text:
    LION GABLES REALTY LIMITED, etc., et al., Appellant, v. RANDALL MECHANICAL, INC., Trustmark, etc., et al., Appellee.
    No. 5D10-3545.
    District Court of Appeal of Florida, Fifth District.
    June 24, 2011.

      Beverly A. Pohl of Beverly A. Pohl, P.A., Broad and Cassel, Fort Lauderdale, Michael K. Wilson, P.A., Robert Alfert, Jr., P.A., and Jeremy T. Springhart, of Broad and Cassel, Orlando, for Appellant.
    Joseph A. Lane, of Lowndes, Drosdick, Doster, Kantor & Reed, P.A., Orlando, for Appellee Randall Mechanical, Inc., Tiffany M. Chill and A. Craig Cameron of Cameron, Hodges, Coleman, LaPointe & Wright, P.A., Orlando, for Appellee Trustmark Builders, Inc., and Steve D. Marlowe, of Marlowe McNabb, P.A., Tampa, for Appel-lee T.B.P.M., Inc.
   PER CURIAM.

A developer, Lion Gables Realty Limited Partnership (“Lion Gables”), seeks review of two non-final appealable orders compelling arbitration of its third-party claims against three subcontractors, Trust-mark Builders, Inc., Randall Mechanical, Inc., and T.B.P.M. Plumbing, Inc. Lion Gables’ first argument relates to counts 17, 18, 21, 22, 63 and 64 of its third-party complaint, in which it asserts claims based upon its alleged status as an intended third-party beneficiary of the subcontracts. The subcontractors dispute Lion Gables’ status as an intended third-party beneficiary, and the trial court referred this dispute to arbitration. Reviewing the matter de novo, we find this to be a threshold issue that should have been decided by the trial court.

Lion Gables’ second argument relates to counts 61, 62 and 64 of its third-party complaint, and only to one of the subcontractors — Trustmark. Lion Gables asserts that the trial court erred in failing to find that Trustmark waived its right to compel arbitration by participating in merits discovery. We agree and reverse as to this issue.

Threshold Issue Involving Lion Gables’ Status as Third-Party Beneficiary

“[Arbitration provisions are binding on the parties to the covenant, as well as on intended, third-party beneficiaries of the contract provided that the parties clearly express, or the contract itself expresses, an intent to primarily and directly benefit the third party.” Technical Aid Corp. v. Tomaso, 814 So.2d 1259, 1261 (Fla. 5th DCA 2002) (citing Hirshenson v. Spaccio, 800 So.2d 670 (Fla. 5th DCA 2001)); see also Tartell v. Chera, 668 So.2d 1105, 1106 (Fla. 4th DCA 1996) (holding that appellants could not be compelled to arbitrate because they were neither parties to the contract containing the arbitration clause nor third-party beneficiaries). In ruling on a motion to compel arbitration, the trial court must make three threshold determinations: (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 first of these three issues necessarily involves a determination of whether a valid agreement exists between the parties. See Infinity Design Builders, Inc. v. Hutchinson, 964 So.2d 752 (Fla. 5th DCA 2007) (“In deciding whether arbitration is required, therefore, one must necessarily begin by asking whether the parties contractually agreed to arbitrate.”); Florida Power & Light Company v. Road Rock, Inc., 920 So.2d 201, 203 (Fla. 4th DCA 2006) (“ ‘Non-parties to a contract containing an arbitration clause cannot compel parties to a contract to arbitrate unless it is determined that they are a third-party beneficiary to the contract.’”) (quoting Nestler-Poletto Realty, Inc. v. Kassin, 730 So.2d 324, 326 (Fla. 4th DCA 1999)); cf. Operis Group Corp. v. E.I. at Doral, LLC, 973 So.2d 485 (Fla. 3d DCA 2007) (holding that a challenge to the “very existence” of “an agreement between the parties” constitutes a threshold matter for determination by the trial court); Shearson, Lehman, Hutton, Inc. V. Lifshutz, 595 So.2d 996 (Fla. 4th DCA 1992) (affirming denial of motion to compel arbitration where there was no evidence that appellees signed written agreement containing arbitration clauses).

Accordingly, we reverse that portion of the orders referring Lion Gables’ third-party beneficiary claims to arbitration and remand with directions that the trial court determine whether Lion Gables is an intended third-party beneficiary of the subcontracts. If the trial court determines that Lion Gables is an intended beneficiary, these counts may then be referred to arbitration for a decision on the merits of the claims. If the trial court finds that Lion Gables is not an intended beneficiary of the subcontracts, the counts should be dismissed.

The Trustmark Claims

The right to arbitrate is based on contract and may be waived. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005). In determining whether a party has waived this right, the “ ‘essential question is whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right.” Id. (quoting Nat’l Found, for Cancer Research v. A.G. Edwards & Sons, 821 F.2d 772, 774 (D.C.Cir. 1987)). However, Florida’s appellate courts have consistently found waiver where a party participates in discovery on the merits before moving to compel arbitration. Gordon v. Shield, 41 So.3d 931, 933 (Fla. 4th DCA 2010) (recognizing that propounding discovery would waive right to arbitrate); Green Tree Servicing, LLC v. McLeod, 15 So.3d 682, 688 (Fla. 2d DCA 2009) (agreeing that participating in merits discovery waived a claimed right to arbitration and noting that both “the Third District and the Fifth District have unequivocally held that propounding discovery related to the merits of pending litigation before moving to compel arbitration results in a waiver of the right to arbitration.”) (citations omitted); Olson Electric. Co. v. Winter Park Redev. Agency, 987 So.2d 178, 179 (Fla. 5th DCA 2008) (reversing order compelling arbitration because, under the totality of circumstances, the defendant acted inconsistently with the right to arbitrate by propounding discovery requests directed to the merits of the lawsuit); Estate of Orlanis ex rel. Marks v. Oakwood Terrace Skilled Nursing & Rehab. Ctr., 971 So.2d 811 (Fla. 3d DCA 2007) (recognizing that defendants availed themselves of benefit of discovery rules by propounding interrogatories, requests to produce and notices to produce to non-parties).

In this case, the trial court correctly determined that Trustmark participated in merits discovery. Florida Rule of Civil Procedure 1.280(a) lists general discovery methods, including depositions, interrogatories, production of documents and things, inspections, examinations, and requests for admissions. Florida Rule of Civil Procedure 1.351 deals specifically with the production of documents and things. Subsection (4e) provides that a party receiving copies under this rule “shall furnish a legible copy of each item furnished to any other party who requests it....” Fla. R. Civ. P. 1.351(4e). Trustmark requested copies of documents produced in discovery under this rule. And, although Trustmark attempts to minimize its discovery participation — as only amounting to two requests for copies — a closer examination of the record reveals that these two requests were directed at a number of comprehensive production requests. For example, one notice requested copies of all material furnished in response to a production request directed to non-party Slider Engineering Group, Inc. That request required the production of this firm’s “complete expert file, including notes, graphs, charts, correspondence, emails, reports, addenda, turnover evaluation reports and other documents for your work concerning the project known as Waterstreet @ Celebration in Osceola County, Florida.”

Trustmark’s second “notice to produce copies” was directed to materials furnished in response to production requests directed to three separate entities-Annular Building Group, Celebration Terragon, and Terragon Realty Investors. The categories of documents requested from these entities are at least as expansive as those sought from Slider Engineering Group, Inc. Even if conducting a minimal amount of merits discovery would be insufficient to waive a contractual right to arbitrate, we do not view these discovery requests as minimal.

Therefore, we cannot agree with the trial court’s conclusion that under the “totality of the circumstances” Trustmark did not waive arbitration. The law in Florida is clear that a party’s participation in merits discovery constitutes a waiver of arbitration. Gordon; Green Tree Servicing, LLC; Olson Electric. Co.; Estate of Orlanis ex rel. Marks. Having correctly determined that Trustmark participated in discovery, the trial court should also have found that Trustmark waived its right to arbitration. Id. Accordingly, we reverse as to this issue as well.

We affirm the orders on appeal as to all issues not addressed in this opinion.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED WITH DIRECTIONS.

TORPY, LAWSON, and COHEN, JJ., concur.

      . See Olson Electric Co. v. Winter Park Redev. Agency, 987 So.2d 178, 179 (Fla. 5th DCA 2008) (holding that an appellate court reviews a trial court’s order compelling arbitration under the de novo standard of review).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Shirley BUSH, n/k/a Shirley Walker, Appellant, v. O. David BUSH, Appellee.
    No. 2D09-4829.
    District Court of Appeal of Florida, Second District.
    June 27, 2011.

      Shirley Bush, pro se.
    0. David Bush, pro se.
   PER CURIAM.

Shirley Bush appeals from a final judgment of dissolution of her marriage to O. David Bush, claiming errors in the amount of alimony the trial court awarded her and the equitable distribution scheme. We affirm in part and reverse in part.

This marriage was the parties’ second marriage to each other and it was of substantial duration. The parties had two grown children and, at the time of separation, were each quickly approaching retirement age. During the marriage they had enjoyed a modest lifestyle during which time they had accumulated a moderate amount of assets and liabilities. Besides owning several homes, their main source of income was the family business, a debris and disaster cleanup operation in which Mr. Bush was the prime mover. They each also had small incomes from government sources.

The trial court had awarded Mrs. Bush no temporary alimony but in the final judgment did award her $35,000 in lump sum alimony and nominal permanent alimony. And the trial court made an admirable attempt at splitting the marital assets equally. Mrs. Bush claims that, given her alleged disabilities and the lengthy term of this marriage, the alimony awarded to her is insufficient. But, in the parties’ circumstances, we find no abuse of discretion in the trial court’s award of alimony to her.

