author: PLEUS, C.J.

text:
    Stacie WAGNER, Appellant, v. ORANGE COUNTY, Florida, et al., Appellees.
    No. 5D06-3311.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2007.
    Rehearing Denied July 31, 2007.

      Dennis F. Wells, of Webb, Wells & Williams, P.A., Longwood, for Appellant.
    Thomas B. Drage, County Attorney, and Joseph L. Passiatore, Senior Assistant County Attorney, Orange County Attorney’s Office, Orlando, for Appellee, Orange County.
    David B. Moffett, of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Appellee, Rissman, et al. ■
   PLEUS, C.J.

Stacie Wagner, plaintiff below, appeals from a final judgment which denied her action seeking access.:to records held by the defendants Orange County, Florida, and the County’s outside law firm, Riss-man, Barrett, Hurt, Donohue & McLain, P.A., (Rissman, Barrett). The issues on appeal concern the interpretation of exemptions to the Public Records law contained at subsection 768.28(16)(b), and subsection 119.071(l)(d), Florida Statutes.

Wagner obtained a final judgment against Orange County in the amount of $900,880 in connection with the death of her 11-year-old daughter who was struck and killed by an Orange County Fire/Rescue vehicle. The County paid Wagner $100,000 pursuant to section 768.28, Florida Statutes, and Wagner has pursued the remainder of the judgment through a claim bill filed in the Florida legislature.

Prior to submission of the claim bill, Wagner’s attorneys submitted two public records requests to review the litigation file held by the County’s Risk Management Division and further sought, by way of public records request, the files of Riss-man, Barrett, the private law firm which had represented the County in the wrongful death litigation. Both the County and Rissman, Barrett claimed privilege and exemption from production.

The trial court ultimately sided with the defendants, ruling that: (1) risk management claim files maintained by the County are exempt from production pursuant to a public records request based on a statutory exemption set forth in subsection 768.28(16)(b), and (2) the County’s outside counsel was not required to produce its litigation file because of the protections afforded by subsection 119.071(l)(d), and Florida Rule of Civil Procedure 1.280(b)(5).

The issues in this, case involve matters of statutory construction which are questions of law subject to de novo review. Maggio v. Fla. Dep’t of Labor & Employment Sec., 899 So.2d 1074 (Fla.2005).

Subsection 768.28(16)(b), Florida Statutes, provides:

Claims files maintained by any risk management program administered by the state, its agencies and its subdivisions are confidential and exempt from the provisions of s. 119.07(1) and s. 24(a), Art. 1 of the State Constitution until termination of all litigation and settlement of all claims arising out of the same incident, although portions of the claims files may remain exempt, as otherwise provided by law. Claims files records may be released to other governmental agencies upon written request and demonstration of need; such records held by the receiving agency remain confidential and exempt as provided for in this paragraph.

The operative phrase of the subsection is “until termination of all litigation and settlement of all claims arising out of the same incident.” Wagner maintains that this language exempts disclosure only during the litigation process and does not expressly encompass the claim bill process. Wagner points out that the Florida Constitution provides that the public shall have full access to government records and that while exemptions may be enacted by a two-thirds vote of each house of the legislature, Article 1, section 24, Florida Constitution, statutory exemptions restricting access to records are to be narrowly construed. WFTV, Inc. v. Sch. Bd. of Seminole County, 874 So.2d 48, 53 (Fla. 5th DCA 2004); Times Publ’g Co. v. State, 827 So.2d 1040, 1042 (Fla. 2d DCA 2002); Seminole County v. Wood, 512 So.2d 1000 (Fla. 5th DCA 1987).

The County maintains that the phrase “settlement of all claims arising out of the same incident,” clearly encompasses a legislative- claim bill and that alternatively, even if the language of subsection 768.28(16)(b) is ambiguous, the legislative intent underlying the enactment dictates that claims files be exempt from public records disclosure at least during the pen-dency of a claim bill.

Analysis of this issue requires background on the nature of legislative claim bills. A claim bill is not an action at law, but rather is a legislative measure that directs the Chief Financial Officer of Florida, or if appropriate, a unit of local government, to pay a specific sum of money to a claimant to satisfy an equitable or moral obligation. Such obligations usually arise from the negligence of officers or employees of the State or local governmental agency. Legislative claim bills are utilized either after procurement of a judgment in an action at law or as a mechanism to avoid an action at law altogether. City of Miami v. Valdez, 847 So.2d 1005 (Fla. 3d DCA 2003). The amount awarded is based on the legislature’s concept of fair treatment of a person who has been injured or damaged but who is without, a complete judicial remedy or who is not otherwise compensable. Kahn, Legislative Claim Bills, Fla. B. Journal (April 1988). A claim bill is not obtainable by right upon the claimant’s proof of entitlement, but rather is granted strictly as a matter of legislative grace. United Servs. Auto Ass’n v. Phillips, 740 So.2d 1205 (Fla. 2d DCA 1999). A claim bill must be presented to the legislature within four years “after the cause for relief accrued” and if a legislative relief act results, no additional claim for relief may be submitted to the legislature. § 11.065, Fla. Stat.

The legislature has set a cap on tort recovery from a governmental entity,' in an action at law, at $100,000 per person and $200,000 per accident. § 768.28(5), Fla. Stat. Although an “excess” judgment may be entered, the statutory caps make it impossible, absent a special claim bill passed by the legislature, for a claimant to collect more than the caps provide. Breaux v. City of Miami Beach, 899 So.2d 1059 (Fla.2005).

The beneficiary of a claim bill recovers by virtue of its enactment, regardless of whether the governmental tortfea-sor purchased liability insurance for the purpose of paying an excess judgment. Phillips. However, where the governmental tortfeasor has liability insurance in excess of $100,000, and the claimant receives compensation in excess of that statutory cap through a claim bill, the claim bill is paid with funds of the insured, not general revenue. Fla. Mun. Ins. Trust v. Village of Golf, 850 So.2d 544 (Fla. 4th DCA 2003). In other words, enactment of a claim bill may conceivably implicate available insurance in excess of the $100,000 cap contained in the statutory waiver of sovereign immunity.

Once a legislative claim bill is formally introduced, a special masters’ hearing, quasi-judicial in nature, is conducted. See Kahn, at 26. This hearing may at times resemble a trial during which the claimant offers testimony as well as documentary and physical evidence necessary to establish the claim. Trial records may be substituted for witness testimony. Witnesses who testify are sworn and subject to cross examination. Kahn, at 26. The responding agency may contest the claim and present its defense following the customary order of proof and the special master is ultimately tasked with the responsibility of preparing a written report containing an advisory recommendation to the Legislature. Kahn, at 26-27.

It is evident from this background that a legislative claim bill is truly a claim for relief and as such is included in the phrase “settlement of all claims arising out of the same incident.” The absence of the term “bill” after the word “claims” does not remove claim bill proceedings from the ambit of the exemption from disclosure. A claim bill is by its very nature a “claim,” though it is one pursued not in the courts, but rather in the legislature. Nothing in subsection 768.28(16)(b) acts to limit “claims” to judicial proceedings. The legislature encompassed more than just judicial proceedings by including the phrase “and settlement of all claims arising out of the same incident” which clearly expands the meaning of the provision beyond just the “termination of all litigation.” As the County points out:

When the language of a statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.

Campus Commc’n, Inc. v. Earnhardt, 821 So.2d 388 (Fla. 5th DCA 2002). See also Critical Intervention Serv., Inc. v. City of Clearwater, 908 So.2d 1195 (Fla. 2d DCA 2005) (in construing exemption in public records statute relating to identity of security system permit holders, court emphasized “one of the most fundamental rules of statutory construction is that a court must give a statutory term its plain and ordinary meaning”).

This conclusion that claim bills are within the scope of the exemption from disclosure contained in subsection 768.28(16)(b) fully comports with the legislative intent underlying the exemption. The legislature, in enacting the exemption for risk management files, explained:

[T]he public good served by not so exempting is far outweighed by the public harm that would result from such disclosure. If such records and meetings were not exempt, claimants would have unfettered access to, for example, the State’s evidence, negotiation strategies, and claim evaluation and settlement considerations; thus, the amount of the awards and settlements paid out by the State, its agencies and subdivisions, and ultimately the taxpayer, would increase dramatically.
Furthermore, release of such information to the public serves no public purpose (e.g., monitoring the adequacy of agency investigations and reasonableness of settlement positions) which could not be otherwise accomplished upon completion of all litigation and settlement claims when the records become publicly available.

Ch. 94-76, § 2, Laws of Fla.

These considerations apply equally to claim bill proceedings which may be vigorously contested by the governmental agency.

Wagner relies on Seminole County v. Wood, supra, but other than its recounting of the general principle that public records exemptions are to be narrowly construed, that decision has little application to this issue. In that case, Seminole County was withholding four “closed litigation files.” The case predates enactment in 1994 of the exemption contained in subsection 768.28(16)(b) and Seminole County asserted two grounds for non-disclosure: the attorney-client privilege contained in section 90.502, Florida Statutes (1985), and subsection 119.07(3)(o), Florida Statutes (1985), the Public Records Act.

This Court ruled that the records belong to the governmental entity and that the attorney-client privilege enjoyed by the County was superseded by the Public Records Act. As to that Act, the Court explained that by its terms, the exemption from disclosure for litigation files contained in subsection 119.07(3)(o) applied “until the conclusion of the litigation or adversarial administrative proceedings,” which- had occurred. Subsection 768.28(16)(b) is significantly broader in providing for the exemption from disclosure until “termination of all litigation and settlement of all claims arising out of-the same incident....” In this case, unlike in Wood, there is a pending claim bill arising out of the same incident.

