text:
    FLORIDA INSURANCE GUARANTY ASSOCIATION, Appellant, v. B.T. OF SUNRISE CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 4D09-5300.
    District Court of Appeal of Florida, Fourth District.
    Sept. 22, 2010.
    Rehearing Denied Nov. 29, 2010.

      Scott A. Cole and Erin K. Loeb of Cole Scott & Kissane, P.A., Miami, for appellant.
    Kenneth R. Duboff of Kenneth R. Du-boff, P.A., North Miami, for appellee.
   KEYSER, JANIS BRUSTARES, Associate Judge.

Florida Insurance Guaranty Association (FIGA) appeals a non-final order granting B.T. of Sunrise Condominium Association’s Motion for Summary Judgment and denying FIGA’s Cross-Motion for Summary Judgment. We affirm because the trial court properly found that there are seven separate covered claims involved in this action within the meaning of section 631.57(2), Florida Statutes (2008), and properly ordered seven separate appraisals in accordance with the terms of the insurance policy and applicable law.

Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 131 (Fla.2000). An order compelling an appraisal under an insurance policy is reviewed de novo. Sunshine State Ins. v. Corridori, 28 So.3d 129 (Fla. 4th DCA 2010); Fla. Ins. Guar. Ass’n. v. Castilla, 18 So.3d 703, 704 (Fla. 4th DCA 2009).

The parties do not dispute the following salient facts. B.T. of Sunrise Condominium Association, Inc. (Sunrise) had an insurance policy with Southern Family Insurance Company (SFIC) covering a period from February 3, 2005, to February 3, 2006. The declarations page indicates that the policy covers seven buildings, the total limits are for $2,906,719, and the total premium is $17,518. The policy indicates a deductible of $2,500 for each building.

On October 24, 2005, all seven buildings at Sunrise were damaged by Hurricane Wilma. Sunrise filed a claim with SFIC for each of the seven buildings. SFIC assigned a single claim number, 110004088, and added a suffix for each building (giving them numbers 1-7). SFIC subsequently issued seven separate checks totaling $268,994.54, and divided the policy limit between the seven buildings, depending on the valuation of each building and the damage attributable to each building.

When SFIC became insolvent, FIGA took over the obligations of SFIC pursuant to section 631.57(l)(a)l., Florida Statutes (2008). Sunrise was not satisfied with the amounts paid by SFIC and requested supplemental payments from FIGA. FIGA tendered $299,900, which represented the statutory cap of $300,000 that FIGA was required to pay on each covered claim pursuant to section 631.57, Florida Statutes (2008), less the $100 FIGA deductible. FIGA took the position that the claims constituted a lump sum obligation for only one claim under the SFIC policy and that FIGA had only one $300,000 limit of liability under section 631.57(l)(a)2., Florida Statutes. Sunrise remained dissatisfied with the payment and demanded appraisal, which was refused by FIGA. Thereafter, Sunrise filed a Petition for Declaratory Relief, seeking a determination by the trial court that Sunrise was entitled to $300,000 on each of the seven properties pursuant to the insurance policy.

The parties filed cross-motions for summary judgment and the trial court ruled in favor of Sunrise, ordering FIGA to select an appraiser for each of the seven separately covered claims. FIGA appealed, and this court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.130(a)(3)(C)(iv), which allows review of orders that determine entitlement to an appraisal under an insurance policy. This case presents an issue of first impression, as both parties agree there is no case law interpreting section 631.57(l)(a)2 in the context raised in this appeal.

Section 631.57 entitled “Powers and duties of the association” provides, in pertinent part:

(1) The association shall:
(a) Be obligated to the extent of the covered claims existing:
2. The obligation under subparagraph 1. includes only the amount of each covered claim which is in excess of $100 and is less than $300,000, ...

Section 631.54(3) defines a “covered claim” as:

“Covered claim” means an unpaid claim, including one of unearned premiums, which arises out of, and is within the coverage, and not in excess of, the applicable limits of an insurance policy to which this part applies, issued by an insurer, if such insurer becomes an insolvent insurer. ...

(Emphasis added).

Section 631.55(1) mandated the creation of FIGA, and section 631.51(1) provides that its purpose is to “[p]rovide a mechanism for the payment of covered claims under certain insurance policies to avoid excessive delay in payment and to avoid financial loss to claimants or policyholders because of the insolvency of an insurer.” FIGA has the same obligations as SFIC, the insolvent insurer, and FIGA’s responsibility is directly linked to SFIC’s contractual obligations. See Fla. Ins. Guar. Ass’n. v. Johnson, 654 So.2d 239 (Fla. 4th DCA 1995). Johnson acknowledges that “[i]t is established law in Florida that after an insurer becomes insolvent, FIGA ‘stands in the shoes’ of the insolvent insurer, and, pursuant to section 631.57(3)(b), Florida Statutes (1991), will ‘be deemed the insurer to the extent of its obligations on the covered claims, and, to such extent, shall have all rights, duties, and obligations of the insolvent insurer as if the insurer had not become insolvent.’ ” Id. at 239-40 (quoting Peoples v. Fla. Ins. Guar. Ass’n, 313 So.2d 40, 41 (Fla. 2d DCA 1975)) (emphasis in Johnson).

The court finds that there is a difference between a policy which contains an “aggregate” value for several insured buildings, and Sunrise’s policy with SFIC which had separate schedules for each of the seven buildings. Under the applicable policy, Sunrise could not apply nor transfer the limit of insurance coverage for one building to another building which might have been under-valued and, thus, under-insured. If FIGA’s position were correct, even if only one building had been damaged by the hurricane, Sunrise would have been entitled to the total aggregate policy limit of insurance coverage for all seven buildings of $2,906,719. We find that such a construction was not intended by the SFIC policy.