We conclude, however, that the trial court erred in one respect in the equitable distribution scheme. One of the marital assets was an account that was valued at approximately $143,000, the account the parties referred to as “the Rabat account.” The trial court had awarded no temporary alimony to Mrs. Bush, explaining in the final judgment that she had spent the money in this account for her needs during the pendency of the dissolution proceedings. The trial court awarded this account to Mrs. Bush in the final judgment despite the fact that it was depleted by that time. This was error. See Plichta v. Plichta, 899 So.2d 1283, 1286 (Fla. 2d DCA 2005) (“It was error for the trial court to include these depleted marital assets in the equitable distribution scheme because the Husband used this sum during the pendency of the dissolution proceedings, and no misconduct was asserted.”). Here, the trial court made no finding that Mrs. Bush had committed misconduct in depleting the Rabat account in this way.

We therefore affirm the alimony portion of final judgment of dissolution but reverse the portion dealing with equitable distribution. On remand, the trial court shall reconsider the equitable distribution in light of the depletion of the Rabat account.

Affirmed in part, reversed in part, and remanded.

CASANUEVA, KHOUZAM, and CRENSHAW, JJ, Concur.


text:
    Lisa M. DETOURNAY, Brenda Randol, and The Riviera Neighborhood Association, Inc., a Florida Not-For-Profit Corporation, Petitioners, v. CITY OF CORAL GABLES, a Florida Municipal Corporation and Amace Properties, Inc., Respondents.
    No. 3D11-886.
    District Court of Appeal of Florida, Third District.
    June 29, 2011.
    Andrew W.J. Dickman of Law Office of Andrew Dickman, P.A., Naples, for petitioners.
    Gerald B. Cope, Jr., Elizabeth Hernandez and Jennifer Cohen Glasser of Aker-man Senterfitt, Miami, for respondent City of Coral Gables.
    Santiago D. Echemendia and Maria P. Gonzalez of Tew Cardenas LLP, Miami, for respondent AMACE Properties, Inc.
   PER CURIAM.

By this petition for writ of prohibition, petitioner seeks to disqualify the trial judge after a final hearing and the trial judge’s oral ruling in favor of the opposing parties. While the grounds alleged for disqualification occurred during the trial, the petitioners did not move to disqualify at that time. The trial court orally ruled and requested that the respondent furnish a proposed final judgment. Ten days later, petitioner moved to disqualify the trial judge. Based upon Fischer v. Knuck, 497 So.2d 240 (Fla.1986), the motion to disqualify was untimely when delayed until after the final judgment. See also Lawson v. Longo, 547 So.2d 1279 (Fla. 3d DCA 1989). Even if it were timely, the grounds raised were legally insufficient. See Fla.Code Jud. Conduct Canon 3(B)(7)(d) (“A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.”); Polanco v. State, 993 So.2d 566 (Fla. 4th DCA 2008) (legally sufficient motion for disqualification must have some first-hand knowledge upon which to swear to truth of allegations).

WARNER, LEVINE and CONNER, Associate Judges, concur.


text:
    Calvin Carlos CAMPBELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-3139.
    District Court of Appeal of Florida, Fourth District.
    June 29, 2011.
    Rehearing Denied Aug. 17, 2011.

      Calvin Carlos Campbell, DeFuniak Springs, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Calvin Carlos Campbell (Defendant) timely petitions for second tier certiorari relief from an order of the Palm Beach County circuit court, in its appellate capacity, which affirmed per curiam, without opinion, a county court order summarily denying his rule 3.850 motion for postcon-viction relief, challenging his plea to two counts of misdemeanor battery. We deny the petition.

A final circuit court decision in its appellate capacity, including a decision denying a defendant’s postconviction motion, is reviewable in the district court by petition for writ of certiorari. E.g., Slater v. State, 543 So.2d 869, 871 (Fla. 2d DCA 1989). The standard of review for such a petition is whether the petitioner has been denied procedural due process, or whether the circuit court departed from the essential requirements of law in such a way as to cause a miscarriage of justice. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889-90 (Fla.2003); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530-31 (Fla. 1995). We conclude that Defendant has established neither.

Defendant claims that his 1988 misdemeanor conviction should be vacated because the alleged victim of the misdemean- or battery recanted his false statements made. Thus, he claims “actual innocence” and “manifest injustice” as exceptions to the time limitation for postconviction motions. At the time of the battery incident, the defendant was on parole for first degree murder. He entered a plea to the battery, and the State dismissed more serious charges. After the misdemeanor conviction, the Parole and Probation Commission held a hearing and revoked parole. Consequently, he alleges that the misdemeanor conviction continues to affect his liberty interests as he continues to be detained on revocation of parole.

In 2008, the defendant moved for post-conviction relief in the county court, alleging newly-discovered evidence, namely an affidavit from the alleged victim of the 1988 battery stating that the defendant had not committed a criminal offense against him. The motion made many other claims, but these were untimely and successive. The county court denied relief, and the circuit court affirmed.

The defendant was not denied due process in the circuit court, and there was no departure from the essential requirements of law. He pled to the misdemean- or conviction and admitted an unlawful touching in the plea colloquy. The victim’s testimony, which the victim now recants, was not made in connection with the misdemeanor conviction but after the defendant’s conviction during his revocation hearing before the Parole and Probation Commission. A revocation of the parole could have occurred, even if he had been acquitted of the battery charges. See, e.g., State ex rel. Fla. Parole & Prob. Comm’n v. Helton, 318 So.2d 413, 415 (Fla. 1st DCA 1975) (noting that acquittal of criminal charge has no bearing on sufficiency of grounds to revoke parole or probation in connection with that charge). Regardless, the victim’s recantation of testimony before the Commission does not require reconsideration of the misdemeanor conviction.

Petition Denied.

WARNER, POLEN and STEVENSON, JJ., concur.

      . A circuit court order that affirms without opinion, and thus cannot serve as precedent, is unlikely to merit certiorari review because any error will be isolated in its effect. Dep’t of Highway Safety & Motor Vehicles v. Alli-ston, 813 So.2d 141, 145 (Fla. 2d DCA 2002).


author: ROWE, J.

text:
    Daniel J. SCHMIDT, Appellant, v. Charles VAN, Sr., and Rilla Van, as husband and wife, Appellee.
    No. 1D10-4206.
    District Court of Appeal of Florida, First District.
    June 30, 2011.

      Richard A. Sherman, Sr. and James W. Sherman of Law Office of Richard A. Sherman, P.A., Fort Lauderdale; and Jennifer R. Cassady of Law Offices of Patricia E. Garagozlo, Jacksonville, for Appellant.
    George T. Reeves of Davis, Schnitker, Reeves & Browning, P.A., Madison; and T. Bradley McRae of McRae, McRae & Haire, Lake City, for Appellee.
   ON MOTION FOR REHEARING

ROWE, J.

We grant the appellees’ motion for rehearing, withdraw our prior opinion, and substitute the following opinion.

Daniel Schmidt, the defendant in a personal injury suit filed by Charles and Rilla Van, appeals a final order determining that the jury verdict in his favor was against the manifest weight of the evidence and awarding the Vans a new trial. Because we conclude that the trial court abused its discretion, we reverse and remand for the trial court to reinstate the jury verdict.

Facts and Procedural History

The Vans brought suit against Mr. Schmidt, seeking recovery for personal injuries allegedly sustained in an October 2007 automobile accident, requiring Mr. Van to undergo a cervical spinal fusion surgery in September 2009. Mr. Schmidt did not contest his liability for causing the automobile accident, but instead argued that the accident was not the cause of Mr. Van’s injury or need for medical treatment. Mr. Schmidt’s defense centered on the minor nature of the automobile accident, Mr. Van’s medical history which included a prior cervical spinal fusion surgery in 1991, a 1998 automobile accident in which Mr. Van was ejected from the vehicle, and diagnoses of emphysema and spinal degenerative disease.

After a three-day trial, the jury returned a verdict in favor of Mr. Schmidt, finding that Mr. Van had not suffered an injury as a result of the 2007 accident. Thereafter, the Vans filed a motion for a new trial and the trial court granted the motion. The trial court concluded that the jury’s verdict finding no causation was contrary to the manifest weight of the evidence in light of the testimony of the three expert medical witnesses, one of whom was a defense witness, who each opined that Mr. Van’s injury and resulting surgery was caused at least in part by the 2007 accident. While acknowledging Mr. Schmidt’s arguments and the evidence offered in support thereof, the trial court disregarded all lay testimony bearing on causation of Mr. Van’s injuries. The court expressly concluded that in the absence of expert testimony regarding accident reconstruction or other “technical matters” affecting causation for the injury, “[n]o reasonable juror would conclude ‘no causation’ ... in light of the opinions of the three doctors.” With regard to Mr. Van’s credibility, the court found, “[h]is credibility had little, if any, weight on the issue of causation in light of the uncontroverted opinions of the three informed and credible doctors.” With regard to Mr. Van’s preexisting spinal degeneration, the court again found the expert testimony to outweigh other evidence: “No reasonable juror would conclude that degeneration, to the exclusion of the collision, was the cause of Plaintiffs injury in light of the testimony of the three doctors.”

Analysis

A trial court’s decision to grant a new trial on the grounds that the verdict is contrary to the manifest weight of the evidence is reviewed for abuse of discretion. Brown v. Estate of Stuckey, 749 So.2d 490 (Fla.1999). In Brown, the Florida Supreme Court explained the highly deferential standard of review an appellate court must apply when reviewing an order granting a new trial:

When reviewing the order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply a reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion.

Id. at 497-98; see also Trujillo v. Uniroyal Tire Co., 753 So.2d 1256 (Fla.2000).

However, a reviewing court may find that the trial court abused its discretion in determining that the manifest

weight of the evidence was contrary to the verdict and granting a new trial in two circumstances: (1) where the evidence in the record does not support the trial court’s determination; or (2) where the trial court’s determination rests on an incorrect conclusion of law. See Jordan v. Brown, 855 So.2d 231, 234 (Fla. 1st DCA 2003) (reversing order granting new trial where “no record basis” supported the reasons set forth in the trial court’s order); Corbett v. Wilson, 48 So.3d 131, 133 (Fla. 5th DCA 2010) (reversing order granting new trial where determination was based on improper legal premise).

In Corbett, the Fifth District reversed a trial court’s order granting a new trial holding that reversal was necessary because the trial court’s premise for granting the new trial was legally improper:

[W]e are nevertheless bound to reverse because the legal premises on which the trial court proceeded to find the verdict to be against the manifest weight of the evidence were erroneous.