Wagner asserts that under this interpretation of subsection 768.28(16)(b), the County can keep its files secret forever since if no claim bill is approved, the claim is not “settled.” We disagree. A claim bill must be filed within four years “after the cause for relief accrued,” and if a relief act results, no further claim may be pursued. § 11.065, Fla. Stat. Once the limitations period for filing a claim bill expires, or if a bill is filed and relief results, “termination of all litigation and settlement of all claims arising out of the same incident” has occurred. At that point, the exemption from disclosure, by its language and logic, ends.

We have considered whether the statutory exemption more properly ends at the conclusion of that portion of the claim bill proceedings involving the special master, but conclude that such a construction is not warranted by the language of subsection 768.28(16)(b) and further could lead to absurd consequences. For example, to have proceedings before a special master which lead to an advisory recommendation and then, prior to legislative consideration, permit wholesale disclosure of previously exempt materials could seriously devalue the contested proceedings and accompanying advisory recommendation. It would be senseless to conduct such contested proceedings which result in an advisory recommendation knowing that additional evidence will be released after such proceedings and recommendation are completed. It is elementary that a statute should be read to avoid absurd results. Bostic v. State, 902 So.2d 225 (Fla. 5th DCA 2005).

. The trial court denied Wagner access to Rissman, Barrett’s documents identified in the law firm’s privilege log filed with the trial court on the basis of subsection 119.071(l)(d), Florida Statutes, and Florida Rule of Civil Procedure 1.280(b)(5). Under subsection 119.071(l)(d), the records of an attorney, including private counsel for the government, are exempt from public records disclosure until the “conclusion of the litigation or adversarial administrative proceedings”:

(d)l. A public record that was prepared by an agency attorney (including an attorney employed or retained by the agency or employed or retained by another public officer or agency to protect or represent the interests of the agency having custody of the record) or prepared at the attorney’s express direction, that reflects a mental impression, conclusion, litigation strategy, or legal theory of the attorney or the agency, and that was prepared exclusively for civil or criminal litigation or for adversarial administrative proceedings, or that was prepared in anticipation of imminent civil or criminal litigation or imminent adversarial administrative proceedings, is exempt from s. 119.07(1) and s. 24(a), Art. I of the State Constitution until the conclusion of the litigation or adversarial administrative proceedings. For purposes of capital collaterahlitigation as set forth in s. 27.7001, the Attorney General’s office is entitled to claim this exemption for those public records prepared for direct appeal as well as.for all capital collateral litigation after direct appeal until execution of sentence or imposition of a life sentence.
2. This exemption is not waived by the release of such public record to another public employee or officer of the same agency of any person consulted by the agency attorney. When asserting the right to withhold a public record pursuant to this paragraph, the agency shall identify the potential parties to any such criminal or civil litigation or adversarial administrative proceedings. If a court finds that the document or other record has been improperly withheld under this paragraph, the party seeking access to such document or record shall be awarded reasonable attorney’s fees and costs in addition to any other remedy ordered by the court.

Wagner argues that the term “adversarial administrative proceedings” does not encompass the claim bill process which is a creature of the legislature. Wagner reiterates that an exemption from public record disclosure is to be construed narrowly and limited to its stated purpose. Seminole County v. Wood, 512 So.2d at 1002 (involving “closed litigation files”).

The County begins by noting that handwritten drafts or notes generated by an attorney which are not intended as final evidence of the knowledge to be recorded have been held not to even qualify as a “public record.”

In Johnson v. Butterworth, 713 So.2d 985 (Fla.1998), the Florida Supreme Court expressly approved this view in explaining that a “public record” is any material prepared in connection with official agency business which is intended to perpetuate, communicate of formalize knowledge of some type. The court contrasted this with materials prepared as drafts or notes, which constitute mere precursors of governmental “records.” Thus, to the extent Wagner seeks drafts or notes generated by Rissman, Barrett which are “mere precursors of governmental records,” such documents are not public records.

In considering whether other documents on Rissman, Barrett’s privilege log enjoy exemption from public records disclosure, the County argues that the language “conclusion of the litigation or adversarial administrative proceedings,” encompasses claim bill proceedings. Unlike the language in subsection 768.28(16)(b), which, in using the term “claims,” clearly encompasses a claim bill, the language here requires deeper consideration. Does “conclusion of the litigation” include within it post-judgment collection efforts which is what a claim bill, filed in connection with an “excess judgment,” would seem to constitute? Wagner appears to suggest that “conclusion of the litigation” occurs when final judgment is entered, but at common law, privileges such as attorney-client and work-product are applicable to post-judgment collection efforts. See, e.g., Hamilton v. Ramos, 796 So.2d 1269 (Fla. 4th DCA 2001); Paston v. Wiggs Contracting Co., Ltd., Inc., 698 So.2d 933 (Fla. 4th DCA 1997).

The legislature is presumed to know existing law when it enacts a statute. Holmes County Sch. Bd. v. Duffell, 651 So.2d 1176 (Fla.1995). That being so, the legislature’s use of the phrase “conclusion of the litigation” encompasses post-judgment collection efforts, which include the claim bill filed here.

This analysis does not impermissibly expand the exemption from disclosure contained in subsection 119.071(l)(d). Rather, it effectuates the purpose and intent of the exemption which was stated in City of Orlando v. Desjardins, 493 So.2d 1027, 1029 (Fla.1986):

[T]he statutory exemption now in effect well accommodates the competing interests in the confidentiality of. the attorney-client relationship and government in the sunshine under the Public Records Act by providing a temporary exemption from disclosure. The exemption also brings the statute into accordance with Florida Rule of Civil Procedure 1.280(b)(2).

As the County asserts, it strains credulity to believe that the legislature intended to provide attorney-client and work-product protection during .a civil case where tort liability is capped at $100,000 but to withdraw such protection during collection efforts arising out of the same claim, particularly where, as here, significantly more financial exposure is involved. Our construction further has the salutary effect of interpreting the exemption in subsection 119.071(l)(d) consistent with that contained in subsection 768.28(16)(b), Florida Statutes. See Prof'l Plastering & Stucco, Inc. v. Bridgeport-Strasberg Joint Venture, 940 So.2d 444 (Fla. 5th DCA 2006) (statutory provisions should be construed in harmony with each other).

The trial court correctly denied Wagner access to the litigation records held by Orange County and Rissman, Barrett, relating to Wagner’s wrongful death action.

affirmed;

ORFINGER and EVANDER, JJ„ concur.

      . Both the House and Senate each appoint a special master though the special master for the house in which the claim bill is first filed usually takes primary jurisdiction in the subsequent bicameral hearing process. Kahn, at 26.

      . While verdict-based excess judgments are typically treated more generously by the legislature, the legislative procedure requires a re-determination of liability and damages from the first dollar because the expenditure of public funds is implicated. Kahn, at 27.

      . The parties alternatively contest whether the claim bill process qualifies as an "adversarial administrative proceeding" during which the exemption from disclosure continues. The claim bill process includes quasi-judicial, adversarial proceedings before a special master but the process is not an administrative proceeding. It is a purely legislative proceeding, though one in which the legislature employs certain processes resembling that found typically in an administrative setting.

      . The County and the trial court's reliance on Florida Rule of Civil Procedure 1.280(b)(5), as offering an independent basis for non-disclosure, is unavailing. That provision states:
      (5) Claims of Privilege or Protection of Trial Preparation Materials. When a party withholds information otherwise discoverable under these rules by claiming that it is privileged or subject to protection as trial preparation material, the party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.
      Because the legislature has adopted the Florida Rules of Civil Procedure for special master hearings on claim bills, see Kahn, at 26, the County argues that Rule 1.280(b)(5) affords a basis for the claim of exemption from public records disclosure of Rissman, Barrett’s litigation files as represented by the privilege log. However, that rule cannot exempt from disclosure what the legislature has dictated is subject to disclosure. Wait v. Fla. Power & Light Co., 372 So.2d 420 (Fla. 1979) (public records are available for public inspection unless the information fits under a specific legislatively-created exemption).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Donald POTEATE, Appellant, v. Thomas JULIANO, et al., Appellee.
    No. 5D07-22.
    District Court of Appeal of Florida, Fifth District.
    June 15, 2007.
    Rehearing Denied July 20, 2007.

      Christian A. Lindbaek, of Alpizar Ville, LLC, Palm Bay, for Appellant.
    Helaine S. Goodner and Elaine I. Parris, of Fowler White Burnett P.A., Miami, for Appellee.
   PER CURIAM.

AFFIRMED. See Lucente v. State Farm, Mutual Auto. Ins. Co., 591 So.2d 1126 (Fla. 4th DCA 1992) (holding injured motorist could bring action against tort-feasor’s liability insurer for failing to provide requested insurance information only after motorist obtained judgment against tort-feasor).

THOMPSON, PALMER, and LAWSON, JJ., concur.


text:
    A.R., a juvenile, Petitioner, v. Dale DOBULER, Superintendent, Miami-Dade Regional Juvenile Detention Center, and The State of Florida, Respondents.
    No. 3D07-1514.
    District Court of Appeal of Florida, Third District.
    June 18, 2007.
    Bennett H. Brummer, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for petitioner.
    Bill McCollum, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for respondents.
    Before GERSTEN, FLETCHER, and SUAREZ, JJ.
   PER CURIAM.