The Indiana case of Anderson Mattress Co. v. First State Insurance Co., 617 N.E.2d 932 (Ind.App. 5th Dist.1993), is instructive and supports our finding that each separately scheduled building is covered by a separate contract of insurance with its own recoverable amount. In Anderson Mattress, the Anderson company manufactured mattresses and obtained an insurance policy from First State covering its warehouses. The application for insurance requested blanket coverage, not scheduled coverage. An Anderson employee called the agent to make sure it was blanket coverage. Later, the insurance company contended that it had provided specific coverage, not blanket coverage, and limited recovery for each scheduled piece of property to the value assigned on the schedule, paying Anderson $1.3 million rather than $1.8 million.

The trial court denied First State’s motion for summary judgment. The Fifth District of Indiana determined that the policy provided specific coverage, but that there were fact questions regarding whether the brokers breached their duty to procure blanket coverage. Anderson discusses the difference between blanket and specific coverage, noting that First State quoted 15 Couch on Insurance 2d 54:83 for the proposition that a schedule of property values in an insurance policy renders the policy coverage specific and not blanket:

A distinction must be made between a policy which speaks in terms of a lump-sum obligation or value of the property and one which separately schedules different items of property. In the latter case, each separately treated item of property is in effect covered by a separate contract of insurance and the amount recoverable with respect to a loss affecting such property is determined independently of other items of property.

617 N.E.2d at 935.

Upon application of Anderson, the SFIC policy, in the present case, provided separate contracts of insurance since it spoke in terms of separately scheduled buildings. The schedule of property values, which was included in the SFIC insurance policy, made the coverage specific, not blanket. Since each building was separately listed on the declarations page, with a separate covered amount and separate premiums listed for each building, each of these seven separate claims should have its own statutory cap of $300,000.

The majority of the cases relied on by FIGA are distinguishable because these cases address insurance policy liability coverage for wrongful death and derivative tort claims, rather than first party property damage claims. See Allstate Ins. Co. v. Clohessy, 32 F.Supp.2d 1333, 1337 (M.D.Fla.1998) (holding that “Florida courts have uniformly held that loss of consortium and wrongful death survivor actions are subject to the per-person limit of liability”); Fla. Ins. Guar. Ass’n, Inc. v. Cole, 573 So.2d 868, 870-71 (Fla. 2d DCA 1990) (holding survivors entitled only to per person coverage since wrongful death claim was only one claim); Mackoul v. Fid. & Cas. Co. of N.Y., 402 So.2d 1259, 1260 (Fla. 1st DCA 1981) (finding that the limits of liability were not affected by the number of causes of action that might accrue from the bodily injury of a single person); Biondino v. S. Farm Bureau Cas. Ins. Co., 319 So.2d 152, 154 (Fla. 2d DCA 1975) (finding insurer limited its liability to each person for damages because of bodily injury sustained by one person).

We conclude that the lower court properly construed the applicable FIGA statutory language in determining that Sunrise is not limited to FIGA’s one lump sum aggregate claim payment of $300,000 for the total damages caused to the seven individually scheduled buildings and is entitled to the policy’s mandated appraisal process. The order granting Petitioner’s Motion for Summary Judgment and denying Respondent’s Motion for Summary Judgment is hereby affirmed.

GROSS, C.J., and CIKLIN, J., concur.

      . The buildings were listed separately in the "Description of Premises,” and the coverage and premiums are separate for each building. Building 1 is insured for $208,048, with a premium of $1,282; building 2 is insured for $725,483, with a premium of $4,266; building 3 is insured for $609,926, with a premium of $3,587; building 4 is insured for $341,349, with a premium of $1,990; building 5 is insured for $341,349, with a premium of $1,990; building 6 is insured for $472,514, with a premium of $2,755; building 7 is insured for $208,046, with a premium of $1,282.


source: Caselaw Access Project

author: WHATLEY, Judge.

license: Public Domain

text:
    Warren TENSLEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-724.
    District Court of Appeal of Florida, Second District.
    Sept. 24, 2010.
    Rehearing Denied Nov. 18, 2010.
    Warren Tensley, pro se.
   WHATLEY, Judge.

Warren Tensley challenges the order summarily denying his motion for postcon-viction relief. We affirm without comment the postconviction court’s denial of Tens-ley’s motion in all respects except one.

In his memorandum of law in support of his amended motion for postconviction relief, Tensley argued that the record does not reveal a tactical reason for defense counsel to have allowed trial to occur after the 175-day speedy trial period expired. See Fla. R.Crim. P. 3.191(a). However, he failed to allege prejudice from trial counsel’s conduct by alleging “ ‘that the State could not have brought him to trial within the recapture period,’ ” Smith v. State, 988 So.2d 693, 694 (Fla. 2d DCA 2008) (quoting Dexter v. State, 837 So.2d 595, 596 (Fla. 2d DCA 2003)). Consequently, this ground is legally insufficient. Smith, 988 So.2d at 694. Under such circumstances, pursuant to Spera v. State, 971 So.2d 754 (Fla.2007), this court remands “for the movant to be given the chance to amend if the movant c[an] allege that the State could not have brought him to trial within the recapture period.” Norwood, v. State, 39 So.3d 336, 337 (Fla. 2d DCA 2010). Therefore, we reverse the summary denial of the last ground addressed by the postconviction court in its order and remand with instructions to strike that claim with leave to amend within a specific period of time in accordance with Spera.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and NORTHCUTT, JJ., Concur.


author: PER CURIAM.

text:
    Leon SHIPMAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4129.
    District Court of Appeal of Florida, First District.
    Sept. 28, 2010.
    Rehearing Denied Nov. 8, 2010.
    Leon Shipman, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Fla. RApp. P. 9.141(c)(4)(B).

