying this shifting burden analysis under a similar unemployment compensation statute). If the employer meets this burden, then the employee must present evidence to prove that he or she left the employment for good cause attributable to the employer. See Brown v. Unemployment Appeals Comm’n, 633 So.2d 36 (Fla. 5th DCA), review denied, 642 So.2d 1362 (Fla.1994), cert. denied, 513 U.S. 1082, 115 S.Ct. 733, 130 L.Ed.2d 636 (1995); Marcelo v. Department of Labor & Employ. Sec., 453 So.2d 927 (Fla. 2d DCA 1984); Uniweld Products, Inc. v. Industrial Relations Comm’n, 277 So.2d 827 (Fla. 4th DCA 1973).

Id. at 878. We noted in Lewis that it was possible that Lewis’s separation from her employment was simply the result of a miscommunication. What that miscommu-nication established, however, depended upon who had the burden of proving whether the claimant quit her employment. Id. Because the employer had the burden of proof, the miscommunication itself was not prima facie evidence that Lewis quit. Id.

In this case, as in Lewis, there was no direct evidence that Mr. Wood ever said he quit or that he ever intended to do so. The appeals referee seems to have confused the burden of proof in this matter. Rather than reviewing the evidence presented to determine whether the employer established that Mr. Wood quit his job, the appeals referee looked to whether Mr. Wood presented evidence that the employer intended to or did terminate his employment.

If Youngquist Brothers intended to establish that Mr. Wood quit his employment, it needed to present evidence that Mr. Wood was cleared to return to work, knew that he was cleared to return, and thereafter did not return of his own volition. The employer failed to present this evidence. The employer acknowledged that Mr. Wood was placed on medical leave in June. Thus, Mr. Wood was still employed by Youngquist Brothers but could not return to active status until authorized by Youngquist Brothers. Despite the undisputed testimony that Mr. Wood inquired about returning to his employment, no one at Youngquist Brothers ever told him he was permitted to return to work. Indeed, it appears the workers’ compensation adjustor may have told him he could not return to work. After a month had elapsed from the time that Mr. Wood’s doctor had stated he could return to work and Mr. Wood had informed his employer of his willingness to do so, it was certainly reasonable for Mr. Wood to assume that he had been fired.

There was no competent, substantial evidence to support the appeals referee’s finding that Mr. Wood voluntarily left his employment with Youngquist Brothers. We reverse the order disqualifying Mr. Wood from receiving unemployment benefits. Because the employer knew that this issue was to be addressed at the hearing before the appeals referee yet failed to carry its burden of proof on this issue, we remand with directions to award Mr. Wood unemployment benefits.

Reversed.

DAVIS and WALLACE, JJ„ Concur.


author: PALMER, J.

text:
    Hance PHILLIPS, M.D., and Brevard Ear, Nose & Throat Center, P.A., Petitioner, v. Jason COOK, Respondent.
    No. 5D05-2340.
    District Court of Appeal of Florida, Fifth District.
    April 21, 2006.
    Kimberly M. Reid and Julianne J. Flynn of Alvarez, Sambol, Winthrop & Madson, P.A., Orlando, for Petitioner.

      Samuel S. Henderson 'of Henderson and Futchko, P.A., Melbourne, for Respondent.
   PALMER, J.

The petitioners seek a writ of certiorari regarding the trial court’s order denying them motion to dismiss the respondent’s medical malpractice lawsuit. The dismissal motion was based upon the respondent’s failure to comply with the presuit screening requirements of the Florida Statutes. See § 766.106, Fla. Stat. (2005). Concluding that the trial court did not depart from the essential requirements of law in denying the petitioners’ motion to dismiss, we deny the instant certiorari petition.

The respondent, Jason Cook, filed suit against the petitioners alleging that he was the victim of medical malpractice during surgery performed by Dr. Hance Phillips. Prior to filing his complaint, Cook served a notice of intent to initiate litigation against Dr. Phillips and Phillips’ employer, Bre-vard Ear, Nose, & Throat Center, P.A. In response to Cook’s notice of intent, and in compliance with the informal presuit discovery process set forth in Chapter 766 of the Florida Statutes, the petitioners sent Cook a request for presuit discovery via certified mail. See § 766.106(6)(a), Fla. Stat. (2005)(providing that, “upon receipt by a prospective defendant of a notice of claim, the parties shall make discoverable information available without formal discovery”).

Cook did not respond to the discovery request (although he had already provided other documents informally). The petitioners thereafter moved to dismiss Cook’s subsequently filed malpractice complaint based on his failure to respond to their presuit discovery request. In response, Cook contended the discovery requests were improper because they sought information about damage issues rather than liability issues. The trial judge held a hearing on the motion and exercised his discretion under section 766.106(7) to deny the motion. We conclude that this exercise of discretion did not constitute a departure from the essential requirements of law.

The petitioner’s reliance on Torrey v. Leesburg Regional Medical Center, 796 So.2d 544, 546 (Fla. 5th DCA), rev. denied, 797 So.2d 590 (Fla.2001), is misplaced because the language in section 766.106(7), Florida Statutes (2000), which expressly states that the imposition of sanctions is discretionary, was not included in the version of the statute applicable in Torrey.

