author: FARMER, J. FARMER, J.

text:
    Judith WAX, Appellant, v. TENET HEALTH SYSTEM HOSPITALS, INC.; Robert Topper, M.D.; and Robert Topper, M.D., P.A., Appellees.
    No. 4D04-1673.
    District Court of Appeal of Florida, Fourth District.
    May 17, 2006.
    Opinion on Rehearing March 7, 2007.

      Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, and Jack Scarola, Darryl L. Lewis, and Rosalyn Sia Baker-Barnes of Searcy Denney Scarola Barnhart & Shipley, P.A., West Palm Beach, for appellants.
    Robert Weill, Louise H. McMurray, James C. Sawran and Jason A. McGrath of McIntosh, Sawran, Peltz & Cartaya, P.A., Miami, for appellee Tenet Health System Hospitals, Inc.
    Amy R. Mosel and Marlene S. Reiss of Stephens, Lynn, Klein, La Cava Hoffman & Puya, P.A., Miami, for appellees Robert Topper, M.D., and Robert Topper, M.D., P.A.
   FARMER, J.

In this medical malpractice case, the trial court stopped plaintiffs witnesses from testifying as to issues involving efforts to resuscitate the deceased and related matters involving the vagus nerve. The court held that such testimony would have been outside the designations of these expert witnesses in the pretrial disclosure, or it would have been cumulative. The record does not support the trial judge’s decision in either regard. We reverse.

Gary Wax, a 37-year-old man, was admitted to the West Boca Medical Center, owned by Tenet Health System Hospitals, for outpatient, elective hernia surgery by Dr. Topper. Within 20 minutes of the onset of surgery, a “code” was called. Despite attempts at resuscitation, he died on the table. His family was told that he simply “stopped breathing.” The condition immediately precipitating death may have been respiratory failure, but the reasons for the loss of respiration were at the center of the dispute at trial.

His wife’s wrongful death, medical malpractice action alleged negligence in pre-surgieal consultation and assessment, in the administration and management of anesthesia for the procedure, and in the attempts at resuscitation. Defendants asserted that the basis for ultimate oxygen deprivation was an inadvertent stimulation of the vagus nerve by the surgeon during the procedure. This in turn would have relevance to the doctors’ and staff perceptions as to whether and when Wax’s life was in danger and the manner in which they undertook resuscitation.

The parties disputed the proper standard of care for the attempts at resuscitation — which, again, is said to have depended on the cause of the respiratory failure. Plaintiff sought to introduce testimony from an expert, Dr. Sterba, as to the probability that “manipulation of the hernia sac caused [a] vagus nerve response.” Defendants objected that this line of questioning would be outside the scope of this expert’s expected testimony in plaintiffs pretrial disclosure of expert witnesses. Plaintiffs designation had specified that Dr. Sterba would testify to: “the negligent code resuscitation efforts” and “specifically that the [personnel involved] delayed in establishing a patent airway and adequate ventilation during the code and delayed in establishing adequate circulatory aids during the code.” Defendants argued that the designation did not specifically state that Dr. Sterba would give an opinion touching on the vagus nerve theory, and further that Dr. Sterba “did not express any opinions in deposition with regard to the vagus nerve, [and] whether it could have caused any of this.”

Plaintiff relies on Klose v. Coastal Emergency Services of Fort Lauderdale, 673 So.2d 81, 83 (Fla. 4th DCA 1996), in support of her argument that this exclusion was prejudicial and reversible. In that case, at defendant’s discovery deposition of plaintiffs expert, plaintiffs counsel said that the expert’s trial testimony would be limited to pre- and post-operative breaches of the standard of care. We noted that the expert was plaintiffs only pulmonologist for the trial. The trial judge excluded testimony from the witness as to breaches during the bronchoscopy procedure. We reversed upon a holding that defendant would not have been prejudiced by the admission of the testimony because defendant had actually questioned the witness at the deposition about the procedure. We also held that any prejudice from defendant’s confusion about the scope of the proposed trial testimony could have been alleviated by a brief adjournment of the trial for a further deposition on the matter.

We note that it was the defendants who introduced the issue of the vagus nerve to refute the claim of negligence in resuscitating the patient. As a result, plaintiff had designated the expert to testify about the proper standard of care for resuscitation. Plaintiff contends that the standard of care for resuscitation depended on what had caused respiratory failure. She argues that designating the expert’s subject as negligence in resuscitation served, by necessary implication, to inform defendants that the vagus nerve could be part of Dr. Sterba’s testimony at trial. Our study of the record confirms that from the circumstances, testimony concerning the vagus nerve was arguably inferable by the designation that the substance of Dr. Sterba’s testimony would deal with the standard of care on resuscitation.

As we did in Klose, we note that Dr. Sterba was plaintiffs only designated expert on the subject at issue, emergency resuscitation. Exclusion of his offered testimony was therefore especially prejudicial because of his unique expertise. Klose holds that in the absence — as here — of any misconduct or impropriety by the party seeking to admit the testimony, this kind of prejudice impels the trial judge first to exhaust other measures less drastic than outright exclusion. A brief adjournment for a deposition of the witness on the vagus nerve issue was clearly the first remedy if the trial judge thought the designation insufficient to apprise defendant of the vagus nerve issue.

We do not think that these designations of the substance of testimony in pretrial notices of experts should be subjected to literalistic, mechanical or crabbed readings. If a disclosed witness’s trial testimony is even arguably within the designation, exclusion of the testimony by the witness should not be employed. In the instances where a good faith misimpression occurs, the trial judge has other remedies to correct any injustice. These would include a delay in the testimony of that witness to allow additional discovery testimony of the proposed witness or, even in an extreme case perhaps, giving the party claiming to have been aggrieved by the designation the right to call additional experts. Hence, we do not agree that the record supports the trial judge’s reasoning that this testimony should have been excluded in its entirety because of defendants’ contention that they were not given proper notice of the expert’s planned testimony.

The trial judge also excluded plaintiffs rebuttal testimony from Dr. Ernst. Just before the close of the defense, the court asked plaintiffs counsel if he anticipated any rebuttal. He responded that he intended to call Dr. Ernst. Defendants objected, claiming that plaintiff was making an “attempt, under the guise of rebuttal, to have cumulative testimony from a second anesthesiology expert.” Plaintiff proffered that Dr. Ernst would testify regarding defendants’ vagus nerve theory, opining that it would be a “physiologic impossibility” for “a message [to] reach the brain through the sympathetic nervous system” after anesthesia below the T5 level in the spine. The court responded: “that [has] already been testified to” and that introduction of another expert addressing the issue was “getting a little cumulative.”

In Griefer v. DiPietro, 708 So.2d 666 (Fla. 4th DCA 1998), Judge Warner explained that:

“[a] trial court clearly may exercise its discretion in imposing sanctions. In this case, however, the trial court, by excluding the foregoing testimony, engaged in judicial overkill... .A trial court should only exclude witnesses under the most compelling of circumstances. This is particularly so when the exclusion would be of a party’s most important witness.”

708 So.2d at 671. More specifically with regard to rebuttal witnesses she said: “Although a trial court has broad discretion regarding the admissibility of rebuttal testimony, it abuses that discretion when it limits non-cumulative rebuttal that goes to the heart of the principal defense.” 708 So.2d at 672; see also Castillo v. Bush, 902 So.2d 317, 324 (Fla. 5th DCA 2005) (same).

Plaintiff argues that Dr. Ernst’s exclusion was prejudicial because it rendered her unable to present evidence from any anesthesiologist to rebut defendants’ vagus nerve theory. It is true that in her casein-chief, plaintiff had presented testimony from a cardiologist and a surgeon relating to the cause of death. But, she argues, Dr. Ernst’s testimony would not have been cumulative and would have been her only specific attempt to address the vagus nerve theory from the perspective of anesthesiology. Defendants respond, again, that the substance of Dr. Ernst’s testimony would have been repetitive and that the only difference would be his expertise.

The record does not support the trial court’s exclusion as cumulative. Plaintiff had not previously presented evidence from an anesthesiologist on the va-gus nerve theory, and the earlier evidence cited by defendants was more generally directed to resuscitation rather than the specific details of the vagus nerve defense. To be cumulative the substance, function and effect of the previous evidence should be the same. Here, as proffered, it would not have repetitive. Again, because this proposed evidence went to the heart of the theory of defense, it was prejudicial error to exclude it entirely without giving plaintiff an opportunity to present it without engaging in an unreasonable duplication of previous evidence. As Judge Warner made clear in Griefer:

“To strike all of the testimony was too extreme[;] ... the trial court should have barred only the new opinions, not those opinions to which the expert had testified in deposition and were known to the appellees.”

708 So.2d at 671.

Reversed for New Trial.

STONE and POLEN, JJ., concur.

On Motions for Rehearing

FARMER, J.

We deny appellees’ motions for rehearing and rehearing en banc without comment. It appears, however, that our opinion was deficient in leaving unresolved the issue concerning the hospital’s liability for the alleged negligence of the anesthesiologist. We therefore grant appellant’s motion for rehearing as to that issue only,

Plaintiff s complaint alleged that the hospital had a non-delegable duty to provide anesthesiology services and was therefore directly liable for the negligence of the anesthesiologist with whom the hos-pita! contracted to provide such services. In agreeing to the surgery the decedent signed a surgical consent form that is headed with the name of the hospital. It authorized Dr. Topper to perform an “inci-sional hernia repair with mesh.” Paragraph 3 of this form recites: “I consent to the administration of anesthesia as deemed necessary by South Palm Beach Anesthesiologists, P.A., in charge of my case.” This provision went on to add that the patient also agreed to:

“general, epidural and/or other regional anesthesia with or without intravenous sedation and accept risks including: minor complications such as backache, headache, rash, tingling, nerve damage, awareness and major complications including but not limited to stroke, heart attack, paralysis, or death.”

