author: SHAHOOD, J.

text:
    DISTRICT BOARD OF TRUSTEES OF BROWARD COMMUNITY COLLEGE, Appellant, v. Patricia CALDWELL, Appellee.
    Nos. 4D05-4600, 4D06-2539.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2007.
    Rehearing Denied Aug. 6, 2007.

      James H. Wyman of Hinshaw & Culbertson LLP, Fort Lauderdale, for appellant.
    J. Henry Cartwright and Terence J. Watterson of Watterson & Zappolo, P.A., Palm Beach Gardens, for appellee.
   SHAHOOD, J.

The District Board of Trustees of Bro-ward Community College (“Board”) appeals from the trial court’s final judgment ordering that it pay Dr. Patricia Caldwell (“Caldwell”) the sum of $146,488.75 plus interest in unpaid compensation. In this opinion we also address Case No. 4D06-2539 in which the trial court awarded Caldwell attorney’s fees and costs. We reverse both cases because Caldwell failed to exhaust her administrative remedies before filing her action in the trial court.

Caldwell began employment as a provost at Broward Community College’s (“BCC”) Central Campus in Davie in April 1998. Caldwell’s annual contract provided that the Board could suspend or dismiss her “for cause pursuant to law and the rules of the State Board of Education.”

The Board voted to terminate Caldwell after taking a vote at its June 25, 2002 meeting. The vote followed an investigation by the Board’s counsel into various allegations of misconduct made by Caldwell against BCC. The allegations were of improprieties in BCC’s acquisition of property in Miramar and that BCC President Willis Holcombe maintained a hostile work environment with members of his staff. The minutes from the board meeting reflect that the Board chair “recommended the Board authorize President Holcombe to place Caldwell on paid administrative leave until the paperwork can be completed and the termination take effect.”

Caldwell and her attorney attended a “pre-determination hearing” conducted by Holcombe approximately one month after the Board’s vote. The hearing was intended to be Caldwell’s opportunity to present evidence, statement, and argument in the matter. Caldwell did not present any testimony, documents, or other evidence at that time.

Holcombe sent a letter to Caldwell on August 15, 2002, informing her of his decision to uphold the Board’s recommendation that she be terminated for cause. The letter cited problems with Caldwell’s job performance that had previously been disclosed to her. It recited the allegations of impropriety Caldwell had made against BCC and stated that the investigation initiated by the Board had revealed the allegations to be without merit. The letter offered Caldwell the opportunity to resign within a specified period of time or Hol-combe would recommend to the Board that Caldwell be terminated from employment with BCC.

Caldwell’s counsel addressed the Board at its meeting on August 28, 2002, and noted Caldwell’s continuing objection on the grounds that due process had not been provided. The Board voted to accept Hol-combe’s recommendation to terminate Caldwell for cause. Holcombe provided written verification of the Board’s termination for cause to Caldwell the next day.

Caldwell filed a petition with the Board for a full administrative hearing pursuant to section 120.57, Florida Statutes (2002). The Board granted Caldwell’s request. Caldwell then filed a motion to disqualify the Board and transfer the hearing to the Department of Administrative Hearings. The Board denied the motion and elected to conduct the hearing itself. On November 26, 2002, Holcombe sent a letter to Caldwell recommending her termination to the Board. Caldwell filed a writ of prohibition in this court seeking to prohibit the Board from conducting the administrative hearing. This court denied the petition.

Caldwell then filed a complaint against the Board in the trial court that included a count for retaliation in violation of the Florida Whistleblower Act and a breach of contract count. The Board moved to dismiss, alleging, inter alia, that Caldwell had failed to exhaust her administrative remedies. The trial court granted the motion in part, dismissing the whistleblower count with leave to amend. Caldwell amended the whistleblower count. The trial court subsequently granted summary judgment in favor of the Board on Caldwell’s amended whistleblower count, and the case proceeded to trial solely on the breach of contract count.

The jury returned a verdict for Caldwell, finding that the Board did not suspend or dismiss her for cause and that it did not suspend or dismiss her pursuant to the rules of the State Board of Education. The Board again filed a motion to dismiss for lack of subject matter jurisdiction on the basis that the trial court had no jurisdiction because Caldwell had failed to exhaust her administrative remedies. The trial court again denied the motion.

Caldwell moved for attorney’s fees pursuant to section 448.08, Florida Statutes (2005). At a hearing on the Board’s post-judgment motions, the trial court determined that Caldwell was entitled to an award of attorney’s fees. The trial court entered final judgment on the jury verdict and on its finding of entitlement to attorney’s fees, reserving jurisdiction to determine the amount of fees to award. After a hearing at which both parties presented expert testimony on the amount of attorney’s fees, the trial court awarded Caldwell an additional $248,866.75 in fees.

The Board argues on appeal that the trial court erred in failing to grant its motion to dismiss for failure to exhaust administrative remedies. The Board also argues that since failure to exhaust administrative remedies goes to the subject matter jurisdiction of the court to hear a matter, the trial court should have granted the Board’s motion to dismiss for lack of subject matter jurisdiction. We agree.

As a general rule, one seeking judicial review of administrative action must first exhaust such administrative remedies as are available and adequate to afford the relief sought. A reviewing court may not entertain a suit when the complaining party has not exhausted available administrative remedies. Orange County, Fla. v. Game & Fresh Water Fish Comm’n, 397 So.2d 411 (Fla. 5th DCA 1981). The doctrine of exhaustion of administrative remedies is based on the need to avoid prematurely interrupting the administrative process, and to enable the agency or association to apply its discretion and expertise in the first instance to technical subject matter. Baillie v. Dep’t of Nat. Res., Div. of Beaches & Shores, 632 So.2d 1114 (Fla. 1st DCA 1994). The exhaustion doctrine promotes judicial efficiency by giving the agency or association an opportunity to correct its own mistakes, thereby mooting controversies and eliminating the need for court intervention. DeCarlo v. Town of West Miami 49 So.2d 596 (Fla.1950).

Fla. High Sch. Athletic Ass’n v. Melbourne Cent. Catholic High Sch., 867 So.2d 1281, 1286 (Fla. 5th DCA 2004).

There are three recognized exceptions to the rule requiring the exhaustion of administrative remedies. The first is where the party seeking to bypass the usual administrative channels can demonstrate that no adequate administrative remedy remains available under Chapter 120. The second is where an agency acts without colorable statutory authority clearly in excess of its delegated powers. The third applies to constitutional issues. Fla. Dep’t of Agric. & Consumer Servs. v. City of Pompano Beach, 792 So.2d 539, 545-47 (Fla. 4th DCA 2001).

Caldwell’s contract was expressly made subject to “all applicable laws enacted by the Legislature and all applicable administrative rules adopted or promulgated by the State Board of Education.... ” Thus, rule 6A-14.0411(6), Florida Administrative Code (2002), was part of Caldwell’s contract. That rule provided a dismissal procedure for employees in Caldwell’s classification whereby a petition specifying the charges is filed with the Board and served on the employee. The rule provided that “no such employee may be dismissed during the college year without opportunity to be heard at a public hearing after at least fourteen (14) days notice of the charges against the employee and of the time and place of hearing.” The rule specified that the public hearing would be in accordance with section 120.57, Florida Statutes.

The Board failed to follow the correct procedure in terminating Caldwell. The rule contemplated a petition specifying the charges followed by a hearing. Instead, the Board first recommended termination, President Holcombe conducted his hearing and made a recommendation of termination, and the Board accepted the recommendation. However, the Board realized its mistake and granted Caldwell’s request for an administrative hearing. Regardless of the procedural errors to that point, Caldwell was going to receive due process. Caldwell abandoned the process when it became clear that the Board would be the body to conduct that hearing.

Caldwell has failed to demonstrate or even argue that her case falls within one of the three exceptions to the exhaustion rule set forth above. Instead, Caldwell essentially argues that she was not required to exhaust administrative remedies because the process of her termination was so flawed. We do not agree that the Board’s errors excused Caldwell from the responsibility to exhaust her administrative remedies. The failure to exhaust administrative remedies deprived the trial court of subject matter jurisdiction over the breach of contract claim. See City of Coral Gables v. Fortun, 785 So.2d 741, 742 (Fla. 3d DCA 2001)(finding that the trial court lacked subject matter jurisdiction to hear case where suit was premature because city commission had not yet taken final action).

