text:
    Mary Anne SAADEH and Anwar Saadeh, Petitioners, v. CITY OF JACKSONVILLE and Stanton Rowing Foundation, Respondents.
    No. 1D07-0584.
    District Court of Appeal of Florida, First District.
    Oct. 24, 2007.
    Rehearing Denied Dec. 5, 2007.

      Barry A. Bobek, of Barry A. Bobek, P.A., Jacksonville, for Appellants.
    Stephen H. Durant, of Durant & Schoeppell, P.A., Jacksonville; Richard A. Mullaney, General Counsel, and Tracey I. Arpen, Jr., Deputy General Counsel, City of Jacksonville, Jacksonville, for Appellees.
   PER CURIAM.

Petitioners Mary Anne and Anwar Saa-deh bring this second-tier petition for writ of certiorari, arguing the circuit court departed from the essential requirements of law in denying their challenge to the City of Jacksonville’s adoption of Ordinance 2005-487-E, rezoning certain residential property on the Arlington River. Because we find Ordinance 2005-487-E is inconsistent with the City of Jacksonville’s 2010 Comprehensive Plan, we grant certiorari, quash the circuit court’s order, and remand with directions that the circuit court enter an order quashing Ordinance 2005-487-E.

I. Background.

In May 1996, respondent, the Stanton Rowing Foundation, with financial support from respondent the City of Jacksonville, purchased two acres of property on the Arlington River in Jacksonville, Florida. It appears the City of Jacksonville originally intended to lease the property to Stanton, a competitive rowing club founded in association with the Stanton Preparatory High School, to operate a public rowing park. However, the City of Jacksonville has since formally cancelled its lease with the Stanton Foundation, such that Stanton now operates solely as a nonprofit Florida corporation. The Foundation provides a space for Stanton students, as well as certain members of the qualified rowing public, to exercise, warm-up and launch boats, or shells, on the Arlington River. Petitioners, Mr. and Mrs. Saadeh, own several residential properties adjacent to, or in the same neighborhood as, the Stanton Foundation property.

Land use and development within the City of Jacksonville is currently guided by the City’s 2010 Comprehensive Plan (the “Comprehensive Plan”). Pursuant to the Comprehensive Plan, the City is divided into one of several general land use categories, including residential, commercial or industrial areas. Each general category is further divided into subcategories. Thus, as it relates to this appeal, the residential category is divided into four subcategories: rural residential, low density residential, medium density residential, and high density residential. The Stanton Foundation’s property is within a Low Density Residential (LDR) area. Each subcategory is in turn zoned according to its primary and secondary uses, with the secondary uses intended to support the various primary uses. The Stanton Foundation’s property was zoned a Residential Low Density-D (RLD-D) District, a primary zoning district.

Since 1996, petitioners have filed a number of lawsuits against the Stanton Foundation seeking to curtail its operations in their neighborhood. In 2002, the Saadehs brought an action against the Stanton Foundation seeking to enjoin its continued use of the property as a private rowing club and to recover money damages, alleging that Stanton’s use of the property constituted a private nuisance. Petitioners argued that the City of Jacksonville had recently amended the Jacksonville Ordinance Code to allow only “neighborhood parks, pocket parks, playgrounds, or recreational structures which serve or support a neighborhood or several adjacent neighborhoods” in a RLD-D district. In violation of this Ordinance, petitioners argued the Stanton Foundation operates its property as a “private club” for the exclusive benefit of Stanton Preparatory High School students. The Fourth Circuit granted summary judgment in favor of the Stanton Foundation, finding petitioners’ suit barred by res judicata. Specifically, the court cited an earlier circuit court decision on a zoning violation, wherein it determined that Stanton’s use of the property, pursuant to the City’s lease arrangement, fit within the plain and ordinary meaning of a “park,” and was therefore a permissible use of property in an RLD-D District.

On appeal, this court reversed the summary judgement. See Saadeh v. Stanton Rowing Found., Inc., 912 So.2d 28 (Fla. 1st DCA 2005). We noted that res judi-cata extends only to the facts and conditions as they existed at the time the prior court rendered its judgment. Indeed, since the previous zoning case, the City of Jacksonville had cancelled its lease with the Stanton Foundation, diminishing Stanton’s status as a public park. Thus, we held Stanton’s use of its property was more consistent with a private club. Id. at 31. Accordingly, this court remanded the case to the circuit court for further proceedings.

While petitioners’ appeal was pending in this court, the Stanton Foundation initiated proceedings to rezone the property. Stanton ultimately sought to rezone its property as a Planned Unit Development (PUD) District, so that it could construct a boathouse to house its shells, as well as certain exercise equipment, currently stored outdoors. On July 14, 2005, the City Planning Commission voted to recommend approving the application for rezoning, subject to the following conditions: (a) that the footprint of the proposed boathouse not exceed 75 feet by 75 feet; (b) that the boathouse not exceed 35 feet in height, (c) that the boathouse shall be set back at least ten feet from its property boundaries, and (d) that the boathouse shall be built to accommodate no more than fifty shells, or seats for 137 rowers. On July 19, 2005, the Land Use and Zoning Committee approved the application for rezoning, subject to the above conditions. Accordingly, the rezoning was adopted by City Ordinance 2005-487-E, on August 22, 2005.

Subsequently, petitioners filed a Petition for Writ of Certiorari in the Fourth Judicial Circuit Court for Duval County. Petitioners raised two arguments below. First, that the City violated their procedural due process rights in failing to provide sufficient notice. Second, petitioners argued that Ordinance 2005-487-E was inconsistent with the 2010 Comprehensive Plan, and thus the City’s approval of the Ordinance was a departure from the essential requirements of law. On November 14, 2006, the circuit court denied the petition. Petitioners filed a Motion for Rehearing, which the court denied on December 27, 2006. Accordingly, petitioners have brought the instant certiorari petition.

II. Analysis

Petitioners seek second-tier cer-tiorari review of the Jacksonville City Council’s approval and adoption of Ordinance 2005^187-E. When a zoning board rules on an application for rezoning, the parties may twice seek review in the court system. First, a party may, as a matter of right, seek certiorari review at the circuit court level. See Florida Power & Light Co. v. City of Dania, 761 So.2d 1089, 1092 (Fla.2000). On “first-tier” review, the circuit court must determine “(1) whether procedural due process is accorded, (2) whether the essential requirements of the law have been observed, and (3) whether the administrative findings and judgment are supported by competent substantial evidence.” Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195, 199 (Fla.2003) (internal citations omitted). Next, the parties may seek “second tier” review of the circuit court’s decision by petitioning for review in the district court. “The scope of the district court’s review on second-tier certiorari is limited to whether the circuit court (1) afforded procedural due process, and (2) applied the correct law. In other words, this two-pronged, second-tier review is simply another way of deciding whether the lower court ‘departed from the essential requirements of law.’ ” Id. (internal citations omitted). We also note:

The test in reviewing a challenge to a zoning action on grounds that a proposed project is inconsistent with the comprehensive land use plan is whether the zoning authority’s determination that a proposed development conforms to each element and the objectives of the land use plan is supported by competent and substantial evidence. The traditional and non-deferential standard of strict judicial scrutiny applies.

Dixon v. City of Jacksonville, 774 So.2d 763, 764 (Fla. 1st DCA 2000).

Petitioners assert that the circuit court departed from the essential requirements of law in denying their certiorari petition below. They contend Ordinance 2005-487-E is inconsistent with the City of Jacksonville’s 2010 Comprehensive Plan and the City’s Land Use Regulations. We agree with petitioners, to the extent they argue Ordinance 2005-487-E does not comply with the Comprehensive Plan. Specifically, we conclude that the Comprehensive Plan does not permit the operation of a private club, such as the one operated by the Stanton Foundation, within the LDR land use subcategory, under any of the primary or permissible secondary uses.

Initially, we hold that the Stanton Foundation’s use of the property is essentially as a private club, rather than as a public park or recreation facility. In our earlier decision in this case, Saadeh v. Stanton Rowing Found., Inc., 912 So.2d 28 (Fla. 1st DCA 2005), we rejected Stanton’s contention that, even after the City of Jacksonville cancelled its lease, it continued to operate a public park. Without dispute, the original lease arrangement between Stanton and the City provided that qualified members of the public could use the Stanton property for rowing and related activities, supporting the conclusion that the property was, in effect, a public park. However, with the cancellation of the lease, we noted these observations pale. Id. at. 31. Similarly, we also rejected Stanton’s contention that its use of the property as a private recreational facility nonetheless met the zoning ordinance:

Although the zoning ordinance in question refers to “parks, playgrounds, and playfields,” and does not specifically use the term “public park,” we find that Stanton’s definition is so broad as to render the referenced term “parks” meaningless. We further note that the Jacksonville Ordinance Code makes provision for private clubs, which are defined, in part, as facilities “owned or operated by a corporation, association, or persons for social, educational, or recreational purpose.” Jacksonville Ordinance Code, § 656.1601. Because the Code contains this separate provision, we have determined that use by Stanton of its property as a private recreational area is not consistent with the RLD requirement of “parks, playgrounds and playfields.”

Id. at 31.

Respondents urge that our prior holding in Saadeh does not control this case, because the City of Jacksonville has since defined “parks” to include a much broader range of facilities and uses. Indeed, they contend that the new definition makes no distinction between public and private ownership and thus, they suggest, is intended to incorporate both. We disagree. While, at the time of our decision in Saa-deh, the Jacksonville Ordinance Code did not include a definition of “park,” the Code now defines that term as “an area designed to include a combination of passive recreation ... as well as active recreation ... attracting visitors from the community and beyond a one-mile radius.” See Jacksonville Ordinance Code, § 656.1601. Nonetheless, this new definition is substantially the same as the plain and ordinary meaning of the word “park” as we previously defined it, that is, “an area used for recreation and amusement.” Furthermore, the Ordinance Code also continues to separately define a “private club” as “buildings or facilities owned or operated by a corporation, association, or persons for a social, educational, or recreational purpose.” See Jacksonville Ordinance Code, § 656.1601. The Stanton Foundation falls squarely within this definition. Thus, despite the newly amended definition of the term “park,” we continue to agree with our previous ruling, that Stanton’s interpretation of the Ordinance Code and its definitions “is so broad as to render the referenced term ‘parks’ meaningless.” Saadeh, 912 So.2d at 31. We conclude that Stanton’s use of the property is as a private club, rather than as a public park.

