source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Karl RUHE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D06-0360.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2006.

      Karl Ruhe, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

DENIED. See Baker v. State, 878 So.2d 1236 (Fla.2004); Denhart v. Dugger, 567 So.2d 1041 (Fla. 1st DCA 1990).

VAN NORTWICK, HAWKES and THOMAS, JJ., concur.


text:
    William Russell HILL, Petitioner, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Respondent.
    No. 1D06-0510.
    District Court of Appeal of Florida, First District.
    March 20, 2006.
    William Russell Hill, petitioner, pro se.
    No appearance for respondent.
   PER CURIAM.

DENIED. See Brown v. Campion, 757 So.2d 535 (Fla. 1st DCA 2000); Banks v. State, 916 So.2d 35 (Fla. 1st DCA 2005).

KAHN, C.J., LEWIS and POLSTON, JJ., concur.


author: ERVIN, J. ERYIN, J.

text:
    Rick BARNETT, as Property Appraiser of Bay County, Florida, and Peggy Brannon, as the Tax Collector for Bay County, Florida, Appellants/Cross-Appellees, v. DEPARTMENT OF MANAGEMENT SERVICES, Appellee/Cross-Appellant.
    No. 1D05-1731.
    District Court of Appeal of Florida, First District.
    March 27, 2006.
    Opinion Denying Rehearing May 22, 2006.

      Larry E. Levy and Loren E. Levy of The Levy Law Firm, Tallahassee, for Appellant/Cross-Appellee, Rick Barnett.
    Douglas L. Smith of Burke, Blue, Hutchinson & Walters, P.A., Panama City, for Appellant/Cross-Appellee, Peggy Brannon.
    Robert C. Reid and Theresa Proctor of Bryant, Miller & Olive, P.A., Tallahassee, and Michael S. Davis of Bryant, Miller & Olive, P.A., Tampa, for Appellee/Cross-Appellant.
   ERVIN, J.

The property appraiser, Rick Barnett, and tax collector, Peggy Brannon, of Bay County, Florida (collectively, property appraiser), appeal a final judgment deciding that the real property on which the Bay Correctional Facility (facility) is located was immune from ad valorem property taxes because the Department of Management Services (DMS), the lessee under a lease-purchase agreement (LPA), was the property’s equitable owner. As a consequence, the court directed the property appraiser to set aside the assessments he made for the taxable years 1999 through 2002. The Department cross-appeals the lower court’s failure to declare the subject property immune from taxation since 1994, the date it asserts it first became the equitable owner of the property. We affirm all issues, but address only those raised by appellants.

The facts, as stipulated by the parties, disclose that the Florida Legislature enacted the Correctional Privatization Commission Act, sections 957.01-957.16, Florida Statutes (1993), which was designed to privatize the operation of state prison facilities, and in order to accomplish that purpose, it created the Correctional Privatization Commission (CPC), a public entity acting within DMS. § 957.03(1), Fla. Stat. (1993). In implementing the legislative goals, the Bay County Private Correctional Facility Finance Corporation (Finance Corporation), a private, not-for-profit corporation, was created in 1994, for the purpose of acquiring the title to the property on which the facility would be located. Shortly thereafter the Panama City Port Authority transferred title of the real property to the Finance Corporation, which then leased the facility and its property to the CPC, pursuant to the terms of the LPA, which made the CPC responsible for providing all insurance, repairs and maintenance of the facility, and all risk of loss. Finally, under its terms, the CPC was given an option to purchase the facility and receive all the interests of the lessor upon expiration of the lease, with no further payment.

The Finance Corporation entered into a separate agreement with NationsBank of Florida, N.A., as trustee (Trustee), and it transferred its interest in the LPA to the Trustee. Pursuant to the agreement, the Trustee issued certificates of participation (COPs) to investors, the proceeds of which were used by the Finance Corporation to acquire the property on behalf of the CPC and to construct the facility. In order to secure the issuance of the COPs, the Finance Corporation mortgaged its interest in the property to the Trustee, and thereafter the CPC, the Finance Corporation, and the Correctional Corporation of America (CCA), a private corporation, entered into a contract for CCA to construct the correctional facility, and the CPC and CCA executed a separate contract for its operation. The state has appropriated funds to the CPC on an annual basis in an amount sufficient to pay the annual lease payments to the Trustee, as required by the LPA, and to pay the cost of operating the facility.

Thereafter, the property appraiser assessed both the real and personal property and placed them on the tax rolls for the years 1995-2002. In 1997, both the CPC and the Finance Corporation filed complaints challenging the assessments of the property for the years 1995-1997, which were dismissed. The CPC filed separate complaints challenging the assessment of the property for the tax years 1999-2002, which resulted in the final judgment appealed, declaring the property immune from ad valorem property taxation during the later years challenged.

The property appraiser first argues that the LPA, which is part of the financing arrangement used for the construction and operation of the prison facility, is precisely that, a lease, and not a mortgage; therefore, it could not legally transfer equitable ownership of the property to the CPC, and, because legal ownership to the property remained in a private entity, the Finance Corporation, the property could not be deemed immune from taxation. The appraiser alternatively argues that if, in fact, the lease had the effect of transferring equitable ownership to the CPC, its legal effect was that of a mortgage given to secure the repayment of the debt evidenced by the mortgage the Finance Corporation conveyed to the Trustee; therefore, the repayment of the COPs for the purpose of satisfying the debt by state funds would have required compliance with the referendum provision of article VII, section 12 of the Florida Constitution, and because there was none, the debt was invalid. See Nohrr v. Brevard, County Educ. Facilities Auth., 247 So.2d 304 (Fla.1971). Finally, the appraiser argues that the legislature, in enacting the CPCA, reasonably intended that the contractor which operated the facility, CCA, would be the lessee of the property, not CPC; therefore, if equitable title was transferred, it was conveyed to CCA, a private entity, making the property subject to taxation. We cannot agree with any of these arguments.

In our judgment, the issue of the property’s status is controlled by the Florida Supreme Court’s decision in Leon County Educational Facilities Authority v. Hartsfield, 698 So.2d 526 (Fla.1997), wherein the court was asked whether property leased to the Leon County Educational Facilities Authority (LCEFA) from a non-profit entity under an LPA was subject to ad valo-rem taxes. Somewhat similar to the case at bar, SRH, Inc., a private, non-governmental entity, served as the lessor under the agreement, and in such capacity it was required to “acquire, construct, and equip the project and lease it to the Authority in exchange for periodic rental payments.” Id. at 527. COPs were sold to finance the dormitory project and investors received a fractional interest in the rental payments made by the authority. Id. Once the certificates were fully paid, the Authority had the option under the lease of purchasing the dormitory project for $1.00. Id. The terms of the agreement also provided that the lessee, the Authority, “shall pay any taxes which may be assessed against the project.” Id. After the property appraiser’s denial of the authority’s application for an ad valorem tax exemption, the Authority and SRH sought declaratory relief, and their complaint was dismissed, which was affirmed by this court on appeal for the reason that the property was not exempt because SRH, a private entity, rather than the public Authority, held legal title to the property. Id. at 527-28.

Applying the doctrine of equitable ownership, the Florida Supreme Court quashed this court’s decision, concluding that the project was exempt from taxation because the Authority, a public entity, not SRH, was its equitable owner. Id. at 529. In so deciding, the court noted that the Authority held “virtually all the benefits and burdens of ownership.” Id. at 530. Among other things, the court noted that the Authority was responsible for maintaining and insuring the project and, more to the point, it could purchase the project for a nominal sum upon termination of the lease. Id. at 527. In reaching its decision, the court emphasized the use of the property and the lack of benefits acquired by SRH under the lease:

It is unlikely that the legislature intended that property being used by the Authority for its authorized purpose should be denied a tax exemption solely because it does not hold bare legal title. The only reason legal title is held by SRH is to facilitate the financing of the project. In essence, SRH is a conduit through which the lease payments are used to repay the COPS holders. Under the lease, SRH can make no profit on the project.

Id. at 529. Despite the factual similarities between the Hartsfield financing arrangement and that in the present case, the county argues that Hartsfield is not controlling.

The property appraiser fails to show how the occurrence of a bond validation proceeding would in the instant case have any impact upon a determination of equitable ownership, any more than such proceeding would have affected the determination in Hartsfield, in which no mention was made of the necessity of a referendum. The relative burdens and benefits flowing to the lessor and lessee are controlled in both cases by the financing arrangement and the LPA. In this case, the majority of the benefits and burdens of the prison ownership flow to the state, while virtually none are conveyed to CCA.

Although the property appraiser argues that the contractor, CCA, is the equitable owner of the prison facility due to the terms of an operation and management service contract between it and the CPC, in which CCA agreed to operate and manage the project and be responsible for all lawful taxes assessed on the property, this argument fails to acknowledge that CCA was not the lessee under the terms of the LPA, but rather CPC, and, indeed, CCA was not a party to the LPA. Similar to SRH, the non-profit corporation in Harts-field which leased the project to the Authority, in the present case, the Finance Corporation, also a non-profit corporation, was established solely to facilitate the financing of the facility, and it, too, leased the property to a governmental agency. The Finance Corporation, like SRH, holds bare legal title to the property, and, although it mortgaged its interest in the property to the Trustee, it has no obligation to repay the funds secured by the issuance of the COPs to construct the facility under the terms of the mortgage if the legislature fails to appropriate sufficient amounts for such purpose. Moreover, as the lessor, the Finance .Corporation collects none of the rent paid by the state under the agreement, as it has assigned its right to rental payments under the LPA to the Trustee, which in turn, are applied by the Trustee to the payment of principal and interest on the COPs. As a result, the Finance Corporation has obtained no burdens or benefits of ownership under the LPA.

While CCA had a stake in the construction and operation of the prison, its potential gáins or losses were derived solely from its status as a contractor, and not as a tenant. The benefits it received were obtained under the terms of the operation and management service contract in its role as general contractor for the construction of the prison, and as a contract provider of correctional services, and not as a lessee. Thus, because it also had none of the benefits or burdens associated with owning the prison, it cannot be considered the property’s equitable ownfer.