We accordingly reverse and remand with directions to the trial court to vacate the final judgment in this case and to grant the Board’s motion to dismiss for failure to exhaust administrative remedies. By this holding all other issues raised by the Board and Caldwell’s issue on cross-appeal are rendered moot. Further, by this ruling the trial court’s final judgment for attorney’s fees and costs is reversed as moot.

Reversed and Remanded with directions.

GROSS and MAY, JJ., concur.

      . Case No. 4D06-2539 was consolidated with Case No. 4D05-4600 by this court for the limited purpose of assignment to the same panel for review and to be heard at the same time.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Raymond PERRY, Petitioner, v. Ken MASCARA, Sheriff of St. Lucie County, et al., Respondents.
    Nos. 4D07-939, 4D07-1218.
    District Court of Appeal of Florida, Fourth District.
    June 13, 2007.
    Raymond Perry, Fort Pierce, pro se.
    No response required for respondent.
   PER CURIAM.

In two previous cases in this court, petitioner filed a number of confused and improper pro se pleadings, and this court cautioned him against frivolous filings. In those two cases alone, petitioner filed more than twenty-five applications raising confused and frivolous claims and alleging a vast conspiracy by government officials to keep him incarcerated. Despite two prior warnings, petitioner has continued to abuse the court system by initiating frivolous proceedings. We now impose the sanction of no longer accepting his pro se filings. -

In the initial wave of filings in case number 4D06-2412, petitioner filed approximately twenty confusing and frivolous motions, petitions, notices, and other papers. Because it appeared from the face of some of those documents that petitioner was seeking to represent himself in his pending criminal case, this court ordered the state to show cause why the trial court should not be compelled to address petitioner’s requests for self-representation. The state’s response established that the trial court had followed the proper procedures and had permitted petitioner to represent himself.

Petitioner’s allegation that he had been denied self-representation was moot, and his other filings were without merit or procedurally improper. Petitioner continued filing additional documents demanding that the charges against him be forever dismissed and demanding his immediate release from custody. This court dismissed the more than twenty documents filed by petitioner and cautioned him that his excessive filing of frivolous documents was interfering with this court’s ability to administer justice and that continued filing of frivolous or abusive papers would result in this court no longer accepting his pro se filings.

Despite this admonition, petitioner continued his confused and abusive filings. In case number 4D06-5007, almost immediately after dismissal of the first wave of filings, petitioner filed four more separate documents, some of which attempted to appeal non-appealable, non-final orders and continued to allege claims of a vast conspiracy to deprive him of due process. Petitioner claimed that he had more than 15 pro se motions pending in the trial court, including (among many other strange requests) a motion to compel the arresting officer to submit to a polygraph examination. Petitioner once again stridently demanded that this court forever dismiss the charges against him and order him immediately released from custody. None of the documents established any basis for relief in this court.

Before this court could dismiss this second barrage of papers wholly without merit, petitioner sought to compel the state to respond to discovery requests that he had filed less than two weeks prior. This action was without merit. But again, before an order dismissing the latest filing could issue, petitioner filed yet another frivolous petition seeking to compel the sheriff to file criminal charges against the arresting officer.

Throughout these proceedings, petitioner has attempted to micromanage his pending criminal case by initiating numerous procedurally improper and frivolous actions in this court.

An order dismissing this second wave of filings eventually issued, and petitioner was cautioned for a second, and final, time that continued frivolous and abusive filing would result in this court no longer accepting his pro se actions.

This brings us to the current case initiated by petitioner. Clearly, he will not heed the warnings. Petitioner has filed three more mandamus petitions, one of which is a duplicate of a previously filed petition. The petitions continue to attempt to micromanage the pending criminal case and again allege that the sheriff is preventing petitioner from pressing criminal charges against the arresting officer.

Before this court could take any action on these latest filings, petitioner filed more papers causing yet another case to be set up. This court consolidated these cases, 4D07-939 and 4D07-1218, and dismissed the numerous petitions by order. Petitioner was then ordered to show cause why the sanction of no longer accepting his pro se filings should not be imposed.

Petitioner has replied and, having failed to show any good cause why sanctions should not be imposed, we hereby impose the sanction of no longer accepting his pro se filings. State v. Spencer, 751 So.2d 47 (Fla.1999). In the future, this court will accept legal documents filed on petitioner’s behalf only if filed by an attorney licensed to practice law in Florida.

After this court’s order to show cause against sanctions issued, petitioner initiated yet another proceeding in this court. As with all of petitioner’s filings, the latest papers again demand dismissal of the charges against him and immediate release from custody. We dismiss this latest filing as it also fails to establish any legitimate claim for relief.

In addition to the numerous papers petitioner has filed in this court and in the court below, petitioner alleges that he has filed documents with the FBI, FDLE, county commissioners, city commissioners, Governor Charles Crist, the NAACP, the ACLU, and federal courts.

We are mindful that petitioner has been permitted to represent himself in the trial court in his pending criminal case and that he has a right of access to courts. The right to self-representation, however, is not absolute and does not entitle petitioner to abuse the court system. See Thomas v. State, 867 So.2d 1235, 1238 (Fla. 5th DCA 2004) (stating that “[i]n order to be entitled to self-representation, a defendant must show that he or she has the ability and willingness to abide by the rules of procedure and courtroom protocol” and that “ ‘[t]he right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law' ”) (citations omitted). See also Jones v. State, 449 So.2d 253, 259 (Fla.1984) (holding that exercise of right to self-representation “is not a license to abuse the dignity of the court or to frustrate orderly proceedings”).

Nor is the right the same in appellate courts. Martinez v. Court of Appeal of California, 528 U.S. 152, 120 S.Ct. 684, 145 L.Ed.2d 597 (2000) (recognizing that defendant does not have a constitutional right to self-representation in an appellate court). See also Davis v. State, 789 So.2d 978 (Fla.2001); Hill v. State, 656 So.2d 1271, 1272 (Fla.1995) (explaining that an appellate court has discretion in determining whether to accept pro se filings). The sanction imposed today comes after much restraint and two explicit warnings. Petitioner’s wanton filing is taxing this court’s limited resources.

Finally, we note that the trial court has the power to terminate petitioner’s self-representation if he continues to abuse the court system. “[T]he trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.” Faretta v. California, 422 U.S. 806, 834 FN. 46, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) (citing Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970) (where defendant’s exclusion from courtroom due to disruptive behavior was found constitutional)).

FARMER, GROSS and HAZOURI, JJ., concur.


author: WALLACE, Judge.

text:
    BON SECOURS-MARIA MANOR NURSING CARE CENTER, INC., d/b/a Bon Secours-Maria Manor, a Florida corporation, Petitioner, v. Bettye SEAMAN, as Personal Representative of the Estate of Naomi Githens, deceased, Respondent.
    No. 2D06-5726.
    District Court of Appeal of Florida, Second District.
    June 15, 2007.
    Thomas A. Valdez and Sheila K. Nicholson of Quintairos, Prieto, Wood & Boyer, P.A., Tampa, for Petitioner.
    Jay P. Dinan of Dinan, Catania, LLC, Tampa, for Respondent.
   WALLACE, Judge.

Bon Secours-Maria Manor Nursing Care Center, Inc., d/b/a Bon Secours-Ma-ria Manor, a Florida corporation (Bon Sec-ours), petitions for review by common law certiorari of a circuit court order that disqualified its counsel from the defense of an action brought by Bettye Seaman, as personal representative of the Estate of Naomi Githens, deceased, for the alleged violations of a nursing home resident’s rights. Because the circuit court departed from the essential requirements of the law in entering the order disqualifying Bon Sec-ours’ counsel, we grant the petition and quash the order.

The Factual Background

When Ms. Seaman filed the nursing home rights action against Bon Secours in October 2003, she was represented by Mr. Jay Dinan. At that time, Mr. Dinan was an associate with the law firm of Santa Lucia & Thomas, P.A., where Robert Santa Lucia was a partner. Since June 2005, the law firm of Quintairos, Prieto, Wood & Boyer, P.A. (the Quintairos law firm), has defended the action on behalf of Bon Sec-ours.