Turning to the Comprehensive Plan, the Stanton Foundation’s property is designated LDR, and as such is intended as a primarily residential area, permitting housing developments and single family residences in a gross density range of up to seven dwelling units per acre. See Jacksonville Ordinance Code, § 656.305. Pursuant to, and consistent with, the Comprehensive Plan, Jacksonville’s Land Use Regulations permit a number of primary uses, as well as “uses by exception” within the LDR category. Notably, the LDR category does not permit the operation of a private club, either as primary use or as a use by exception. In contrast, a private club is expressly included as a permissible use by exception within the Medium and High Density Residential (MDR, HDR) land use categories. See Jacksonville Ordinance Code, § 656.306(A)(II)(c)(9); § 656.307(A)(II)(c)(6).

This court has previously rejected attempts to rezone property where the intended use is not permitted in the Comprehensive Plan, either specifically or by reasonable implication. In Dixon v. City of Jacksonville, 774 So.2d 763, we reversed a circuit court order affirming a Jacksonville City ordinance to rezone certain commercial property as a PUD district, because the proposed use was not permitted in the Comprehensive Plan. In that case, the appellant sought a temporary injunction to enjoin the city from enforcing a zoning ordinance, which would rezone certain property adjacent to the appellant’s property from a commercial office district, within the mixed residential/professional/institutional (RPI) category, to a PUD District, in order to allow the construction of a hotel on the property. Id. at 764. We noted, “[njowhere is the use of a hotel mentioned within the RPI classification, either specifically, or by reasonable implication.” Id. at 765. Thus, the court held, “[w]e therefore conclude, from our examination of the various uses within the RPI subcategory, both primary and secondary, that the planned development of a hotel cannot qualify as any type of permissible use. Accordingly, the traditional maxim of construction, expressio unius est exclusio alterius, appears altogether applicable.” Id. at 766. Similarly, in this case, we conclude that the City’s decision to include private clubs within the MDR and HDR land use categories implies the exclusion of that use within the LDR category.

Respondents also assert that, although a private club is not a permissible primary use, the LDR land use category does allow development of certain secondary uses, including a PUD District. Indeed, the Ordinance Code does permit PUD Districts, designed or intended to “create living environments that are responsive to the needs of their inhabitants; to provide flexibility in planning, design and development; [and] to encourage innovative approaches to the design of community environments.... ” See Jacksonville Ordinance Code, § 656.340. However, the Ordinance Code, also provides, “[i]t is not the intent to utilize the Planned Unit Development district solely to diminish the usual application of the provisions of the Zoning Code.” Id. Moreover, in developing a PUD District, the Ordinance Code requires the City to consider whether the proposed rezoning is consistent with the Comprehensive Plan, and whether the land uses within the proposed PUD District are consistent or compatible with the existing and planned uses of the surrounding property. See Jacksonville Ordinance Code, § 656.341(d)(1), (5). Accordingly, the Ordinance Code does not permit a property owner to pursue development, through a PUD District, that is inconsistent with the types of uses generally allowed in the land use category.

Therefore, we hold that the Stanton Foundation is currently operating a private club on its property on the Arlington River, and that such use is not permitted in the Comprehensive Plan, either as a primary or secondary use. We reject petitioners’ remaining arguments without comment. Accordingly, we GRANT certiorari, QUASH the circuit court’s order, and REMAND with directions that the circuit court enter an order quashing Ordinance 2005-487-E.

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

      . Initially, the Stanton Foundation sought to rezone their property as a Conservation (CSV) District. However, petitioners, as well as several members of the City Land Use and Zoning Committee, expressed concern that the CSV District would place significantly few restrictions on the size and capacity boathouse the Stanton Foundation could build. Accordingly, the application for rezoning was resubmitted as an application to rezone to a PUD District.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Russell T. NEAL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-4913.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2007.
    Rehearing Denied Dec. 4, 2007.
    Russell T. Neal, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(5)(C).

WOLF, POLSTON, and THOMAS, JJ., concur.


text:
    Alonzo Mathew McQUEEN, Petitioner, v. FLORIDA PAROLE COMMISSION and James R. McDonough, Secretary, Florida Department of Corrections, Respondents.
    No. 1D07-5124.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2007.
    Rehearing Denied Dec. 4, 2007.

      Alonzo Mathew McQueen, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WOLF, POLSTON, and THOMAS, JJ., concur.


text:
    John H. BAKER o/b/o Anthony BAKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5179.
    District Court of Appeal of Florida, First District.
    Oct. 25, 2007.
    Anthony Baker, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

WOLF, POLSTON, and THOMAS, JJ., concur.


text:
    Charles J. MATTHEWS, Appellant, v. MISENER MARINE and AIU North American, Inc., Appellees.
    No. 1D07-0678.
    District Court of Appeal of Florida, First District.
    Oct. 26, 2007.
    Charles W. Smith, Winter Park, and Bill McCabe of Shepherd, McCabe & Cooley, Longwood, for Appellant.
    Donald S. Bennett of Fowler, White, Boggs, Banker, P.A., Tampa, for Appel-lees.
   PER CURIAM.

AFFIRMED. See Lucas v. Englewood Cmty. Hosp. & RSKCO, 963 So.2d 894 (Fla. 1st DCA 2007).

DAVIS, LEWIS, and ROBERTS, JJ., concur.


text:
    Edmond G. JONES, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-6390.
    District Court of Appeal of Florida, First District.
    Oct. 26, 2007.

      Edmond G. Jones, pro se.
    Bill McCollum, Attorney General, and Joe Belitzky, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Phillips v. McDonough, 962 So.2d 375 (Fla. 1st DCA 2007).

WEBSTER, PADOVANO, and POLSTON, JJ., concur.


author: LAWSON, J.

text:
    Kenneth Ray BURTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D06-3138.
    District Court of Appeal of Florida, Fifth District.
    Oct. 26, 2007.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appellee.
   LAWSON, J.

Kenneth Ray Burton appeals from his sentence imposed after the trial court granted his motion to correct an illegal sentence. Burton argues that his current sentence is illegal because it exceeds the fifteen-year statutory maximum sentence allowed for a second degree felony. However, Burton was convicted of a first degree felony. Because his sentence does not exceed the thirty-year maximum sentence allowed for a first degree felony, we affirm.

Burton was originally charged by information with attempted first degree murder, for shooting his victim in the head with a .38 caliber handgun. The information alleged that during the commission of the offense Burton “did carry, display, use, threaten or attempt to use a weapon or firearm, to wit: .38 CALIBER HANDGUN, contrary to Sections ... 775.087(1), Florida Statutes.” Section 775.087(1), Florida Statutes (1998), mandates a one-level increase in a felony’s severity ranking for use of a firearm or other weapon during commission of the felony.

At the conclusion of Burton’s trial, the jury returned a verdict of guilty to the charge of attempted second degree murder, and also returned a special interrogatory verdict finding that during commission of the crime Burton “carried, displayed, used, threatened to use, or attempted to use a firearm.” At the time, attempted second degree murder was classified as a second degree felony. See § 782.04(2), Fla. Stat. (1998); § 777.04, Fla. Stat. (1998). Under section 775.087(1), the crime was reclassified to a first degree felony based upon the jury’s finding that Burton used a firearm while committing the crime. See also, Firsher v. State, 834 So.2d 921, 923 (Fla. 3d DCA 2003) (“attempted second degree murder with a firearm ... is a first degree felony”).

The 1995 guidelines scoresheet included within the record called for a sentencing range between five to eight and a half years. However, the trial judge made written findings justifying an upward departure, and sentenced Burton to the maximum sentence permitted for a first degree felony — -thirty years. On appeal, we affirmed. See Burton v. State, 771 So.2d 1291 (Fla. 5th DCA 2000). We have also affirmed two prior trial court orders denying motions which Burton filed pursuant to rule 3.800(a) challenging his departure sentence. See Burton v. State, 923 So.2d 512 (Fla. 5th DCA 2006); Burton v. State, 889 So.2d 82 (Fla. 5th DCA 2004). In his direct appeal and in these prior postconviction proceedings Burton never argued that his conviction for attempted second degree murder with a firearm should not have been classified as a first degree felony. Instead, he simply challenged the trial court’s basis for departing from the sentencing guidelines. In his second 3.800(a) motion, filed in 2004, Burton argued for the first time that the findings could not legally support an upward departure under Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), because they were not made by a jury. Again, we affirmed the trial court’s denial on this basis, without opinion.

In his third 3.800(a) motion, Burton once again challenged the findings made by the trial judge to support the upward departure based upon Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and also cited Blakely v. Washington, 542 U.S. 296, 303, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Apprendi and Blakely do not apply retroactively. See Hughes v. State, 901 So.2d 837, 840 (Fla.2005) (holding that Apprendi does not apply retroactively in Florida in postconviction proceedings to cases that were final on direct review at the time of the Apprendi decision); Langford v. State, 929 So.2d 598 (Fla. 5th DCA 2006) (“Blakely ... is not retroactive”). However, the trial judge granted Burton’s third 3.800(a) motion based upon his erroneous view that Burton was entitled to relief because his direct appeal was in the “pipe-fine” when Apprendi was decided in 2000. See Mitchell v. Moore, 786 So.2d 521, 530 (Fla.2001) (recognizing that the “pipeline” theory allows a defendant to seek application of a new rule of law if the case is pending on direct review or not yet final and the defendant timely objected at trial). Because Burton did not object to the trial judge’s ability to depart from the sentencing guidelines based upon factors not found by the jury during the original proceeding, and failed to raise the constitutional issue on direct appeal, his Apprendi claim is procedurally barred notwithstanding that his direct appeal was in the “pipeline” when Apprendi was decided. Evans v. State, 946 So.2d 1, 15 (Fla.2006); Mitchell, 786 So.2d at 530.