Evidence in discovery would support a finding that the anesthesiologist’s conduct fell below the standard of care for the specialty. Plaintiff sought by motion for partial summary judgment a pretrial determination that the hospital had a non-delegable duty to provide anesthesiology services for surgical patients like decedent. The hospital responded with its own motion seeking judgment of non-liability, arguing that as a matter of law it had no such duty and could not be held liable for any negligence of the anesthesiologist. The trial court denied plaintiffs motion and granted the relief sought by the hospital. Plaintiff argues on appeal that the court’s ruling was error.

In Pope v. Winter Park Healthcare Group, Ltd., 939 So.2d 185 (Fla. 5th DCA 2006), the Fifth District recently confronted this same issue under nearly identical circumstances. That ease also involved a claim against a hospital for the medical negligence of a physician. There a newborn baby experienced fetal-maternal hemorrhage and compression of the umbilical vein, which in the hours following birth, led to labored breathing and required resuscitation. The baby suffered permanent brain damage. The complaint alleged that attempts at resuscitation were neither timely nor competently performed. It also alleged that the neonatologist on call was negligent by his absence and in failing to stay in communication or order indicated tests. Plaintiffs contended that the hospital had a non-delegable duty to provide mother and newborn baby with appropriate care. This duty, they argued, arose from an implied contract formed by the admission of the patient and that any attempt by the hospital to delegate this duty to an independent contractor physician was ineffective. They argued that the summary judgment in favor of the hospital on grounds of apparent agency was error. The hospital responded that the consent form was in fact an express contract between plaintiffs and the hospital, and it precludes liability for the negligence of the doctor. The hospital also argued that Florida law does not recognize an implied duty on hospitals to provide non-negligent medical services or impose any non-delega-ble duties on a hospital in regard to the negligence of doctors.

In a penetrating and thorough opinion, Judge Griffin analyzed the rights and liabilities of the patient and hospital under Florida law. She began by acknowledging that Florida law recognizes that a hospital can undertake by express contract to perform a specific duty. The consent form constitutes, she said, such an express contract between the hospital and the parents. The issue lay in deciding the scope of the express contractual undertaking by the hospital and whether it included a duty to provide non-negligent care to the newborn baby.

Judge Griffin then proceeded to analyze the possible theoretical underpinnings for such a duty. Her analysis was this. The issue of hospital liability for the negligence of doctors intermingles tort and contract law. Respondeat superior, a principle of tort law, makes a hospital liable for the negligence of its agents. A doctor might be such an agent if directly employed by the hospital. When a hospital engages a doctor under an independent contract to perform a specific task, however, the hospital cannot be liable to third parties injured by the negligent performance of that contract when the hospital has no power of control over the independent contractor’s performance. But tort law does recognize exceptions even to this independent contractor rule, one of which is apparent agency. On the other hand, merely granting staff privileges to doctors, by itself, does not ordinarily make the doctors apparent agents of the hospital. Another exception is the negligent retention of an independent contractor, as when the contractor is unqualified or has known defects. Finally, there is an exception from the independent contractor rule for duties that the hospital may not delegate. That is the subject of both this case and Pope.

As Judge Griffin pointed out:

“In Florida ease law, nondelegable duties are often said to arise out of the common law, statutes or regulations, or contract. Under the common law, non-delegable duties typically arise out of the performance of ultra-hazardous activity. ‘There are no specific criteria for determining whether or not a duty is nondelegable except for the rather ambiguous defining characteristic that the responsibility is so important to the community that the [original party] should not be allowed to transfer it to a third party.’ Florida law does not recognize that the mere relationship between a hospital and its patient gives rise to a nondelegable duty to provide competent medical care. Nor, in this ease, does a nondelegable duty on the part of a hospital arise out of any statute or regulation cited to us.” [e.o.]

939 So.2d at 188.

Unlike Pope, in this case plaintiff does not rely only on a Florida regulation to supply a duty on the part of the hospital that may not be delegated. Indeed, here plaintiff relies on the pertinent statute, which defines a “hospital” as an establishment that, among other things, regularly makes available “treatment facilities for surgery.” § 395.002(13)(b), Fla. Stat. (2005). A related statute requires the Agency for Health Care Administration (AHCA) to adopt rules that include:

“reasonable and fair minimum standards for ensuring that ... [sufficient numbers and qualified types of personnel and occupational disciplines are on duty and available at all times to provide necessary and adequate patient care and safety.”

§ 395.1055(l)(a), Fla. Stat. (2005). The rules must also ensure that “[licensed facilities are established, organized, and operated consistent with established standards and rules.” § 395.1055(l)(d), Fla. Stat. (2005). Acting under the authority of these statutes (and others), AHCA has adopted the following regulation:

“Each Class I and Class II hospital, and each Class III hospital providing surgical or obstetrical services, shall have an anesthesia department, service or similarly titled unit directed by a physician member of the orqanized professional staff.” [e.s.]

Fla. Admin. Code R. 59A-3.2085(4).

Plaintiff argues that these statutes and the regulations adopted thereunder establish that the hospital had an expressed legal duty to furnish anesthesia services to its surgical patients “consistent with established standards.” § 395.1055(l)(d), Fla. Stat. (2005). In providing such services the hospital was obligated to do so in accordance with established standards for anesthesiology. In other words, plaintiff argues, the hospital had a clearly established legal duty to furnish non-negligent anesthesia services.

We conclude that because the statute and regulation impose this duty for non-negligent anesthesia services on all surgical hospitals, it is important enough that as between the hospital and its patient it should be deemed non-delegable without the patient’s express consent. Personal autonomy in making health care decisions is the policy established by statute, and where health care is concerned that usually means informed decisions. See § 765.102(1), Fla. Stat. (2005) (“The Legislature finds that every competent adult has the fundamental right of self-determination regarding decisions pertaining to his or her own health, including the right to choose or refuse medical treatment.”); and § 765.106, Fla. Stat. (2005) (“The provisions of this chapter are cumulative to the existing law regarding an individual’s right to consent, or refuse to consent, to medical treatment and do not impair any existing rights or responsibilities which a health care provider, a patient ... or a patient’s family may have under the common law, Federal Constitution, State Constitution, or statutes of this state.”).

In Pope, Judge Griffin wrestled with that alternative basis for direct duties whereby a party is said to have voluntarily assumed a duty by contract and then sought to delegate the contractual duty to an independent contractor. She said:

“It is an elemental aspect of contract law that, absent an agreement to the contrary, the rights accruing under a contract can be freely given up by assignment, but duties assumed under a contract cannot be transferred to another. Performance of the duties assumed under a contract are usually delegable, but, even if delegable, the delegation will not relieve the promisor of the duty to perform his obligation under the contract. Thus, if a hospital does undertake by contract to provide medical care, it cannot throw off that obligation simply by hiring an independent contractor. The use by hospitals of independent-contractor physicians eliminates ‘respon-deat superior’ liability, but it will not relieve the hospital of any contractual duties it has undertaken. A hospital can, by contract, undertake different duties or greater duties than those imposed by the common law of tort.”

939 So.2d at 188-89. She pointed out that this court recognized that theory of hospital liability in Irving v. Doctors Hospital of Lake Worth, Inc., 415 So.2d 55 (Fla. 4th DCA 1982), where we held that plaintiff was entitled to have the jury instructed on the non-delegable duty doctrine as to the status of an emergency room physician.

Judge Griffin thus proceeded to analyze whether the Pope admission consent form ruled out the assumption of a non-delega-ble duty, as the hospital argued. In Pope the patient authorized the hospital to furnish surgical and related services “as may be ordered by the attending physician.” 939 So.2d at 190. The form went on to say that the patient “recognizes” that the doctors are not employees or agents of the hospital but are instead “independent physicians” to whom the hospital may delegate “those services physicians normally provide.” Id. In substance the form was different from the one employed by West Boca Medical Center in this case.

In this case the language in the form signed by the patient is different. Here Gary Wax authorized Dr. Topper to perform the hernia repair and “consented” to the administration of anesthesia by South Palm Beach Anesthesiologists, P.A. He also agreed to “general, epidural and/or other regional anesthesia with or without sedation,” and accepted specified risks ranging all the way from minor complications to death.

The critical fact in both cases, however, is that there is no express agreement by the patient that the delegation of the duty in question also operated to discharge the hospital from liability to the patient for any negligence in its provision. As Judge Griffin wrote:

“The form also authorizes [hospital] to delegate to such physicians the services physicians normally provide. The form does not, however, dispose of the question whether the delegation of the duty relieves [hospital] of liability.
“[Hospital] argues that the first sen-fence of the consent form represents an undertaking on its part only to provide those necessary medical or surgical treatments as may be ordered by the attending physician. If the physician is negligent, it reasons, [hospital] cannot be liable. [Hospital’s] reading of the scope of its undertaking is possible, given the syntax of the sentence, because it is unclear what ‘as may be ordered by the attending physician(s)’ refers to. Whether [its] interpretation of the sentence has the legal effect they contend is not self-evident.
“This first sentence of the consent form can also be read to mean that [hospital] undertook to provide Ginger Pope and Tyler the necessary medical or surgical treatments or procedures, including whatever diagnostic, x-ray, laboratory procedures, anesthesia, etc. as may be ordered by the attending physician. [Hospital’s] express reservation of the right to delegate the services physicians normally provided implies a recognition on its part that it has undertaken the duty to provide those services. A duty that does not exist cannot be delegated.
“Under the law of tort, the hiring of an independent contractor, unless done negligently, precludes liability because the hiring party has no duty to an injured third party to procure non-negligent performance of the independent contractor. However, delegation of a contractual duty to an independent contractor does not eliminate the duty.” [e.s.]

