author: VAN NORTWICK, J.

text:
    Paul HAZEALEFERIOU, Appellant, v. LABOR READY and Employer Self Insured Services (ESIS), Appellees.
    No. 1D05-5619.
    District Court of Appeal of Florida, First District.
    Jan. 5, 2007.
    Rehearing Denied Feb. 5, 2007.

      Stephen L. Rosen, Tampa, for Appellant.
    John G. Brady and Benjamin Winter of Brady, Andrews & Winter, Tampa, for Ap-pellees.
   VAN NORTWICK, J.

In this workers’ compensation appeal, Paul Hazealeferiou, claimant, seeks reversal of a final order by which the Judge of Compensation Claims (JCC) dismissed his petition for benefits under the Florida Workers’ Compensation Law. In the order, the JCC ruled that, based upon findings that the employment accident occurred in Alabama, the subject employment agreement was made in Alabama, and no record evidence established that claimant’s employment was principally located in Florida, under section 440.09(1), Florida Statutes (2005), claimant had not established jurisdiction under chapter 440. Because competent substantial evidence supports the JCC’s findings, we affirm.

P & H Stucco and Construction, Inc. (“P & H”) is a stucco, sandblasting, and painting company based in Florida and operating in several southeastern states. Depending on the level of P & H’s business, the company maintains between three and seven employees. P & H has three officers: claimant is vice-president of the company and owns 49% of its capital stock; claimant’s wife is president and owns 51% of the stock; claimant’s daughter is secretary of the company.

P & H began operations in 1978. In early 2003, P & H entered into an agreement with appellee Labor Ready, Inc. (“Labor Ready”), an employee leasing company, under which Labor Ready employed the P & H employees, leased those employees back to P & H, maintained payroll, and provided workers’ compensation and general liability insurance for P & H’s ongoing business in all states in which P & H operated. P & H reached agreement with Labor Ready through Labor Ready’s Florida branch, but dealt with the Labor Ready branch in Tuscaloosa, Alabama for all subsequent matters. Claimant entered into an employment agreement with Labor Ready at the inception of the employee leasing agreement between P & H and Labor Ready. Claimant’s employment documentation with Labor Ready was completed by mail or fax between claimant in Florida and the Labor Ready office in Alabama.

The leasing fee paid by P & H to Labor Ready including a premium for workers’ compensation insurance. The Labor Ready branch manager testified that this premium varied according to the state in which the employment was based. Thus, a work ticket , issued by the Tuscaloosa branch would designate employees as Florida employees if their project was in Florida. Labor Ready would issue paychecks for employees on a weekly basis according to hours worked for P & H.

In September 2003, P & H procured a contract to perform sandblasting work for the State of Alabama. When the project began in October 2003, claimant and his wife traveled to the job site. During the Alabama job, Labor Ready paid payroll through its Tuscaloosa, Alabama branch and charged P & H workers’ compensation premiums based on the Alabama locus.

In December 2004, claimant was injured on the Alabama job. The parties stipulated that the injury occurred on December 8, 2004, and that, at such time, there existed an employer/employee relationship between claimant and Labor Ready. Upon notification of claimant’s injury, the Labor Ready branch manager filed an Alabama Notice of Injury by contacting Labor Ready’s adjustor, appellee Employer Self Insured Services (ESIS). Claimant filed a petition for benefits in Florida. On consideration of claimant’s petition for benefits under chapter 440, Florida Statutes, the JCC found that the contract at issue was the employment contract between claimant and Labor Ready, the contract between claimant and Labor Ready was made in Alabama, and there was no evidence establishing that claimant’s employment was principally located in Florida. Based upon these findings, the JCC dismissed the claim, ruling the claim did not satisfy the requirements of section 440.09(l)(d), Florida Statutes (2005), and that proper jurisdiction was in Alabama. Claimant filed a timely notice of appeal.

Claimant asserts that the contract between P & H Stucco and Labor Ready was made in Florida, his primary residence was in Florida and he was loaned to a company (P & H) principally located in Florida, he was hired by P & H in Florida and his salary and expenses for the Alabama contract were provided by P & H, and all documentation provided by Labor Ready to P & H was sent to P & H’s Florida business address. Based on these facts showing contracts with the State of Florida, claimant argues that the JCC erred in denying jurisdiction to his claim pursuant to section 440.09(l)(d). We cannot agree.

Section 440.09(l)(d), in pertinent part, provides:

If an accident happens while the employee is employed elsewhere than in this state, which would entitle the employee or his or her dependents to compensation if it had happened in this state, the employee or his or her dependents are entitled to compensation if the contract of employment was made in this state, or the employment was principally localized in this state....

§ 440.09(l)(d) (2005), Fla. Stat. (2005). Thus, under section 440.09(l)(d) a claimant injured in an employment accident outside of Florida is entitled to compensation under chapter 440 only if one of the following two factors are established: (1) the contract of employment was made in Florida or (2) the claimant’s employment was principally localized in Florida. We will examine each factor separately.

The Contract of Employment

In determining whether the contract of employment was made in Florida, we must first examine the relevant employee-employer relationship under these circumstances. Section 440.02(15)(a) defines “employee” in the worker’s compensation context as follows:

“Employee” means any person who receives remuneration from an employer for the performance of any work or service while engaged in any employment under any appointment or contract of hire or apprenticeship, express or implied, oral or written, whether lawfully or unlawfully employed...

§ 440.02(15)(a) Fla. Stat. (2005) (emphasis added). This section goes on to define “employer” as follows:

“Employer” means the state and all political subdivisions thereof, all public and quasi-public corporations therein, every person carrying on any employment, and the legal representative of a deceased person or the receiver or trustees of any person. ‘Employer’ also includes employment agencies, employee leasing companies, and similar agents who provide employees to other persons.

§ 440.02(16)(a) Fla. Stat. (2005) (emphasis added). The broad language of these provisions reflects the intent of the legislature to afford expansive reach to employee coverage under Florida workers’ compensation, subject only to narrow exceptions. See 9 Patrick John McGinley, Florida Workers’ Compensation § 6.4 (2006 ed.).

Distinguishing the relevant employer for workers’ compensation purposes in an employee leasing context is more complicated, however, than simply determining who might qualify as an employer under chapter 440. Section 468.529, pertaining specifically to licensed employee leasing companies, provides:

(1) A licensed employee leasing company is the employer of the leased employees ... and shall be responsible for providing workers’ compensation coverage pursuant to chapter 440.

§ 468.529(1) Fla. Stat. (2005). In the workers’ compensation context, however, our analysis does not stop with section 468.529. As Professor Larson explains, under the so-called doctrine of lent employment:

When a[sie] employer lends an employee to another party, that party becomes liable for worker’s compensation only if
(a) the employee has made a contract of hire, express or implied, with the second employer;
(b) the work being done is essentially that of the second employer; and
(c) the second employer has the right to control the details of the work.
When all three of the above conditions are satisfied in relation to both employers, both employers will be liable for worker’s compensation and both will both [sic] have the benefit of the exclusivity defense for tort claims.
Under this doctrine, the lending employer is known as the “general employer” and the borrowing employer, the “special employer.”

3 Arthur Larson & Lex K. Larson, Larson’s Worker’s Compensation Law § 67.01 (2006) (emphasis added); see also Shelby Mut. Ins. Co. v. Aetna Ins. Co., 246 So.2d 98, 100-01 (Fla.1971).

The doctrine of lent employment reflects the dual purpose of ensuring that a lent employee is covered by workers’ compensation and immunizing employers attaining “special employer” status from liability in tort. In Florida, the doctrine’s specific application to employee leasing arrangements is embodied in section 440.11(2), which provides, in pertinent part:

[IJmmunity from liability [other than for workers’ compensation] shall extend to an employer and to each employee of the employer which utilizes the services of the employees of a help supply services company, as set forth in Standard Industry Code Industry Number 7363, when such employees, whether management or staff, are acting in furtherance of the employer’s business. An employee so engaged by the employer shall be considered a borrowed employee of the employer and, for the purposes of this section, shall be treated as any other employee of the employer. The employer shall be liable for and shall secure the payment of compensation to all such borrowed employees as required in § 440.10, except when such payment has been secured by the help supply services company.

§ 440.11(2) Fla. Stat. (2005). For the purposes of this section governing employer immunity from tort liability, employers leasing employees from employee leasing companies become special employers of the borrowed employees. Accordingly, special employers are immune from tort liability and are responsible for providing workers’ compensation benefits, unless such benefits are provided by the employee leasing company.

The seeming disparity between section 440.11(2) (conferring special employer status to companies borrowing employees from employee leasing companies) and section 468.529(1) (conferring employer status to employee leasing companies) is not irreconcilable. In Maxson Construction Company v. Welch, 720 So.2d 588 (Fla. 2d DCA 1998), Maxson hired the claimant and subsequently had him sign documents declaring him to be an employee of AMA, an employee leasing company which leased employees to Maxson and provided those employees workers’ compensation benefits. Claimant was injured on a Maxson project and received workers’ compensation benefits through AMA. Claimant then brought an action in tort against Maxson. The court held that under section 468.529, claimant was an employee of the employee leasing company for workers’ compensation purposes. In addition, the court held that Maxson was immune from tort liability under section 440.11(2), because, through the employee leasing arrangement, “the purpose of the workers’ compensation law was served in accordance with statutory requirements, and [claimant was] not entitled to a second bite at the apple by suing Maxson in tort.” Id. at 590. The Maxson court’s reasoning supports the proposition that, in employee leasing arrangements, where the borrowing employer has secured workers’ compensation through the leasing company, the borrowing employer retains special employer status (and the requisite immunity from tort liability), but the leased employee remains the employee of the employee leasing company. See also Folds v. J.A. Jones Constr. Co., 875 So.2d 700 (Fla. 1st DCA 2004). Where, however, the employee leasing company fails to provide coverage, workers’ compensation liability attaches to the special employer. See TuLane Invs., Inc. v. Orr, 889 So.2d 961, 968 (Fla. 1st DCA 2004).

Under the first factor of section 440.09(1), a claimant is entitled to compensation under chapter 440 “if the contract of employment was made in this state.” “Where an employment contract was made is determined through a consideration of (1) the hiring authority of the person involved in employment negotiations with the claimant, and (2) the place of performance of the conditions of the proposed employment.” Cleveland Consol., Inc. v. Haren, 672 So.2d 592, 593 (Fla. 1st DCA 1996)(quoting Nelson v. McAbee Constr., Inc., 591 So.2d 1015, 1016 (Fla. 1st DCA 1991)).