It is obvious, under the contractual terms, that only the state, operating through the CPC, can in fact occupy the status of equitable owner. Subject to annual appropriations, the CPC is ultimately responsible for repaying the COPs issued to construct the prison. Finally, following the final payment under the agreement, the concluding payment is “$0.00,” and the Finance Corporation is then required to convey its fee-simple interest to the CPC. As a result, we consider the facts essentially indistinguishable from those in Harts-field, and we agree with the lower court that the state, acting through the CPC, must be considered the equitable owner of the facility.

The property appraiser next argues that if the CPC has acquired such status, the state was constitutionally prohibited from entering into the agreement, because it constitutes a public debt without a referendum vote by the people. The decisions that the property appraiser relies upon, State v. School Board of Sarasota County, 561 So.2d 549 (Fla.1990), and State v. Brevard County, 539 So.2d 461 (Fla.1989), offer little support for his argument. In each case, the supreme court found that a referendum was not constitutionally required to approve lease-purchase financing arrangements similar to those involved at bar, because the governmental entities did not secure their obligations with a pledge of ad valorem taxes, or a mortgage with the right of foreclosure. See Sarasota County, 561 So.2d at 553. In rejecting the argument that such a financing arrangement required a referendum, the court in Sarasota County concluded:

The state contends that County of Volusia v. State, 417 So.2d 968 (Fla.1982), precludes validation in this instance. We disagree. In Volusia, the obligations were supported by the pledge of all legally available unencumbered revenues other than ad valorem taxation, along with a promise to fully maintain the programs and services which generated the non-ad valorem revenue. We held that referendum approval was required because the interrelated promises “in effect constitutes a promise to levy ad valorem taxes.” Id. at 971. The instant case is not analogous. We have here no interrelated promises which will inevitably lead to an increase in ad valorem taxation.
The state in addition argues that validation is precluded by Nohrr v. Brevard County Educational Facilities Authority, 247 So.2d 304 (Fla.1971). In Nohrr, we held that a bond-supporting agreement which granted a mortgage with right of foreclosure violated the predecessor to article VII, section 12, absent an approving referendum. The rationale of Nohrr does not apply to the instant case. There is no mortgage with right of foreclosure. Here the bondholders are limited to lease remedies and the annual renewal option preserves the boards’full budgetary flexibility.

Id. at 553 (emphasis added) (footnote omitted). Moreover, the court did not hold that such a lease-purchase financing arrangement did not constitute debt. In fact, the court specifically recognized that governmental entities involved became debtors under the financing arrangement:

In the instant cases, likewise, the supporting agreements-the facilities and ground leases and the trust agreements-are evidence of the boards’ indebtedness. They constitute obligations of the boards, so long as funds are appropriated, to pay the designated revenues to the trustees to assist in servicing the bonds.

Id. at 552 (emphasis added).

In this case, the CPC is in the same position as that of the school boards in Sarasota County and the county in Bre-vard County. The CPC is indebted to the COP holders. As long as funds are annually appropriated, the CPC is required to make principal and interest payments on its debt. A default in the payments required under the mortgage would occur only if the state defaulted in the payments required by the LPA. Under such circumstances, the state would cease to be the equitable owner of the property; the Finance Corporation would become both its legal and equitable owner, and the Trustee could then pursue its remedies to enforce the mortgage against the Finance Corporation, not the CPC. As a result, the holders of the COPs are in no better position than the bondholders in State v. Miami Beach Redevelopment Agency, 392 So.2d 875, 898-99 (Fla.1980), to compel the state by judicial action, if the obligations of the debt represented by the COPs could not be fulfilled, to satisfy the indebtedness. As a result, neither Sarasota County nor Brevard County provides support for the proposition that the CPC could not assume debt in the absence of a referendum.

The property appraiser next argues that in enacting chapter 957, the legislature intended that facilities constructed pursuant to such legislation would be subject to ad valorem taxation in their status as private prison facilities. Only by fixing on isolated portions of the legislation is the property appraiser able to reach such conclusion, one with which we cannot agree. Among other things, he points to section 957.03(1), requiring the CPC to enter into contracts with contractors for the purpose of designing, leasing, constructing and operating the facilities, and section 957.04(2)(c), designating the contractor, not the CPC, as the entity responsible for obtaining the financing necessary to design and construct the facility. This argument overlooks the fact that section 957.04(2)(a) authorizes the use of tax-exempt financing of the facilities through the issuance of tax-exempt bonds, COPs and LPAs.

A well-recognized maxim of statutory construction is that the legislature must be presumed to be aware, at the time it enacts new legislation, of the status of the law then existing, including pertinent judicial case law. Thus, when the legislature adopted chapter 957 in 1993, it was no doubt aware of the supreme court’s decisions in Sarasota County and Brevard County, approving financing arrangements involving LPAs through the issuance of bonds or COPs which would be paid from sources that included ad valorem taxes, and that such arrangements did not require a public referendum. Any lingering uncertainty as to the legislative intent behind the creation of the Act was, in our opinion, clearly dispelled by the legislature’s addition of subsection (8) to section 957.04 in 1999, which provides that the buildings and other improvements financed under subsection (2)(a) and leased to the CPC would, upon the expiration of the lease, become the property of the state.

AFFIRMED.

WOLF and DAVIS, JJ., concur.

ON MOTION FOR REHEARING OR CERTIFICATION

ERYIN, J.

Appellant, Rick Barnett as Property Appraiser of Bay County, Florida, seeks rehearing or certification of the question decided in the March 27, 2006, opinion in this cause. Because the points raised by appellant as grounds for rehearing were considered and rejected by this court in deciding the case, we deny the motion for rehearing. In that the question raised in this case has, however, been the source of considerable litigation in the courts of this state, and is likely to recur until such time as it is addressed by the Florida Supreme Court, we grant the motion to certify a question of great public importance.

The property appraiser, Rick Barnett, and tax collector, Peggy Brannon, of Bay County, Florida (collectively, property appraiser), appeal a final judgment deciding that the real property on which the Bay Correctional Facility (facility) is located was immune from ad valorem property taxes because the Department of Management Services (DMS), the lessee under a lease-purchase agreement (LPA), was the property’s equitable owner. As a consequence, the court directed the property appraiser to set aside the assessments he made for the taxable years 1999 through 2002. The Department cross-appeals the lower court’s failure to declare the subject property immune from taxation since 1994, the date it asserts it first became the equitable owner of the property. We affirm all issues, but address only those raised by appellants.

The facts, as stipulated by the parties, disclose that the Florida Legislature enacted the Correctional Privatization Commission Act, sections 957.01-957.16, Florida Statutes (1993), which was designed to privatize the operation of state prison facilities, and in order to accomplish that purpose, it created the Correctional Privatization Commission (CPC), a public entity acting within DMS. § 957.03(1), Fla. Stat. (1993). In implementing the legislative goals, the Bay County Private Correctional Facility Finance Corporation (Finance Corporation), a private, not-for-profit corporation, was created in 1994, for the purpose of acquiring the title to the property on which the facility would be located. Shortly thereafter the Panama City Port Authority transferred title of the real property to the Finance Corporation, which then leased the facility and its property to the CPC, pursuant to the terms of the LPA, which made the CPC responsible for providing all insurance, repairs and maintenance of the facility, and all risk of loss. Finally, under its terms, the CPC was given an option to purchase the facility and receive all the interests of the lessor upon expiration of the lease, with no further payment.

The Finance Corporation entered into a separate agreement with NationsBank of Florida, N.A., as trustee (Trustee), and it transferred its interest in the LPA to the Trustee. Pursuant to the agreement, the Trustee issued certificates of participation (COPs) to investors, the proceeds of which were used by the Finance Corporation to acquire the property on behalf of the CPC and to construct the facility. In order to secure the issuance of the COPs, the Finance Corporation mortgaged its interest in the property to the Trustee, and thereafter the CPC, the Finance Corporation, and the Correctional Corporation of America (CCA), a private corporation, entered into a contract for CCA to construct the correctional facility, and the CPC and CCA executed a separate contract for its operation. The state has appropriated funds to the CPC on an annual basis in an amount sufficient to pay the annual lease payments to the Trustee, as required by the LPA, and to pay the cost of operating the facility.

Thereafter, the property appraiser assessed both the real and personal property and placed them on the tax rolls for the years 1995-2002. In 1997, both the CPC and the Finance Corporation filed complaints challenging the assessments of the property for the years 1995-1997, which were dismissed. The CPC filed separate complaints challenging the assessment of the property for the tax years 1999-2002, which resulted in the final judgment appealed, declaring the property immune from ad valorem property taxation during the later years challenged.

The property appraiser first argues that the LPA, which is part of the financing arrangement used for the construction and operation of the prison facility, is precisely that, a lease, and not a mortgage; therefore, it could not legally transfer equitable ownership of the property to the CPC, and, because legal ownership to the property remained in a private entity, the Finance Corporation, the property could not be deemed immune from taxation. The appraiser alternatively argues that if, in fact, the lease had the effect of transferring equitable ownership to the CPC, its legal effect was that of a mortgage given to secure the repayment of the debt evidenced by the mortgage the' Finance Corporation conveyed to the Trustee; therefore, the repayment of the COPs for the purpose of satisfying the debt by state funds would have required compliance with the referendum provision of article VII, section 12 of the Florida Constitution, and because there was none, the debt was invalid. See Nohrr v. Brevard County Educ. Facilities Auth., 247 So.2d 304 (Fla. 1971). Finally, the appraiser argues that the legislature, in enacting the CPCA, reasonably intended that the contractor which operated the facility, CCA, would be the lessee of the property, not CPC; therefore, if equitable title was transferred, it was conveyed to CCA, a private entity, making the property subject to taxation. We cannot agree with any of these arguments.

