author: WEBSTER, J.

text:
    Jamin PALMER, Appellant, v. McKesson CORPORATION, and Gallagher Bassett Services, Inc., Appellees.
    No. 1D08-0516.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2009.

      C. James McCall of McCall & Erler, P.A., Jacksonville, and Wilbur W. Anderson of Wilbur W. Anderson, P.A., Jacksonville, for Appellant.
    Jennifer S. Haley-Gleason of Harbsmeir Dezayas, LLP, Tallahassee, for Appellees.
   WEBSTER, J.

In this workers’ compensation case, claimant seeks review of an order of the judge of compensation claims dismissing her petitions for benefits based on the determination that the statute of limitations had run. We affirm as to all issues raised by claimant, writing to address only the contention that the judge erred in placing on her the burden to prove the statute had not run.

Claimant sustained a compensable lumbar injury on August 17, 2001. The employer and servicing agent authorized medical treatment with Dr. Henkin, who performed a lumbar discectomy in November 2001. In February 2002, claimant was provided with a TENS unit. Claimant last received authorized care with Dr. Henkin on June 7, 2002.

On July 5, 2005, claimant filed three petitions for benefits, requesting TENS supplies and continued authorization of Dr. Henkin. The employer and servicing agent filed denials based on the expiration of the statute of limitations. Claimant countered that running of the statute had been tolled and/or revived by the provision of TENS supplies and medications.

At the merits hearing, claimant introduced the testimony of a former employee of a medical supply company used by the employer and servicing agent in support of the proposition that she was furnished TENS supplies in October of 2004. Claimant also testified that in 2006 she was furnished a prescription card from a pharmacy management company, which she used to fill four prescriptions from an unauthorized doctor. The adjuster testified that the employer and servicing agent did not authorize or pay for TENS supplies or medications after 2002, and the prescription card was issued by accident (by the pharmacy management company), without the employer’s and servicing agent’s knowledge or consent.

In her order, the judge rejected the testimony offered by claimant relative to the provision of TENS supplies because it was inconsistent with logic and the totality of the evidence. Significantly, the payout records of the employer and servicing agent failed to corroborate the transactions testified to, and Dr. Henkin’s records were silent as to claimant’s need for the device. As to the medications, the judge found that a pharmacy management company had mistakenly furnished the prescription card to claimant, without the knowledge or consent of the employer and servicing agent, and that the employer and servicing agent did not pay for the medications. Ultimately, the judge found the employer and servicing agent did not furnish medical treatment to claimant after June 7, 2002. All of the findings are supported by competent, substantial evidence. Based on the findings, the judge concluded that the petitions for benefits were barred because they were filed more than two years after the date of injury, and more than one year after the last receipt of indemnity benefits or authorized medical treatment.

On appeal, claimant argues that the judge erroneously shifted to her the burden of proving that the statute of limitations had not run. However, in making this argument, claimant fails to appreciate the distinction between the general statute of limitations contained in section 440.19(1), Florida Statutes (2001) (stating that a claim must be filed within two years of the date of injury), and the express tolling exception to that statute found in section 440.19(2), which extends the filing period for one year upon the payment of indemnity benefits or the furnishing of medical care.

Because running of the statute of limitations is an affirmative defense, the employer and servicing agent had the burden of raising that defense and proving that the petitions for benefits were untimely pursuant to section 440.19(1). See § 440.19(4), Fla. Stat. (2001); see also Denestan v. Miami-Dade County, 789 So.2d 515 (Fla. 1st DCA 2001). However, here the employer and servicing agent were obliged only to establish the date of injury (stipulated as August 17, 2001) and the date of the first petition for benefits (July 5, 2005) to carry that burden. Having done so, they established a prima facie case that the petitions for benefits were untimely pursuant to section 440.19(1) because the first petition was filed more than two years after the date of injury. The question then becomes whether the general statute was tolled or extended pursuant to the exception in section 440.19(2), and which party carries the burden of proving the applicability of that exception.

Although it can be inferred from our prior decisions that we have concluded (without expressly saying so) that a workers’ compensation claimant carries the burden of proving the applicability of the tolling exception contained in section 440.19, it does not appear that we have directly addressed the issue. See Devilling v. Rimes, Inc., 591 So.2d 304, 305 (Fla. 1st DCA 1991) (affirming a denial of a claimant’s requested extension of the statute of limitations, because there was no showing of employer knowledge of the alleged medical treatment); Ginsberg v.ChemMED Corp., 929 So.2d 633 (Fla. 1st DCA 2006) (reversing and remanding for factual findings where there was an absence of showing as to when claimant last took prescribed medication).

In the civil arena, we have held that a plaintiff seeking to avoid a statute of limitations by operation of a specific statutory tolling exception has the burden of proving avoidance of, or the exception to, the statute. See Richardson v. R.L. Wilson, 490 So.2d 1039 (Fla. 1st DCA 1986) (holding that, while the burden is on the defendant to prove that the action was not brought within the appropriate limitation period, the burden of proving the conditions which would invoke a statutory tolling provision, is on the plaintiff). The tolling exception in section 440.19(2) is analogous to the statutory tolling exceptions to the statutes of limitations applicable to civil actions found in section 95.051. Having held that the plaintiff bears the burden of proving tolling exceptions contained in section 95.051, we can think of no reason why we should not reach the same result with regard to the tolling exception found in section 440.19(2). Accordingly, we hold that, where a workers’ compensation claimant seeks to extend or avoid the statute of limitations by operation of section 440.19(2), he or she bears the burden of establishing the exception. Wilson, 490 So.2d at 1040. Because claimant failed to carry her burden of proving receipt of medical treatment after June 7, 2002, the dismissal of her petitions for benefits based on the statute of limitations is affirmed.

AFFIRMED.

BROWNING and LEWIS, JJ., concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Sharon EDELSTEIN, as Personal Representative of the Estate of Shirley A. Beagell, Appellant, v. Edward BEAGELL, as Beneficiary of the Estate of Shirley A. Beagell, Appellee.
    No. 1D08-5673.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2009.
    Robert M. Moletteire of Moletteire & Torpy, P.A., Melbourne, for Appellant.
    Rhonda S. Clyatt of the Law Offices of Rhonda S. Clyatt, Panama City, for Appel-lee.
   PER CURIAM.

Having considered the appellant’s response to this Court’s order of December 11, 2008, we dismiss this appeal for lack of jurisdiction. The order on appeal, entitled “Final Order on Petition for Determination of Beneficiaries,” denied the petition below without making any final determination as to the beneficiaries of the estate. Therefore, the order on appeal did not “finally determine a right or obligation of an interested person,” so as to be appealable under Florida Rule of Appellate Procedure 9.110(a)(2). See Dempsey v. Dempsey, 899 So.2d 1272 (Fla. 2d DCA 2005); Sanchez v. Masterhan, 837 So.2d 1161 (Fla. 1st DCA 2003).

The appellee’s “Motion to Dismiss and/or Require Appellant to Properly Designate the Record on Appeal,” filed on January 15, 2008, as well as the “Appellant’s Motion for Extension of Time to File Initial Brief,” filed on January 29, 2009, are denied as moot.

DISMISSED.

WEBSTER, BROWNING and LEWIS, JJ., concur.


author: PADOVANO, J.

text:
    LEVY COUNTY, a political subdivision of the State of Florida, Appellant, v. Ellis DIAMOND and Barbara Diamond, husband and wife; State of Florida, Department of Environmental Protection; and State of Florida, Trustees of the Internal Improvement Trust Fund, Appellees.
    No. 1D08-3434.
    District Court of Appeal of Florida, First District.
    March 3, 2009.

      Matthew C. Lucas, Tampa, for Appellant.
    Mallory Horne of Maddox & Horne, PLLC, Tallahassee; William C. Owen, Tallahassee; and L. Kathryn Funchess, Assistant General Counsel, Department of Environmental Protection, Tallahassee, for Appellees.
   PADOVANO, J.

The plaintiffs, Ellis and Barbara Diamond, filed an inverse condemnation suit in the Circuit Court for Leon County against the defendants, Levy County, the Trustees of the Internal Improvement Fund, and the Department of Environmental Protection. After obtaining waivers of the home venue privilege by the Trust Fund and the Department, Levy County filed a motion to transfer venue under section 47.122, Florida Statutes, to the Circuit Court for Levy County. The trial court denied the motion, and Levy County now appeals.

It is not clear from the order whether the trial court accepted the Diamonds’ argument that the home venue privilege cannot be waived, or whether the court simply rejected Levy County’s argument that venue should be changed for the convenience of the witnesses. However, we conclude that the trial court was in error in either case.

A state agency has a right to be sued in the county where it maintains its headquarters. See Carlile v. Game and Fresh Water Fish Comm’n, 354 So.2d 362, 366 (Fla.1977). The Trust Fund and the Department each waived the privilege, but the plaintiffs contend that these waivers are invalid. They argue that the list of recognized exceptions to the home venue privilege set out in Florida Department of Children and Family Services v. Sun-Sentinel, Inc., 865 So.2d 1278 (Fla.2004), includes a waiver by statute but not a post-filing voluntary waiver by the agency. Hence, they conclude that the waivers by the Trust Fund and the Department are ineffective and that the litigation must remain in Leon County.

It is true that the home venue privilege may be waived by statute, as the court noted in Surir-Sentinel, but that is not the only way that it can be waived. For example, if the agency is the party moving for a change of venue, the very act of filing the motion would amount to a waiver. See Ringling Bros.-Barnum & Bailey Combined Shows, Inc. v. State, 295 So.2d 314, 322-323 (Fla. 1st DCA 1974). Likewise, an agency may waive the privilege by failing to assert a timely objection to venue. See Dep’t of Transp. v. Gulf-Atlantic Constructors, Inc., 727 So.2d 305, 306 (Fla. 1st DCA 1999). Improper venue is one of the defenses that must be asserted at or before the time for service of a responsive pleading. See Fla. R. Civ. P. 1.140(b).

When the court in Sun-Sentinel included a waiver by statute on the list of exceptions to the home venue privilege, it was speaking of the circumstances in which the privilege would not apply-that is, the circumstances in which an agency would have no right to enforce the privilege. Whether an agency can give up a right it could otherwise elect to enforce is another matter entirely. Like most other rights, the home venue privilege afforded to a state agency may be waived.