In 2006, a potential conflict of interest arose when the Santa Lucia & Thomas law firm dissolved and Mr. Santa Lucia became a partner at the Quintairos law firm. Mr. Santa Lucia’s move to the Quintairos law firm resulted in a situation where that firm was representing Bon Secours in a matter that was directly adverse to the interests of Ms. Seaman, their new partner’s former client. Under these circumstances, a question arose concerning whether Mr. Santa Lucia’s move to the Quintairos law firm should disqualify the firm from continuing to represent Bon Secours in the defense of the action brought by Ms. Seaman. This question became ripe for decision when Mr. Di-nan — who continued to represent Ms. Seaman — filed a motion on her behalf to disqualify the Quintairos law firm from further representation of Bon Secours.

Jurisdiction and the Standard of Review

Disqualification of counsel is “an extraordinary remedy that should be used most sparingly.” Akrey v. Kindred Nursing Ctrs. E., L.L.C., 837 So.2d 1142, 1144 (Fla. 2d DCA 2003) (citing Legion Ins. Co. v. Bank of Am., N.A., 807 So.2d 690 (Fla. 2d DCA 2002)). Because disqualification denies a party its counsel of choice, it is a material injury without appellate remedy. Id. For this reason, review of an order of disqualification by certiorari is appropriate, and a reviewing court may grant the writ where the petitioner can demonstrate that the order disqualifying counsel departed from the essential requirements of law. Id. (citing Pinebrook Towne House Ass’n v. C.E. O’Dell & Assocs., 725 So.2d 431 (Fla. 2d DCA 1999)).

Rule 4-1.10(b) and “Acquiring Confidential Information”

A case “involving imputed disqualification of a law firm based on the prior representation of a newly associated attorney [is] governed by rule 4 — 1.10(b) of the Rules Regulating the Florida Bar.” Scott v. Higginbotham, 834 So.2d 221, 223 (Fla. 2d DCA 2002) (citing Gaton v. Health Coalition, Inc. 745 So.2d 510, 511 (Fla. 3d DCA 1999), and Koulisis v. Rivers, 730 So.2d 289, 293 (Fla. 4th DCA 1999)). The rule provides:

(b) Former Clients of Newly Associated Lawyer. When a lawyer becomes associated with a firm, the firm may not knowingly represent a person in the same or a substantially related matter in which that lawyer, or a firm with which the lawyer was associated, had previously represented a client whose interests are materially adverse to that person and about whom the lawyer had acquired information protected by rules 4-1.6[] and 4-1.9(b)[] that is material to the matter.

R. Regulating Fla. Bar 4 — 1.10(b) (emphasis added). The comment to the rule explains:

Subdivisions (b) and (c) operate to disqualify the firm only when the lawyer involved has actual knowledge of information protected by rules 4-1.6 and 4-1.9(b). Thus, if a lawyer while with 1 firm acquired no knowledge or information relating to a particular client of the firm and that lawyer later joined another firm, neither the lawyer individually nor the second firm is disqualified from representing another client in the same or a related matter even though the interests of the 2 clients conflict.

R. Regulating Fla. Bar 4-1.10 comment (emphasis added).

The Essential Requirements of the Law

In Scott, this court outlined a procedural road map for resolving the type of question presented by the facts of this case:

[U]nder rule 4 — 1.10(b), in order to establish a prima facie case for disqualification, the moving party must show that the newly associated attorney acquired confidential information in the course of the attorney’s prior representation. Gaton, 745 So.2d at 511; Koulisis, 730 So.2d at 292. After the moving party meets this burden, the burden shifts to the firm whose disqualification is sought to show that the newly associated attorney has no knowledge of any material confidential information.

Scott, 834 So.2d at 223.

Accordingly, the circuit court’s first task in deciding the motion for disqualification was to determine whether Ms. Seaman had shown that Mr. Santa Lucia, while a partner at Santa Lucia & Thomas, had acquired confidential information relating to Ms. Seaman’s claims against Bon Secours. If Ms. Seaman met her burden, then the circuit court was required to determine whether the Quintamos law firm had overcome this prima facie showing and had proved that Mr. Santa Lucia had “no actual knowledge of any confidential information material to this case.” Akrey, 837 So.2d at 1144 (citing Scott, 834 So.2d at 223, and Koulisis, 730 So.2d at 292).

The Hearing on the Motion and the Circuit Court’s Order

Ms. Seaman’s motion to disqualify the Quintamos law firm was not sworn. In her motion, Ms. Seaman alleged that Mr. Santa Lucia “has knowledge of confidential matters concerning [her] side of this case. Furthermore, as a partner of Santa Lucia & Thomas, P.A., Mr. Santa Lucia had access to all other information in the file, including all confidential matters and matters protected by work-product privilege.” Based on these assertions, Ms. Seaman argued that rules 4-1.9 and 4-1.10 of the Rules Regulating the Florida Bar and the cases interpreting them required the disqualification of the Quintamos law firm. In conclusion, Ms. Seaman declared that she would not consent to a waiver of the conflict of interest to permit the Quintairos law firm to continue its representation of Bon Secours.

At the hearing on Ms. Seaman’s motion, her counsel, Mr. Dinan, who had not been sworn, stated, in pertinent part:

In this case, Mr. Santa Lucia did defense work at Santa Lucia & Thomas. I split the plaintiffs’ work with Keith Thomasf,] and [Estate of] Githens was a case that I worked on. Mr. Santa Lucia does not have knowledge [of,] or at least I don’t recall discussing with him[,] the particular facts of the case. However, I do know that Mr. Santa Lucia has knowledge regarding the costs in the case.
... He also has knowledge, whether he remembers it or not, regarding trial strategy, because I talked to him about what I intended to do, where I saw this going and also about potential settlement value of the case or even what we could expect the jury to return a verdict for.

Ms. Seaman did not offer any testimony, affidavits, or other evidence in support of her motion.

In response to Mr. Dinan’s statements, Bon Secours’ attorney asserted that Mr. Santa Lucia had done only defense work at the Santa Lucia & Thomas law firm and that he had not obtained any confidential information concerning Ms. Seaman’s claims against Bon Secours. In support of these assertions, Bon Secours submitted into evidence the sworn affidavit of Mr. Santa Lucia. In his affidavit, Mr. Santa Lucia said:

1.I am currently employed with the [Quintairos law firm].
2. Prior to being employed with the [Quintairos law firm], I was a[n] owner/partner in the law firm of Santa Lucia & Thomas, P. A.
3. This matter [i.e., the action filed by Ms. Seaman], was handled at the law firm of Santa Lucia & Thomas, P.A.[,] by attorney Jay Dinan, Esquire.
4. The law firm of Santa Lucia & Thomas, P.A.[,] is in the process of being dissolved; however, there are some outstanding matters that upon conclusion of the litigation, upon any recovery by the Plaintiff, the law firm of Santa Lucia & Thomas, P.A.[,] may receive disbursement of fees and/or costs.
5. At all times Mr. Dinan, Esquire[,] was the attorney that handled this matter.
6. I never handled this matter or covered any event for this matter.
7. I have not met or spoken to Plaintiff.
8. I have not represented Plaintiff previously, nor have I represented Plaintiff in this matter.
9. I have never read this matter’s file.
10. The only information I obtained regarding this matter is the matter was set for trial and then dismissed such that an appeal was taken; a motion to disqualify the [Quintairos law firm] has been filed related to my ownership/relationship with my prior law firm and a case management conference is pending.
11. At various times I had a general knowledge of costs expended on the matter pursuant to my ownership in the prior firm.
12. . I have not disclosed to anyone at the [Quintairos law firm] any information regarding this matter.
13. I never acquired any actual knowledge of protected information material to this case while associated with the law firm of Santa Lucia & Thomas, P.A.
14. Since joining the [Quintairos law firm], I have not discussed any information regarding Plaintiff except for information contained in this affidavit.

Although Mr. Santa Lucia was present at the hearing on the motion, neither Mr. Dinan nor the circuit court asked him any questions. Instead of announcing a decision at the conclusion of the hearing, the circuit court reserved ruling on the motion.