BENTON, THOMAS, and ROWE, JJ., concur.


text:
    Richard D. WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-4345.
    District Court of Appeal of Florida, First District.
    Sept. 29, 2010.
    Rehearing Denied Nov. 18, 2010.
    Richard D. Williams, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, ROBERTS, and WETHERELL, JJ., concur.


text:
    Rony MARC, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-2964.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2010.
    Rehearing Denied Nov. 22, 2010.
    Rony Marc, Perry, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm the circuit court’s denial of the appellant’s motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We further direct that a certified copy of this opinion be forwarded to the appropriate institution or facility for disciplinary procedures against the appellant. We write to address the abusiveness of the appellant’s motion.

The appellant’s fifty-two page motion purported to raise four grounds for relief. The appellant, however, divided two of the grounds into subparts and then into more subparts. In some subparts, every sentence raised another claim. We conservatively estimate that the appellant raised at least thirty-five separate claims.

At the evidentiary hearing on the motion, the attorney appointed to represent the appellant could not address all of the claims. The appellant testified that a fellow inmate prepared the motion for him. Ultimately, the appellant did not carry his burden of proof at the hearing. See Pennington v. State, 34 So.3d 151, 154 (Fla. 1st DCA 2010) (the defendant has the burden of proof at an evidentiary hearing on a rule 3.850 motion). The circuit court denied the motion in a twenty-two page order. The appellant challenges the denial of each of his claims.

We have considered each of the appellant’s claims and find that none of the claims, alone or together, has merit. The motion raised so many frivolous claims that addressing them in this opinion would be an unworthy use of our resources. In short, the motion was a clear abuse of the postconviction relief process.

This is not the first time we have seen such a motion or have written of this problem. See, e.g., Hedrick v. State, 6 So.3d 688 (Fla. 4th DCA 2009). Postcon-viction abuse damages the justice system and impedes remedies for those whose cases merit relief. As we stated in Hed-rick, “[a] legitimate claim that may merit relief is more likely to be overlooked if buried within a forest of frivolous claims.” Id. at 691; see also Jones v. State, 449 So.2d 253, 258-59 (Fla.1984) (“The right of self-representation is not a license to abuse the dignity of the courtroom. Neither is it a license not to comply with relevant rules of procedural and substantive law.”) (citation omitted).

We remind circuit courts that, when faced with an excessive motion, they may dismiss the motion with leave to amend or issue an order to show cause why the motion should not be dismissed without prejudice. Schwenn v. State, 958 So.2d 531, 533 (Fla. 4th DCA 2007). Courts also may avail themselves of the remedy provided in section 944.279(1), Florida Statutes:

At any time, and upon its own motion or on motion of a party, a court may conduct an inquiry into whether any action or appeal brought by a prisoner was brought in good faith. A prisoner who is found by a court ... to have brought a frivolous or malicious collateral criminal proceeding, which is filed after September 30, 2004, ... is subject to disciplinary procedures pursuant to the rules of the Department of Corrections. The court shall issue a written finding and direct that a certified copy be forwarded to the appropriate institution or facility for disciplinary procedures pursuant to the rules of the department as provided in s. 944.09.

§ 944.279(1), Fla. Stat. (2009). Possible sanctions include the forfeiture of gain-time. See § 944.28(2)(a), Fla. Stat. (2009) (“All or any part of the gain-time earned by a prisoner ... is subject to forfeiture if such prisoner ... is found by a court to have brought a frivolous suit, action, claim, proceeding, or appeal in any court....”). Sanctions also may be levied upon inmate law clerks who prepare frivolous pleadings. See generally Fla. Admin. Code R. 33-501.301(7) (2009).

In short, given the possibility of sanctions, prisoners should “stop and think” before filing frivolous collateral criminal challenges or appeals. See Spencer v. Fla. Dep’t of Corr., 823 So.2d 752, 756 (Fla.2002) (“Any effect these statutes have to cause an inmate to ‘stop and think’ before filing a frivolous lawsuit is not unconstitutional.”).

Here, because we find that the appellant’s motion and this appeal were frivolous, we direct that a certified copy of this opinion be forwarded to the appropriate institution or facility for disciplinary procedures.

We also suggest that the Florida Bar’s criminal rules committee and our supreme court consider amending Florida Rule of Criminal Procedure 3.850, and that the Department of Corrections consider amending Florida Administrative Code Rule 33—501.301(7)(i)(2), to require a post-conviction movant to identify the person who prepared the motion on the movant’s behalf so that the Department may discern and sanction any other person responsible for filing frivolous motions.

Affirmed.

TAYLOR, HAZOURI and GERBER, JJ., concur.


text:
    Matthew BENT, Petitioner, v. STATE of Florida, and Al Lamberti, as Sheriff of Broward County, and the Sun-Sentinel, as intervenor, Respondents. Jesus Mendez, Petitioner, v. State of Florida, and Al Lamberti, as Sheriff of Broward County, and the Sun-Sentinel, as intervenor, Respondents.
    Nos. 4D10-2726, 4D10-2727.
    District Court of Appeal of Florida, Fourth District.
    Sept. 29, 2010.
    Rehearing Denied Nov. 22, 2010.