Both before and after Surir-Sentinel, Florida courts have distinguished between the identified exceptions to the home venue privilege and voluntary waiver of the privilege. See Bush v. State, 945 So.2d 1207, 1212 (Fla.2006) (“Absent waiver or application of an identified exception, the home venue privilege appears to be an absolute right.”) (quoting Jacksonville Elec. Auth. v. Clay Co. Utility Auth., 802 So.2d 1190, 1192 (Fla. 1st DCA 2002)); Fla. Div. of Pari-Mutuel Wagering of the Fla. Dep’t of Prof. Reg. v. Fla. Standardbred Breeders & Owners Assoc., Inc., 983 So.2d 61 (Fla. 4th DCA 2008) (“The only time [the home venue] privilege is not enforced is when an agency waives it or an exception to the privilege applies”); School Bd. of Osceola County v. State Bd. of Educ., 903 So.2d 963, 966 (Fla. 5th DCA 2005). As these cases illustrate, there are exceptions to the home venue privilege, but the privilege can be waived even if an exception does not apply.

The trial judge may have concluded that Levy County failed to show that venue should be changed for the convenience of the witnesses. However, it is clear from the record that the controversy has little or no connection to Leon County, the forum selected by the plaintiffs. The property that is the subject of the inverse condemnation claim is situated in Levy County, the official documents relating to the property are on file in the clerk’s office in Levy County and nearly all of the potential witnesses live in Levy County or in the immediate vicinity. The plaintiffs filed an affidavit in opposition to the motion for change of venue, but the affidavit merely raises the possibility that some of the witnesses would be Tallahassee residents employed by the Trust Fund or the Department.

We recognize that a motion for change of venue based on the doctrine of foTwm non conveniens is within the discretion of the trial court. See CSX Transportation, Inc. v. Deem, 933 So.2d 673 (Fla. 1st DCA 2006); Hu v. Crockett, 426 So.2d 1275, 1276 (Fla. 1st DCA 1983). But the order in this case does not indicate that the motion was denied on that basis, much less explain why. Because there is no substantial connection between the case and the forum selected by the plaintiffs, we conclude that the motion for change of venue should have been granted. See Morrill v. Lytle, 893 So.2d 671 (Fla. 1st DCA 2005); Stoppa v. Water Oak Mgmt. Corp., 584 So.2d 161 (Fla. 1st DCA 1991).

Reversed.

KAHN and VAN NORTWICK, JJ., concur.


text:
    Lester BRODEUR, Appellant, v. DALE E. PETERSON VACATIONS, INC., Appellee.
    No. 1D08-3516.
    District Court of Appeal of Florida, First District.
    March 4, 2009.
    Michael L. Weimorts, Destín; Jonathan R. Moothart, Traverse City, MI, for Appellant.

      D. Michael Chesser, Shalimar; M. Clay Ragsdale, Birmingham, AL, for Appellee.
   PER CURIAM.

Lester Brodeur, Appellant, seeks review of an order denying his motion for class certification. The trial court found, after an evidentiary hearing, that Appellant failed to carry his burden to prove the propriety of class certification under Florida Rule of Civil Procedure 1.220, as to both the adequacy requirement of paragraph (a) and the predominance requirement of paragraph (b)(3). Because Appellant has not challenged the trial court’s finding that there was “no definitive evidence” as to his adequacy to represent the class, we are constrained to affirm.

Appellant, an owner of vacation rental property, entered into a contract with Dale E. Peterson Vacations, Inc., Appellee, for the provision of property management services. Under the contract, Appellee was to obtain tenants, manage the property, collect rent, service accounts, advertise, and provide financial reports to Appellant. In exchange for these services, Appellee was entitled to retain a percentage of the “gross rental income” collected from tenants. During the course of the contractual relationship, a dispute arose regarding the proper basis for determining the amount of “gross rental income.” As a result, Appellant brought action against Appellee for breach of contract and sought to represent hundreds of other property owners who had property management contracts with Appellee.

After an evidentiary hearing, the trial court found that the proposed class members’ contracts were identical to Appellant’s in all material and relevant terms. The trial court further found that Appellee treated all members of the proposed class in the same manner with respect to the determination of “gross rental income.” The trial court also found that at the trial on the merits, extrinsic evidence would be admissible to determine the meaning of “gross rental income” and that it may be necessary for each property owner to testify as to his or her understanding of that term. Additionally, the trial court concluded that evidence of Appellee’s course of dealing with the individual class members might become an issue, due to certain defenses Appellee raised at the certification hearing, such as waiver and modification.

All of Appellee’s potential defenses rested on arguments that various proposed class members knew of Appellee’s method of determining “gross rental income,” either before or after entering into the contract. According to Appellee, many of the proposed class members intended from the inception of the contract to have “gross rental income” determined according to Appellee’s method. Appellee contended that others learned of Appellee’s method of determining “gross rental income” during the course of the contractual relationship and acquiesced to that method. Ap-pellee gave some examples of the ways proposed class members might have learned of its understanding of the term “gross rental income,” including attendance at homeowners’ association meetings, having direct conversations with Appellee’s representatives, accessing Appellee’s website, and reading a printed publication known as “the Vacation Planner.”

In its written order, the trial court discussed each of the elements required for class certification. It found that Rule 1.220(a)’s requirements of numerosity, commonality, and typicality were met. It found, however, that “[t]here was no definitive evidence regarding adequacy, or lack thereof, brought forward at the certification hearing.” The trial court went on to discuss the requirements of Rule 1.220(b)(3), finding that although the superiority requirement was met, the predominance requirement was not. The determination that Appellant had not met the predominance requirement was based on the fact that individualized proof might be necessary to show the various class members’ understanding of the term “gross rental income” at the inception of the contracts and thereafter, based on Appellee’s defenses. Ultimately, the trial court concluded that Appellant had not met the burden of proof necessary for class certification and denied the motion.

It is the burden of the proponent of class certification to prove “each and every element required by rule 1.220.” Terry L. Braun, P.A. v. Campbell, 827 So.2d 261, 265 (Fla. 5th DCA 2002). The adequacy requirement of paragraph (a) is no exception, and the fulfillment of this requirement “is not to be presumed in the absence of specific proof to the contrary.” City of Tampa v. Addison, 979 So.2d 246, 253-54 (Fla. 2d DCA 2007). The trial court’s finding that there was no definitive proof of adequacy supports the determination that Appellant failed to carry his burden.

We note, however, that the trial court’s order reflects an erroneous application of the predominance requirement of Rule 1.220(b)(3). The instant case is indistinguishable from Paladino v. American Dental Plan, Inc., 697 So.2d 897 (Fla. 1st DCA 1997), as to that issue. In Paladino, the appellant sought to represent a class of dentists who had participated in a “prepaid dental plan.” Id. at 898. The dispute centered on a provision in the plan concerning the disbursement of “capitation payments.” Id. The trial court in Paladi-no denied certification, reasoning that “the capitation payment provision in the parties’ contracts was ambiguous and, thus, required a specific inquiry as to each dentist’s intent at the time they signed the contract.” Id. We reversed the denial of certification because “the interpretation of the contract’s capitation provision predominate[d] over the other questions of law or fact affecting the individual class members.” Id. In reversing, we noted that “some evidence of intent may be necessary to determine the meaning of the capitation provision for certain class members.” Id. We pointed out that, rather than denying certification altogether, the trial court should have allowed the suit to be maintained as a class action and, “if required after further development of the issues, permit the lower court to create subclasses.” Id.

Here, too, subclasses could be created to account for the few factual scenarios Ap-pellee presented as defenses at the certification hearing. It appears clear to us, based on the trial court’s findings, that the predominant issue will be the interpretation of identical language in contracts between one defendant and many similarly situated plaintiffs. Nonetheless, because Appellant has not challenged the trial court’s determination that he failed to prove his adequacy as a class representative, the trial court’s order is AFFIRMED.

WEBSTER, BROWNING, and LEWIS, JJ., concur.

      . Appellee also alleged that some property owners had discovered how it assessed “gross rental income” through a print-out provided directly from Appellee. This print-out was, however, provided only upon request or in response to certain questions the property owners might ask of Appellee's representatives.


text:
    COMMUNITY HEALTH CHARITIES OF FLORIDA; The American Liver Foundation; Cystic Fibrosis Foundation; Crohn’s & Colitis Foundation; Prevent Blindness Florida; Children’s Tumor Foundation; March of Dimes; Lupus Foundation of America, Florida Chapter; Florida Hospices & Palliative Care; Hemophilia Foundation of Greater Florida; National Parkinson Foundation; American Diabetes Association; Leukemia & Lymphoma Society; American Lung Association; ALS Association; Alzheimer’s Association; Juvenile Diabetes Research Foundation; Arthritis Foundation; Florida Sids Alliance; Sickle Cell Disease Association of Florida; Easter Seals Florida; St. Jude Children’s Research Hospital; Muscular Dystrophy Association; NAMI Florida; National Kidney Foundation; National Multiple Scleroisis Foundation; Huntington’s Disease Society of America; and Association for Retarded Citizens, Appellants, v. STATE of Florida, DEPARTMENT OF MANAGEMENT SERVICES, Appellee.
    No. 1D08-3126.
    District Court of Appeal of Florida, First District.
    March 4, 2009.
    David C. Hawkins of David C. Hawkins, PLLC, Tallahassee; D. Andrew Byrne of Phillips Nizer, LLP, New York, NY, for Appellants.
    Clifford A. Taylor, Matthew F. Minno and Gerard T. York, Tallahassee, for Ap-pellee.
   PER CURIAM.

The appellants, Community Health Charities of Florida, et al., a federation of charities who participated in the 2006 Florida State Employees Charitable Campaign (“2006 Campaign”), seek review of a final order of the Department of Management Services (“the Department”), adopting the recommended order of an administrative law judge (“ALJ”). The ALJ recommended denying some of the appellants’ claims of entitlement to undesig-nated funds under the 2006 Campaign and approving entitlement for other appellants. The appellants raise several issues on appeal; only one merits discussion. The appellants argue that the ALJ erred in failing to set forth facts in support of his findings that some of the appellants did not qualify for undesignated funds. We agree. The remaining issues the appellants raised on appeal are affirmed. Accordingly, we reverse the Department’s order in part, affirm in part, and remand the case with directions that the ALJ set forth the underlying facts of record which support his findings.

Section 110.181, Florida Statutes (2007), governs the administration of the 2006 Campaign. State employees who participated in the 2006 Campaign could designate the participating charity that would receive their donations. Any donations that were not designated for a specific charity were considered “undesignated funds.” Qualifying charities were entitled to the same percentage of undesignated funds as designated funds they received. See § 110.181(2)(e), Fla. Stat. (2007). Section 110.181(2)(e) provides that for a charity to qualify for undesignated funds, it must “provide direct services in a local fiscal agent’s area.”