A.R., a juvenile, filed a petition for writ of habeas corpus. He contends that he is being illegally detained pursuant to an order of secure detention, in violation of section 985.255(l)(a)-(j), Florida Statutes (2006). Because the trial court ordered the juvenile to remain in secure detention without providing written reasons for ordering a more restrictive placement than the risk assessment instrument indicated, we grant the petition. See § 985.255(3)(b), Fla. Stat. (2006).

To ensure that the petitioner is not improperly kept in detention, we order the trial court to either enter an order providing written reasons sufficient to comply with section 985.255(3)(b), Florida Statutes (2006), or to release A.R. from secure detention by 5 p.m. on the second business day that follows the date of this opinion. See K.M. v. Dep’t of Juv. Justice, 898 So.2d 1193 (Fla. 1st DCA 2005). This opinion shall take effect immediately notwithstanding the filing of any motion for rehearing.

Petition granted.


text:
    CITY OF KEY WEST, Appellant, v. Lorraine KNOWLES, Appellee.
    No. 3D06-1731.
    District Court of Appeal of Florida, Third District.
    June 20, 2007.

      Johnson, Anselmo, Murdoch, Burke, Piper & McDuff, P.A., and Michael T. Burke, and Tamara M. Scrudders (Ft.Lauderdale), for appellant.
    Stevens & Culmer and Joseph E. Cul-mer (Merritt Island), for appellee.
    Before GERSTEN, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

We reverse the final judgment assessing costs and attorney’s fees based upon our decision in City of Key West v. Knowles, 948 So.2d 58 (Fla. 3d DCA 2007).

Reversed.


author: COPE, C.J.

text:
    GOVERNMENT EMPLOYEES INSURANCE COMPANY, Petitioner, v. Edelmida RODRIGUEZ, Paulino Rodriguez, and Oswaldo St. Blanchard, a/k/a Oswaldo Blanchard, Respondents.
    No. 3D07-669.
    District Court of Appeal of Florida, Third District.
    June 20, 2007.
    Shutts & Bowen and Frank A. Zacherl and Kai E. Jacobs, Miami, and Edward J. O’Sheehan, Fort Lauderdale, for petitioner.
    Deutsch & Blumberg and James C. Blecke, Miami, for respondents.
    Before COPE, C.J., and SUAREZ, J., and SCHWARTZ, Senior Judge.
   COPE, C.J.

In this automobile negligence ease, the trial court ordered Government Employees Insurance Company (GEICO) to produce documents relating to its claims handling practices, even though the underlying coverage case has not been resolved and no bad faith case is pending. The petition for writ of certiorari is well taken, and we quash the trial court’s order.

Edelmida and Paulino Rodriguez sued Oswaldo St. Blanchard, alleging that Blanchard was driving an automobile that struck the Rodriguezes while they were crossing a street. Blanchard denied liability and asserted several affirmative defenses, including the defense of accord and satisfaction. Blanchard contended that the parties had reached a pre-suit settlement through negotiations between the GEICO claims examiner and the Rodri-guezes’ previous counsel.

Among the Rodriguezes’ discovery requests was a request for documents setting forth GEICO’s general claims handling practices and procedures. The Rodriguezes maintain that GEICO had opened the door to such discovery by asserting the defense of settlement. The Rodriguezes argue that they were entitled to inquire whether the claims examiner had followed GEICO’s own procedures in handling this particular claim. According to the Rodriguezes’ trial court response, they were entitled to learn whether, among other things, GEICO trained its examiners regarding “good faith claims handling....” , ■

The trial court denied GEICO’s motion for protective order. This certiorari proceeding followed.

We conclude that certiorari is an available and appropriate remedy in this circumstance. As the Fifth District Court of Appeal has explained:

When reviewing the propriety of a discovery order by certiorari, “the applicable standard of review is whether the challenged order is a departure from the essential requirements of the law, which causes material injury throughout the law suit [sic], leaving the petitioner with no other adequate remedy to review the alleged erroneous order.” Beverly Enterprises-Florida, Inc. v. Ives, 832 So.2d 161, 162 (Fla. 5th DCA 2002) (citing Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla.1995); Combs v. State, 436 So.2d 93 (Fla.1983)).
Under the facts and circumstances of this particular case, we find the discovery order departs from the essential requirements of the law. A cause of action for statutory bad faith pursuant to section 624.155(l)(b)l., Florida Statutes (2000), is premature unless there has been a determination of liability and ex-tént of damages owed the insured under the first-party insurance policy. See Vest v. Travelers Ins. Co., 753 So.2d 1270, 1276 (Fla.2000). Hence, a party is not entitled to discovery of an insurer’s claim file or documents relating to the insurer’s business policies or practices regarding the handling of claims in an action for insurance benefits combined with a bad faith action until the insurer’s obligation to provide coverage has been established. See Liberty Mut. Ins. Co. v. Farm, Inc., 754 So.2d 865 (Fla. 3d DCA 2000) (holding that a discovery order in a bad faith action requiring disclosure of the insurer’s business practices was premature without a determination of the coverage issue); American Bankers Ins. Co. of Fla. v. Wheeler, 711 So.2d 1347 (Fla. 5th DCA 1998) (holding that in a bad faith action, when the issue of coverage has not been determined, it is a departure from the essential requirements of the law to order disclosure of the insurer’s claims file and the insurer’s claims handling manuals and materials); State Farm Fire & Cas. Co. v. Martin, 673 So.2d 518 (Fla. 5th DCA 1996); see also Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So.2d 1289 (Fla. 1991).
Therefore, because Republic’s obligation to provide coverage has yet to be determined, the trial court departed from the essential requirements of the law in ordering production of Republic’s title claim litigation files and the documents relating to its business policies and practices regarding the handling of claims, leaving Republic with no adequate remedy to review the erroneous order. Accordingly, we grant the petition and quash the portion of the order compelling production of documents contained in Republic’s litigation files and the documents relating to its business policies and practices.

Old Republic Nat. Title Ins. Co. v. HomeAmerican Credit, Inc., 844 So.2d 818, 819-20 (Fla. 5th DCA 2003).

The argument that GEICO somehow opened the door to inquiry regarding its claims handling procedures by interposing the defense of settlement is without merit. Either the case was settled, or it was not. The content of GEICO’s internal claims handling procedures is immaterial.

For the stated reasons, the trial court’s order is quashed.

Certiorari granted.

      . The disputed discovery request states:
      2. All Geico policies and procedures and manuals and print-out of computer program guides concerning pre-litigation settlements with Claimants and/or Claimants’ attorneys, how to handle settlement when a pedestrian is involved, the various types of Releases and Hold Harmless Agreement to utilize and when to utilize them, documenting the file, computer programs that are used, how to exercise good faith claims handling in obtaining presuit, settlements, communications and correspondence to Geico insured as to their potential role, rights and responsibilities as to presuit settlements, the entitlement to pedestrian of PIP coverage from a Geico insured driver, the use of Hold Harmless Indemnification Agreement executed-by Claimant’s lawyer.


text:
    Manuel HERBERT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-1097.
    District Court of Appeal of Florida, Third District.
    June 20, 2007.
    Bennett H. Brummer, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and William J. Selinger, Assistant Attorney General, for appellee.
    Before GERSTEN, RAMIREZ, and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Saleem v. State, 773 So.2d 89 (Fla. 5th DCA 2000).


author: SUAREZ, J.

text:
    A.C. HARROLL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2195.
    District Court of Appeal of Florida, Third District.
    June 20, 2007.
    Bennett H. Brummer, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Laura Moszer, Assistant Attorney General, for appellee.
    Before FLETCHER, WELLS, and SUAREZ, JJ.
   SUAREZ, J.

The defendant appeals an order of the trial court modifying his probation to require him to wear a G.P.S. transmitter as a condition of his probation. We affirm.

The defendant was charged with failing to re-register as a sexual offender in violation of section 943.0435, Florida Statutes (2006). On July 6, 2006;- the defendant entered a plea of guilty and was sentencéd to two years of probation with a special condition that he continue to register as required. On July 28, 2006, pursuant to a Department of Corrections request, the trial court re-visited the issue of the mandatory-monitoring sentencing requirements under section 948.30, Florida Statutes (2006). Under section 948.30, Florida Statutes (2006), the trial court is required to impose mandatory electronic monitoring as a condition of probation for defendants previously convicted of unlawful sexual activity involving a victim fifteen years of age or younger where the offender is eighteen years of age or older. The defendant had previously been convicted of lewd and lascivious assault on a child under the age of twelve, see § 800.04, Fla. Stat. (1990), and sexual battery on a minor under twelve years of age. See § 794.011, Fla. Stat. (1990). On August 18, 2006, pursuant to section 948.30, the trial court imposed G.P.S. electronic monitoring as a mandatory condition of the defendant’s probation. The defendant appeals the final judgment of conviction and sentence ordering him to wear the transmitter on grounds of double jeopardy.