In our judgment, the issue of the property’s status is controlled by the Florida Supreme Court’s decision in Leon County Educational Facilities Authority v. Hartsfield, 698 So.2d 526 (Fla.1997), wherein the court was asked whether property leased to the Leon County Educational Facilities Authority (LCEFA) from a non-profit entity under an LPA was subject to ad valo-rem taxes. Somewhat similar to the case at bar, SRH, Inc., a private, non-governmental entity, served as the lessor under the agreement, and in such capacity it was required to “acquire, construct, and equip the project and lease it to the Authority in exchange for periodic rental payments.” Id. at 527. COPs were sold to finance the dormitory project and investors received a fractional interest in the rental payments made by the authority. Id. Once the certificates were fully paid, the Authority had the option under the lease of purchasing the dormitory project for $1.00. Id. The terms of the agreement also provided that the lessee, the Authority, “shall pay any taxes which may be assessed against the project.” Id. After the property appraiser’s denial of the authority’s application for an ad valorem tax exemption, the Authority and SRH sought declaratory relief, and their complaint was dismissed, which was affirmed by this court on appeal for the reason that the property was not exempt because SRH, a private entity, rather than the public Authority, held legal title to the property. Id. at 527-28.

Applying the doctrine of equitable ownership, the Florida Supreme Court quashed this court’s decision, concluding that the project was exempt from taxation because the Authority, a public entity, not SRH, was its equitable owner. Id. at 529. In so deciding, the court noted that the Authority held “virtually all the benefits and burdens of ownership.” Id. at 530. Among other things, the court noted that the Authority was responsible for maintaining and insuring the project and, more to the point, it could purchase the project for a nominal sum upon termination of the lease. Id. at 527. In reaching its decision, the court emphasized the use of the property and the lack of benefits acquired by SRH under the lease:

It is unlikely that the legislature intended that property being used by the Authority for its authorized purpose should be denied a tax exemption solely because it does not hold bare legal title. The only reason legal title is held by SRH is to facilitate the financing of the project. In essence, SRH is a conduit through which the lease payments are used to repay the COPS holders. Under the lease, SRH can make no profit on the project.

Id. at 529. Despite the factual similarities between the Hartsfield financing arrangement and that in the present case, the county argues that Hartsfield is not controlling.

The property appraiser fails to show how the occurrence of a bond validation proceeding would in the instant case have any impact upon a determination of equitable ownership, any more than such proceeding would have affected the determination in Hartsfield, in which no mention was made of the necessity of a referendum. The relative burdens and benefits flowing to the lessor and lessee are controlled in both cases by the financing arrangement and the LPA. In this case, the majority of the benefits and burdens of the prison ownership flow to the state, while virtually none are conveyed to CCA.

Although the property appraiser argues that the contractor, CCA, is the equitable owner of the prison facility due to the terms of an operation and management service contract between it and the CPC, in which CCA agreed to operate and manage the project and be responsible for all lawful taxes assessed on the property, this argument fails to acknowledge that CCA was not the lessee under the terms of the LPA, but rather CPC, and, indeed, CCA was not a party to the LPA. Similar to SRH, the non-profit corporation in Harts-field which leased the project to the Authority, in the present case, the Finance Corporation, also a non-profit corporation, was established solely to facilitate the financing of the facility, and it, too, leased the property to a governmental agency. The Finance Corporation, like SRH, holds bare legal title to the property, and, although it mortgaged its interest in the property to the Trustee, it has no obligation to repay the funds secured by the issuance of the COPs to construct the facility under the terms of the mortgage if the legislature fails to appropriate sufficient amounts for such purpose. Moreover, as the lessor, the Finance Corporation collects none of the rent paid by the state under the agreement, as it has assigned its right to rental payments under the LPA to the Trustee, which in turn, are applied by the Trustee to the payment of principal and interest on the COPs. As a result, the Finance Corporation has obtained no burdens or benefits of ownership under the LPA.

While CCA had a stake in the construction and operation of the prison, its potential gains or losses were derived solely from its status as a contractor, and not as a tenant. The benefits it received were obtained under the terms of the operation and management service contract in its role as general contractor for the construction of the prison, and as a contract provider of correctional services, and not as a lessee. Thus, because it also had none of the benefits or burdens associated with owning the prison, it cannot be considered the property’s equitable owner.

It is obvious, under the contractual terms, that only the state, operating through the CPC, can in fact occupy the status of equitable owner. Subject to annual appropriations, the CPC is ultimately responsible for repaying the COPs issued to construct the prison. Finally, following the final payment under the agreement, the concluding payment is “$0.00,” and the Finance Corporation is then required to convey its fee-simple interest to the CPC. As a result, we consider the facts essentially indistinguishable from those in Harts-field, and we agree with the lower court that the state, acting through the CPC, must be considered the equitable owner of the facility.

The property appraiser next argues that if the CPC has acquired such status, the state was constitutionally prohibited from entering into the agreement, because it constitutes a public debt without a referendum vote by the people. The decisions that the property appraiser relies upon, State v. School Board of Sarasota County, 561 So.2d 549 (Fla.1990), and State v. Brevard County, 539 So.2d 461 (Fla.1989), offer little support for his argument. In each case, the supreme court found that a referendum was not constitutionally required to approve lease-purchase financing arrangements similar to those involved at bar, because the governmental entities did not secure their obligations with a pledge of ad valorem taxes, or a mortgage with the right of foreclosure. See Sarasota County, 561 So.2d at 553. In rejecting the argument that such a financing arrangement required a referendum, the court in Sarasota County concluded:

The state contends that County of Volusia v. State, 417 So.2d 968 (Fla.1982), precludes validation in this instance. We disagree. In Volusia, the obligations were supported by the pledge of all legally available unencumbered revenues other than ad valorem taxation, along with a promise to fully maintain the programs and services which generated the non-ad valorem revenue. We held that referendum approval was required because the interrelated promises “in effect constitutes a promise to levy ad valorem taxes.” Id. at 971. The instant case is not analogous. We have here no interrelated promises which will inevitably lead to an increase in ad valorem taxation.
The state in addition argues that validation is precluded by Nohrr v. Brevard County Educational Facilities Authority, 247 So.2d 304 (Fla.1971). In Nohrr, we held that a bond-supporting agreement which granted a mortgage with right of foreclosure violated the predecessor to article VII, section 12, absent an approving referendum. The rationale of Nohrr does not apply to the instant case. There is no mortgage with right of foreclosure. Here the bondholders are limited to lease remedies and the annual renewal option preserves the boards’ full budgetary flexibility.

Id. at 553 (emphasis added) (footnote omitted). Moreover, the court did not hold that such a lease-purchase financing arrangement did not constitute debt. In fact, the court specifically recognized that governmental entities involved became debtors under the financing arrangement:

In the instant cases, likewise, the supporting agreements — the facilities and ground leases and the trust agreements — are evidence of the boards’ indebtedness. They constitute obligations of the boards, so long as funds are appropriated, to pay the designated revenues to the trustees to assist in servicing the bonds.

Id. at 552 (emphasis added).

In this case, the CPC is in the same position as that of the school boards in Sarasota County and the county in Bre-vard County. The CPC is indebted to the COP holders. As long as funds are annually appropriated, the CPC is required to make principal and interest payments on its debt. A default in the payments required under the mortgage would occur only if the state defaulted in the payments required by the LPA. Under such circumstances, the state would cease to be the equitable owner of the property; the Finance Corporation would become both its legal and equitable owner, and the Trustee could then pursue its remedies to enforce the mortgage against the Finance Corporation, not the CPC. As a result, the holders of the COPs are in no better position than the bondholders in State v. Miami Beach Redevelopment Agency, 392 So.2d 875, 898-99 (Fla.1980), to compel the state by judicial action, if the obligations of the debt represented by the COPs could not be fulfilled, to satisfy the indebtedness. As a result, neither Sarasota County nor Brevard County provides support for the proposition that the CPC could not assume debt in the absence of a referendum.

The property appraiser next argues that in enacting chapter 957, the legislature intended that facilities constructed pursuant to such legislation would be subject to ad valorem taxation in their status as private prison facilities. Only by fixing on isolated portions of the legislation is the property appraiser able to reach such conclusion, one with which we cannot agree. Among other things, he points to section 957.03(1), requiring the CPC to enter into contracts with contractors for the purpose of designing, leasing, constructing and operating the facilities, and section 957.04(2)(c), designating the contractor, not the CPC, as the entity responsible for obtaining the financing necessary to design and construct the facility. This argument overlooks the fact that section 957.04(2)(a) authorizes the use of tax-exempt financing of the facilities through the issuance of tax-exempt bonds, COPs and LPAs.

A well-recognized maxim of statutory construction is that the legislature must be presumed to be aware, at the time it enacts new legislation, of the status of the law then existing, including pertinent judicial case law. Thus, when the legislature adopted chapter 957 in 1993, it was no doubt aware of the supreme court’s decisions in Sarasota County and Brevard County, approving financing arrangements involving LPAs through the issuance of bonds or COPs which would be paid from sources that included ad valorem taxes, and that such arrangements did not require a public referendum. Any lingering uncertainty as to the legislative intent behind the creation of the Act was, in our opinion, clearly dispelled by the legislature’s addition of subsection (8) to section 957.04 in 1999, which provides that the buildings and other improvements financed under subsection (2)(a) and leased to the CPC would, upon the expiration of the lease, become the property of the state.

Appellant seeks certification of a question to the Florida Supreme Court, and as grounds for certification of the question, he asserts that property appraisers have relied on section 957.07(2), Florida Statutes (2002-2005), in determining that the legislature had intended for privately financed, constructed, and operated prisons to be subject to ad valorem taxes in the same manner as those paid by other private commercial property owners. He cites section 957.07, Florida Statutes, which sets forth the cost-saving requirements that a successful private contractor must satisfy to be a successful bidder for a contract in the corporate operation of a prison facility. Subsection (2), of section 957.07, Florida Statutes (2005), provides:

(2) Reasonable projections of payments of any kind to the state or any political subdivision thereof for which the private entity would be liable because of its status as private rather than a public entity, including, but not limited to, corporate income and sales tax payments, shall be included as cost savings in all such determinations. In addition, the costs associated with the appointment and activities of each contract monitor shall be included in such determination.

Appellant urges the foregoing language evinces the legislative intent that privately operated prison facilities shall be subject to ad valorem taxation just as any other private commercial enterprise. Contrary to appellant’s position, we conclude the quoted provision should be viewed merely as an indicator of legislative intent that, in making the cost-saving determination to qualify for a contract to operate a prison facility, a private contractor shall be allowed a credit for any tax liability it would otherwise incur if it were operating a commercial enterprise, rather than a government facility. That is, in the cost-saving determination for purposes of an award of the contract, the private contractor is allowed a credit for costs for which the state is exempt. Carried to its logical conclusion, the subsection in our opinion supports the lower court’s judgment that the state is the equitable owner of the property; thus the property is immune from ad valorem taxation.