At the close of the 2006 Campaign, the appellants each applied for undesignated funds pursuant to section 110.181(2)(e). The Department determined that several of the appellants did not qualify for receipt of undesignated funds. As a result of these denials, the appellants sought a formal administrative hearing. In their third-amended petition, the appellants asserted their entitlement to receive undes-ignated funds, alleging, in pertinent part, that the Department had made improper factual determinations when deciding that the appellants were not entitled to such funds. After the evidentiary hearing, conducted pursuant to sections 120.57(1) and 120.569, Florida Statutes (2007), the ALJ entered a recommended order finding that several of the appellants were properly denied undesignated funds. In support of these findings, the ALJ noted that he accepted the appellants’ exhibits twenty-one through thirty-eight, which provided explanations regarding the unapproved appellants and “expand[ed] what is known about the charities, their services, the manner that the services were provided, who receives the services and where the services are received.” The ALJ stated, “Without recounting the details from the various sources previously described, all that information is accepted for purposes of this Recommended Order, as to the facts represented in the exhibits.” The ALJ found, “Based upon information provided in the aforementioned exhibits, the Association for Retarded Citizens/Florida, CHC, Florida Hospices and Palliative Care and the National Alliance for the Mentally Ill of Florida do not provide direct services in fiscal agent areas without intervention between the services offered and persons served in any location.” The ALJ did not provide further explanation or factual support for these findings.

The appellants filed several exceptions to the ALJ’s recommended order. The appellants argued that the ALJ erred in failing to cite to facts in the record to support his findings that certain appellants did not provide direct services and were thus barred from receiving undesignated funds through the 2006 Campaign. The Department entered a final order approving the ALJ’s recommended order and denying all of the appellants’ exceptions. The Department identified record evidence that supported the ALJ’s findings that certain appellants did not qualify for undesig-nated funds.

Section 120.569 Florida Statutes (2007), governs administrative decisions affecting substantial interests. Section 120.569(2)(m), provides, “Findings of fact, if set forth in a manner which is no more than mere tracking of the statutory language, must be accompanied by a concise and explicit statement of the underlying facts of record which support the findings.” Additionally, we explained in Memorial Healthcare Group, Inc. v. State, Agency for Health Care Administration, 879 So.2d 72, 74 (Fla. 1st DCA 2004), that “ALJs are required to make specific factual findings on substantial issues.”

In the instant case, the ALJ’s recommended order is devoid of factual findings regarding his denial of several of the appellants’ applications for undesignated funds. The ALJ failed to set forth his basis for finding that certain appellants did not provide direct services in a local fiscal agent’s area. The ALJ, as the finder of fact, was required to identify record evidence in support of his denial of the appellants’ claims to undesignated funds. The Department’s citation to record evidence that supports the ALJ’s findings in the final order does not cure the ALJ’s failure to adhere to the requirements of section 120.569(2)(m). Accordingly, we AFFIRM in part, REVERSE in part, and REMAND for further proceedings consistent with this opinion.

WEBSTER, BROWNING, and LEWIS, JJ., concur.


author: VAN NORTWICK, J.

text:
    Stephanie BROWN, Appellant, v. VANGUARD SECURITY & Claims Center, Appellees.
    No. 1D08-0344.
    District Court of Appeal of Florida, First District.
    March 4, 2009.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Gil Godfrey of Gil Godfrey, P.A., Miami, for Appellees.
   VAN NORTWICK, J.

Stephanie Brown, Claimant, seeks reversal of an order of the Judge of Compensation Claims (JCC) denying her motion to appoint an expert medical advisor (EMA) and denying her request for a methacho-line bronchoprovocation study. Because the opinions of the medical experts were in conflict, the JCC was obligated to appoint an EMA pursuant to section 440.13(9)(c), Florida Statutes (2000). Accordingly, we reverse both issues on appeal and remand for further proceedings.

Section 440.13(9)(c) is mandatory. It requires the appointment of an EMA before the merits of the claim can be addressed when there is a conflict in the opinions of authorized treating doctors or independent medical examination (IME) physicians. See Palm Springs Gen. Hosp. v. Cabrera, 698 So.2d 1352, 1353 (Fla. 1st DCA 1997). “The JCC does not have the authority to resolve conflicts between physician opinions once the claimant has requested an EMA.” Chapman v. Nationsbank, 872 So.2d 390, 392 (Fla. 1st DCA 2004).

Here, Dr. Goldstein, Claimant’s treating pulmonologist, testified that Claimant remained in need of ongoing treatment, and her exposure to construction dust remained the major contributing cause of her need for treatment. Dr. Goldstein’s opinion did not change after he was presented with Claimant’s various complaints voiced during pre-December 4, 2000, emergency room visits. In contrast, the Employer/Carrier’s IME, Dr. Feingold, also a pulmonologist, testified that Claimant’s occupational exposure resulted in respiratory irritation, but did not result in significant disease or permanent injury, and her symptoms should have disappeared after one to two months.

At the final hearing, the JCC heard testimony, reviewed the depositions of Drs. Goldstein and Feingold, and concluded that Dr. Goldstein’s opinion did “not accord with logic or reason.” Conversely, the JCC found Dr. Feingold’s opinion “persuasive, substantive, objective, consonant with logic and reason.” The JCC erred in failing to grant Claimant’s motion to appoint an EMA once the conflict was established by the deposition testimony of the experts. As this court found in Chapman, the denial of an EMA evaluation “cannot be justified on the basis that the JCC disagreed with and rejected the contrary opinion of an expert.” 872 So.2d at 393.

Further, Dawson v. Clerk of Circuit Court-Hillsborough County, 991 So.2d 407, 411 (Fla. 1st DCA 2008), filed as supplemental authority and argued by the Employer/Carrier at oral argument, does not provide support for affirming the JCC’s order. In Dawson, we reversed the JCC’s appointment of an EMA with respect to the claimant’s left shoulder injury because the orthopedic surgeon who provided the medical opinion asserted to be in conflict “was not authorized to treat [cjlaimant’s shoulder, ... did not examine her shoulder, and ... did not review any diagnostic studies or medical records pertaining to her shoulder other than a letter from [cjlaimant’s previous doctor ... noting her complaints of shoulder pain.” Id. Thus, the physician’s opinion “was insufficient to create a conflict of opinion triggering the necessity of an expert medical advisor.” Id. Here, Dr. Goldstein treated and examined Claimant. His opinion is sufficient to create a conflict. Because the JCC erred by not appointing an EMA, he also erred in denying the methacholine bronchoprovocation study.

REVERSED and REMANDED for appointment of an EMA and further proceedings consistent with this opinion.

ALLEN and ROBERTS, JJ., concur.


text:
    Christopher THOMAS, Appellant, v. BANK OF NEW YORK as Trustee for the Certificate Holders Cwabs, Inc., Appellee.
    No. 1D07-1812.
    District Court of Appeal of Florida, First District.
    March 4, 2009.
    Appellant Christopher Thomas, pro se.
    Cindy Runyan of Florida Default Law Group, PL, Tampa, for Appellee.
   PER CURIAM.

Appellant Christopher Thomas seeks review of a final summary judgment of mortgage foreclosure, arguing that he was denied sufficient service of process in the proceeding below. Because appellant filed a responsive pleading without challenging the sufficiency of service or the court’s exercise of personal jurisdiction over him at the “first opportunity,” he waived any defense regarding a defect in service. Re-Employment Servs., Ltd. v. Nat’l Loan Acquisitions Co., 969 So.2d 467, 470 (Fla. 5th DCA 2007); De Ardila v. Chase Manhattan Mortg. Corp., 826 So.2d 419, 420 n. 2 (Fla. 3d DCA 2002) (mortgagor waived argument alleging insufficiency of service of process of foreclosure action by filing pleadings without challenging service); accord Fla. R. Civ. P. 1.140(b), (h).

The summary judgment for appellee is AFFIRMED.

HAWKES, C.J., WOLF and KAHN, JJ., concur.


text:
    Lawrence Dewayne SLOCUM, Appellant, v. STATE of Florida, Appellee.
    No. 1D06-5274.
    District Court of Appeal of Florida, First District.
    March 4, 2009.

      Nancy A. Daniels, Public Defender, and G. Kay Witt, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Natalie D. Kirk, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Lawrence D. Slocum, appeals his thirty-year sentence as a prison releas-ee reoffender (PRR) on count two, burglary of a conveyance with battery. Appellant argues that burglary of a conveyance with battery is not a qualifying offense for PRR sentencing under section 775.082(9)(a)l, Florida Statutes (2005). We agree and, accordingly, reverse and remand for the trial court to resentence Appellant as to count two. We affirm Appellant’s judgment on both counts and his sentence for count one.

Appellant was charged with committing robbery and burglary of a conveyance with battery on August 28, 2005. Following trial, the jury found Appellant guilty of both counts as charged. At sentencing, the State argued that Appellant qualified for PRR sentencing for both counts. Appellant contended that burglary of a conveyance with battery was not a predicate offense to PRR sentencing under the statute. The trial court agreed with the State, reasoning that burglary with battery would fall under the catch-all provision of section 775.082(9)(a)l.o, which includes “[a]ny felony that involves the use or threat of physical force or violence against an individual.” The trial court sentenced Appellant as a PRR on both counts. Appellant received a fifteen-year sentence for count one and a thirty-year sentence for count two, to run consecutively.

Contrary to the trial court’s reasoning, burglary of a conveyance with battery does not constitute a forcible felony for the purpose of PRR sentencing. See Tumblin v. State, 965 So.2d 354, 355 (Fla. 4th DCA 2007). In Tumblin, the Fourth District held that for an offense to constitute a forcible felony under the PRR statute, “the statutory elements of the offense must include the threat or use of physical force or violence” and that the circumstances of the underlying crime are irrelevant. Id. (citing State v. Hearns, 961 So.2d 211, 213-17 (Fla.2007)). The Tum-blin court explained that burglary with an assault or battery “could be committed by an unlawful touching during a burglary and does not necessarily include the threat or use of physical force or violence,” so the defendant “could not be sentenced as a PRR under section 775.082(9)(a)l.o, Florida Statutes (2000) ." Id. at 356.

We agree with the reasoning in Tumblin and, therefore, find that the trial court erred in sentencing Appellant as a PRR for count two. Accordingly, we REVERSE Appellant’s sentence for count two and REMAND for resentencing on count two. Otherwise, we AFFIRM.