Petition DENIED.

SHARP, W., and GRIFFIN, JJ„ concur.

      . Section 766.106(7) of the Florida Statutes (2000) provides: "SANCTIONS — Failure to cooperate on the part of any party during the presuit investigation may be grounds to strike any claim made, or defense raised by such party in suit.” (Emphasis added).


text:
    P.K., Mother of N.K., D.K., S.S., and D.P., etc, Appellant/Cross-Appellee, v. DEPARTMENT OF CHILDREN AND FAMILIES, et al., Appellee/Cross-Appellant.
    No. 5D05-1856.
    District Court of Appeal of Florida, Fifth District.
    April 21, 2006.

      Brenda H. Smith of Dependency Law Group, L.L.C., Umatilla, for Appellant/Cross-Appellee.
    Ralph J. McMurphy, Wildwood, for Ap-pellee/Cross-Appellant, Department of Children and Families.
    Wendie Michelle Cooper, Orlando, for Appellee/Cross-Appellant, Guardian Ad Litem.
   PALMER, J.

P.K. (mother) appeals the trial court’s order denying her petition for approval of a conditional surrender of parental rights and proposed adoption of her minor children filed pursuant to section 63.082(6) of Florida’s Adoption Act. The Department of Children and Families (DCF) cross-appeals seeking a ruling instructing the trial court to terminate the mother’s parental rights. Finding no error with regard to the trial court’s denial of mother’s petition, we affirm that ruling. As for DCF’s cross-appeal, we deny the specific relief requested, but remand this matter to the trial court with instructions to comply with the mandate of this court set forth in the opinion issued in the earlier appeal in this matter.

The background facts relating to this family are set forth in the opinion issued in the prior appeal of this case, Department of Children and Families v. P.K., 893 So.2d 678 (Fla. 5th DCA 2005). In that appeal, this court determined that the trial court’s order denying DCF’s petition to terminate the mother’s parental rights was defective in various regards and we remanded the matter with instructions to the court to enter specific findings of fact and conclusions of law as to each of the mother’s children.

After the case was remanded to the trial court, but before the trial court complied with our mandate, an adoption agency known as A Chosen Child, Inc., filed an emergency motion to intervene in the proceedings. The agency sought a change of custody pursuant to section 63.082(6) of the Florida Statutes. The mother at the same time filed a petition requesting that, instead of terminating her parental rights, the trial court allow her children to be adopted through A Chosen Child by family friends living in Pennsylvania because the friends would allow the mother to.have continued contact with the children. A Chosen Child filed a copy of a home study conducted by a private entity relating to the prospective adoptive parents. The home study noted that the prospective adoptive parents did not have much parental experience and would need support parenting the mother’s three special-needs children, and that the prospective adoptive father had been arrested for domestic violence in 2001 (said charges were eventually dropped). The home study nonetheless concluded that, with support, the Pennsylvania couple could handle the challenge of adoption.

Both DCF and the guardian ad litem opposed the mother’s petition. The trial court conducted a evidentiary hearing on the issue.

At the hearing, the trial court heard testimony from the children, the mother, and the Pennsylvania couple. Testimony was also submitted from the GAL, family members, DCF workers, and the children’s foster parents. Upon review, the trial court denied the mother’s petition. This appeal followed.

The mother challenges the trial court’s order denying her petition, claiming that the trial court unreasonably withheld its consent to her proposed adoption plan, thereby denying her the right to exercise her constitutional liberty interest under the First Amendment of the United States Constitution, which is made binding on the states under the Fourteenth Amendment. We disagree.

Although parents have the God-given right to the care, custody and companionship of their children, the right is not absolute. Rather, it is subject to the overriding principle that it is the ultimate welfare or best interests of the children which must prevail. In re Camm, 294 So.2d 318 (Fla.1974). In proceedings related to children in the. custody of the State, the courts are charged with the duty of ensuring that the best interests of the children are advanced; this duty exists during dependency proceedings and continues through adoption proceedings. B.Y. v. Dep’t of Children & Families, 887 So.2d 1253 (Fla.2004).

Section 63.082(6) of the Florida Statutes was enacted to address the factual situation which presents itself in the instant case. Section 63.082(6)(c) of the Florida Statutes provides:

63.082. Execution of consent to adoption or affidavit of nonpaternity; family social and medical history; withdrawal of consent
[6](e) Upon a determination by the court that the prospective adoptive parents are properly qualified to adopt the minor child and that the adoption appears to be in the best interest of the minor child, the court shall immediately order the transfer of custody of the minor child to the prospective adoptive parents, under the supervision of the adoption entity....

§ 63.082(6)(c), Fla. Stat. (2004).

Here, the trial court set forth in its order denying the mother’s petition all the factors it considered relevant to the children’s best interest, and then, applying the reasoning of B.Y. v. Department of Children & Families, 887 So.2d 1253 (Fla.2004), concluded that DCF did not unreasonably withhold its consent to adoption.