Nevertheless, because the question is a frequent subject of litigation in our state’s courts, we deem appellant has stated a reasonable basis for certification. Therefore, pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v), we certify the following as a question of great public importance:

WHETHER, IN ENACTING CHAPTER 957, FLORIDA STATUTES, THE LEGISLATURE INTENDED THAT PRISON FACILITIES CONSTRUCTED AND OPERATED BY PRIVATE CONTRACTORS AND LEASED TO THE STATE UNDER A LEASE-PURCHASE AGREEMENT SHALL BE SUBJECT TO AD VALOREM TAXES?

AFFIRMED.

WOLF and DAVIS, JJ., concur.

      . The authority of the CPC to so act was transferred to DMS on July 1, 2004.

      . In 2001, the Finance Corporation merged into Florida Correctional Finance Corporation.

      . The authority of the CPC to so act was transferred to DMS on July 1, 2004.

      . In 2001, the Finance Corporation merged into Florida Correctional Finance Corporation.


text:
    James LEONARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-0297.
    District Court of Appeal of Florida, First District.
    March 27, 2006.
    James Leonard, pro se, appellant.
    Charlie Crist, Attorney General, Tallahassee, for appellee.
   PER CURIAM.

Because the notice of appeal is untimely, this appeal is hereby dismissed for lack of jurisdiction. See Fla. R.App. P. 9.110(b); 9.141(b)(1).

ERVIN, PADOVANO and HAWKES, JJ., concur.


text:
    Wallis Lavon STEWARD, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-5317.
    District Court of Appeal of Florida, Second District.
    March 29, 2006.
   PER CURIAM.

Wallis Lavon Steward appeals the summary dismissal of his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Steward’s motion raised numerous claims for relief including trial court error, insufficiency of the evidence, improper sentencing procedure, and ineffective assistance of counsel. We affirm.

Steward’s claims of trial court error and insufficiency of the evidence should have been raised on direct appeal. See Sampson v. State, 845 So.2d 271, 272 (Fla. 2d DCA 2003) (holding that claims of trial court error should be raised on direct appeal); Issue v. State, 767 So.2d 1280 (Fla. 5th DCA 2000) (holding a claim that the evidence was insufficient to support the conviction should have been raised on direct appeal). Steward’s claims contesting the sentencing procedure are proee-durally barred in a rule 3.800(a) motion. See Johnson v. State, 917 So.2d 1011 (Fla. 4th DCA 2006).

We affirm the postconviction court’s ruling on Steward’s ineffective assistance of counsel claims because Steward’s claims of ineffective assistance of counsel must be raised in a rule 3.850 motion. See Meeks v. State, 382 So.2d 673, 675 (Fla.1980). Our affirmance is without prejudice to any right Steward may have to file a motion for postconviction relief pursuant to rule 3.850.

Affirmed.

NORTHCUTT, CASANUEVA, and DAVIS, JJ., Concur.


author: VILLANTI, Judge.

text:
    Larry L. PURNELL, Appellant, v. STATE of Florida, Appellee.
    No. 2D05-1363.
    District Court of Appeal of Florida, Second District.
    March 29, 2006.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Marilyn Muir Beccue, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

Larry Purnell appeals his judgment and sentence to forty-eight months’ prison for drug offenses, entered after he pleaded guilty. Purnell raises only one issue on appeal — the trial court’s dismissal of his pro se motion to withdraw his plea under Florida Rule of Criminal Procedure 3.170(i). We affirm Purnell’s judgment and sentence but reverse and remand for the trial court to strike Purnell’s pro se motion.

We recently stated in Mourra v. State, 884 So.2d 316, 320-21 (Fla. 2d DCA 2004):

[A] defendant does not have a constitutional right to “hybrid” representation— that is, to be represented both by counsel and by himself. Thus, pleadings filed by a criminal defendant who is represented by counsel are generally treated as a nullity, unless they include some unequivocal request to discharge counsel.

(Citations omitted.)

Purnell filed his pro se motion on March 10, 2005. At the time, he was represented by counsel. The trial court orally dismissed the motion and subsequently entered a written order denying it. Purnell’s motion states, “Defendant representation was in conflict and ineffective.” This is not an unequivocal request to discharge counsel, especially considering that counsel representing Purnell at the time the pro se motion was filed did not represent Purnell at the plea hearing. Therefore, the trial court should have stricken Purnell’s motion and treated it as a nullity. See Mourra, 884 So.2d at 321.

We affirm Purnell’s judgment- and sentence but reverse and remand with directions for the trial court to strike Pur-nell’s pro se motion to withdraw his plea.

ALTENBERND and STRINGER, JJ., Concur.


author: SHARP, W., J.

text:
    David F. GALLOWAY, Appellant, v. STATE of Florida, Appellee.
    No. 5D05-3497.
    District Court of Appeal of Florida, Fifth District.
    April 21, 2006.
    Rehearing Denied June 13, 2006.
    David F. Galloway, Clermont, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Kellie Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   SHARP, W., J.

Galloway appeals from an order dismissing his petition for writ of habeas corpus. We affirm.

The record establishes that Galloway was convicted of first degree murder on September 18, 1998, by a jury and sentenced to life in prison. He is currently incarcerated at Lake Correctional Institution in Lake County. He filed this petition in the Circuit Court for Lake County. However, he was tried and convicted in Pinellas County, and his criminal case was affirmed by the Second District Court of Appeal. Galloway v. State, 787 So.2d 972 (Fla. 2d DCA 2001).

Galloway claims in his petition that his indictment was fatally defective because it failed to allege that he committed the offense through a premeditated design. Thus, it failed to charge him with a crime under Florida law. The Lake County judge ruled that this ground should have been raised on direct appeal or in a prior post-conviction proceeding, not a habeas proceeding.

We agree the petition should have been dismissed, but on jurisdictional grounds. When a petitioner attacks the validity of a conviction by raising issues relating to the trial or propriety of a plea, jurisdiction in habeas corpus proceedings lies with the trial court that rendered the judgment of conviction. Collins v. State, 859 So.2d 1244, 1245 (Fla. 5th DCA 2003).

In a similar case, Borinstein v. State, 893 So.2d 687 (Fla. 5th DCA 2005), this court ruled that habeas is not an available remedy to obtain collateral post conviction relief. It must be obtained by filing an appropriate and timely motion pursuant to either Rule 3.850 or 3.800 in the sentencing court — not the circuit court located in the county in which the petitioner is being imprisoned.

AFFIRM.

PLEUS, C.J. and TORPY, J., concur.

      . Although the indictment does not use the words "through a premeditated design," it charges that he violated section 782.04(l)(a), which charges first degree, premeditated murder.


author: SHARP, W., J. TORPY, J., LAWSON, J.,

text:
    Richard L. WALTERS and Roberta Walters, Appellants, v. Kirby BLANKENSHIP, Bonnie Blankenship, et al., Appellees.
    No. 5D05-1541.
    District Court of Appeal of Florida, Fifth District.
    April 28, 2006.
    Rehearing Denied June 20, 2006.

      Jack W. Shaw, Jr., Orlando, and Douglas M. Bates, Fort Lauderdale, for Appellants.
    Jeffrey L. Price and Kristin M. Davis of The Robertson Group, Gainesville, for Ap-pellees McNeely.
    Kristen M. Van Der Linde and Blake J. Hood, of Boyd & Jenerette, P.A., Jacksonville, for Appellees Weaver.
    No Appearance for Appellees Blankenship.
   SHARP, W., J.

Richard and Roberta Walters, the plaintiffs below, appeal an order dismissing with prejudice their complaint against their former neighbors: Kirby and Bonnie Blankenship, Thomas and Lynn Klinehofer, Farrell and Sharon McNeely, and Richard and Demetria Weaver (collectively the defendants) for failure to state a cause of action. We conclude the complaint states a cause of action or, at the very least, can be amended to state a cause of action for tortious interference with a prospective business advantage or civil conspiracy. We reverse and remand for further proceedings.

We begin our analysis by noting we express no opinion as to whether the Walters will ultimately prevail on their claims. At the dismissal stage, our inquiry is solely limited to questions of law. In- conducting this review, we must confíne ourselves to the four corners of the complaint and accept all allegations in the complaint as true. We are not free to speculate as to what may indeed be true or ultimately proven. Parker v. Parker, 916 So.2d 926 (Fla. 4th DCA 2005); Cintron v. Osmose Wood Preserving, Inc., 681 So.2d 859 (Fla. 5th DCA 1996).

The facts of this ease as set forth in the Walters’ complaint are as follows: The Walters owned four luxury condominium units and the defendants also each owned one or more units in the same complex. The Walters subsequently listed their four units for sale through a real estate auction company wherein potential bidders were required to deposit a $50,000 cashier’s check as a condition precedent to participation as a bidder at the auction. However, there was no reserve for the auction. Twenty-some bidders deposited the required check.

On the day prior to the auction the Walters assert that defendant Thomas Kli-nehofer confronted another unit owner (not a party to this suit) and stated, “you wait until the day of the sale and see what we are going to do to Dick Walters.” On the day of the auction, the defendants placed “for sale by owner” signs in front of their respective units which was prohibited by condominium rules. The auction took place as scheduled.

The Walters’ condominium units sold for a total price of $2,066,925. The Walters alleged the combined acts of the defendants placing “for sale by owner” signs in front of their respective units caused catastrophic financial and emotional damage. As a proximate result of these “intentional, spiteful, malicious and non-privileged” acts, each unit offered by the Walters sold at a substantial loss. The defendants allegedly removed all of the “for sale by owner” signs immediately after the last of the Walters’ units was sold, which was further evidence that the defendants’ acts were “grotesque, macabre, malicious and spiteful.”

Based on the above, the Walters filed a complaint against the defendants for tor-tious interference with a prospective economic advantage, intentional infliction of emotional distress and civil conspiracy to commit the same. The Walters sought compensatory damages in excess of $1.5 million and punitive damages in the amount of at least $4.5 million for the alleged financial losses and emotional distress arising out of the posting of “for sale by owner” signs by the defendants.