We hold that the trial court did not err by imposing the mandatory condition of sex-offender probation of wearing the G.P.S. monitor. Under Florida Rule of Criminal Procedure 3.800(c), the trial court may modify an incomplete sentence within sixty days of its imposition to include any provision of chapter 948 which it failed to originally pronounce. Where the defendant’s sentence is incomplete because it omits a mandatory condition of probation under chapter 948 as part of the sex-offender sentence, the trial court may properly modify the defendant’s sentence within sixty days to include the condition mandated by chapter 948. Cf. Kiriazes v. State, 798 So.2d 789 (Fla. 5th DCA 2001). Moreover, “[i]t does not offend double jeopardy principles to re-sentence a defendant to harsher terms when the original sentence [is] invalid....” See Allen v. State, 853 So.2d 533, 536 (Fla. 5th DCA 2003)(citing Bozza v. U.S., 330 U.S. 160, 67 S.Ct. 645, 91 L.Ed. 818 (1947)(re-sentenc-ing that imposes more severe sentence to correct omitted mandatory penalty does not violate double jeopardy clause)); see also Oce v. State, 795 So.2d 278 (Fla. 3d DCA 2001)(Cope, J., concurring).

Affirmed.

      . Section 948.30, Florida Statutes (2006) provides in pertinent part:
      948.30. Additional terms and conditions of probation or community control for certain sex offenses.—
      Conditions imposed pursuant to this section do not require oral pronouncement at the time of sentencing and shall be considered standard conditions of probation or community control for offenders specified in this section.

      (3) Effective for a probationer or community controllee whose crime was committed on or after September 1, 2005, and who:
      (a) Is placed on probation or community control for a violation of chapter 794, s. 800.04(4), (5), or (6), s. 827.071, or s. 847.0145 and the unlawful sexual activity involved a victim 15 years of age or younger arid the offender is 1S years of age or older;
      (b) Is designated a sexual predator pursuant to s. 775.21; or .
      (c) Has previously been convicted of a violation of chápter 794, s. 800.04(4), (5), or (6), s. 827.071, or s. 847.0145 and the unlawful sexual activity involved a victim 15 years of age or younger and the offender is 18 years of age or older,
        the court must order, in addition to any other provision of this section, mandatory electronic monitoring as a condition of the probation or community control supervision. (emphasis supplied)


author: WELLS, J.

text:
    Jean Audrey HASTINGS n/k/a Jean Audrey Shepard and Lance Hastings n/k/a Lance Shepard, Appellants, v. The ESTATE OF Lawrence Vaeth HASTINGS, Appellee.
    No. 3D07-386.
    District Court of Appeal of Florida, Third District.
    June 20, 2007.

      Philip D. Parrish, Miami, for appellant.

      Miller, Schwartz & Miller and A. Matthew Miller, Hollywood, for appellee.
    Before GREEN, WELLS, and ROTHENBERG, JJ.
   WELLS, J.

Lance Hastings n/k/a Lance Shepard appeals from an order dismissing with prejudice his third amended petition for statutory child support as a sanction for failure to comply with a court order. We reverse.

Jean Audrey Hastings n/k/a Jean Audrey Shepard (the mother) and Lawrence Vaeth Hastings (the father) divorced in 1953. The father was ordered to pay child support until Lance, the parties’ only child, reached the age of 21. In 2001, the father filed a declaratory judgment action to determine whether he was obligated to pay child support for Lance, then 50 years old, who suffered from an autism-related condition known as Asperger’s syndrome, for which Lance had received treatment since he was 8 years old. Mother and son counter-petitioned for statutory child support.

The trial court granted summary judgment for the father, concluding that it was too late for a support action to be brought. In Hastings v. Hastings, 841 So.2d 484, 486 (Fla. 3d DCA 2003), this court reversed and remanded for further proceedings, finding that “a dependent person’s right to an independent action against her or his father or mother ... can be brought at any time as the parents remain responsible for support throughout the dependency, and throughout their lives.”

Following remand, on May 30, 2004, the father died. Mother and son were given 90 days in which to substitute the father’s estate as a party. They failed to timely do so (filing one day late) claiming that they had been prevented from timely amending to join the estate because no estate had been opened by the father’s surviving spouse within the time allotted for amendment. At the urging of the estate, the action was dismissed. However, after much wrangling with the estate, the dismissal order was vacated and mother and son were permitted to proceed on their second amended petition.

On January 9, 2006, the trial court dismissed, with prejudice, all claims for child support for that period of time between the date on which the son attained majority and the date on which the counter petition for support was filed (November 2, 2001). The court also dismissed all claims for support following the date of the father’s death (May 30, 2004). The mother was ordered to amend to name herself as a respondent rather than as a petitioner. Mother and son were accorded 60 days in which to amend.

Two weeks later, mother and son’s second lawyer was granted leave to withdraw because he was turning 70 years of age and retiring from the practice of law. In early March 2006, within the 60 days allotted for filing of an amended petition, Greenberg Traurig, P.A. entered an appearance for the purpose of securing an additional 60 day extension, or through June 13, 2006, to permit Legal Aid of Miami to familiarize itself with this action so as to assist mother and son on a pro bono basis. The motion was granted. Greenberg Traurig thereafter sought an additional 30 day extension, until July 13, 2006, for Legal Aid to work on this matter. Two days after this motion was filed, Greenberg Traurig sought to withdraw al-, leging that it only agreed to appear pro bono in this matter as part of its participation in Legal Aid’s Put Something Back program and that it had appeared for the sole purpose of giving Legal Aid sufficient time to study the case and to secure a family lawyer to represent mother and son on a pro bono basis. An extension of time through July 13 was granted, and Green-berg Traurig was permitted to withdraw.

On July 12, 2006, the son filed a pro se motion for extension of time to permit Legal Aid to continue in its efforts to locate a family lawyer for him. On September 8, the father’s estate moved for dismissal with prejudice for failure to amend. Mother and son were ordered to file an amended pleading no later than October 16, 2006 on penalty of dismissal with prejudice.

On October 16, 2006, the son filed another pro se motion for extension of time to amend. He also filed a pro se motion for leave to amend and accompanied that request with a third amended petition. This proposed pro se amendment properly named the estate as a party and also named the mother as a respondent instead of as a petitioner as previously ordered. The motions for an extension of time and for leave to amend were, however, denied and the action dismissed with prejudice for failure to timely file an amended petition.

We .reverse the order of dismissal with prejudice and remand for reinstatement of this action, because mother and son complied with the trial court’s order by filing an amended petition, albeit along with an unnecessary motion for leave to amend, by October 16. Since there was no violation of a court order, no sanction should have been imposed.

Even if the motion for leave to amend with its attachment were viewed as a violation of the trial court’s earlier order, dismissal of the instant action with prejudice would be too drastic a sanction. While a trial court may, without doubt, dismiss an action as a sanction for violation of a court order, it should do so “only, in extreme circumstances.” Clay v. City of Margate, 546 So.2d 434, 435 (Fla. 4th DCA 1989); see Fla. R. Civ. P. 1.420(b) (“Any party may move for dismissal of an* action ... for failure of an adverse party to comply with these rules or any order of court.”); Kozel v. Ostendorf 629 So.2d 817, 817 (Fla.1994) (noting that “the trial court has the discretionary power to dismiss a complaint if the plaintiff fails to timely file an amendment”); Samuels v. King Motor Co. of Fort Lauderdale, 782 So.2d 489, 500 (Fla. 4th DCA 2001) (finding that rule 1.420(b) permits dismissal of an action as a sanction for “failure to comply with orders of the court to amend a complaint to state a cause of action”). As the Florida Supreme Court in Kozel made clear, where missed filing deadlines are concerned, dismissal with prejudice should not be imposed as a sanction unless the lawyer or party has acted in a willful, deliberate, or contumacious manner rather than negligently or from inexperience; a previous sanction has been imposed; a party has been personally involved in an act of disobedience; the delay has prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; no reasonable justification for noncompliance exists; and, the delay has created significant problems of judicial administration. Kozel, 629 So.2d at 818.

In this case none of these factors were either found by the trial court (or for that matter appear) to exist. Dismissal with prejudice was, therefore, unwarranted. See Cummings v. Warren Henry Motors, Inc., 648 So.2d 1230, 1232 (Fla. 4th DCA 1995) (finding that “dismissal of an action as a sanction for violating an order of the court is error where the court fails to make an express written finding of a party’s willful or deliberate refusal to obey a court order”); see Samuels, 782 So.2d at 500 (providing “dismissal as a sanction under Rule 1.420(b) is erroneous where the trial court fails to make an express written finding of a party’s willful refusal to obey the court order or contumacious disregard of the court’s order”).

That is especially so in this case because, as conceded at oral argument, at minimum a viable claim for support for that period of time spanning the filing of the counter petition (November 2, 2001) and the father’s death (May 30, 2004) exists. See Samuels, 782 So.2d at 500 (dismissal with prejudice improper where “the Plaintiffs either did state causes of action or could, with some amendment, state causes of action”); Cummings, 648 So.2d at 1232 (stating that “dismissal of the complaint as a sanction for violating the court’s order to amend the complaint is additionally erroneous when the complaint filed states a cause of action”); see also Dimick v. Ray, 774 So.2d 830, 833 (Fla. 4th DCA 2000) (reversing dismissal of second amended complaint as a sanction where no abuse of the amendment process had been shown and there was not a “virtual endless stream of amendments”). Accordingly, the order on appeal is reversed, and this matter is remanded for reinstatement and further proceedings consistent with this opinion.

      . This left Lance with a support claim for a total of only 31 months.