      Howard Finkelstein, Public Defender and Diane M. Cuddihy, Assistant Public Defender, Fort Lauderdale, for Petitioner-Matthew Bent (4D09-2726).
    Philip J. Massa, Regional Counsel, and Melanie L. Casper, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for Petitioner-Jesus Mendez (4D09-2727).
    Deanna K. Shullman, James B. Lake, and Rachel E. Fugate of Thomas & Lo-cicero PL, Lake Worth, and David S. Bra-low, New York, for respondent, Sun-Sentinel Publishing Company.
    Frank R. Brady of Brady & Brady, P.A., Boca Raton, for interested party Valerie J. Brewer.
   PER CURIAM.

Matthew Bent and Jesus Mendez are minors charged as adults with attempted second degree murder in a highly publicized case in Broward County. They have each petitioned this court for a writ of certiorari seeking review of an order allowing a local newspaper, the Sun-Sentinel, access to recordings of phone conversations from the jail between the defendants and their family members and other third parties, excluding counsel. We have consolidated the cases for review and grant the petitions.

The newspaper sent a public records request to the Broward Sheriffs Office (BSO), asking for recordings of all the defendants’ phone conversations since their arrests, with the exception of calls made to their attorneys. In response, defendants moved the trial court for a protective order, arguing that the recorded calls are not subject to a public records request. They also argued that releasing the calls would prejudice their defense by increasing public scrutiny on issues collateral to the case and would violate their rights to due process and a fair trial.

After hearing argument from defense counsel, the newspaper, and BSO, and after allowing the attorneys to file memoran-da of law, the trial court granted the motion for a protective order in part. Citing the definition of a public record in section 119.011(12), Florida Statutes, the court concluded that although BSO is not required to record the phone calls, it does so for legitimate security reasons and doing so makes the recordings a public record. The court concluded an exemption to the records request may apply if recordings include any confessions. § 119.071(2)(e), Fla. Stat. (2009). The court directed BSO to listen to the tapes, and if any admissions were made on them, not to release them; BSO was ordered to release any other recordings to the newspaper.

We agree with petitioners that the audio recordings of the defendants’ phone calls are not public records subject to release.

Article I, section 24 of the Florida Constitution gives every person “the right to inspect or copy any public record made or received in connection with the official business of any public body, officer, or employee of the state, or persons acting on their behalf, except with respect to records exempted pursuant to this section or specifically made confidential by this Constitution.” Section 119.011(12), Florida Statutes defines public records as “all documents, papers, letters, maps, books, tapes, photographs, films, sound recordings, data processing software, or other material, regardless of the physical form, characteristics, or means of transmission, made or received pursuant to law or ordinance or in connection with the transaction of official business by any agency.” (emphasis added).

The determination of whether something is a public record is a question of law subject to de novo review and is determined on a case-by-case basis. State v. City of Clearwater, 868 So.2d 149, 151 (Fla.2003); Shevin v. Byron, Harless, Schaffer, Reid & Assocs., Inc., 379 So.2d 633, 640 (Fla.1980); Rogers v. Hood, 906 So.2d 1220 (Fla. 1st DCA 2005).

The Florida Supreme Court has repeatedly rejected the notion that “almost everything generated or received by a public agency” is a public record. City of Clearwater, 863 So.2d at 154 (quoting Shevin, 379 So.2d at 640 and holding that personal e-mails transmitted or received by public employees on government-owned computer systems were not public records). Although the Legislature has broadened the definition, “public records” still refers to “records-that is, materials that have been prepared with the intent of perpetuating or formalizing knowledge” in connection with the transaction of official agency business. City of Clearwater, 863 So.2d at 154 (quoting Shevin). “The determining factor is the nature of the record, not its physical location.” 863 So.2d at 154. See also Right v. Dugger, 574 So.2d 1066, 1068-69 (Fla.1990) (holding that defense counsel’s files in possession of the Office of the Capital Collateral Representative were not subject to public disclosure even though the records were received in connection with the transaction of official business because these are the private records of the defendant); Media General Operation, Inc. v. Feeney, 849 So.2d 3 (Fla. 1st DCA 2003) (agreeing that cellular phone records of private calls of staff employees did not constitute official business of the Florida House of Representatives).

As we have previously recognized, the purpose of the Public Records Act “is to open public records to allow Florida’s citizens to discover the actions of their government.” Christy v. Palm Beach Cnty. Sheriff's Office, 698 So.2d 1365, 1366 (Fla. 4th DCA 1997).

The newspaper argues the Public Records Act should be liberally construed in favor of access. Lightbourne v. McCollum, 969 So.2d 326, 332-33 (Fla.2007); Dade Aviation Consultants v. Knight Ridder, Inc., 800 So.2d 302, 304 (Fla. 3d DCA 2001). However, none of the cases cited by the newspaper involve any situation similar to the instant cases where criminal defendants are seeking a protective order in response to a public records request in order to ensure a fair trial and minimize prejudicial pretrial publicity. The “records” in these cases are recordings of phone calls minors made to family members and other third parties while the minors were in jail awaiting prosecution. General presumptions in favor of openness, which were intended to allow public oversight of government business, do not apply in this context.

Here, the phone calls themselves are clearly not public records. The issue before us is whether BSO’s recording of the calls converts them to public records. Although monitoring of inmate calls for security purposes is related to official business of the jail, maintaining recordings of purely personal calls is not. The recordings at issue are personal phone calls, as opposed to records generated by BSO, such as mail logs or logs of phone numbers called. See City of Clearwater, 863 So.2d at 155. Unless the contents of the call involve a crime or security risk, “perpetuating” or maintaining these sound recordings has no connection to any official business of BSO. BSO is not using the content of petitioners’ calls to friends and family in the transaction of public business.