The Walters asserted that the presence of “for sale by owner” signs in front of other condominium units lowered the bids and selling prices of their units, causing substantial financial losses. The Walters alleged the defendants knew the Walters were offering all four units for sale at the auction with no price reserve, knew that the auction was non-caneellable and knew that, absent their interference, the four units would sell for substantially higher prices.

The elements of a cause of action based on tortious interference with a business relationship are (1) the existence of a business relationship, (2) the defendant’s knowledge of the relationship, (3) the defendant’s intentional and unjustified interference with the relationship and (4) damage to the plaintiff as a result of the breach of the relationship. Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So.2d 812 (Fla.1994); Sobi v. Fairfield, Resorts, Inc., 846 So.2d 1204 (Fla. 5th DCA 2003).

Here the Walters alleged the existence of a business relationship with the successful bidders, if not all prospective bidders, their neighbors’ knowledge of this relationship, their neighbors’ intentional and unjustified interference with this relationship by posting “for sale by owner” signs only during the sale of the Walters’ units and with the intention of driving down the Walters’ sales price and the resulting damage in the form of a much reduced sales price for the Walters’ four units. These allegations appear sufficient to us to state a cause of action for tortious interference.

We view these allegations as involving much more than a “mere offer to sell.” Once the Walters agreed to the auction without a reserve, they were obligated to accept the offers on their units irrespective of price. More than 20 bidders, each posting a substantial bond, attended the auction and the units were sold for substantial losses. Thus the parties had progressed beyond the stage of a mere offer to sell— the Walters were now obligated to sell their units albeit at greatly depressed prices, as the result of the interference of the defendants.

Nor do we find the defendants had an absolute First Amendment right to post their “for sale” signs. In Americas Homes, Inc. v. Esler, 668 So.2d 239 (Fla. 5th DCA 1996), we held that homeowners were simply exercising their right to free speech when they placed “for sale” signs on their property even though the signs indicated potential of flooding in the area, and may have decreased home sales.

In that case, however, the homeowners had a legitimate reason for posting their “for sale” signs and were doing so on the advice of their broker. The homeowners had listed their property for sale and shortly thereafter, a flood occurred nearby. Their broker advised the homeowners they would not be able to sell their property unless they fully disclosed the flooding. The homeowners complied with their broker’s request by posting a sign which read: “Due to local flooding this property is for sale.”

In contrast, here the defendants had no legitimate reason for posting their “for sale” signs. Their units were not for sale and their signs were removed as soon as the last of the Walters’ units was sold. According to the Walters’ complaint, the defendants posted their for sale signs simply out of malice and spite. See Londono v. Turkey Creek, Inc., 609 So.2d 14 (Fla. 1992) (allegations that disgruntled homeowners intentionally and maliciously made false statements concerning developer’s operation of planned unit development to third parties and local government officials for purpose of harming developer’s economic interests made facially sufficient claim that homeowners abused First Amendment right to petition government and stated claims for tortious interference with contractual rights, tortious interference with advantageous business relationship, and civil conspiracy).

As for the count of civil conspiracy, we conclude it is viable, based either on the underlying tortious interference count or as an independent tort. The elements of a civil conspiracy are: (a) a conspiracy between two or more parties, (b) to do an unlawful act or to do a lawful act by unlawful means, (c) the doing of some overt act in pursuance of the conspiracy, and (d) damage to plaintiff as a result of the acts performed pursuant to the conspiracy. Florida Fern Growers Ass’n, Inc. v. Concerned Citizens of Putnam County, 616 So.2d 562 (Fla. 5th DCA 1993).

Generally an actionable conspiracy requires an actionable underlying tort or wrong. See Florida Fern Growers Ass’n, Inc.; Wright v. Yurko, 446 So.2d 1162 (Fla. 5th DCA 1984). However, an alternative basis for a civil conspiracy claim exists where the plaintiff can show some “peculiar power of coercion” possessed by the conspirators by virtue of their combination, which an individual acting alone does not possess. See Churruca v. Miami Jai-Alai, Inc., 353 So.2d 547 (Fla.1977) (jai-alai players stated claim for conspiracy against jai-alai fronton owners who allegedly conspired to prevent players from getting jobs in arenas after a players strike); Snipes v. West Flagler Kennel Club, Inc., 105 So.2d 164 (Fla.1958) (claim for conspiracy was stated against five kennel club owners who refused the plaintiff greyhound racer privileges at their tracks and used intimidation to drive the plaintiff out of business); Margolin v. Morton F. Plant Hospital Ass’n, Inc., 342 So.2d 1090 (Fla. 2d DCA 1977) (physician stated a claim for conspiracy against a group of anesthesiologists who refused to provide their services to plaintiffs patients, depriving him of his hospital privileges, and thereby driving him out of his practice).

Here it was the concerted nature of the defendants’ actions that allegedly caused the resulting losses to the Walters. Had only one defendant put up a for sale sign, that action may have had no significant effect on the auction. However, when the defendants in concert all posted for sale signs, it appeared that five sellers were trying to sell their units in the same condominium and that twice as many units were for sale.

According to the Walters, this was a small condominium complex and the defendants’ actions made it appear that a majority of units were now for sale. This greater number of units up for sale suggests something may have been wrong with the condominiums or, at the very least, dramatically increased the supply of units for sale, thus lowering the market value of each unit.

Because we find that the trial court erred in dismissing the Walters’ complaint with prejudice, we reverse and remand for further proceedings.

REVERSED AND REMANDED.

TORPY, J., concurs specially with opinion.

LAWSON, J., dissents with opinion.

TORPY, J.,

concurring specially.

I concur with Judge Sharp’s opinion but write to address issues raised by the dissent.

Judge Lawson contends that the mere posting of for sale signs cannot, as a matter of law, constitute “unjustified interference,” because of the “legal” nature of the act. I disagree. It seems to me that most, if not all, tortious interference cases involve acts that are otherwise “legal.” Indeed, I cannot imagine an interference case where the act of interference does not involve the spoken or written word, in and of itself usually “legal.” To avoid the chilling effect that this tort might have on proper speech, to be actionable, the interference must be “unjustified.” Ins. Field Servs., Inc. v. White & White Inspection & Audit Serv., Inc., 384 So.2d 303, 306-07 (Fla. 5th DCA 1980). Determining whether interference is unjustified requires a balancing of interests and turns on what is “right” and “just” under the “rules of the game.” Id. As we stated:

The question of whether appellants’ admittedly intentional interference was unjustifiable depends upon a balancing of the importance, social and private, of the objective advanced by the interference against the importance of the interest interfered with, considering all circumstances among which the methods and means used and the relation of the parties are important. Restatement 2d, Torts s 767 and comments.
In framing the issue, we agree with the opinion of the New Jersey Supreme Court in Grillo v. Board of Realtors of the Plainfield Area, 91 N.J.Super. 202, 219 A.2d 635 (1966), that the ultimate inquiry is whether the interference by the defendant is “sanctioned by the rules of the game.” As the New Jersey Court notes:
There can be no tighter test of liability in this area than that of the common conception of what is right and just dealing under the circumstances. Not only must defendants’ motive and purpose be proper but so also must be the means. (Citations omitted). 219 A.2d at 649.

Ins. Field Servs., Inc., 384 So.2d at 306-07 (emphasis supplied).

Here, I think a jury question is framed by the pleading. No legitimate interests were advanced by the interference. Conversely, the right of plaintiffs to sell their property was of paramount importance. If it can be proven that the defendants acted out of pure spite, for the sole purpose of harming plaintiffs (or for another improper purpose), as has been alleged, this cannot be justified under any rules of any game with which I am familiar.

Moreover, even assuming for argument’s sake that a “legal” act, even one done for an improper purpose, can never give rise to a tortious interference claim, the defendants here did not commit a “legal” act. They posted signs in violation of the recorded restrictive covenants for the condominium. Section 718.303(1), Florida Statutes (2005), imposes upon each unit owner the obligation to comply with condominium covenants and gives other unit owners the right to enforce the provisions through actions for injunction and damages. Thus, the violation of the covenant did infringe upon an enforceable right of plaintiffs’ and was, therefore, not “legal.” See Barnett & Klein Corp. v. President of Palm Beach-A Condominium, Inc., 426 So.2d 1074, 1075 (Fla. 4th DCA 1983) (actions of condominium association in not approving lease between plaintiff and proposed tenant in violation of rule that required all unit owners to be treated alike constituted unjustified interference with contract).

Judge Lawson “questions” whether the “business relationship” element has been sufficiently alleged. The complaint focuses on the “business relationships” with bidders who registered and paid a $50,000 advance security deposit for the privilege of bidding. In Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So.2d 812, 815 (Fla.1994), the court stated that “a plaintiff may properly bring a cause of action alleging tortious interference with present or prospective customers but no cause of action exists for tortious interference with a business’s relationship to the community at large.” What this tells me is that the nature of the relationship need not be founded upon an enforceable contract but cannot be speculative. When using these two polestars for guidance, I conclude that the relationship between the plaintiffs and the bidders here were most analogous to that of merchants and prospective customers, not the community at large. The bidders were identified and had posted sizable security to ensure performance should they bid in this absolute auction. At the end of the day, someone was probably going to purchase those condominium units. But for the interference of defendants, plaintiffs assert, they would have received a greater price. Whether they can prove it is another matter. I think a sufficient “business relationship” has been pled. See Zimmerman v. D.C.A. at Welleby, Inc., 505 So.2d 1371 (Fla. 4th DCA 1987) (“business relationship” element satisfied when defendants interfered with potential purchasers of condominium units by picketing).

As a final point, although this case is factually different from the conspiracy cases to which Judge Lawson refers, the allegations of the complaint fit the elements of the tort. None of the cases cited by Judge Lawson say that the tort only applies to the particular situations presented therein. Because this was a small condominium complex, four unit owners arguably had the peculiar power of economic coercion through their combination. When they combined for the malicious purpose of inflicting economic loss to the plaintiffs, irrespective of the nature or magnitude of the loss, they inflicted a wrong for which a remedy is available under existing common law tort theory.

LAWSON, J.,

dissenting.