Id. at 133.

In this case, as in Corbett, the trial court’s determination that the jury verdict was against the manifest weight of the evidence was premised on an erroneous conclusion of law. Specifically, the court concluded that based on the evidence introduced through the testimony of the expert witnesses relative to causation, the jury could not determine that the 2007 accident caused no injury to Mr. Van, despite conflicting lay testimony and evidence introduced at trial. This was error.

It is well-established that a jury may reject any testimony, including testimony of experts. See Shaw v. Puleo, 159 So.2d 641, 644 (Fla.l964)(holding the jury is free to “accept or reject the testimony of a medical expert just as it may accept or reject that of any other expert”); Frank v. Wyatt, 869 So.2d 763 (Fla. 1st DCA 2004). Indeed, the Standard Jury Instruction (Civil) 601.2(b), which was appropriately read to the jury in this case, provides that the jury “may accept [expert witness] opinion testimony, reject it, or give it the weight you think it deserves, considering the knowledge, skill, experience, training, or education of the witness, the reasons given by the witness for the opinion expressed, and all the other evidence in the case.” However, “the jury’s ability to reject [expert] testimony must be based on some reasonable basis in the evidence.” Wald v. Grainger, 64 So.3d 1201, 1205-06 (Fla.2011). Lay testimony or evidence which conflicts with the expert testimony, as well as conflicting testimony by the plaintiff may provide a reasonable basis for rejecting expert testimony. Id.

The expert testimony in this case conflicted with much of the lay testimony presented to the jury. In such cases, where expert testimony conflicts with lay testimony, the trial court should defer to the jury to weigh the evidence. Easkold v. Rhodes, 614 So.2d 495 (Fla.1993). In Eas-kold, a personal injury case arising from an automobile accident, the supreme court recognized the role of the jury as the fact-finder in civil cases and found that it is within the jury’s authority to weigh the credibility of expert testimony against conflicting lay testimony: “[E]ven though the facts testified to by [the medical experts] were not within the ordinary experience of the members of the jury, the jury was still free to determine their credibility and to decide the weight to be ascribed to them in the face of conflicting lay evidence.” Id. at 498 (quoting Shaw v. Puleo, 159 So.2d 641, 644 (Fla.1964)). In Easkold, where there was uncontradicted expert testimony of permanent injuries, the supreme court held that a jury could reject the expert testimony in regard to the victim’s injuries in view of lay testimony or other facts in evidence, such as that the victim had not accurately reported her medical history to the testifying physicians. Id. at 497.

Here, in addition to the medical experts, the jury heard testimony from several witnesses, including the plaintiffs, Mr. and Mrs. Van. Evidence and testimony introduced at trial portrayed the accident as a mere fender-bender. The jury examined photographs depicting the damage to the Vans’ vehicle, which was described by Mr. Van as a crack or scrape on the back bumper. Mr. Van further testified that the total damage to his vehicle was estimated to be approximately $800; at the time of trial (about 2 1/2 years after the accident) the damage to the bumper had not been repaired; and the vehicle was still being driven by Mrs. Van.

Other testimony offered at trial demonstrated that Mr. Van had an extensive medical history, which included a prior surgery, another automobile accident, and several significant medical diagnoses. Mr. Van testified that he had undergone a prior cervical spinal fusion surgery in 1991. Mr. Van testified that he had been in an automobile accident in 1998, in which he was ejected from the vehicle. Mr. Van testified that he had a back sprain shortly before the 2007 accident. In addition, medical records were introduced at trial revealing that Mr. Van had visited a hospital in 2006, complaining of severe lower back pain; that Mr. Van had visited the hospital less than a month before the 2007 accident, complaining of the same symptoms; and that he was taking the pain medication, Lortab, at the time of the 2007 accident.

Through the testimony of the medical experts, the jury heard that Mr. Van had pre-existing degeneration of his cervical spine. On cross-examination, Mr. Van revealed a number of other medical conditions affecting his overall health. Mr. Van testified that he had been diagnosed with emphysema in the early 1970’s and that he had been hospitalized four times in the year leading up to trial for breathing problems, clogged lungs, pneumonia, and cardiac surgery.

Testimony introduced at trial also demonstrated inconsistencies in Mr. Van’s story on material issues in the case, placing his credibility into question. Despite Mr. Van’s testimony regarding his extensive medical history and pre-existing medical conditions, and that he had not been employed since the 1970’s, he nonetheless testified that before the 2007 automobile accident he was able to work around the house, do carpentry work or mechanic work, and swim, run, and play with his grandkids. Mr. Van testified that after the 2007 accident, he was unable to engage in these activities.

When Mr. Van sought medical treatment following the 2007 accident, he failed to disclose to the treating physician that he had undergone a prior cervical spinal fusion surgery or that he had been involved in an earlier automobile accident. Mr. Van disclosed the prior cervical spinal fusion surgery only upon inquiry by his neurosurgeon, who discovered indicia of an earlier surgery after reading the results of an MRI scan he had ordered of Mr. Van’s spine. During trial, the jury observed Mr. Van wearing a neck brace. During the cross-examination of Mr. Van’s neurosurgeon, the physician testified that there was no medical necessity for Mr. Van to be wearing the neck brace. In light of this testimony, the jury was entitled to judge Mr. Van’s credibility and accept or reject his testimony on all issues. See Chomont v. Ward, 108 So.2d 635 (Fla.1958); Roach v. CSX Transportation, Inc., 598 So.2d 246, 250 (Fla. 1st DCA1992).

Based on the evidence and testimony introduced at trial and the instructions presented to it, the jury could properly reject the testimony of the medical experts who opined that Mr. Van’s injuries were caused at least in part by the automobile accident and conclude that Mr. Van suffered no injury as a result of the 2007 accident. By failing to recognize the jury’s prerogative to reject the expert testimony on causation, particularly in light of the lay testimony which conflicted with the expert testimony, the trial court erred in concluding that the manifest weight of the evidence was contrary to the jury verdict. See Easkold v. Rhodes, 614 So.2d 495 (Fla. 1993). Accordingly, we find that the trial court abused its discretion in granting the motion for new trial.

We REVERSE and REMAND for the trial court to enter judgment on the jury verdict.

WOLF and THOMAS, JJ„ concur.


author: ROTHENBERG, J. GERSTEN, J.,

text:
    CITY OF MIAMI, Petitioner, v. Miguel A. HERVIS, Respondent.
    No. 3D11-442.
    District Court of Appeal of Florida, Third District.
    July 5, 2011.
    Rehearing Denied Aug. 16, 2011.

      Julie O. Bru, City Attorney, and Diana Vizcaino and John A. Greco, Assistant City Attorneys, for petitioner.
    Feiler & Leach and Martin E. Leach, for respondent.
    Before GERSTEN, ROTHENBERG, and SALTER, JJ.
   ROTHENBERG, J.

I. INTRODUCTION

The City of Miami (“City”) seeks certio-rari relief from a decision rendered by the Circuit Court for Miami-Dade County, Appellate Division (“Circuit Court”), affirming a final order entered by the Miami-Dade County Commission on Human Rights (“Commission”). The Commission found that the City’s police chief, Chief Timoney, engaged in disability discrimination by failing to appoint Miguel A. Hervís (“Lt.Hervis”), who has Parkinson’s disease, to serve as a Neighborhood Enhancement Team Commander (“NET Commander”). Because we conclude that the City was denied due process, and the Circuit Court departed from the essential requirements of law resulting in a miscarriage of justice, see Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1095 (Fla.2010); Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995), we grant the petition, quash the opinion of the Circuit Court, and remand with directions.

II. FACTUAL AND PROCEDURAL HISTORY

Lt. Hervis has been serving as a police officer with the City since 1988. He was promoted to the rank of sergeant in 1994, and to the rank of lieutenant in 2001. From April to November 2001, he served as the acting Commander in the Strategic Information Unit of the Special Investigations Section, and is currently a Commander in the Domestic Violence Unit. In 2004, Lt. Hervis was diagnosed with Parkinson’s disease, and shortly thereafter, symptoms of his condition became evident to his coworkers and superiors, including Chief Ti-money. Although Chief Timoney realized that Lt. Hervis’ motor skills were impaired, he' did not know that Lt. Hervis had Parkinson’s disease or what was causing the symptoms he observed. Over the next two years, Chief Timoney observed Lt. Hervis’ condition progressively worsen, and by the middle of 2006, Chief Timoney became concerned about Lt. Hervis’ fitness for duty and his ability to handle a firearm. Chief Timoney therefore scheduled a meeting with Lt. Hervis and the Chief of Health Services, Deputy Chief Burden, for January 3, 2007, to discuss the situation.

At that meeting, Lt. Hervis informed Chief Timoney and Deputy Chief Burden that he had Parkinson’s disease, admitted he was experiencing difficulties with his motor skills, and told them that he was scheduled to undergo a surgical procedure in a month which he hoped would alleviate some of the symptoms. Lt. Hervis contends that at this meeting, Chief Timoney ordered him to submit to a “fitness for duty” examination, but then agreed to permit Lt. Hervis to delay taking the examination until after he had the surgical procedure. Chief Timoney wished Lt. Hervis well and instructed him to follow up with Deputy Chief Burden to inform them of the results of the procedure. Lt. Hervis eventually had the scheduled procedure, which proved to be a success. Thereafter, he took the fitness for duty examination, and was cleared for duty.

In July 2006, prior to meeting with Chief Timoney and Deputy Chief Burden, and while Lt. Hervis was experiencing loss of his motor skills, he requested to be considered for the position of NET Commander. The record reflects that the City’s police department has no formal application process for such promotions, which are made solely at the discretion of the Chief of Police, with the approval of the City Manager. Appointments are made based on the individual’s work history, recommendations, past performance, and other factors. Recommendations can come from individuals outside of the City of Miami Police Department or internally. But ultimately, the decision rests with the Chief of Police.