In addition to housing convicted defendants who are serving sentences, the jail houses persons like petitioners, who are simply accused of crimes. Although inmates may have little expectation of privacy since they are informed the calls are subject to monitoring and recording, a lack of expectation of privacy does not affect whether the recordings are subject to disclosure under the Public Records Act. City of Clearwater, 863 So.2d at 154. Inmates receive no notice that calls may be disclosed to the general public. The expectation that a deputy or state attorney may listen to a call is very different from an expectation that anyone and everyone could listen to the calls. Sensitive or embarrassing information, or information that would otherwise be confidential, like financial information of the inmate or the person called, could be disclosed to the public. Treating the recordings as public records allows anyone to request the recorded calls. Moreover, an accused child should be able to consult with a parent without the communication becoming a public record.

The sound recordings of inmate phone calls which are not investigative material do not perpetuate or formalize knowledge in connection with official action. If the contents of the phone calls do not actually involve criminal activity or a security breach, the recordings maintained by the sheriffs office are not “material prepared in connection with official agency business which is intended to perpetuate, communicate, or formalize knowledge.” Shevin, 379 So.2d at 640. The recordings of petitioners’ personal phone calls do not give the public access to information about the operations of a government agency. An inmate’s personal phone calls do not in any way reflect the actions of government and releasing the calls would not further the purpose of the Public Records Act.

Because the newspaper is not entitled to production of the recorded phone calls pursuant to the Public Records Act, we grant the petitions, quash the trial court’s order, and remand these cases for further proceedings consistent with this opinion.

POLEN, TAYLOR and MAY, JJ., concur.


text:
    Ileana M. VALDES, Appellant, v. BARRY UNIVERSITY and Fireman’s Fund Insurance Co., Appellees.
    No. 1D09-4799.
    District Court of Appeal of Florida, First District.
    Sept. 30, 2010.
    Rehearing Denied Nov. 18, 2010.
    Ileana M. Valdes, pro se, Appellant.
    Eduardo E. Neret of the Law Offices of Eduardo E. Neret, P.A., Miami, for Appel-lees.
   PER CURIAM.

Appellant has failed to comply with an order of this Court directing her to file an Initial Brief. In the order, this Court specifically warned that the failure to comply could result in dismissal of the appeal without further opportunity to be heard. See Fla. R.App. P. 9.410. Accordingly, this appeal is DISMISSED.

WOLF, ROBERTS, and WETHERELL, JJ., concur.


author: CLARK, J. WETHERELL, J.,

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, A Governmental Entity of the State of Florida, Petitioner, v. SAN PERDIDO ASSOCIATION, INC., A Florida Not-For-Profit Corporation, Respondent.
    No. 1D09-6183.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2010.
    Rehearing Denied Nov. 17, 2010.
    See also 22 So.3d 71.
    Anthony J. Russo and Gina G. Smith of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Petitioner.
    Charles S. Liberis and Richard M. Beckish Jr. of Liberis & Associates, P.A., Pensacola, for Respondent.
   CLARK, J.

The petitioner Citizens Property Insurance (“Citizens”) seeks a writ of prohibition or certiorari in this court, upon the trial court’s denial of Citizens’ motion to dismiss the respondent San Perdido Association’s lawsuit alleging that Citizens engaged in bad faith insurance practices. San Perdido’s lawsuit was brought under section 624.155, Florida Statutes. In its motion to dismiss, Citizens asserted that it was entitled to sovereign immunity in that action. However, because the trial court action has not yet proceeded to a final judgment, Citizens’ challenge to the denial of its motion to dismiss cannot be entertained by this court at the present time.

This case arises from a claim by San Perdido under a windstorm insurance policy with Citizens, after Hurricane Ivan caused substantial property damage in 2004. Citizens persistently refused to fully pay its obligation under the terms of the insurance policy, requiring San Perdido to file a circuit court action to compel such payment, and then defend that award in Citizens’ appeal to this court. The circuit court ruling was upheld by this court, in Citizens Property Insurance v. San Perdido Assoc., 22 So.3d 71 (Fla. 1st DCA 2009), and San Perdido thereafter filed its section 624.155 bad faith action in the circuit court. Citizens responded with a motion to dismiss, asserting that the action is barred by the immunity conferred on Citizens in section 627.351(6), Florida Statutes. Citizens argued that this statutory provision grants it sovereign immunity.

Citizens is a statutory corporation created by the legislature to ensure that properties in Florida can be insured against hurricane damage. See § 627.351(6)(a)(l), Fla. Stat. In creating Citizens for this purpose, the legislature imbued Citizens with the status of a government entity, see § 627.351(6)(a)(l), and gave Citizens a limited grant of immunity in connection with Citizens’ performance of its duties or responsibilities. See § 627.351(6)(s)(l), Fla. Stat. However, section 627.351(6)(s)(l) provides that such immunity does not apply to a willful tort or for a breach of contract pertaining to insurance coverage.

In its section 624.155 action, San Perdi-do alleged that Citizens engaged in a series of bad faith practices in its handling of San Perdido’s insurance claim, and that such conduct was both a breach of contract and a willful tort under section 624.155. In denying Citizens’ motion to dismiss, the trial court reasoned that San Perdido’s section 627.155 lawsuit is within the section 627.351(6)(s)(1) exceptions to Citizens’ immunity. Although Citizens could challenge that ruling after an adverse judgment if San Perdido should prevail on the merits of its lawsuit at trial, Citizens now seeks an immediate writ of prohibition or certio-rari, and asks this court to preclude any further proceedings in the trial court.