At the outset, I would note that those who do not learn to get along well with others will always pay a price — sometimes emotional, sometimes physical, sometimes financial — for the “friction” they create in the relationships with those around them. But our court system is not designed to compensate everyone for every slight or injury caused by the friction of unhealthy relationships. While the Defendants’ actions in this case may have caused unnecessary harm to their former neighbors, the Walters, Plaintiffs below, I do not believe the Defendants’ alleged wrongful act of putting a “for sale by owner” sign on their respective properties can or should be compensable in a court of law. I agree with the trial court that the facts of this case do not support a compensable claim under any legal theory, and would affirm.

First, a claim for “tortious interference” will stand under Florida law when the claimant successfully demonstrates: (1) the existence of a business relationship; (2) knowledge of the relationship on the part of the defendant; (3) an intentional and unjustified interference with that relationship by the defendant; and (4) damage to the plaintiff as a result of a breach of the relationship. With respect to the third element, I find that posting a “for sale by owner” sign on your own property cannot constitute “unjustified interference” with the relationships of others as a matter of law. Cf. Americas Homes, Inc. v. Esler, 668 So.2d 239 (Fla. 5th DCA 1996) (homeowners posting of a for sale sign on their property was protected speech under the First Amendment and could not support a cause of action for tortious interference even where the sign stated that the owners were selling due to “local flooding,” which caused neighboring owners to lose prospective land sales); Chipley v. Atkinson, 23 Fla. 206, 1 So. 934, 938 (1887) (“Where one does an act which is legal in itself, and violates no right of another person, it is true that the fact that the act is done from malice, or other bad motive towards another, does not give the latter a right of action against the former. Though there be a loss or damage resulting to the other from the act, and the doer was prompted to it solely by malice, yet, if the act done be legal, and violates no legal right of the other person, there is no right of action.”). Exercising a right to offer or advertise your own property for sale, regardless of motive, is legal. This legal action, even if it causes economic harm to others, is not the type of “unjustified” action compensable under the tort of interference with business relationships.

Second, to state a claim for the intentional infliction of emotional distress, the Walters must demonstrate that: (1) the Defendants’ actions were extreme and outrageous beyond all bounds of decency and that (2) the Defendants intentionally or recklessly caused them to suffer (3) severe emotional distress. E.g., State Farm Mutual Auto. Ins. Co. v. Novotny, 657 So.2d 1210 (Fla. 5th DCA 1995). The posting of a “for sale” sign on your own property does not remotely approach the type of extreme and outrageous conduct redressed by this tort. Id. at 1212-13 (recognizing that liability for intentional infliction of emotional distress will lie only where the defendant’s conduct is so outrageous in character and so extreme in degree as to go beyond the bounds of decency so as to be deemed utterly intolerable in a civilized community; the recitation of facts must arouse resentment in an average member of community and cause him to exclaim “outrageous”). Because the majority opinion does not address the dismissal of this count, they apparently agree that the trial court properly found that the Walters’ complaint failed to state a claim for intentional infliction of emotional distress.

As for the count of civil conspiracy, the trial court recognized that an actionable conspiracy requires an actionable underlying tort or wrong. E.g., Wright v. Yurko, 446 So.2d 1162 (Fla. 5th DCA 1984). Because I find that the Walters have not stated a cause of action for either tortious interference or intentional infliction of emotional distress, I find that there is no underlying tort or wrong upon which the Walters’ civil conspiracy count can rest. Nor do I believe that the Walters have stated a viable claim for conspiracy as an independent tort. To maintain an independent civil conspiracy tort claim, a plaintiff must show some peculiar power of coercion possessed by the conspirators by virtue of their combination. E.g., Churruca v. Miami Jai-Alai, Inc., 353 So.2d 547, 550 (Fla.1977). A common theme in cases involving successful actions for conspiracy under this exception is deprivation of a legal right; often one’s right to maintain a livelihood. E.g., Churruca, 353 So.2d at 547 (holding that jai-alai players stated claim for conspiracy against jai-alai fron-ton owners who allegedly conspired to prevent players from getting jobs in arenas after a players’ strike); Snipes v. West Flagler Kennel Club, 105 So.2d 164 (Fla. 1958) (holding that a claim for conspiracy was stated against five kennel club owners who refused the plaintiff greyhound racer privileges at their tracks and used intimidation to drive the plaintiff out of business); Margolin v. Morton F. Plant Hospital Assoc., Inc., 342 So.2d 1090 (Fla. 2d DCA 1977) (holding that a physician stated a claim for conspiracy against a group of anesthesiologists who refused to provide their services to plaintiffs patients, depriving him of his hospital privileges, and thereby driving him out of his practice). This case, by contrast, does not involve a deprivation of livelihood or any other legal right. Posting of the “for sale by owner” signs did not deprive the Walters of the right to conduct their auction, which in fact took place as planned, and which resulted in sales of over $2 million.

Reaching the above conclusions involves more than the blind or formulistic application of alleged facts to legal elements. It should be kept in mind that we are dealing with judicially-created tort causes of action. When the legislature creates a statutory cause of action it acts as “master of the elements and boundaries of the new cause of action.” Comptech Intern., Inc. v. Milam Commerce Park, Ltd., 753 So.2d 1219, 1223 (Fla.1999) (emphasis added). This is, of course, equally true of the judicial branch.

Under our common law system:

New and nameless torts are being recognized constantly, and the progress of the common law is marked by many cases of first impression, in which the court has struck out boldly to create a new cause of action, where none has been recognized before.... The law of torts is anything but static, and the limits of its development are never set. When it becomes clear that the plaintiffs interests are entitled to legal protection against the conduct of the defendant, the mere fact that the claim is novel will not itself operate as a bar to the remedy.

W. Prosser, The Law of Torts § 1 (4th ed. 1971).

Historically, negligence law addressed only physical property damage or physical injury to persons. See Monroe v. Sarasota County School Bd., 746 So.2d 530, 534-535 (Fla. 2d DCA 1999). However, through time the judiciary expanded the body of tort law to allow for redress of economic-injury, but only where “the need to provide the protection [was] so clear that no legislative guidance [was] required.” Id. at 535. From my review of Florida case law it appears that “tortious interference” was first discussed in 1948 by our Florida Supreme Court as having been “upheld in several jurisdictions” outside of Florida. Williams v. Dr. P. Phillips & Sons, 160 Fla. 110, 33 So.2d 637, 638 (1948). Ten years later,- in 1958, a divided Florida Supreme Court first‘recognized an independent cause of action for “civil conspiracy.” Snipes v. West Flagler Kennel Club, Inc., 105 So.2d 164 (Fla.1958).

It has always been recognized that the judicial creation of causes of action must then be followed by judicial limitation or “line drawing” when those actions are sought to be used to redress new or unique facts. “[W]e endeavor to make a rule in each case that will be practical and in keeping with the general understanding of mankind.” Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 104 (Andrews, J., dissenting). The question posed, therefore, of “whether the plaintiffs interests are entitled to legal protection against the defendant’s conduct” is a “broad” one for which “no universal test” has “ever been formulated.” Prosser, The Law of Torts, at § 53. Unfortunately, “no satisfactory substitute for it, by which the defendant’s responsibility may be limited, has been devised.” Id.

I have found no case in any jurisdiction in this country where a cause of action has been recognized that would allow someone to be sued for placing a “for sale by owner” sign on his or her own property. If we could survey public opinion, I believe that the vast majority of our population would view it as quite shocking that such a claim would be allowed to proceed in our courts to possible verdict. Therefore, in my view, it goes against the “general understanding of mankind” to recognize these facts as applicable to the judicially-created causes of action addressed herein. For these reasons, I would obviously “draw the line” differently than my colleagues.

Additionally, in an era when the executive and legislative branches of our government have worked together to curtail what they view as abuses of our common law tort system by limiting recovery on claims that all would recognize as clearly viable, I view it as dangerous and unwise for the judiciary to expand causes of action to reach conduct clearly beyond the scope historically recognized by law.

      . In their complaint, the Walters did not allege the exact number of condominium units. On remand, the Walters should be allowed to amend their complaint to include these allegations.

      . Americas Homes, Inc. v. Esler, 668 So.2d 239 (Fla. 5th DCA 1996), relied upon by the dissent, is distinguishable for several reasons: First, for the reason that Judge Sharp identified — a lack of any legitimate purpose for the interference. Second, because the posting of the for sale signs violated a condominium rule. Finally, Americas Homes, Inc. involved a different legal standard of review. There, the trial judge denied the plaintiff's request for temporary injunction. Here, the trial judge dismissed a complaint with prejudice.

      . I also question the majority’s conclusion that the facts alleged by the Walters establish a sufficient "business relationship” with prospective buyers to support a claim. See Ethan Allen, Inc. v. Georgetown Manor, Inc., 647 So.2d 812 (Fla.1994) (generally, a mere offer to sell does not, by itself, give rise to a sufficient legal right to support a claim of intentional interference with a business relationship).


text:
    Bobby L. MAGWOOD, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5163.
    District Court of Appeal of Florida, First District.
    May 1, 2006.
    Rehearing Denied June 19, 2006.
    Bobby L. Magwood, pro se, Appellant.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Turner v. State, 557 So.2d 939 (Fla. 5th DCA 1990).

ERVIN, VAN NORTWICK, and BROWNING, JJ., Concur.


text:
    Ronald A. GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-5861.
    District Court of Appeal of Florida, First District.
    May 3, 2006.
    Rehearing Denied June 20, 2006.
    Appellant, pro se.
    Charlie Crist, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We AFFIRM the order denying the motion, but do so without prejudice to appellant’s refiling his jail credit claim in a facially sufficient rule 3.850 motion. See Burchfield v. State, 907 So.2d 614 (Fla. 1st DCA 2005).

KAHN, C.J., ERVIN and VAN NORTWICK, JJ, concur.


author: BROWNING, J.

text:
    Danny Harold GOODEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3237.
    District Court of Appeal of Florida, First District.
    May 4, 2006.
    Rehearing Denied June 19, 2006.