WEBSTER, BROWNING, and LEWIS, JJ., concur.

      . The language of this subsection is identical in the 2005 version of the statute that governs Appellant’s sentence.


author: DAMOORGIAN, J.

text:
    John SITARIK, M.D., Appellant, v. JFK MEDICAL CENTER LIMITED PARTNERSHIPS (“JFK”), Hospital Corporation of America, Inc. (“HCA, Inc.”), Sheridan Healthcorp, Inc. (“Sheridan”), Gilbert Drozdow, M.D., individually and as employee/agent of Sheridan, Malcolm Dorman, M.D., individually and as employee/agent of JFK/HCA, Gina Melby, individually and as employee/agent of JFK/HCA, Appellees.
    No. 4D08-152.
    District Court of Appeal of Florida, Fourth District.
    March 4, 2009.
    Rehearing Denied April 27, 2009.

      Bard D. Rockenbach of Burlington & Rockenbach, P.A., West Palm Beach, and Deratany, Skorupa & O’Hara, North Palm Beach, for appellant.
    Matthew J. Conigliaro of Carlton Fields, P.A., St. Petersburg, and Walter J. Tache of Carlton Fields, P.A., Miami, for appel-lees JFK, HCA, and Melby.
   DAMOORGIAN, J.

John Sitarik timely appeals the trial court’s order compelling arbitration in his lawsuit against JFK Medical Center Limited Partnerships (JFK), Hospital Corporation of America, Inc. (HCA), Sheridan Healthcorp, Inc., Gilbert Drozdow, M.D., individually and as employee/agent of Sheridan, Malcolm Dorman, M.D., individually and as employee/agent of JFK/HCA, and Gina Melby, individually and as employee/agent of JFK/HCA (collectively, “the Defendants”). We reverse, holding that the trial court erred in compelling arbitration because Sitarik was not a party to the arbitration clause.

In his complaint, Sitarik alleges that he was the anesthesiologist for a surgical procedure performed at JFK. During the procedure, a piece of sponge was left inside the patient. Sitarik reported the incident and was subsequently terminated. Following his termination, Sitarik brought a suit against the Defendants setting forth the following claims: (1) intentional interference with a business relationship, (2) breach of contract against Sheridan and JFK, (3) conspiracy to interfere with an advantageous business relationship against Dr. Dorman, JFK, and HCA, (4) conspiracy to violate the whistleblower’s statute (§ 448.102) against JFK, HCA, and Sheridan, and (5) violation of the whistleblower’s statute against Sheridan and JFK. JFK, HCA, and Melby moved, among other things, to compel arbitration based on an arbitration clause contained in the Professional Services Agreement (the PSA). In support of their motion, they argued that Sitarik bound himself to the PSA by signing an addendum to the contract (Addendum Five), which provided that the PSA was binding on him “to the extent applicable.” The trial court granted the motion and compelled arbitration.

Sitarik appealed, arguing that he could not be compelled to arbitration because he was not bound by the arbitration clause. Specifically, Sitarik contended, the arbitration clause provided that it bound only “the parties” and Sitarik was not a party to the PSA.

A trial court’s order compelling arbitration based on its construction of an arbitration provision is reviewed de novo. Fonte v. AT & T Wireless Servs., Inc., 903 So.2d 1019, 1023 (Fla. 4th DCA 2005).

When ruling on a motion to compel arbitration, a tidal court is required to consider three factors: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived. Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999).

The only factor at issue in this case was whether there was a valid agreement to arbitrate. While the trial court determined that a valid agreement to arbitrate existed, it did not decide whether the anesthesiologist was a party to the arbitration clause. The trial court’s failure to consider whether the clause bound Sitarik was an error, as “[o]ne who has not agreed, expressly or implicitly, to be bound by an arbitration agreement cannot be compelled to arbitrate.” Regency Island Dunes, Inc. v. Foley & Assoc. Constr. Co., 697 So.2d 217 (Fla. 4th DCA 1997). We must therefore determine whether the arbitration provision applied to Sitarik before we can resolve that a valid agreement to arbitrate existed. See Infinity Design Builders, Inc. v. Hutchinson, 964 So.2d 752, 755 (Fla. 5th DCA 2007) (holding that a court must first decide whether the parties agreed to arbitrate before determining arbitration is required).

When deciding whether someone agreed to arbitrate a matter, courts generally apply ordinary state law principles that govern the formation of contracts. See Ikalina v. City of Pembroke Pines, 972 So.2d 962, 964 (Fla. 4th DCA 2007) (citing Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999)) (finding that arbitration provisions are contractual in nature and thus, a matter of contract interpretation). Accordingly, a court must look to the intent of the parties as manifested in the contract to determine whether an arbitration clause compels arbitration. O’Keefe Architects, Inc. v. CED Constr. Partners, Ltd., 944 So.2d 181, 185 (2006).

In this case, the arbitration clause provided, in pertinent part:

[t]he parties firmly desire to resolve all disputes without resort to litigation.... Accordingly, any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by the American Arbitration Association and judgment on the award shall be binding on the parties.

(emphasis added). Although the arbitration clause explicitly states that it only binds the “parties,” the term “parties” is not defined anywhere in the PSA. Accordingly, we must look to the other parts of the PSA to ascertain the meaning of the term.

The third-party beneficiary clause is instructive on the issue. It provides that “[njothing contained herein or in the parties [sic] course of dealings shall be construed as conferring any third-party beneficiary status on any person not a party to this Agreement including without limitation any Contractor’s Representative.” This language shows that the Contractor’s Representatives do not fall within the meaning of the term “parties.” Pursuant to Schedule One to Addendum Two of the PSA, Sitarik is a Contractor’s Representative. Accordingly, the arbitration clause does not apply to Sitarik because he is not a “party” to the PSA.

Moreover, the PSA provides that it was entered into by and between JFK (Facility) and Sheridan (Contractor). After identifying the Facility and the Contractor, the PSA provides, “This agreement is entered into for the purpose of defining the parties [sic] respective rights and responsibilities.” In addition, the contract repeatedly refers to “either,” “neither,” or “each” party, confirming that there are two parties to the PSA — the Facility and the Contractor. While Addendum Five provides that it is by and between Sitarik and JFK and Sheridan, it expressly limits the PSA’s applicability by providing that the Contractor’s Representatives agree to be bound to the PSA “to the extent applicable.” Thus, by its express language, the addendum binds the Contractor’s Representatives only to certain aspects of the agreement, not to the entire agreement as the Defendants contend. Thus, it is clear from the other provisions of the PSA that the term “parties” unambiguously refers to the Facility and the Contractor.

Addendum five also contemplated that the suit may be subject to resolution by court litigation rather than arbitration. Paragraph six provides,

In the event any party brings an action against another party challenging the validity, or seeking to enforce or enjoin the enforcement of this Agreement, the prevailing party shall be entitled to recover against the other party its legal fees and costs incurred in connection with such action at the trial and appellate levels.

This interpretation is in accordance with the rule of contract interpretation, which requires that a contract be construed against the drafter. See City of Homestead v. Johnson, 760 So.2d 80, 84 (Fla.2000). In construing this ambiguous provision against the Defendants, we find that Sitarik was not bound by the arbitration clause.

Because the arbitration clause does not apply to Sitarik, the trial court erred when it determined that there was a valid agreement to arbitrate and compelled arbitration. Accordingly, we reverse and remand for further proceedings consistent with this opinion.

Reversed and Remanded.

GROSS, C.J., and FARMER, J., concur.


author: CORTINAS, J.

text:
    BOATARAMA, INC., a Florida corporation and Wilfred A. Bost, II, a/k/a Wilfred A. Bost, Appellants, v. Roberto A. GOMES, Appellee.
    No. 3D07-3005.
    District Court of Appeal of Florida, Third District.
    March 4, 2009.

      Robert C. Maland, Miami, for appellants.
    Adorno & Yoss and Jack R. Reiter and Jordan S. Kosches, Miami, for appellee.
    Before RAMIREZ, CORTINAS, and ROTHENBERG, JJ.
   CORTINAS, J.

Appellants, Boatarama, Inc. and Wilfred A. Bost, II, a/k/a Wilfred A. Bost, seek review of the order entered by the trial court following our mandate in Gomes v. Boatarama, Inc., 963 So.2d 869 (Fla. 3d DCA 2007) (“Gomes I”).

Boatarama and Gomes entered into a settlement agreement wherein Boatarama agreed to sell Gomes a boat with a “Blue Book” value between $400,000 and $800,000. Pursuant to the agreement, Boatarama would discount the Blue Book’s listed price by $250,000. After finding a boat that met the criteria of the settlement agreement, Boatarama contacted Gomes. While the boat was satisfactory to Gomes, the parties were unable to agree on the boat’s value. Given the date of execution of the settlement agreement, the appropriate value of the boat would have been found in the 2006 ABOS Blue Book. The 2006 Blue Book, however, did not contain a listing for the specific boat at issue.

In an effort to resolve the dispute over the boat’s value and pursuant to the terms of the settlement agreement, the parties each contacted an appraiser to determine the condition of the boat and decide whether the boat should be valued in accordance with the Blue Book’s “low,” “medium,” or “high” categories. In contrast to the settlement agreement, however, the actual categories contained in the Blue Book were “low,” “high,” and “code.” The appraisers agreed that the boat was in excellent condition but disagreed as to the value of the boat.

The trial court initially conducted a hearing to ascertain the value of the boat and each party presented their appraiser. There were three documents presented to the court that were of particular significance to the trial court’s determination of the boat’s value. These documents included the 2005 Blue Book listing for the boat (“2005 Listing”), a print-out from the ABOS Electronic Marine Blue Book 2005 Model Year (the “Printout”) and an excerpt obtained by Gomes from an editor at Blue Book demonstrating what the 2006 Blue Book valuation for the boat would have been (the “Excerpt”). The Excerpt provided a “code” value of $574,750 and a “high” value of $475,000 for the subject boat. After hearing from the appraisers and reviewing the documents before it, the court determined that the boat’s value was $641,720, a price reflected in the Printout. The court further substantiated its decision to use the amount of $641,720 by stating that it began with the “code” value of $574,750 set forth in the Excerpt, added ten percent for the condition of the boat as allowed by the Blue Book, and arrived at the amount of $632,225. The trial court then noted that the amount was “pretty close to the $641,720,” explaining that it also took into consideration transportation and storage costs and therefore “allowed the ... Blue Book value of $641,720.” On appeal, this Court held:

[T]he trial court determined the boat’s value was $641,720. Then, the trial court used the 2006 Bluebook’s “code” value, added a 10% condition adjustment and added transportation and storage costs. We conclude the trial court deviated from the terms of the settlement agreement.
Because the settlement agreement did not include the term “code” but does include a “high” category, and because the settlement agreement did not include an option to add any adjustments or additional costs, we reverse. We therefore reverse and remand with instructions that the trial court enter a final judgment that reflects the 2006 Bluebook’s “high” value of a 2002 Searay, with no adjustments.