Claimant concedes that the employee leasing company, Labor Ready, was his employer, as reflected by ample evidence in the record. Claimant’s wife unequivocally testified at the final hearing that appellant was a Labor Ready employee on the date of his accident. Labor Ready’s Alabama branch manager confirmed this assertion, testifying that claimant was a Labor Ready employee from 2003 to 2005 during the Alabama contract, and that claimant’s individual Labor Ready employment documentation was completed at the inception of the employment agreement between P & H and Labor Ready with the Alabama officials of Labor Ready entering into the employment documentation. Most compelling, however, in the pretrial stipulation, the parties stipulated that claimant’s injury occurred at a time during which an employer/employee relationship existed between appellant and Labor Ready in Alabama.

We agree with the JCC that for the purposes of section 440.09(l)(d) the relevant employment agreement here is the contract between claimant and Labor Ready, not the employee leasing agreement between P & H and Labor Ready. The contract between P & H and Labor Ready is not an employment agreement, but an agreement by which claimant could enter into his employment agreement with Labor Ready. Further, the employment agreement between claimant and Labor Ready provides the necessary factual premise to affirm the JCC’s determination that the employment contract was made in Alabama, not Florida. The record contains competent substantial evidence establishing that hiring authority over claimant’s employment was localized in Alabama, and the place of performance of the conditions of claimant’s proposed employment under the agreement was in Alabama. Because we conclude that competent substantial evidence supports the finding that the contract at issue was made in Alabama, claimant has failed to satisfy the first factor of section 440.09(l)(d). Our attention turns to the second factor concerning the principal localization of claimant’s employment.

Principal Localization of Claimant’s Employment

We agree with the JCC that there is insufficient evidence in the record to establish that claimant’s employment was principally localized in Florida. In determining jurisdiction under section 440.09(l)(d), the principal location of the claimant’s employment, not of the employer’s business, is the relevant consideration. Johnson v. United Airlines, 550 So.2d 134, 135 (Fla. 1st DCA 1989); General Elec. v. DeCubas, 504 So.2d 1276, 1277 (Fla. 1st DCA 1986).

In determining the principal locus of employment, this Court has looked to the overall temporal distribution of a claimant’s employment engagement. For example, in DeCubas, claimant was a Florida resident who entered into an employment contract in Virginia with General Electric, a company based out of state. 504 So.2d at 1277. Though claimant was injured in Georgia, this Court found that the JCC had jurisdiction because claimant’s employment was principally localized in Florida. This determination was premised on evidence showing that during his engagement with General Electric, claimant spent 73 percent of his time working in Florida, and 27 percent of his time working in Georgia. Id.

Although the temporal distribution of employment is a critical factor, it is not, itself, dispositive. In Johnson, claimant entered into an employment contract with United Airlines in Illinois. 550 So.2d at 134. Claimant was based in Florida throughout her employment and was primarily assigned to flights originating from and returning to Florida. Moreover, her work was supervised in Florida and she received her paychecks in Florida. Her flights, however, often included overnight layovers in other states. Id. at 135. The JCC held that claimant’s employment was not principally localized in Florida, reasoning that the majority of claimant’s actual flight time on a typical interstate flight was outside Florida airspace. Id. We reversed the JCC’s ruling, holding that claimant’s contacts with Florida were sufficient to establish principal localization of employment in Florida. Id.

In the instant case, claimant was employed by P & H when it commenced operations in 1978 and became an employee of Labor Ready in January 2003, at the inception of the P & H/Labor Ready employee leasing arrangement. Claimant and his wife began work at the Alabama job site in October 2003. Claimant’s Alabama job continued until December 2004, at which time he was injured. Thus, claimant’s employment with Labor Ready spanned approximately 24 months, no less than 13 of which were devoted to the Alabama project. The evidence below establishes that claimant worked exclusively in Alabama during this time. Although claimant’s wife gave general testimony stating that, prior to the Alabama job, P & H used Labor Ready for other projects in several states, including Florida, and that she and claimant traveled to these jobs, there is no evidence in the record showing claimant’s employment through Labor Ready on any of these projects. Further, other than this vague testimony of claimant’s wife, there is no evidence in the record indicating that claimant was engaged in any project other than the Alabama project while he was an employee of Labor Ready from January 2003 to December 2004.

Even if we utilized the entire period of 1978 through 2004, when claimant was employed by either P & H or Labor Ready, the record is silent as to the localization of claimant’s employment prior to January 2003. Accordingly, we agree with the JCC that there is no competent substantial evidence establishing that claimant’s employment was principally localized in Florida. In addition, we find competent substantial evidence to support the JCC’s finding that his employment was localized in Alabama. Thus, we agree with the JCC’s conclusion that claimant’s employment was principally localized in Alabama.

AFFIRMED.

BROWNING, C.J., and WOLF, J., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    EHQF TRUST, Appellant, v. S & A CAPITAL PARTNERS, INC., et al., Appellee.
    No. 4D06-3761.
    District Court of Appeal of Florida, Fourth District.
    Jan. 9, 2007.
    EHQF Trust, Coconut Creek, pro se.
    No appearance for appellee.
   ORDER

PER CURIAM.

The notice of appeal filed by appellant, a trust, was not signed by an attorney licensed to practice law in Florida. Section 454.23, Florida Statutes (2006), prohibiting the unlicensed practice of law, provides no exception for representation of a trust. Although Florida has not previously addressed the issue, other states have concluded that a trustee cannot appear pro se on behalf of the trust, because the trustee represents the interests of others and would therefore be engaged in the unauthorized practice of law. Curry v. Kilgore, 2004 UT App. 112, 2004 WL 808673 (Utah Ct.App.2004); Ziegler v. Nickel, 64 Cal. App.4th 545, 75 Cal.Rptr.2d 312 (Cal.2d 1998); Life Science Church v. Shawano County, 221 Wis.2d 331, 585 N.W.2d 625 (1998); Mahoning County Bar Ass’n v. Alexander, 79 Ohio St.3d 1220, 681 N.E.2d 934 (1997); Beaudoin v. Kibbie, 905 P.2d 939 (Wyo.1995); Back Acres Pure Trust v. Fahnlander, 233 Neb. 28, 443 N.W.2d 604 (1989); In re Ellis, 53 Haw. 23, 487 P.2d 286 (1971).

It is therefore ordered that this appeal will be dismissed unless appellant files an amended notice of appeal signed by an attorney licensed to practice law within twenty days of this order. This appeal is stayed pending compliance with this order.

STONE, KLEIN and HAZOURI, JJ., concur.


text:
    Michael A. RATIGAN, Appellant, v. Susan STONE and Paul Labiner, Appellees.
    Nos. 3D03-3102, 3D03-2831.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 2007.

      Greene, Smith, & McMillan, and Cynthia L. Greene, Miami; and Steven N. Abra-mowitz, for appellant.
    Nancy A. Hass, for appellee Susan Stone; Lawrence A. France, North Miami Beach, for appellee Paul Labiner and Paul Labiner, in proper person.
    Before GERSTEN, GREEN and RAMIREZ, JJ.
   PER CURIAM.

Michael A. Ratigan, (the former husband), appeals the trial courts amended final judgment of dissolution of marriage, denial of his motion for rehearing, and the trial courts award of attorneys fees to the former wife’s fiancée, Paul Labiner, (La-biner). We affirm the amended final judgment and the denial of the motion for rehearing, but we reverse the attorneys fees award to Labiner.

A trial judge has broad discretion in awarding attorneys fees to one party or both parties in proceedings for a dissolution of marriage, support, or child custody. See Rosen v. Rosen, 696 So.2d 697 (Fla.1997). The primary factor a judge considers is the financial resources of the parties. Rosen, 696 So.2d at 700.

Here, the trial judge reviewed the limited financial information provided. The trial judge determined that there was insufficient evidence to establish entitlement to attorneys fees for either party. Thus, we find that the trial judge properly denied the former husbands request for attorneys fees and affirm the amended final judgment.

In addition, a trial judge has discretion in awarding attorneys fees as sanctions for parties engaging in litigation misconduct. See Levy v. Levy, 862 So.2d 48 (Fla. 3d DCA 2003)(emphasis added); Binker v. Binker, 781 So.2d 505 (Fla. 3d DCA 2001). In Levy, this Court upheld an attorneys fees award as sanctions to the former wife after finding the former husband engaged in litigation misconduct by testifying in a misleading fashion, not being forthright with his financial affairs, and failing to abide by the trial courts orders. Levy, 862 So.2d at 52.

Here, the former husband was not forthright with his financial affairs and failed to comply with discovery requests. The trial judge found that the former husband engaged in wrong-doing throughout the trial. We find that the trial judge was justified in awarding attorneys fees as a sanction to the former wife, pursuant to section 57.105, Florida Statutes (2002). See 57.105, Fla. Stat. (2002). Thus, we affirm the trial judges denial of the motion for rehearing.

We find, however, that the trial judge erred in awarding attorneys fees to Labiner in the domestic violence injunction proceeding. Although we understand the trial courts frustration and outrage, there was no statutory authority to award attorneys fees as sanctions in the separately-filed domestic violence case. See Belmont v. Belmont, 761 So.2d 406 (Fla. 2d DCA 2000); Abraham v. Abraham, 700 So.2d 421 (Fla. 3d DCA 1997); Baumgartner v. Baumgartner, 693 So.2d 84 (Fla. 2d DCA 1997); Lewis v. Lewis, 689 So.2d 1271 (Fla. 1st DCA 1997). Therefore, we reverse the award of attorneys fees award as sanctions to Labiner.

Accordingly, we affirm the amended final judgment and the denial of the motion for rehearing, but we reverse the attorneys fees award to Labiner.

Affirmed in part, reversed in part.


author: SHEPHERD, J.

text:
    The STATE of Florida, Petitioner, v. Gregory RANDOL, Respondent.
    No. 3D06-2126.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 2007.

      Bill McCollum, Attorney General, and Angel L. Fleming, Assistant Attorney General, for petitioner.
    Mark Seiden, Miami, for respondent.
    Before FLETCHER, SHEPHERD and SUAREZ, JJ.
   SHEPHERD, J.