In a written order entered approximately three weeks after the hearing, the circuit court noted that Mr. Santa Lucia “was the first named partner” in the Santa Lucia & Thomas law firm. The circuit court’s order recited that it had “heard testimony from Plaintiffs counsel” and that “Mr. Dinan testified that he discussed confidential matters that were material ..., including things like overall strategy, mediation strategy and costs, with Mr. Santa Lucia.” (Emphasis added.) After these recitals, the circuit court made the following finding:

[T]he Court finds that based on the testimony before the Court, Mr. Santa Lucia’s former position as first named partner, and the Court’s role in evaluating the credibility of such evidence and testimony, the Plaintiff has sustained it’s [sic] burden in this matter.

(Emphasis added.) Based on this finding, the circuit court granted the motion to disqualify and directed Bon Secours to obtain new counsel within thirty days.

Discussion

Rule 4-1.10 required the circuit court to determine — as a factual matter— whether Mr. Santa Lucia had actual knowledge of client confidences that would be imputed to the Quintairos law firm. See Nissan Motor Corp. in USA v. Orozco, 595 So.2d 240, 243-44 (Fla. 4th DCA 1992), called into doubt on other grounds by Harpley v. Ducane Indus. (In re Outdoor Prods. Corp.), 183 B.R. 645, 650 n. 7 (Bankr.M.D.Fla.1995) (requiring a similar factual finding when a “tainted associate” joined a firm now opposing his former client). After a careful review of the record, we conclude that the circuit court failed to properly make this determination and to follow the road map provided by our prior decision in Scott. Indeed, the circuit court improperly relied on unwarranted assumptions and a misapprehension of the events that transpired at the hearing to the point that it departed from the essential requirements of the law.

In the order under review, the circuit court referred to the “Court’s role in evaluating the credibility of [the] evidence and testimony” presented at the hearing and stated that it had heard “testimony” from Mr. Dinan. However, our review of the transcript discloses that no testimony was presented at the hearing. Mr. Dinan was never sworn at the hearing. Accordingly, his representations about disputed factual issues did not qualify as testimony. See DiSarrio v. Mills, 711 So.2d 1355, 1357 (Fla. 2d DCA 1998); State v. T.A., 528 So.2d 974, 975 (Fla. 2d DCA 1988). Furthermore, Ms. Seaman’s motion to disqualify the Quintairos law firm was unsworn. The motion merely contained the bald assertion that Mr. Santa Lucia “ha[d] knowledge of confidential matters concerning Plaintiffs side of this case.” Mr. Santa Lucia was present at the hearing, and Bon Secours offered to have him testify. Nevertheless, neither Ms. Seaman nor the circuit court took advantage of this offer. Thus Mr. Santa Lucia’s detailed affidavit was the only evidence submitted to the circuit court at the hearing. The circuit court could hardly have evaluated the credibility of Mr. Dinan and Mr. Santa Lucia when it heard only unsworn representations from Mr. Dinan and accepted an affidavit from Mr. Santa Lucia in lieu of his live testimony.

The circuit court apparently placed great weight on Mr. Santa Lucia’s role as the “first named partner” in Santa Lucia & Thomas, the law firm that had previously represented Ms. Seaman. Although Mr. Santa Lucia’s position in his former law firm was consistent with the acquisition of confidential and material information about Ms. Seaman’s case, it was equally consistent with his having obtained only cursory and limited information that did not involve any client confidences. In light of the parties’ agreement that Mr. Santa Lucia did not handle any plaintiffs work at the “dual firm” of Santa Lucia & Thomas, the only “evidence” that the circuit court’s order could refer to indicating that Mr. Santa Lucia had acquired confidential and material information about Ms. Seaman’s claims was the following statement made by Mr. Dinan at the hearing:

[Mr. Santa Lucia] also has knowledge, whether he remembers it or not, regarding trial strategy, because I talked to him about what I intended to do, where I saw this going and also about potential settlement value of the case or even what we could expect the jury to return a verdict for.

However, as previously noted, Mr. Dinan was never sworn. Thus his statements at the hearing constituted argument only, not testimony.

On the question of whether the circuit court’s errors constitute a departure from the essential requirements of the law, we look for guidance to this court’s prior decision in Akrey, 837 So.2d 1142. In Akrey, the defendant moved to disqualify the plaintiffs law firm on the ground that one of its attorneys had previously represented the defendant while the attorney was associated with another law firm. Id. at 1143. Instead of holding an evidentiary hearing, the trial court decided to resolve the motion based on affidavits of the attorneys and the arguments of counsel. Id. at 1143, 1145. After taking the matter under advisement, the trial court entered an order that disqualified the plaintiffs law firm from representing the plaintiff in the matter. Id. at 1143-44.

On review by petition for certiorari, we concluded that the affidavit submitted by the defendant’s lawyer “lack[ed] competent evidence to carry its burden, and the only possible conclusion is that the trial court improperly relied upon unsworn testimony of [the defendant’s] attorney.” Id. at 1145. Taking into account the insufficiency of the moving party’s affidavit, the trial court’s reliance on unsworn testimony, and the failure to hold an evidentiary hearing, the Akrey court held that the trial court had departed from the essential requirements of the law in entering the order disqualifying the plaintiffs attorney. Id. at 1146. Accordingly, we granted the petition and quashed the order. Id.

The facts in this case are analogous to those in Akrey. In this case, the circuit court did conduct a hearing on the motion to disqualify, but it failed to give due consideration to Mr. Santa Lucia’s affidavit, the only evidence submitted at the hearing. Instead, the circuit court relied exclusively on Mr. Dinan’s unsworn statements at the hearing and unwarranted assumptions stemming from Mr. Santa Lucia’s role as the “first named partner” in his-former law firm. Here, as in Akrey, the circuit court departed from the essential requirements of the law by relying on unsworn argument as its only factual basis for the entry of an order of disqualification.

Conclusion

Accordingly, we grant Bon Secours’ petition for writ of certiorari and quash the order disqualifying the Quintairos law firm from further representation of Bon Sec-ours in the action pending below.

CASANUEVA and SALCINES, JJ., Concur.

      . The Quintairos law firm assumed the defense of the action shortly after Ms. Seaman took an appeal of a final summary judgment that the circuit court had entered in favor of Bon Secours. This court reversed the final summary judgment and remanded for further proceedings. See Estate of Githens v. Bon Secours-Maria Manor Nursing Care Ctr., Inc., 928 So.2d 1272 (Fla. 2d DCA 2006).

      . Rule 4-1.6 concerning “Confidentiality of Information” requires that "[a] lawyer shall not reveal information relating to representation of a client” except as stated in the rule "unless the client gives informed consent.”

      . Rule 4-1.9 concerning "Conflict of Interest; Former Client” “provides that a lawyer who formerly represented a client shall not thereafter 'use information relating to the representation to the disadvantage of the former client except as rule 4-1.6 would permit with respect to a client or when the information has become generally known.' ” Scott, 834 So.2d at 223 (citing rule 4-1.9(b)).

      . The parties agree that Keith Thomas handled all óf the plaintiffs work at the firm of Santa Lucia & Thomas. They also agree that Keith Thomas was the partner responsible for Ms Seaman’s case and that he supervised Mr. Dinan, who was an associate of the -firm.


author: GROSS, J.

text:
    S.A. TARR, Trustee, Appellant, v. John HONEA, Appellee.
    No. 4D06-3765.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.
    Richard B. Warren of Richard B. Warren, P.A., West Palm Beach, for appellant.
    James A. Bond of James A. Bond Law Offices, Palm City, for appellee.
   GROSS, J.

S.A. Tarr appeals an order denying his motion to tax costs and attorney’s fees. We reverse because the trial court abused its discretion in failing to award attorney’s fees under a prevailing party provision in a contract.

On June 25, 2004, Tarr, as seller, and appellee, John Honea, as buyer, entered into a contract for the sale and purchase of real property. The contract provided that the property was to be sold “as is” and gave the buyer a 20 day inspection/due diligence period. At the end of the 20 day period, the buyer had the option of either terminating the contract or proceeding to closing.

Paragraph R of the contract contained an attorney’s fee provision that provided in pertinent part:

In any litigation, including breach, enforcement or interpretation, arising out of this Contract, the prevailing party in such litigation, which, for the purposes of this Standard, shall include Seller, Buyer and any brokers ... shall be entitled to recover from the non-prevailing party reasonable attorney’s fees, costs and expenses.