939 So.2d at 190-91.

Pertinent to the issue of discharge of the contractual duty, Judge Griffin went on to explain:

“There is no language in this contract between [hospital] and the Popes of any assent by Mrs. Pope that the delegation of [hospital’s] duty to provide the necessary medical treatment to independent contractor physicians will discharge the hospital from its contractual obligations. Acknowledgement on the part of Mrs. Pope that the duty to. provide ‘medical or surgical treatments’ can be delegated to an independent physician does not constitute an agreement on the part of Mrs. Pope to discharge [hospital] from any contractual duty it assumed. Delegation and discharge are two different things entirely, performed by different contracting parties. Contractual language of discharge should be clear, yet the only language in the form that may even obliquely refer to discharge is the final sentence, which provides that ‘questions’ relating to the physician’s care should be directed to the physician.” [e.s.]

939 So.2d at 191. The opinion in Pope finds the form’s language ambiguous, that the ambiguity could be construed against its drafter, but that the issue of the disposition of the ambiguity should be left for the trial court on remand because the parties had “barely addressed” the proper interpretation of the contract.

We agree with and follow the reasoning of Judge Griffin in Pope. In this case we find both a statutory and a contractual basis for the hospital’s duty of providing non-negligent, competent surgical anesthesia services to its patient. Under the admission consent form, we find that the patient consented to the Group’s administration of anesthesia services. Unlike the contract in Pope, however, we find no language at all in this form that might fairly and reasonably be construed to stand as an agreement to discharge the hospital from its primary statutory and contractual duty of providing non-negligent anesthesia services. If there were negligence in the provision of anesthesia services, then the Hospital would be hable' as a matter of law.

We therefore reverse the trial court’s summary judgment on this issue and remand for consistent proceedings in the trial ordered by our original opinion on the claim of negligence.

STONE and POLEN, JJ., concur.

      . Only the hospital and the surgeon are involved in this appeal. They will be referred to throughout as defendants.

        . We note that defense counsel conducted the deposition examination and was not precluded or influenced away from the subject of the vagus nerve during the deposition. There is no reason appearing in the record as to why defense counsel did not explore the subject with the witness.

      . The contract between the hospital and South Palm Beach Anesthesiology, P.A. (Group), provides in part:
      A. Hospital operates an acute care hospital known as West Boca Medical Center (Facility) which maintains an Anesthesiology Department (the Department) on the Facility's premises to provide certain anesthesiology services, and Hospital desires to assure physician coverage for the Department.
      1. a. While this Agreement is in effect, Group shall provide Physicians to provide all anesthesiology services at Facility.... Physicians shall also ... perform such other duties as may from time to time be requested by Facility....
      1. f. Group agrees that all anesthesiology services provided pursuant to this Agreement shall be performed in compliance with all applicable standards set forth by law or ordinance or established by the rules and regulations of any federal, state or local agency, department, commission, association or other pertinent governing, accrediting, or advisory body ... having authority to set standards for health care facilities. Physician shall perform all anesthesiology services in accordance with all Facility rules, regulations, procedures, policies, and bylaws and all Facility Medical Staff rules, regulations, procedures, policies and bylaws.
      3. a. Hospital shall, at no cost to Group, provide all equipment, facilities, supplies, utilities ... and other services ... as the Hospital shall, in its sole discretion, determine from time to time to be necessary for the performance of the anesthesiology services and the proper operation of the Department.
      b. Hospital shall employ such non-physician personnel as Hospital deems necessary for the proper operation of the Department and the performance of the anesthesiology services or any other Group obligation set forth in this agreement. The parties hereby agree that all such personnel shall be subject to the direction and control of Director and Physicians in the performance of professional services to patients.
      6. [Each physician provided by Group] shall act at all times under this Agreement as independent contractors. The parties agree that Hospital shall not have and shall not exercise any control or direction over the manner or method by which [such physician] provides anesthesiology services. However, Group shall require [all physicians] to perform at all times in accordance with currently approved methods and standards of practice for anesthesiology services in the medical community. The provisions of this Paragraph shall survive expiration or other termination of this Agreement, regardless of the cause for such termination.
      9. b. Except for disclosure to Group's legal counsel, accountant or financial advis-ors ... neither Group nor any Physician shall disclose the terms of this Agreement to any person who is not a party or signatory to this Agreement, unless disclosure thereof is required by law or otherwise authorized by this Agreement or consented to by Hospital. Unauthorized disclosure of the terms of this Agreement shall be a material breach of this Agreement and shall provide Hospital with the option of pursuing remedies for breach or immediate termination of this Agreement....
      18. Group shall not assign or transfer, in whole or in part, this Agreement or any of Group's rights, duties or obligations under this Agreement without the prior written consent of Hospital, and any assignment or transfer by Group without such consent shall be null and void.... This Agreement is assignable by Hospital without consent, provided that Hospital provides written notice of the assignment.
      None of the omitted provisions of this agreement would conceivably relate to the issue raised by plaintiff.

       Assuming the hospital did undertake by contract to provide to Baby Pope “the necessary medical or surgical treatments or procedures,” we cannot credit the notion that this undertaking would not include “non-negligent” medical care. "Necessary medical care” inherently means competent medical care.

      . We interpret his acceptance of risks to cover only the known risks from the use of anesthesia within the applicable standard of care. We do not recognize his acceptance as a relinquishment of anyone's liability for a claim for negligence in the impending administration of anesthesia to him.

      . We share Judge Griffin’s view that Judge Altenbernd’s concurring opinion in Roessler v. Novak, 858 So.2d 1158, 1163 (Fla. 2d DCA 2003) (Altenbernd, J., concurring) (arguing that hospitals should be held to have a non-delegable duty to provide adequate radiology departments, pathology laboratories, emergency rooms, and other professional services necessary to the ordinary and usual functioning of the hospital), does indeed make sense as an aspiration for the evolution of Florida law.


source: Caselaw Access Project

author: GREEN, J.

license: Public Domain

text:
    CORAL IMAGING SERVICES, a/o/a Virgilio Reyes, Petitioner, v. GEICO INDEMNITY INSURANCE COMPANY, Respondent.
    No. 3D06-597.
    District Court of Appeal of Florida, Third District.
    Oct. 4, 2006.

      Stephens Lynn Klein La Cava Hoffman & Puya, P.A., and Marlene S. Reiss, Miami, for petitioner.
    Shutts & Bowen, LLP, and Frank A. Zacherl and Suzanne Youmans Labrit, Miami, for respondent.
    Before, GREEN, SUAREZ, and CORTIÑAS JJ.
   GREEN, J.

Coral Imaging Services petitions for a writ of certiorari to quash a decision of the Circuit Court Appellate Division interpreting section 627.736(5)(b), Florida Statutes (1999). As the decision departs from the essential requirements of law, Ferrara v. Cmty. Developers, Ltd., 917 So.2d 907 (Fla. 3d DCA 2006); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995), we grant certiorari and quash the decision below. We remand with directions to reinstate the summary judgment entered by the trial court.

Judge Emas’s eloquently written dissent to the Appellate Division’s majority opinion clearly and succinctly sets out the facts and reasoning in this case. We adopt that dissenting opinion in its entirety, as reproduced below:

The material facts of this case are not in dispute: Geieo’s insured was involved in an automobile accident. He sought treatment for his injuries under his PIP policy from several providers, including Coral Imaging. Coral Imaging provided medical services to the insured and submitted a timely bill for $2300.
However, payment was denied on these timely-submitted claims because Geico had already exhausted the $10,000 limits under its insured’s PIP policy. The limits were exhausted, in part, because Geico paid two untimely claims submitted by Professional Reading, thereby diminishing and eventually exhausting the available PIP benefits under the insured’s policy.
Coral Imaging sued Geico for payment of the outstanding portion of the timely-submitted bill, claiming that Gei-co’s payment of untimely claims was improper.
The question squarely presented is whether the insurer has the right under the statute to pay for the services rendered by a provider when the provider has concededly failed to submit the bills within the timeframe mandated by § 627.736(5)(b) and has violated the express terms of the statute by including untimely claims in the billing statement submitted to the insurer. The majority holds that the statute does not prohibit the insurer from paying these late claims, and that the payment of such late claims counts against the $10,000 limits of the insured’s PIP benefits, thereby preventing another provider from receiving payments for services provided and billed for on a timely basis. I believe that such a statutory interpretation is not logical, reasonable, or intended by the Legislature.
This case involves the interpretation of Section 627.736(5)(b), Florida Statutes (1999), which establishes the requirements for payment of Personal Injury Protection (PIP) benefits under Florida’s No-Fault Law. The relevant portion of that statute provides:
(b) With respect to any -treatment or service, other than medical services billed by a hospital for services rendered at a hospital-owned facility, the statement of charges must be furnished to the insurer by the provider and may not include, and the insurer is not required to pay, charges for treatment or services rendered more than SO days before the postmark date of the statement, except for past due amounts previously billed on a timely basis under this paragraph, and except that, if the provider submits to the insurer a notice of initiation of treatment within 21 days after its first examination or treatment of the claimant, the statement may include charges for treatment of services rendered up to, but not more than, 60 days before the postmark date of the statement. The injured party is not liable for, and the provider shall not bill the injured party for, charges that are unpaid because of the provider’s failure to comply with this paragraph. Any agreement requiring the injured person or insured to pay for such charges is unenforceable. (Emphasis supplied).
In addressing the proper interpretation of a statutory provision, courts must defer to the legislative intent as expressed by the statute in question. “Legislative intent, as always, is the polestar that guides a court’s inquiry under the Florida No-Fault Law....” United Auto. Ins. Co. v. Rodriguez, 808 So.2d 82, at 85 (Fla.2001). A fundamental principle of statutory construction is that “[wjhere the wording of the Law is clear and amenable to a logical and reasonable interpretation, a court is without power to diverge from the intent of the Legislature as expressed in the plain language of the Law.” Rodriguez, at 85.
The initial question which must be answered, then, is whether the wording of the statute is “clear and amenable to a logical and reasonable interpretation.” I conclude that the majority’s interpretation of the statute does not meet this threshold test.
Under the relevant provisions of Fla. Stat. § 627.736(5)(b):
1) A provider of medical services must submit to the insurer a statement of charges for treatment or services rendered to the insured;
2) The provider’s statement of charges “may not include ... charges for treatment or services rendered more than SO days ” before the date the statement of charges is sent to the insurer.
3) The insurer is not required to pay charges for treatment or services which were rendered more than 30 days before the statement of charges is sent to the insurer.
4) The provider may not bill the injured party for the untimely, unpaid charges.
5) The injured party is not liable to the provider for the untimely, unpaid charges.
The first and most obvious reason why the majority’s statutory interpretation is not logical or reasonable is that it requires the provider to violate one provision of the statute in order to receive the benefit of another provision of the same subsection.
Under the statute, the provider is prohibited from including in its statement of charges any services which were rendered more than 30 days ago (“the statement of charges ... may not include ... charges for treatment or services rendered more than 30 days before the postmark date of the statement.”). Therefore, the provider is not even permitted to submit a bill for untimely services. Only by violating this portion of the statute can we ever reach the question of whether an insurer has the authority to pay an untimely bill. In order to be in a position to receive payment on its untimely claim, Professional Reading had to violate the express provisions of Section 627.736(5)(b) by submitting a statement of charges which included untimely-billed services. It cannot logically or reasonably be argued that the Legislature intended to require the provider to violate one portion of a statute in order to receive a benefit under another portion of the same statute.
Furthermore, the entire intent of the 30-day time limitation would be eviscerated under the interpretation urged by Appellant and adopted by the majority. The unreasonableness of this position can be seen by taking the majority’s interpretation to its logical conclusion, resulting in this very possible scenario:
1) Assume that Coral Imaging submits a timely bill for services totaling $10,000 (representing the limits of the PIP benefits).
2) Assume further that Professional Reading submits an untimely bill for services totaling $10,000 (also representing the limits of the PIP benefits).
3) Geico, the insured, receives Coral Imaging and Professional Reading’s bills on the same day, and notes that Coral Imaging’s bill was timely while Professional Reading’s bill was untimely.
4) Under the majority’s interpretation, Geico has the right to pay either Coral Imaging’s timely bill or Professional Reading’s untimely bill.
5) Geico chooses to pay the entire $10,000 to Professional Reading for its untimely bills, thereby exhausting the limits of the PIP policy.
6) As a result of paying the untimely bill and exhausting the limits of the PIP policy, Geico denies all payment on Coral Imaging’s timely-submitted bill of $10,000.
7) Coral Imaging, having been denied payment on its timely-submitted bill, now seeks payment from the insured for the $10,000 in services provided.
These results expose an interpretation of the statute that is neither reasonable nor logical: the statute provides that “the injured party is not liable for, and the provider shall not bill the injured party for, charges that are unpaid because of the provider’s failure to comply with this paragraph.” The 30-day time limitation requires a provider to submit its bill on a timely basis and, if the provider does not do so and the insurer does not pay, the provider cannot bill the insured for the services. This provision is intended to put teeth into the 30-day time limitation by placing the provider on notice that it will have no recourse against the insured if it fails to meet the time requirements under the statute.
However, by paying Professional Reading’s untimely bills (and in doing so, exhausting the PIP benefits) the insurer has exposed its own insured to an additional $10,000 obligation from Coral Imaging; upon exhausting the PIP benefits by paying Professional Reading, and denying payment to Coral Imaging on its timely bill, Coral Imaging is now permitted to seek payment from the insured because it complied with the statutory 30-day time requirement. If, on the other hand, Geico chose (or was duty-bound by statute) to deny Professional Reading’s untimely bill (therefore allowing Geico to pay Coral Imaging’s timely bill of $10,000), Professional Reading would have no recourse against the insured because the statute provides that “[t]he injured party is not liable for, and the provider shall not bill the injured party for, charges that are unpaid because of the provider’s failure to comply with this paragraph.” [§ 627.736(5)(b), Fla. Stat. (1999).]
Therefore, if the majority’s reading of the statute is accurate, the insurer may unilaterally decide whether its insured will be exposed to liability for Coral Imaging’s timely-submitted bill by exercising its authority under the statute to pay an untimely-submitted bill. This interpretation allows the insurer to avoid or defeat altogether the purpose of the time limitation by paying an untimely provider and subjecting its own insured to liability the statute was created to prevent. Given this application, I do not believe that the majority’s interpretation of Section 627.736(5)(b) can be characterized as logical or reasonable.
In order to be construed logically and reasonably, and to effectuate the legislative intent, the statute must be read as:
1. Prohibiting the provider from submitting for payment the untimely charges and (if said untimely charges are improperly submitted) requiring the insurer to deny payment as violative of the express provisions of Fla. Stat. § 627.736(5)(b); or
2. Prohibiting, or treating as gratuitous, any payment for charges submitted in violation of the 30-day time requirements.
Support for this conclusion is found in the Supreme Court’s recent opinion in Warren v. State Farm Mutual Auto. Ins. Co., 899 So.2d 1090 (Fla.2005). In upholding the time requirements as constitutional, the Court stated:
[I]ncluded in the no-fault statute is a provision for a procedure through which medical providers may file claims and receive payment for services provided. See § 627.736(5)(a), Fla. Stat. (1999). Section 627.736(5)(b) sets forth the procedures with which treating medical providers must comply in order to receive payment from the no-fault insurer for services rendered.
Prior to 1998, the only limitation placed on the timely submission of medical provider claims to insurance companies was the five-year statute of limitations for a breach of contract claim. As a result, medical providers could potentially allow charges to mount, and submit charges for services rendered over a long period of time, and distant from the time of the original accident. In 1998 ... the Legislature amended section 627.7S6(5)(b) to expressly provide a thirty-day limitation on medical provider billing. Section 627.736(5)(b), Florida Statutes (1999), requires medical providers to postmark claims no later than thirty days following the date of treatment, or be subject to automatic claim denial by the insurer.
* * *
It is apparent by its plain language that the intent of the statutory provision at issue was to impose statutory time limits on the submission of medical bills under the no-fault scheme rather than adherence to the statutory limitations period provided for court actions for breach of contract. Warren, 899 So.2d at 1094, 1095 (emphasis supplied).
Although the Supreme Court in Warren was not faced with the question of an insurer’s authority to pay a bill that violates the time and billing requirements of Section 627.736(5)(b), it is instructive that the Court used the above language in describing the mandatory nature of the time requirements before a provider can receive payment. An interpretation of a statute by the highest court of a state is generally regarded as an integral part of the statute. Seddon v. Harpster, 396 [369] So.2d 662 (Fla. 2d DCA 1979).
I believe that, in order to interpret the statute in a logical and reasonable manner, and to effectuate its legislative purpose, the provision must be read as prohibiting Geico from paying the untimely and improperly-billed charges submitted by Professional Reading, as violative of the provisions of § 627.736(5)(b). Alternatively, the payment by Geico must be characterized as “gratuitous,” and should not be considered as having been made against the limits of the PIP policy. While Geico remains free to pay providers for charges that are untimely or otherwise submitted in express contravention of the statute, such payments should not be considered a “payment” under the PIP policy. By interpreting the statute in this manner, the remaining provisions of Section 627.736 will be effectuated and the clear legislative intent fulfilled.
(Emphasis and footnotes in original).

As this analysis demonstrates, there has been a violation of a “clearly established principles of law resulting in a miscarriage of justice.” Combs v. State, 436 So.2d 93, 95-96 (Fla.1983), cited with approval in Ivey v. Allstate Ins. Co., 774 So.2d 679, 682 (Fla.2000). In this case, the Circuit Court Appellate Division applied the incorrect law in interpreting the statute as elucidated in the dissent, and deviated from the form of law and the rules prescribed for rendering it.

Certiorari granted; order quashed; remanded with directions.

      . Actually, $365.36 remained available under the policy limits of $10,000, so Geico paid that amount to Coral Imaging. Geico denied payment of the remaining amount of the bill ($1934.64).

      . In the context of this statutory provision "may not” is the equivalent of "shall not,” and cannot reasonably be interpreted as permitting the provider to include untimely charges in its bill. Thousands of analogous examples can be found throughout Florida’s constitutional and statutory provisions. See, e.g., Art. Ill, § 8(a), Fla. Const.; Fla. Stat. § 11.062(2)(a); § 11.066(4); § 11.70(3)(d); § 14.29(3)(b), (12); § 20.04(7)(a); § 20.19(6)(f); § 20.23(2)(a)3; § 27.34(2); § 27.711(3); § 28.241(3),(4); § 29.004(10)(d); § 39.012; § 39.013(2); § 44.06(2); § 63.0423(5) and (6); § 90.604. Cf. e.g., Fla. Stat. § 627.4143(3)(b) (provision in same chapter utilizing permissive language "may or may not"); 11.70(5)(d)(same); § 121.091(7)(b) (same); § 154.09(4)(same); § 180.26(same); § 260.012(3)(same); § 475.61 l(l)(a)3 (same), [sic].

      . Regardless of the timeliness of the claim, it is difficult to conceive of another way in which an insurer would be aware that a provider has rendered necessary and reasonable medical services to the insured arising out an automobile accident unless the provider first submits a bill to the insurer.


author: SUAREZ, J.

text:
    Lucy D. HADI, Secretary, Florida Department of Children and Families, Petitioner, v. Enrique CORDERO, Daniel Fontecha and Eugene Roman, Respondents.
    Nos. 3D06-2620, 33D06-2605, 3D06-2604, 3D06-2603.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 2006.
    John J. Copelan, Jr., General Counsel, Department of Children and Families and John Anthony Raymaker, Assistant General Counsel, Tallahassee, and Karla Perkins, Assistant District Legal Counsel, for petitioner.