      . Although an order pre-dating the first appeal in this case stated that mother and son could seek temporary support and attorneys' fees from the father (who from the record appears to have held both J.D. and M.D. degrees and to have been of substantial means), there is no indication that any temporary support or fee awards have ever been entered.


text:
    Hossam ANTAR, Appellant, v. SEAMILES, LLC., et al., Appellees.
    No. 3D06-2028.
    District Court of Appeal of Florida, Third District.
    June 20, 2007.
    Mark C. Perry, Fort Lauderdale, for appellant.
    De La O, Marko, Magolnick & Leyton, and Miguel De La O, and Farah J. Martinez, Miami, for appellees.
    Before RAMIREZ, CORTINAS, and ROTHENBERG, JJ.
   PER CURIAM.

Hossam Antar appeals the trial court’s Ex Parte Order Granting Emergency Preliminary Injunction and the trial court’s Order on Defendant’s Motion to Vacate Ex Parte Order Granting Emergency Permanent Injunction. Wé dismiss the appeal as moot.

The Florida Supreme Court has held that:

An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect. A case is “moot” when it presents no actual controversy or when the issues have ceased to exist. A moot case will generally be dismissed.

Godwin v. State, 593 So.2d 211, 212 (Fla. 1992) (citations omitted). Here, there was no injunction in effect. The computers and hard drives which were seized have all been returned to Antar. Furthermore, the record presents none of the three exceptions recognized by the Florida Supreme Court in which a moot case will not be dismissed. Id. at 212. Accordingly, the appeal is dismissed. See Operation Rescue Nat’l. v. City of Orlando, 712 So.2d 449 (Fla. 5th DCA 1998).

Appeal dismissed.


text:
    The STATE of Florida, Appellant, v. Mario GASTON, Appellee.
    No. 3D04-2326.
    District Court of Appeal of Florida, Third District.
    June 20, 2007.
    Bill McCollum, Attorney General, and Jill K. Traína, Assistant Attorney General, for appellant.
    Jerrard B. Cutrone, Miami, for appellee.
    Before RAMIREZ, WELLS, and CORTIÑAS, JJ.
   ON REMAND

WELLS, J.

This case is before us on remand for reconsideration following the Florida Supreme Court’s decision in Gaston v. State, 950 So.2d 397 (Fla.2007).

In State v. Gaston, 911 So.2d 257 (Fla. 3d DCA 2005), this court reversed a trial court order vacating a plea allegedly entered in violation of Florida Rule of Criminal Procedure 3.172(c)(8), which requires trial judges to inform those intending to plead guilty or nolo contendré “that, if he or she is not a United States citizen, the plea may subject him or her to deportation .... ” We reversed the order vacating Gaston’s plea relying on earlier decisions from this court in which we concluded that only initiation of deportation proceedings constituted sufficient prejudice to state a prima facie case for vacating a plea for this reason. Id. at 258, citing Kindelan v. State, 786 So.2d 599, 600 (Fla. 3d DCA 2001) (holding that denial of a request to adjust immigration status and a finding that movant was excludable is not a “threat of deportation” that would support vacating a plea for failure to advise of deportation consequences); Aparicio v. State, 893 So.2d 630, 631 (Fla. 3d DCA 2005) (ruling that advice by immigration counsel that application for citizenship or possible detention on reentering the country was not a threat of deportation that would support vacating a plea for failure to advise of deportation consequences); Saldana v. State, 786 So.2d 643, 645 (Fla. 3d DCA 2001) (finding that a notice that a detainer would be placed on the movant and initiation of an investigation into de-portability was not a threat of deportation that would support vacating a plea for failure to advise of deportation consequences); see also Peart v. State, 756 So.2d 42, 48 (Fla.2000) (holding that a motion to withdraw a guilty or no contest plea for failure to advise of deportation consequences must demonstrate that the movant has been threatened with deportation because of the plea).

We also certified conflict with Green v. State, 895 So.2d 441 (Fla. 4th DCA 2005), which was already pending review in the Florida Supreme Court on an acknowledged conflict between Green and other decisions from this court as to whether “nothing less than the initiation of a deportation proceeding will constitute sufficient prejudice by reason of a ‘threat of deportation.’ ” See State v. Green, 944 So.2d 208, 212 (Fla.2006) (quoting Green, 895 So.2d at 444).

The Supreme Court has now resolved the issue, receding, in part, from its earlier decision in Peart to hold that a plea entered without advice of deportation consequences, rather than an actual threat of deportation, constitutes prejudice sufficient to support a motion to vacate:

In Peart v. State, 756 So.2d 42 (Fla. 2000), we held that to establish prejudice arising from a trial court’s failure to advise a defendant of deportation consequences of a plea, a defendant “must be threatened with deportation resulting from the plea.” Id. at 46. However, in Green, we receded from this statement in Peart and held that “[h]eneeforth, it is the fact that the plea subjects the defendant to deportation, rather than a specific threat of deportation, that establishes prejudice.” 944 So.2d at 218.

Gaston, 950 So.2d at 398.

Because our decision in Gaston was predicated on that portion of Peart from which the Florida Supreme Court has now receded, the Supreme Court has remanded this matter for this court to apply the new standard stated in Green:

The decision below applied the Peart standard requiring an allegation of a specific threat of deportation rather than the requirement in Green that the defendant allege that the plea subjected the defendant to deportation. Accordingly, we quash the Third District decision in this case and remand for reconsideration in light of our decision in Green.

Id.

Under Green, a motion to vacate a plea must allege that: (1) the trial court did not advise the defendant of the deportation consequences at the time of the plea; (2) the defendant would not have accepted the plea if properly advised; and, (3) the plea renders the defendant subject to deportation:

To reiterate our holding ... [t]he motion must allege, in addition to the lack of a deportation warning, that the defendant would not have entered the plea if properly advised and that under current law the plea does render the defendant subject to being removed from the country at some point in the future.

Green, 944 So.2d. at 219.

Gaston’s motion meets these pleading requirements. More importantly, the un-rebutted testimony adduced at the eviden-tiary hearing on this motion supports these allegations. Based on this record, we cannot say that the court below erred in vacating Gaston’s plea.

The order granting Gaston’s motion to vacate his plea is, therefore, affirmed.


author: MONACO, J. PER CURIAM.

text:
    GALE INDUSTRIES, INC., etc., Appellant, v. Frank J. TRYTEK and Cathy L. Trytek, Appellee.
    No. 5D06-1569.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2007.
    Order Denying Rehearing and Granting Certification Aug. 3, 3007.
    Edward M. Baird and Mark T. Snelson, of Wright, Fulford, Moorhead & Brown, P.A., Orlando, for Appellant.

      Michael R. D’Lugo, of Wicker, Smith, O’Hara, McCoy, Graham & Ford, P.A., Orlando, for Appellee.
   MONACO, J.

The appellant, Gale Industries, Inc., seeks review of a final order determining that the appellees, Frank J. Trytek and Cathy L. Trytek, were the prevailing parties for the purpose of the trial court’s award of attorneys’ fees pursuant to section 713.29, Florida Statutes (2005). Because we conclude that Gale Industries was the prevailing party in this construction lien foreclosure, we reverse.

Mr. and Mrs. Trytek were building a new residence. As part of that project, they contracted with Gale Industries, an insulation contractor, to provide insulation throughout the structure. While installing the insulation, Gale’s employees inadvertently caused some staples to be driven through some previously installed electrical wires. The parties agreed that Try-Cor Electric Company, a corporation owned by Frank Trytek that was involved in electrical contracting, would make the necessary repairs. After Try-Cor finished its work the Tryteks delivered an invoice to Gale Industries for the purported cost of the repairs, which after some adjustments was in the final amount of $18,630. Gale Industries balked and declined to set off that amount from its bill because it thought that the cost was unreasonably high.

Eventually, Gale Industries recorded a construction claim of lien in the amount of $12,725 for the insulation work, and timely brought suit to foreclose the lien. Mr. and Mrs. Trytek counterclaimed for the $18,630 cost of the electrical repairs. Early in the proceedings the parties stipulated that the Gale Industries claim of lien complied procedurally with the construction lien law, Chapter 713, Florida Statutes (2001), and that all notice requirements had been met. In addition, the parties agreed that the lien accurately stated the value of the labor, services and materials provided by Gale, subject only to the Try-tek counterclaim. An agreed order was rendered that established that Gale’s lien was procedurally sufficient; that no evidence would be necessary at trial on that issue; and that Gale Industries was entitled to recover the amount stated in the lien, less any damages proved by Mr. and Mrs. Trytek; and that the only issue to be resolved at trial was the value of the damages alleged in the counterclaim.

Following a nonjury trial, the trial court entered an order determining that the Tryteks were entitled to repair costs of $11,200. After setting off that figure against the agreed lien amount of $12,725, the net result was a judgment for $1,525 in favor of Gale Industries.

Thereafter, each party concluded that it was the “prevailing party” and filed cross-motions to tax attorneys’ fees and costs pursuant to section 713.29, Florida Statutes (2005). After a hearing on the motions the trial court, while expressing some concern over this court’s position on the definition of prevailing party in the construction lien context, determined that it was required to apply the “significant issues” test set forth in Prosperi v. Code, Inc., 626 So.2d 1360 (Fla.1993), in order to award fees and costs properly. The court then found that the Tryteks were the prevailing party because the only real issue in the case was how much money should be set off against the Gale Industries lien, and the Tryteks primarily prevailed on their counterclaim. The court then awarded attorneys’ fees of $55,982.00 and costs of $4,016.67 in favor of Mr. and Mrs. Trytek. Gale appeals.