In B.Y., after parental rights to three children were terminated, DCF withheld its consent to the adoption of the children it had placed with B.Y., the grandmother of two of the children. The trial court finalized the adoption without DCF’s consent, finding that DCF was withholding its consent unreasonably. On direct appeal, the district court reversed, finding DCF’s consent to the adoption was mandatory. Dep’t of Children & Family Servs. v. B.Y., 863 So.2d 418 (Fla. 4th DCA 2003), rev. granted, 870 So.2d 820. However, on further appeal, the Supreme Court quashed the district court’s decision, holding that the trial court had “acted appropriately to finalize the adoption.” B.Y., 887 So.2d at 1254.

In our case, the tidal court considered all of the factors that the trial court considered in B.Y. but, unlike B.Y., the trial court reached the conclusion that the mother’s motion for conditional surrender and her proposed adoption plan should be denied. The record demonstrates that, in making that decision, the trial court considered the appropriateness of placing the children with the prospective adoptive parents, recognizing their relative youth, the incident of domestic violence, and the prospective father’s temper and anger issues. The trial court also considered the couple’s financial resources before reaching the conclusion that the mother’s proposed adoption would, at a minimum, create financial stress on the couple. Additionally, the trial court considered that both the guardian ad litem and DCF opposed the proposed adoption plan. At the same time, the trial court also recognized that this adoption could maintain the mother’s bond with the children and that there was a preliminary positive home study.

The evidence in the record is sufficient to support the trial court’s denial of the mother’s petition, and therefore, the ruling is affirmed. As the Supreme Court explained in In re Cox, 327 So.2d 776 (Fla.1976):

It is frequently said that contested adoptions are the most difficult of all cases for trial judges ... We recognize the difficulties inherent in making a decision in matters of this nature, and we are most reluctant to substitute our judgment (or let the district courts substitute their judgments) in the resolution of these emotionally-charged matters. Where. the trial judge has guided his decision by reference to the best interest of the child and fully considered all of the evidence before him, there is very little room for the exercise of appellate discretion.

Id. at 778.

With regard to the cross-appeal, DCF argues that this court should reverse and remand this matter to the trial court with instructions to enter an order terminating the mother’s parental rights and then conduct a disposition hearing to determine the disposition as to each child. We disagree as to DCF’s entitlement to the relief sought, but do remand this matter to the trial court with directions to follow the mandate of this court as set forth in Department of Children and Families v. P.K., 893 So.2d 678 (Fla. 5th DCA 2005):

We reverse and remand this cause for proper fact findings and conclusions of law.
On remand, the question of what to do with these four children will come before the court again, a few months later than projected by the court in its order denying termination. The trial court should take additional testimony regarding the mother’s completion of her case plan, vel non, and the specific situation and status of each child, and, it should make specific findings as to each child.
We do not intend by this opinion to require the trial court to render an order terminating the mother’s parental rights, as to some or all of the children, or to require it to make other specific permanency arrangements pursuant to statute, which may be appropriate for these children. However, because the children have been in the custody of the Department for more than four years, the trial court should, on remand, make specific findings as to each child and reach the best permanency disposition in each child’s best interest. ■

Id. at 682.

AFFIRMED in part, and REMANDED.

ORFINGER and MONACO, JJ., concur.

      . Our court has jurisdiction over this matter pursuant to rule 9.130(a)(3)(C)(iii) of the Florida Rules of Appellate Procedure because the trial court's order determined the right to child custody in this adoption proceeding, a "family law matter.” Compare Dep't of Health & Rehab. Servs. v. Honeycutt, 609 So.2d 596 (Fla.1992).


author: LAWSON, J.

text:
    FLORIDA HEMATOLOGY & ONCOLOGY, etc., et al., Appellant/Cross-Appellees, v. Rambabu TUMMALA, M.D., et al., Appellee/Cross-Appellant.
    No. 5D05-1950.
    District Court of Appeal of Florida, Fifth District.
    April 21, 2006.

      H. Gregory McNeill of Lowndes, Dros-dick, Doster, Kantor & Reed, P.A., Orlando, for Appellant/Cross-Appellee.
    Christopher V. Carlyle, Shannon McLin Carlyle and Gilbert S. Goshorn, Jr., of The Carlyle Appellate Law Firm, The Villages, for Appellee/Cross-Appellant.
   LAWSON, J.

Florida Hematology & Oncology Specialists, P.A., Lake County Oncology & Hematology, P.A., and Roy M. Ambinder, M.D., (collectively “Appellants”), appeal an order granting in part and denying in part their motion for temporary injunction against Rambabu Tummala, M.D., (“Tum-mala”). We affirm.

The material facts are not in dispute. Tummala is board certified in hematology and oncology. In November 1996, he was hired by Appellants to provide medical care to their patients in Lake County. Prior to this employment, Tummala had no personal or business-related connections in the Lake County community. Tummala signed an employment agreement with the Appellants that contained the following restrictive covenant:

14. Covenant Not to Compete: Employee shall not, during the Employee’s employment with the Corporation and for an additional period of two (2) years from and after the termination of the Employee’s employment with the Corporation for any reasons engage, directly or indirectly, in the practice of medicine within an area comprised of a fifteen (15) mile radius [of] any office of the Corporation. The parties further acknowledge that the above restrictions with respect to duration and geographic limitation are reasonable, and that the Corporation would suffer irreparable injury as a result of the breach thereof by the Employee....