The NET Commander position is an executive-level position that is described as requiring independence of action and judgment. The NET Commander coordinates police related services at the neighborhood level and requires the supervision of staff, including officers and community providers; speaking to various audiences about police related issues; attending homeowner meetings; composing communications; developing operational plans; and responding to natural disasters or other emergencies within the neighborhood.

In December 2006, prior to Lt. Hervis undergoing the surgical procedure, three other officers with equal experience and seniority were promoted to the position of NET Commander. After the surgical procedure was performed, Lt. Hervis’ condition substantially improved, and in the summer of 2008, he was cleared for normal duty, with no restrictions. In the interim, on June 15, 2007, Lt. Hervis filed a Notice of Charge of Discrimination (“charge”), alleging disability discrimination with the Commission. Lt. Hervis contended he was passed over for promotion because of his disability, Parkinson’s disease. The Commission assigned the investigation of the charge to the Miami-Dade County Equal Opportunity Board (the “Board”).

The Board investigated the charge and issued a Recommended Order on December 29, 2008, finding that Lt. Hervis had presented a prima facie case of employment discrimination. Specifically, the Board found that: (1) the record established that Lt. Hervis was a qualified individual with a disability; (2) although the City has no formal application process for promotions to the position of NET Commander, Lt. Hervis asked to be considered for the position; (3) Lt. Hervis was not promoted to NET Commander; and (4) individuals with similar qualifications, who had no known disability, were promoted to NET Commander positions. The Board recognized the City’s legitimate concern regarding Lt. Hervis’ ability to perform his job, which requires that he carry a firearm, but found that based on the medical documentation in the record, which indicates that Lt. Hervis was able to perform his duties without restrictions or accommodations, his disability did not pose a direct threat to him or others. Consequently, the Board recommended that Lt. Hervis be promoted to the next available NET Commander position, compensated for the pay differential retroactive to May 2007, with interest, and reimbursed for his reasonable attorney’s fees and costs.

Pursuant to Chapter 11A-8 of the Miami-Dade County Code, the City requested a de novo hearing, which was held on June 11, 2009, before a hearing officer. Testifying on behalf of the City were Chief Timo-ney and Deputy Chief Burden.

The portion of the transcript that was supplied by the Commission, and which was included in the record on appeal, reflects that Chief Timoney testified that appointments to the position of NET Commander are within his discretion, seniority is only one of the factors he considers, and there were legitimate non-discriminatory reasons why he did not appoint Lt. Hervis to the position of NET Commander. Chief Timoney also testified that he did not consider Lt. Hervis for a NET Commander position because at an important briefing during the Free Trade Area of the Americas (“FTAA”), Lt. Hervis, unlike the officers that conducted the briefings on the two preceding days, performed very poorly. Chief Timoney explained that Lt. Her-vis appeared unprepared, confused, and unfamiliar with the facts, and his presentation was “embarrassing.” Based on Lt. Hervis’ performance, he insisted that either of the other two officers that had conducted the earlier briefings be assigned to the remaining briefings. Chief Timoney testified that the officers he appointed to the NET Commander positions demonstrated leadership and “stood out” as candidates for the position and went on to explain his experiences and observations of the individuals he promoted to NET Commander positions. Thus, Chief Timoney provided legitimate, non-discriminatory reasons for not appointing Lt. Hervis to the position of NET Commander.

The hearing officer entered his Final Order on July 13, 2009, finding that, although there was no direct evidence of disability discrimination, there was circumstantial evidence that the City discriminated against Lt. Hervis due to his disability. Specifically, the hearing officer found that Chief Timoney admitted that based on Lt. Hervis’ symptoms, he questioned whether he was fit for duty as a police officer, and thus the obvious conclusion would be that he would not promote someone he believed was not fit for duty. Chief Timoney testified that he did not promote Lt. Hervis because he had performed so poorly at the FTAA briefing, Lt. Hervis did not dispute this testimony and the Board did not find that Chief Timoney’s explanation of why he did not promote Lt. Hervis was a pretext. However, the Commission noted that Lt. Hervis had received “satisfactory evaluations,” which the City failed to refute. Thus, the Commission adopted the Recommended Order submitted by the Board.

The City appealed to the Circuit Court. After the record was prepared by the Commission and provided to the Circuit Court, the City notified the Commission that a transcript of the hearing was not included in the record, and requested from the Commission a copy of the hearing transcript, at its own expense, pursuant to section llA-28(9)(b) of the Miami-Dade County Code. In response, the Commission sent the City an inaudible tape recording of the proceedings. Thereafter, the City filed a motion with the Circuit Court requesting that it issue an order requiring the Commission to comply with its obligation to provide a transcript of the hearing. The Circuit Court granted the City’s motion. The Commission, however, provided the Circuit Court with an incomplete transcript, which omitted a portion of Chief Timoney’s testimony and all of Deputy Chief Burden’s testimony. The City objected to the incomplete transcript. The Circuit Court, however, affirmed the Commission’s order, without written opinion, and this petition for second-tier certiorari review followed.

III. STANDARD OF REVIEW

On second-tier certiorari review, this Court’s inquiry is limited to whether the Circuit Court afforded procedural due process and whether the Circuit Court applied the correct law. Custer, 62 So.3d at 1092,1100. We recognize that it is not the function of this Court on second-tier cer-tiorari to correct error or to reweigh the evidence. However, where the lower tribunal violates a clearly established principle of law resulting in a miscarriage of justice, or the petitioner was denied due process of law, the district court may exercise its discretionary certiorari jurisdiction. Id.

IV. ANALYSIS

A. The City Was Denied Procedural Due Process

Section llA-28(9)(b) of this Miami-Dade County Code, titled: “Procedures for employment discrimination complaints,” provides that “[tjestimony taken at a hearing shall be under oath and a transcript shall be made available at cost to any interested party.” On January 29, 2010, the City requested that the Clerk of the Commission provide the City with a transcript at the City’s cost. The Commission, however, provided the City with an inaudible tape. The City filed a motion with the Circuit Court seeking to compel compliance with section llA-28(9)(b), which the Circuit Court granted. The Commission, however, failed to comply with the Circuit Court’s order and section HA-28(9)(b), by only providing the testimony of Lt. Hervís, a portion of Chief Timoney’s testimony, and none of Deputy Chief Burden’s testimony.

Because the Commission was required to conduct a de novo review, and Chief Timoney and Deputy Chief Burden’s testimony was material and critical, there is no possibility that the Circuit Court was able to provide meaningful review of the Commission’s findings, thus depriving the City of the most basic due process protections. De novo review requires review of the entire record. De novo review is not possible without the complete record. We therefore conclude that the Circuit Court departed from the essential requirements of law by affirming the Commission’s order absent a complete record over the City’s objection.

We also conclude that the failure of the Commission to provide the City with the entire transcript, specifically the testimony of Deputy Chief Burden and portions of Chief Timoney’s testimony, requires remand to the Circuit Court for reconsideration of the City’s appeal. Upon remand, if the transcript or a statement of the evidence filed pursuant to Florida Rule of Appellate Procedure 9.200(b)(4) cannot be provided, a new evidentiary hearing is required. See Gordon v. Gordon, 944 So.2d 527, 527 (Fla. 4th DCA 2006) (reversing order of contempt and remanding for a new hearing where the court reporter lost approximately twenty-five pages of the transcript of the evidentiary hearing); Jackson v. Echols, 987 So.2d 1247, 1249 (Fla. 3d DCA 2006) (relinquishing jurisdiction to afford appellant an opportunity to obtain a statement of the evidence pursuant to Florida Rule of Appellate Procedure 9.200(b)(4), where transcript was unavailable through no fault of the appellant, and ultimately reversing for a new hearing when neither a transcript nor a stipulated statement of the evidence could be obtained); D.G. v. Dep’t of Children & Families, 835 So.2d 408, 408-09 (Fla. 2d DCA 2003) (remanding for a new trial where court reporter determined that the tape recordings of the children’s testimony were blank and D.G. was prejudiced by this omission in the record through no fault of his own); Peretz v. State, 710 So.2d 754, 755 (Fla. 4th DCA 1998) (reversing and remanding for a new hearing where transcript of involuntary commitment hearing could not be produced due to technological failure of the recording equipment and the record could not be reconstructed).

B. The Circuit Court Departed from the Essential Requirements of Law

There are two different avenues upon which a plaintiff may allege intentional discrimination: (1) disparate treatment; and (2) pattern or practice discrimination. Denney v. City of Albany, 247 F.3d 1172, 1182 (11th Cir.2001). Lt. Her-vis’ claim is based on disparate treatment. Disparate treatment claims require proof of discriminatory intent through direct or circumstantial evidence. Id. at 1182-83; see also Harris v. Shelby Cnty. Bd. of Educ., 99 F.3d 1078, 1083 (11th Cir.1996). The Commission’s order concluded, as did the Board in its recommended order, that Lt. Hervís did not present direct evidence of discrimination. Thus, Lt. Hervís was required to prove intentional discrimination through the McDonnell Douglas paradigm for circumstantial evidence claims. Denney, 247 F.3d at 1182 (citing McDonnell Douglas, Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)).

In McDonnell Douglas, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the United States Supreme Court established the order and allocation of proof in circumstantial evidence cases alleging discrimination. The plaintiff must first establish a prima facie case of discrimination. Id. at 802, 93 S.Ct. 1817. This is accomplished by proving, in this context, that: (1) Lt. Hervis is a member of a protected class; (2) he was qualified for and applied for the position; (3) he was not promoted despite his qualifications; and (4) the City filled the position or continued to seek applicants with the same qualifications but who had no known disability. Id.; see also Denney, 247 F.3d at 1183 (applying McDonnell Douglas to failure to promote cases).

If the plaintiff establishes a prima facie case of discrimination, it raises a presumption or inference that the employer unlawfully discriminated against the employee. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981). This is because “we presume these acts, if otherwise unexplained, are more likely than not based on the consideration of impermissible factors.” Burdine, 450 U.S. at 254, 101 S.Ct. 1089 (quoting Furnco Constr. Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d 957 (1978)).