In granting relief, the trial judge also mistakenly announced that Burton had only been convicted of a second degree felony. Then, the judge vacated the thirty-year sentence and resentenced Burton to a combination of incarceration and probation that totals sixteen years, three months and nineteen days. Burton rests his appeal on the inconsistency between the judge’s announcement that he was convicted of a second degree felony and imposition of a sentence that exceeds the statutory maximum permitted for a second degree felony. As already noted, however, Burton was convicted of a first degree felony, a fact not changed by the trial judge’s erroneous conclusion to the contrary. Therefore, the new sentence is valid.

Because the State does not challenge the trial court’s basis for granting Burton’s 3.800(a) motion, we affirm the new sentence.

AFFIRMED.

PALMER, C.J., and PLEUS, J., concur.

      . Attempted second degree murder is still classified as a second degree felony today. See § 782.04(2), Fla. Stat. (2007); § 777.04, Fla. Stat. (2007).

      . The incarcerative portion of the new sentence is eighty months (a sentence within the range of five to eight and a half years permitted using the original scoresheet, absent a departure).


author:
KAHN, J.
      BENTON, J.,

text:
    Lemil DESIR, Appellant, v. NOUVEAU ASSOCIATES and Claims Center, Appellees.
    No. 1D06-5943.
    District Court of Appeal of Florida, First District.
    Oct. 30, 2007.
    Rehearing Denied Dec. 7, 2007.

      Mark L. Zientz and Andrea Cox of the Law Offices of Mark L. Zientz, P.A., Miami, for Appellant.
    Carlos D. Cabrera and A. Hinda Klein of Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, P.A., Hollywood, for Appellees.
   KAHN, J.

In this workers’ compensation case, Lemil Desir, a catastrophically injured worker, sought an award of certain living expenses. The Judge of Compensation Claims (JCC) found that the expenses sought, water and utility bills, were not medically necessary under section 440.13, Florida Statutes, and denied the benefit. We reverse because our case law demonstrates that, under the facts as presented to the JCC, the employer/carrier (E/C) are responsible for paying the difference between what the claimant paid before the accident and post-accident living expenses attributable to the injury.

BACKGROUND

As a result of an industrial injury, admittedly compensable, appellant suffers permanent paralysis from the neck down. Appellees have provided normal medical and indemnity benefits and have, without necessity of a JCC order, purchased and built a home specifically designed to address Desir’s unique needs as a quadriplegic. The E/C hold title to the real estate where appellant now lives.

Before the accident, Desir and his family lived in a two-bedroom apartment. He paid a total of $700 per month, which amount included water, sewer, and garbage fees. In addition, Desk paid his electric utilities bill dkectly. These facts are not in dispute. The E/C have stipulated that Desk’s water and sewer bill in the new home averages $161 a month.

Appellant took the position that he is required under workers’ compensation law to pay $700 per month toward his present living expenses, and that the $700 he pays necessarily includes water, sewer, and garbage. Desk agreed to pay that portion of the electric utility bill not attributable to the injury, and no dispute exists as to that. The E/C took the position that Desk should pay $700 per month, attributable solely to rent, and should also pay his water, sewer, and garbage, over and above the rent.

The issue, as Desk sees it, is whether the $700 a month includes water, sewer, and garbage bills, or whether that amount should be credited solely to rent, with De-sir paying the utility bills. After hearing, the JCC entered an order finding that claimant’s pre-injury “all inclusive rent” would not be dispositive of whether claimant’s need for water and sewer has become a medically necessary benefit. As a result, the JCC attributed all of claimant’s pre-injury payment of $700 to rent; found that water, sewer, and garbage were not medically necessary under section 440.13; and denied claimant’s request for payment of these utilities.

ANALYSIS

On appeal, Desir does not dispute that the utilities at issue are ordinary living expenses. Instead, he argues that when an accident creates a situation rendering a claimant incapable of maintaining his cost of living before the accident, additional expenses should be viewed as uniquely attributable to the accident. Moreover, at the hearing below, Desir’s counsel noted in closing argument that the medical necessity of utility service was not the issue before the JCC. The E/C take the position that each benefit under section 440.13 must be viewed individually and determined medically necessary. Because the JCC did not find medical necessity for the water, sewer, and garbage bill, appellees maintain that these items may not be awarded irrespective of the stipulated fact that appellant’s pre-injury payment, which he is now willing to replicate, included the disputed utilities.

In the context of this case, the JCC erred by focusing solely on medical necessity, although that principle is more often than not controlling under the express terms of section 440.13. Our resolution of this case will turn on reconciling the medical necessity requirement, which this court thoroughly set out in Polk County Board of Commissioners v. Varnado, 576 So.2d 833 (Fla. 1st DCA 1991), with the equally important principle that, under the very same statute, the E/C must bear responsibility for the difference between the cost of claimant’s pre-injury housing and the cost of “an apartment or house fully equipped according to the specifications set out in the JCC’s order.” Ramada Inn S. Airport v. Lamoureux, 565 So.2d 376, 377 (Fla. 1st DCA 1990).

In Vamado, this court focused upon medical necessity and held, “[ajbsent unique circumstances ... the carrier is not required to bear the costs of normal living expenses not necessitated by the accident.” 576 So.2d at 838. The Vamado court specifically considered the question of utilities, noting that “[ujtilities are generally considered basic necessities in every home in our society, and a claimant will have a difficult time demonstrating that necessity for such items is caused by the compensable accident such that they could be properly awarded as medical benefits.” Id. See S. Indus. v. Chumney, 613 So.2d 74 (Fla. 1st DCA 1993).

Fully accepting the holdings of Vamado and similar cases, claimant contends that, because medical necessity is not the issue, he is nonetheless entitled to the payment in question. Claimant relies primarily upon Lamoureux to argue that his previous payment of $700 included water, sewer, and garbage and, accordingly, the provision of such utilities after the accident should be deemed included in his $700 payment. Claimant’s position is correct and is further supported by All Clear Locating Services, Inc. v. Shurrum, 855 So.2d 1208 (Fla. 1st DCA 2003). In Shurrum, this court considered, among other things, the E/C’s responsibility for an injured worker’s post-accident home insurance and a wheelchair-accessible, barrier-free home. Significantly, this court relied upon Vamado and Chumney and observed that “the E/C is only responsible for the cost of the tenants’ insurance that exceeds the cost that the claimant would have incurred in insuring his prior residence.” Shurrum, 855 So.2d at 1211. Given Shurrum’s reliance upon Vamado and Chum-ney, we easily conclude that the principles enunciated in these various cases are not irreconcilable.

Here, the question of medical necessity for the home itself is not at issue, as the E/C provided that benefit administratively. Claimant’s pre-injury living expenses are also not in controversy, and claimant concedes he must contribute $700 toward his post-injury living expenses. Under Shur-rum and Lamoureux, then, the E/C are responsible for the portion of the water and sewer bill necessitated by the new living quarters.

We note that Vamado relied in part for its holding upon this court’s decision in Lamoureux. See Vamado, 576 So.2d at 838. The cases fit together, and the JCC’s determination must turn on the theories relied upon and the proof presented by the parties at trial. Here, claimant has consistently maintained that his responsibility does not exceed payment of $700 plus electric utilities, exactly the expenses he bore before the accident. Claimant having made that showing, the E/C then had the burden to demonstrate that special circumstances exist so that claimant should be credited with both rent and utilities. Ap-pellees presented no specific proof as to any matters bearing upon this question. Although not deciding the issue, we would note that in a case like this, the E/C may be able to show that, although claimant is continuing to pay the pre-injury amount, he is receiving a greater benefit not attributable to his injuries — for instance, sublease payments or other financial contributions made by new occupants of the home provided by the E/C. We make this observation to emphasize that such proof is absent in the present case and to observe that claimant’s showing of medical necessity, coupled with his willingness to pay pre-injury expenses, will serve to shift the burden of proof to the E/C to show that additional amounts should be paid by an injured claimant.

Finally, we note that our holding does no damage to a policy concern expressed in Vamado and similar cases. In cases involving provision of new housing, new transportation, or attendant care, the E/C are not required to supplement indemnity benefits paid under workers’ compensation. As the Vamado court expressed, “[allowing for recovery of day-to-day expenses as medical benefit as well would provide for a duplicative award.” 576 So.2d at 838 n. 2. Here, Desir does not enjoy a windfall. Conversely, though, were he to bear the water utility expense, shown by the evidence as $161 a month, his medical benefit under section 440.13 would actually be diminished by that amount. In other words, claimant would find himself actually having to expend out-of-pocket monies to obtain the benefits of a medically necessary device, the new residence. Such a result is not required by our case law and seems quite contrary to a common understanding of all workers’ compensation laws — that, to the extent possible, industry should bear workers’ medical expenses attributable to workplace injuries. See, e.g., Fla. Game & Fresh Water Fish Comm’n v. Driggers, 65 So.2d 723, 725 (Fla.1953) (in an employee’s action to recover compensation for the loss of his eye, observing that Florida’s workers’ compensation law was enacted partially “to make available promptly medical attention, hospitalization and compensation commensurate with the injury sustained in the course of employment; to place on the industry served and not on society the burden of providing for injured or killed workmen and their families.”).

REVERSED.

VAN NORTWICK, J., concurs and BENTON, J., dissents with opinion.

BENTON, J.,

dissenting.

On the authority of Polk County Board of Commissioners v. Varnado, 576 So.2d 833, 838 (Fla. 1st DCA 1991); see also Southern Industries v. Chumney, 613 So.2d 74, 77 (Fla. 1st DCA 1993) (“The cost of garbage collection is an ordinary living expense, no portion of which may be deemed attributable to claimant’s condition on the present record. Therefore, the JCC’s award for the cost of garbage collection, past and continuing, is reversed.”), I respectfully dissent from today’s decision to reverse the order of the judge of compensation claims.

At the time of the industrial accident on December 23, 2002, Mr. Desir lived with his wife and four daughters in a two-bedroom, one-bath apartment which he rented for $700.00 a month. The rent included water (and presumably sewer, but not electricity). The record did not establish the nature or duration of the tenancy. After the accident and his release from the hospital, the employer and carrier housed Mr. and Mrs. Desir and their daughters in an apartment in Boca Raton, then in a four-bedroom house in Delray Beach, modified to accommodate his handicaps. This new house has two bathrooms. Mr. De-sir’s sister-in-law and her child moved in with the Desir family in November of 2005, and have shared the Delray Beach house since.