      Bennett H. Brummer, Public Defender and Valerie Jonas and John Eddy Morrison, Assistant Public Defenders; Charles J. Crist, Jr., Attorney General and Richard L. Polin, Assistant Attorney General; Katherine Fernandez Rundle, State Attorney and Angelica D. Zayas, Assistant State Attorney; Murray A. Greenberg, Miami-Dade County Attorney and Robert A. Du-vall, Assistant County Attorney; Linda Kelly Kearson, General Counsel, Eleventh Judicial Circuit of Florida, for respondents.
    Before FLETCHER, SHEPHERD, and SUAREZ, JJ.
   SUAREZ, J.

The Florida Department of Children and Families (“DCF”) petitions this court for writs of prohibition or, in the alternative, certiorari, to quash the orders of three circuit court judges. Each order under review grants respondents’ petitions for writ of mandamus and directs DCF to take physical custody of respondents, each of whom has been declared mentally incompetent to stand trial, and places them in an appropriate forensic hospital facility for care and treatment to restore their competency to stand trial. Respondents alternatively petition this court for writs of habeas corpus for their release. We treat the petitions for writ of prohibition as petitions for writ of certiorari. See Art. V, § 4(b)(3), Fla. Const.; Fla. R.App. P. 9.030(b)(3); 9.100(c)(1),(e). We deny all petitions.

The respective trial courts have declared each one of the respondents to be mentally incompetent to proceed to trial on felony charges. Each respondent was committed by the trial judge to DCF for restoration of competency and treatment on a finding that he met the criteria for involuntary commitment under chapter 916, Florida Statutes (2006). DCF has placed each on a forensic waitlist for beds in an adult forensic mental healthcare facility. At the present time, there are between fifty-two and eighty-two persons around the state ahead of these three respondents on the waitlist of approximately 300 persons awaiting beds.

As of September 1, 2006, each of the respondents has been housed in a secure unit on the ninth floor of the Miami-Dade County Jail. As of the date of this opinion, DCF has yet to move them to appropriate facilities to receive the forensic treatment needed to regain competency to stand trial. According to the record, each of the respondents suffers from severe and worsening mental problems. Respondent, Eugene Roman, is a paranoid schizophrenic who has been in and out of hospitals for years. In April 2005, he was arrested and later rearrested for possession of marijuana. He was convicted and sentenced to 364 days in jail. While serving that sentence, Mr. Roman was placed in unit 9C in the Miami-Dade County Jail, and six days later, gouged out his eyes and is now blind. He stated that voices told him to hurt himself. Within months after his release, Mr. Roman was rearrested on charges of sexual battery, aggravated battery and kidnapping, and was confined again to the ninth floor where he slashed his wrists and now remains. He is in what has been termed as an overwhelming depressive state, and hears voices telling him that he should hurt himself. Respondent, Daniel Fontecha, a homeless man, has a history of mental illness and repeatedly has been hospitalized. He was arrested on charges of aggravated assault with a deadly weapon, criminal mischief, and resisting an officer without violence. He has been on the ninth floor of the Miami-Dade County Jail for more than eight months where DCF is administering antipsychotic medication. Respondent, Enrique Cordero, was arrested for sexual battery. He is preoccupied with suicide and has auditory hallucinations telling him to kill himself. He has scars on his wrists and arms from various suicide attempts and is in need of psychiatric care. These are but three of many individuals presently languishing on the ninth floor of the Miami-Dade County Jail awaiting services from DCF to restore them to competency to enable them to proceed to trial.

Affidavits of experts attest to deplorable conditions on the ninth floor of the Miami-Dade County Jail. Dr. Joel Dvoskin states that, in his expert opinion, the conditions fall below standards of care for any reasonable mental health practitioner. He further avers that the conditions in unit 9C would likely exacerbate the symptoms of serious mental illness such as the respondents’. He concluded that, the longer a person is confined to 9C, the more treatment would be required to restore him to competency to stand trial.

Each respondent filed a petition for writ of mandamus in the circuit court seeking an order requiring DCF to comply with its statutory duty to accept and place each of them in an appropriate forensic facility or, in the alternative, grant their petitions for habeas corpus. On October 12, 2006, October 17, 2006, and October 24, 2006, the trial judges granted respectively Mr. Roman’s, Mr. Cordero’s, and Mr. Fontecha’s petition for mandamus. Each trial court ordered DCF to comply forthwith with its statutory duty to take physical custody of the respondents and to place each in an appropriate facility for treatment. Lucy Hadi, Secretary of DCF, filed the present Emergency Petition[s] for Writ of Prohibition or Certiorari and Emergency Motion[s] for Stay in each of the cases. We previously granted the motions for stay pending outcome of these proceedings. The proceedings have been conducted on an expedited basis.

The Florida legislature was very specific in drafting the statutes in question. The statutes require DCF to give immediate and appropriate treatment to those ordered incompetent to stand trial due to mental illness:

(1) ADMINISTRATION. — The Department of Children and Family Services is designated the “Mental Health Authority” of Florida. The department and the Agency for Health Care Administration shall exercise executive and administrative supervision over all mental health facilities, programs, and services.

§ 394.457(1), Fla. Stat. (2006)(emphasis added).

Section 916.107, Florida Statutes (2006), states as follows:

(1) RIGHT TO INDIVIDUAL DIGNITY.—
(a) The policy of the state is that the individual dignity of the client shall be respected at all times and upon all occasions, including any occasion when the forensic client is detained, transported, or treated. Clients with mental illness, retardation, or autism and who are charged with committing felonies shall receive appropriate treatment or training. In a criminal case involving a client who has been adjudicated incompetent to proceed or not guilty by reason of insanity, a jail may be an emergency facility for up to fifteen days following the date the department or agency receives a completed copy of the court commitment order containing all documentation required by the applicable Florida Rules of Criminal Procedure.

§ 916.107(l)(a), Fla. Stat. (2006)(emphasis added).

* * *

(4) QUALITY OF TREATMENT.—

(a) Each forensic client shall receive treatment or training suited to the client’s needs, which shall be administered skillfully, safely, and humanely, with full respect for the client’s dignity and personal integrity....

§ 916.107(4)(a), Fla. Stat. (2006)(emphasis added).

Pursuant to Florida Statutes, DCF shall provide treatment for persons ordered mentally incompetent to stand trial. The requirement falls on DCF as soon as a state court enters an order committing the mentally incompetent person for treatment. Local officials may retain physical custody for a period of time following the court’s order, but the inmate is no longer the legal responsibility of local officials once the individual is declared incompetent. Miller v. Carson, 524 F.Supp. 1174 (M.D.Fla.1981); Facyson v. Jenne, 821 So.2d 1169 (Fla. 4th DCA 2002). More than thirty days before the respondents filed their petitions for writ of mandamus, DCF received the commitment papers for each respondent. To date, DCF has yet to transfer any of the respondents from the Miami-Dade County Jail to appropriate forensic facilities.

DCF argues persuasively on appeal, as it did in the trial court, that it does not now have the beds necessary to accommodate, not only these respondents, but dozens of other mentally incompetent individuals around the state. It also argues it lacks the resources on its own, and has not been appropriated funds by the legislature to obtain more beds at this time. DCF admits it has a statutory obligation to accept appropriately committed persons within fifteen days after receipt of the commitment orders. DCF does not deny it received commitment orders for each of the respondents more than thirty days before the petitions for mandamus were filed. DCF argues that it cannot comply with its statutory duties because, as of October 20, 2006, there were only 1,329 adult forensic beds in the DCF state mental health facility system. DCF states that these beds include 917 secure forensic beds and 412 civil forensic step-down beds all of which presently are occupied. In order to immediately place these respondents, DCF claims it would have to jump them over other individuals from around the state who are ahead of the respondents on the forensic waitlist. This court is not unsympathetic to this problem and realizes DCF is a hard-working agency that might be stretched beyond its capacity. But, for two reasons, this argument fails.

First, the Florida Legislature drafted Chapter 916, Florida Statutes, as a mandatory statute. DCF is given no discretion to either comply or not comply with the statutory requirements. The statute states that the intent of the legislature is for DCF to supply appropriate forensic facilities for people like respondents who have been adjudged mentally incompetent to stand trial. The statute states that DCF shall provide appropriate treatment to persons with mental illnesses. It goes on to state that DCF shall administer treatment. Nowhere does the statute give DCF the discretion not to provide, within fifteen days of commitment, the necessary treatment in an appropriate forensic facility because DCF does not have enough beds or funding to meet the State’s need for beds.

Second, this is not the first time statewide that the same issue has arisen and that DCF has raised the same argument of insufficient beds or funds. Our research reveals cases going back at least twenty years. In each of the cases, the court rejected the same argument as raised here.

To prevail on a petition for writ of certiorari, the party seeking review must show that the order under review departs from the essential requirements of law and that the harm resulting from the error cannot be cured on appeal from a final judgment. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097 (Fla.1987). The orders DCF requests this court to quash are orders granting petitions for mandamus ordering DCF to comply forthwith with the statutory duties pursuant to chapter 916, Florida Statutes. ■ In each of these cases, the trial court did not depart from the essential requirements of law. Each trial court simply ordered DCF to comply with its statutory requirements pursuant to chapter 916. A petition for writ of mandamus must allege a violation of a clear legal duty. Jackson v. Fla. Dep’t of Corr., 790 So.2d 381 (Fla.2000). In each case, the petition alleges a violation by DCF of its clear legal duty under chapter 916, Florida Statutes, to take custody of, and to place, each respondent in an appropriate forensic facility within fifteen days of the date of the commitment orders. The official duty required by a writ of mandamus must be ministerial and not discretionary. PCA Life Ins. Co. v. Metro. Dade Co., 682 So.2d 1102 (Fla. 3d DCA 1995). In each case, DCF has no discretion but to comply with its duty pursuant to the Florida Statutes. For all the reasons given above, the petitioner’s requests for writs of certiorari are denied.