If the plaintiff establishes a prima facie case of discrimination, the defendant must articulate some legitimate, nondiscriminatory reason for the adverse employment action. McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817. The defendant’s burden is a burden of production, not persuasion, and it involves no credibility assessment. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993); Burdine, 450 U.S. at 255, 101 S.Ct. 1089 (“If the defendant carries this burden of production, the presumption raised by the prima facie case is rebutted.”) (footnote omitted). “The presumption, having fulfilled its role of forcing the defendant to come forward with some response, simply drops out of the picture.” St. Mary’s Honor Ctr., 509 U.S. at 510-11, 113 S.Ct. 2742 (citation omitted); see City of Hollywood v. Hogan, 986 So.2d 634, 644 (Fla. 4th DCA 2008) (finding that “credibility is not an issue at [this] juncture” where the burden “shifted to the City to provide an explanation that [police officers] were rejected or other officers were preferred for promotion for a legitimate non-discriminatory reason”).

Where the defendant meets its burden of presenting legitimate,. non-discriminatory reasons for the adverse employment action, the plaintiff, who bears the ultimate burden of demonstrating that the defendant intentionally discriminated against him, must prove that the reasons articulated were false and that the discrimination was the real reason for the defendant’s actions. St. Mary’s Honor Ctr., 509 U.S. at 515, 113 S.Ct. 2742 (“[A] reason cannot be proved to be ‘a pretext for discrimination ’ unless it is shown both that the reason was false, and that discrimination was the real reason.”) (emphasis in original); Fla. State Univ. v. Sondel, 685 So.2d 923, 926 (Fla. 1st DCA 1996) (“The Petitioner must prove that the reason articulated by the Respondent was false and that discrimination was the real reason for the Respondent’s actions.”). In other words, Hervis must “present significant probative evidence that the articulated reason is merely a pretext for discrimination.” Elrod v. Sears Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.1991); see also Reheiser v. Terminix Int’l. Co. Ltd. P’ship, 509 F.Supp.2d 1147, 1152 (N.D.Fla. 2007).

There is no dispute, and the incomplete record does clearly reflect, that Lt. Hervis met his burden of establishing a prima facie case of discrimination. He demonstrated that, because of his disability, he is a member of a protected class; he was qualified to serve as a NET Commander; and he applied for the position, but the position was filled with other individuals with similar qualifications. The record is also clear that the City met its burden of production by articulating sufficient non-discriminatory reasons for its promotion decisions, thereby rebutting the presumption created by Lt. Hervís’ establishment of a prima facie case. However: (1) Lt. Hervís never attempted to prove that the reasons articulated by Chief Ti-money in making his employment decisions were false; (2) the Commission’s order failed to address the absence of this legal requirement; (3) the Commission’s order failed to make a finding that the reasons articulated by Chief Timoney were a pretext; and (4) the Commission’s order improperly shifted the burden to the City to prove lack of pretext. For these reasons, we find that the Circuit Court departed from the clearly established requirements of law in affirming the Commission’s order.

1. Lt. Hervís failed to offer any evidence to rebut the legitimate non-discriminatory reasons articulated

Chief Timoney testified that he observed Lt. Hervís’ performance at an FTAA briefing. Unlike the briefings conducted by two other officers on the days preceding Lt. Hervís’ briefing, Lt. Hervis’ “briefing was downright embarrassing. It made no sense.” Chief Timoney demanded that one of the other two officers conduct the briefing the following day.

Chief Timoney also testified as to the qualifications of other police officers he promoted to the position of NET Commander: Lt. Fernandez, Lt. Herbello, Lt. Martin, Lt. Jones, and Lt. Sanchez. Chief Timoney testified that he promoted Lt. Fernandez to a NET Commander position in December 2006. He described Lt. Fernandez as “a pretty impressive fellow with a command presence, who was on top of things, [and] left nothing to chance.” Chief Timoney explained that he had a great deal of contact with Lt. Fernandez because Lt. Fernandez was working in the downtown area. Further, prior to being promoted to lieutenant, Lt. Fernandez was a sergeant of the detectives, and while some officers have difficulty transitioning into the field, Lt. Fernandez was very impressive.

Chief Timoney testified that he also promoted Lt. Herbello to a NET Commander position in December 2006, based on his excellent work in the detective division of the gang unit, where Lt. Herbello worked closely with the homicide unit, solving both homicide and narcotics cases. Chief Timo-ney was also impressed with Lt. Herbello’s enthusiasm and the respect other officers had for Lt. Herbello. Chief Timoney explained that Lt. Herbello was assigned as a NET Commander to the Allapattah area, which is one of the toughest areas in the City; he is doing an excellent job; and his promotion turned out to be one of his best promotions.

Lt. Martin also served as a sergeant in detectives. Chief Timoney testified that he knew Lt. Martin quite well because when he was appointed to a lieutenant position, he worked special operations and Chief Timoney often interacted with him and found him to be well-prepared.

Chief Timoney promoted Lt. Ethel Jones to a NET Commander position in 2007. Prior to the promotion, Lt. Jones worked in Internal Affairs, she worked directly for Chief Timoney, and they met on a daily basis. He explained that due to the sensitivity associated with internal affairs investigations, only high caliber officers were assigned to the unit. Further, Lt. Jones’ supervisor in the Internal Affairs Department spoke very highly of her.

The last officer Chief Timoney promoted to a NET Commander position was Lt. David Sanchez in 2008. Lt. Sanchez ran the narcotics division for two years, which Chief Timoney explained was the most dangerous unit and very corruption prone. He found that Lt. Sanchez had a lot of guts, did a great job running the unit, was always prepared, and immediately responded to complaints.

Chief Timoney testified that of the fifty-three lieutenants in the Department, there are over a half dozen with more seniority than Lt. Hervis, who, like Lt. Hervis, have not been promoted to NET Commander positions. Further, there are two captains (captains are higher ranked than lieutenants) who have more seniority than Lt. Hervis, and they have not been promoted to NET Commander positions. Chief Ti-money testified that his decision not to promote Lt. Hervis to a NET Commander position had absolutely nothing to do with the fact that Lt. Hervis has Parkinson’s disease; rather it was based on his observation of Lt. Hervis during his FTAA briefing.

Lt. Hervis, who testified at the hearing, did not dispute that he performed poorly at the FTAA briefing or suggest that the other officers appointed to NET Commander positions were unqualified. Thus, he failed to refute that Chief Timo-ne/s reasons for promoting officers Fernandez, Herbello, Martin, Jones, and Sanchez were false. Because Lt. Hervis failed to meet his burden as required by McDonnell Douglas, St. Mary’s Honor Center, and Sondel, the Commission clearly erred in finding disability discrimination, and the Circuit Court departed from the essential requirements of law in affirming the order under review.

2. Lt. Hervis also failed to prove that discrimination was the real reason for the City’s employment decisions

Although Lt. Hervis’ failure to offer any evidence to establish that the reasons articulated by Chief Timoney were false is dispositive, we briefly address the second prong of Lt. Hervis’ burden in proving pretext. Lt. Hervis claims Chief Timoney was aware in 2006 that he wished to be considered for a NET Commander position, but Chief Timoney did not appoint Lt. Hervis due to his disability. In support of his claim, Lt. Hervis argues that Chief Timoney was aware of his disability, and he was equally or more qualified for the position than those appointed.

The record reflects, however, that in 2006, when Lt. Hervis “applied” for the position, he was experiencing loss of his motor skills and Chief Timoney became concerned whether Lt. Hervis could perform his duties as a police officer. Chief Timoney, who was unaware that Lt. Her-vis had Parkinson’s disease, scheduled a meeting with Lt. Hervis to determine what was causing the problem and to request that Lt. Hervis submit to a fitness for duty examination. At this meeting in January 2007, Lt. Hervis informed Chief Timoney that he had Parkinson’s disease and disclosed that he was having difficulty with his motor skills. Lt. Hervis, however, requested to delay his fitness for duty examination because he was going to undergo a medical procedure that he hoped would alleviate the symptoms. Chief Timoney agreed to delay the examination, and Lt. Hervis had the surgery, which substantially improved his symptoms.

In the recommended order submitted by the Board, which was adopted by the Commission, the hearing officer specifically found that:

[The City] had a legitimate concern about [Lt. Hervis’] ability to perform his job. [Lt. Hervis] is a sworn officer holding the rank of Lieutenant and is required to carry a gun. Although not raised by the [City] as a defense, an employer reserved the right to not hire him or retain an individual with a disability if it can be proven that the individual’s employment would pose a direct threat to the individual or others,

(emphasis added).

Thus, because the Commission found that the City had a legitimate concern in 2006 regarding Lt. Hervis’ ability to perform his job, failure to promote him until he was cleared for duty after undergoing a fitness for duty examination cannot and does not establish employment discrimination. The record reflects that Lt. Hervis was not cleared for duty until after his operation and after his examination in August of 2008. Thus, from mid-2006 until August 2008, based on the hearing officer’s findings, the City’s failure to promote Lt. Hervis was legitimate, not a pretext. As all of the promotions were made during this time frame (three in December 2006, one in 2007, and one in 2008), Lt. Hervis did not establish pretext, and the recommendation that Lt. Hervis be promoted to NET Commander and be paid the wage differential between the two positions retroactive to May 2007, has no basis in fact or law.

Lt. Hervis also failed to prove that he was as qualified or more qualified than those who were promoted. Although Lt. Hervis submitted nearly all of his yearly performance evaluations, he failed to submit the most critical evaluation — the evaluation for the period of November 1, 2005 through November 1, 2006. Thus, his performance during this critical period of time cannot be compared with that of the three officers promoted in December 2006. And the comparison of Lt. Hervis’ performance evaluation for the time period of November 1, 2006 through October 81, 2007, with Lt. Jones’ evaluation for the same time period reflects that Lt. Jones, who was promoted on May 15, 2007, received a substantially higher evaluation.