In late 2003, Tummala became concerned about some of his employers’ billing practices. He voiced the concerns, and in early 2004 discussed leaving the practice when his concerns were not resolved to his satisfaction. On April 8, 2004, the Appellants terminated Tummala’s employment without cause, as permitted under the parties’ agreement.

.After his termination, Tummala immediately opened .an office within 15 miles of one of the corporations’ seven Central Florida offices. In his new practice, however, Tummala took extraordinary measures to assure that he did not accept any of .Appellants’ former patients. Despite Tummala’s diligence in avoiding taking patients from his old employer, Appellants claim that they suffered a significant drop in. new patients being referred from other area physicians. Accordingly, they filed suit to enforce the restrictive covenant. Tummala also sued the Appellants alleging, inter alia, that they materially breached the employment agreement, and. sought a declaratory judgment that the covenant not to compete was unenforceable as a matter of law and that he was eligible to practice medicine in Lake County.

In Florida, the enforceability of restrictive covenants is controlled in large part by section 542.335, Florida Statutes (2004). Under this statute, a restrictive covenant is not enforceable unless supported by a “legitimate business interest.” If the party seeking to enforce the restrictive covenant pleads and.proves a “legitimate business interest,” it must also then demonstrate that the “contractually specified restraint is reasonably necessary to protect” its identified business interest.

With respect to patients of a medical practice, the statute expressly defines “legitimate business interest” to include only those “specific prospective or existing” patients with whom the party has a “substantial relationship.” See also University of Florida, Bd. of Trustees v. Sanal, 837 So.2d 512, 516 (Fla. 1st DCA 2003) (“we hold that, to qualify as a ‘legitimate business interest’ pursuant to section 542.335(1)(b)3, a ‘relationship’ with a ‘prospective patient’ must be, in addition to ‘substantial,’ one with a particular, identifiable, individual”).

In this case, Appellants alleged three business interests: (1) existing patients; (2) exclusive contracts with local hospitals; and (3) referring physicians. Although Appellants’ existing patients qualify as a “legitimate business interest,” the evidence was clear that the restrictive covenant was not reasonably necessary to protect this interest.

With respect to the alleged interest of “exclusive contracts” with local hospitals, we find that Appellants did not meet their burden of establishing any “legitimate business interest” to be protected. In fact, it is almost impossible to understand the nature of this alleged interest from either the record below or the briefs on appeal. Appellants claim to have entered “exclusive contracts” with two area hospitals “such that only doctors associated with ... [Appellants] are permitted to practice oncology and hematology” in those facilities. However, they also explain that the “exclusive provisions” of these third-party contracts “do not preclude other unaffiliated oncologists from admitting patients” into the facilities. They further state that at least one of these hospitals “has oncologists working in its hospital who are not affiliated with ... [Appellants].” It is also clear from the evidence that these hospitals have granted other oncologists and hematologist unaffiliated with Appellants “hospital privileges” allowing them to treat their admitted patients while hospitalized. Obviously, it would have been impossible for the trial court to assess the extent to which enforcement of the covenant was necessary to protect this alleged business interest when it could not reasonably be expected to understand the nature of the claimed interest given the confusing and contradictory evidence presented by Appellants. As such, we find no error in the trial court’s failure to address this “interest” in its written order.

The last alleged interest, however, is admittedly problematic. On one hand, the evidence was clear that Appellants (and most other medical specialists) receive the significant share of their new patients from referring physicians. They expend effort, money and energy to cultivate referral relationships. And, it was a requirement of Tummala’s employment that he develop these referral relationships for the benefit of his employer. Because referring physicians are the major source of new business for a specialist’s medical practice, they are perhaps Appellants’ most crucial “business interest.” Therefore, Appellants make a compelling argument that the law should recognize them as a “legitimate business interest.” The problem, however, is the express language of the statute.

What referring physicians supply is a stream of unidentified prospective patients with whom Appellants had no prior relationship. Therefore, to accept referring physicians as a statutory “legitimate business interest,” would completely circumvent the clear statutory directive that “prospective patients” are not to be recognized as such. The trial court correctly found that: “[A]s stated in Sanal, to qualify as a ‘legitimate business interest,’ a ‘relationship’ with a ‘prospective patient’ must be substantial and one with a specific, identifiable individual and the lack of such a relationship with a patient does not become a legitimate business interest simply by virtue of being referred by a physician.” Sanal, 837 So.2d at 515-16. We see no way to recognize referring physicians as a legitimate business interest and still give effect to the plain language of the statute.

In addition, it is not clear that Appellants could establish the reasonable necessity of enforcing the restrictive covenant even if referring physicians were found to be a legitimate business interest. The referring physicians called as witnesses at the hearing all testified that they make their referrals based upon their assessment of the individual doctor to whom they direct their patients. They do not refer to a “business” or a “practice.” Accordingly, they previously sent patients to Appellants’ office only because that is where Dr. Tummala practiced. Now that he is gone, they testified that they would no longer refer their patients to Appellants’ office even if Dr. Tummala no longer practiced anywhere in Central Florida.