Section 718.29, Florida' Statutes, which concerns attorneys’ fees in construction lien cases, states that:

[I]n any action brought to enforce a lien or to enforce a claim against a bond under this part, the prevailing party is entitled to recover a reasonable fee for the services of her or his attorney for trial and appeal or for arbitration, in an amount to be determined by the court, which fee must be taxed as part of the prevailing party’s costs, as allowed in equitable actions.

Historically, a contractor or subcontractor who recovered a judgment pursuant to a construction lien, even if it recovered less than the amount sought, would be entitled to attorney’s fees as long as they recovered something. See K & M Elec. Supply, Inc. v. Moduplex Corp., 686 So.2d 717, 718 (Fla. 4th DCA 1997). That is to say, if the contractor obtained any monetary judgment pursuant to a Chapter 713 action, it would ordinarily be considered the prevailing party.

Fifteen years ago, however, the Florida Supreme Court determined in Moritz v. Hoyt Enterprises, 604 So.2d 807 (Fla. 1992), in a breach of contract context that the methodology to be used in deciding which party prevailed and was, therefore, entitled to receive an award of attorneys’ fees, was the “significant issues” test. Using that test, the trial court is required to decide “which party has in fact prevailed on the significant issues tried before the court.” Id. at 810.

Not long thereafter the high court addressed the effect of Moritz on the prevailing party language of section 713.29. In Prosperi, the case thoroughly considered by the trial court, the supreme court focused on this issue. There, a contractor filed a four-count complaint against the owner seeking damages for: (1) foreclosure of a mechanic’s lien; (2) breach of contract; (3) quantum meruit; and (4) accounts stated. The owner counterclaimed for breach of contract based upon the filing by the contractor of untrue affidavits, the failure of the contractor to account, and the contractor’s incomplete or negligent performance of the contract. Of critical importance for purposes of our analysis, however, is the fact that the trial court in Prosperi declined to grant relief on the claim for the construction hen because the contractor had submitted false interim affidavits. Instead, the trial court held that the contract was breached originally by the contractor because of its filing of false affidavits and because it inaccurately accounted to the owner. The end result was that the trial court found that $31,898.01 remained unpaid under the contract, but that, the owner was entitled to a set-off of $14,588.95 for the cost of completion of the contract, for damages resulting from certain construction defects, and for other expenses incurred by the owner. The other two claims based on quantum meruit and accounts stated were then apparently disposed of without liability. The trial court then denied both the contractor’s claim and the owner’s claim for attorneys’ fees. The owner appealed the denial of attorneys’ fees, but the district court of appeal affirmed. The question of whether either party was entitled to attorneys’ fees, however, was certified to the Florida Supreme Court.

Our Supreme Court began its analysis by discussing the “net judgment” rule. It indicated that:

[T]he net judgment rule comes into play when the claimant fails to foreclose a mechanic’s lien but obtains a judgment for the underlying claim which exceeds any claim of the owner. As applied, the rule automatically precludes the owner from recovering attorney’s fees under section 713.29. It has no relevance to an award of attorney’s fees to the claimant because an unsuccessful lien claimant cannot recover ■ attorney’s fees under section 713.29.

[Emphasis supplied]. See Prosperi, 626 So.2d at n. 1. The court; in light of Mor-itz, then held that the fact that a claimant recovers a net judgment is a significant, but not necessarily controlling factor in determining who is- to be considered to be the prevailing party, and that the trial judge must have the flexibility to consider the equities in determining who prevailed on the significant issues. Thus, under Prosperi the party that prevails on the significant issues is entitled to attorneys’ fees.

It appears to us, however, that Prosperi only applies to net judgment cases. The specific definition of a net judgment case, as set forth by the supreme court, is one in which the claimant of a construction lien fails to recover a positive judgment on the lien. Inasmuch as Gale Industries actually recovered a positive judgment in its lien foreclosure action, the case before us does not meet' the definition of a net judgment case. Thus, because Gale Industries recovered a-judgment on its lien,- albeit a much smaller judgment than it was originally seeking, we must look to other precedent for guidance.

As we noted earlier, in cases where a claimant in a construction lien action actually recovers a judgment on that claim, the claimant has traditionally been deemed to be the prevailing party and, accordingly, entitled to attorney’s fees pursuant-to statute, even if the claimant recovers only a nominal amount. See DCC Constructors, Inc. v. Yacht Club Southeastern, Inc., 839 So.2d. 731 (Fla. 3d DCA 2003); Kenmark Constr., Inc. v. Cronin, 765 So.2d 129 (Fla. 2d DCA 2000); Salisbury Constr. Corp. v. Mitchell, 491 So.2d 308 (Fla. 4th DCA 1986); Hub Cap Heaven, Inc. v. Goodman, 431 So.2d 323 (Fla. 3d DCA 1983). See also Peter Marich & Assocs., Inc. v. Powell, 365 So.2d 754 (Fla. 2d DCA 1978) (prevailing party is one in whose favor an affirmative judgment is rendered even though the judgment is for less than initially sought in the complaint). Nothing in Prosperi appears to compel a different result.

This court has addressed the fees issue twice in the recent past. In Corley v. Rivertown, Inc., 863 So.2d 1244 (Fla. 5th DCA 2004), we held that the lienholder was the prevailing party because it recovered on the lien that it sought to enforce against the owners. We noted that the “construction lien was the significant issue tried before the trial court.” Id., at 1246. Similarly, in Michael David Ivey, Inc. v. Salazar, 903 So.2d 329 (Fla. 5th DCA 2005), we considered another case in which the contractor prevailed in its claim under a construction lien, and the owner was successful on a counterclaim and was awarded a set-off against the lien. The trial court found that each party prevailed against the other and would bear their own attorney’s fees and costs. The bottom line was, however, that the contractor had a positive recovery on the lien. As a result, we reversed and remanded for imposition of fees in favor of the contractor. While the trial judge may have had some justifiable concerns in reading these cases regarding'whether Prosperi applies to successfully prosecuted construction lien foreclosure cases, they are both entirely consistent with the result announced here.

In summary, we continue to adhere to the rule that mandates an award of attorneys’ fees in favor of a lienor if it is successful in recovering damages in excess of any asserted counterclaim damages in a lien foreclosure action. In cases of this variety, the lienor is the prevailing party for purposes of section 713.29. Prosperi and the “significant issues” test would only apply in cases where the lien foreclosure action is dismissed, discharged, or otherwise denied by the trial court.

Accordingly, we reverse the award of attorneys’ fees and costs in favor of the Tryteks, and remand for imposition of a fees and cost award in favor of Gale.

REVERSED and REMANDED with instructions.

EVANDER, J., and ORFINGER, M„ Senior Judge concur. ■

ON MOTION FOR REHEARING AND FOR CERTIFICATION

PER CURIAM.

The appellees, Frank J. Trytek and Cathy L. Trytek, have moved for-rehearing and for certification of a question of great public importance. Although we deny-the motion for rehearing, we do certify the following question upon which we passed in accordance with rule 9.030(a)(2)(A)(v), Florida Rules of Appellate Procedure, as one of great public importance:

When a lienor obtains a judgment against a property owner in an action to enforce a construction lien brought pursuant to section 713.29, Florida Statutes (2005), does the trial court have the discretion to apply the “significant issues” test articulated in Prosperi v.Code, Inc., 626 So.2d 1360 (Fla.1993), instead of the net judgment rule in determining which party is the “prevailing party’.’ for the purpose of awarding attorney’s fees?

MONACO, EVANDER, JJ., and ORFINGER, M., Senior Judge concur.

      . We point out, as well, that the Tryteks recovered significantly less on their counterclaim than they sought.

      . We note that no proposal for settlement or offer of judgment was made by the Tryteks in the trial court. See Fla. R. Civ. P. 1.442.; Fla. Stat. 768.79 (2005).


text:
    Clarence ALLEN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-3490.
    District Court of Appeal of Florida, First District.
    June 27, 2007.
    Clarence Alen, pro se, Petitioner.
    Bill McCollum, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent. .
   PER CURIAM.

Petitioner’s “Motion to Rule on Civil Liability Claim Issue on Order to Show Cause for Status Report/process” will be treated by this court as a response to the order of May 16, 2007. The petition for writ of mandamus is denied as moot.

BENTON, PADOVANO, and THOMAS, JJ., concur.


author: COPE, C.J. SCHWARTZ, Senior Judge

text:
    N.L., Appellant, v. DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D07-176.
    District Court of Appeal of Florida, Third District.
    June 27, 2007.

      Kenneth M. Kaplan and Karl Hall, for appellant.
    Karla Perkins, Assistant District Legal Counsel, Department of Children and Family Services, for appellee.
    Before, COPE, C.J., and LAGOA, J., and SCHWARTZ, Senior Judge.
   COPE, C.J.

The question to be' decided is whether the Department of Children and Family Services (DCF) properly served the mother, N.L., with the dependency petition. Because DCF did not accomplish personal service of process on the mother and, alternatively, did not establish diligent search, we must reverse the dependency order, without prejudice to DCF on remand to accomplish service by a method allowed by the applicable statute.

I

By way of background, N.L. gave birth to a baby who tested positive for cocaine (as did N.L.) at the time of delivery. The child was placed in shelter care and a shelter petition was filed. At the shelter hearing the trial court reviewed .the sworn shelter petition, found probable cause to believe that the child was’dependent, and ruled that shelter care was in the best interest of the child.

The mother had been given notice of the shelter hearing but arrived late, after the shelter order had been entered. The court appointed counsel to represent the mother.

In the shelter order, the court scheduled August 1, 2006 as the date for the filing hearing, i.e., the date on which the dependency petition (which had not yet been written) would be filed. The mother was served with a summons to appear in court on August l.