Additionally, the case law establishes that a plaintiff cannot prove pretext merely by asserting that he was better qualified. Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1090 (11th Cir.2004); Dancy-Pratt v. Sch. Bd. of Miami Dade Cnty., No. 00-1382, 2001 WL 1922063, *7 (S.D.Fla. Dec.13, 2001); see also Cofield v. Goldkist, Inc., 267 F.3d 1264, 1269 (11th Cir.2001) (holding that qualifications must be so superior that a reasonable fact-finder would conclude reason given for hiring another was pretextual); Deines v. Texas Dep’t of Protective & Regulatory Servs., 164 F.3d 277, 280-81 (5th Cir.1999) (holding that “disparities in qualifications must be of such weight and significance that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the job in question”).

Chief Timoney testified that, although he considered seniority in making his promotion selections, there were many other factors he considered as well, including the individual’s leadership skills. Such subjective reasons are sufficient, if legitimate. See City of Hollywood v. Hogan, 986 So.2d 634, 644 (Fla. 4th DCA 2008); Chapman v. AI Transp., 229 F.3d 1012, 1034 (11th Cir.2000) (finding that “[a] subjective reason is a legally sufficient, legitimate, nondiscriminatory reason if the defendant articulates a clear and reasonably specific factual basis upon which it based its subjective opinion”).

Chief Timoney specifically articulated the reasons why he promoted others over Lt. Hervis. The reasons included Lt. Hervis’ poor performance at the FTAA briefing, and the promoted officers’ leadership skills, preparation, performance, and other positive attributes he observed. The reasons he articulated were sufficiently specific, legally sufficient, and nondiscriminatory. As noted in Chapman:

[CJourts “do not sit as a super-personnel department that reexamines an entity’s business decisions. No matter how medieval a firm’s practices, no matter how high-handed its decisional process, no matter how mistaken the firm’s managers, the ADEA [Age Discrimination in Employment Act] does not interfere. Rather our inquiry is limited to whether the employer gave an honest explanation of its behavior.”

Id. at 1030 (quoting Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.1991) (other citations omitted)); see also Pennington v. City of Huntsville, 261 F.3d 1262, 1267 (11th Cir.2001) (concluding that “ ‘a plaintiff employee may not establish that an employer’s proffered reason is pretextual merely by questioning the wisdom of the employer’s reason,’ ” as long as ‘the reason is one that might motivate a reasonable employer’ ”) (quoting Combs v. Plantation Patterns, 106 F.3d 1519, 1543 (11th Cir.1997)).

3. The Commission improperly shifted the burden to the City to prove lack of pretext

The Commission noted in its order that Chief Timoney testified that he did not promote Lt. Hervis due, in part, to his terrible performance at the FTAA briefing (which the Commission incorrectly characterized as a NET Commander meeting). However, the Commission concluded that because the City did not contradict the record evidence showing Lt. Hervis’ satisfactory evaluations, “we find the City of Miami did discriminate against Lt. Hervis because of his disability.”

The Commission impermissibly shifted the burden to the City to prove lack of pretext. Additionally, the Circuit Court departed from the essential requirements of law by affirming the Commission’s order where its finding regarding discrimination was based on the City’s failure to disprove discrimination, rather than on Lt. Hervis’ satisfaction of his burden to prove that the nondiscriminatory reasons articulated by Chief Timoney were false and his decision was based on disability discrimination. As this Court noted in Department of Children & Family Services v. Garcia, 911 So.2d 171, 172 (Fla. 3d DCA 2005), because the Department of Children and Family Services presented legitimate non-discriminatory evidence that Garcia had been discharged for misconduct, not gender discrimination, Garcia was required to make an “affirmative showing that the employer had used those grounds only as an excuse or ‘mere pretext’ for what was really motivated by gender discrimination.” Id. at 172 (citing Scholz v. RDV Sports, Inc., 710 So.2d 618, 624 (Fla. 5th DCA 1998) (holding that “[i]f the defendant responds by adequately explaining its rationale, the plaintiff, in order to prevail, must present evidence that the defendant’s proffered reasons are merely pretexts for discrimination.”) (emphasis added)); Gray v. Russell Corp., 681 So.2d 310, 312 (Fla. 1st DCA 1996) (finding that the plaintiffs have the burden to prove by a preponderance of the evidence that the employer’s articulated reasons for discharging the plaintiffs were pretextual); Morris v. Emory Clinic, Inc., 402 F.3d 1076, 1081 (11th Cir.2005) (holding that if the former employer offers a legitimate explanation for the adverse action, the plaintiff must show the explanation was a mere pretext); Rojas v. Florida, 285 F.3d 1339, 1342 (11th Cir.2002) (“Because [former employer] has met its burden of presenting a legitimate, nondiscriminatory reason for its act, [former employee] bears the burden of showing that the reasons offered were merely pretext.”) (emphasis added).

V. CONCLUSION

The Circuit Court, acting in its appellate capacity, failed to afford the City procedural due process when it affirmed the findings of the Commission without the benefit of the full transcript, through no fault of the City, and over its objection. The prejudice is obvious. The missing portions of the transcript are portions of Chief Timoney’s testimony and all of Deputy Chief Burden’s testimony. This ground alone is sufficient to grant the instant petition.

We additionally find, however, that cer-tiorari relief is warranted in this case because the Circuit Court departed from the essential requirements of law in affirming the Commission’s findings where Lt. Her-vís failed to offer any evidence that the reasons articulated by Chief Timoney in making his promotion decisions were false and that his decision not to promote Lt. Hervís was not legitimate and was a pretext; the Commission applied the wrong standard in evaluating Lt. Hervís’ claim; and the Commission improperly shifted the burden to the City to prove lack of pretext.

These errors are “grievous errors” resulting in a miscarriage of justice. The Circuit Court was left with an incomplete picture of the evidence presented; the City is being ordered to promote Lt. Her-vís to the next available NET Commander position and to grant Lt. Hervís the wage differential between his position as a Lieutenant and that of a Commander, retroactive to May 2007; and the City is required to reimburse Lt. Hervís for his attorney’s fees and to pay him the interest on his lost wages.

We therefore grant the petition and quash the Circuit Court’s decision. Upon remand, the parties are to be given the opportunity to obtain a complete transcript or a stipulated statement of the evidence. If neither can be produced then the City is entitled to a new evidentiary hearing. Upon the submission of either a stipulated statement of the evidence or a complete transcript of the prior evidentiary hearing, or of a new evidentiary hearing, the Circuit Court is reminded that it must perform a review that complies with McDonnell Douglas and the cases cited herein.

Petition granted; decision quashed; remanded with directions.

SALTER, J., concurs.

GERSTEN, J.,

concurring in result only.

I concur in the result the majority has reached. I agree that the Circuit Court denied the City procedural due process in reviewing an incomplete record, and for this reason, the City is entitled to relief. See Estes v. Sassano, 47 So.3d 383 (Fla. 1st DCA 2010); Cook v. City of Winter Haven Police Dep’t, 837 So.2d 492 (Fla. 2d DCA 2003).

I cannot join the majority’s opinion, however, with regard to the merits in this case. On the record provided, as outlined by the majority, neither this Court nor the Circuit Court can fully review the discrimination claim.

Accordingly, I concur in the result only.

      . The delay in scheduling a meeting with Lt. Hervis was because initially Chief Timoney attempted to find someone in the Department who was close to Lt. Hervis and was willing to approach Lt. Hervis and ask him what the problem was. When Chief Timoney was unable to find anyone willing to make the inquiry, he decided to wait until after the holidays (Christmas and New Year’s Eve) to schedule the meeting.

      . One of the grounds raised in this petition is the failure of the Commission to provide a complete record of the hearing, which will be discussed in detail in the analysis portion of this opinion.

      . The order requires retroactive pay to May 2007 despite the Board's finding that the City’s concerns regarding Lt. Hervís’ fitness to serve as a police officer were legitimate. Since Lt. Hervis was not cleared for duty until August 2008, retroactive application to May 2007, although not grounds for certiorari relief, was clearly error.


author: PER CURIAM. WARNER, J.,

text:
    STATE of Florida, Appellant, v. Charles HUNTER, Appellee.
    No. 4D09-2533.
    District Court of Appeal of Florida, Fourth District.
    July 6, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellee.
   PER CURIAM.

The state appeals a downward departure sentence granted by the trial court because of the defendant’s medical condition. It claims that competent substantial evidence did not support the trial court’s decision to depart, because the defendant proved neither amenability to treatment nor that treatment was unavailable in the prison system. We disagree and affirm.

A trial court’s decision to grant a downward departure is a two-step process. State v. Alonso, 31 So.3d 265, 266 (Fla. 4th DCA 2010). “First, the court must determine whether it can depart, i.e., whether there is a valid legal ground and adequate factual support for that ground in the case pending before it (step 1).” Banks v. State, 732 So.2d 1065, 1067 (Fla.1999) (emphasis in original). Second, where the requirements of the first step are met, the trial court “must determine whether it should depart, i.e., whether departure is indeed the best sentencing option for the defendant in the pending case.” Id. at 1068 (emphasis in original). While the second step is a judgment call, within the sound discretion of the sentencing court, which will be sustained on review absent an abuse of discretion, the first step is “a mixed question of law and fact and will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its ruling.” Id. at 1067-68. The defendant has the burden of proof to establish the facts that support a downward departure by a preponderance of the evidence. State v. Petringelo, 762 So.2d 965, 965 (Fla. 2d DCA 2000).

Section 921.0026 establishes that a trial court is prohibited from giving a downward departure from the lowest permissible sentence under the Criminal Punishment Code “unless there are circumstances or factors that reasonably justify the downward departure.” § 921.0026(1), Fla. Stat. (2008). The statute sets out mitigating factors, although the list is not exclusive. One statutory ground justifying a downward departure is when a defendant “requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” § 921.0026(2)(d), Fla. Stat. (2008). The requirement that the defendant be amenable to treatment is met by a showing that there is a “reasonable possibility” that such treatment will be successful. State v. Hillhouse, 708 So.2d 326, 327 (Fla. 2d DCA 1998).