We agree with the trial court that Appellants failed to plead and prove a legitimate business interest recognized by the statute, and affirm.

AFFIRMED.

ORFINGER and TORPY, JJ., concur.

      . Tummala did not solicit any of Appellants' existing or former patients and refused to accept the request for treatment from a number of the Appellants’ existing patients who wanted to continue receiving Tummala’s care. He notified all potential referring physicians that he would not accept any of Appellants’ patients, and placed an advertisement in the local newspaper announcing to the public that he would not accept Appellants' patients in his new practice. Finally, Tummala’s patient information forms included an inquiry as to whether the individual had been treated by Appellants. Tummala only accepted patients. who expressly indicated on the form that they had never been treated by Appellants.

      . Interestingly, despite the alleged dramatic decrease in new business, the quarterly bonus received by each doctor employed by the corporate Appellants increased from $324,000 during the last quarter of Tummala's employment to $1,082,000 per physician in the quarter immediately after Tummala’s departure.

      . In addition, Tummala agreed with, and the court entered, a temporary injunction prohibiting him from treating any of Appellants’ existing or former patients. See § 542.335(l)(c), Fla. Stat. (2004) ("If a contractually-specified restraint is overbroad, overlong, or otherwise not reasonably necessary to protect the legitimate business interest or interests, a court shall modify the restraint and grant only the relief reasonably necessary to protect such interest or interests.”).

      . We recognize that this holding and the First District’s opinion in Sanal appear to conflict with Southernmost Foot and Ankle Specialists, P.A. v. Torregrosa, 891 So.2d 591, 593 (Fla. 3d DCA 2004), in which the Third District upheld a trial judge’s finding that Southernmost had legitimate business interests with regard to "its patient base, referral doctors, specific prospective and existing patients, and patient goodwill.” (emphasis added).

      . Because the trial judge resolved the matter based on the same threshold legal conclusion that we reach here, i.e., that referring physicians do not constitute a legitimate business interest under section 542.335(l)(b)3, we do not reach'the statutory defenses raised by Tummala at the hearing.


author: HAWKES, J. ERVIN, J.,

text:
    NOTAMI HOSPITAL OF FLORIDA, INC., d/b/a Lake City Medical Center, Petitioner, v. Evelyn BOWEN and Don Bowen, her husband, John C. Nicely, as Personal Representative of the Estate of Christine Nicely, Pendrak Surgical Group, P.A., and Robert B. Pendrak, M.D., Respondents.
    No. 1D05-4149.
    District Court of Appeal of Florida, First District.
    April 21, 2006.

      Stephen Bronis and Steven Wisotsky of Zuckerman Spaeder LLP, Miami, & Charles Shad of Saalfield, Shad, Jay, Lucas & Stokes, P.A., Jacksonville, for Petitioner.
    Jerome Hoffman of Holland & Knight, Tallahassee & Michael Tanner of Holland & Knight, Jacksonville, as Amici Curiae for Petitioner.
    Lisa Shearer Nelson of Holtzman E qu-els, Tallahassee, for Respondents.
    Lincoln Connolly of Rossman, Baumber-ger, Reboso & Spier, P.A., Miami, & Philip Burlington, of Burlington & Rockenbach, P.A., West Palm Beach, as Amici Curiae for Respondents.
   HAWKES, J.

The trial court ruled Amendment 7, codified as article X, section 25, of the Florida Constitution, is self-executing, and section 381.028, Florida Statutes (2005), enacted to implement article X, section 25, is unconstitutional. As a consequence, the trial court ruled Respondents could access previously confidential peer review, risk management, and credentialing documents. Petitioner, Notami Hospital of Florida, Inc., d/b/a Lake City Medical Center, petitions this court for a writ of certiorari, arguing the trial court’s rulings depart from the essential requirements of law. We disagree and deny the petition.

Factual Background

The Hospital is a defendant in three medical malpractice actions pending in the trial court, which were consolidated for discovery. Each suit alleged Dr. Robert Pendrak performed negligent surgery, resulting in injury or death to Respondents or Respondents’ decedent. The Hospital was alleged to be negligent in credentialing, retaining or supervising Dr. Pendrak, in violation of section 766.110, Florida Statutes.

Respondents served the Hospital with a Notice of Taking Videotape Deposition Duces Tecum of Gary Karsner, the Hospital’s CEO. The Notice was mailed prior to the passage of Amendment 7, and sought production of “[a]ll files, papers, and computer records relating to the selection, retention, or termination of Robert B. Pend-rak, M.D. at [the Hospital].” The Hospital moved for a protective order as to the credentialing file and related documents, invoking risk management, peer review and statutory privileges, and filed a privilege log pursuant to Fla. R. Civ. P. 1.280(b)(5).

Karsner’s deposition was held the day after Amendment 7 passed. Karsner was asked questions regarding the investigation by Karsner or his staff into Dr. Pend-rak’s background. The Hospital’s counsel instructed Karsner not to answer, because the information was confidential as having come from the Credentials Committee, Risk Management Committee, Peer Review Committee, Medical Review Committee, or Quality Assurance Committee. Consequently, Karsner testified he could not answer.