The Florida Supreme Court addressed a request for immediate interlocutory review upon the denial of a motion to dismiss on grounds of sovereign immunity in Department of Education v. Roe, 679 So.2d 756 (Fla.1996). In that case, this court declined to undertake interlocutory review of the denial of the motion to dismiss, and noted that such a ruling does not ordinarily qualify for review by certiorari. The supreme court expressly approved this court’s decision. The supreme court in Roe acknowledged that questions of sovereign immunity had at one time been treated as issues of subject matter jurisdiction, but the Roe court rejected further application of that theory and instead observed that such immunity is not lost merely because review must wait until after a final judgment.

Contrary to the supreme court’s pronouncements in Roe, the fifth district has issued writs of prohibition where Citizens claimed sovereign immunity in response to a section 624.155 lawsuit for bad faith insurance practices. See Citizens Property Insurance v. Garfinkel, 25 So.3d 62 (Fla. 5th DCA 2009); see also Citizens Property Insurance v. La Mer Condominium Assoc., 37 So.3d 988 (Fla. 5th DCA 2010). Like the present case, in those instances Citizens’ motions to dismiss the section 624.155 action were denied by the trial court. In undertaking immediate review of those rulings, the fifth district referred to the supreme court’s earlier decision in Circuit Court of Twelfth Judicial Circuit v. Department of Natural Resources, 339 So.2d 1113 (Fla.1976), and treated the matter as a question of the trial court’s subject matter jurisdiction. But the fifth district did not refer to or otherwise acknowledge the supreme court’s more recent ruling in Roe, which characterized the jurisdictional theory in Circuit Court of Twelfth Judicial Circuit as an approach which pertained “at one time,” but which no longer applied. As Roe suggested, there is no irreparable harm in requiring that appellate consideration of the sovereign immunity claim await the entry of a final judgment.

Without the irreparable harm required for certiorari, and given the supreme court’s repudiation of the Circuit Court of Twelfth Judicial Circuit theory of jurisdiction in Roe, Citizens is not entitled to immediate interlocutory review of the denial of its motion to dismiss San Perdido’s section 624.155 lawsuit. While Roe involved the waiver of sovereign immunity in section 768.28, Florida Statutes, and San Perdido’s lawsuit involves the waiver of immunity in section 627.351(6)(s)(l), the statutory waivers are similar in that section 768.28 provides for a waiver in tort actions, and section 627.351(6)(s)(l) provides for a waiver for any willful tort, as well as upon a breach of the insurance contract.

In light of the supreme court’s ruling in Roe, this court declines to undertake immediate interlocutory review of the denial of Citizens’ motion to dismiss San Perdi-do’s section 624.155 lawsuit, nor will this court entertain such a challenge by prohibition or certiorari. Other courts have also declined to entertain such interlocutory challenges in light of Roe, although there appears to be some inconsistency in the case law on this point. E.g., compare School Board of Miami-Dade County v. Leyva, 975 So.2d 576 (Fla. 3d DCA 2008) with Garfinkel, supra; see also, e.g., Florida A & M University Board of Trustees v. Thomas, 19 So.3d 445 (Fla. 5th DCA 2009).

Citizens’ petition for prohibition or cer-tiorari is denied, and pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v) and (vi) this court certifies conflict with the fifth district decisions in Garfinkel and La Mer Condominium Assoc., and further certifies the following question of great public importance:

Whether, in light of the supreme court’s ruling in Department of Education v. Roe, 679 So.2d 756 (Fla.1996), review of the denial of a motion to dismiss based on a claim of sovereign immunity should await the entry of a final judgment in the trial court?

DAVIS, J., concurs. WETHERELL, J., dissents with opinion.

WETHERELL, J.,

dissenting.

I respectfully dissent from the decision to dismiss Citizens’ “Petition for Writ of Prohibition, and Alternatively, Petition for Writ of Certiorari.” I would grant the petition and quash the trial court’s order denying Citizens’ motion to dismiss because, as the Fifth District correctly held in Garfinkel, “Citizens is immune from first-party bad faith claims pursuant to Section 627.351(6)( [s] )1.” See 25 So.3d at 69.

I agree with the majority that prohibition is not the appropriate remedy in this case because Citizens’ claim of immunity does not implicate the trial court’s subject-matter jurisdiction. But I disagree that we lack jurisdiction to consider Citizens’ alternative petition for writ of certiorari. In my view, not only do we have jurisdiction pursuant to Florida Rules of Appellate Procedure 9.030(b)(3) and 9.100 to consider the petition, but it is incumbent upon us to do so at this time because the trial court’s erroneous order denying Citizens immunity from Respondent’s suit will cause material injury to Citizens that cannot be fully remedied upon plenary appeal.

Nothing in Roe compels the decision reached by the majority. Roe simply held that a nonfinal order denying an agency’s motion to dismiss on sovereign immunity grounds was not subject to interlocutory appeal, see 679 So.2d at 759; the case did not address whether interlocutory review of an order denying immunity as a matter of law was available by extraordinary writ petition in an appropriate case. Indeed, we observed in the decision approved by the supreme court in Roe that certiorari is not “ordinarily” available to review the denial of a motion to dismiss, which clearly implies that such review is available in an extraordinary case. See Dept. of Education v. Roe, 656 So.2d 507, 508 (Fla. 1st DCA 1995); and cf. Dept. of Health & Rehab. Servs. v. Miller, 418 So.2d 96 (Fla. 1st DCA 1982) (stating that “[t]his court has entertained petitions for writs of cer-tiorari to review interlocutory orders determining issues of sovereign immunity,” but declining to issue the writ because there were disputed issues of fact bearing on the immunity issue).