Although in this case the issue is factually close, the trial court had competent evidence to support its conclusion of amenability to treatment when considering the totality of the defendant’s and the expert’s testimony. The expert testified that the defendant had a serious mental condition, pre-dating his additional substance abuse, which required intensive treatment which she described. While she noted that he had past failures in treatment, he had recently successfully completed a treatment plan. Moreover, the defendant himself told the court of some of his past difficulties which had made treatment difficult, including the fact that in jail he has been put in protective custody and could not get into the type of treatment programs which might have helped. While the defendant’s word alone that he is amenable to treatment is not enough, see State v. Bostick, 715 So.2d 298 (Fla. 4th DCA 1998), we think that the court could evaluate the testimony of the expert together ■with the testimony of the defendant and conclude that he was amenable to treatment.

In addition, the expert testified that the specialized treatment the defendant needed was not available in the prison system, a requirement for downward departure under section 921.0026(2)(d). See State v. Gatto, 979 So.2d 1232, 1238 (Fla. 4th DCA 2008). The state did not rebut the evidence presented.

Because the defendant offered competent substantial evidence of the elements of a statutory mitigating factor, the trial court did not err in concluding that it could depart. The remaining inquiry as to whether it should depart is a matter within the judge’s sound discretion.

Affirmed.

POLEN and STEVENSON, JJ., concur.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurring specially.

I agree that this case should be affirmed, but I write separately to question whether the statutory factor of need of specialized treatment requires the defendant to prove that the treatment he needs is not available in the prison system. Because the statute does not make this a requirement, I would conclude that it is not part of the defendant’s burden to prove this element in order for the trial court to determine that it can depart from the lowest permissible sentence under the Criminal Punishment Code.

Section 921.0026 provides mitigating circumstances “under which a departure from the lowest permissible sentence is reasonably justified.... ” These include: “(d) The defendant requires specialized treatment for a mental disorder that is unrelated to substance abuse or addiction or for a physical disability, and the defendant is amenable to treatment.” Although not stated in the statute, there is a significant body of case law holding that to receive a sentence pursuant to section 921.0026(2)(d), there must be evidence that the Department of Corrections (DOC) cannot provide the specialized treatment required. See State v. Gatto, 979 So.2d 1232, 1233 (Fla. 4th DCA 2008); State v. Green, 971 So.2d 146, 148 (Fla. 4th DCA 2007); State v. Scherber, 918 So.2d 423, 424-25 (Fla. 2d DCA 2006); State v. Wheeler, 891 So.2d 614, 616 (Fla. 2d DCA 2005); State v. Green, 890 So.2d 1283, 1286 (Fla. 2d DCA 2005); State v. Mann, 866 So.2d 179, 182 (Fla. 5th DCA 2004); State v. Tyrrell, 807 So.2d 122, 128 (Fla. 5th DCA 2002); State v. Thompson, 754 So.2d 126, 127 (Fla. 5th DCA 2000); State v. Abrams, 706 So.2d 903, 904 (Fla. 2d DCA 1998).

This requirement appears to have had its origins in Abrams, the first time we find it mentioned in case law. Abrams involved a downward departure sentence from a guidelines sentence, because the crime for which he was being sentenced occurred in 1997, prior to the enactment of the Criminal Punishment Code. However, the statute at the time included the same mitigating factor but no reference to the unavailability of treatment in prison. See § 921.0026(2)(d), Fla. Stat. (1997). In Abrams, the court said, without citation to any authority: “There is no evidence in the record, however, that Mr. Abrams requires specialized treatment for HIV that cannot be provided through the Department of Corrections.” 706 So.2d at 904. On the other hand, in State v. Spioch, 706 So.2d 32 (Fla. 5th DCA 1998), Judge Griffin accurately noted in discussing the same statute involved in Abrams, that

[A] lack of available treatment in prison is not required under the statute. Although illness is not a “get out of jail free card,” a treatable physical disability is one of the circumstances where the legislature has chosen to re-invest trial judges with discretion to vary from sentencing guidelines.

Id. at 36. Despite this conflict of opinion between the districts, the courts appear to have turned the one sentence in Abrams into an additional element for the defendant to prove in order to obtain a downward departure sentence under section 921.0026(2)(d), Florida Statutes. Our court likewise adopted this element as part of the defendant’s burden of proof, without any authority other than the citation of cases, which lead back to Abrams. See, e.g., Gatto, 979 So.2d at 1233; Green, 971 So.2d at 148.

Sentencing statutes must be strictly construed according to their letter. See Perkins v. State, 576 So.2d 1310, 1312 (Fla. 1991); Atterbury v. State, 991 So.2d 980, 981 (Fla. 4th DCA 2008). In sentencing, the trial judge should strictly follow the dictates of statutes. See Troutman v. State, 630 So.2d 528, 533 n. 6 (Fla.1993), superseded, by statute on other grounds as stated in Ritchie v. State, 670 So.2d 924 (Fla.1996). In addition, the rule of lenity requires that when language of a statute is susceptible of differing constructions, it must be construed most favorably to the accused. See § 775.021(1), Fla. Stat. (2008).

By requiring the defendant seeking downward departure from a criminal punishment code sentence to prove that services to treat his or her medical condition are unavailable in prison, the courts have placed an additional burden on the defendant which is not required by the Legislature. In fact, nothing in the legislative history even hints that in order to justify a downward departure on this ground, services must be unavailable in prison to treat the condition. While that might be what the Legislature intended, I think it should state its intentions clearly so that no one has to guess as to the requirements in punishment statutes.

The burden of proving a negative, i.e. that no treatment options exist in the prison system, is problematic for the defendant and defense attorneys. For instance, in this case the expert testified that she had been unable to reach Department of Corrections officials to have them explain their treatment procedures in the prison system. Instead she relied on other information, including her work with former inmates and the general protocols for treating mental illness, as well as other information which might be considered hearsay.

The prison system is a very large institution with very large medical facilities. To track down all of the available treatment in the system may be a daunting and very expensive task, adding to an already overburdened public defender system. On the other hand, the information on availability of treatment is readily available to the state. I think the state is in the better position to offer such proof in opposition to a downward departure.

Nevertheless, without any legislative guidance as to what is meant by “specialized treatment,” I would hold that the defendant met the first step in seeking the downward departure by proving amenability to treatment and that the treatment he needed was indeed “specialized,” requiring various special therapies. Section 921.0026(2)(d) does not require the defendant to offer proof that the prison system does not provide the specialized treatment that the defendant requires. Since the state offered no proof on either of these aspects, the trial court did not err in finding that it could depart.

      . Furthermore, the Fifth District’s own case law is internally inconsistent. The Fifth District never receded from Spioch, but subsequent Fifth District opinions have required the defendant to prove that the Department cannot provide the specialized treatment required. See Mann, 866 So.2d at 182; Tyrrell, 807 So.2d at 128; Thompson, 754 So.2d at 127.


author: GERBER, J.

text:
    EAST COAST KARATE STUDIOS, INC., d/b/a Lavallee’s USA Black Belt Champions, a Florida corporation, Appellant, v. LIFESTYLE MARTIAL ARTS, LLC, a Florida corporation, Doreen Yaffa and Jeffrey Wilson, Appellees.
    Nos. 4D10-3061, 4D10-3877.
    District Court of Appeal of Florida, Fourth District.
    July 6, 2011.
    Rehearing Denied Aug. 5, 2011.
    Brett J. Schneider, Lori Adelson, and Laura K. Wendell of Weiss Serota Helf-man Pastoriza Cole & Boniske, P.L., Fort Lauderdale, for appellant.
    Joel M. Weissman of Joel M. Weissman, P.A., West Palm Beach, for appellees.
   GERBER, J.

The issue in this appeal is whether a mandatory forum selection clause contained in a non-compete agreement may be applied to non-signatory parties who are alleged to have interfered with that agreement. We conclude that the mandatory forum selection clause applies to the non-signatories here because: (1) there exists a close relationship between the non-signatories and the signatory who is the subject of the agreement; (2) the non-signatories’ interests are derivative of the signatory’s interests; and (3) the claims involving the non-signatories arise directly out of the agreement.

The facts are these. A martial arts business hired an employee to work in Broward County. The employee signed a non-compete agreement providing that for two years from the date of termination of his employment, he would not engage in the same business within Broward County or within a twenty-five mile radius of Bro-ward County. The agreement also contained a mandatory forum selection clause:

[Employer] and Employee acknowledge and agree that the 17th Judicial [C]ircuit ... in and for Broward County[,] Florida, shall be the venue and exclusive proper forum in which to adjudicate any case or controversy arising either directly or indirectly, under or in connection with this Agreement in the court. Employee agrees not to contest or challenge the jurisdiction or venue of the court....

The employee later resigned and immediately began working for a martial arts business in Delray Beach, which is within a twenty-five mile radius of Broward County. The new employer’s managing member is the employee’s wife. The employee, his wife, and his new employer then filed a declaratory judgment action in Palm Beach County. They sought a determination that the employee’s non-compete agreement with his former employer was unenforceable.

The former employer moved to transfer venue of the action from Palm Beach County to Broward County. The former employer relied on the non-compete agreement’s mandatory forum selection clause. The employee, his wife, and his new employer opposed the motion. They argued that: the employee and his wife resided in Palm Beach County; the new employer maintained its office for the transaction of its customary business in Palm Beach County; and the employee’s wife and his new employer were not subject to the mandatory forum selection clause because they were not signatories to the non-compete agreement.

Before that motion could be heard, the former employer filed an action in Bro-ward County against the employee, his wife, and the new employer. The former employer alleged, in sum, that the employee breached the non-compete agreement and that the employee’s wife and the new employer tortiously interfered with the agreement. The employee, his wife, and his new employer moved to transfer venue of that action from Broward County to Palm Beach County. They raised the same arguments set forth above. They also argued that the former employer’s causes of action arose in Palm Beach County, and that all actions should be in one county to avoid multiple lawsuits and the potential for conflicting results. The former employer opposed that motion by relying on the mandatory forum selection clause.