On July 15, 2004, the buyer, in writing, requested an extension of the due diligence period. The buyer’s letter stated that if the seller would not grant an extension, he was exercising his right to terminate the contract. The seller did not agree to the requested extension, so the contract was terminated in accordance with the buyer’s July 15 notice.

On July 20, 2004, the buyer tried to take back his termination of the contract. He advised the seller that he would honor the original contract if the seller provided an environmental report sufficient to satisfy his lender. The original contract contained no condition addressing an environmental report. The seller rejected the buyer’s attempt to resurrect the contract and add new conditions.

On October 13, 2004, the buyer filed a lawsuit. At first he sought specific performance. However, in an amended complaint, the buyer dropped the specific performance claim and sued for damages, alleging that the seller breached the contract by failing to close.

After a non-jury trial, the circuit court found for the seller. The final judgment reserved jurisdiction to award costs and attorney’s fees to the seller “as the prevailing party in this action, pursuant to the Purchase and Sale Agreement between the parties.”

At a later hearing, the court denied the seller’s motion for fees and costs. The court reasoned that the buyer’s claim was “a contract claim that the court found did not exist.” The court explained that “once the contract terminated, there’s no basis for the fees.”

When parties enter into a contract and litigation later arises out of the contract, the prevailing party may recover attorney’s fees under a prevailing party attorney’s fee provision, even though the contract is rescinded or rendered unenforceable by some subsequent act. See Katz v. Van Der Noord, 546 So.2d 1047, 1049 (Fla.1989). This situation differs from a contract that never came into existence, which cannot form the basis for an award of attorney’s fees. See Fabing v. Eaton, 941 So.2d 415, 418 (Fla. 2d DCA 2006). In Katz, the supreme court held that for the purpose of determining whether an award of attorney’s fees is proper under a contract’s prevailing party fee provision, “there is a difference between contracts that never came into existence and contracts that exist but are later found to be unenforceable.” Fabing, 941 So.2d at 418.

Here, the parties entered into a contract. The contract at one time existed. The buyer exercised his option to terminate the contract within the due diligence period. After July 20, the parties could not agree on the terms that would revive the contract. The buyer’s lawsuit “arose out” of the original contract, so that the attorney’s fee provision applied. The seller was the prevailing party.

The buyer relies on Baldoria v. Security Realty Investment, Inc., 581 So.2d 189 (Fla. 3d DCA 1991), to argue that there was no prevailing party in this case, because no party recovered damages in the circuit court. Baldoria is distinguishable. There, buyers in a real estate transaction recovered their deposit from the real estate agent; “[njeither buyer nor seller recovered judgment against the other” and no appeal was taken from the final judgment. Id. at 191. Here judgment was entered in favor of the seller, the defendant in the circuit court. For a defendant to be the prevailing party in litigation, it is not necessary that the defendant recover money damages. Our statement in Malagon v. Solari, 566 So.2d 352, 353 (Fla. 4th DCA 1990), that a plaintiff must recover “something” to be considered a prevailing party refers to plaintiffs and not defendants.

We reverse and remand to the trial court to award reasonable attorney’s fees and costs to the seller.

SHAHOOD and MAY, JJ., concur.


author: POLEN, J.

text:
    Jaime MACIAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-808.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2007.
    Rehearing Denied Aug. 6, 2007.

      Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, for appellant.
    Bill McCollum, Attorney General, Tallahassee, Diane F. Medley and David M. Schultz, Assistant Attorneys General, West Palm Beach, for appellee.
   POLEN, J.

Appellant Jaime Macias timely appeals a conviction of sexual battery by a person of control or authority and declaration as a sexual predator. We affirm.

The victim in this case, A.B., entered the Broward County Adult Drug Court Program after being arrested for possession of cocaine. A few months later, she failed a drug urinalysis. Knowing this could lead to time in jail, she asked to speak with the program supervisor, i.e., Macias. Macias told her that he would speak with Yvonne Sherman, A.B.’s Drug Court Program counselor, but that in the meantime she should wait downstairs until he called her on her cellular phone.

The victim testified that she received a call from Macias a few minutes later wherein Macias told her that she had gotten away with a lot in the program and asked her if she was “good with my mouth.” According to the victim, Macias came downstairs and repeated the question, and she “just looked at him and shook my head yes. And he asked me if I would meet him in the Winn Dixie parking lot, and pointed to his van and showed me what kind of van he had, because he would meet me there in 10 or 15 minutes.” A.B. apparently agreed and met Macias at the Winn-Dixie and entered his van, where he allegedly told her that “if he wanted to do what I needed him to do, then I needed to do what he needed me to do.” She then performed fellatio upon Macias. She did not report the incident because Macias allegedly told her not to tell anybody. A few days later, a representative from the program recommended to the Drug Court that A.B. receive the “drug patch” and not serve time in the custody of the State. The court followed this recommendation.

The victim’s drug abuse nevertheless continued and, a few months after being released from the Drug Court Program, she voluntarily entered a residential drug rehabilitation program — the Broward Addiction Recovery Center (“BARC”). Once there, she told a BARC counselor about the events that transpired between Macias and herself in his van. As a result of this disclosure, BARC reported the incident, a police investigation ensued and the State ultimately brought charges against Macias for sexual battery under section 794.011(4)(c), (g), Florida Statutes (2003).

At trial, the State, over defense counsel’s objection, adduced the Williams rule testimony of A.A. This victim, like A.B., had been a participant in the Broward County Adult Drug Court Program. She testified concerning a meeting she had with Macias that occurred about two months after the incident between Macias and A.B. During the meeting, A.A. told Macias that she planned on going to college and he evidently responded that she would not be able to do that while she was in the Drug Court Program, but that he “could make a deal with her,” he “could pull strings for me, seeing that he was the supervisor, to help me get out there ... quicker, I think he said 10 months, and the minimum time that I was aware of was a year.” He gave her “a speech about opportunities, choices and consequences, because that was his eatchphrase.”

I heard him say it a lot during that meeting, opportunities, choices and consequences. And, basically, how he propositioned it to me was that he had an opportunity for me and it was up to me to make the choice and I could take the consequences ... the good or bad, they didn’t necessarily have to be bad consequences .... And he was saying are you willing to do anything. And he was telling me about how he had people do extra curricular, AA meetings.... So, finally, when we got to the end of the conversation, I was like, yes, I’m willing to do anything. And he was like, I have a very good deal for you, you can’t tell anyone .... and he said that I had to take care of him.... He used those exact words.... I was really shocked, actually, and I was really hoping that he did not mean sexually, because that’s how I took it.... And I said, well, yeah, I’m willing to do anything that is legal and moral. And he just said, well, we don’t have a deal then.

In its Order on Williams Rule Evidence, the court found the following:

In the instant case, as well as the prior alleged incident, the victims were told that if they “took care of [Defendant],” he would “pull some strings” in order to get them out of the program faster. This Court finds that the other alleged instance of sexual misconduct is sufficiently similar to be admissible as “Williams Rule” evidence. As such, the evidence is relevant and is admissible at trial. Furthermore, its probative value outweighs any prejudice.

On appeal, Macias contends that the trial court abused its discretion in admitting A.A.’s testimony. “On the Williams Rule issue, the standard of review applicable to the consideration of whether evidence was properly admitted is abuse of discretion.” Stav v. State, 860 So.2d 478, 480 (Fla. 4th DCA 2003) (citing Geldreich v. State, 763 So.2d 1114, 1116 (Fla. 4th DCA 1999)). The codification of the Williams rule provides:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

§ 90.404(2)(a), Fla. Stat. (2003); see also Williams v. State, 110 So.2d 654 (Fla.1959). In Heuring v. State, 513 So.2d 122 (Fla.1987), superseded by statute on other grounds, § 90.404(2)(b), Fla. Stat. (2002), the Florida Supreme Court set forth the test for relevancy of similar fact evidence:

To minimize the risk of a wrongful conviction, the similar fact evidence must meet a strict standard of relevance. The charged and collateral offenses must be not only strikingly similar, but they must also share some unique characteristic or combination of characteristics which sets them apart from other offenses.... In addition to the above requirements, the evidence must be relevant to a material fact in issue such as identity, intent, motive, opportunity, plan, knowledge, or absence of mistake or accident.

Id. at 124 (citations omitted). We find that the charged offense in this case, sexual battery of A.B., and the collateral act, attempted sexual battery of A.A., meet this standard.