Moreover, Roe involved a claim of sovereign immunity under section 768.28, Florida Statutes, pursuant to which governmental entities are subject to suit in tort actions but their liability is capped, whereas this case involves a claim that Citizens is statutorily immune from suit under section 627.351(6)(s)l. Unlike immunity from liability, which is not lost if review is deferred until the end of the case, immunity from suit is lost if the party is forced to go through litigation. See Roe, 679 So.2d at 758-59 (noting that, unlike qualified immunity, the agency’s immunity from liability provided by section 768.28 is not lost simply because review must wait until after final judgment); Tucker v. Resha, 610 So.2d 460, 464 (Fla. 1st DCA 1992) (observing that, because a qualified immunity affords immunity from suit rather than a defense to liability, “an appeal after final judgment would hardly constitute a full and adequate remedy, for once the protection of immunity is lost and a trial ensues, there is no means of re-immunizing the party”), quashed on other grounds, 648 So.2d 1187 (Fla.1994).

Furthermore, unlike the claim of sovereign immunity at issue in Roe, resolution of the immunity issue in this case is not dependent upon, or in any way intertwined with, the merits of the case. See 679 So.2d at 758 (“Oftentimes, the applicability of the sovereign immunity waiver is inextricably tied to the underlying facts, requiring a trial on the merits.”). Rather, the issue of whether Citizens is immune from Respondent’s bad faith suit is a matter of statutory interpretation and a pure question of law, which the parties agree essentially boils down to whether a bad faith claim under section 624.155 is a “willful tort” for purposes of the exception to Citizens’ immunity in section 627.351(6)(s)l.a.

I recognize that certiorari review is “not to be used to sidestep the rule of law narrowly restricting those non-final orders subject to review.” Tucker, 610 So.2d at 463-64. But the mere fact that a non-final order is not subject to interlocutory appeal does not mean that it may not be reviewed by certiorari. See Avco Corp. v. Neff, 30 So.3d 597, 601 (Fla. 1st DCA 2010) (“Cer-tiorari is the proper remedy, in limited circumstances, to review a non-final order that is not subject to appeal under Florida Rule of Appellate Procedure 9.130.”); Fla. R.App. P. 9.130(a)(1) (explaining that review of non-final orders not listed in that rule “shall be by the method prescribed in rule 9.100”).

The denial of immunity from suit has been held to be sufficient irreparable injury to justify certiorari review. See, e.g., Seminole Tribe of Fla. v. McCor, 903 So.2d 353, 357-58 (Fla. 2d DCA 2005) (tribal immunity); Jenne v. Maranto, 825 So.2d 409, 415 (Fla. 4th DCA 2002) (Eleventh Amendment immunity); Stephens v. Geoghegan, 702 So.2d 517, 521 (Fla. 2d DCA 1997) (qualified immunity). As our supreme court explained in the context of qualified immunity — which, like the immunity at issue in this case, is immunity from suit rather than a defense to liability — the entitlement to immunity is “effectively lost if a case is erroneously permitted to go to trial” because the party entitled to the immunity cannot be “ ‘re-immunized’ if erroneously required to stand trial or face the other burdens of litigation.” Tucker, 648 So.2d at 1189 (quoting Mitchell v. Forsyth, 472 U.S. 511, 526, 105 S.Ct. 2806, 86 L.Ed.2d 411 (1985)). Moreover, as recently observed by Judge Shepherd, “[i]t makes little sense to afford a shield of immunity from suit ... and then fail to enforce it at the earliest moment when enforcement is appropriate.” Brown v. McKinnon, 964 So.2d 173, 176 (Fla. 3d DCA 2007) (Shepherd, J., dissenting).

I recognize that the injury that Citizens will suffer in this particular case is diminished somewhat by the likelihood that the merits of the immunity issue will be back before this court in relatively short order. Indeed, if and when the issue is raised again by Citizens at the trial court (either through a renewed motion to dismiss or a motion for summary judgment), the court will be obligated to follow the holding in Garfinlcel and dismiss Respondent’s bad faith suit against Citizens. See Pardo v. State, 596 So.2d 665, 666-67 (Fla.1992) (holding that, in the absence of interdis-trict conflict, district court decisions bind all Florida trial courts). This, in turn, will likely result in an appeal by Respondent raising the same issue that was fully briefed and argued by the parties in this case, which in my view, is all the more reason to take jurisdiction and decide the issue now.

Irreparable injury — ie., material injury that cannot be remedied on plenary appeal — is not enough to justify certiorari review of a nonfinal order; the order must also depart from the essential requirements of law. See Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987). “[Wjhen the record conclusively demonstrates entitlement to immunity, it is a departure from the essential requirements of law for a trial court to deny a motion for summary judgment on that basis.” Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002).

Here, I would conclude that the trial court departed from the essential require-merits of law in denying Citizens motion to dismiss because, as explained in Garfinkel, a bad faith claim under section 624.155 is not a tort claim and, thus, not a “willful tort” for purposes of section 627.351(6)(s)l.a. See Garfinkel, 25 So.3d at 68-69. Moreover, in my view, it would be inappropriate to interpret the phrase “willful tort” as a short-hand reference to section 624.155 because, as explained in Gar-finkel, such a construction is inconsistent with the legislative history. Id. at 66; see also Fla. SB 960 (2009) and Fla. HB 1051 (2009), which did not pass, but proposed to amend section 624.155(1) to read “Any person may bring a civil action against an insurer, including Citizens Property Insurance Corporation, when such person is damaged ...” (proposed new language emphasized). Not only would such an interpretation be inconsistent with the principle that a waiver of sovereign immunity should be construed narrowly in favor of the government, but it would also reflect unsound policy because subjecting Citizens to bad faith claims of policy holders (such as Respondent) who have already been paid for the losses insured by Citizens will only serve to reduce the financial resources available to Citizens to pay claims of other policyholders; and, because Citizens is a governmental entity (and not a private insurance company), the taxpayers will ultimately bear the burden of paying claims that Citizens is unable to pay. Cf. Ch. 2006-12, § 44, Laws of Fla. (appropriating $715 million to Citizens to eliminate the deficit resulting from its payment of claims after the 2005 hurricanes).