The Palm Beach County circuit court denied the motion to transfer venue of the declaratory judgment action from Palm Beach County to Broward County. Then the Broward County circuit court granted the motion to transfer venue of the breach of contract and tortious interference-related actions from Broward County to Palm Beach County. The courts’ orders were based primarily on the same two grounds: (1) the causes of action arose in Palm Beach County where the employee and his wife resided and where his new employer maintained its office for the transaction of its customary business; and (2) the employee’s wife and his new employer were not signatories to the non-compete agreement. In support of the second ground, the courts relied on A-Ryan Staffing Solutions Inc. v. Ace Staffing Management Unlimited, Inc., 917 So.2d 1000 (Fla. 5th DCA 2005).

The employer appealed both orders, and we consolidated the appeals. Because the orders are based on the circuit courts’ legal conclusions, our review is de novo. See Vrchota Corp. v. Kelly, 42 So.3d 319, 321 (Fla. 4th DCA 2010) (a trial court’s legal conclusions on a motion to transfer venue are reviewed de novo).

We reverse both orders. The forum selection clause clearly is mandatory upon the employee regardless of his residence or where the causes of action arose. See Golf Scoring Sys. Unlimited, Inc. v. Remedio, 877 So.2d 827, 829 (Fla. 4th DCA 2004) (“[A] forum selection clause is considered mandatory where it requires that a particular forum be the exclusive jurisdiction for litigation concerning the contract.”) (citation and internal quotations omitted). Thus, the issue is whether the mandatory forum selection clause applies to the employee’s wife and his new employer even though they are non-signatories to the non-compete agreement which contains the clause.

We conclude that the forum selection clause applies to the employee’s wife and his new employer. As the fifth district stated in Deloitte & Touche v. Gencor Industries, Inc., 929 So.2d 678 (Fla. 5th DCA 2006):

Florida courts have enforced contract terms, including forum selection clauses, against non-signatories. See, e.g., World Vacation Travel, S.A. v. Brooker, 799 So.2d 410, 412 (Fla. 3d DCA 2001) (forum selection clause against non-signatory proper where the claims [arise] directly out of the agreement and the commercial relationship of the parties); Tuttle’s Design-Build, Inc. v. Florida Fancy, Inc., 604 So.2d 873, 873-74 (Fla. 2d DCA 1992) (recognizing that a reasonable forum selection clause would be enforced against a non-signatory). This is particularly true where, as here, there exists a close relationship between the non-signatory and signatory and the interests of the non-signatory are derivative of the interests of the signatory. See, e.g., XR Co. v. Block & Balestri, P.C., 44 F.Supp.2d 1296, 1299 (S.D.Fla. 1999) (enforcing forum selection clause against sole shareholder of contracting corporation where the shareholder’s interests in the contract were derivative of the contracting party and the contract inured to the non-signatory’s benefit)....

Id. at 683 (footnote omitted). Cf. Citigroup Inc. v. Caputo, 957 So.2d 98, 102 (Fla. 4th DCA 2007) (“[A] non-signatory may invoke a signatory’s forum selection clause where the non-signatory and signatory are related.”) (citing World Vacation Travel).

The factors which the fifth district identified in Deloitte apply here. First, there exists a close relationship between the employee, his wife, and his new employer. Second, the interests of the employee’s wife and his new employer are derivative of the employee’s interests because they all stem from whether the non-compete agreement is enforceable. Third, the claims involving the employee’s wife and his new employer arise directly out of the non-compete agreement.

The case upon which the circuit courts primarily relied, A-Ryan, is not applicable. That case involved a pet-missive forum selection clause. See A-Ryan, 917 So.2d at 1001 (“This Agreement shall be governed in accordance with the laws of the State of Florida and venue for all proceedings related hereto is agreed to be in Lake County, Florida.”) (emphasis added); Golf Scoring, 877 So.2d at 829 (“Generally, a forum selection clause ‘will be considered permissive where it lacks words of exclusivity.’ ”) (citation omitted). The fifth district apparently recognized that the forum selection clause in A-Ryan was permissive because the court decided that case only upon its analysis of the statutory grounds set out in chapter 47 of the Florida Statutes without further discussing the forum selection clause. Id. at 1002-05. We surmise that if the forum selection clause in A-Ryan had been mandatory, then the fifth district’s decision may have been different based on that court’s precedent. See Hughes Supply, Inc. v. Lupton, 487 So.2d 429, 431 (Fla. 5th DCA 1986) (“A contractual waiver of venue privileges encompasses the ground of convenience as well as other statutory grounds set out in Chapter 47.”).

The employee, his wife, and his new employer argue that our opinions in Leatherwood v. Cardservice International, Inc., 885 So.2d 997 (Fla. 4th DCA 2004), and Drucker v. Duvall, 61 So.3d 468 (Fla. 4th DCA 2011), are applicable to this case. We disagree. In Leatherwood, the circuit court granted a defendant’s motion to dismiss based on a forum selection clause in a contract. 885 So.2d at 998. We reversed, reasoning that the plaintiffs cause of action did not involve matters relating to the contract. Id. at 998-99. Similarly, in Drucker, the circuit court denied a motion to transfer venue based on a forum selection clause in a contract. 61 So.3d 468 at 470, 471. We reversed, reasoning that the plaintiffs causes of action arose from a separate contract, not the contract which included the forum selection clause. Id. at 471, 472. Here, however, all of the causes of action in both suits arise from the non-compete agreement which contains the forum selection clause.

The employee, his wife, and his new employer argue that even if we were to conclude that the employee’s wife and his new employer were subject to the forum selection clause, we should decline to enforce the clause because it is unreasonable and overreaching as to the employee. Specifically, they argue that the former employer knowingly made fraudulent misrepresentations to the employee to procure his signature upon the non-compete agreement. However, “when one ‘seeks to void a forum selection clause on the basis of fraud, it must be demonstrated that the clause itself is the product of fraud.’ ” Bombardier Capital Inc. v. Progressive Mktg. Grp., Inc., 801 So.2d 131, 135 (Fla. 4th DCA 2001) (citation omitted). Here, the employee, his wife, and his new employer have not demonstrated that the forum selection clause itself was the product of fraud. They also have not shown that “the contractual forum will be so gravely difficult and inconvenient that [they] will for all practical purposes be deprived of [their] day in court.” Manrique v. Fabbri, 493 So.2d 437, 440 n. 4 (Fla.1986) (quoting M/S Bremen v. Zapata Off-Shore Co., 407 U.S. 1, 18, 92 S.Ct. 1907, 32 L.Ed.2d 513 (1972)).

Based on the foregoing, we reverse the orders on appeal and remand for the Palm Beach County circuit court to transfer venue of both actions to the Broward County circuit court.

Reversed and remanded.

STEVENSON and TAYLOR, JJ„ concur.


author: EMAS, J.

text:
    Elsa HINESTROSA and TTI Export, Inc., Appellants, v. Richard J. DIAZ, Esquire and Richard J. Diaz, P.A., Appellees.
    No. 3D09-3247.
    District Court of Appeal of Florida, Third District.
    July 6, 2011.
    Oscar Syger, Pembroke Pines, for appellants.
    Cole Scott <& Kisssane and Scott A. Bassman and Jennifer V. Ruiz, Miami, for appellees.
    Before WELLS, C.J., and SHEPHERD and EMAS, JJ.
   EMAS, J.

Appellants Elsa Hinestrosa and TTI Export, Inc., appeal the trial court’s order dismissing with prejudice count one (legal malpractice) and count two (breach of fiduciary duty) of appellants’ complaint.

These two claims arise from an earlier case in which appellees were retained to represent appellants in a federal proceeding regarding the seizure and forfeiture of $141,535.61. Appellants’ complaint alleged that the underlying forfeiture proceeding had terminated, and maintained this assertion throughout several years of litigation in the instant action. Appellees maintained that the underlying forfeiture proceeding had not yet terminated, and therefore these two causes of action had not yet accrued. Appellees filed k motion for summary judgment and sought dismissal with prejudice of these claims.

At the hearing on the motion, appellants conceded that in fact the underlying forfeiture proceeding had not yet terminated. The trial court granted Appellees’ motion and dismissed counts one and two with prejudice.

While the trial court did not err in dismissing these counts (because the causes of action had not yet accrued), it did err in dismissing the counts with prejudice.

Affirmed in part, reversed in part, and remanded with instructions to enter dismissal of counts one and two without prejudice.

      . "In claims for legal malpractice, Florida law is well-settled that redressable harm or injury is not established until the underlying legal proceeding giving rise to the malpractice claim has been finalized or completed by appellate review.” Clemente v. Freshman, 760 So.2d 1059, 1061 (Fla. 3d DCA 2000).

      . Appellants concede that count two (breach of fiduciary duty) is based on the same allegations as count one and would also require a termination of the underlying proceeding.


text:
    Rafael L. MENENDEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-410.
    District Court of Appeal of Florida, Third District.
    July 6, 2011.
    Sui Chung, Immigration Law and Litigation Group; Michael Vastine, Director, Immigration Clinic, St. Thomas University School of Law, Miami, for appellant.
    Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, Assistant Attorney General, for appellee.
    Before ROTHENBERG and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    Mario DESCHAM, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1409.
    District Court of Appeal of Florida, Third District.
    July 6, 2011.
    Mario Descham, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ and SHEPHERD, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    Christopher COLARUSSO, Appellant, v. Brenna Myers COLARUSSO, Appellee.
    No. 3D09-2633.
    District Court of Appeal of Florida, Third District.
    July 6, 2011.
    Deborah Marks, Miami, for appellant.
    Heller and Chames, and Deborah S. Chames, Miami, for appellee.
    Before WELLS, C.J., and SHEPHERD and EMAS, JJ.
   PER CURIAM.

Affirmed. See Fla. R. Jud. Admin. 2.330(e) (“A motion to disqualify shall be filed within a reasonable time not to exceed 10 days after discovery of the facts constituting the grounds for the motion ...”). See also Clements v. Banks, 159 So.2d 892 (Fla. 3d DCA 1964); City of Coral Gables v. Brasher, 132 So.2d 442 (Fla. 3d DCA 1961) (stating issue of trial court’s alleged prejudice should have been raised and preserved below and could not properly be raised for first time on appeal).