Gomes I, 963 So.2d at 870. (emphasis added).

The dispute now before us arises out of the references in Gomes I to the “2006 Bluebook’s ‘code’ value” and the “2006 Bluebook’s ‘high’ value.” While there was no 2006 Blue Book value for the subject boat, it is obvious that the “2006 Blue-book’s ‘code’ ” and “high” values in Gomes I referred to the “code” and “high” values set forth in the Excerpt. The trial court made clear that the “code” value in the Excerpt was the $574,750 number to which it added ten percent and additional costs. In fact, in Gomes I, Boatarama asserted in its answer brief that “[t]he trial court properly utilized the base published Blue Book value figure of $574,750 submitted by ... [Gomes] and then appropriately added a ‘Gomes-friendly’ upward condition adjustment of approximately 10%, in conformity with the formula allowed in the Blue Book, in arriving at a Blue Book total value of $641,720.” Moreover, the Excerpt was the only document before this Court in Gomes I which contained a $574,750 value.

Appellants never contested the validity of the court’s use of the $574,750 “code” value taken from the Excerpt. The same Excerpt was ultimately used again by the trial court when it followed our mandate and entered a final judgment reflecting the “high” value of the boat. Because the appellants never challenged the trial court’s use of the Excerpt in determining the value of the boat in Gomes I, they are now bound by the law of the case doctrine.

[T]he law of the case doctrine stands for the proposition that “questions of law that have actually been decided on appeal must govern the case in the same court and in the trial court through all subsequent stages of the proceedings.” This doctrine includes “issues explicitly ruled [upon] by the court” and issues “which were implicitly addressed or necessarily considered by the appellate court’s decision.”

Borack v. Orovitz, 963 So.2d 802, 804 (Fla. 3d DCA 2007) (quoting Specialty Rest. Corp. v. Elliott, 924 So.2d 834, 837 (Fla. 2d DCA 2005)).

Based upon the foregoing, the court properly utilized the “high” value of $475,000 set forth in the Excerpt and we affirm the order on appeal.

Affirmed.

      . This amount was $80 less than the amount set forth in the 2005 Listing.


author: CASANUEVA, Judge.

text:
    STOCK DEVELOPMENT, LLC; Brian Stock; Robert Imig; Lely Resort Realty, LLC; Stock Construction, LLC; STK Mortgage, LLC; and Stock Financial, LLC, Petitioners, v. Joseph ULRICH, Respondent.
    No. 2D08-4650.
    District Court of Appeal of Florida, Second District.
    March 4, 2009.
    Matthew M. Jackson, Todd M. Rich, and Edmond E. Koester of Goodlette, Coleman, Johnson, Yovanovich & Koester, P.A., Naples, for Petitioners.
    Richard M. Treiser and Bradley S. Don-nelly of Treiser Collins, Naples, for Respondent.
   CASANUEVA, Judge.

In seeking a writ of certiorari, the Petitioners, Defendants in the circuit court, ask us to reverse the circuit court’s interlocutory order permitting the Plaintiff/Respondent, Joseph Ulrich, to amend his complaint to add a claim for punitive damages against them. Under our limited scope of review, we deny the petition.

Mr. Ulrich initiated this suit for damages claiming that he had been made the scapegoat for the intentional destruction of an active bald eagle’s nest in a residential development his employer was building. The circuit court had before it numerous affidavits, depositions, a federal trial transcript, and other evidence when it allowed Mr. Ulrich to amend his complaint to add a claim for punitive damages. Before the court granted the motion to amend, the Petitioners were allowed ample opportunity to respond and present evidence in opposition, including a hearing on the motion. The applicable legal standard for our review by certiorari is “to determine whether a court has conducted the evidentiary inquiry required by section 768.72, Florida Statutes, but not so broad as to encompass review of the sufficiency of the evidence considered in that inquiry.” Globe Newspaper Co. v. King, 658 So.2d 518, 520 (Fla.1995). The record before us demonstrates that the circuit court comported with the procedural requirements section 768.72 demands. Accordingly, we must deny relief. See Beverly Health & Rehab. Servs., Inc. v. Meeks, 778 So.2d 322, 323 (Fla. 2d DCA 2000) (holding that the scope of review on a petition for writ of certiorari to review the granting of a motion to amend a complaint to add a claim for punitive damages is limited to determining whether the circuit court adhered to the procedural requirements of section 768.72). We are thus unable to address the Petitioners’ contentions relative to the substantive merits of Mr. Ulrich’s evidence, including that one corporate defendant was not in existence at the time the alleged tort took place.

Petition denied.

WHATLEY and LaROSE, JJ., Concur.


author: SHEPHERD, J.

text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. Ramiro LOPEZ, Respondent.
    No. 3D08-1998.
    District Court of Appeal of Florida, Third District.
    March 11, 2009.

      Lara J. Edelstein, Office of General Counsel/Trial Division, for petitioner.
    Mark J. Feldman, Miami, for respondent.
    Before SHEPHERD, CORTINAS, and SALTER, JJ.
   SHEPHERD, J.

This is a second-tier certiorari case in which United Automobile Insurance Company (United) seeks certiorari review of a circuit court appellate division order granting Appellee below, Ramiro Lopez, statutory appellate attorney fees in that court on the authority of section 627.428 of the Florida Statutes (2008), despite the fact he did not prevail. The order represents a departure from clearly established law. For this reason, we grant the petition.

The case arises out of a June 2004 automobile accident in which Lopez, United’s insured, was injured. Later that year, Lopez sued United in Miami-Dade County Court for more than $6000 under the personal injury protection benefits provision of the insurance policy. United answered, denying liability and alleging as affirmative defenses that Lopez made material misrepresentations on his insurance application, and that some of the bills submitted were bogus. In July 2006, Lopez moved for summary judgment. After two hearings, the trial court granted final summary judgment to Lopez as to the entirety of his claim, over express protestations by United that neither Lopez’s motion nor the record refuted United’s affirmative defenses. United appealed.

In its Initial Brief, United advanced just one argument for reversal:

IT IS REVERSIBLE ERROR FOR THE TRIAL COURT TO GRANT THE INSURED’S MOTION FOR SUMMARY JUDGMENT WHERE THE INSURED FAILED TO DISPROVE THE AFFIRMATIVE DEFENSES OR ESTABLISH THEIR LEGAL INSUFFICIENCY.

The appellate panel agreed with United and reversed the final judgment on this basis. Although recognizing this was “United’s sole argument on appeal,” the appellate panel nevertheless awarded Lopez attorney fees. In so doing, the circuit court appellate division departed from the essential requirements of law.

The circuit court appellate division’s fee award to Lopez in this case was based upon section 627.428(1) of the Florida Statutes. The statute reads, in relevant part:

(1) Upon the rendition of a judgment or decree by any of the courts of this state against an insurer ... the trial court or, in the event of an appeal in which the insured or beneficiary prevails, the appellate court shall adjudge or decree against the insurer and in favor of the insured ... a reasonable sum as fees or compensation for the insured’s ... attorney prosecuting the suit in which the recovery is had.

§ 627.428(1) (emphasis added). Here, Lopez was not the prevailing party as to what the circuit court appellate division itself recognizes, as well as the law, was “the sole” issue on appeal.

Recently, the Florida Supreme Court removed all doubt concerning whether there is any elasticity in the plain language of the statute. See Brass & Singer, P.A. v. United Auto. Ins. Co., 944 So.2d 252 (Fla.2006). In Brass & Singer, the insured’s assignee sued United for insurance benefits. The issue presented was “whether the language of section 627.428, Florida Statutes (2004), authorizes an appellate court to conditionally award appellate attorney’s fees to an insured that loses on appeal on the basis that the insured may be the prevailing party at the close of litigation.” Id. at 253. Resolving a conflict among the district courts of appeal on the issue, the Florida Supreme Court disapproved the proposed conditional award, stating:

The conflict issue here involves the proper interpretation of this statutory language. “Although legislative intent guides our analysis, to determine that intent we look first to the statute’s plain meaning.” “[T]he statute’s text is the most reliable and authoritative expression of the Legislature’s intent.” “[I]t is also a well-established rule in Florida that ‘statutes awarding attorney’s fees must be strictly construed.’ ”
Because the text of section 627.428(1) must be strictly construed to give effect to its plain meaning, we ... construe! ] the plain meaning of the underlined language in section 627.428(1) above to mean that an insured that loses an appeal “is not entitled to a conditional award of fees because this is not an appeal ‘in which the insured or beneficiary prevails.’ ”

Id. at 254 (citations omitted). Accordingly, the court concluded, “[U]nder the plain language of section 627.428(1), an appellate court may not award attorney’s fees to an insured unless the insured prevails on appeal.” Id. (emphasis added).

Our own case law, post -Brass & Singer, has reiterated the command of our high court that the word “prevails” means “prevails.” See United Auto. Ins. Co. v. Perez, 990 So.2d 607 (Fla. 3d DCA 2008); United Auto. Ins. Co. v. Prof'l Med. Group, Inc., 1 So.3d 365, 366 (Fla. 3d DCA 2009) (“[A]n appellate court cannot award appellate attorney’s fees to an insured unless the insured prevails on appeal.”). It is also apodictic that the failure to follow “clearly established law,” including “recent controlling case law” constitutes grounds for issuance of the writ. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003). Such is the case here.

Petition granted; order quashed.

      . The circuit court appellate division did not have the benefit of this additional authority at the time it granted appellate fees to the insured in this case.


text:
    Nelson VIERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-1617.
    District Court of Appeal of Florida, Third District.
    March 11, 2009.
    Rehearing and Rehearing En Banc Denied May 19, 2009.

      Carlos J. Martinez, Public Defender, and Colleen Brady Ward and Andrew Stanton, Assistant Public Defenders, for appellant.
    Bill McCollum, Attorney General, and Nicholas Merlin, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and COPE and SALTER, JJ.
   PER CURIAM.

We affirm the order revoking Viera’s probation for new law violations, a violation of condition K-4 of his order of probation. On the State’s concession of error, however, we remand so that unproven technical probation violations can be deleted from the written sentence. The oral pronouncement correctly states the trial court’s ruling. The defendant’s presence is not required for this ministerial correction.