At the August 1 hearing, DCF filed a petition for dependency. N.L. did not attend the hearing but her attorney was present. DCF mistakenly advised the court that the mother had been personally served with the summons and dependency petition.

The mother also failed to appear at the August 15 arraignment hearing. DCF again mistakenly advised the "court that the mother had been personally served with the dependency petition. The mother’s counsel argued that there was no return of service in the file.

After further inquiry DCF conceded that the dependency petition had not been served on the mother. DCF argued, however, that service on the mother’s attorney was effective service on the mother. DCF also argued that the mother’s failure to appear constituted consent to the dependency order. The trial court entered an adjudication of dependency and the mother has appealed.

II.

The dependency petition is the initial pleading in a dependency proceeding. The petition in this case was filed on August 1, 2006.

By statute there are two methods of service of a dependency petition: personal service for a parent who can be located, and diligent search and inquiry for a parent who cannot be located. § 39.502(4)-(9), Fla. Stat. (2006).

Personal service is accomplished by personal service of the summons and dependency petition on the respondent or respondents in the dependency proceeding. Id. § 39.502(3)-(5); Fla. R. Juv. P. 8.225(a)(1).

If a respondent cannot be located after diligent search and inquiry, then the statute allows the case to proceed upon the filing of “an affidavit of diligent search prepared by the person who made the search and inquiry, and the court may appoint a guardian ad litem for the child.” § 39.502(8), Fla. Stat. (2006).

In this case there was no personal service of the dependency petition on the mother and no affidavit of diligent search. It follows that the court never acquired jurisdiction of the mother for purposes of the dependency proceeding. The dependency order must be reversed, without prejudice to the Department to serve the mother by a method allowed by the statute.

III.'

DCF argues, and the trial court agreed, that service of the dependency petition on the mother’s counsel was effective to accomplish personal service on the mother. That is not so.

The initial dependency must be served personally or through affidavit of diligent search. § 39.502(3)-(9), Fla. Stat. (2006). Thereafter, pleadings, papers and orders are to be served on counsel where a party is represented by an attorney. Fla. R. Juv. P 8.225(c)(4). The cases relied on by DCF involved notices and papers filed after the initial petition. L.W. v. Fla. Dep’t of Children and Family Servs., 829 So.2d 938 (Fla. 3d DCA 2002); M.A. v. Dep’t of Children and Family Servs., 760 So.2d 249 (Fla. 3d DCA 2000); M.E. v. Dep’t of Children and Family Servs., 728 So.2d 367 (Fla. 3d DCA 1999). None of these cases involve the service of initial process.

DCF also argues that the mother’s failure to appear at the filing hearing on August 1 constituted consent to the dependency petition. The mother had been served with a summons to appear at the August 1 hearing. The summons contained a warning that failure to respond or appear at the hearing constitutes consent to an adjudication of the child as dependent and may ultimately result in loss of custody of the child.

There is no authority for such a warning in connection with a filing hearing. Such a warning is authorized for an arraignment hearing, but not a filing hearing. See Fla. R. Juv. P. 8.225(c)(1); § 39.506(3), Fla. Stat. (2006). The trial court’s entry of default was impermissible.

After the trial court entered the dependency order, the mother’s counsel moved for rehearing, reiterating the argument that the mother had neither been served with process nor proceeded against by affidavit of diligent search. This motion was denied.

DCF argues that the mother’s motion did not address the three-part test for vacating a default. See E.S. v. Dep’t of Children and Family Servs., 878 So.2d 493, 496 (Fla. 3d DCA 2004). That test does not apply where there has been no service of process. See Dor Cha, Inc. v. Hollingsworth, 876 So.2d 678, 679 (Fla. 4th DCA 2004)(“plaintiff ... concedes that a motion to vacate a void judgment for inadequate service of process may be made at any time and that the motion need not allege a meritorious defense.”) (citations omitted).

IV.

For the stated reasons, we reverse the dependency order and remand the cause to the trial court. This ruling is without prejudice to DCF to accomplish personal service or diligent search as allowed by the applicable statute.

Reversed and remanded for further consistent proceedings.

LAGOA, J., concurs.

SCHWARTZ, Senior Judge

(dissenting).

I do not know what the Department could have done that it did not do in the face of the circumstances presented by the irresponsible acts of the mother. I do know (or think I know), however, that any minor and unavoidable deviation from the letter of the law with respect to the notice given to the mother had no effect on her substantial rights, let alone those of her child, who is entitled to a parent who would not both totally abandon him and ignore lawful orders of the court, which told her in crystal clarity the consequences of her deliberate failure to appear or to be concerned. I would affirm.

      . Subsection 39.502(1), Florida Statutes (2006) provides, “Notice in cases involving shelter hearings ... must be that most likely to result in actual notice to the parents.”

      . The shelter order also set forth the dates for the arraignment hearing (Aug. 15, 2006), judicial review (Dec. 19, 2006), and permanency hearing (July 17, 2007).

      '. The papers must also include notice of the arraignment hearing. Fla. R. Juv. .P. 8.225(c)(1).

      . The statute goes on to say:
      (9) When an affidavit of diligent search has been filed under subsection (8), the petitioner shall continue to search for and attempt to serve the person sought until excused from further search by the court. The petitioner shall report on the results of the search at each court hearing until the person is identified or located or further search is excused by the court.
      (10) Service by publication shall not be required for dependency hearings and the . failure to serve a party or give notice to a participant shall not affect the validity of an order of adjudication or disposition if •the court finds that the petitioner has completed a diligent search for the party.

        Id. § 39.502(9)-(10). ■

      . The statute also recognizes that a personal ' appearance by a person "obviates the necessity of serving process on that person.” § 39.502(2), Fla. Stat. (2006).


author: CORTINAS, Judge.

text:
    J.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2708.
    District Court of Appeal of Florida, Third District.
    June 27, 2007.

      Bennett H. Brummer, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Lisa A. Davis, Assistant Attorney General, for appellee.
    Before GERSTEN, CORTIÑAS, and ROTHENBERG, JJ.
   CORTINAS, Judge.

The defendant, J.M., appeals the trial court’s order adjudicating him delinquent for resisting an officer without violence as well as the trial court’s denial of his motion for judgment of acquittal. We affirm.

On February 17, 2006, immediately after Carol City Senior High School was released for the day, a large crowd of approximately four hundred students gathered at a nearby park to watch a fight between two girls. Officers Eugene Williams (“Officer Williams”) and William Paz (“Officer Paz”)- (collectively “the officers”), of the Miami-Dade Schools Police Department, went to the park to investigate the reason for the crowd’s gathering.

The officers testified that they ordered the entire crowd to leave the park. The officers repeatedly issued this order to leave. Some students followed the officers’ orders to leave, but others did not. Officer Williams testified that one individual refused to leave when ordered directly by Officer Williams and was thereafter detained.

Subsequently, J.M. and two other individuals began to approach Officer Williams from about twenty-five yards away. Officer Williams testified that J.M. stated that he was the brother of the detained individual and asked Officer Williams to release his brother. Officer Williams told J.M. to stop but J.M. continued to approach him with clenched fists. Later, J.M. crossed the street and was detained by Officer Williams. J.M. was charged with disorderly conduct in violation of sections 877.03 and 777.011, Florida Statutes (2005), and resisting an officer without violence in violation of section 843.02, Florida Statutes (2005).

At the close of the State’s case in chief, and again after the defense rested, J.M. moved for judgment of acquittal. The trial court denied both motions. The trial court found that Officer Williams was engaged in the lawful execution of his legal duty by giving commands to everyone to leave the park for public safety reasons. The trial court also found that J.M. knew he was supposed to leave the park. Based upon J.M.’s failure to leave the park as the officers had initially requested, the trial court found him guilty of resisting an officer without violence under section 843.02, Florida Statutes (2005). At a subsequent disposition hearing, the court withheld adjudication and issued a judicial warning. J.M.’s appeal followed.

Section 843.02, Florida Statutes (2005), provides that “[w]hoever shall resist, obstruct or oppose any officer ... in the lawful execution of any legal duty, without offering or doing violence to the person of the officer, shall be guilty of a misdemeanor of the first degree.... ” § 843.02, Fla. Stat. (2005). Thus, the elements of the crime of resisting an officer without violence are: “(1) [that] the officer was engaged in the lawful execution of a legal duty; and (2) [that] the defendant’s action ... constitute^] obstruction or resistance of that lawful duty.” P.B. v. State, 899 So.2d 480, 482 (Fla. 3d DCA 2005)(finding that a juvenile resisted an officer without violence by not stopping when ordered to do so by an officer trying to conduct an investigatory stop); see also N.H. v. State, 890 So.2d 514, 516-17 (Fla. 3d DCA 2005)(finding that a juvenile resisted an officer by refusing to identify himself and allow officers to conduct an investigation); H.A.P. v. State, 834 So.2d 237, 239 (Fla. 3d DCA 2002)(holding that a juvenile resisted an officer without violence by refusing to leave an area where the SWAT team was conducting a search). Section 843.02 is intended to apply when a person willfully interferes with an officer’s lawful activities. N.H., 890 So.2d at 516. However, inaction can constitute interference under section 843.02. K.A.C. v. State, 707 So.2d 1175, 1177 (Fla. 3d DCA 1998)(finding that a juvenile’s refusal to identify himself and his school upon request by an officer constitutes an inaction and resisting an officer without violence).