This court also denies respondents’ petitions for habeas corpus. Although we have the power to release individuals being detained without legal authority, we decline to do so as release would not be an appropriate remedy in any of these cases at this time.

Petitions for certiorari denied; petitions for habeas corpus denied.

      . See, e.g., Miller v. Carson, 524 F.Supp. 1174 (M.D.Fla.1981); Facyson v. Jenne, 821 So.2d 1169 (Fla. 4th. DCA 2002); Dep’t of Children & Family Servs. v. M.H., 830 So.2d 849 (Fla. 2d DCA 2002); State Dep’t of Health & Rehab. Servs. v. Maxwell, 667 So.2d 980 (Fla. 4th DCA 1996); Dep’t of Health & Rehab. Servs. v. Brooke, 573 So.2d 363 (Fla. 1st DCA 1991); Dep’t of Health & Rehab. Servs. v. Niznik, 548 So.2d 1161 (Fla. 2d DCA 1989)(trial court properly ordered placement of juvenile in appropriate facility providing psychiatric treatment regardless of funding situation of HRS).

      . The issue of separation of powers does not need to be addressed. The writs of mandamus direct only that DCF comply with its statutory duties. Nowhere do the writs attempt to direct DCF how to appropriate or spend its funds.


text:
    Eric S. SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-2148.
    District Court of Appeal of Florida, Third District.
    Dec. 6, 2006.
    Rehearing and Rehearing En Banc Denied April 12, 2007.

      Hirschhorn & Bieber, P.A., and Brian H. Bieber, and Joel Hirschhorn, Miami, for appellant.
    Charles J. Crist, Jr., Attorney General, and Douglas J. Glaid, Assistant Attorney General, for appellee.
    Before GREEN and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   GREEN, J.

This is an appeal from an order compelling the defendant, Eric S. Smith, to submit to an “oral swab” DNA test. We reverse.

In March 1997, the defendant entered a guilty plea to charges of aggravated battery and was sentenced to one year community control followed by two years probation. Later that year, the trial court granted a motion, filed by the defendant, to convert the community control to probation. A year later, in October 1998, the defendant’s probation was terminated by the trial court.

Nearly seven years later, in May 2005, the State of Florida filed an ex parte motion requesting the trial court to order 43 persons, including the defendant, to submit to compulsory DNA “oral swab” samples pursuant to Section 943.325(11), Florida Statutes (2003). The motion was granted. Subsequently, the police appeared, unannounced, at the defendant’s home with the intent of taking the ordered DNA sample. The defendant was not home. Thereafter, the defendant filed a written objection to the State’s motion, which was sustained by the trial court. On rehearing, the court reversed itself and ordered the defendant to comply with the order requiring him to submit to an “oral swab” DNA test. Execution of that order has been stayed pending the outcome of this appeal.

The State’s ex parte motion was brought pursuant to Florida Statute 943.325 (2003), which provides, in pertinent part, that:

(l)(a) Any person who is convicted or was previously convicted in this state for any offense or attempted offense enumerated in paragraph (b), and any person who is transferred to this state under Article YII of the Interstate Compact on Juveniles, part V of chapter 985, who has committed or attempted to commit an offense similarly defined by the transferring state, who is either:
1. Still incarcerated, or
2. No longer incarcerated, or has never been incarcerated, yet is within the confines of the legal state boundaries and is on probation, community control, parole, conditional release, control release, or any other type of court-ordered supervision, shall be required to submit two specimens of blood or other biological specimens approved by the Department of Law Enforcement to a Departmeht of Law Enforcement designated testing facility as directed by the department.
(b)l. Chapter 794, chapter 800, s. 782.04, s. 784.045, s. 810.02, s. 812.133, or s. 812.135.

§ 943.325(1), Fla. Stat. (2003). The defendant, who is neither incarcerated nor under any form of court-ordered supervision, does not fall within the plain language of the statute’s purview. Accordingly, we reverse.

      . This section provides:
      If the Department of Law Enforcement determines that a convicted person who is required to submit blood specimens or other approved biological specimens under this section has not provided the specimens, the department, a state attorney, or any law enforcement agency may apply to the circuit court for an order that authorizes taking the convicted person into custody for the purpose of securing the required specimens. The court shall issue the order upon a showing of probable cause. Following issuance of the order, the convicted person shall be transported to a location acceptable to the agency that has custody of the person, the blood specimens or other approved biological specimens shall be withdrawn or collected in a reasonable manner, and the person shall be released if there is no other reason to justify retaining the person in custody. An agency acting under authority of an order under this section may, in lieu of transporting the convicted person to a collection site, secure the blood specimens or other approved biological specimens at the location of the convicted person in a reasonable manner. If the convicted person resists providing the specimens, reasonable force may be utilized to secure the specimens and any person utilizing such force to secure the specimens or reasonably assisting in the securing of the specimens is not civilly or criminally liable for actions taken. The agency that takes the convicted person into custody may, but is not required to, transport the person back to the location where the person was taken into custody.


author: PER CURIAM.

text:
    EDIS CORPORATION, Appellant, v. Carlos Luis LACOSTE, Appellee.
    No. 3D05-2519.
    District Court of Appeal of Florida, Third District.
    Jan. 3, 2007.
    Rehearing and Rehearing En Banc Denied April 10, 2007.
    Russo & Kavulich and Rex Russo, Coral Gables, for appellant.
    Weissman, Dervishi, Borgo & Norlund and Brian S. Dervishi and Jonathan Baka-larz Truji, Miami, for appellee.
    Before WELLS, SUAREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See City of Miami v. Wynwood Cmty. Econ. Dev. Corp., 933 So.2d 1184 (Fla. 3d DCA 2006) (affirming trial court’s order supported by competent substantial evidence).


text:
    Marie Jeanne JEAN, Appellant, v. Carl DORELIEN, Appellee.
    No. 1D05-3705.
    District Court of Appeal of Florida, First District.
    Jan. 30, 2007.
    Thomas E. Bishop and Cynthia L. Hain of Holland & Knight LLP, Jacksonville; Dwayne E. Williams, Holland & Knight LLP, Miami; John Andres Thornton, Miami Beach; Matthew Eisenbrandt, San Francisco, CA, for Appellant.
    Kurt R. Klaus of Law Offices of Kurt R. Klaus, Jr., Miami, Christian N. Scholin, West Palm Beach, Attorney for Appellee Carl Dorelien.
    Scott M. Behren, Weston, Attorney for Lump Sum Capital, LLC.
    Louisa H. Warren, Tallahassee, Attorney for Florida Department of Lottery.
   PER CURIAM.

Upon consideration of the appellant’s response to the Court’s order of December 15, 2006, the appeal is hereby dismissed as moot.

WEBSTER, POLSTON, and HAWKES, JJ., concur.


text:
    STEELCASE, INC., Appellant, v. OFFICE INTERIORS OF FLORIDA, INC., etc., Appellee.
    No. 3D05-1877.
    District Court of Appeal of Florida, Third District.
    Jan. 31, 2007.
    Carlton Fields and Paul L. Nettleton and Nancy C. Ciampa, Miami, for appellant.
    Restani & McAllister and Maria E. Dal-manieras, Miami; Dittmar & Hauser and Helen Ann Hauser, Coconut Grove, for appellee.
    Before GREEN, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Commercial Garden Mall v. Success Acad., Inc., 453 So.2d 934 (Fla. 4th DCA 1984); see also Dee v. Southern Brewing Co., 146 Fla. 588, 1 So.2d 562 (1941); Rice v. Clement, 184 So.2d 678 (Fla. 4th DCA 1966); Babb. v. Lincoln Auto Fin. Co., 133 So.2d 566 (Fla. 3d DCA 1961); Shannon v. McBride, 105 So.2d 16 (Fla. 2d DCA 1958).


author: SCHWARTZ, Senior Judge.

text:
    Randal J. McGRATH, Appellant, v. WARD NORTH AMERICA, INC., Appellee.
    No. 3D06-542.
    District Court of Appeal of Florida, Third District.
    Feb. 7, 2007.
    Rehearing and Rehearing En Banc Denied May 3, 2007.
    Charles B. Draper, Kissimmee, for appellant.
    Atkinson & Brownell, Miami, and Kryst-ina N. Jirón and John Bond Atkinson and Jeremy M. Kissel, for appellee.
    Before WELLS and CORTIÑAS, JJ„ and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

In this proceeding, the plaintiff, who was injured when a chair at the Holiday Isle Resort and Marina in Islamorada collapsed under him, raised a claim of actionable spoliation against Ward North America, Inc., the corporate adjuster for Holiday Isle’s liability insurer. The basis of the action was that a Ward adjuster took possession of and failed to preserve the chair, purportedly resulting in a reduction of the value of his claim for damages against Holiday Isle. We affirm the dismissal of the action.

Even if, as it must be assumed, the alleged facts are all true, it is apparent that the “spoliation” complained of was committed only by agents or representatives of Holiday Isle, which would give rise, at most, to a presumption of negligence and possible sanctions in the case against the hotel itself, and does not support an independent action for spoliation. See Martino v. Wal-Mart Stores, Inc., 908 So.2d 342 (Fla.2005).

Affirmed.


author: SHEPHERD, J.

text:
    Yenny CARDONA and Jasmine Cardenas, Appellant, v. LYNSTAR CORPORATION, Appellee.
    No. 3D05-1234.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.
    Rehearing Denied April 24, 2007.

      Bilbrough & Marks and Geoffrey B. Marks, Coral Gables, for appellant.
    Harvey D. Rogers, Miami, for appellee.
    Before FLETCHER, WELLS and SHEPHERD, JJ.
   SHEPHERD, J.