Affirmed, but remanded for entry of a corrected revocation order.


text:
    Paul BETTY, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3528.
    District Court of Appeal of Florida, Fourth District.
    March 11, 2009.
    Paul Betty, Okeechobee, pro se.
    No appearance required for appellee.
   PER CURIAM.

Paul Betty appeals the denial of a rule 3.800(a) motion to correct an illegal sentence. We affirm the denial but for reasons different from those argued by the State and adopted by the trial court. We also write to correct a misstatement of law in Major v. State, 900 So.2d 759 (Fla. 4th DCA 2005), that has led to some confusion in this case.

Betty was convicted of attempted robbery with a deadly weapon and sentenced as a habitual felony offender to thirty years in prison. Citing Major, the State has argued that this offense is a first degree felony, and as a habitual offender, Betty could be sentenced up to life in prison.

Contrary to what we said in Major, which was dicta and did not directly control the outcome of the case, this court, and other districts, have consistently ruled that attempted robbery with a deadly weapon is a second degree felony. See Whidden v. State, 374 So.2d 543, 545 (Fla. 2d DCA 1979) (discussing the robbery statute and concluding that attempted robbery with a deadly weapon is a second degree felony as provided in the attempt statute, section 777.04); see also Williams v. State, 850 So.2d 656 (Fla. 1st DCA 2003) (citing Whidden and recognizing that attempted armed robbery is a second degree felony); Lopez v. State, 781 So.2d 473 (Fla. 3d DCA 2001) (recognizing that attempted robbery with a deadly weapon is a second degree felony); Westbrook v. State, 617 So.2d 782 (Fla. 4th DCA 1993) (directing the trial court to correct the judgment, which erroneously stated that attempted robbery with a deadly weapon was a first degree felony, when it is a second degree felony); Arthur v. State, 391 So.2d 338 (Fla. 4th DCA 1980) (citing Whidden and agreeing that attempted robbery with a firearm is a second degree felony). Robbery with a deadly weapon is a first degree felony punishable up to life in prison. § 812.13(2)(a), Fla. Stat. (1989). The attempt to commit a life felony or first degree felony is a felony of the second degree. § 777.04(4)(b), Fla. Stat. (1989).

Betty was convicted of a second degree felony, and as a habitual offender, he could be sentenced up to thirty years in prison. § 775.084(4)(a)2., Fla. Stat. (1989). Because his sentence is legal, we affirm the denial of his motion.

Ajfmned.

GROSS, C.J., STEVENSON and TAYLOR, JJ., concur.

      . Betty's motion was denied in part because the trial court agreed with tire State that the law of the case doctrine barred this motion. The State argued that "the law of the case is that the sentence in this matter is legal.” As Betty argued in his reply, this is not an accurate statement of law. The law of the case doctrine applies only if the defendant is raising the same legal issue and the issue was actually decided on appeal. State v. McBride, 848 So.2d 287, 289-90 (Fla.2003). The fact that a previous challenge to a sentence was denied and affirmed does not necessarily mean that the sentence is legal and does not prevent the defendant from raising a different legal error.

      . This subsection has been renumbered. § 777.04(4)(c), Fla. Stat. (2008).


author: KAHN, J.

text:
    Jalmel Lafarn MERRIEL, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-4451.
    District Court of Appeal of Florida, First District.
    March 13, 2009.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

Appellant Jalmel Merriel pled no contest to trafficking in cocaine, reserving the right to appeal the dispositive denial of a motion to suppress incriminating evidence. For the reasons that follow, we affirm.

BACKGROUND

On February 20, 2007, with his wife behind the wheel, Merriel left his home in the family car while law enforcement officers surveilled the property, suspicious that appellant was involved in the illegal drug trade. Previously, the officers had obtained a warrant commanding them to search appellant’s home as well as “all persons, vehicles, and outbuildings, located on the curtilage thereof,” for “evidence of possession and/or distribution of controlled substances.”

Earlier in the morning, investigators watched the home for four and one-half to five hours. A deputy sheriff in a marked patrol car waited nearby with instructions to stop appellant when he left. Investigator Jeremy Gilbert, with the Okaloosa County Sheriffs Office, testified below that officers could have executed the search warrant at any point during their surveillance, but they made a “deliberate decision” to wait until appellant left the premises. Gilbert testified officers believed that a small child and dangerous dogs were inside the Merriel home, and that detaining appellant off-site would eliminate the dangers associated with executing the warrant with him inside the home. Moreover, Gilbert testified, investigators hoped appellant would cooperate with them in other investigations; detaining him off the property would reduce “the amount of people that are there seeing [the search and arrest,] which [would] decrease the chances of him being burned, as we say, by any other of his suppliers or any other suspects,” Gilbert said.

Undisputed testimony below established appellant and his wife got into the car and drove away from the house. They traveled a block in approximately thirty seconds before the deputy in a marked patrol car stopped their vehicle. The deputy, Tim Patterson, conducted the traffic stop at the instruction of the surveillance investigators and did not believe appellant’s wife committed any traffic infractions before the stop. Officers detained appellant in a police van, while an investigator drove appellant’s car back to the residence, there conducting a search revealing a quantity of cocaine.

Appellant, charged with trafficking in cocaine, moved to suppress the incriminating evidence. The trial court denied the suppression motion following a hearing during which Gilbert, Patterson, and another investigator gave testimony as outlined above. Appellant then pled no contest to the trafficking charge, reserving his right to appeal the dispositive denial of the suppression motion. Upon consideration of appellant’s argument, we find no error in the denial of the motion to suppress, and we affirm Merriel’s conviction and sentence.

ANALYSIS

As a principle of clearly established constitutional law, a search warrant must particularly describe the items law enforcement officers are authorized to seize as well as the geographical location they are authorized to search. See State v. Eldridge, 814 So.2d 1138, 1140-41 (Fla. 1st DCA 2002); State v. Nelson, 542 So.2d 1043, 1045 (Fla. 5th DCA 1989) (explaining that “the particularity requirement prevents searches and seizures at a location not intended by the search warrant, thus safeguarding the privacy and security of individuals against arbitrary invasions by governmental officials”). Neither the letter nor the beneficial purposes of the particularity requirement have suffered insult in this case.

Appellant submits this case is controlled by Henderson v. State, in which police officers obtained a warrant to search the suspect’s “residence and the curtilage thereof’ but instead searched two vehicles parked on the street after observing the defendant drive up in one vehicle and place something inside the other. 685 So.2d 970, 971 (Fla. 2d DCA 1996). Nothing in the case suggests either of these vehicles had been recently moved from the “curtilage.” Noting the search warrant “authorized the search of the curtilage of the residence,” the Second District summarily concluded that “the vehicles were not within the cur-tilage as they were parked along the curb of the street in front of the residence.” Id. The court held the trial judge should have suppressed incriminating evidence found in one car, concluding the officers exceeded the scope of the warrant and lacked independent probable cause to search the vehicles. Id.

The present case involves important factors sufficiently distinguishable that Henderson does not control here. As the State notes, important exceptions apply to the rule discussed in Henderson, particularly where (1) officers reasonably fear for their safety in executing a search warrant with the suspect inside a home; and (2) incriminating evidence is found in a vehicle that just left that home and that would have been searched but for officers’ safety concerns.

In Lassiter v. State, for example, officers with a warrant to search the suspect’s home and vehicles on its curtilage feared a volatile mix of chemicals inside the home would endanger officers if they attempted to execute the search warrant with the suspect inside, so they “chose to wait for persons already in the house to exit because they wanted the house to be empty before trying to enter.” 959 So.2d 360, 362 (Fla. 5th DCA 2007). Evidence also established that officers wanted to detain the suspect away from the home, so as not to tip off others associated with the narcotics lab they believed was operating there. Id. at 363. During extended surveillance, investigators staking out the residence saw the suspect open and close the hood of his car before driving away; five miles down the road, the officers stopped the car and found drugs under the hood. Id. at 362.

On appeal, the Fifth District affirmed the denial of the defendant’s motion to suppress evidence of the cocaine, holding that the officers were “prudent and reasonable ... to have waited for [the suspect] to leave” before executing the search warrant. Id. at 364. The court cautioned, however, “that this off premises search is permissible because of the peculiar and dangerous nature of the product involved, as well as the reasonable time and distance that elapsed before the search occurred.” Id.; accord Terhune v. State, 470 So.2d 840, 842 (Fla. 2d DCA 1985) (upholding execution of search warrant upon individual whom undercover officer drove two blocks from residence for which warrant authorized search; concluding officers’ belief that weapons were inside house justified executing warrant upon individual away from premises).

Here, undisputed record evidence established that officers believed dangerous animals and, potentially, a small child were inside appellant’s home. On the basis of that belief, officers chose to wait for appellant to leave the home and to execute the search warrant after detaining him a safe distance away from the premises. Testimony established Patterson, the deputy sheriff, stopped appellant’s vehicle after it traveled a block in approximately thirty seconds. In Lassiter, five miles was a “reasonable ... distance” from the residence to neutralize officers’ safety concerns; the block between the vehicle and its origin in this case was equally reasonable under these circumstances. We find no suggestion in the record, nor does appellant argue, that the vehicle took on its incriminating payload at some point between its departure from the home and the traffic stop. Officers could and would have searched the car while it was on the premises, but for them reasonable concern about the prudence of doing so. On these particular facts, we disagree with appellant that stopping the vehicle immediately after it left the home, where it undisputedly fell under the ambit of the search warrant for many hours, exceeded the scope of the warrant.

CONCLUSION

Cases such as this require us to take note of the realities of law enforcement and police officers’ duty to conduct operations safely while assiduously honoring suspects’ constitutional rights. We find no infringement of appellant’s rights in this case under the particular circumstances presented here.

Appellant’s conviction and sentence are AFFIRMED.

HAWKES, C.J., and WOLF, J., concur.


author: RAMIREZ, J.

text:
    Luis O. DIAZ, Appellant, v. IMPEX OF DORAL, INC., and Impex of Doral Logistics, Inc., Appellees.
    No. 3D07-1861.
    District Court of Appeal of Florida, Third District.
    March 18, 2009.
    Rehearing and Rehearing En Banc Denied May 19, 2009.

      Davis, Schnitker, Reeves & Browning, George T. Reeves, Madison and Eddy 0. Marban, for appellant.
    Andres A. Quintero, for appellees.
    Before COPE and RAMIREZ, JJ., and SCHWARTZ, Senior Judge.
   RAMIREZ, J.