On appeal, J.M. does not dispute that there was sufficient evidence to establish that Officer Williams was engaged in the lawful execution of a legal duty. Instead, J.M. contends that he did not resist Officer Williams’ execution of that legal duty. We find that there was sufficient evidence to support the trial court’s finding that J.M. resisted Officer Williams without violence. Officer Williams testified that he told the crowd to leave the park and that he observed J.M. in the park after issuing these orders. Officer Williams further testified that other individuals in the crowd heard the officers’ commands to leave the park and complied with their instructions. Clearly, J.M. remained in the park, as evidenced by him approaching Officer Williams to aid his brother. Therefore, J.M.’s presence in the park after the orders to leave was sufficient to support the trial court’s order finding him delinquent for violating section 843.02. Because there was sufficient evidence to support the charges against J.M., the trial court correctly denied J.M.’s motion for judgment of acquittal.

Accordingly, we affirm the trial court’s order finding J.M. delinquent for resisting an officer without violence and the trial court’s denial of J.M.’s motion for judgment of acquittal.

Affirmed.

      .The trial court noted that these facts were not the basis of J.M.’s adjudication because they were not pled in the charging document.

      . J.M. was acquitted of the charge of disorderly conduct.

      . The defense did not present any evidence.


author: SHEPHERD, J.

text:
    Frank Abel HERNANDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D04-602.
    District Court of Appeal of Florida, Third District.
    June 27, 2007.
    Bennett H. Brummer, Miami, Public Defender, and Roy A. Heimlich, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, Orlando, and Jennifer Falcone Moore, Assistant Attorney General, Tampa, for appellee.
    Before SHEPHERD and ROTHENBERG, JJ., and LEVY, Senior Judge.
   SHEPHERD, J.

Defendant brings us four points of error by direct appeal of his conviction and sen-tenee for burglary of an unoccupied dwelling and grand theft. We find merit only in the last point concerning his sentence. We discuss each point briefly.

Defendant first asserts he was entitled to a judgment of acquittal due to a lack of competent evidence from which the jury could conclude defendant entered the victim’s residence. The only evidence on this point is a standard fingerprint card placed into evidence by the State, without defense objection, during the course of the State’s latent fingerprint examiner’s expert testimony. The examiner identified the print to a standard taken from defendant. On the back of the card is a handwritten notation from the police department crime scene technician, tying the print to the date and place of the crime. The technician was deposed by defendant but not called by either party. No other testimony placed the print at the location of the crime.

Defendant contends the handwriting on the back of the card constituted inadmissible hearsay, and is insufficient to support a jury verdict that defendant was in the premises. We disagree. The failure of defendant to object to the admission of the card constitutes a waiver of this point. See Ray v. State, 403 So.2d 956 (Fla.1981); German v. State, 379 So.2d 1013, 1014 (Fla. 4th DCA 1980). The evidence on this point is sufficient to support the jury verdict. See Pagan v. State, 830 So.2d 792, 803 (Fla.2002)(“If, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt, sufficient evidence exists to sustain a conviction.”). We note in passing that defense counsel had ample access to the card, having cross-examined the expert latent fingerprint examiner, and elected to publish the card to the jury. Defendant’s attacks on the prosecution on this appeal are meritless.

Defendant next contends the trial court erred by refusing to allow the defense, during closing argument, to comment upon the fact that the technician was an uncalled witness. We find no error. “[T]he purpose of closing argument is dis-served when comment upon irrelevant matters is permitted.” Haliburton v. State, 561 So.2d 248, 250 (Fla.1990). The fact that a potential witness, even a police officer who worked on the case, is not called by the State does not give the defendant absolute right to insinuate on closing argument that the witness’s testimony would be negative to the State. State v. Michaels, 454 So.2d 560, 562 (Fla. 1984)(“When such witnesses are equally available to both parties, no inference should be drawn or comments made on the failure of either-party to call the witness.”). Cf. Martinez v. State, 478 So.2d 871, 871 (Fla. 3d DCA 1985)(“[A]n inference adverse to a party based on the party’s failure to call a witness is permissible when it is shown that the witness is peculiarly within the party’s power to produce and the testimony of the witness would elucidate the transaction.”). Finally, it was admitted at oral argument that calling the technician would have only further “prosecuted] our own client.”

Defendant’s third argument is that burglary of an unoccupied dwelling does not constitute a forcible felony that would permit his sentence as a “violent career criminal” under section 775.084(l)(d), Florida Statutes (1999). This argument repeatedly has been rejected by this court. Delsol v. State, 837 So.2d 428 (Fla. 3d DCA 2002), review denied 889 So.2d 71 (Fla.2004); Diaz v. State, 837 So.2d 436 (Fla. 3d DCA 2002); Rodriguez v. State, 826 So.2d 464 (Fla. 3d DCA 2002).

We find the State properly confessed error on the defendant’s fourth point. At the time of the offenses, burglary was not a qualifying offense under the Prison Re-leasee Reoffender Act. § 775.082(9)(a)(l), Fla. Stat. (1999). The fifteen-year minimum mandatory sentence given defendant under this statute must be vacated.

Affirmed in part, and reversed in part, with directions to vacate the Prison Re-leasee Reoffender Act portion of defendant’s sentence. The defendant need not be present.


text:
    Ramiro Jose ALVAREZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-999.
    District Court of Appeal of Florida, Third District.
    June 27, 2007.
    Haley, Sinagra, Paul Toland and Ana M. Jhones, for appellant.
    Bill McCollum, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before COPE, C.J., and LAGOA, J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See State v. Green, 944 So.2d 208, 218 (Fla.2006).


text:
    Stacey MOORE, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-4981.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.
    Stacey Moore, Immokalee, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Heidi L. Bettendorf, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The trial court’s order summarily denying post conviction relief following appellant’s motion and supplemental motion filed pursuant to Florida Rule of Criminal Procedure 3.850 is affirmed. However, af-firmance is without prejudice to appellant’s right to file in the trial court within thirty (30) days of this court’s mandate an amendment to his motion only as to claim one in the supplement, alleging ineffective assistance of trial counsel for failure to investigate, depose and call for trial Dominique Tukes and Tonia Moore. Nelson v. State, 875 So.2d 579 (Fla.2004). The amendment shall address the requirement of a pleading of the availability of the witnesses. Id. at 583-84. If an amended motion is filed, then the trial court shall either hold an evidentiary hearing or attach record evidence which conclusively refutes appellant’s claim.

Affirmed.

FARMER, SHAHOOD and TAYLOR, JJ., concur.


text:
    REGIONS BANK f/k/a Union Planters Bank, N.A., Petitioner, v. Ralph GLENDINNING, Respondent.
    No. 4D07-1564.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.
    David S. -Garbett of Garbett, Bronstein, Stiphany Allen & Roza, P.A., Miami, for petitioner.
    No response required for respondent.
   PER CURIAM.

Regions Bank seeks certiorari review of a trial court order denying its motion to stay proceedings on its complaint for declaratory relief seeking to establish that it had no liability under a letter of credit. We deny the petition.

Trial courts have broad discretion in granting or denying stays of subsequently-filed actions. See Office Depot, Inc. v. Marsh & McLennan Cos., 937 So.2d 1139, 1140 (Fla.2006); REWJB Gas Invs. v. Land O’Sun Realty, Ltd., 643 So.2d 1107, 1108 (Fla. 4th DCA 1994). Given this broad discretion, Regions has a heavy burden to demonstrate a departure from the essential requirements of law. A stay requires “substantial similarity of parties and actions.” Sauder v. Rayman, 800 So.2d 355, 357 (Fla. 4th DCA 2001).

Regions contends that a related case in the Bahamas justifies a stay in this one. Regions is not a party to the Bahamas case. The Bahamas case is primarily a contract action; the declaratory action concerns the bank’s responsibility under a letter of credit. The issues regarding the letter of credit are largely independent of the underlying but separate agreement for the sale of the Bahamas property. See generally Daiwa Prods., Inc. v. Nationsbank, N.A., 885 So.2d 884, 889 (Fla. 4th DCA 2004); § 675.102(4), Fla. Stat. (2006). The trial court did not abuse its discretion in denying the stay.

GUNTHER, POLEN, and GROSS, JJ. concur.


text:
    Murray LEOPOLD, Petitioner, v. STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY & MOTOR VEHICLES, BUREAU OF ADMINISTRATIVE REVIEWS, Respondent.
    No. 4D07-1791.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2007.

      Jason T. Forman of the Law Offices of Jason T. Forman, P.A., Fort Lauderdale, for petitioner.
    No response required for respondent.
   PER CURIAM.

We deny the petition for writ of certio-rari on the merits. See Lescher v. Dep’t of Highway Safety & Motor Vehicles, 946 So.2d 1140 (Fla. 4th DCA 2006), review granted, 949 So.2d 198 (Fla.2007); Hill v. Dep’t of Highway Safety & Motor Vehicles, 891 So.2d 1202, 1203 (Fla. 4th DCA 2005) (piting Cantrall v. Dep’t of Highway Safety & Motor Vehicles, 828 So.2d 1062 (Fla. 2d DCA 2002)).

We certify the same question that this court-certified in Lescher:

Does the amendment to section 322.271(4), Florida Statutes, which elimi'nated hardship driver’s licenses effective July 1, 2003, violate the prohibition against ex post facto laws as to persons who could have applied for a hardship license before the amendment became effective?

946 So.2d at 1142.

Certiorari Denied.

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