I cannot agree with any implication in the majority opinion that the employer’s liability should hinge on whether the sister-in-law makes “sublease payments or other financial contributions.” Ante p. 1092. To the extent the Desirs’ new home shelters people who were not part of the household at the time of the accident, the majority opinion’s reference to “a medically necessary device, the new residence,” ante p. 1092, does not adequately describe the situation or assist the analysis.

In reversing the judge of compensation claims, the majority opinion invokes “section 440.13,” ante p. 1091, entitled “Medical services and supplies; penalty for violations; limitations,” while ruling that “the JCC erred by focusing solely on medical necessity.” Ante p. 1091. But the “focus” on medical necessity comes straight from the statute. See §§ 440.13(l)(m) (defining “[mjedically necessary” as “used to ... treat an illness or injury, ... appropriate to the patient’s diagnosis and status of recovery, and ... consistent with the location of service, the level of care provided, and applicable practice parameters”) and 440.13(2)(a), Fla. Stat. (2002) (requiring that the employer furnish the injured employee “medically necessary remedial treatment”). See also Thorkelson v. N.Y. Pizza & Pasta Inc., 956 So.2d 542, 543-44 (Fla. 1st DCA 2007) (“Workers’ compensation is purely a creature of statute and, as such, is subject to the basic principles of statutory construction.” (quoting Sunshine Towing, Inc. v. Fonseca, 933 So.2d 594, 594 (Fla. 1st DCA 2006))).

Both decisions on which the majority opinion principally relies have medical necessity as a focus. See All Clear Locating Servs., Inc. v. Shurrum, 855 So.2d 1208, 1210 (Fla. 1st DCA 2003) (“The initial inquiry in determining the validity of any award of benefits in a workers’ compensation case is whether there is a medical necessity for the awarded benefits.”) and Ramada Inn S. Airport v. Lamoureux, 565 So.2d 376, 377 (Fla. 1st DCA 1990) (concluding, as to amenities awarded in a new home, “there is no evidence in the record which would support a finding that such facilities are medically necessary for treatment of the claimant’s needs”). In neither of these cases, moreover, was the employer required to furnish living quarters for anybody who had not been a member of the claimant’s household before the accident.

Relying on the testimony of the physia-trist who treated Mr. Desir — and the only physician who testified' — the judge of compensation claims denied the claim for $161.00 a month, stating:

It is a well settled principle, as supported by the caselaw provided by both sides, that the Judge of Compensation Claims can only award medically necessary benefits. “Medical necessity” is defined under F.S. 440.13(l)(m) as any medical service used to identify or treat an illness or injury.... As a predicate to awarding a medical benefit, medical necessity is required to be shown by a licensed physician.... I find that the utility (water and sewer) bills are not uniquely attributable to the workers’ compensation injury according to the testimony of Dr. Lerner and I find that no apportionment of the bill is necessary in light of this finding.

The judge of compensation claims also ruled (and the claimant stipulated) that the “[cjlaimant shall pay the sum of $700.00 per month for rent toward the modified housing provided by the Employer/Carrier beginning immediately.”

Perceiving no error in these rulings, I dissent from the decision to overturn them.

      . Section 440.13, Florida Statutes (2002), begins with a series of definitions and provides in pertinent part:
      (2) MEDICAL TREATMENT; DUTY OF EMPLOYER TO FURNISH. — (a) Subject to the limitations specified elsewhere in this chapter, the employer shall furnish to the employee such medically necessary remedial treatment, care, and attendance for such period as the nature of the injury or the process of recovery may require, including medicines, medical supplies, durable medical equipment, orthoses, prostheses, and other medically necessary apparatus. Remedial treatment, care, and attendance, including work-hardening programs or pain-management programs accredited by the Commission on Accreditation of Rehabilitation Facilities or Joint Commission on the Accreditation of Health Organizations or pain-management programs affiliated with medical schools, shall be considered as covered treatment only when such care is given based on a referral by a physician as defined in this chapter.... Medically necessary treatment, care, and attendance does not include chiropractic services in excess of 18 treatments or rendered 8 weeks beyond the date of the initial chiropractic treatment, whichever comes first, unless the carrier authorizes additional treatment or the employee is catastrophically injured.

      (c) If the employer fails to provide treatment or care required by this section after request by the injured employee, the employee may obtain such treatment at the expense of the employer, if the treatment is compensable and medically necessary. There must be a specific request for the treatment, and the employer or carrier must be given a reasonable time period within which to provide the treatment or care. However, the employee is not entitled to recover any amount personally expended for the treatment or service unless he or she has requested the employer to furnish that treatment or service and the employer has failed, refused, or neglected to do so within a reasonable time or unless the nature of the injury requires such treatment, nursing, and services and the employer or his or her superintendent or foreman, having knowledge of the injury, has neglected to provide the treatment or service. Mr. Desir was injured in December of 2002 when this version of the statute was in effect.


text:
    INTERIOR CUSTOM CONCEPTS and Protregrity Services, Inc., Appellants, v. Ron SLOVAK, Appellee.
    No. 1D06-6642.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2007.
    Rehearing Denied Dec. 11, 2007.
    Zal Linder, of Rigell, Ring & Ardman, Waterman & Wolf, P.A., Fort Lauderdale, for Appellants.
    Jeffrey I Jacobs, of Malea & Jacobs, P.A., Miami, and Joseph C. Segor, Miami, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, appellants Interior Custom Concepts, Inc. and Protregrity Services, Inc., the employer and insurance carrier (E/C) respectively, appeal the Compensation Order on Attorney’s Fees and Costs. We agree with the E/C that there is not competent, substantial evidence in the record to support the Judge of Compensation Claims’ calculation of attorney’s fees owed the claimant and his attorney. Accordingly, we reverse the Compensation Order and remand for further proceedings.

I. Background

In April 1999, the claimant, Ron Slovak, a cabinet maker for Interior Custom Concepts, Inc., suffered a compensable injury to his left hand. In 2001, the E/C accepted claimant as permanently and totally disabled, and began paying permanent total disability (PTD) benefits.

Several years later, in May 2005, claimant participated in a vocational evaluation and re-employment assessment; the vocational consultant opined claimant may be able to return to work, with appropriate restrictions on the use of his left hand. The E/C scheduled claimant for a Functional Medical Evaluation (FME), apparently to determine whether claimant remained permanently and totally disabled. However, claimant did not appear for the exam. Thus, pursuant to subsections 440.15(l)(e)(l) and (3), Florida Statutes (1999), the E/C suspended claimant’s PTD benefits, effective October 7, 2005.

Subsequently, claimant filed a Petition for Benefits. In response, the E/C filed a Motion to Compel claimant’s attendance at the FME. Following a hearing on the Petition and Motion, the JCC agreed with claimant that Florida Statutes, Chapter 440, does not expressly provide for a “functional medical evaluation,” and thus the court could not compel claimant’s attendance at the exam. Accordingly, the E/C reinstated claimant’s PTD benefits, effective December 16, 2005.

Following the court’s ruling, the parties prepared a joint stipulation, later adopted by the JCC, wherein the E/C agreed claimant was entitled to $5,470.80 in past due PTD benefits for the period from October 7, through December 16, 2005. The E/C also agreed claimant’s counsel was entitled to attorney’s fees and costs. Indeed, the E/C asserted counsel was entitled to a percentage of the benefits actually obtained for claimant, or $5,470.80 in past due PTD benefits. In contrast, the claimant argued the value of the benefits secured by his counsel included both the past due PTD benefits, and the full present value of total PTD benefits which will be paid out to claimant over his life span.

On November 21, 2006, the JCC entered the Compensation Order on Attorney’s Fees and Costs. The JCC determined that claimant’s attorney was entitled to a fee equal to a percentage of the “value of the benefits obtained” for his client. The court found that the benefits counsel obtained for claimant were, in effect, the total PTD benefits to be paid claimant over his life span because, the JCC reasoned, had counsel not intervened the E/C intended to permanently suspend PTD benefits. Accordingly, the JCC calculated the value of benefits obtained as $478,530.12, and directed the E/C to pay claimant’s counsel $48,603.00 in attorney’s fees, as well as $139.58 in costs.

On appeal, the E/C asserts the JCC erred in her calculation of attorney’s fees because there is not competent, substantial evidence to support the finding that the E/C intended to permanently suspend PTD benefits; they argue the undisputed evidence before the JCC supports the conclusion that the E/C’s suspension of benefits was temporary. Thus, the E/C contends, the only benefits counsel actually obtained for his client are the past due PTD benefits for the period from October 7, through December 16, 2005.

II. Analysis

This court has previously held the award of attorney’s fees in a workers’ compensation proceeding should be “determined on the basis of total benefits secured as a result of the intervention of claimant’s attorney.” Polote Corp. v. Meredith, 482 So.2d 515, 517 (Fla. 1st DCA 1986) (citing B.P. Constr. Inc. v. Garcia, 440 So.2d 76 (Fla. 1st DCA 1983)). Thus, “[a]n award of attorney’s fees is appropriate based on a finding of compensability and all other benefits which flow from that finding; that is, the fee should be predicated upon the total benefits secured as a result of the intervention of the attorney.” Groves v. Butler, 525 So.2d 1003, 1004 (Fla. 1st DCA 1988).

In this case, the E/C temporarily suspended claimant’s PTD benefits pursuant to the following statute:

The employer’s or carrier’s right to conduct vocational evaluations or testing pursuant to s. 440.491 continues even after the employee has been accepted or adjudicated as entitled to compensation under this chapter. This right includes, but is not limited to, instances in which such evaluations or tests are recommended by a treating physician or independent medical-examination physician, instances warranted by a change in the employee’s medical condition, or instances in which the employee appears to be making appropriate progress in recuperation. This right may not be exercised more than once every calendar year.

§ 440.15(l)(e)(l), Fla. Stat. (1999). Additionally,

Pursuant to an order of the judge of compensation claims, the employer or carrier may withhold payment of benefits for permanent total disability or supplements for any period during which the employee willfully fails or refuses to appear without good cause for the scheduled vocational evaluation or testing.