Luis 0. Diaz appeals the trial court’s final judgment and “Order Denying Motion for Rehearing on Dismissal of Joint Employment Claim Against Impex of Doral Logistics, Inc.” Impex of Doral, Inc. cross-appeals the same final judgment. We reverse the final judgment, finding that the trial court erred in not allowing the “single employer” and “joint employer” issue to go to the jury, and affirm on all issues raised in the cross-appeal, finding them to be meritless.

The leased employee, Luis 0. Diaz, filed a complaint for damages against both Im-pex of Doral, Inc. (Impex) and Impex of Doral Logistics, Inc. (Impex Logistics) for the violation of Florida’s Whistle Blower Act, section 448.102, Florida Statutes, et seq. (2002). Impex and Impex Logistics were corporate clients of the employee leasing company, ADP Total Source, pursuant to a formal employee leasing agreement. Diaz did not sue ADP.

In the complaint, Diaz claimed that the forklift he was operating, which was owned by Impex Logistics, was unsafe and improperly maintained, in violation of the Occupational Safety and Health Administration’s (“OSHA”) regulations. He alleges that when he complained about the safety of the forklift, Impex unlawfully retaliated by terminating his employment. Oscar Perez, the manager of both Impex and Impex Logistics, fired Diaz. The action proceeded to a jury trial.

At trial, the record indicates that the parties presented the following evidence: 1) Diaz testified that he worked for Impex Logistics but received a paycheck from Impex and was fired for failing to do work for Impex; 2) Enrique Larach testified that he was president for both Impex and Impex Logistics when Diaz was fired in March 2002; 3) according to Larach, Carmen Kattan (Laraeh’s first cousin) was Impex Logistics’ corporate secretary, and Oscar Perez was the manager for both companies; Diaz testified that his supeiwi-sors at his job site were Carmen Kattan and Oscar Perez; 4) Oscar Perez testified that he was the manager for Impex and Impex Logistics, and that he believed they were one company; 5) Larach testified that human resources and accounts payable for both Impex and Impex Logistics were handled by the same person; and 6) Larach testified that the employees for both Impex and Impex Logistics were really the employees of a third company, ADP, and that ADP handled payroll for both companies. At the conclusion of the presentation of the evidence, Impex Logistics made an ore tenus motion for directed verdict against Diaz and asserted that Im-pex Logistics did not have the required number of employees to make it liable as an “employer” under the Whistle Blower Act.

Diaz’s attorney did not dispute that Im-pex Logistics, by itself, did not have the requisite number of employees to make it a covered employer under the Whistle Blower Act, which requires that an employer employ ten or more persons. See § 448.101(3), Fla. Stat. (2002). However, he argued that the jury could find that Impex and Impex Logistics were either a “single employer” or a “joint employer” of Diaz, and thus the motion for directed verdict should be denied.

The trial court granted the motion for directed verdict and dismissed Impex Logistics from the case. The case was submitted to the jury, and the jury returned a verdict in Diaz’s favor, awarding him $24,808 against Impex only.

Diaz then filed a motion for rehearing and again argued to the trial court that the jury could find that Impex and Impex Logistics were either a “single employer” or a “joint employer” of Diaz and that the motion for directed verdict should have been denied. The court rendered its final judgment and denied Diaz’s motion for rehearing. Diaz then filed this appeal, and Impex filed a cross-appeal.

Diaz now contends that the trial court erred in granting Impex Logistics’ motion for directed verdict and dismissing it from this action, rather than allowing the jury to determine whether this party was liable under the “joint employer” or “single employer” doctrine. We agree.

Diaz asserts that the trial court erred in granting a directed verdict to Impex Logistics because it failed to follow this Court’s decision in Martinolich v. Golden Leaf Management, Inc., 786 So.2d 613 (Fla. 3d DCA 2001), which found that the federal “single employer” and “joint employer” doctrines are applicable to Whistle Blower actions brought under Florida state law. Thus, Diaz argues, the trial court erred in not allowing the jury to make this determination.

The standard of review of a trial court’s ruling on a motion for directed verdict is de novo. Borda v. E. Coast Entm’t, Inc., 950 So.2d 488, 490 (Fla. 4th DCA 2007). In considering a motion for directed verdict, the trial court is required to give the benefit of all reasonable inferences to the nonmoving party and in favor of submitting the question to the jury. Martinolich, 786 So.2d at 614-15.

Here, the trial court erred in granting Impex Logistics’ motion for directed verdict and in not allowing the jury to decide whether Impex and Impex Logistics were both liable under the “joint employer” or “single employer” theories. In Martinolich, this Court considered the same issue as in this case, whether a trial court erred in granting a directed verdict in a Florida law Whistle Blower Act case. Martinolich, the employee, sued for wrongful discharge against a nursing home and its management company as joint employers. Id. at 614. At the close of the employee’s case, the management company moved for a directed verdict on the issue of whether it was the employee’s joint employer. Id. The trial court granted the motion, and the management company was dismissed from the case. Id. The jury later found that the nursing home had wrongfully discharged the employee in retaliation for exercising his rights under Florida’s Workers’ Compensation Law and in violation of the Whistle Blower Act. Id.

Similar to the case before us, the trial court in Martinolich did not allow the “single employer” or “joint employer” issue to go to the jury. However, in Marti-nolich, we stated that it was proper to look to the decisions of Federal courts in deciding whether separate but related entities should be aggregated for purposes of employment and labor statutes. Id. at 615. We stated, “Federal courts have developed several tests for determining when separate, but related entities should be aggregated for purposes of employment and labor statutes.” Id. We further noted that these cases have given a liberal construction to the term “employer.” Id. We then explained that “[i]n keeping with this liberal construction, we sometimes look beyond the nominal independence of an entity and ask whether two or more ostensibly separate entities should be treated as a single, integrated enterprise.” Id.

In the case before us, the record reflects that Diaz presented sufficient evidence to submit to the jury the issue of whether Impex Logistics was Diaz’s “joint employer” or his “single employer.” Nevertheless, the trial court did not rule on the sufficiency of the evidence because it found that the “joint employer” and “single employer” tests were inapplicable. Instead, the trial court granted the motion for directed verdict because Impex Logistics had less than ten employees. However, there was sufficient evidence for the “single employer” and “joint employer” issue to be decided by the jury. Consequently, the trial court erred in granting Impex Logistics’ motion for directed verdict.

Diaz does not contend in his appeal that the amount awarded in the case was improper or that the evidence presented as to the amount of damages would have been different had the directed verdict against Impex Logistics not been entered. As such, we reverse and remand for a new trial solely on the issue of whether Impex Logistics was Diaz’s employer under either the “joint employer” or “single employer” doctrine. If the jury determines that Im-pex Logistics was Diaz’s employer, then the trial court is to enter an amended final judgment holding Impex and Impex Logistics jointly and severally liable for the amount of damages awarded.

Turning to Impex’s cross-appeal, it first argues that an employee leasing company is an indispensable party to an action under the Whistle Blower Act and that since ADP, the employee leasing company, was not joined here, the final judgment must be reversed. We find no merit to this argument. Impex has not cited to this Court, nor can this Court find, any case law supporting this position. Generally, an indispensable party is one whose interest in the controversy makes it impossible to completely adjudicate the matter without affecting either that party’s interests or the interests of another party in the action. Fla. Dep’t of Revenue v. Cummings, 930 So.2d 604, 607 (Fla.2006); Hertz Corp. v. Piccolo, 453 So.2d 12, 14 n. 3 (Fla.1984). Impex has cited no support to explain why ADP would be indispensable in this action, such that “no final decision can be rendered without their joinder.” Hertz, 453 So.2d at 14.

Here, the cause of action is for damages because the defendants took “retaliatory personnel action,” as defined in section 448.101(5), Florida Statutes (2002), against Diaz. Under Florida law, it is not necessary to join all persons potentially liable for damages for an action to proceed. See Gonzalez v. MI Temps of Fla. Corp., 664 So.2d 17, 18 (Fla. 4th DCA 1995); W.R. Cooper, Inc. v. City of Miami Beach, 512 So.2d 324, 326 (Fla. 3d DCA 1987).

Impex further claims on cross appeal that the Whistle Blower Act cannot be based on a violation of a regulation of the federal OSHA. We disagree. Under the Whistle Blower Act, the employer may not take retaliatory action against an employee because the employee, “[ojbjected to, or refused to participate in, any activity, policy, or practice of the employer which is in violation of a law, rule, or regulation.” § 448.102(3). Section 448.101(4) defines “law, rule or regulation” as, “including] any statute or ordinance or any rule or regulation adopted pursuant to any federal, state, or local statute or ordinance applicable to the employer and pertaining to the business.” Consequently, an OSHA rule is covered by this statutory definition. Moreover, the Florida Supreme Court ruled in Golf Channel v. Jenkins, 752 So.2d 561, 566 (Fla.2000), that the Whistle Blower Act is a remedial statute which should be liberally construed in favor of granting access to the remedy provided by the Legislature. See Bell v. Ga.-Pac. Corp., 390 F.Supp.2d 1182 (M.D.Fla.2005).

Impex next asserts on cross-appeal that the trial court erred in allowing Diaz to introduce depositions and answers to interrogatories as substantive evidence. This argument is misplaced. First, under Florida law, a party’s answers to interrogatories may be used as substantive evidence at trial. See Silvers v. Wal-Mart Stores, Inc., 826 So.2d 513 (Fla. 4th DCA 2002); Woodworth v. Woodworth, 385 So.2d 1024 (Fla. 4th DCA 1980). Florida law also provides for the use of the deposition of the opposing party as substantive evidence at trial. Canales v. Compania de Vapores Realma, S.A., 564 So.2d 1212, 1214 (Fla. 3d DCA 1990). The fact that the deponent was available is irrelevant regarding whether the deposition may be used at trial.

Finally, Impex asserts on cross-appeal that the verdict was not supported by the evidence indicating that the “employer” had notice of the conditions objected to by Diaz. The record does not support this position because the transcript reflects that Diaz himself testified that he gave such notice. Accordingly, with respect to all the issues on cross-appeal, we affirm in all respects.

In sum, we reverse the trial court’s final judgment and remand to the trial court for a new trial solely on the issue of whether Impex Logistics is liable to Diaz under the “single employer” or “joint employer” doctrines. With respect to the cross-appeal, we affirm in all respects.

Reversed in part, affirmed in part, and remanded with instructions.