      Edwin S. Zeitlin, Pensacola, for Appellant.
    Charlie Crist, Attorney General; Alan R. Dakan, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Appellant seeks review of his judgment and sentence for indirect criminal contempt. We affirm Appellant’s conviction because he failed to show it was impossible to obey the order and in defense relied primarily on an attempt to retry the original action. See Shadow Lakes Woods, Inc. v. Schneider, 414 So.2d 3, 4 (Fla. 5th DCA 1982) (quoting Bird v. Johnson, 234 Ind. 555, 130 N.E.2d 29, 31 (1955)). The language of the order violated by Appellant restrained him from eom-ing onto the land described as running to and along “the waters’ edge,” yet, as the evidence shows, he was twice on land past the waters’ edge. Although the phrase “the waters’ edge” may be an erroneous description of the metes and bounds of the property, the order of injunction is, nonetheless, enforceable. Cf. E. Shores Sales Co. v. City of N. Miami Beach, 363 So.2d 321 (Fla.1978) (holding that even erroneous rulings in a decree that had become final could not be attacked collaterally).

Appellant’s claim that his sentence is illegal was not preserved. However, we reverse the sentence because the trial court did not permit Appellant to present evidence in mitigation, as authorized by Florida Rule of Criminal Procedure 3.840(g). Failure to follow this rule is fundamental error. See Garrett v. State, 876 So.2d 24, 25-26 (Fla. 1st DCA 2004). Accordingly, we AFFIRM the conviction, REVERSE the sentence, and REMAND for proceedings consistent with this opinion.

ALLEN and PADOVANO, JJ., concur.


text:
    Reginald C. HAWKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-5866.
    District Court of Appeal of Florida, First District.
    May 4, 2006.

      Reginald C. Hawkins, pro se, Petitioner.
    Charlie Crist, Attorney General, and Tracy Lee Cooper, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. Petitioner shall be allowed a belated appeal from the order denying his motion for postconviction relief rendered on August 3, 2005, in Leon County Circuit Court case number 2000-CF-719. Upon issuance of mandate in this cause, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as the notice of appeal. Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

WEBSTER, DAVIS, and LEWIS, JJ., Concur.


author: THOMAS, J.

text:
    John HINES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-5228.
    District Court of Appeal of Florida, First District.
    May 8, 2006.
    Rehearing Denied June 12, 2006.

      Nancy A. Daniels, Public Defender, P. Douglas Brinkmeyer and Maria Ines Sú-ber, Assistant Public Defenders, Tallahassee, Attorneys for Petitioner.
    Charlie Crist, Attorney General, Giselle Lylen Rivera, Assistant Attorney General, Tallahassee, Attorneys for Respondent.
   THOMAS, J.

Petitioner seeks certiorari review of the trial court’s order denying his motion to dismiss his pending criminal charge. In his motion to dismiss, Petitioner alleges that the criminal charge against him must be dismissed pursuant to section 916.303(1), Florida Statutes (2002). The issue before us is whether section 916.303(1) creates a substantive right requiring dismissal of criminal charges, without prejudice, against a mentally retarded defendant who remains incompetent to proceed for more than two years. Because we hold that the Legislature granted Petitioner a substantive right to dismissal of the criminal charge after two years when it enacted section 916.303(1), we grant Petitioner’s writ.

Petitioner was charged with second-degree murder in 2001 and found to be incompetent to proceed due to mental retardation in 2002. Three years later, Petitioner filed his motion to dismiss.

At the motion hearing, the director for a residential program for developmentally disabled adults testified that if the trial court dismissed Petitioner’s pending criminal charge, the Agency for Persons with Disabilities would seek to have Petitioner involuntarily admitted under section 393.11, Florida Statutes (2002). The trial court found that Petitioner remained incompetent to proceed based on his mental retardation and that “there [was] no likelihood that [Petitioner] will regain competency within the near future.” However, the trial court denied Petitioner’s motion to dismiss, relying on Byrd v. State, 834 So.2d 872 (Fla. 1st DCA 2002) (Benton and Lewis, JJ., concur in result only), review dismissed, 880 So.2d 616 (Fla.2004), rather than following the clear language of section 916.303(1). In Byrd, Judge Miner explained that Florida Rule of Criminal Procedure 3.213(a) “superseded” section 916.303(1). Id. at 873.

Florida Rule of Criminal Procedure 3.213(a) states:

Dismissal without Prejudice during Continuing Incompetency. If at any time after 5 years after determining a person incompetent to stand trial ... the court ... determines that the defendant remains incompetent to stand trial ..., that there is no substantial probability that the defendant will become mentally competent to stand trial ... in the foreseeable future, and that the defendant does not meet the criteria for commitment, it shall dismiss the charges against the defendant without prejudice to the state to refile the charges should the defendant be declared competent to proceed in the future.

(Emphasis added.)

Section 916.303(1), Florida Statutes (2002), conflicts with rule 3.213(a), and it states:

The charges against any defendant found to be incompetent to proceed due to retardation ... shall be dismissed without prejudice to the state if the defendant remains incompetent to proceed within a reasonable time after such determination, not to exceed 2 years, unless the court in its order specifies its reasons for believing that the defendant will become competent to proceed within the foreseeable future and specifies the time within which the defendant is expected to become competent to proceed.

(Emphasis added.)

When a statute conflicts with a rule, as here, the conflict is resolved by determining whether the subject of the conflict is procedural ■ or substantive. When a statute confers a substantive right, a conflicting procedural rule is invalid as a violation of separation of powers under article II, section 3 of the Florida Constitution because a rule of procedure cannot enact substantive law. See In re Amendments to Fla. Rules of Civil Procedure, 682 So.2d 105, 105-06 (Fla.1996) (rejecting a proposed amendment allowing trial courts to determine a qualifying party’s entitlement to attorney’s fees under offer of judgment statutes because “we must respect the legislative prerogative to enact substantive law”); Timmons v. Combs, 608 So.2d 1, 2-3 (Fla.1992) (stating that a procedural rule cannot affect determination of a party’s entitlement to attorney’s fees, which is a substantive determination). Further, when a rule of procedure attempts to create a substantive right, it violates the Legislature’s authority under article III of the Florida Constitution to enact substantive law. See Johnson v. State, 336 So.2d 93, 95 (Fla.1976) (noting that the Legislature has the power to enact substantive law under article III, section 1 of the Florida Constitution).

Similarly, a statute which attempts to regulate practice and procedure is unconstitutional under the separation of powers provision in article II, section 3 of the Florida Constitution, and it violates the supreme court’s rulemaking authority under article V, section 2(a) of the Florida Constitution. See State v. Garcia, 229 So.2d 236, 237-38 (Fla.1969) (holding that the right to waive a jury trial is a procedural matter which the supreme court may enact, therefore, the rule allowing a defendant to waive his right to a jury trial supersedes a statute requiring a jury to decide a capital case).

The Florida Supreme Court has recognized that legislation requiring dismissal of a juvenile delinquency petition not filed within a certain time period vests the juvenile with a substantive right to dismissal of the petition. See S.R. v. State, 346 So.2d 1018, 1019 (Fla.1977) (holding that a statute which required dismissal of a juvenile petition when the State failed to file the petition within 30 days superseded a procedural rule which gave the court discretion to dismiss the petition after the 30-day time period, because the statute “provides a juvenile with a substantive right and substantive statutes supersede procedural rules”); M.F. v. State, 583 So.2d 1383, 1386 (Fla.1991) (explaining that “[pjrevious decisions of this Court reaffirm the strength of the legislature’s policy decision to require the state to promptly file delinquency petitions.”) (emphasis added). In addition, the Second District has followed the Supreme Court’s reasoning and held that a juvenile has a substantive right to a dismissal of the petition. State v. L.H., 392 So.2d 294, 296 (Fla. 2d DCA 1980) (holding that a statute which required dismissal of juvenile delinquency petition when the State failed to file the petition within 45 days controlled over an inconsistent procedural rule requiring dismissal when the State- failed to file the petition within 30 days because the statute was substantive).

We believe that S.R. controls here, as well as the similar logic of L.H. Here, as in S.R. and L.H., the Legislature created a substantive right to dismissal of criminal charges against an incompetent mentally retarded defendant after a certain time period. Because section 916.303(1) confers a substantive right, it takes precedence over rule 3.213(a). Therefore, Petitioner was entitled to have the criminal charge against him dismissed after two years.

We do not find the contrary result of Byrd persuasive, and Byrd is not precedent because it-was signed by only one judge. See 20 Am.Jur.2d Courts § 138 (2005). “A minority opinion has no binding precedential value.” Id. “If a majority agree on the decision in the case, but less than a majority agree on the reasoning for the decision, the decision has no prece-dential effect.” Id. The supreme court dismissed review in Byrd because it did not constitute an opinion which the supreme court could review. Byrd, 880 So.2d at 617. Thus, Byrd was not authority for determining whether the issue presented here was substantive or procedural.

As noted, section 916.303(1) provides that dismissal of criminal charges is without prejudice to the State to refile, should Petitioner become competent. In addition, section 916.14, Florida Statutes (2002), provides that “[t]he statute of limitations shall not be applicable to criminal charges dismissed because of the incompetency of the defendant to proceed.”

Although the substantive right created by section 916.303(1) is conditional because the State may refile charges if Petitioner regains competency, this condition alone does not render section 916.303(1) inferior to rule 3.213(a). If the State possesses the constitutional authority to require dismissal of criminal charges with prejudice, the State certainly possesses the authority to require dismissal of criminal charges without prejudice. This distinction is quintessentially a “policy decision” within the prerogative of the legislative branch. See M.F., 583 So.2d at 1386.

When charges are dismissed against a mentally retarded defendant such as Petitioner, the State or the defendant’s attorney may seek to involuntarily commit the defendant under certain conditions. See § 393.11, Fla. Stat. (2002). Section 916.303(1) simply grants a mentally retarded defendant, who is found incompetent to proceed, the right to have the charges against him dismissed after two years. However, nothing in section 916.303(1) prohibits civil commitment of the defendant to protect the defendant and the public from harm.

Because we hold that section 916.303(1) is a substantive law within the Legislature’s authority to determine, and that it vests Petitioner with a substantive right to have the charge against him dismissed, we do not need to address whether Petitioner is entitled to release pending involuntary civil commitment proceedings under this court’s decision in Mosher v. State, 876 So.2d 1230 (Fla. 1st DCA 2004).