§ 440.15(l)(e)(3), Fla. Stat. (1999).

The E/C indicated in several letters to the claimant and his counsel that the suspension of benefits pursuant to sections 440.15(l)(e)(l) and (3) was temporary, lasting only until the claimant agreed to appear for the FME. Further, the E/C reinstated claimant’s PTD benefits almost immediately after the JCC denied their motion to compel claimant’s attendance at the FME. There is no competent, substantial evidence which suggests the E/C intended to permanently suspend claimant’s benefits. Accordingly, the only benefits counsel secured for the claimant in the proceedings below were the value of the past due PTD benefits, totaling $5,470.80.

Therefore, we REVERSE the Compensation Order on Attorney’s Fees and Costs, and REMAND to the JCC for further proceedings.

WOLF, POLSTON, and THOMAS, JJ., concur.


text:
    Eric Mark PRESSLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-5210.
    District Court of Appeal of Florida, First District.
    Oct. 31, 2007.
    Rehearing Denied Dec. 11, 2007.
    Eric Mark Pressley, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Suarez v. Dugger, 527 So.2d 190 (Fla.1988).

WEBSTER, DAVIS, and LEWIS, JJ., concur.


author: PLEUS, J.

text:
    Thomas A. BINFORD, Appellant, v. CITY OF WINTER SPRINGS, Appellee.
    No. 5D07-155.
    District Court of Appeal of Florida, Fifth District.
    Nov. 2, 2007.
    Rehearing Denied Dec. 10, 2007.
    Thomas A. Binford, Winter Springs, pro se.
    Erin J. O’Leary, Anthony A. Garganese and Debra Babb-Nutcher, of Brown, Gar-ganese, Weiss & D’Agresta, P.A., Orlando, for Appellee.
   PLEUS, J.

The underlying case involves a dispute between Binford and the City of Winter Springs (“the City”) over a sign ordinance which rendered his business sign nonconforming. Binford appeals two orders: an order granting directed verdict and final judgment for the City on his due process, selective enforcement and takings claims, and a final summary judgment for the City on his First Amendment claims.

We affirm the final judgment on Bin-ford’s due process, selective enforcement and takings claims without discussion. However, for the reasons discussed below, we reverse the final summary judgment on Binford’s First Amendment claims and remand for further proceedings.

In 1987, Binford erected a pole sign on his commercial property, which was located on State Road 434 in Winter Springs. In 1997, the City enacted an ordinance regulating signs along S.R. 434. Under the ordinance, Binford was required to change his pole sign to a monument sign, move his sign back from the ten foot property line setback, and landscape around the base of the sign. In 2002, Binford applied for a variance, which was denied. Binford filed a petition for writ of prohibition in circuit court, which denied it. Bin-ford appealed the denial and this Court per curiam affirmed. Binford v. City of Winter Springs, 873 So.2d 1234 (Fla. 5th DCA 2004) (table).

In April 2005, the Code Enforcement Board found Binford in violation and ordered him to come into compliance within ten days. Binford removed his sign within that time period and was never fined. Binford did not appeal the Code Enforcement Board’s ruling.

In February 2005, Binford filed a declaratory judgment action. Trial was ultimately set for October 23, 2006. On October 17, the City filed a motion for partial summary judgment. The motion alleged that the City was in the process of amending its ordinance and that the amendment process would be complete before the October 23 trial date. The City claimed that the amended ordinance effectively mooted all of Binford’s First Amendment challenges.

At the non-jury trial on October 25, the City’s attorney informed the court that the amended ordinance had passed on October 23 and was effective immediately. The Court heard evidence and directed a verdict for the City on Binford’s selective enforcement, due process and takings claims, but continued the remaining claims for a future summary judgment hearing, allowing Binford a sufficient time to respond to the City’s motion. The Court warned Binford that if he was going to challenge the newly amended ordinance as not being validly passed, it was his responsibility to file affidavits in opposition to the motion setting forth facts that show it was not validly passed.

The City timely filed two affidavits in support of the motion for summary judgment. The affidavits explained the amendment process and the attorney’s opinion that the amended ordinance would moot most of Binford’s arguments. The first affidavit alleged that the first reading of the amended ordinance was held on October 9, 2006, and was passed. The second affidavit alleged that on October 12, 2006, the City published notice of the second and final reading on October 23, 2006.

At the summary judgment hearing on December 7, 2006, Binford attempted to offer an affidavit in opposition to summary judgment. The affidavit alleged, among other things, that his First Amendment claims were not mooted by the recently amended ordinance because the amended ordinance was enacted in violation of Chapter 166, Florida Statutes, and was therefore void. The trial court ruled that Binford’s affidavit was untimely and contained only legal argument. It granted the City’s motion for summary judgment, finding that the amended ordinance had mooted Binford’s First Amendment claims. It also expressly declined to pass on the validity of the amended ordinance as challenged in Binford’s affidavit.

Binford argues that he attempted to challenge the validity of the amended ordinance but the trial court refused to allow him to elaborate. It is well established that an affidavit in opposition to summary judgment which is filed on the day of the summary judgment hearing is untimely and the trial court has discretion to disregard it. See, e.g., Jarrett v. Publix Supermarkets, Inc., 609 So.2d 154 (Fla. 5th DCA 1992); Coffman Realty, Inc. v. Tosohatchee Game Preserve, Inc., 381 So.2d 1164 (Fla. 5th DCA 1980). If Binford’s affidavit had contained factual allegations in opposition to summary judgment, we would conclude that the trial court did not abuse its discretion in rejecting the affidavit as untimely. See Fla. R. Civ. P. 1.510(c). However, as the trial court noted, the affidavit contained only legal argument. We do not believe the trial court’s discretion extended to rejecting a legal argument Binford attempted to make at the hearing. The trial court should not have dismissed Binford’s First Amendment claims as being mooted by the recently amended ordinance without first considering his legal challenge to the validity of its enactment. Accordingly, we reverse the final summary judgment and remand the matter back to the trial court for further proceedings consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART, REMANDED.

PALMER, C.J., and LAWSON, J., concur.

      . Section 166.041(3)(C), Florida Statutes (2006), requires that proposed ordinances which change the "list of permitted, conditional, or prohibited uses within a zoning category” must provide for public notice and hearings in the form of “two advertised public hearings on the proposed ordinance.” At oral argument, the City's attorney conceded that the ordinance needed to be advertised twice, and that if it was not, it was invalid. However, according to the City's affidavits, only the second hearing on the proposed ordinance was advertised.


text:
    Vladimir REYNA, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-2731.
    District Court of Appeal of Florida, Fifth District.
    Nov. 2, 2007.
    Rehearing Denied Dec. 12, 2007.
    Vladimir Reyna, Miami, pro se.
    No Appearance for Appellee.
   PER CURIAM.

The appellant, Vladimir Reyna, seeks review of the trial court’s summary denial of his motion for post conviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The trial court summarily denied the motion without attaching documents establishing that Mr. Reyna is not entitled to the relief that he seeks.

Mr. Reyna alleged ineffective assistance of counsel based on several purported errors or omissions of his attorney. We conclude that the trial court’s denial should be affirmed as to all grounds except for Mr. Reyna’s assertion that his plea was coerced.

A motion for post conviction relief should not be summarily denied without an evidentiary hearing unless the motion and records conclusively show that the movant is entitled to no relief. See Turner v. State, 570 So.2d 1114 (Fla. 5th DCA 1990).. The trial court did not attach the plea colloquy or other documents that might have established that appellant’s plea was entered voluntarily and knowingly. Absent such record attachments, an evidentiary hearing is required on a claim of coercion. See Siegel v. State, 586 So.2d 1341 (Fla. 5th DCA 1991).

Accordingly, the order of the trial court is affirmed as to all grounds except the allegation that Mr. Reyna’s plea was coerced. As to that ground, this cause is remanded with instructions that the trial court either hold an evidentiary hearing on the voluntariness of Mr. Reyna’s plea, or attach portions of the record that support the denial of relief.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED.

PALMER, C.J., MONACO and LAWSON, JJ., concur.


text:
    Donald MUSMACHER, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D07-2765.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2007.
    Rehearing Denied Dec. 19, 2007.

      Donald Musmacher, pro se, Petitioner.
    Bill McCollum, Attorney General, and Sherry Toothman, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner has filed a petition for writ of mandamus in this court seeking to compel the Clerk of the Circuit Court for Leon County to accept his petition for writ of mandamus for filing and to assign it a case number. For the reasons set forth below, we grant the petition.

In April 2007, petitioner forwarded a petition for writ of mandamus to the Leon County Circuit Court challenging a prison disciplinary action. The clerk of the circuit court returned the documents to petitioner and instructed petitioner that if he wished to proceed, he had to refile his petition accompanied by either the filing fee or an application to proceed as indigent. Petitioner thereafter sought relief in this court. He argues that his petition filed below was a collateral criminal proceeding. Therefore, the clerk of the circuit court should have accepted his petition for filing without requiring him to pay fees.

Both respondent and the clerk of the circuit court respond that petitioner must pay the applicable filing fee or prove his inability to pay by filing an affidavit of indigency. The clerk of the circuit court cites Leichty v. Clerk of Circuit Court, Lake County, 948 So.2d 47 (Fla. 5th DCA 2007), for support. In Leichty, the Fifth District Court of Appeal ruled that “a litigant who seeks action from the trial court clerk to provide documents or accept filings cannot start with mandamus at the appellate court. He must seek relief in the trial court first.” The clerk also argued that the clerk is not obligated to open a case file upon receipt of every document without limitation, and the clerk has the authority to require reasonable supporting documentation.

We find the Third District Court of Appeal’s decision in Outboard Marine Domestic International Sales Corp. v. Florida Stevedoring Corp., 483 So.2d 828 (Fla. 3d DCA 1986), to be more persuasive. In Outboard Marine, the Third District Court of Appeal held that tendering a correct filing fee was not a precondition to filing a complaint and that the clerk has a ministerial duty to accept a complaint for filing even though insufficient filing fees were tendered. The Third District Court of Appeal relied upon the Florida Supreme Court decision in Williams v. State, 324 So.2d 74 (Fla.1975). In Williams, the Supreme Court held that the timely deposit of a required filing fee or adjudication of insolvency is not jurisdictional. The court receded from an earlier decision which stated that the clerks had discretionary power to either accept or reject a notice of appeal absent the simultaneous payment of the filing fee or an adjudication of insolvency.