By petition for writ of certiorari the State challenges a trial court order excluding from evidence three latent fingerprint reports prepared by Latent Examiner Gilbert Tamez, which physically link four individuals, including the respondent-defendant, Gregory Randol, to one of the alleged criminal venues in a multi-faceted RICO-conspiracy burglary and grand theft prosecution, on the ground that all the reports were furnished by the State after a court-ordered discovery deadline. While permitting Tamez to testify about the content of the reports as to all but defendant, the order nevertheless precludes Tamez from testifying to the content of the report that implicates defendant, effectively precluding the State from presenting any physical evidence of defendant’s presence at the crime scene. Although the State’s preparation and prosecution of this case has been generously described by the trial court below as one of “inadvertent gross[] negligence,” we nevertheless conclude the trial court departed from the essential requirements of law when it barred the State from offering any of the latent fingerprint reports at the trial of this case and precluded Tamez from referencing or testifying to the content of the Randol report without taking the additional required step of considering whether the State’s discovery violations resulted in prejudice to the defense. Accordingly, we grant the petition and quash the order under review.

FACTS

This case is one of seven cases charged by the State since late 1997 arising out of an alleged conspiracy between defendant and others to operate a burglary and grand theft ring during 1996 and 1997. Based upon the record before us, it appears the case as to defendant commenced in 1997 when police were called to investigate a warehouse burglary. Upon arrival at the warehouse, police discovered computer equipment from an earlier robbery that they associated with the conspiracy. The Crime Scene Report inventory done on the date of the warehouse burglary reports recovery of a firearms magazine, a soda can, a beer bottle, and several computer boxes, all with latent fingerprints. Latent comparison reports prepared by Tamez in 1998 identified the fingerprints on some of the recovered items to three known suspects. Although defendant’s latent prints existed on the soda can, defendant was not then a known suspect, and therefore no evaluation of the prints lifted from the soda can was possible. The items were impounded by police pursuant to protocol.

In 2002, defendant was identified as a suspect in the conspiracy based upon information provided to the State Attorney in that year by the Office of the United States Attorney. He then was arrested along with two co-defendants and charged with six counts of RICO conspiracy, violation of RICO, kidnapping with a weapon, armed burglary, and grand theft in the first degree. For the next four years, the case lumbered slowly toward trial, hampered by the death of the lead detective shortly after the information was filed and multiple prosecutorial personnel re-assignments.

Trial was first set for February 13, 2006. On January 17, 2006, less than a month before trial, the State provided the defense with an Amended Discovery Exhibit. This discovery exhibit, listing twenty-three additional witnesses, seven deposition transcripts, and two police reports, was filed nearly three and a half years after defendant had, in August 2002, elected to avail himself of the discovery process afforded him by Florida Rule of Criminal Procedure 3.220(a), which requires the State to disclose all pertinent discovery within fifteen days of the defendant’s election to participate. See Fla. R.Crim. P. 3.220(b)(1). It appears that the prosecutor, the third assigned to the case, had begun to become aware of the other six related cases in the Office of the State Attorney. Defendant filed a motion for State-charged continuance, or, in the alternative, to prohibit the use of the January 17, 2006 discovery materials and witnesses, and for a court ordered discovery deadline.

Understandably frustrated, the trial court, after conducting the required Richardson hearing, cured the evident prejudice to defendant by vacating the order setting the case for trial and ordering the State “to provide the Defendant with any further discovery materials by March 23, 2006.” See State v. Del Gaudio, 445 So.2d 605, 610 (Fla. 3d DCA 1984)(“If the discovery material and information comes too late to permit - the trial to proceed as scheduled, the prejudice is extinguished when the trial is continued.”). Aware of the complexity of the case and cognizant of the multiple personnel changes in the Office of the State Attorney, the trial court found that while the State’s failure to comply with the early discovery obligations imposed upon it by Rule 3.220 was substantial and prejudicial, the violation was “inadvertent” and “grossly negligent” but not “willful” or “intentional” within the parameters established by Richardson. Notably, the January 17, 2006 Amended Discovery Exhibit included, for the first time, Tamez as a potential witness.

On March 23, 2006, the State provided additional discovery, this time forty-one more witnesses, two depositions, two sworn statements, five photo line-ups, thirty-eight pages of police reports, fifteen property receipts, a vehicle rental agreement, prison records for two witnesses for the prosecution, photographs, and two surveillance videotapes. Defendant moved for yet another Richardson hearing, and sought to exclude the coneededly substantial additional filing despite the fact that it technically met the discovery deadline. Defendant argued that “[sjimply because this Honorable Court set a deadline for discovery materials, as requested by the defense, does not preclude the fact that the newly provided discovery materials should have been provided to the defense in a timely fashion.” Although the case had not been re-set for trial, defendant argued that “[t]he prosecution has once again violated the provisions of Rule 3.220 of the Florida Rules of Civil Procedure by surprising defendant and impeding his ability to prepare for trial by providing a tremendous amount of untimely discovery.” The Crime Scene Report inventory of the items on which latent fingerprints were found at the time of the 1997 warehouse burglary was divulged, for the first time, in this disclosure. The court set defendant’s motion for hearing for April 18.

On April 17, the day before the scheduled hearing, the State provided defendant with yet another amended discovery exhibit, a latent fingerprint report authored by Tamez on April 11, 2006, stating that on April 6, 2006, he had performed a comparison evaluation of the fingerprints on the soda can impounded in 1997 and found them to be defendant’s. The print comparison had been prompted by a post-March 23 defense deposition notice to Ta-mez in the instant case, which caused Tamez for the first time to become aware of defendant’s existence and his alleged participation in the burglary and grand theft ring. The assistant state attorney assigned to the case clearly had not previously reviewed the files pertinent to the prosecution of the other alleged co-conspirators with sufficient diligence to consider the possibility that the warehouse prints might provide physical evidence of defendant’s guilt.

At the hearing on the next day, the trial court, again displaying remarkable restraint under the circumstances, denied the motion to exclude the March 23 discovery exhibit despite its extraordinary volume. Although supplied in the last hours of the discovery period, the trial court found that the State “[had] complied] at least to the letter of the Court’s order, [although] maybe not in spirit[,]” and, again, that the actions of the prosecution “[were] not intentional.” However, the trial court found that the April 11 fingerprint report was prepared almost one month after the discovery deadline, and therefore excluded it as a “patent violation of the discovery deadline established by this court.” Tamez also was precluded from referencing or testifying to the content of the report. The decision was made without a Richardson hearing because, in the words of the trial judge, “the prosecution [already has] acknowledged the Court’s previous ruling by stating [in a recently filed pleading] ‘Because the Defendant has already established ... the State failed to comply with its discovery obligations, there is no need to have another Richardson hearing to establish this fact.’ ”

On May 5, 2006, in a memorandum of clarification directed to the trial court, the State requested that the written order memorializing the results of the April 18 hearing expressly identify the April 11 report by the date of its authorship because “Examiner Tamez authored three (3) Latent Fingerprint Reports,” referencing the dates of Tamez’s 1998 submissions. Defendant again cried foul, claiming he had never received or heard of the reports. As if it had not bungled the handling of the prosecution of this case enough, the State was unable to indicate in any of its multitudinous, yet very specific, discovery exhibits that these reports had been produced. As a result, at a hearing held on May 24, 2006, the trial court precluded the State from offering the 1998 reports into evidence on the ground that they too were produced late. However, because Tamez himself had been timely listed as a potential witness, the court determined not to preclude Tamez from testifying to the results of the 1998 evaluations so long as he refrained from referencing the existence of the reports. At this hearing, the trial court set the case for trial eight months later, for February 19, 2007, partially to accommodate defense counsel’s professional commitments.

The State by certiorari seeks redemption from its multiple missteps and oversights. While we, like the trial court, do not in any way condone or approve the State’s conduct in this case, we nevertheless provide relief.

Analysis

As we read the progression of rulings in this case, of the trial court decisions turned solely on whether disclosure was made before or after the court-ordered discovery deadline. Because the latent fingerprint reports were all disclosed after March 23, 2006, they were excluded. Because Examiner Tamez was disclosed before that date, he could be called and testify to the extent of his knowledge as it existed before March 23, 2006, including the results of the 1998 reports. Although Richardson prejudice was argued by defendant, the trial court’s order does not reflect any consideration of whether or not defendant was, in fact, prejudiced. To the contrary, the transcript of the April 18 hearing expressly eschews the need for a Richardson hearing concerning the April 11, 2006 report. In this as well as in failing to conduct a Richardson hearing concerning the subsequent disclosure of the 1998 fingerprint reports, the trial court erred.

Our case law is clear that the failure of either the State or a defendant to comply with a discovery deadline, standing alone, is not dispositive for purposes of determining whether the sanction of exelusion of a witness or other evidence is appropriate. “[A] trial judge must do more than simply ascertain that a discovery rule has been violated. The inquiry must involve a determination of whether the violation resulted in substantial prejudice to the opposing party.” Hernandez v. State, 572 So.2d 969, 971 (Fla. 3d DCA 1990)(quoting Fedd v. State, 461 So.2d 1384, 1385 (Fla. 1st DCA 1984))(reversing a conviction based upon exclusion of testimony of defense witness for failure of defense to include him on witness list without required prejudice determination). See also State v. Muldowny, 871 So.2d 911, 914 (Fla. 5th DCA 2004)(State’s failure to comply with discovery order requiring production of documentation demonstrating that breath testing machine met statutory requirements “caused prejudice and harm to defendants’ ability to ... properly prepar[e] their cases for trial.”); Miller v. State, 636 So.2d 144, 149 (Fla. 1st DCA 1994)(ae-cord)(internal citations omitted); Taylor v. State, 643 So.2d 1122, 1123 (Fla. 3d DCA 1994)(noting that failure to list a witness was neither willful nor substantial and lacked a credible claim of prejudice); Duarte v. State, 598 So.2d 270, 271-72 (Fla. 3d DCA 1992)(accord). As the trial court noted, whether a remedy such as exclusion should be imposed depends on “the totality of the circumstances.” Miller, 636 So.2d at 149. However, “[t]he key question in a situation in which a discovery violation is alleged is whether or not the defendant was significantly prejudiced by the state’s failure to produce the requested evidence.” Jones v. State, 360 So.2d 1293, 1296 (Fla. 3d DCA 1978). Prejudice in this context means the discovery violation must prevent the defendant from properly preparing for trial. See, e.g., Scipio v. State, 928 So.2d 1138, 1147 (Fla.2006); Wilcox v. State, 367 So.2d 1020, 1023 (Fla.1979). Ordinarily, a Richardson hearing must be commenced to determine whether the complaining party has been prejudiced. Scipio, 928 So.2d at 1147 (quoting State v. Schopp, 658 So.2d 1016, 1021 (Fla.1995))(“[0]nly if [an] appellate court can say beyond a reasonable doubt that [the affected party] was not procedurally prejudiced by the discovery violation can the error be considered harmless” thus excusing the failure of a trial court to conduct a Richardson hearing.).