Respondents filed a motion to compel production of documents and answers to deposition questions, asserting Amendment 7 applied to the information sought from Karsner. Respondents subsequently filed two additional motions to compel deposition testimony and production of documents, and a request to determine the applicability of Amendment 7. These motions broadened the previous request to “any records made or received in the course of business by [the Hospital] relating to any adverse medical incident involving Dr. Pendrak.”

Following a motion hearing, the trial court concluded: (1) section 381.028 restricted rights granted under the Florida Constitution and, consequently, was unconstitutional; (2) Amendment 7 is not unconstitutionally retrospective because there is no vested right in maintaining confidentiality of adverse medical incidents; and (3) Amendment 7 is self-executing and prospective in operation, but retrospective as to extant records. We agree with each conclusion, and discuss them in turn.

Section 381.028, Florida Statutes Restricts Constitutional Rights

State constitutions are limitations upon the power of state legislatures. See Peters v. Meeks, 163 So.2d 753, 755 (Fla.1964). Consequently, a statute enacted by the Legislature may not restrict a right granted under the Constitution. See Austin v. Christian, 310 So.2d 289, 293 (Fla.1975). To the extent a statute conflicts with express or clearly implied mandates of the Constitution, the statute must fall. See Holley v. Adams, 238 So.2d 401, 405 (Fla.1970); In re Advisory Opinion to the Atty. Gen., Limitation of Non-Economic Damages in Civil Actions, 520 So.2d 284, 287 (Fla.1988) (noting statutes “which are inconsistent with the Constitution, if it is amended, will simply have to give way”); Henderson v. State, 155 Fla. 487, 491, 20 So.2d 649, 651 (Fla.1945) (noting “when the provisions of a statute collide with provisions of the Constitution the statute must give way.”); State ex rel. Curley v. McGeachy, 149 Fla. 633, 642, 6 So.2d 823, 827 (Fla.1942) (en banc) (noting provisions of Constitution will prevail over statutes where there is conflict).

Section 381.028, Florida Statutes, purports to implement Amendment 7. However, a comparison of the plain language of the “implementing” statute and article X, section 25, reveals the statute drastically limits or eliminates discovery of records the amendment expressly states are discoverable, and limits the “patients” qualified to access those records. Four examples illustrate how section 381.028 restricts constitutional rights.

First, article X, section 25(a), provides patients have a right to access “any records ... relating to any adverse medical incident,” and article X, section 25(c)(3), broadly defines “adverse medical incident” as “including, but not limited to ” records resulting from “incidents that are reported to or reviewed by any health care facility peer review, risk management, quality assurance, credentials, or similar committee, or any representative of any such committee.” Conversely, section 381.028(3)(j), Florida Statutes, limits records produced to only a “final report.”

Second, article X, section 25(c)(2), provides that patients, actual, prospective, or previous, are entitled to those records. Section 381.028(7), Florida Statutes, limits disclosure to only the final report relating to the same or a substantially similar condition, treatment or diagnosis with that of the patient requesting record access.

Third, article X, section 25(a), contains no limitation on the time frame within which the records were generated, while section 381.028(5), Florida Statutes, limits production to only those records generated after November 2, 2004.

Fourth, section 381.028(6), provides that Amendment 7 will have no effect on existing privilege statutes. This is contrary to the stated purpose of the amendment, and the Florida Supreme Court discussion in its opinion authorizing Amendment 7’s placement on the ballot. Clearly, the statute impermissibly restricts rights expressly granted under the Constitution.

The Hospital’s argument that these statutory limitations are necessary to prevent an unconstitutional retrospective application of the amendment, resulting in a destruction of their vested, substantive rights, is without merit.

No Vested, Substantive Right to Confidentiality of Adverse Medical Incidents

“A statute is not unconstitutionally retrospective in its operation unless it impairs a substantive, vested right.” Clausell v. Hobart Corp., 515 So.2d 1275, 1276 (Fla.1987). However, “[t]o be vested a right must be more than a mere expectation based on an anticipation of the continuance of an existing law.” Id. (quoting Div. of Workers’ Comp. v. Brevda, 420 So.2d 887, 891 (Fla. 1st DCA 1982)) (emphasis added). Here, the Hospital does not have a vested right in maintaining the confidentiality of adverse medical incidents. The Hospital’s “right” is no more than an expectation that previously existing statutory law would not change. Because the Hospital’s expectation is not a vested, substantive right, applying Amendment 7 to records created prior to its passage is not unconstitutionally retrospective.

Amendment 7 is Self-Executing

Constitutional provisions are presumed' to be self-executing. See Gray v. Bryant, 125 So.2d 846 (Fla.1960); NAACP, Inc. v. Fla. Bd. of Regents, 876 So.2d 636 (Fla. 1st DCA 2004). “This is so because in the absence of such presumption the legislature would have the power to nullify the will of the people expressed in their constitution, the most sacrosanct of all expressions of the people.” Gray, 125 So.2d at 851; NAACP, Inc., 876 So.2d at 639.