      . Impex further claims that Diaz has not complied with the statutory notice requirements of the Whistle Blower Act. The written notice requirements of this statute only apply to subsection 1, and Diaz’s action was brought under subsection 3. Thus, the written notice requirements are inapplicable. See § 448.102; Golf Channel, 752 So.2d at 565.


author: GRIFFIN, J.

text:
    SMITH LAKE SHORES VILLAGE, LLC, Appellant, v. MARION COUNTY, et al., Appellee.
    No. 5D07-3980.
    District Court of Appeal of Florida, Fifth District.
    March 20, 2009.
    Rehearing Denied April 29, 2009.

      David D. Eastman and Carol S. Grond-zik, of Lutz, Bobo, Telfair, Eastman & Lee, Tallahassee, for Appellant.
    Gregory T. Stewart and Carly J. Schrader, of Nabors, Giblin & Nickerson, P.A, Tallahassee, and Thomas L. Wright, Ocala, for Appellee, Marion County.
    No Appearance for Appellees, Marion County Property Appraiser and Marion County Tax Collector.
   GRIFFIN, J.

Appellant, Smith Lake Shores Village, LLC [“Smith Lake”], appeals a non-final order that denied its motion for class certification. Smith Lake contends that the trial court erred by not certifying the proposed class or, in the alternative, by not limiting the class to be certified or creating subclasses.

Smith Lake is a Michigan Limited Liability Company registered to do business in the State of Florida. Smith Lake’s only asset in Florida is a manufactured home community known as Smith Lake Shores Village.

In 2003, the Marion County Board of County Commissioners [“the Board”] adopted its Fire Rescue Assessment Ordinance, ordinance number 03-13, which created the Marion County Municipal Service Benefit Unit for Fire Rescue Services [“MSBU”]. Ordinance 03-13 adopted a special assessment to support fire rescue services within the MSBU. As a result of the assessment, Smith Lake filed their amended class action complaint, seeking an order adjudging that the fire rescue assessment was invalid. The amended complaint also sought a refund of the special assessment for the class, injunctive relief and other equitable relief “as the Court may deem necessary and appropriate.”

The trial court concluded that, based on the allegations of the complaint, Smith Lake was in a position of conflict with other members of the class. Although Smith Lake seeks to invalidate the assessment and recover damages, which would benefit all members of the proposed class, they plainly have positions that are in conflict with other members of the proposed class. Indeed, Smith Lake’s principal theory for invalidation of the assessment is that the apportionment methodology is arbitrary in ways that are disadvantageous to it. Also, any judicial determination of flaws in the assessment could subsequently result in changes that would reduce its own individual assessment to the detriment of others. There is a single aggregate assessment that will have to be paid and diminution of the share of any particular category of owner will result in a greater share of assessment for the others in the pool. The lower court was within its discretion to conclude that Smith Lake is not a proper representative for the proposed class, and to reject the invitation to create limits on the class or subclasses.

AFFIRMED.

ORFINGER and MONACO, JJ., concur.

      . The community has 184 occupied mobile home lots, 90 vacant lots, a club house, and an RV parking storage area.


text:
    Howard J. JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 5D09-21.
    District Court of Appeal of Florida, Fifth District.
    March 20, 2009.
    Howard J. Jones, Vero Beach, Pro Se.
    Bill McCollum, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

We deny without prejudice, the petition seeking a belated appeal. The petition fails to allege that Petitioner made a timely request for defense counsel to file a notice of appeal. See Lincoln v. State, 948 So.2d 77 (Fla. 5th DCA 2007); Frazier v. State, 944 So.2d 1035 (Fla. 5th DCA 2006). The petition may be amended within thirty days following the date of this opinion.

PETITION DENIED.

PALMER, C.J., ORFINGER and EVANDER, JJ., concur.


author: PER CURIAM. VILLANTI, Judge.

text:
    Monier Mahmoud RAHALL, Appellant, v. Mohana Cheaib RAHALL, Appellee.
    No. 2D07-4806.
    District Court of Appeal of Florida, Second District.
    March 20, 2009.
    Rehearing Denied May 7, 2009.
    Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Affirmed.

WHATLEY, J., and CASE, JAMES R., Associate Senior Judge, Concur.

VILLANTI, J., Concurs with opinion.

VILLANTI, Judge.

I fully concur in the decision to affirm the final judgment entered in this case but write to commend the trial court, whose final judgment is an outstanding example of a meticulously-crafted analysis under section 61.075, Florida Statutes.

It is apparent from the record that the former husband engaged in a predissolution lifestyle strategy that was designed to thwart a court of equity from doing justice, if and when the time came, between the former husband and his wife. Oftentimes, such devious behavior goes undiscovered by the trial court, or the careful fagade created by one party is the only “reality” permitted in evidence. Here, the trial court went to great efforts to unravel “[t]he Respondent’s financial dealings, [a] proverbial ‘riddle, wrapped in a mystery, inside an enigma.’ ” This was no easy task. Thus, I commend the trial court for its insight, patience, and valiant ability to do justice despite the numerous obstacles placed in its path by the former husband.


text:
    Rogelio MALEK, et al., Appellants, v. George BRIGHT, et al., Appellees.
    No. 3D07-2009.
    District Court of Appeal of Florida, Third District.
    March 25, 2009.
    Rehearing Denied May 4, 2009.
    Arthur J. Morburger, Miami, for appellants.
    Howard S. Grossman, Boca Raton, for appellees.
    Before COPE, SHEPHERD, and SUAREZ, JJ.
   PER CURIAM.

Upon further review of the jurisdictional questions promulgated by this Court to the parties sua sponte in this case, we treat the appeal in this case as one taken from nonfinal orders which determine the right to immediate possession of property under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii). See Greene v. Borsky, 961 So.2d 1057, 1058 (Fla. 4th DCA 2007) (stating that a sum of money is property to which Rule 9.130(a)(3)(C)(ii) applies). We affirm the orders under review.


text:
    TIFFANY LAKES CONDOMINIUM ASSOCIATION, INC., individually and on behalf of current and future Officers and members of the Board of Directors, Appellants, v. Giovanni BORACE, Sr., Johnny Izquierdo and Janet Talavera, jointly and severally, Appellees.
    No. 3D08-479.
    District Court of Appeal of Florida, Third District.
    March 25, 2009.
    Rehearing Denied May 4, 2009.
    Steven Polatnick, for appellants.

      Vernis & Bowling and Manuel A. Avila, Miami, for appellees.
    Before RAMIREZ and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Perlow v. Goldberg, 700 So.2d 148 (Fla. 3d DCA 1997).


text:
    Robert Lee CLEVENGER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 5D08-1314.
    District Court of Appeal of Florida, Fifth District.
    March 27, 2009.
    Rehearing Denied April 22, 2009.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Kristen L. Davenport, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Robert Lee Clevenger, Jr., appeals his conviction for third-degree murder. Cle-venger was also convicted and sentenced on a charge of aggravated battery on a pregnant person, arising from the same incident, which he does not challenge on appeal. We find that the issue before us is controlled by Tipton v. State, 97 So.2d 277, 280 (Fla.1957), which reversed a murder conviction where the record contained no evidence “to show any cause of deceased’s death from a medical viewpoint” and “no testimony to show a causal connection between the alleged ‘pushing, shoving and ill treating’ and the death of deceased.” As in Tipton, because the State’s evidence neither revealed the victim’s cause of death nor demonstrated a causal connection between Clevenger’s touching of the victim and her death, we find that the trial court should have granted Clevenger’s motion for judgment of acquittal on this charge. Accordingly, we reverse Clevenger’s conviction for third-degree murder and remand for discharge on that count. We affirm the aggravated battery conviction.

AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.

MONACO, LAWSON and EVANDER, JJ., concur.


text:
    Samuel David DEVEAUX, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-0831.
    District Court of Appeal of Florida, First District.
    March 27, 2009.

      Samuel David Deveaux, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for belated appeal is denied on the merits. See Jordan v. State, 549 So.2d 805 (Fla. 1st DCA 1989).

WOLF, KAHN, and BENTON, JJ., concur.


text:
    Gregory MILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-1048.
    District Court of Appeal of Florida, First District.
    March 30, 2009.
    Rehearing Denied May 6, 2009.
    Gregory Miller, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. R. App. P. 9.141(c)(4)(B).

WOLF, KAHN, and BENTON, JJ., concur.


text:
    Anthony SIMON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D08-3158.
    District Court of Appeal of Florida, Third District.
    April 1, 2009.
    Rehearing Denied May 4, 2009.
    Anthony Simon, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before COPE, RAMIREZ, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Fuston v. State, 764 So.2d 779 (Fla. 2d DCA 2000) (holding that “a defendant is not entitled to successive review on a rule 3.800(a) motion of a specific issue which has already been decided against him.”); Swain v. State, 911 So.2d 140, 142 (Fla. 3d DCA 2005) (holding that a defendant is not entitled to successive review of a specific issue decided against him in an earlier post-conviction proceeding even if the question concerns the legality of his sentence).


author: STEVENSON, J.

text:
    Louis GIUNTA, Appellant, v. STATE of Florida, Appellee.
    No. 4D07-3808.
    District Court of Appeal of Florida, Fourth District.
    April 1, 2009.
    Rehearing Denied May 14, 2009.
    Carey Haughwout, Public Defender, and Emily Ross-Booker, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diane F. Medley, Assistant Attorney General, West Palm Beach, for appellee.
   STEVENSON, J.

Louis Giunta was tried by jury and convicted of sexual battery. In this direct appeal from that conviction, Giunta asserts that his trial counsel provided ineffective assistance, apparent from the face of the record, by failing to introduce “alibi” evidence at trial. Such evidence would not have conclusively established that Giunta could not have committed the sexual battery, but if believed, would have placed him in Coconut Grove at a time when the victim claimed that she and Giunta were at Giunta’s Hallandale residence in a case that hinged on the victim’s credibility. Ineffective assistance of counsel claims, however, are ordinarily properly raised in a motion for postconviction relief, and it is the rare case when such a claim may be raised, and disposed of, in a direct appeal. See, e.g., Aversano v. State, 966 So.2d 493, 494-95 (Fla. 4th DCA 2007). Thus, despite the apparent strength of the appellant’s claim, we believe that it should be tested within the procedural context of a motion for postconviction relief, and we decline to address it on direct appeal. We therefore affirm Giunta’s conviction without prejudice to his right to file a motion for postconviction relief, raising the claim asserted in this appeal, which can be more properly resolved after an evidentiary hearing.

Affw-med.

WARNER and DAMOORGIAN, JJ., concur.