In this case, the trial court cured the substantial discovery violation resulting from the State’s filing of the January 17, 2006 Amended Discovery Exhibit by vacating the order setting the case for trial and granting defendant’s motion to impose a discovery deadline on the State. The State conceded defendant was entitled to relief. At defendant’s request, the case was not even re-set for trial. Two months later, on March 23, 2006, the State delivered an additional, voluminous discovery exhibit of at least equal burden, and, by the time of the April 18 hearing scheduled to hear defendant’s protest of that filing, yet another even more incriminating exhibit — the freshly prepared report of defendant’s fingerprints at the scene. This time, the trial court did not commence another Richardson hearing because, as previously noted, “the prosecution [already has] acknowledged the Court’s previous ruling by stating ‘Because the Defendant has already established ... the State failed to comply with its discovery obligations, there is no need to have another Richardson hearing to establish this fact.’ ” This analysis is legally incorrect. Although there was considerable reason for concern about the prosecutor’s conduct in her preparation and handling of this case — i.e., whether her actions were “inadvertent or wilful” — that determination is significant largely for the purpose of considering whether personal sanctions against the prosecutor were indicated. See supra n. 5. Rather, the key question remained: whether or not there was procedural prejudice to defendant by the State’s violation of the March 23, 2006 deadline by the delayed production of the April 11, 2006 fingerprint report as well as the even later production of the 1998 reports. See Scipio, 928 So.2d at 1149(“pro-cedural prejudice and substantive prejudice are not the same”). Because the trial court failed to consider and rule on this question, we quash the order under review and remand for further proceedings.

Writ granted; order quashed; case remanded for proceedings consistent herewith.

      . The defense points out that this case represents defendant's first alleged criminal involvement.

      . According to the State, one of these co-defendants has entered into a plea agreement with the State and will testify against defendant at the trial of this case. The State has nolle prossed the charges against the other. As a result, the charges presently remain pending only against defendant.

      . Prior to the filing of this Amended Discovery Exhibit, the State previously had listed fewer than twenty witnesses. Remarkably, the State found it necessary to amend its initially timely filed September 2002 discovery compliance some eleven times in the next twelve months to achieve just that degree of compliance.

        .Richardson v. State, 246 So.2d 771 (Fla.1971).

      . Because of the State's status as the miscreant litigant, the trial court imposed the March 23, 2006 discovery deadline only on the State. The defense was therefore at liberty to continue its discovery against the State after the March 23, 2006 discovery deadline.

      . Indeed, we recently have held that "the reasons for the delay in furnishing discovery, that is, was the State's violation inadvertent or willful, are relevant only for the purpose of subjecting counsel for the State to an appropriate sanction pursuant to Florida Rule of Criminal Procedure 3.220(j)(2) (now 3.220(n)(2)).” State v. Rodriguez, 907 So.2d 564 (Fla. 3d DCA 2005). Under this rule, the sanctions “may include ... contempt proceedings against the attorney ... as well as the assessment of costs incurred by the opposing party when appropriate.” Id.


author: CORTIÑAS, Judge.

text:
    Esteva E. MICHAEL, as Personal Representative of the Estate of Claude S. Michael, deceased, Appellant, v. MEDICAL STAFFING NETWORK, INC., d/b/a All Better Nursing and Milton McCall, R.N., et al., Appellees.
    No. 3D05-2878.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 2007.

      Gamba & Lombana and Tomas F. Gam-ba and Hector J. Lombana; Billbrough & Marks and Geoffrey B. Marks and G. Bart Billbrough, Miami, for appellant.
    Carlton Fields and Sylvia H. Walbolt, Tampa, and F. Townsend Hawkes, Tallahassee, and Dean A. Morande, West Palm Beach, for appellees.
    Before FLETCHER and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   CORTIÑAS, Judge.

In this appeal, we must review whether the trial court correctly interpreted this court’s prior opinion in Largie v. Gregorian, 913 So.2d 635 (Fla. 3d DCA 2005), as well as the Florida Supreme Court’s opinion in Kukral v. Mekras, 679 So.2d 278 (Fla.1996), to require a certain level of specificity in naming prospective defendants in corroborating medical expert affidavits served in medical malpractice actions, pursuant to chapter 766, Florida Statutes (2004).

This case arises from the following facts. On February 5, 2002, Claude S. Michael, the decedent, went to Jackson South Community Hospital (“Jackson South”) to receive treatment for a laceration on his forehead. He was admitted to the hospital overnight for observation. During his overnight stay, Mr. Michael began complaining of chest pains. A nurse gave him five doses of nitroglycerin during the course of the night without obtaining a doctor’s order or otherwise consulting with a doctor. The following morning, Mr. Michael’s doctor became aware of his chest pains and diagnosed Mr. Michael with a myocardial infarction. Mr. Michael was transferred to Jackson South’s intensive care unit and then to South Miami Hospital. Mr. Michael passed away later that day at South Miami Hospital.

Prior to the expiration of the statute of limitations, Esteva Michael, the wife of Mr. Michael and personal representative of his estate (“the Plaintiff’), served Jackson South and two doctors who treated Mr. Michael with a notice of intent to initiate litigation pursuant to chapter 766, Florida Statutes. This notice named the prospective defendants as “the Public Health Trust d/b/a Jackson South Community Hospital, and its employees and actual and apparent agents.” Consistent with Rule 1.650(b) of the Florida Rules of Civil Procedure, the notice also indicated that it “operates as notice to any other prospective defendant who on the above date bore a legal relationship to the Public Health Trust d/b/a Jackson South Community Hospital, including any of its agents and/or employees.” See Fla. R. Civ. P. 1.650(b). The notice indicated the prospective defendants’ obligation to participate in informal discovery, and specifically requested information on any other person or entity the prospective defendants contend may be responsible for the negligence. Paragraph 5 of the notice stated as follows:

If you contend that someone other than your agents and/or employees were responsible, in whole or in part, for the occurrence of the negligence that is being alleged by Esteva Michael, as the Personal Representative of the Estate of Claude Michael, please state each such person or entity’s name, address, job title, along with the facts upon which you base your contention that he, she or the entity was responsible.

In addition to sending this notice, the Plaintiff also sent Jackson South a medical expert affidavit indicating that a reasonable investigation into the claim had been conducted. Paragraph 9 of the medical expert affidavit stated:

Specifically, it is my professional opinion, within a reasonable degree of medical probability, that there was a deviation from the accepted standard of care in the care and treatment of Michael S. Claude by the aforementioned physicians and medical providers!] who committed medical negligence which caused and/or substantially contributed to the death of Michael S. Claude, and which included, but was not limited to, the following manner:
a) Failure to timely and appropriately recognize and appreciate Michael S. Claude’s myocardial infarction and related symptoms including, but not limited to, at least five (5) episodes of angina;
b) Failure to timely and appropriately evaluate Michael S. Claude’s myocardial infarction and related symptoms including, but not limited to, ordering additional diagnostic studies including EKGs, cardiac enzymes and cardiology consult;
c) Failure to provide timely and appropriate care and treatment and intervention for Michael S. Claude’s myocardial infarction and related symptoms; and
d) Failure to transfer Michael S. Claude to another hospital and/or facility in a timely manner.

Despite being served with these documents which specifically outlined the basis of the malpractice claim, and specifically requested information as to any other parties involved in the negligence, and despite having an independent legal obligation to disclose such discoverable information, Jackson South delayed for almost an entire year in providing the Plaintiff with the name of the nurse it contends administered the nitroglycerin doses. Instead of abiding by the two agreed-upon extensions of the pre-suit period and their promise to make available medical personnel for sworn statements, Jackson South abruptly denied the Plaintiffs claim, thereby ending the pre-suit period. Accordingly, the Plaintiff filed suit against Jackson South and the two doctors whose names were known, and immediately propounded interrogatories seeking to discover the name of the party responsible for administering the nitroglycerin. Interestingly, the doctors asserted Fabre defenses, and stated in depositions that they could not discern the initials of the nurse who recorded the nitroglycerin doses in the decedent’s medical records nor did they independently recall the identity of that person.

In December 2004, some ten months after first receiving notice of the claim, Jackson South finally advised the Plaintiff that Milton McCall (“McCall”) was the nurse they contend administered the nitroglycerin. Jackson South also disclosed that McCall was employed by Medical Staffing Network (“MSN”), with whom Jackson South had contracted. Immediately upon receiving this information, the Plaintiff sought leave to file an amended complaint to include counts against MSN and McCall. MSN and McCall opposed the Plaintiffs attempt to amend the complaint, alleging that the Plaintiff failed to comply with the pre-suit notice requirement. The trial court allowed the Plaintiff to file an amended complaint, and denied MSN and McCall’s motion to dismiss the amended complaint on the same ground. Subsequently, MSN and McCall moved for summary judgment, arguing that the pre-suit notice was defective. After a hearing, the trial court granted their motion and entered summary judgment in their favor.

Upon review of the trial court’s order and the transcript of the summary judgment hearing, it is evident that the trial court was primarily concerned with the sufficiency of the medical expert affidavit. The trial court found that the issue of service of the notice and affidavit required a determination as to “agency” and the “issue of control.” As the trial court did not decide whether there was a legal relationship between Jackson South, the defendant who received the notice of intent, and MSN and McCall, we remand for such a determination. The finding of such a relationship is relevant to determine whether service on Jackson South could be imputed to MSN and McCall, pursuant to Rule 1.650(b) of the Florida Rules of Civil Procedure.

Directly relevant to this appeal is the trial court’s finding that both the medical expert affidavit and the notice of intent failed to refer to McCall with sufficient specificity.

The Medical Expert Affidavit

The trial court interpreted this court’s decision in Largie to require that the medical expert affidavit and notice of intent list either a name, job title, or job description for each prospective defendant. Because the medical expert affidavit in this case references McCall only as a “health care provider” the trial court found it insufficient as a matter of law. We review an appeal from an order granting summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000).

Chapter 766, Florida Statutes, was enacted because the Florida Legislature recognized that large medical malpractice recoveries had caused medical malpractice liability insurance premiums to rise, thereby causing medical care costs to patients to increase and making medical malpractice liability insurance unavailable to some doctors. § 766.201(a)-(b), Fla. Stat. (2004). The Legislature specifically found:

The high cost of medical negligence claims in the state can be substantially alleviated by requiring early determination of the merit of claims, by providing for early arbitration of claims, thereby reducing delay and attorney’s fees, and by imposing reasonable limitations on damages, while preserving the right of either party to have its case heard by a jury.