The test to determine whether a constitutional provision is self-executing is whether it provides a sufficient rule by which the right or purpose it gives or is intended to accomplish may be determined or protected without legislative enactment. See Gray, 125 So.2d at 851; NAACP, Inc., 876 So.2d at 639. “If the provision lays down a sufficient rule, it speaks for the entire people and is self-executing.” Gray, 125 So.2d at 851; NAACP, Inc., 876 So.2d at 639. “The fact that the right granted by the provision may be supplemented by legislation, further protecting the right or making it available, does not of itself prevent the provision from being self-executing.” Gray, 125 So.2d at 851; NAACP, Inc., 876 So.2d at 639.

In Gray, the Florida Supreme Court held the following constitutional amendment, which prescribed the formula by which the number of circuit judges in each of the sixteen judicial circuits was to be determined, was self-executing. See Gray, 125 So.2d at 850. That language read:

The legislature shall provide for one circuit judge in each circuit for each fifty thousand inhabitants or major fraction thereof according to the last census authorized by law. In circuits having more than one judge the legislature may designate the place of residence of any such additional judge or judges.

Id. at 849-850. The language in Amendment 7 is much more specific. It defines, in detail, what records are discoverable, who is entitled to discovery, and states it is effective on the date it is approved by the voters. If the broadly worded constitutional amendment in Gray was determined to be self-executing, the.much more specific language in Amendment 7 easily passes that test.

Amendment 7 is Intended to be Prospective In Operation and Retrospective as to Extant Records

When determining whether Amendment 7 should be retroactively applied, we must determine whether there is clear evidence the electorate intended it to be applied retroactively. See Campus Commc’ns, Inc. v. Earnhardt, 821 So.2d 388, 395 (Fla. 5th DCA 2002). Intent is determined primarily from the language of the amendment, and when the language is clear, unambiguous and conveys a clear and definite meaning, the amendment must be given its plain and obvious meaning. See id. (citing Holly v. Auld, 450, So.2d 217, 219 (Fla.1984)).

Here, the plain language of the amendment permits patients to access any record relating to any adverse medical incident, and defines “patient” to include individuals who had previously undergone treatment. The use of the word “any” to define the scope of discoverable records relating to adverse medical incidents, and the broad definition of “patient” to include those who “previously” received treatment expresses a clear intent that the records subject to disclosure include those created prior to the effective date of the amendment. The effective date merely sets forth the date patients obtained the right to receive the records requested. Because the plain language of the amendment expresses a clear intent that it be applied to include records created prior to its effective date, doing so is not an unconstitutional retroactive application.

Conclusion

Because section 381.028, restricts express constitutional rights, it must fall. The trial court did not depart from the essential requirements of law by concluding the statute is unconstitutional. Similarly, because Amendment 7 provides a sufficient rule by which patients can access records of adverse medical incidents, without the need for legislative enactment, the trial court did not depart from the essential requirements of law by concluding the amendment is self-executing, and by giving it retroactive application. Because our conclusion that the amendment has retroactive application to records created prior to its effective date directly conflicts with the holding in Fla. Hosp. Waterman, Inc. v. Buster, 31 Fla. L. Weekly D763, — So.2d -, 2006 WL 566084 (Fla. 5th DCA March 10, 2006), we certify conflict.

Certiorari is DENIED.

PADOVANO, J., concurs; ERVIN, J., concurs in part and dissents in part with opinion.

ERVIN, J.,

concurring and dissenting.

I concur with all issues addressed in the majority’s opinion except that relating to the retroactive application of Amendment 7, from which I dissent. Similar to the Fifth District in Florida Hospital Waterman, Inc. v. Buster, 31 Fla. L. Weekly D763, — So.2d -, 2006 WL 566084 (Fla. 5th DCA March 10, 2006), I have found nothing in the language of the amendment manifesting an intent that it be applied retroactively. I would therefore grant the petition for writ of certiorari only as to this issue.

      . The Supreme Court noted, “[ajlthough the amendment may affect several different statutes, the amendment has but one purpose— providing access to records on adverse medical incidents ...” In re Advisory Opinion to the Atty. Gen. re Patients’ Right To Know About Adverse Medical Incidents, 880 So.2d 617, 618-619 (2004). "Unquestionably, the amendment would affect sections 395.0193(8) and 766.101(5), of the Florida Statutes (2003), which currently exempt the records of investigations, proceedings, and records of the peer review panel from discovery in a civil or administrative action. Indeed, this is a primary purpose of the amendment.” Id. at 620-621.

      . Although the case law addresses retrospective application of statutes, logic suggests the same reasoning would apply in a constitutional context.

      . See note B, art. X, § 25, Fla. Const.

      . Although the case law addresses statutory language, again, logic suggests the same reasoning would apply in a constitutional context.


author: BROWNING, J.

text:
    William H. WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D04-2937.
    District Court of Appeal of Florida, First District.
    April 24, 2006.