Macias gained access to A.A. and A.B. in the same manner, as both of them were undergoing mandatory drug counseling under the guidance of Sherman, who in turn was supervised by Macias; both had private meetings with Macias, one in October 2003, the other in December 2003, in Macias’ office with no one else present; both were close in age at the time, A.A. eighteen years old, and A.B. twenty-two; the two victims resembled each other, as both had blond hair, blue eyes and were of relatively slim build; Macias had similar conversations with both where he told them that if they “took care of him” or did “what he needed [them] to do,” he would help them in Drug Court; and, lastly, Macias told both women not to tell anyone about these conversations. The only fundamental difference between the two events was that A.A. rejected Macias’ proposition while A.B. did not.

Macias also contends that a conversation alone cannot be a “crime, wrong or act” under section 90.404(2)(a), Florida Statutes (2003). He argues that other-act evidence of verbal statements requires an accompanying physical act to be admissible under the Williams rule. However, section 90.404(2)(a) embraces a more expansive interpretation of the terms “act” and “wrong.” See, e.g., Britton v. State, 928 So.2d 386, 387-88 (Fla. 5th DCA 2006) (other-act threatening two men); Billie v. State, 863 So.2d 323, 329-30 (Fla. 3d DCA 2003) (other-act defendant’s statement that he would kill himself and his children); United States v. Brooke, 4 F.3d 1480, 1483 (9th Cir.1993) (other-act feigning terminal cancer). Therefore, we find that Macias’ argument in this regard is likewise without merit.

Based on the foregoing, we find that the trial court did not abuse its discretion in overruling Macias’ objection to the State’s Williams rule evidence. We thus affirm Macias’ conviction of sexual battery by a person of control or authority and his declaration as a sexual predator.

WARNER and HAZOURI, JJ., concur.

      . Citing Calloway v. State, 520 So.2d 665 (Fla. 1st DCA 1988), the State maintains that the similar fact evidence in this case need not meet the rigid similarity requirement set forth in Heuring, 513 So.2d at 124. Calloway stated that "the rigidity with which the similarity requirement is applied in cases wherein the collateral crimes are introduced to prove a fact such as the identity of the perpetrator is not necessary in other situations such as ... where the evidence is relevant to corroborate the victim's testimony.” Id. at 668. However, in Calloway, appellant was convicted of sexual battery of his stepdaughter, whereas the Florida Supreme Court recently said that it “[has] not extended the relaxed standard of admissibility to nonfamilial cases,” such as one at hand. McLean v. State, 934 So.2d 1248, 1258 (Fla.2006).


author: PER CURIAM. WEBSTER, J.,

text:
    ORANGE COUNTY FIRE RESCUE and Unisource Administrators, Inc., Appellants, v. Robert JONES, Appellee.
    No. 1D06-4280.
    District Court of Appeal of Florida, First District.
    June 21, 2007.
    Rehearing Denied July 17, 2007.

      Lamar D. Oxford and Frank C. Wesi-ghan of Dean, Ringers, Morgan & Lawton, Orlando, for Appellants.
    Todd J. Sanders, Kelli Biferie Hastings, and Paul A. Kelley of Bichler & Kelley, R.A., Winter Park, for Appellee.
   PER CURIAM.

Orange County Fire Rescue and Uni-source Administrators, Inc., the employer and carrier, appeal an order of the Judge of Compensation Claims (JCC) awarding Robert Jones (the claimant) permanent impairment benefits. We affirm the award of permanent impairment benefits.

The claimant was a firefighter with Orange County Fire Rescue who was first diagnosed with hepatitis C on February 23, 1992. The employer/carrier accepted the claimant’s hepatitis C as a compensa-ble occupational disease and authorized treatment. The employer and carrier paid temporary total disability benefits from December 22, 1992, until January 4, 1993, and from April 1,1993, until April 11,1993. Thereafter, the claimant returned to work full-time as á firefighter and continued to seek conservative treatment for his occupational disease.

On November 3, 1997, the claimant began treatment with interferon and ribavi-rin for his hepatitis C. The treatment left the claimant weak and dizzy and with flu-like symptoms, and his doctor removed him from work for approximately four months during the course of this treatment. The employer and carrier paid indemnity benefits during this time. When the claimant finished the treatment in December of 1998, his doctor opined that the claimant was at maximum medical improvement (MMI), and the claimant was assigned a twenty percent impairment rating. Shortly thereafter, the claimant returned to work for the employer in his full capacity as a firefighter and has continued full-time since.

The claimant asserted a new date of accident on November 3, 1997, when he was required to leave work because of the effects of treating his disease. This court has consistently held that when a claim involves an occupational disease, the date of accident for the purpose of benefits is the date of disability — not the date of the diagnosis, exposure to, or contraction of the disease. See, e.g., Michels v. Orange County Fire/Rescue, 819 So.2d 158, 160 (Fla. 1st DCA 2002).

It is well-settled in occupational disease cases that the date of accident is determined by the date of disability, and disability is defined as the date the claimant became incapable of performing work in the last occupation in which he was exposed to the hazards of the disease. Accordingly, detection of an occupational disease does not necessarily coincide with the date of disablement from the disease.

Id. (citing § 440.151(l)(a), Fla. Stat. (1991) and (1997)) (other citations omitted). See also Fla. Power Corp. v. Brown, 863 So.2d 364, 365 (Fla. 1st DCA 2003) (reversing an order awarding medical monitoring in a case where the claimant was exposed to asbestosis, but not diagnosed with the disease, because the claimant had not (yet) suffered any injury, explaining that “an occupational disease becomes compensable only upon the employee’s disablement [ — ] in occupational disease cases, it is the disability, not the diagnosis of the disease, which determines compensability of a claim”) (citation omitted); Hoppe v. City of Lakeland, 691 So.2d 585, 586-87 (Fla. 1st DCA 1997) (“ ‘In occupational disease cases, ... it is the disability and not the disease which determines the compensability of a claim.’ ”) (quoting Am. Beryllium Co. v. Stringer, 392 So.2d 1294, 1295-96 (Fla.1980)); Sledge v. City of Fort Lauderdale, 497 So.2d 1231, 1233 (Fla. 1st DCA 1986) (“Disablement and the commencement of the running of the limitations period occurs when the disease condition results in a stoppage or loss of earnings. Disablement means the event upon which the employee becomes actually incapacitated, partially or totally, from performing his employment.”) (quotation marks, alterations, and citations omitted).

In the present case, the claimant was diagnosed with the disease in 1992 and missed a short period of work before continuing in his full-time employment. In 1997, the claimant’s viral load increased to the extent that the doctor recommended interferon treatment. These treatments caused the claimant to miss three to four months of work because the doctor felt he was unable to perform his duties at work as a result of the effects of the treatment.

For an employee to be entitled to benefits for a compensable occupational disease, the person must be disabled. See Michels, 819 So.2d at 160. ‘[Disablement’ “means the event of an employee’s becoming actually incapacitated, partially or totally, because of an occupational disease, from performing her or his work in the last occupation in which injuriously exposed to the hazards of such disease.... ” § 440.151(3), Fla. Stat. (1997). See also Sledge, 497 So.2d at 1233. In the present case, the claimant became incapacitated from performing his work, according to the doctor’s testimony, when he began the interferon treatment in November of 1997. The treatment was necessary due to the progression of his occupational disease. Thus, he was statutorily disabled at this time. The date of accident is the time such disability resulted in the inability to work — not the date of the diagnosis. Claimant suffered a new date of accident on November 3,1997.

We reject the employer and carrier’s argument that there cannot be more than one date of accident. In fact, in City of Mary Esther v. McArtor, 902 So.2d 942 (Fla. 1st DCA 2005), this court acknowledged the possibility of multiple dates of accident in occupational disease cases. In Mary Esther, the claimant was a firefighter who suffered his first heart attack in 1991, which was found to be compensable because of the statutory presumption in section 112.18(1), Florida Statutes, presuming that coronary artery disease was an occupational illness when suffered by a firefighter meeting certain requirements. He later suffered cardiac complications in 2001 and 2003. See id. at 943. Between 1991 and 2001, the City had changed insurance carriers. The court explained that only the carrier on the risk at the time of the last injurious exposure was liable for the later episodes. Thus, the benefits paid for cardiac complications in 2001 and 2003 were paid by the new carrier, despite the prior incapacity in 1991. See id. at 943^14.