§ 766.201(d), Fla. Stat. (2004). Accordingly, the Legislature set forth a detailed procedure for initiating complaints against medical providers arising out of negligence in medical care. Prior to initiating litigation, a plaintiff must mail to the prospective defendants a notice of intent to initiate litigation and a medical expert affidavit. § 766.203(2), Fla. Stat. (2004). The purpose of the notice of intent is to notify the prospective defendants of a potential claim against them, so that they can begin an investigation into their involvement and timely determine whether settling the claim would be appropriate. See Kukral, 679 So.2d at 282 (quoting Stebilla v. Mussallem, 595 So.2d 136, 139 (Fla. 5th DCA 1992)). The purpose of the medical expert affidavit is to assure the defendant(s) that the claim is “not a frivolous medical malpractice claim.” Id. “Obviously, the corroborative medical opinion adds nothing to the Plaintiffs’ notice of their claim.” Id.

In Kukral, the Florida Supreme Court recognized the express legislative purpose behind chapter 766, but instructed that the statute should be construed liberally, in favor of access to courts, a right guaranteed by the Florida Constitution. Kukral, 679 So.2d at 284; see also Weinstock v. Groth, 629 So.2d 835, 838 (Fla.1993); Patry v. Capps, 633 So.2d 9, 11, 13 (Fla.1994). Accordingly, courts throughout the state have liberally construed the requirements of the statute so as not “to deny parties access to the courts on the basis of technicalities.” Faber v. Wrobel, 673 So.2d 871, 873 (Fla. 2d DCA 1995) (citation omitted). However, there is an increasingly disturbing trend of prospective defendants attempting to use the statutory requirements as a sword against plaintiffs.

In Largie, we considered the sufficiency of a medical expert affidavit. Largie, 913 So.2d at 637. In that case, the medical expert affidavit indicated that two named doctors deviated from the standard of care by failing to “do a follow up to [the patient’s] elevated PSA.” Id. The affidavit did not indicate the possibility that any other medical personnel may have been involved, nor did it indicate that the medical expert who signed the affidavit had conducted an investigation into a breach of the standard of care on the part of any other medical personnel. Id. Accordingly, when the patient/plaintiff filed suit against the two named doctors and an unreferenced nurse, the trial court dismissed the nurse from the suit. Id. Although the nurse was properly served with the notice of intent and medical expert affidavit during the pre-suit period, the trial court in Largie held that “each defendant has a right and you have an obligation as plaintiffs lawyer to do a separate investigation as to each one and you must provide a separate affidavit as to the negligence of everybody that you claim was negligent [and y]ou haven’t done it here.” Id. at 638. However, this court, in affirming the trial court’s holding, did not go quite as far. Instead, we noted that “an investigation consists of: (1) review of the case against each potential defendant; (2) consultation with a medical expert; and; (3) written corroboration of negligence by a medical expert.” Id. We also recognized that the requirement of a medical expert affidavit “assures the defendant that the claim was preceded by a reasonable investigation; ‘that there is justification for the Plaintiffs claim, i.e., that it is not a frivolous medical malpractice claim ... [; and] that the claim is legitimate.’ ” Id. at 639 (quoting Kukral, 679 So.2d at 284). We concluded, however, that the affidavit in the case did not fulfill its purpose as it “ma[de] no mention of [the nurse] whatsoever, either by name or job description.” Id.

[I]t ma[de] no reference to the standard of care applicable to a certified registered nurse practitioner or to any deviation from that standard of care; and, it d[id] not suggest, much less corroborate, that any investigation took place with regard to [the nurse] or that any reasonable grounds exist to support the [plaintiffs’] claim against her as expressly mandated by Chapter 766.

Id. As a result, this court concluded that “while the [plaintiffs’] expert affidavit may be sufficient as to the physicians named in it, it fails to demonstrate any investigation as to [the nurse] and is wholly insufficient.” Id.

Given this language and the facts of Largie, we find the trial court misinterpreted Largie as establishing a blanket requirement for medical expert affidavits to contain a name, job title, or job description for each prospective defendant. Such a requirement is inconsistent with the purpose of chapter 766, as explained above, and is contrary to the plain reading of the language of the statute.

Nowhere does the statute indicate that an affidavit must be defendant-specific. As the Fourth District has explained, “nothing in the statute requires that the corroborating expert opinion identify every possible instance of medical negligence.” Columbia/JFK Med. Ctr. Ltd. P’ship v. Brown, 805 So.2d 28, 29 (Fla. 4th DCA 2001)(noting the difficulty of such a requirement at the pre-suit stage and recognizing that “such crucial issues as causation and proximate cause often defy tidy identification and resolution as surgical patients commonly receive care from a battery of physicians, nurses and staff’).

While the statute requires a claimant to investigate the claims against each defendant, it does not require the affidavit to attest to the legitimacy of each claim against each defendant. Instead, section 766.203(2), Florida Statutes, indicates that “[c]orroboration of reasonable grounds to initiate medical negligence litigation shall be provided by the claimant’s submission of a verified written medical expert opinion from a medical expert....” § 766.203(2), Fla. Stat. (2004)(emphasis added). Further, section 766.205(1) refers to the requirement of an investigation “corroborated by medical expert opinion that there exist reasonable grounds for a claim of negligent injury.” § 766.205(1), Fla. Stat. (2004)(emphasis added). Thus, “[t]he expert opinion to be supplied is not one which delineates how the defendants were negligent.” Kukral, 679 So.2d at 282 (quoting Stebilla v. Mussallem, 595 So.2d 136, 139 (Fla. 5th DCA 1992)).

Given the language and purpose of the statute, Largie must be interpreted to hold only that a medical expert affidavit must sufficiently demonstrate that a reasonable investigation into the claim was undertaken. The appearance of a name, job title, or job description in the affidavit is simply one way of showing that a reasonable investigation was done. In contrast to the affidavit in Largie, the affidavit at issue in this case makes clear that health care providers, in addition to the named doctors, contributed to the malpractice, that a reasonable investigation was done into those health care providers, albeit not by name, and that a qualified medical expert found that those health care providers also violated a duty of care in their treatment of the decedent. Thus, even though Nurse McCall was not identified by name, job title, or job description, the affidavit indicates a reasonable investigation was done into the claims, including the claims asserted against Nurse McCall. In other words, a medical expert concluded that the Plaintiffs claims were not baseless. This evidence of a reasonable investigation is sufficient, especially where, as here, the defendant failed to disclose the actual name, job title, or job description of the nurse and staffing agency involved.

The Fifth District recently reached the same conclusion we reach today on facts very similar to the case at hand. See Mirza v. Trombley, 946 So.2d 1096 (Fla. 5th DCA 2006). In Mirza, the Fifth District concluded that the reading of Largie urged by the defendant, that an affidavit must individually name all defendants, was inconsistent with both the language and the purpose of chapter 766. Id. at 1098-99. In reaching that conclusion the Fifth District focused, as we do, on three points. Id. at 1100. First, the language of the statute focuses on corroboration of the claims, not corroboration of each defendant’s involvement. Id. at 1100. Second, the purpose of the affidavit is not to provide notice to each defendant about the claims; it is simply to corroborate that the claim is legitimate. Id. In some cases, like the one at hand, it is not necessary to identify by name, job title or job description each prospective defendant in order to do a reasonable investigation into their involvement, especially when that information is unavailable to the plaintiff. Id. at 1100 (holding that “failure to individually name a particular defendant is not fatally defective, so long as the affidavit otherwise makes it clear that the defendant’s actions were properly reviewed and determined to be negligent prior to filing suit”). Third, a strict specificity requirement would be inconsistent with the Florida Supreme Court’s mandate that chapter 766 “ ‘be interpreted liberally so as not to unduly restrict a Florida citizen’s constitutionally guaranteed access to courtsId. at 1101 (quoting Kukral, 679 So.2d at 284).

The Notice of Intent to Initiate Litigation

Because we disagree with the trial court’s interpretation of Largie as requiring such specificity in medical expert affidavits, we also disagree with the trial court’s extension of Largie to notices of intent, for many of the same reasons. In addition to our concern that such a requirement would be inconsistent with the statutory language and purpose of chapter 766, such a requirement would also directly conflict with Rule 1.650(b) of the Florida Rules of Civil Procedure. As discussed above, Rule 1.650(b) provides that notice to any prospective defendant can be imputed to those persons or entities in a legal relationship with the noticed defendant. See Fla. R. Civ. P. 1.650(b); see also Arch Plaza v. Perpall, 947 So.2d 476, 2006 WL 3208556 (Fla. 3d DCA Nov. 8, 2006). If the Legislature has chosen to allow notice to be imputed to defendants who are not served, we see no reason why the notice should have to name each of those parties individually. Thus, we think the trial court’s determination of whether a legal relationship exists between Jackson South and MSN and McCall will be dispositive as to this issue. In other words, defendants to whom notice can be imputed under Rule 1.650(b) do not need to be listed separately in the notice of intent.

Because we agree with the reasoning of the Fifth District in Mirza, and for the reasons we explained above, we reverse the trial court’s order granting summary judgment in favor of defendants McCall and MSN and remand for further proceedings consistent with this opinion.

Reversed.

      . The notice listed "Jackson South Community Hospital and their agents servants and/or employees,” Camille Baptiste-Smith, M.D., Camille Baptiste-Smith, M.D., P.A., Stuart Joseph, M.D., Stuart Joseph, M.D., P.A., and "any other health care providers who may [have] rendered care and treatment to Michael S. Claude and any entities that may be vicariously liable for their actions and/or omissions.”

      . Jackson South’s denial was accompanied by its own medical expert affidavit which concluded that "the medical Care and treatment rendered to Claude S. Michael met the standard of care For physicians and nurses within this community, and their actions didn’t cause Neither contributed to the patient's demise on 2/6/02 [sic].”

      . The term Fabre defense refers to a defendant's contention that a non-party defendant is wholly or partially responsible for the negligence alleged. See Kay's Custom Drapes, Inc. v. Garrote, 920 So.2d 1168 (Fla. 3d DCA 2006)(citing Fabre v. Marin, 623 So.2d 1182 (Fla.1993) and Vucinich v. Ross, 893 So.2d 690, 694 (Fla. 5th DCA 2005)).

      . We note that the term "health care provider” is defined by statute and, therefore, was used by the Plaintiff as a term of art, not as a vague catch-all. See § 766.202(4), Fla. Stat. (2004).


text:
    Itzhak BAK, Appellant, v. Joyce BAK, Appellee.
    No. 4D06-1348.
    District Court of Appeal of Florida, Fourth District.
    Jan. 10, 2007.
    Rehearing Denied Feb. 19, 2007.
    Itzhak Bak, Dania Beach, pro se.
    No brief filed on behalf of appellee.
   PER CURIAM.