Yenny Cardona and Jasmine Cardenas appeal a final summary judgment granting specific performance. Because we find that the movant, Lynstar Corporation, did not meet its burden of proving the absence of genuine issues of material fact, we reverse the judgment entered below.

The record reflects that on July 9, 2003, Lynstar Corporation (Buyer) made a written offer to Jasmine Cardenas (Seller) to purchase Cardenas’s home in Doral Isles. The offer proposed a September 15, 2003 closing. Yenny Cardona, as Seller’s attorney-in-fact for the transaction, responded by agreeing to all terms, except that she crossed out the proposed September 15 closing date in the offer, and penned in August 15, 2003. Although Buyer apparently received the counter-proposal from Seller, it never initialed or otherwise expressly assented to the change. Buyer nevertheless urges that a contract was formed with an August 15, 2003 closing date, and that Seller breached by failing to present Buyer with the necessary documentation to close. Seller claims either that no contract was formed, or, if one was formed, Gustavo Riccobon, a purported representative of Buyer, called Cardona on August 15, spoke to Cardona s husband, and stated that Buyer was unable to close. According to the proofs, Cardona’s husband informed Riccobon that the contract was terminated. The next communication between the parties was service by Buyer on Seller of a specific performance complaint on August 23, 2003.

We review an order granting summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, 760 So.2d 126, 130 (Fla.2000). “Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Id. “The movant must be able to overcome all reasonable inferences of fact which may be drawn against him in favor of the opposing party.” Goodman v. Anthony, 269 So.2d 756, 757 (Fla. 3d DCA 1972).

Agreement on a closing date is a material term in the formation of a real estate contract. See Theocles v. Lytras, 518 So.2d 936 (Fla. 3d DCA 1987). On the record presented, Buyer has not demonstrated the absence of a genuine issue of material fact on agreement on a closing date and, therefore, the existence of a contract. Assuming that a contract exists, there is also a genuine issue of material fact of who breached. For these reasons, we must reverse the judgment of specific performance entered in favor of the Buyer and remand for further proceedings.

Reversed and remanded.

      . Buyer urges that Seller waived its right to deny the existence of the contract by alleging in its counterclaim that its counter-proposal of August 15, 2003 was “presented” and "accepted” by Buyer. Because we consider the counterclaim to be an alternative pleading by Seller, see Fla. R. Civ. P. 1.140(b)(“No defense or objection is waived by being joined with other defenses or objections in a responsive pleading or motion.”), we find no merit to this claim.

      . Sellers allege that Riccobon acted as "director and owner” of Buyer. The precise relationship between Riccobon and Buyer is less than clear.


text:
    Adrian IGLESIAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1645.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.
    Rehearing and Rehearing En Banc Denied May 3, 2007.
    Adrian Iglesias, in proper person.
    Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See Toomajan v. State, 785 So.2d 1275 (Fla. 5th DCA 2001).


author: LAGOA, Judge.

text:
    Bernard G. KIRLIN and The Archdiocese of Miami, Inc., Petitioners. v. Maria H. GREEN, Respondent.
    No. 3D06-1948.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.
    Rehearing and Rehearing En Banc Denied May 9, 2007.
    Gaebe Mullen Antonelli Esco & Dimat-teo and Anne C. Sullivan, Coral Gables, for petitioners.
    Manuel Vazquez, Coral Gables, for respondent.
    Before RAMIREZ, WELLS, and LAGOA, JJ.
   LAGOA, Judge.

Petitioners Bernard G. Kirlin (“Kirlin”), the Archdiocese of Miami, Inc. (“the Archdiocese”), and Victor Pimentel (collectively “Petitioners”), seek a writ of certiorari to quash the trial court’s order denying their motion to dismiss Respondent Maria H. Green’s (“Green”) complaint for pure bill of discovery. We grant the petition for writ of certiorari and quash the order.

I. FACTUAL HISTORY

Green filed her complaint for pure bill of discovery against Kirlin, Pimentel and the Archdiocese. Green’s complaint alleges that during her employment as secretary for the Saint Augustine parish, she discovered that Kirlin had been taking monies from the parish’s coffers to finance his lifestyle. Green further alleges that in response Kirlin dismissed her from her employment and notified her husband that his psychological profile would prevent him from becoming a parish deacon.

Green further alleges that a “prospective lawsuit” would be filed against Kirlin and another parishioner, Victor Pimentel, for misappropriating funds and wrongfully terminating Green. In paragraph 42 of the complaint, Green indicates that such a lawsuit would include at least the following three potential claims: (1) a claim under the Florida Whistleblower Act; (2) an accounting of the parish’s financial records; and (3) a negligent supervision or retention claim against the Archdiocese. Green also indicates that she may file a derivative action on behalf of the Archdiocese if the Archdiocese “does not bring an action on its own behalf against Kirlin and Pimen-tel.” Green alleges that the discovery she seeks “is necessary to ascertain who may be sued and under what theories.” Green further states in paragraph 44 of the complaint that “[wjithout the requested discovery, [Green] will be limited to filing a lawsuit based only on the defendants’ statements and upon information and belief. If this Court grants the pure bill of discovery in this case and the discovery produced indicates that a lawsuit would be groundless or frivolous, this would serve ‘the courts’ as well as the parties’ best interests and advantage.’ ”

Petitioners moved to dismiss the complaint on the ground that it is improper to utilize a pure bill of discovery when a party has enough information to file a complaint, and merely seeks to avoid liability for filing a frivolous lawsuit. The trial court denied the motion to dismiss. Subsequently, the Petitioners sought a motion to stay, which the trial court denied. In the order denying the motion to stay, the trial court also ordered Petitioners to produce within forty-five (45) days the documents sought in Green’s pure bill of discovery.

II. STANDARD OF REVIEW

The party petitioning this Court to issue a writ of certiorari must demonstrate that the trial court departed from the essential requirements of the law, resulting in irreparable harm that cannot be adequately remedied on final appeal. Belair v. Drew, 770 So.2d 1164 (Fla.2000).

III. ANALYSIS

Although the pure bill of discovery remains part of our legal system, its use and usefulness diminished greatly when Florida relaxed its pleading requirements to authorize liberal discovery. See Trak Microwave Corp. v. Culley, 728 So.2d 1177, 1178 (Fla. 2d DCA 1998). The pure bill remains available to “identify potential defendants and theories of liability,” but “may not be used ‘as a fishing expedition to see if causes of action exist.’ ” Mendez v. Cochran, 700 So.2d 46, 47 (Fla. 4th DCA 1997) quoting Publix Supermarkets, Inc. v. Frazier, 696 So.2d 1369, 1371 (Fla. 4th DCA 1997). “Neither is it available simply to obtain a preview of discovery obtainable once suit is filed. Such a use of the bill places an undue burden on the court system.” Mendez, 700 So.2d at 47 (citations omitted).

In this case, the trial court departed from the essential requirements of law by denying Petitioners’ motion to dismiss and allowing Green to proceed with discovery on already identified causes of action against already identified defendants. Nothing in the record demonstrates a justification for Green’s pure bill of discovery. Instead, it is evident from Green’s own complaint that she improperly seeks to utilize the pure bill of discovery in order to determine whether sufficient evidence exists to render her causes of action viable and/or nonfrivolous. A pure bill of discovery, however, is not to be used to determine whether evidence exists to support an allegation, but rather to determine in the absence of an adequate legal remedy “the identity of a proper party defendant or the appropriate legal theory for relief.” Trak Microwave Corp., 728 So.2d at 1178.

In her complaint, Green has already identified the proper party defendants and several potential causes of action: (1) the Florida Whistleblower Act; (2) an accounting; (3) negligent supervision or retention; and (4) a possible derivative action. Indeed, Green’s allegation in paragraph 44 of her complaint supports the conclusion that her “only reason for seeking discovery by means of the pure bill, rather than filing a civil action against Petitioners and then proceeding with discovery in that context, is [her] reluctance to become exposed to claims for [Petitioners’] attorneys fees in filing a frivolous lawsuit without first determining what, if any, evidence supports [her] grounds for recovery.” JM Family Enters., Inc. v. Freeman, 758 So.2d 1175, 1176 (Fla. 4th DCA 2000). This is not the purpose of a pure bill of discovery.

We agree with the Fourth District’s decision in Freeman that allowing a pure bill of discovery under these circumstances would require allowing it “in virtually every case.” This Court will not encourage that type of litigation conduct which, among other things, wastes judicial resources. If Green believes her allegations to be valid, she may file suit. However, she may not utilize the trial court’s resources to go on a pre-suit “fishing expedition” to substantiate her claims. Moreover, should proper discovery lead to additional defendants and causes of action, Florida’s courts allow liberal amendments to the complaint, thus relieving Green of the “necessity” to identify all parties and causes of action prior to filing suit.

Accordingly, we grant the petition, quash the order and remand to the trial court for entry of an order dismissing the complaint for pure bill of discovery as to all the Petitioners.

      . Pimentel filed a motion to adopt Kirlin and the Archdiocese's Petition for Writ of Certio-rari, which this Court granted.

      . This Court stayed the trial court's proceedings pending certiorari review.


text:
    Ulysses S. GRANT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2452.
    District Court of Appeal of Florida, Third District.
    Feb. 21, 2007.
    Rehearing and Rehearing En Banc Denied May 3, 2007.

      Ulysses S. Grant, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, GREEN, and FLETCHER, JJ.
   PER CURIAM.