In addition, in Michels, the claimant missed work and received benefits in 1992 and in 1996 before becoming permanently impaired in 1998. Despite the claimant’s prior periods of incapacitation, the court found that the date of accident was the latest date of incapacitation. See 819 So.2d at 160.

We also reject the employer and carrier’s argument that there can be no new date of accident because hepatitis C is no longer recognized as an occupational disease for firefighters. The employer and carrier rely upon Seminole County Gov’t v. Bartlett, 933 So.2d 550 (Fla. 1st DCA 2006), and Flamily v. City of Orlando, 924 So.2d 78 (Fla. 1st DCA 2006), for the proposition that hepatitis C can no longer be an occupational disease in any firefighter’s case.

Both Bartlett and Flamily, however, rested upon the facts and testimony presented by the parties in those cases, where compensability was fully litigated. See Bartlett, 933 So.2d at 552 (finding that the claimant “failed to present sufficient evidence” that his hepatitis C was an occupational disease); Flamily, 924 So.2d at 79 (finding that the claimant did not present sufficient proof that his hepatitis C was an occupational disease). In the present case, the employer and carrier accepted the claimant’s hepatitis C as a compensable occupational disease in 1992, and continued to pay benefits for seven years after the 1997 disablement, arguing only on the day of the hearing against entitlement to permanent impairment benefits and then only on the basis that Flamily and Bartlett precluded compensability of hepatitis C in all firemen’s cases.

Because the date of accident in an occupational disease case is the date of disability next after a period of injurious exposure, and multiple periods of exposure took place here, the claimant suffered a new date of accident when, after a lengthy period of full-time employment, he missed work beginning on November 3, 1997. Therefore, the order awarding benefits based on a November 3, 1997, date of accident is AFFIRMED.

ALLEN and BENTON, JJ., concur; WEBSTER, J., dissents with opinion.

WEBSTER, J.,

dissenting.

The issue here is whether section 440.151, Florida Statutes (1991), may be read as contemplating the possibility of multiple accident dates based on periodic exacerbations of an occupational disease which the undisputed evidence establishes is incurable. Because I am unable to answer the question in the affirmative, I dissent.

It is undisputed that claimant was first diagnosed with hepatitis C in 1992. The employer and servicing agent accepted the claim as a compensable occupational disease, authorizing treatment and paying temporary total disability benefits for relatively brief periods in late 1992 and early 1993. Pursuant to section 440.151, claimant became disabled in late 1992, when he became “incapacitated ... from performing his work in the last occupation in which injuriously exposed to the hazards of [the] disease.” See § 440.151(3), Fla. Stat. (1991); City of Port Orange v. Sedacca, 953 So.2d 727 (Fla. 1st DCA 2007) (en banc). It is also undisputed that claimant’s hepatitis C is incurable. It manifests itself by periods of relative dormancy and periods of exacerbation.

Effective January 1, 1994, the legislature provided for permanent impairment benefits to become the primary permanent disability benefit. Ch. 93-115, § 20, at 122, Laws of Fla. (codified as § 440.15(3)(a), Fla. Stat.). Because the creation of permanent impairment benefits was a substantive change in the law, claimant is not entitled to the benefit of that change unless he can demonstrate that the 1997 exacerbation of his pre-existing hepatitis C amounted to a new injury. See Paulk v. Sch. Bd. of Palm Beach County, 615 So.2d 260, 261 (Fla. 1st DCA 1993) (“the parties’ substantive rights under the Workers’ Compensation Law are fixed at the time of the claimant’s accident and injury”) (citation omitted).

In Florida, the system of workers’ compensation is entirely a creature of statute. Travelers Ins. Co. v. Sitko, 496 So.2d 920, 921 (Fla. 1st DCA 1986). Thus, we must look to the pertinent statute for the answer to the issue raised. That statute is section 440.151, Florida Statutes (1991), which is entitled “Occupational diseases.” I find nothing in that section manifesting a clear intent to provide for the possibility of multiple accident dates in a case such as this. On the contrary, it seems to me that the language used by the legislature supports the opposite conclusion. It appears to me that the legislature contemplated that, as logic would seem to dictate, a person can contract an incurable disease only one time. Absent manifestation of a clear intent to permit the outcome reached by the majority, I would not ascribe to the legislature such an illogical result.

Finally, I note that City of Mary Esther v. McArtor, 902 So.2d 942 (Fla. 1st DCA 2005), and Michels v. Orange County Fire/Rescue, 819 So.2d 158 (Fla. 1st DCA 2002), on which the majority relies to support its conclusion, shed no light on the issue because there is nothing in either case to suggest that the issue of the possibility of multiple accident dates in a case of this kind was either raised or actually decided.

Because I can find no support in section 440.151 for the result reached by the majority, respectfully, I dissent.

      . Section 440.15(3)(a), Florida Statutes (1997), provides that once a claimant has reached MMI, impairment benefits are due within twenty days after the carrier has knowledge of the impairment. This provision requiring the payment of permanent impair-men! benefits for all permanent impairments was not introduced into the statute until 1994. (The prior version of the statute required permanent impairment benefits for permanent impairments due only to amputation, the loss of eighty percent or more of vision, or a serious facial or head disfigurement. See § 440.15(3)(a), Fla. Stat. (1993).) See Ch. 93-415, § 20 at 121, Laws of Fla. (amending section 440.15(3)(a) to provide permanent impairment benefits for all permanent impairments). Thus, employees with injuries occurring prior to 1994 are not entitled to permanent impairment benefits. Therefore, if the claimant’s only date of injury/accident is in 1992, when he was first diagnosed with hepatitis C, he is not entitled to permanent impairment benefits. However, if the claimant is able to establish a new date of injury/accident in 1997, he is entitled to permanent impairment benefits.

        . Most recently, in City of Port Orange v. Sedacca, 953 So.2d 727 (Fla. 1st DCA 2007) (en banc), the court explained that a claimant’s disease did not result in "disablement” under the statute until a claimant suffered wage loss. Id. at 733. (citing Michels v. Orange County Fire/Rescue, 819 So.2d 158, 160 (Fla. 1st DCA 2002)).
      "Disablement means the event upon which the employee becomes actually incapacitated, partially or totally, from performing his employment." [Sledge v. City of Fort Lauderdale, 497 So.2d 1231, 1233 (Fla. 1st DCA 1986).] That definition more "closely reflects the statutory concept of "disability.” See § 440.02(13), Fla. Stat. (2003) (" 'Disability' means incapacity because of the injury to earn in the same or any other employment the wages which the employee was receiving at the time of the injury.”).

        City of Mary Esther v. McArtor, 902 So.2d 942, 944 (Fla. 1st DCA 2005).

      . Section 440.151, Florida Statutes (1997), provides in pertinent part:
      (l)(a) Where the employer and employee are subject to the provisions of the Workers’ Compensation Law, the disablement or death of an employee resulting from an occupational disease as hereinafter defined shall be treated as the happening of an injury by accident, notwithstanding any other provisions of this chapter, and the employee ... shall be entitled to compensation as provided by this chapter, except as hereinafter otherwise provided; and the practice and procedure prescribed by this chapter shall apply to all proceedings under this section, except as hereinafter otherwise provided. Provided, however, that in no case shall an employer be liable for compensation under the provisions of this section unless such disease has resulted from the nature of the employment in which the employee was engaged under such employer and was actually contracted while so engaged, meaning by “nature of the employment’’ that to the occupation in which the employee was so engaged there is attached a particular hazard of such disease that distinguishes it from the usual run of occupations, or the incidence of such disease is substantially higher in the occupation in which the employee was so engaged than in the usual run of occupations....

      (2) Whenever used in this section the term "occupational disease’’ shall be construed to mean only a disease which is due to causes and conditions which are characteristic of and peculiar to a particular trade, occupation, process, or employment, and to exclude all ordinary diseases of life to which the general public is exposed, unless the incidence of the disease is substantially higher in the particular trade, occupation, process, or employment than for the general public.
      (3) Except as hereinafter otherwise provided in this section, “disablement” means the event of an employee's becoming actually incapacitated, partially or totally, because of an occupational disease, from performing her or his work in the last occupation in which injuriously exposed to the hazards of such disease; and "disability” means the state of being so incapacitated.


author: STRINGER, Judge.

text:
    Antonio Deqvan WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-395.
    District Court of Appeal of Florida, Second District.
    June 22, 2007.