The petition for certiorari is GRANTED and we remand with instructions to the trial court to dismiss the pending criminal charge without prejudice to the State to refile criminal charges. On remand, the trial court shall allow Petitioner to be involuntarily admitted to residential services under section 393.11, Florida Statutes, (2002), or such other appropriate action as the court may determine. In addition, the State is not precluded from pursuing any other appropriate action regarding Petitioner authorized by law.

Petition for Certiorari is GRANTED and REMANDED, with instructions.

VAN NORTWICK and HAWKES, JJ., concur.


text:
    Debra GRAHAM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-5496.
    District Court of Appeal of Florida, First District.
    May 8, 2006.

      Michael Rayne, Tallahassee, for Petitioner.
    Charlie Crist, Attorney General, and Sheron Wells, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgments and sentences rendered on or about June 20, 2005, in Leon County Circuit Court case numbers 04-CF-3845 and 04-CF-2896, is granted. Upon issuance of mandate, a copy of this opinion shall be provided to the clerk of the circuit court for treatment as a notice of appeal. See Fla. R.App. P. 9.141(c)(5)(B). If petitioner qualifies for the appointment of counsel, the circuit court shall appoint counsel to represent her on appeal.

ALLEN, VAN NORTWICK, and POLSTON, JJ., concur.


author: PER CURIAM. ERVIN, J.,

text:
    Yodelmis VAZQUEZ, Petitioner, v. WENDY’S and ACE-USA, Respondents.
    No. 1D05-4847.
    District Court of Appeal of Florida, First District.
    May 11, 2006.
    Rehearing Denied June 19, 2006.
    Robert L.H. Rampil, Coral Gables, and Jay M. Levy of Jay M. Levy, P.A., Miami, for Petitioner.
    Robert L. Teitler and Renee Smith of Walton, Lantaff, Schroeder & Carson, Miami; and T. Peter Nguyen of Marcos, Rothman, Scharf & Valdes, P.A., Miami, for Respondents.
   PER CURIAM.

The petition for writ of certiorari is denied. On certiorari review, the order of the lower tribunal will be quashed only if it “departs from the essential requirements of law.” Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 527 (Fla.1995). Prior to considering whether the order departs from the essential requirements of law, however, the petitioner must establish that the order results in irreparable harm. City of Oldsmar v. Kimmins Contracting Corp., 805 So.2d 1091, 1093 (Fla. 2d DCA 2002); Taylor v. Columbia/HCA Doctors Hosp. of Sarasota, 746 So.2d 1244, 1245 (Fla. 1st DCA 1999). In this case, the petitioner has failed to demonstrate that the functional capacity evaluation will result in irreparable harm. Accordingly, the petition for writ of certiorari is denied.

DENIED.

WOLF and DAVIS, JJ., concur; ERVIN, J., dissents with Opinion.

ERVIN, J.,

dissenting.

I would grant the petition for writ of certiorari. In order to explain my position adequately, I consider an explanation of the facts necessary. The judge of compensation claims’ (JCC’s) contested order compelled petitioner to submit to a functional capacity evaluation (FCE) at the facility Wendy’s and ACE-USA, the employer/carrier (E/C), selected, which was unable to provide an evaluation that complied with the evaluation claimant’s treating physician prescribed. Under the circumstances, I consider the JCC’s ruling to be a departure from the essential requirements of the law that will cause irreparable harm to petitioner and which cannot be remedied on direct appeal from a final compensation order.

After the parties were unable to agree on how the FCE should be conducted, the E/C’s counsel filed a motion to compel petitioner’s attendance at an FCE to be performed by the facility the E/C designated. The JCC went forward with the hearing on the motion, despite the absence of petitioner’s counsel. The day after the hearing, the JCC issued an order compelling petitioner’s attendance at an FCE to be scheduled by the E/C.

Petitioner’s counsel moved for rehearing and/or to vacate the order. In the motion, petitioner’s counsel stated that at the time of the hearing on the E/C’s motion to compel he was attending a previously scheduled hearing before another JCC, and he had explained his reason for nonattendance to the judge’s legal assistant. The motion further recited that the basis of petitioner’s opposition to the E/C’s motion was her desire to have the JCC exercise control over the type of FCE to be performed and the medical supervision required. The JCC summarily denied the motion.

The record before us establishes that the JCC conducted an ex parte hearing on the E/C’s motion to compel. The chronology of events leading up to the hearing raises concerns as to the sufficiency of the notice afforded petitioner’s counsel to facilitate his ability to appear and present petitioner’s position. While the certificate of service on the E/C’s motion to compel shows a September 2, 2005, mailing date to claimant’s counsel, the copy of the motion included in the appendices to the parties’ briefs was made from a facsimile copy bearing a transmission date of September 7, 2005, and a notice of hearing date of September 8, 2005. On September 8, 2005, despite the absence of petitioner’s counsel, the JCC proceeded with the hearing on the E/C’s motion to compel. The following day, September 9, 2005, the JCC entered an order granting the E/C’s motion. Although petitioner’s counsel filed a motion for rehearing or to vacate the order, explaining the reason for his absence from the hearing, the JCC summarily denied the motion, without stating any reasons therefor.

In so ruling, the JCC apparently overlooked the cardinal rule instructing that “[a]n injured employee’s right to receive workers’ compensation benefits is a property right protected by procedural due process safeguards including notice and an opportunity to be heard.” Isaac v. Green Iguana, Inc., 871 So.2d 1004, 1006 (Fla. 1st DCA 2004). Due process requires reasonable notice based on all the circumstances. “Such notice should contemplate all factors involved and should be conveyed in a manner reasonably calculated to facilitate the ability of the opposing party to appear and be heard.” Town of Jupiter v. Andreff, 656 So.2d 1374, 1377 (Fla. 1st DCA 1995).

Before a workers’ compensation order becomes final, it is within a JCC’s “discretion to determine whether the facts of a particular case constitute excusable ne-gleet, mistake or inadvertence, so as to support a motion to vacate a compensation order.” Threat v. Rogers, 443 So.2d 149, 150 (Fla. 1st DCA 1983). “ ‘[W]here inaction results from clerical or secretarial error, reasonable misunderstanding, a system gone awry or any other of the foibles to which human nature is heir, then upon timely application accompanied by a reasonable and credible explanation the matter should be permitted to be heard on the merits.’ ” City of Pembroke Pines v. Zitnick, 792 So.2d 677, 678 (Fla. 4th DCA 2001) (quoting Shurgard Storage Ctrs., Inc. v. Parker, 755 So.2d 695, 696 (Fla. 4th DCA 1999)).

The chronology of events leading up to the issuance of the order below discloses petitioner’s counsel received inadequate notice of the hearing on the E/C’s motion to compel, and was absent from that hearing due to a system gone awry or excusable neglect. Under the circumstances, I deem the E/C’s assertion that claimant failed to file a written response to the motion to compel within the seven days allowed by rule 60Q-6.115(4) to be disingenuous. The record reveals the hearing on the motion to compel was conducted before the expiration of the seven-day period entitling claimant to file a response. The record also raises questions concerning how much advance notice petitioner’s counsel actually received as to the scheduled date of the hearing.

I am also unable to agree with the majority’s conclusion that the petitioner failed to demonstrate that the order compelling her to undergo the FCE would result in irreparable harm. It is an established principle of law that interlocutory orders requiring mental or physical examinations cause harm of a kind that cannot be remedied on appeal from a final judgment. See Chavez v. J & L Drywall & Travelers Ins. Co., 858 So.2d 1266, 1268 (Fla. 1st DCA 2003); Olges v. Dougherty, 856 So.2d 6, 10 (Fla. 1st DCA 2003); Taylor v. Columbia/HCA Doctors Hosp., 746 So.2d 1244, 1245 (Fla. 1st DCA 1999). “In the context of compelled physical or psychiatric examinations, the required element of irreparable harm may be found based on the notion that once the invasive harm of the examination occurs, it cannot be undone on appeal.” Id.

Although the foregoing case law deals with discovery orders involving mental or physical examinations, I conclude the rationale is equally applicable in the context of a compelled FCE. Because the parties are in an adversarial relationship, the evaluator/examiner is essentially an expert witness for the party requesting the examination. See Chavez, 858 So.2d at 1268. It is undisputed that the FCE at the facility the E/C designated cannot be performed in the manner prescribed by claimant’s treating physician. The evaluation ordered will not be supervised by a physician; in fact, the facility does not retain a physician on the premises.

The record discloses that as a result of her industrial accident, claimant sustained back and hand injuries. She underwent an unsuccessful back surgery, and suffers major depression believed to be related to her unresolved back and hand pain. Implicit in the FCE guidelines specified by claimant’s treating physician is a concern that her fragile physical and emotional health are at risk if the FCE does not conform to the physician’s specifications. Moreover, claimant’s counsel sought a medically monitored FCE that would serve the dual purposes of providing information regarding claimant’s ability to maintain gainful employment and control of her pain.

Because I consider that the FCE which claimant has been ordered to undergo involves invasive procedures and activities, and poses a risk to claimant’s emotional and physical health that could not be remedied by an appeal from the final compensation order, I would grant the petition for writ of certiorari and quash the order compelling claimant to undergo the FCE.

      . Claimant's authorized treating physician instructed that the FCE should be performed by either a highly qualified orthopedic surgeon who does FCEs regularly, or by an occupational therapist or physical therapist under supervision of a doctor. The physician recommended periodic pain evaluations be conducted during the FCE, and a follow-up evaluation the next day. The purpose of the prescribed evaluation was to determine claimant's medical restrictions as applied to a 40-hour work week.

      . Florida Administrative Code Rule 60Q-6.115, entitled Motion Practice, provides in part:
      (4) For other motions which have not been amicably resolved, the movant shall file the motion, which shall include a statement as to whether a hearing on the motion is necessary and, if so, the basis for requesting a hearing. The other parties may, within seven days of service of the written motion, file a response in opposition, which shall include a statement as to whether a hearing on the motion is necessary and, if so, the basis for requesting a hearing. Unless the judge determines that a hearing is necessary based upon the statements in the motion and/or response as to why a hearing is necessary, written motions will normally be disposed of without a hearing. Motion hearings may be conducted either in person or telephonically as the judge deems necessary.