The instant proceeding is, in fact, an appellate proceeding in the circuit court. See Sheley v. Fla. Parole Comm’n, 720 So.2d 216 (Fla.1998). Therefore, the reasoning in Williams and Outboard Marine is even more applicable to the circumstances of this case.

As noted by the Third District Court of Appeal in Outboard Marine, the failure to pay the filing fee is a matter which essentially concerns only the clerk and should not enure to the benefit of the respondent. The clerk retains the authority to enforce the payment of the filing fee. The circuit court clerk can always order a petitioner to pay the fee or suffer dismissal of the proceeding. This procedure ensures that the rights of the parties will be determined, as they should be, by the court, rather than the clerk.

Accordingly, we direct the clerk of the circuit court to accept petitioner’s petition for writ of mandamus and assign it a case number. Under the circumstances of this case, it would be impossible for petitioner to request relief from a circuit court judge when the circuit court clerk will not accept any pleading he files. Therefore, we distinguish Leichty from the instant case.

PETITION GRANTED.

KAHN, WEBSTER, and ROBERTS, JJ., concur.


author: KAHN, J.

text:
    Charles E. DOLL, Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    No. 1D06-2903.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2007.
    Rehearing Denied Dec. 12, 2007.
    Charles B. Lembcke, Jacksonville, for Appellant.
    Wings S. Benton, Assistant General Counsel, Prosecution Services Unit, Department of Health, Tallahassee, for Ap-pellee.
   KAHN, J.

Appellant Charles E. Doll seeks review of a final order issued by appellee, Florida Department of Health revoking appellant’s chiropractic license. Doll also seeks review of portions of the Department’s order assessing costs and attorneys’ fees against him. We affirm the license revocation. We vacate portions of the cost order and remand for further proceedings.

Background

On September 30, 2003, in the United District Court for the Middle District of Florida, Jacksonville Division, appellant entered a guilty plea to a charge of conspiracy to defraud a health beneficiary program under 18 U.S.C. sections 371 and 1347. Section 371 is the general conspiracy provision in the federal criminal code. Section 1347, entitled “Health Care Fraud,” provides:

§ 1347. Health care fraud
Whoever knowingly and willfully executes, or attempts to execute, a scheme or artifice—
(1) to defraud any health care benefit program; or
(2) to obtain, by means of false or fraudulent pretenses, representations, or promises, any of the money or property owned by, or under the custody or control of, any health care benefit program,
in connection with the delivery of or payment for health care benefits, items, or services, shall be fined under this title or imprisoned not more than 10 years, or both. If the violation results in serious bodily injury (as defined in section 1365 of this title), such person shall be fined under this title or imprisoned not more than 20 years, or both; and if the violation results in death, such person shall be fined under this title, or imprisoned for any term of years or for life, or both.

The federal court imposed judgment and sentence, including a term of probation, a fine, and substantial restitution to defrauded programs. With regard to the facts underlying the federal indictment, the administrative law judge found as follows:

5. [Doll] was vice-president of Jacksonville Health Care Systems (JHCS) during all relevant times of the alleged criminal conspiracy.
6. JHCS operated as a medical clinic offering and supplying chiropractic and medical services to patients.
7. [Doll] caused or allowed claims to be filed with Medicare and other health care benefit programs claiming reimbursement for the professional component of Magnetic Resonance Imaging tests (MRI).
8. For Diagnostic Ultrasound (DU) and Nerve Conduction Velocity (NCV) billing, [Doll] submitted claims for the technical portion of an [sic] DU or NCV test, which is the performance of the test, even though Respondent did not contribute his professional expertise to the performance of the test.
9. After tests were completed [Doll] would submit (some) claims to be filed by JHCS to various health care benefit programs for the technical component of the DU and NCV tests.
14. [Doll] caused or allowed claims to be filed by JHCS with Medicare and other health care benefit programs claiming reimbursement of the professional component of MRI tests. The MRIs were read and interpreted by a qualified radiologist, who was paid for each read by JHCS and was given an IRS form 1099 for all fees paid to him.
15. [Doll] caused or allowed claims to be filed by JHCS with Medicare and other health care benefit programs claiming reimbursement for the technical portion for DU and NCV, which is the administration of the test. Ail tests were performed by a qualified person employed by a company not owned by JHCS.

At a later date, appellee brought this disciplinary action against Doll. For purposes of this appeal, only Count I of the administrative complaint remains relevant. In this count, the Department charged appellant with violating section 456.072(1)(c), Florida Statutes (2003). The statute provides the following ground for discipline:

Being convicted or found guilty of, or entering a plea of guilty or nolo conten-dere to, regardless of adjudication, a crime in any jurisdiction which relates to the practice of, or the ability to practice, a licensee’s profession.

§ 456.072(1)(0), Fla. Stat. (2003).

Finding that appellant had, in fact, violated the pertinent statute, the administrative law judge made the following conclusions of law in the recommended order, all of which the Department accepted and adopted:

43. It has been proven that [Doll] entered a plea to conspiracy to defraud a health care benefit program under 18 U.S.C. §§ 1347 and 371, an offense related to the practice of chiropractic’medicine. In arriving at this conclusion, the penal nature of this case is recognized and Section 457.072(1)(c), Florida Statutes (2003)[sic], has been strictly construed in determining whether a violation occurred. See State v. Pattishall, 99 Fla. 296, 126 So.147 (1930), and Lester v. Department of Professional and Occupational Regulations, State Board of Medical Examiners, 348 So.2d 923 (Fla. 1st DCA 1977).
• 44. To decide whether the plea of guilty is related to the practice of or the ability to practice chiropractic medicine, that inquiry was not limited to the technical ability of [Doll] in his practice in an office setting. If the crime relates to or presents a danger to public welfare, as it did, that in itself would be grounds to impose discipline. See Rush v. Department of Professional Regulation, Board of Podiatry, 448 So.2d 26 (Fla. 1st DCA 1984); Ashe v. Department of Business and Professional Regulation [Department of Professional Regulation, Board of Accountancy], 467 So.2d 814 (Fla. 5th DCA 1985) and Greenwald v. Department of Professional Regulation, 501 So.2d 740 (Fla. 3d DCA 1987), rev. denied, 511 So.2d 998, cert. denied, 484 U.S. 986, 108 S.Ct. 502, 98 L.Ed.2d 501 (1987).
45. Among the terms of the sentence imposed in federal court was the need to make restitution to a number of companies who had lost money. The sentence imposed is read to mean that restitution must be made to insurance companies in that list as well as DHHS/CMMS, Division. of Accounting. DHHS is read to mean the U.S. Department of Health and Human Services. This need for restitution made [Doll] accountable for his prior actions, which had been contrary to public welfare, in particular as they related to DHHS.
46. The crimes to which [Doll] pled guilty in federal court demonstrate a lack of honesty, integrity, and judgment in conspiring to defraud a health care benefit program by a person licensed as a health care provider. That conduct breached the trust and confidence placed in [Doll] by his licensure as a chiropractic physician.

Subsequently, the Department entered an order ássessing costs, including attorneys’ fees, against appellant. He now seeks review of the revocation and the costs order.

Analysis

As to his adjudication on the substantive charges, appellant argues that the administrative law judge wrongly found a connection between the acts for which appellant plead guilty in federal court and the charges brought against him in the administrative complaint. Appellant also argues that the administrative law judge’s conclusion that appellant’s crime demonstrated “a danger to public welfare” misses the mark because the substantive federal crime as to which appellant pled guilty had nothing to do with the practice of chiropractic medicine or appellant’s ability to practice medicine. We must reject appellant’s strained construction.

Several cases demonstrate that, although the statutory definition of a particular profession does not specifically refer to acts involved in the crime committed, the crime may nevertheless relate to the profession. In Greenwald v. Department of Professional Regulation, the court affirmed the revocation of a medical doctor’s license after the doctor was convicted of solicitation to commit first-degree murder. 501 So.2d 740 (Fla. 3d DCA 1987). The Fifth District Court of Appeal has held that although an accountant’s fraudulent acts involving gambling did not relate to his technical ability to practice public accounting, the acts did justify revocation of the accountant’s license for being convicted of a crime that directly relates to the practice of public accounting. Ashe v. Dep’t of Prof'l Regulation, Bd. of Accountancy, 467 So.2d 814 (Fla. 5th DCA 1985). We held in Rush v. Department of Professional Regulation, Board of Podiati% that a conviction for conspiracy to import marijuana is directly related to the practice or ability to practice podiatry. 448 So.2d 26 (Fla. 1st DCA 1984). These cases demonstrate, in our view, that appellee did not err by concluding Doll’s conviction was “related to” the practice of chiropractic medicine or the ability to practice chiropractic medicine. We therefore affirm ap-pellee’s actions finding appellant in violation of section 456.072(l)(c) and revoking appellant’s license.

As to the issue of costs, appellant makes two arguments directed toward different portions of the cost assessment. First, appellant argues the controlling statute did not allow attorneys’ fees. Next, appellant argues, as to certain costs assessed against him, the Department failed to provide sufficient supporting information.

Section 456.072(4), Florida Statutes, controls the award of costs in this matter. Appellant argues that the Department had no statutory authority to assess costs for its attorney’s time because the 2000 version of that statute permitted only “costs related to the investigation and prosecution of the case.” Appellee responds that the applicable version of the statute is found in certain. 2003 legislative amendments. See Ch.2003-416, § 19, at 4051, Laws of Fla. The 2003 amendment specifically allows recovery of “costs related to the time spent by the attorney and other personnel working on the case.” Id. This version of the statute became effective September 15, 2003. See id. § 87, at 4122. The record establishes that both the federal criminal filing and appellant’s guilty plea occurred after the effective date of the statute. Because the administrative charges, as alleged by the Department, make the guilty plea the operative event, the 2003 amendment applies, as the Department has urged. The Department’s decision to award attorneys’ fees is affirmed, but, as set out below, the award itself must be vacated in part.