      James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Tonja Bene Vickers, Assistant Attorney General, Tampa, for Appellee.
   STRINGER, Judge.

Antonio Williams appeals multiple convictions that resulted from his interaction with several Lake Wales police officers on November 10, 2004. We affirm Williams’ convictions for resisting an officer with violence, battery on a law enforcement officer, possession of marijuana with intent to sell, tampering with evidence, and possession of drug paraphernalia without further comment. However, we reverse Williams’ conviction for resisting an officer without violence because, under the facts of this case, that conviction constitutes a double jeopardy violation.

The evidence at trial showed that on November 10, 2004, members of the Lake Wales Police Department were looking for Williams in regards to an ongoing investigation. Early in the afternoon, Sergeant David Black spotted Williams in a group of people behind a convenience store. Sergeant Black arranged for Officer Robert Hendrix to approach Williams in his patrol car while Officer Lawrence McCalley parked his patrol car a short distance away. Officer Hendrix drove to the rear parking lot of the convenience store, got out of his patrol car, and called Williams over. As Williams approached Officer Hendrix, Sergeant Black came around the side of the convenience store on foot. When Williams saw Sergeant Black, he fled. Officer Hendrix and Sergeant Black gave chase on foot, and when Williams reached Officer McCalley’s position, Officer McCalley continued the chase in his patrol car. Shortly thereafter, Officer MeCalley abandoned his patrol car and continued to chase Williams on foot.

Officer MeCalley quickly caught up with Williams and was able to tackle him to the ground. As Williams fell, he dropped a plastic bag that contained loose marijuana and several smaller baggies of marijuana. Once on the ground, Williams struggled against Officer MeCalley and refused to cooperate in being handcuffed. During the struggle, Williams bit Officer MeCalley on the hand. Shortly thereafter, other officers arrived on the scene, and they were able to subdue and handcuff Williams. After Williams was transported to the police station, another small bag of marijuana was found shoved behind the seat of the patrol car used to transport him from the scene.

Based on these events, the State charged Williams with resisting an officer without violence, resisting an officer with violence, battery on a law enforcement officer, possession of marijuana with intent to sell, tampering with evidence, and possession of drug paraphernalia. After considering the evidence presented at trial, the jury convicted Williams as charged on all counts. In this appeal, Williams contends that his convictions for both resisting an officer with violence and resisting an officer without violence constitute a double jeopardy violation because both offenses arose out of a single criminal episode. We agree.

“The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’ ” Gordon v. State, 780 So.2d 17, 19 (Fla.2001) (quoting M.P. v. State, 682 So.2d 79, 81 (Fla.1996)). In section 775.021(4)(b), Florida Statutes (2004), the legislature specifically stated its intent that defendants be convicted and sentenced for each criminal offense committed in the course of one criminal episode or transaction. However, the legislature also set forth three exceptions to this general rule:

1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

§ 775.021(4)(b). Multiple convictions for offenses that fall within these statutory exceptions violate the constitutional provision that protects against double jeopardy.

When considering section 775.021(4)(b) in the context of resisting offenses, courts have uniformly held that separate convictions for resisting arrest with violence and resisting arrest without violence are prohibited when the acts of resisting occurred as part of a single criminal episode. See, e.g., Wallace v. State, 724 So.2d 1176, 1181 (Fla.1998); Johnson v. State, 747 So.2d 1027, 1027 (Fla. 2d DCA 1999); Madison v. State, 777 So.2d 1175, 1175 (Fla. 5th DCA 2001). This is so because the elements of the lesser offense of resisting without violence are subsumed within the greater offense of resisting with violence. Swilley v. State, 845 So.2d 930, 933 (Fla. 5th DCA 2003); see also § 775.021(4)(b)(3). Thus, Williams’ separate convictions for both resisting with violence and resisting without violence are barred by section 775.021(4)(b)(3), and thus constitute a double jeopardy violation, if the acts supporting the convictions occurred during the course of a single criminal episode.

In determining whether offenses arise from a single criminal episode, courts must consider (1) whether separate victims are involved; (2) whether the crimes occurred in separate locations; and (3) whether there has been a temporal break between the incidents. Vasquez v. State, 778 So.2d 1068, 1070 (Fla. 5th DCA 2001). When considering the issue of what constitutes a criminal episode in the context of resisting charges, courts have held that a defendant’s continuous resistance to a single ongoing attempt to effectuate his arrest constitutes a single episode of resisting. See Wallace, 724 So.2d at 1181; Madison, 777 So.2d at 1175. Moreover, a defendant’s flight from officers does not, by itself, transform a single continuous resistance into separate criminal episodes merely because the defendant’s flight resulted in his arrest at a different location from where the detention originated. See, e.g., Goodman v. State, 801 So.2d 1012 (Fla. 4th DCA 2001) (holding that a defendant, who initially ran from officers who were attempting to detain him and who, when caught after a chase, elbowed the officers who were trying to handcuff him, could not be convicted of both resisting with violence and resisting without violence because all the acts of resisting were part of one continuous episode); Fogle v. State, 754 So.2d 878 (Fla. 1st DCA 2000) (holding that a defendant who, after being told he was under arrest, struck an officer, fled, and then struck additional officers after he was caught could not be convicted of both resisting with violence and resisting without violence since his actions arose out of a single continuous effort to avoid arrest).

The facts in this case show that Williams was engaged in a single episode of continuous resistance to a single attempt to effectuate his arrest. The evidence established that Williams fled from Officers Hendrix and Black, who immediately gave chase and who were joined in that chase by Officer McCalley. Officer McCalley caught up with Williams and tackled him. After being tackled, Williams continued to struggle, but ultimately he was handcuffed and taken to jail. While none of the officers specifically testified to the total length of the chase, based on their testimony concerning the events, the entire chase appears to have lasted several blocks at most. At least two of the victims of the alleged offenses were the same, and there was no temporal break between Williams’ act of nonviolent resistance by running and his act of violent resistance when caught. Therefore, Williams’ two offenses arose out of a single criminal episode, and the constitutional protection against double jeopardy bars separate convictions.

In this appeal, the State relies on the Fifth District case of Vasquez, 778 So.2d 1068, to support the propriety of separate convictions for these offenses; however, the State’s reliance on Vasquez is misplaced. In Vasquez, the defendant originally resisted his arrest at a restaurant. Id. at 1069. He was ultimately arrested and taken from the restaurant to the police station, where the police attempted to go through various booking procedures. Id. Vasquez was then placed in a holding cell to await transport to the jail facility. Id. When the time arrived to put Vasquez in the van for transport from the police station to the jail, Vasquez again resisted. Id. The Fifth District reversed one of the two resisting convictions that arose from the events at the restaurant, noting that those two offenses arose from a single criminal episode. Id. at 1070. However, the court affirmed the separate resisting conviction that arose from Vasquez’s subsequent conduct at the police station because there was clearly a temporal break between the two events. Id.

In this case, unlike in Vasquez, there was no temporal break between Williams’ two acts of resistance. Once Williams fled from the officers, they immediately gave chase and caught him a short distance away. At that point, Williams’ resistance became violent rather than nonviolent. Unlike in Vasquez, there were no acts of resisting followed by unrelated events followed by new acts of resisting. Therefore, the State’s reliance on this case is unavailing.

Because Williams’ convictions for resisting with violence and resisting without violence occurred during the course of a single criminal episode, convictions for both offenses constitute a double jeopardy violation. Therefore, we reverse Williams’ conviction for the lesser offense and remand for resentencing. See Goodman, 801 So.2d at 1014 (holding that conviction for resisting without violence should be vacated due to the constitutional protection against double jeopardy); Madison, 777 So.2d at 1175 (affirming a resisting with violence conviction and reversing a resisting without violence conviction because of the undisputed evidence of violence).

Affirmed in part; reversed in part; and remanded.

NORTHCUTT and VILLANTI, JJ„ Concur.

      . U.S. Const, amend. V.; art. I, § 9, Fla. Const.