      Nancy A. Daniels, Public Defender; and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.
    Charlie Crist, Attorney General; and Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

William H. Williams (Appellant) appeals his convictions and sentences for burglary and assault while armed with a knife (Count One) and burglary and battery (Count Two). He contends that the trial court reversibly erred in admitting so-called Williams Rule evidence that allegedly lacked any probative value regarding any fact at issue, and in adjudicating him guilty of two counts of burglary and imposing concurrent terms of life imprisonment, where the amended information alleged only one entry and one victim. We find no abuse of discretion in the court’s admitting relevant “similar fact” evidence to establish a material disputed fact: Appellant’s intent to commit “an offense” when he entered the victim’s enclosed porch on April 21, 2002. See §§ 90.404(2)(a) & 810.02(l)(b), Fla. Stat. (2002); Schwab v. State, 636 So.2d 3 (Fla.1994); Williams v. State, 110 So.2d 654, 659-60 (Fla.1959). As to the second issue, the State concedes (and we agree) that double jeopardy precludes Appellant’s dual convictions and concurrent sentences, where both burglary charges arose from a single entry of the dwelling and involved only one victim. See Hawkins v. State, 436 So.2d 44, 46 (Fla.1983); Valdez v. State, 915 So.2d 636, 637 (Fla. 2d DCA 2005); McKinney v. State, 860 So.2d 452 (Fla. 1st DCA 2003); Docanto v. State, 811 So.2d 790 (Fla. 4th DCA 2002); Trotman v. State, 545 So.2d 890, 891 (Fla. 4th DCA 1989) (holding that defendant could not be convicted of two counts of first-degree burglary, one count based on assault and the other based on burglary, where there was only one entry).

Accordingly, we AFFIRM one conviction and sentence and remand to the trial court with instructions to VACATE the other conviction and sentence.

BARFIELD and THOMAS, JJ., concur.


author: PER CURIAM.

text:
    Brian HERLIHY, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5203.
    District Court of Appeal of Florida, First District.
    April 24, 2006.

      David Mengers, Ocala, for Appellant.
    Charlie Crist, Attorney General; Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Following a jury trial, the appellant, Brian Herlihy, was convicted of manslaughter and sentenced to 15 years’ imprisonment. This court affirmed Appellant’s conviction and sentence on direct appeal. Herlihy v. State, 887 So.2d 332 (Fla. 1st DCA 2004) (unpublished table opinion). Appellant now challenges the trial court’s summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850, arguing his trial counsel was ineffective for failing to request a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C.Cir.1923), challenging the admissibility of evidence relating to “Shaken Baby Syndrome.”

In order for an appellant to show ineffective assistance of counsel, the appellant must show that counsel’s performance was outside of the wide range of reasonable professional assistance, and that such conduct in fact prejudiced the outcome of the proceedings because, without the conduct, there is a reasonable probability that the outcome would have been different. Strickland v. Washington, 466 U.S. 668, 687-88, 691-92, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); Spencer v. State, 842 So.2d 52 (Fla.2003); Cherry v. State, 659 So.2d 1069, 1072 (Fla.1995); Betts v. State, 792 So.2d 589, 589-90 (Fla. 1st DCA 2001). The trial court properly denied Appellant’s motion where he has failed to demonstrate that his counsel’s conduct was outside of the wide range of reasonable professional assistance. Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052.

A Frye hearing is appropriate to determine the admissibility of a “new or novel” scientific principle. See Zack v. State, 911 So.2d 1190, 1197-98 (Fla.2005) (citing to Brim v. State, 695 So.2d 268 (Fla.1997)). However, expert opinion testimony “which is based on an ‘expert’s personal experience and training’ ” is not subject to Frye testing. Gelsthorpe v. Weinstein, M.D., 897 So.2d 504, 509 (Fla. 2d DCA 2005) (citing to Flanagan v. State, 625 So.2d 827, 828 (Fla.1993)). Therefore, a diagnosis based on an expert’s opinion and experience, versus a specific scientific test, would not be subject to a Frye hearing. Id. at 510 (stating that expert “testimony concerning the causation of a medical condition will be considered pure opinion testimony — and thus not subject to Frye analysis”).

Here, Appellant argues that testimony relating to the diagnosis that the victim suffered from Shaken Baby Syndrome should have been subjected to a Frye hearing. However, such testimony is based on an expert’s opinion and, as such, is not evidence which would be subject to the Frye analysis. See Gelsthorpe, 897 So.2d at 510. Therefore, Appellant’s counsel was not deficient for failing to request an inappropriate Frye hearing. Cf. Rutherford v. Moore, 774 So.2d 637, 643 (Fla.2000) (stating that appellate counsel cannot be ineffective for failing to raise a meritless claim).1 Accordingly, the trial court properly denied Appellant’s motion for postconviction relief.

AFFIRMED.

BARFIELD, BROWNING and THOMAS, JJ., concur.


text:
    Tramaine JOSEPH, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-2631.
    District Court of Appeal of Florida, Fourth District.
    April 26, 2006.
    Rehearing Denied May 19, 2006.
    Carey Haughwout, Public Defender, and Gary Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Gilbert v. State, 789 So.2d 426 (Fla. 4th DCA 2001).

STEVENSON, C.J., GUNTHER and MAY, JJ., concur.