The Department concedes that a portion of the cost assessment is not properly supported. In particular, despite Doll’s written objections to the claimed costs, the administrative prosecutor failed to provide the Board with enough detail to support $10,260.39 of the costs the Department claimed for time spent by its personnel, including attorney time spent. Accordingly, we reverse this portion of the costs award for failure of proof. See § 456.072(4), Fla. Stat. (2004) (“The board ... shall determine the amount of costs to be assessed after its consideration of an affidavit of itemized costs and any written objections thereto.”); Rodriguez v. Campbell, 720 So.2d 266, 268 (Fla. 4th DCA 1998) (“Generally, when an attorney’s fee or cost order is appealed and the record on appeal is devoid of competent substantial evidence to support the order, the appellate court will reverse the award without remand.”); Warner v. Warner, 692 So.2d 266, 268 (Fla. 5th DCA 1997) (“The party failing to establish its attorney’s fees claim is not entitled to a second opportunity to make the requisite showing.”). See also Golian v. Wollschlager, 893 So.2d 666, 669 (Fla. 1st DCA 2005) (“[Hjaving been afforded one evidentiary hearing on costs, appellee is not entitled to a second opportunity to present sufficient evidence.”); Powell v. Barnes, 629 So.2d 185, 186 (Fla. 5th DCA 1993) (“Having been afforded one evidentiary hearing on costs, the plaintiffs are not entitled to a second bite at the apple.”).

We AFFIRM the license revocation. We VACATE the costs order and remand for entry of a costs award less the $10,260.39 not proven by the Department.

WEBSTER and ROBERTS, JJ., concur.


text:
    Mark Edward SCHOENBORN, D.C., Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    No. 1D06-2869.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2007.
    Rehearing Denied Dec. 12, 2007.
    Roy Lewis, Jacksonville, for Appellant.
    Wings S. Benton, Assistant General Counsel, Prosecution Services Unit, Department of Health, Tallahassee, for Ap-pellee.
   PER CURIAM.

Appellee, the Florida Department of Health, revoked appellant Mark Schoen-born’s license to practice chiropractic medicine and assessed certain costs against appellant in conjunction with the agency proceeding. The order of revocation is AFFIRMED. See Doll v. Dep’t of Health, Case No. 1D06-2903, 969 So.2d 1103, 2007 WL 3252754 (Fla. 1st DCA Nov.6, 2007). The order assessing costs is AFFIRMED in part. Because $10,243.59 of the cost award is not supported by the evidence, that portion is VACATED. See id.

KAHN, WEBSTER, and ROBERTS, JJ., concur.


text:
    KELLEY’S FWB FOODS, INC., a Florida Corporation, d/b/a Kelley’s Supervalu Foods, Charles R. Kelley, Jr., and Michael A. Kelley, Appellants, v. CHOCTAW PLAZA, LTD., a Florida Limited Partnership, Appellee.
    No. 1D07-4248.
    District Court of Appeal of Florida, First District.
    Nov. 6, 2007.
    D. Michael Chesser and Allison R. Sebastian of Chesser & Barr, P. A., Shali-mar, for Appellants.
    Michael W. Mead, Ft. Walton Beach, for Appellee.
   PER CURIAM.

Upon consideration of the appellants’ responses to the Court’s orders of September 11, 2007, and September 27, 2007, the Court has determined that the order on appeal is a non-appealable nonfinal order. See Raymond James & Assoc., Inc. v. Godshall, 851 So.2d 879 (Fla. 1st DCA 2003). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

KAHN, PADOVANO, and HAWKES, JJ., concur.


author: WARNER, J.

text:
    Adolfo ZAMORA, Appellant, v. FLORIDA ATLANTIC UNIVERSITY BOARD OF TRUSTEES, Appellee.
    No. 4D06-3043.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 2007.
    Rehearing Denied Jan. 4, 2008.

      William R. Amlong, Karen Coolman Am-long and Jennifer Daley of Amlong & Am-long, P.A., Fort Lauderdale, for appellant.
    Michael B. Davis of Paxton & Smith, P.A., West Palm Beach, for appellee.
    Robert J. Sniffen of Sniffen Law Firm, P.A., Tallahassee, Special Counsel for Ami-cus Curiae Florida Defense Lawyers Association.
    Robert Michael Eschenfelder, Braden-ton, Special Counsel for Amicus Curiae Florida League of Cities, Inc.

      Richard E. Johnson, Tallahassee, for Amicus Curiae National Employment Lawyers Association, Florida Chapter.
   WARNER, J.

In entering a judgment in favor of appellant for age discrimination and retaliation by his employer Florida Atlantic University, the trial court determined that the statutory cap on damages of $100,000, provided to state agencies in section 768.28(5), applied to the total recovery, including attorneys’ fees, and to both claims. Appellant presents two issues. First, he argues that the court erred in determining that the statutory cap on damages covered attorneys’ fees as well as compensatory damages. Second, he claims it also erred in considering his recovery as one claim instead of two, which would have increased the statutory cap to $200,000. As to the inclusion of attorneys’ fees, we adopt the reasoning of Gallagher v. Manatee County, 927 So.2d 914 (Fla. 2d DCA 2006), and hold that the statutory limit includes attorneys’ fees. As to the second issue, we hold that he has two claims, not one, and thus he may recover a maximum of $100,000 for each separate claim.

Adolfo Zamora, a computer systems application coordinator in the engineering department at Florida Atlantic University, prevailed against FAU in a jury trial on his complaint alleging age discrimination and retaliation. Specifically, Zamora alleged he was passed over for a promotion on account of his age, and that he did not receive discretionary raises. Zamora made a second claim that FAU retaliated against him when he filed complaints with FAU’s Equal Opportunity Programs office concerning his treatment and pay discrimination within the department. Both counts were submitted as separate claims to the jury, which awarded Zamora compensatory damages of $83,596 for age discrimination and $37,000 for retaliation.

FAU filed a motion for remittitur and a motion to limit the damages to the sovereign immunity cap of $100,000 pursuant to section 768.28(5), Florida Statutes. In granting FAU’s motion to limit recovery, the court found that all of Zamora’s claims were subject to the $100,000 recovery limit set forth in section 768.28(5), citing section 760.11(5) and Gallagher v. Manatee County, 927 So.2d 914 (Fla. 2d DCA 2006). Relying upon Gallagher, the court found that “[t]he statutory cap establishes the maximum recovery against the state, including attorney’s fees, costs and post-judgment interest.” Next, the court rejected Zamora’s assertion that since his claims involved two separate instances or occurrences, a $200,000 recovery limit should apply, relying on Comer v. City of Palm Bay, 147 F.Supp.2d 1292 (M.D.Fla. 2001) and State Department of Health & Rehabilitative Services v. T.R. ex rel. Shapiro, 847 So.2d 981 (Fla. 3d DCA 2002). The court granted the remittitur in part and entered judgment within the statutory cap, prompting this appeal.

I. Recovery Includes Attorneys’ Fees

The Florida Civil Rights Act prohibits discrimination, as well as retaliation, by an employer on the basis of an individual’s race, color, religion, sex, national origin, age, handicap, or marital status. § 760.10(1) & (7), Fla. Stat. Section 760.11(5) sets forth the following provisions concerning civil actions brought pursuant to the Florida Civil Rights Act:

In any civil action brought under this section ... [t]he court may also award compensatory damages, including, but not limited to, damages for mental anguish, loss of dignity, and any other intangible injuries, and punitive damages. The provisions of ss. 768.72 and 768.73 do not apply to this section-In any action or proceeding under this subsection, the court, in its discretion, may allow the prevailing party a reasonable attorney’s fee as part of the costs. It is the intent of the Legislature that this provision for attorney’s fees be interpreted in a manner consistent with federal case law involving a Title VII action.... The total amount of recovery against the state and its agencies and subdivisions shall not exceed the limitation as set forth in s. 768.28(5).

Section 768.28(5), in turn, limits recovery to $100,000 per person for each claim, as will be discussed in the second issue. Zamora claims that limiting a public employee’s recovery, including attorneys’ fees, to $100,000 leads to an absurd, unreasonable interpretation of the legislation. He indicates that the court should give effect to the legislative intent and claims that the legislature intended for the “total amount of recovery” to refer to the total amount of compensatory damages — not to back pay and attorneys’ fees. FAU counters that “total amount of recovery” clearly and unambiguously encompasses all items of recovery and that it is improper to resort to legislative history.

In Gallagher, Judge Canady wrote extensively regarding this precise issue. His opinion concludes that the meaning of recovery is clear and unambiguous and includes all amounts recovered, including attorneys’ fees. We agree with his analysis and adopt it as our own. Zamora raises valid points as to the limitations this places upon persons who have lost wages as a result of discriminatory conduct by governmental agencies to the extent that some injured persons may not be made whole. These are arguments which should be addressed to the legislature, which has both provided the remedy and created its limitations. While the statute limits FAU’s liability, it also provides that the employee can file a claims bill with the legislature to secure amounts in excess of the statutory limitation. § 768.28(5), Fla. Stat. Under the statute as written, the trial court did not err in determining that the cap on the total amount of recovery includes any amounts recovered for attorneys’ fees.

II. Separate Claims Analysis

Zamora also contends that his recovery should not be limited to $100,000, because he prevailed on two separate claims-one for age discrimination and one for retaliation. The jury made separate awards for each claim. Even if the caps in section 768.28(5) apply, he argues that he would nevertheless be entitled to recover up to $100,000 on each claim. We agree.

Section 768.28(5) provides, in pertinent part:

The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability' shall not include punitive damages or interest for the period before judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $100,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $200,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $100,000 or $200,000, as the case may be; and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature.

FAU contends that because the statute calls for a limit on a “claim or a judgment by any one person,” and only one judgment was entered in favor of Zamora, his recovery is limited to $100,000 regardless of the number of claims. Zamora, on the other hand, contends that because his claims are separate incidents — one of employment discrimination and one for retaliation — he is entitled to a statutory limit of $100,000 for each claim. Because the claims are separate incidents, we agree with Zamora.

The statute applies its cap to a claim or judgment by any one person. It also limits to $200,000 the amount to be paid for all claims to all persons arising out of the same incident or occurrence. This reference indicates the statute incorporates the concept of res judicata or splitting the cause of action in determining its scope in any given case.