Affirmed. The former husband appeals from an order of contempt. He has failed to present a transcript of proceedings, and thus the appropriateness of the sanctions in the order cannot be addressed, nor can the issue raised with respect to the admissibility of evidence. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). With respect to his claim that the order requires immediate incarceration upon future non-compliance, the order of contempt contains no such mandatory language. All the trial judge did was express a hope that a successor judge would incarcerate the appellant in the event that he were subsequently found to have violated the terms of the final judgment.

WARNER, POLEN and GROSS, JJ., concur.


text:
    Victor Tyrone GHENT, Appellant, v. The STATE of Florida, Appellee.
    No. 05-366.
    District Court of Appeal of Florida, Third District.
    Jan. 10, 2007.
    Bennett H. Brummer, Public Defender, and Valerie Jonas, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Laura Moszer, Assistant Attorney General, for appellee.
    Before GERSTEN, GREEN and CORTIÑAS, JJ.
   PER CURIAM.

Affirmed. See State v. Carr, 549 So.2d 701 (Fla. 4th DCA 1989).


text:
    Edwin CRUZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-1521.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 2007.
    James S. Purdy, Public Defender, and Brynn Newton, Assistant Public Defender, Daytona Beach, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Mongo v. State, 846 So.2d 613, 614 (Fla. 1st DCA 2003).

GRIFFIN, THOMPSON and PALMER, JJ., concur.


text:
    Michael Anthony NARLOCK, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-720.
    District Court of Appeal of Florida, Fifth District.
    Jan. 16, 2007.

      James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Michael A. Narloek, Monticello, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Carlos A. Ivanor, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Robinson v. State, 373 So.2d 898 (Fla.1979); Oliver v. State, 899 So.2d 1195 (Fla. 5th DCA 2005).

THOMPSON, MONACO and TORPY, JJ., concur.


text:
    Stefan E. BRODIE and Elizabeth Brodie, Appellants, v. BAYSIDE VILLAGE EAST CONDOMINIUM ASSOCIATION, INC., etc., et al., Appellees.
    Nos. 3D06-2212, 3D06-2202.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 2007.
    Bloom & Minsker and Joel Minsker; Arnaldo Velez, Coral Gables, for appellant.
    Joseph Jacks and Hugh J. Connolly, Miami; Valle, Craig, Sioli & Lynott and Frank Sioli, Miami, for appellee.
    Before FLETCHER and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Stefan and Elizabeth Brodie, condominium owners, appeal orders compelling arbitration of their claims against their condominium association and directors.

The association and the directors agree with the position of the Brodies. Our review of the record leads us to conclude that the trial court erred in entering the orders. Accordingly, the orders appealed are reversed and the cause is remanded for further proceedings.

Reversed and remanded.


author: FLETCHER, Judge.

text:
    Brent D. KLEIN and Laura M. Klein, Appellants, v. Joel W. ROBBINS, as Miami-Dade County Property Appraiser, and Betty Burrell, as Miami-Dade County Tax Collector, Appellees.
    No. 3D03-1571.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 2007.

      Spencer & Klein and Thomas R. Spencer, Miami, and Peter H. Leavy, for appellants.
    Murray A. Greenberg, Miami-Dade County Attorney and Thomas W. Logue, Assistant Miami-Dade County Attorney, for appellees.
    Before COPE, C.J., and FLETCHER, J., and SCHWARTZ, Senior Judge.
   FLETCHER, Judge.

Brent D. Klein and Laura M. Klein appeal an adverse summary judgment in this action wherein the Kleins are challenging the year 2001 tax assessment valuation on a newly constructed home. At issue is the status of the home in relation to section 192.042(1), Florida Statutes (2001), which provides:

“Improvements or portions not substantially completed on January 1 shall have no value placed thereon. ‘Substantially completed’ shall mean that the improvement or some self-sufficient unit within it can be used for the purpose for which it was constructed.”

Thus, if the Kleins’ home was not substantially completed on January 1, 2001 the assessment valuation for that year is to consist solely of the value of their land as if it were vacant. Although the improvement is not taxed under such a circumstance, this is not an exemption from taxation; rather it is a part of the valuation appraisal process. See Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925 (Fla.2005).

The Property Appraiser determined that the home was substantially completed on January 1, 2001, thus he included the value of the improvement in the 2001 assessment valuation. The Kleins appealed the assessment value to the Value Adjustment Board. Having no success before the Board the Kleins filed the instant action against the Property Appraiser. Various issues were raised by the pleadings, but the case has now boiled down to the sole issue of whether the improvement was substantially completed on January 1, 2001.

We have examined the various documents relating to the summary judgment, and even though it was a close call by the trial court there are disputed facts that compel a reversal of the summary judgment. McQueen v. Roye, 785 So.2d 512 (Fla. 3d DCA 2000)(holding trial court is required to deny summary judgment where even the slightest doubt exists regarding the existence of material issues).

Counsel for the Property Appraiser suggests that we should abandon the present standard for summary judgments and adopt a more “modern” standard. Counsel cites for this proposition a Florida Bar Journal article which he co-authored. While the proposition is interesting we must reject it, as indeed we already have. 5G’s Car Sales, Inc. v. Florida Dep’t of Lato Enforcement, 581 So.2d 212 (Fla. 3d DCA 1991).

Thus we reverse the summary judgment and remand the cause to the circuit court for further proceedings.

      . The land was assessed at $274,327. The improvement was assessed at $451,294.

      . Thomas Logue and Javier Alberto Soto, "Florida Should Adopt the Celotex Standard for Summary Judgments,” Florida Bar J. 20 (Feb.2002). A bit audacious to cite oneself, but then as Frederick the Great recommended "L'audace, l'audace, toujours l'au-dace.”


text:
    Eric ARRIETA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D05-551.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 2007.
    Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Valentina M. Tejera, Assistant Attorney General, for appellee.
    Before COPE, C.J., and GERSTEN, and RAMIREZ, JJ.
   ON MOTION TO CLARIFY COURT’S OPINION-GRANTED

PER CURIAM.

The motion to clarify the court’s opinion is granted. The opinion filed in this cause on November 22, 2006, is hereby withdrawn, and we issue the following clarified opinion in its place.

Affirmed. The one-time comment by the prosecutor during closing argument that the detective and the sergeant would not risk their careers to frame the defendant did not rise to the level of fundamental error, which must “reach down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” Farina v. State, 937 So.2d 612, 629 (Fla.2006).


author: KLEIN, J.

text:
    Benjamin ROOKS, as Personal Representative of the Estate of Harvey Rooks, Appellant, v. Rachel ROOKS, Appellee.
    No. 4D06-674.
    District Court of Appeal of Florida, Fourth District.
    Jan. 17, 2007.
    Laura Bourne Burkhalter of Hark Burk-halter, PL, Boca Raton, for appellant.
    William A. Fleck of Kramer, Ali, Fleck, Hughes, Gelb & Bornstein, Jupiter, for appellee.
   KLEIN, J.

The marriage of Rachel and Harvey Rooks was dissolved in 2002 by a judgment which incorporated a property settlement agreement. After Harvey’s death, in 2004, his son, as personal representative of his estate, filed a motion to set aside the agreement alleging that Rachel had used undue influence, made fraudulent misrepresentations, and failed to financially disclose her assets. The trial court granted Rachel’s motion to dismiss on the ground that the one year period of limitations for filing the Rule 1.540(b) motion to set aside the judgment had expired. Harvey’s estate argues that the motion alleged a fraud on the court, which is not governed by the one year period; however, the Florida Supreme Court has held that allegations of the type made in this case do not amount to fraud on the court. Cerniglia v. Cerniglia, 679 So.2d 1160 (Fla.1996); DeClaire v. Yohanan, 453 So.2d 375 (Fla.1984). We conclude the trial court was correct and affirm.

HAZOURI and MAY, JJ., concur.


author: SUAREZ, J.

text:
    Jessie WILCOX, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-699.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 2007.
    Jessie Wilcox, in proper person.
    Bill McCollum, Attorney General, and Juliet S. Fattel, Assistant Attorney General, for appellee.
    Before RAMIREZ, SUAREZ, and LAGOA, JJ.
   SUAREZ, J.

The defendant appeals the trial court’s order denying his motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800. The lower court attempted to address the problems with the defendant’s sentence below by entering corrected sentences. However, the State concedes that the defendant’s thirty-five-year sentences with fifteen-year minimum mandatory terms for second-degree felonies exceed the maximum sentences permitted by statute. § 775.084(4)(b)2, Fla. Stat. (1989). We therefore reverse and remand for the trial court to correct the portions of the defendant’s sentence that exceed the statutory maximum.

Reversed and remanded for further proceedings.


text:
    Darren Jarrod STANLEY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1233.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 2007.

      Darren Jarrod Stanley, in proper person.
    Bill McCollum, Attorney General, and Richard L. Polin, Bureau Chief, for appel-lee.
    Before COPE, C.J., and GREEN and CORTIÑAS, JJ.
   PER CURIAM.

Darren Jarrod Stanley appeals from the trial court’s order summarily denying his motion to correct illegal sentence pursuant to Rule 3.800(a), Fla. R.Crim. P. We affirm the order because the motion was facially insufficient.

On August 13, 1997, the appellant was charged with committing an armed robbery and battery on a pregnant woman. On June 26, 1998, he entered a guilty plea and was sentenced to fifteen years in prison as a habitual felony offender and prison releasee reoffender. Stanley then filed the subject 3.800(a) motion and claimed that he was sentenced under the 1995 sentencing guidelines, which have since been deemed unconstitutional, see Heggs v. State, 759 So.2d 620 (Fla.2000). He also asserted that he should have been sentenced pursuant to the 1994 guidelines, which would have resulted in a recommended sentence five years lower than that imposed under the 1995 guidelines. A copy of the scoresheet was appended to the motion. The trial court summarily denied the motion without a hearing.

In its response, the State correctly cited at least two reasons why the trial court’s summary denial of Stanley’s motion was legally correct. First of all, as a matter of law, Stanley is not entitled to relief under Heggs because the charged offenses occurred on August 13, 1997. As explained by the Florida Supreme Court in Trapp v. State, 760 So.2d 924, 928 (Fla. 2000), “Heggs challenges” are not applicable to offenses committed after May 24, 1997. Since Stanley’s offenses occurred after the expiration of the window period and after the proper reenactment of the 1995 guidelines, it is clear the his Heggs challenge is facially insufficient.