Affirmed. See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).


author: WELLS, Judge.

text:
    Joanne McGREGOR, Stanley G. Bryan, and Helen Stewart, Petitioners, v. OCEAN HARBOUR OF ISLAMORADO CONDOMINIUM ASSOCIATION, INC., Respondent.
    No. 3D06-1459.
    District Court of Appeal of Florida, Third District.
    March 7, 2007.
    Rehearing Denied April 24, 2007.
    Stanley G. Bryan (Islamorada); David G. Hutchinson and Vincent J. Tubiana, (Key Largo), for petitioners.
    Becker Poliakoff and David H. Rogel and Lilliana M. Fariñas-Sabogal, Coral Gables, for respondent.
    Before RAMIREZ, WELLS, and LAGOA, JJ.
   WELLS, Judge.

We treat the instant petition for writ of certiorari as an appeal from a final judgment following a de novo proceeding in the court below and affirm the judgment in Appellee’s favor. See § 718.1255(4)(k), Fla. Stat. (2006); Fla. Admin. Code R. 61B-45.043(7).


text:
    Ronald F. REID, Appellant, v. Joy Carol COOPER, Appellee.
    No. 3D06-889.
    District Court of Appeal of Florida, Third District.
    March 7, 2007.
    Rehearing Denied April 24, 2007.

      Ronald F. Reid, in proper person.
    Joy Carol Cooper, in proper person.
    Before SUAREZ, ROTHENBERG, and LAGOA, JJ.
   SUAREZ, J.

Ronald F. Reid (“Reid”) appeals the final judgment of injunction for protection against domestic violence without minor children entered against him. We dismiss the appeal as untimely.

Reid and Joy Carol Cooper (“Cooper”) dated for several years. Cooper petitioned for a domestic restraining order on December 14, 2005. The trial court entered a temporary restraining order, without notice, that day and set a hearing for December 21, 2005. On December 21, 2005, the trial court held an evidentiary hearing resulting in the final judgment of injunction for protection against domestic violence being entered against Reid. The final judgment was signed by the trial judge on December 21, 2005, and recorded in the clerk’s office the same day. Reid filed a motion for rehearing on February 22, 2006, which was denied by the trial court on March 9, 2006. Reid filed this notice of appeal on April 7, 2006.

This court has no jurisdiction to hear this appeal as it was untimely filed. The trial court entered the final judgment on December 21, 2005. It was stamped into the clerk’s office on the same day. Reid’s motion for rehearing was not filed until almost two months after entry of the final judgment. Therefore, the motion for rehearing was untimely and a nullity. Fla. R. Civ. P. 1.530(g) (motion for rehearing must be filed within ten days after entry of the judgment). As Reid’s motion for rehearing was untimely, it failed to toll the required thirty day time period after rendition of the judgment in which to file the notice of appeal. Fla. R.App. P. 9.110(b) (notice of appeal must be filed within thirty days of rendition of the order). The notice of appeal was untimely as it was not tolled and was not filed within thirty days of rendition of the judgment. Therefore, this court lacks jurisdiction to hear the appeal.

Appeal dismissed.


text:
    HENRY DEMAYO & BROKERAGE INSURANCE GROUP, INC., Appellant, v. LAW OFFICE OF WEINTRAUB, WEINTRAUB, SEIDEN & ORSHAN; Robert D. Orshan, Albert L. Weintraub; James L. Weintraub; Jan K. Seiden; and Stewart Appelrouth, Appellees.
    No. 3D05-2959.
    District Court of Appeal of Florida, Third District.
    March 7, 2007.

      Sophie DeMayo, for appellant.
    Orshan, Lithman, Seiden, Ramos, Hat-ton & Huesmann, and Robert Lithman, Coral Gables, for the appellees, Law Office of Weintraub, Weintraub, Seiden & Or-shan; Robert D. Orshan, and Jan K. Seiden.
    Carlton Fields, and Steven J. Brodie, and Jeffrey A. Cohen, Miami; and Christine R. Davis, Tallahassee, for appellee, Stewart Appelrouth.
    Before GERSTEN, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Affirmed. See Wilson v. Salamon, 923 So.2d 363, 368 (Fla.2005).


text:
    MORTGAGE ELECTRONIC REGISTRATION SYSTEMS, INC., Appellant, v. Oscar REVOREDO, et al., Appellees.
    No. 3D05-2572.
    District Court of Appeal of Florida, Third District.
    March 14, 2007.
    Morgan, Lewis & Bockius and Robert M. Brochin, Miami, for appellant.
    Jose A. Fuentes, Plantation, for appel-lees.
    Greenberg Traurig and Elliot H. Scherker and Daniel M. Samson, Miami, for Amicus Curiae Chase Home Finance LLC.
    April Carrie Charney, Jacksonville, for Amicus Curiae Jacksonville Area Legal Aid, Inc.
    Before FLETCHER and WELLS, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

As in, and on the authority of, Mortgage Electronic Registration Systems, Inc. v. Azize, - So.2d -, 2007 WL 517842 (Fla. 2d DCA Case No. 2D05-4544, opinion filed, February 21, 2007)[32 Fla. L. Weekly D546], which involved a very similar procedural situation and the identical question of law, we reverse the dismissal below of a mortgage foreclosure action brought by Mortgage Electronic Registration Systems, Inc., entered on the asserted but erroneous conclusion that MERS, which acts essentially as a collection and litigation agent for the current owner of notes and mortgages, see Phyllis K. Slesinger & Daniel McLaughlin, Mortgage Electronic Registration System, 31 Idaho L.Rev. 805 (1995), could not establish its standing to proceed.

Although there is little to add to the Second District’s discussion of the issue, with which we entirely agree, we do note that this decision is in accord with the clear majority of cases which have considered the question of MERS’s standing to maintain mortgage foreclosure proceedings. See, e.g., In re Huggins, 357 B.R. 180 (Bankr.D. Mass. 2006); In re Sina, No. A06-200, 2006 WL 2729544 (Minn.Ct. App. Sept.26, 2006)(unpublished); Mortgage Elec. Registration Sys., Inc. v. Ventura, No. CV 054003168S, 2006 WL 1230265 (Conn.Super.Ct. April 20, 2006)(unpublished); Mortgage Elec. Registration Sys., Inc. v. Leslie, No. CV044001051, 2005 WL 1433922 (Conn.Super.Ct. May 25, 2005)(unpublished); but cf. LaSalle Bank Nat’l Ass’n v. Lamy, 824 N.Y.S.2d 769, 2006 WL 2251721 (N.Y.Sup.Ct.2006)(unreported table decision). To the extent that courts have encountered difficulties with the question, and have even ruled to the contrary of our conclusion, the problem arises from the difficulty of attempting to shoehorn a modern innovative instrument of commerce into nomenclature and legal categories which stem essentially from the medieval English land law. See MERSCORP, Inc. v. Romaine, 8 N.Y.3d 90, 101, 828 N.Y.S.2d 266, 271, 861 N.E.2d 81 (2006)(Kaye, C.J., dissenting in part)(“It is the incongruity between the needs of the modern electronic secondary mortgage market and our venerable real property laws regulating the market that frames the issue before us.”). Because, however, it is apparent — and we so hold — that no substantive rights, obligations or defenses are affected by the use of the MERS device, there is no reason why mere form should overcome the salutary substance of permitting the use of this commercially effective means of business. See 22 Fla. Jur.2d Equity § 64 (2007).

Accordingly, the orders under review are reversed and the cause is remanded for further proceedings to foreclose the mortgage in question.

Reversed and remanded.

      . Unlike Azize, the trial court here went so far as to strike MERS's pleadings as sham. Even if we were to reach an opposite conclusion on the merits, we do not think that the circumstances of this case, in which the court considered improper MERS's perhaps disingenuous attempt to claim the status of a conventional "actual” mortgagee, would justify such a ruling. See Cromer v. Mullally, 861 So.2d 523 (Fla. 3d DCA 2003).

      . Despite the existence of ambiguous language in the Second District opinion as to whether MERS was the “owner and holder of the note and the mortgage” in question, see Azize,-So.2d at-[32 Fla. L. Weekly at D547], we apply the holding that the thing called MERS, see R.K. Arnold, Yes, There is Life on MERS, 11 Prob. & Prop. 32 (July/August 1997), does not lack standing to foreclose to the facts of this case, in which it is clear that, in accordance with the usual practice, MERS was only the holder (by delivery) of the note. See Dasma Invs., LLC v. The Realty Assocs. Fund III, L.P., 459 F.Supp.2d 1294 (S.D.Fla.2006). Although it was called the “mortgagee” in the instrument and acted on behalf of the most recent purchaser-assignee-lender, however, MERS was not — again, as usual — its “owner.” We simply don’t think that this makes any difference. See Fla. R. Civ. P. 1.210(a)(action may be prosecuted in name of authorized person without joining party for whose benefit action is brought); 37 Fla. Jur.2d Mortgages § 519 (2007)(mortgage security follows the note).


text:
    Randy SANDERS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2800.
    District Court of Appeal of Florida, Third District.
    March 14, 2007.
    Rehearing Denied April 24, 2007.
    Randy Sanders, in proper person.
    Bill McCollum, Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before RAMIREZ, WELLS, and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See § 921.16, Fla. Stat. (2005)(when a sentence is silent as to whether two cases charged under a different information or indictment are consecutive or concurrent, the sentences shall run consecutively). See also Whipple v. Department of Corrections, 892 So.2d 554, 557 (Fla. 3d DCA2005).


text:
    Martin L. McCRAY, Petitioner, v. James R. McDONOUGH, Secretary, Department of Corrections, etc., Respondent.
    No. 3D07-488.
    District Court of Appeal of Florida, Third District.
    March 14, 2007.
    Rehearing Denied April 24, 2007.
    Martin L. McCray, in proper person.
    Bill McCollum, Attorney General, for respondent.
    Before SHEPHERD and SUAREZ, JJ, and SCHWARTZ, Senior Judge.
   PER CURIAM.

Petition denied. McCray v. State, 838 So.2d 1213 (Fla. 3d DCA 2003); see Ashley v. State, 850 So.2d 1265 (Fla.2003).