The doctrine of res judicata makes a judgment on the merits conclusive “not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action.” Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla.1984). To establish that a claim is barred by res judicata, four identities are required: “ ‘(1) identity in the thing sued for; (2) identity of the cause of action; (3) identity of the persons and parties to the actions; and (4) identity of the quality or capacity of the persons for or against whom the claim is made.’ ” Tyson v. Viacom, 890 So.2d 1205, 1209 (Fla. 4th DCA 2005) (quoting Freehling v. MGIC Fin. Corp., 437 So.2d 191, 193 (Fla. 4th DCA 1983)). The second factor, identity of the cause of action, requires that the same facts or evidence are necessary to maintain both claims or actions. Id.

The doctrine of splitting a cause of action is related to res judicata in that it “requires that all damages sustained or accruing to one as a result of a single wrongful act must be claimed and recovered in one action or not at all.” Id. at 1210-11 (emphasis in original). For purposes of this doctrine, the “cause of action” is the “the right which a party has to institute a judicial proceeding.” Id. at 1219-20 (Gross, J., concurring) (quoting Shearn v. Orlando Funeral Home, Inc., 88 So.2d 591, 593 (Fla.1956)). See also Leahy v. Batmasian, 960 So.2d 14 (Fla. 4th DCA 2007).

The cases construing section 768.28(5) may all be reconciled by applying the statutory cap to all claims which are required to be brought in the same case or be barred by res judicata or splitting the cause of action. In Pierce v. Town of Hastings, 509 So.2d 1134 (Fla. 5th DCA 1987), the plaintiff alleged that he was arrested on two separate dates for two separate violations of a town ordinance. As a result, he brought two counts of malicious prosecution and two counts of false imprisonment. The jury awarded a single judgment in excess of the statutory cap for one claim, which the trial court reduced. The Fifth District reversed, finding that the two separate arrests constituted two separate incidents or occurrences. Because each incident constituted a separate tort of malicious prosecution and were not the result of the same facts or evidence, they would not have been barred by res judicata or splitting the cause of action. Thus, they constituted two separate claims.

Where a claim of negligent supervision involved several different acts, the court held that each act did not constitute a separate claim for purposes of the statutory cap. In Comer v. City of Palm Bay, 147 F.Supp.2d 1292 (M.D.Fla.2001), the plaintiff brought a claim of racial discrimination against the city. He recovered based upon a theory of negligent supervision of the city police officers as to race discrimination while on duty, proving it by several incidents of discrimination. The jury awarded him $200,000, which the federal district court reduced to $100,000. Comer claimed that because he provided evidence of several incidents of discrimination, the statutory cap of $100,000 did not apply. The district court rejected this argument. This would be a correct result either under the rule against splitting a cause of action or on the basis that res judicata would have barred any further claims. The cause of action, or right that the defendant had to bring the lawsuit, was negligent supervision, which could be proved by several incidents constituting a continuing course of conduct. Thus, there was but one claim or action.

Similarly, in State Department of Health & Rehabilitative Services v. T.R. ex rel. Shapiro, 847 So.2d 981 (Fla. 3d DCA 2002), two former foster children brought a negligence action against the department for failing to protect them from abuse. The trial court required the jury to determine the number of incidents of abuse which occurred, apparently under the assumption that the children could recover $100,000 per identified act of negligence. The Third District held this was in error, as each child’s damages were capped at $100,000. The court explained that each child had a single claim of negligence in the care of the department for which they suffered damages. The fact that the claim may be proved by several incidents, or continuing course of conduct, did not change the fact that they all formed a single claim for purposes of the statute. This too is consistent with the application of the rule against splitting the cause of action where the negligence can be termed a continuing course of conduct, because it is the continuing duty to protect the children which the department breached.

We applied the statute in School Board of Broward County v. Greene, 739 So.2d 668 (Fla. 4th DCA 1999). There, a teacher brought an action against a school board for negligence and invasion of privacy for the public release of derogatory statements about the teacher placed in the teacher’s personnel file. We held that both comprised a single claim for the release of the information, even though the teacher prevailed on two theories of recovery for the same act. Because they arose out of the same act, the rule against splitting the causes of action would require that they be brought in the same action and thus constituted but one “claim.”

These eases illustrate the application of the statutory cap of section 768.28(5) to claims. Whether two “incidents” constitute one claim may also be answered by determining whether one would be barred by res judicata or the rule against splitting a cause of action. If it is not, then they are separate incidents and separate statutory caps apply.

To adopt FAU s interpretation that simply because a plaintiff brings two claims in one suit and recovers one judgment, no matter how disparate those claims may be, would promote judicial inefficiency by compelling a plaintiff to bring only one claim per suit. For example, if a student had been struck by an FAU vehicle injuring his head and then a month later slipped on a banana peel at the FAU cafeteria, injuring his back, he should not have to file two separate lawsuits to recover for two completely distinct incidents, causing separate injuries. The statute does not apply the cap so as to preclude him from bringing both disparate claims in one suit.

Applying this analysis, Zamora sued for both discrimination and for retaliation after he made an EEOC claim for discrimination. Each claim requires the proof of different facts and constitutes a separate cause of action. The jury made a separate damage award for each claim. The pursuit of one does not bar the other under either the doctrine of res judicata or the rule against splitting the cause of action. See Herrmann v. Cencom Cable Assocs., Inc., 999 F.2d 223, 227 (7th Cir.1993) (“It is like the typical retaliation case, in which an employee files a claim based on some set of facts and then the employer fires him for filing the claim, precipitating a second claim. They are two claims, not one, for purposes of res judicata.”).

Because the two claims brought by Zamora and for which he recovered separate damage awards arose from separate incidents, the statutory cap applies to each claim. We therefore reverse for the court to apply a separate statutory cap to each claim, and limiting the total recovery, including attorneys’ fees, for each claim to $100,000. However, the judgment should not be reduced to the statutory cap, because section 768.28(5) authorizes that the judgment in excess of the cap may be reported to the legislature.

KLEIN and HAZOURI, JJ., concur.

      . Amicus National Employment Lawyers Association criticizes the Gallagher court for relying on dictionaries, cases, and statutes to support its conclusion that the meaning of the statute was clear and without ambiguity, arguing that the court went through an enormous amount of work to show that it takes no work to interpret a statute. If one were to accept the National Employment Lawyers Association’s argument, then a court need only pronounce that a statute is clear and unambiguous without engaging in any analysis. By consulting dictionaries, cases, and statutes, the court demonstrates why its conclusion is sound. See Green v. State, 604 So.2d 471, 473 (Fla. 1992) (a court may refer to a dictionary to ascertain the plain and ordinary meaning of words).


text:
    Ralph HAWKER, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3297.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 2007.
    Rehearing Denied Dec. 11, 2007.
    Ralph Hawker, Arcadia, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Kepharb v. Hadi, 932 So.2d 1086 (Fla.2006), cert. denied, — U.S.-, 127 S.Ct. 1268, 167 L.Ed.2d 92 (2007).

STEVENSON, GROSS and HAZOURI, JJ., concur.


text:
    Eddie BELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3555.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 2007.
    Rehearing Denied Jan. 2, 2008.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Melntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

In this appeal from a violation of probation proceeding, appellant timely raised the issue of a Richardson v. State, 246 So.2d 771 (Fla.1971), violation with respect to the state’s most important witness. A Richardson hearing is required in a probation revocation proceeding. See Cuciak v. State, 410 So.2d 916 (Fla.1982). The circuit court did not conduct a Richardson inquiry. The state has failed to demonstrate that the failure to conduct such a hearing was harmless. The state’s witness had been drinking and using cocaine on the night in question, but said that she was not “obliviated.” Although defense counsel had 30 minutes to interview the witness prior to the hearing, proper notice of the witness would have given the defense time to more fully develop an effective impeachment strategy.

Reversed and remanded.

KLEIN, GROSS, JJ., and EMAS, KEVIN, Associate Judge, concur.


text:
    Algernon JAMES, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3913.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 2007.

      Algernon James, Raiford, pro se.
    No appearance required for appellee.
   PER CURIAM.

The summary denial of appellant’s rule 3.800(a) motion to correct illegal sentence is affirmed, but without prejudice to appellant seeking relief through administrative remedies or a proper, timely rule 3.850 motion. See Canty v. State, 884 So.2d 123 (Fla. 2d DCA 2004).

WARNER, STEVENSON and TAYLOR, JJ., concur.


text:
    Eric GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3904.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 2007.
    Eric Griffin, Trenton, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice to appellant’s seeking post-sentencing jail credit, administratively, from the Department of Corrections. See § 921.161(2), Fla. Stat. (2006).

FARMER, GROSS and HAZOURI, JJ., concur.


text:
    OPEN MRI CENTER OF PEMBROKE PINES, L.C., a Florida Limited Liability Company, Appellant, v. James Michael NOTH and Anne Marie Noth, Appellees.
    No. 4D06-4903.
    District Court of Appeal of Florida, Fourth District.
    Nov. 7, 2007.
    James P. Waczewski and Daniel J. San-taniello of Luks, Santaniello, Perez, Petril-lo & Gold, Orlando, for appellant.
    Denise V. Powers of Denise V. Powers, P.A., Coral Gables, for appellees.
   PER CURIAM.

We affirm the summary judgment in favor of Anne Marie Noth. We agree with appellees that the release involved only those shares specifically set forth in the release. We reverse-the judgment in favor of James Michael Noth, since he does not appear to have been listed as an owner of any stock. We do not address the problem with the pleadings. Appellant was sued as a limited liability company; the complaint to produce corporate records under sections 607.1601 and 607.1602, Florida Statutes (2006), alleged that appellant was “a Florida corporation with a principal place of business in Broward County, Florida.” Appellant’s answer admitted this allegation. The trial court’s judgment requires production of items listed in section 607.1601(5). If it is a limited liability company, appellant may be unable to produce the items listed. We leave it to the trial court, in the first instance, to sort out this dilemma.

Affirmed in part, reversed in part and remanded.

WARNER, GROSS, JJ., and CHUMBLEY, DOUGLAS, Associate Judge, concur.