Next, where, as here, a habitual offender sentence is imposed for offenses committed after October 1988, the guidelines are irrelevant and inapplicable. See Parrish v. State, 780 So.2d 287, 288 (Fla. 3d DCA 2001)(“For crimes committed on or after October 1, 1988, the sentencing guidelines do not apply to habitual offender sentences.”). Thus, again, as a matter of law, Stanley’s motion was facially insufficient because it did not aver facts that would entitle him to relief under Heggs, since Heggs is inapplicable to a defendant sentenced as a habitual offender.

Thus, where as here, it was clear from the face of Stanley’s motion that he was entitled to no relief as a matter of law, we affirm the trial courts summary denial of the same.

Affirmed.

      . In Trapp, the Supreme Court stated:
      [W]e hold that [the] window period for challenging the sentencing guidelines provisions amended in chapter 95-184, Laws of Florida, opened on October 1, 1995, when such amended guidelines provisions became effective, and closed on May 24, 1997, when chapter 97-97, Laws of Florida, reenacted the amendments contained in chapter 95-184 as part of the biennial adoption process. Stated another way, persons such as Trapp who are challenging a sentence imposed under the sentencing guidelines as amended by chapter 95-184 have standing to do so if the relevant criminal offense or offenses occurred on or after October 1, 1995, and before May 24, 1997.

        Trapp, 760 So.2d at 928.


text:
    Coleen A. MILLS, Appellant, v. Dwight CHAI-CHANG, Appellee.
    No. 3D06-2115.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 2007.
    Coleen A. Mills, in proper person.
    Law Offices of Ellis Rubin and Robert I. Barrar, and Robert I. Barrar, Miami, for appellee.
    Before RAMIREZ, SUAREZ, and LAGOA, JJ.
   PER CURIAM.

We deny Dwight Chai-Chang’s motion to dismiss. We treat Coleen A. Mills’ “Request for An Appeal” as her Initial Brief. Mills appeals the trial court’s order denying her Motion to Vacate Judgment. No court reporter was present at this hearing. The trial court’s order includes specific findings of fact regarding the credibility of the witnesses that testified at the hearing. Without a transcript of this hearing, the record presented to us is inadequate to demonstrate reversible error. This Court is therefore required to affirm. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla.1979).

Affirmed.


text:
    Eddie L. RUFFIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2179.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 2007.
    Eddie L. Ruffin, in proper person.
    Bill McCollum, Attorney General, for appellee.

      Before RAMIREZ, SUAREZ, and LAGOA, JJ.
   PER CURIAM.

Eddie L. Ruffin appeals the trial court’s summary denial of his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). In his motion, he raises a double jeopardy issue and also alleges that the trial court erred in enhancing his sentence for burglary of a dwelling to burglary of a dwelling while armed with a firearm. Ruffin has raised a facially sufficient claim for rule 3.800(a) relief that the trial court, by summarily denying the motion, has failed to conclusively refute. Consequently, we reverse and remand for further proceedings. On remand, if the trial court again enters an order summarily denying the post-conviction motion, the trial court shall attach written portions of the record conclusively refuting Ruffin’s claim. See Fla. R.App. P. 9.141(b)(2)(D) (requiring reversal by this court unless the record shows conclusively that the defendant is entitled to no relief).

Reversed and remanded.


author: RAMIREZ, J.

text:
    EASTERN INVESTMENTS, LLC, Appellant, v. CYBERFILE, INC., a Florida corporation, and Amy Smith, jointly and severally, Appellees.
    No. 3D06-247.
    District Court of Appeal of Florida, Third District.
    Jan. 17, 2007.

      M.J. Ejenbaum, for appellant.
    Geller, Geller, Fisher & Garfinkel, Hollywood, for appellees.
    Before RAMIREZ, and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   RAMIREZ, J.

Eastern Investments, LLC, appeals an order granting a motion to dismiss the Amended Complaint with prejudice. We reverse.

Eastern Investments sued Cyberfile, Inc., a Florida corporation, and Amy Smith for fraud. After an agreed order initially granting defendants’ motion to dismiss, Eastern Investments filed its amended complaint, which the defendants again moved to dismiss. In granting the motion, the court gave three reasons: (1) Failure of Eastern Investments to post a nonresident cost bond pursuant to section 57.011, Florida Statutes; (2) Eastern Investments is a foreign entity which had not registered to do business in the State of Florida with the Florida Department of State pursuant to section 608.4511(7), Florida Statutes; and (3) Eastern Investments was not a proper party to bring this action as it lacked standing.

Section 57.011 provides, in pertinent part:

Costs; security by nonresidents
When a nonresident plaintiff begins an action ... he or she shall file a bond with surety to be approved by the clerk of $100, conditioned to pay all costs which may be adjudged against him or her in said action in the court in which the action is brought. On failure to file such bond within 30 days after such commencement or such removal, the defendant may, after 20 days’ notice to plaintiff (during which the plaintiff may file such bond), move to dismiss the action or may hold the attorney bringing or prosecuting the action liable for said costs and if they are adjudged against plaintiff, an execution shall issue against said attorney.

It is undisputed that the defendants never gave the plaintiff the twenty days’ notice as provided for in the statute. We hold that the failure to provide such notice was fatal to the motion to dismiss. We do not believe that a proper substitute for such notice was provided within the defendants’ motion to dismiss listing fifteen different grounds. Nevertheless, in the motion for rehearing, plaintiff alleged that it had complied with the statute. We conclude that the trial court abused its discretion in dismissing the case with prejudice on this ground. See Diaz v. Bravo, 603 So.2d 106, 107 (Fla. 3d DCA 1992) (stating that a motion to dismiss for failure to post a bond pursuant to section 57.011 can be easily remedied).

As to the second ground, section 608.4511(7) provides:

Any limited liability company failing to file an annual report which complies with the requirements of this section shall not be permitted to prosecute, maintain, or defend any action in any court of this state until such report is filed and all fees, penalties, and taxes due under this chapter are paid....

The language of the statute suggests that any failure to comply simply prevents a plaintiff from prosecuting the action, a disability that can be remedied at any point. And that is what we stated in Industrial Nat Mortg. Co. v. Blake, 406 So.2d 103, 104 (Fla. 3d DCA 1981) (“Industrial National could have overcome its litigious disability by the simple expedient of filing the overdue reports and paying the back taxes”)- Here, Eastern Investments alleged in its motion for rehearing: “[t]he matters upon which the court dismissed the amended complaint have been remedied herein.” We conclude that it was an abuse of discretion to dismiss on this ground.

The third basis stated for dismissal is Eastern Investments’ lack of standing. This is also an infirmity that can be easily remedied with an amended complaint by the simple expedient of obtaining an assignment from the signatory of the contract, which plaintiff claims it controls. Florida Rule of Civil Procedure 1.210(a) permits an action to be prosecuted in the name of someone other than, but acting for the real party in interest. See Kumar Corp. v. Nopal Lines, Ltd., 462 So.2d 1178, 1183 (Fla. 3d DCA 1985). It was an abuse of discretion to dismiss with prejudice on this ground.

We therefore reverse and remand with directions to allow Eastern Investments to file a second amended complaint.


author: LaROSE, Judge.

text:
    MEDIA GENERAL OPERATIONS, INC., Appellant, v. UNEMPLOYMENT APPEALS COMMISSION; and Gregg D. McMillen, Appellees.
    No. 2D06-2247.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 2007.
    Steven L. Brannock and Sarah C. Pel-lenbarg of Holland & Knight LLP, Tampa; and L. Michael Zinser and Glenn E. Plosa of The Zinser Law Firm, P.C., Nashville, Tennessee, for Appellant.
    Louis A. Gutierrez, Senior Attorney, Unemployment Appeals Commission, Tallahassee, for Appellee.
    No appearance for Appellee Gregg D. McMillen. '
   LaROSE, Judge.

Media General Operations, Inc. (Media General), appeals the Unemployment Appeals Commission’s (U.A.C.’s) final order finding that Gregg D. McMillen, a former Tampa, Tribune press journeyman, qualified for unemployment compensation benefits. We have jurisdiction. See Fla. RApp. P. 9.030(b)(1)(C); 9.110(a)(3). We affirm.

Mr. McMillen was a long-term employee of the Tampa Tribune. On November 15, 2005, Media General fired him for making a demeaning comment about a company vice president. Apparently disturbed after reading a letter from the vice president to employees concerning labor issues, Mr. McMillen stated, to no one in particular, that the vice president was a “stupid [expletive] moron.” Although the vice president was not present, two other employees overheard the remark and, presumably, reported Mr. McMillen’s comment to management.

Mr. McMillen appealed an initial determination denying him unemployment compensation benefits because of misconduct. The appeals referee reversed that determination. She found that Mr. McMillen’s work history reflected only one warning about an attendance matter. There was no evidence that Mr. McMillen had used or been warned about the use of improper language in the past. An employee manual provided that “employees should refrain from loud, profane or indecent language and name calling.” Yet, the appeals referee heard conflicting testimony about the prevalence and tolerance of profanity in the workplace. The appeals referee resolved these evidentiary conflicts in Mr. McMillen’s favor. She concluded that Mr. McMillen’s intemperate remark was isolated and made when he was upset. The appeals referee concluded that Mr. McMil-len qualified for unemployment compensation benefits because Medial General had not met its burden of showing misconduct as that term is defined in the unemployment compensation statute. See § 443.036(29), Fla. Stat. (2005).

Media General appealed to the U.A.C., which found that competent, substantial evidence supported the appeals referee’s decision. Here, Media General claims that Mr. McMillen’s single comment about a vice president was so egregious as to mandate reversal of the U.A.C.’s final order.

Section 443.036(29) defines misconduct as follows:

“Misconduct” includes, but is not limited to, the following, which may not be construed in pari materia with each other:
(a) Conduct demonstrating willful or wanton disregard of an employer’s interests and found to be a deliberate violation or disregard of the standards of behavior which the employer has a right to expect of his or her employee; or
(b) Carelessness or negligence to a degree or recurrence that manifests culpability, wrongful intent, or evil design or shows an intentional and substantial disregard of the employer’s interests or of the employee’s duties and obligations to his or her employer.

Conduct sufficient to warrant termination is not necessarily sufficient to forfeit unemployment compensation benefits. Vilar v. Unemployment Appeals Comm’n, 889 So.2d 933, 935 (Fla. 2d DCA 2004); Bagenstos v. Fla. Unemployment Appeals Comm’n, 927 So.2d 153, 156 (Fla. 4th DCA 2006); Powell v. Fla. Unemployment Appeals Comm’n, 886 So.2d 420 (Fla. 1st DCA 2004). Indeed, we must construe the statute in favor of Mr. McMillen. See Vilar, 889 So.2d at 935. As our precedent establishes, a single incident of poor judgment or loss of self-control by a longtime employee may not constitute misconduct under the statute. Id.; see also Bivens v. Trugreen LP, 845 So.2d 347, 348 (Fla. 2d DCA 2003) (reversing denial of benefits and holding claimant did not engage in misconduct by using profanity in one voice mail message to his supervisor and on one occasion on sales floor); Cullen v. Neighborly Senior Servs., Inc., 775 So.2d 392, 392 (Fla. 2d DCA 2000) (holding that isolated incident in which claimant raised voice at his supervisor in private office, but in front of two other employees, and possibly used profanity did not constitute misconduct sufficient to deny unemployment compensation benefits).

In assessing whether an employee’s use of inappropriate language rises to the level of statutory misconduct, we consider several factors, including the frequency of the utterances, the presence of fellow employees or clients, the existence of provocation, and the object of the abusive language. Benitez v. Girlfriday, Inc., 609 So.2d 665, 666 (Fla. 3d DCA 1992) (holding that an isolated incident in which an employee used profanity in a telephone conversation with her supervisor did not constitute misconduct sufficient to cut off unemployment benefits). We are also mindful that we must affirm the U.A.C.’s final order if it is supported by competent, substantial evidence. Bagenstos, 927 So.2d at 156. Our record supports the factual determinations made by the appeals referee and subsequent affirmance by the U.A.C.

We do not question Media General’s right to fire Mr. McMillen for his inappropriate display of pique. Nevertheless, we must agree with the U.A.C. that the isolated comment, uttered outside the presence of the vice president, overheard by few, and made by a longtime employee with no history of similar infractions, did not constitute misconduct warranting disqualification from receiving unemployment compensation benefits.

Affirmed.

NORTHCUTT and STRINGER, JJ., concur.


author: POLEN, J.

text:
    Angel MONTERO, Appellant, v. STATE of Florida, Appellee.
    No. 4D05-3823.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.
    Carey Haughwout, Public Defender, and Marcy K. Allen, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   POLEN, J.

Appellant Angel Montero (“Montero”) timely appeals convictions of (1) armed burglary of a dwelling with a dangerous weapon and an assault, and (2) petit theft. Montero was sentenced to life in Florida State Prison with credit for 388 days time served on the burglary conviction and time served for the petit theft.

On appeal, Montero argues, inter alia, that the trial court abused its discretion in admitting Florida Department of Corrections records into evidence for prison re-leasee reoffender sentencing purposes. We disagree and affirm on the basis of Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006), and, as we did in Yisrael, certify conflict with Gray v. State, 910 So.2d 867 (Fla. 1st DCA 2005). See Yisrael, 938 So.2d at 550. We also affirm as to all other issues raised by Montero on appeal.

Affirmed.

WARNER and GROSS, JJ., concur.


text:
    Ilene KAHAN, Appellant, v. GUARDIANSHIP OF Samuel SHEPTOFF, Appellee.
    No. 4D06-767.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.
    Jody Leslie of Leslie & McLaughlin, LLP, Fort Lauderdale, and Nancy W. Gregoire of Bunnell, Woulfe, Kirschbaum, Keller, McIntyre, Gregoire & Klein, P.A., Fort Lauderdale, for appellant.
    Clifford B. Hark of Hark & Burkhalter, PL, Boca Raton, for appellee.
   PER CURIAM.

Affirmed. See Smith v. Lynch, 821 So.2d 1197 (Fla. 4th DCA 2002).

STONE, FARMER and MAY, JJ., concur.


text:
    Rose SPANO, Appellant, v. BB, a minor, by and through her next best friend, Dennis BRUCE, Appellee.
    No. 3D06-2681.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 2007.

      Diane H. Tutt, Fort Lauderdale, for appellant.
    John G. Crabtree, Key Biscayne, for appellee.
    Before CORTIÑAS and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   CORTIÑAS, Judge.

We review a final judgment of injunction for protection against domestic violence enjoining appellant from having any contact with her sixteen year-old daughter. Because we find that the alleged incidents do not meet the definition of domestic violence, and because we find the petitioner has no reasonable cause to believe that she is in imminent danger of becoming a victim of domestic violence, we find the trial court abused its discretion by issuing a permanent injunction. See § 741.30(l)(a), Fla. Stat. (2006). We therefore reverse the order entering the injunction.

We also express our agreement with the Second District that “domestic violence proceedings should not be allowed to become the primary forum in which custody, visitation and support issues are litigated.” O’Neill v. Stone, 721 So.2d 393, 396 (Fla. 2d DCA 1998). Instead, where custody, visitation and support considerations are implicated in the context of alleged domestic violence, the better practice is for the trial court to enter a temporary order under Chapter 741 while directing the parties to litigate custody and visitation matters in family court. See id.; Cleary v. Cleary, 711 So.2d 1302 (Fla. 2d DCA 1998).

Reversed and remanded with directions to dismiss the domestic violence proceedings.

This opinion shall take effect immediately notwithstanding the filing of any motions for rehearing.


text:
    Larry BRYANT, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4799.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.

      Larry Bryant, Bowling Green, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See § 775.084(3)(d)2, Fla. Stat.

STONE, KLEIN and GROSS, JJ., concur.


text:
    The STATE of Florida, Appellant, v. Terumbar AHUA, Appellee.
    No. 3D05-2768.
    District Court of Appeal of Florida, Third District.
    Jan. 24, 2007.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellant.
    Larry R. Handfield, Miami, for appellee.
    Before GERSTEN and FLETCHER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

In accordance with the court’s self-initiated plea bargain and over the state’s specific objection, the trial judge accepted a plea of guilty in exchange for a sentence of 364 days in the county jail, notwithstanding that the defendant was a habitual offender and scored no less than 31.8 months on the guidelines scoresheet. Because there was no reason, valid or otherwise, proffered for the downward departure, the sentence is reversed and the cause is remanded for resentencing within the guidelines or to permit the defendant to withdraw his plea. See § 921.002(l)(f), Fla. Stat. (2004); State v. Rinkins, 646 So.2d 727 (Fla.1994); State v. Bryant, 882 So.2d 401 (Fla. 3d DCA 2004); State v. Paulk, 813 So.2d 152 (Fla. 3d DCA 2002), review denied, 832 So.2d 105 (Fla.2002).

Reversed and remanded.


text:
    James Cory DANIEL, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-76.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.

      Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

Affirmed. Yisrael v. State, 938 So.2d 546 (Fla. 4th DCA 2006); Gurley v. State, 906 So.2d 1264 (Fla. 4th DCA 2005).

STONE, FARMER and MAY, JJ., concur.


author: FARMER, J.

text:
    Efrem HARRELL, Appellant, v. Charlotte HARRELL, Appellee.
    No. 4D06-66.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.
    Esther A. Zaretsky of the Law Office of Esther A. Zaretsky, West Palm Beach, for appellant.
    Katherine H. Donohue of Katherine H. Donohue, P.A., West Palm Beach, for ap-pellee.
   FARMER, J.

We reverse the decision of the trial judge in this proceeding to modify child support based on the emancipation of an adult child. The party seeking modification has the burden of showing a significant change in circumstances, by substantial competent evidence. Bernstein v. Bernstein, 498 So.2d 1270, 1271-72 (Fla. 4th DCA 1986). The trial judge concluded that former wife had not met this burden, yet failed to recalculate monthly child support payments according to the requisite guidelines, the effect of which was to increase the amount of child support for the only remaining unemancipated minor child. Evidence of former husband’s income from certain rental properties and gambling was introduced, but no specific findings were made so as to permit the imputation of such income.

Because we are unable to conduct a meaningful review of the final order without findings of fact as to these and related matters, we reverse and remand for that purpose. See Harbus v. Harbus, 874 So.2d 1230, 1231 (Fla. 4th DCA 2004) (“If the trial court fails to do so, the case must be reversed and remanded for specific findings of fact.”); Tarnawski v. Tarnawski, 851 So.2d 239, 242 (Fla. 4th DCA 2003) (same); Bimonte v. Martin-Bimonte, 679 So.2d 18, 19 (Fla. 4th DCA 1996) (“When imputing income to a party, the trial court must set forth factual findings as to the probable and potential earnings level, source of imputed and actual income, and adjustments to income.”). We caution the trial judge that imputing income from gambling is dependent on reliable evidence that such income is regular and dependable.

Reversed.

GUNTHER, J., and KRATHEN, DAVID H., Associate Judge, concur.


text:
    Steve FLOWERS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-2896.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.
    Rehearing Denied Feb. 28, 2007.
    Steve Flowers, Monticello, pro se.
    No appearance required for appellee.
   PER CURIAM.

Steve Flowers appeals the order summarily denying his rule 3.850 motion for postconviction relief, claiming ineffective assistance of the attorney who represented him at the hearing on his violation of probation (VOP) and his sentencing on revocation of probation. We affirm.

The amended VOP affidavit included four counts, all representing new offenses for which Defendant was arrested, on two separate occasions, while on probation. Defendant claimed his attorney was ineffective in failing to point out to the judge at the VOP hearing that the offenses in counts (3) and (4) had been reduced from felonies to misdemeanors prior to the hearing. Without obtaining a state response on the merits, the trial court summarily denied the motion “for the reasons previously stated by this Court and the 4th DCA.”

Although we have considered previous appeals from this defendant, this court has not previously ruled on the same or a related ground for relief; if the trial court has, it did not attach any portions of the record so indicating. Thus, it is not clear to which previously stated reasons the trial court could have been referring. Nevertheless, we affirm on the merits because Flowers did not demonstrate a reasonable likelihood that the outcome of his VOP hearing would have been any different had counsel pointed out that, of the four offenses on which the amended affidavit of VOP was based, the two felony offenses had been reduced to misdemeanors prior to the hearing.

Affirmed.

WARNER, SHAHOOD and TAYLOR, JJ., concur.


text:
    STATE of Florida, Appellant, v. Anthony RAY, Appellee.
    No. 4D06-978.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.
    Bill McCollum, Attorney General, Tallahassee, and Sue-Ellen Kenny, Assistant Attorney General, West Palm Beach, for appellant.
    Garrett Elsinger, Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See State v. Beach, 592 So.2d 237 (Fla.1992); Kirby v. State, 765 So.2d 723 (Fla. 1st DCA 1999), rev. denied 767 So.2d 461 (Fla.2000).

STONE, FARMER and MAY, JJ., concur.