In Tucker, our supreme court observed that the qualified immunity afforded to public officials would be illusory, and the underlying policy for the immunity would be thwarted, if nonfinal orders denying qualified immunity were not subject to interlocutory review. See 648 So.2d at 1190. Likewise, in this case, the immunity from suit provided to Citizens would be illusory if certiorari were not available to review an order denying immunity as a matter of law in order to determine whether the suit at issue falls within one of the limited exceptions in section 627.351(6)(s)l. Moreover, the majority’s categorical denial of such review will frustrate the underlying purpose of Citizens being established as a governmental entity — i.e., to maximize the financial resources available to pay claims in the event of a catastrophic hurricane. Cf. § 627.351(6)(a)l., Fla. Stat. (“Because it is essential for [Citizens] to have the maximum financial resources to pay claims following a catastrophic hurricane, it is the intent of the Legislature that [Citizens] continue to be an integral part of the state and ... exempt from federal income taxation.”). Accordingly, although I disagree with the majority’s disposition of this case, I agree with the certification of a question to the Florida Supreme Court because of the significant public policy issues implicated by our failure to review the order denying Citizens’ claim of immunity at this time.

      . Section 627.35l(6)(s)l provides in pertinent part:
      There shall be no liability on the part of, and no cause of action shall arise against, any assessable insurer or its agents or employees, the corporation or its agents or employees, members of the board of governors or their respective designees at a board meeting, corporation committee members, or the office or its representatives, for any action taken by them in the performance of their duties or responsibilities under this subsection. Such immunity does not apply to: a .... any willful tort....
      (emphasis added).

        . While I recognize that we cannot be conferred jurisdiction that we do not have by agreement of the parties, I note that in response to our request for supplemental briefing on the jurisdictional issue raised by the panel at oral argument, both parties argued that we had jurisdiction to consider Citizens' petition because the immunity provided to Citizens is more akin to the qualified immunity at issue in Tucker than the sovereign immunity at issue in Roe.

      . See generally Am. Home Assurance Co. v. Nat'l R.R. Passenger Corp., 908 So.2d 459, 471-72 (Fla.2005); Pan-Am Tobacco Corp. v. Dep’t of Corr., 471 So.2d 4, 5 (Fla.1984); Windham v. Fla. Dep’t of Transp., 476 So.2d 735, 739 (Fla. 1st DCA 1985). Accord Garfinkel, 25 So.3d at 66 (rejecting the argument that the requirement in section 627.351(6)(r)(2) [now 627.351(6)(s)2.] that Citizens "handle claims ... in good faith” waives Citizens' immunity from bad faith claims because the statute is not a clear waiver of immunity and that "[i]f there is a waiver there, it is quite murky”).

      . As noted in the majority opinion, Respondent has already prevailed in a breach of contract suit against Citizens and obtained the coverage that it was due under its insurance policy with Citizens. The record reflects that in the underlying case Respondent was awarded the amount of its appraised loss, along with prejudgment interest, attorney's fees and costs, and expert fees. In its present bad faith suit, Respondent is seeking additional damages "including, but not limited to, loss of use of its property, interest paid on loans to reconstruct its facilities, lost profits from rentals, excess costs caused by reconstruction delays, costs associated with pursuing its claims with Citizens” along with attorney’s fees and costs, and, potentially, punitive damages.


text:
    Michael W. TURNER, Petitioner, v. STATE of Florida, Walter A. McNeil, Secretary, Florida Department of Corrections, Respondent.
    No. 1D10-4786.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2010.
    Rehearing Denied Nov. 17, 2010.
    Michael W. Turner, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WEBSTER, DAVIS, and VAN NORTWICK, JJ„ concur.


author: PER CURIAM. LAWSON, J.,

text:
    Dwayne E. ROBERTS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1572.
    District Court of Appeal of Florida, Fifth District.
    Oct. 8, 2010.
    Rehearing Denied Nov. 8, 2010.
    Dwayne E. Roberts, Avon Park, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED.

PALMER and COHEN, JJ., concur.

LAWSON, J., concurring specially, with opinion.

LAWSON, J.,

concurring.

Dwayne E. Roberts appeals from the summary denial of his motion to correct illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Roberts claims that his prison releasee reof-fender (“PRR”) sentence is illegal because it is improperly based upon a prior conviction for battery on a law enforcement officer, citing Brinson v. State, 995 So.2d 1047, 1048 (Fla. 2d DCA 2008) (stating that battery on a law enforcement conviction “should not have been used to qualify [Brinson] for PRR sentencing.”). I write to address this issue only because the trial court did not, and the quotation from Brinson on which Roberts relies does appear to support his claim.

The problem is that the use of the PRR acronym in the published Brinson opinion is obviously a typographical error. It is clear from a review of the entire Brinson opinion that the court was only addressing Brinson’s violent career criminal (“VCC”) sentence, not a PRR sentence. VCC sentencing involves prior qualifying offenses. PRR sentencing does not. Compare § 775.084(l)(d), Fla. Stat., with § 775.082(9)(a)l., Fla. Stat. (2004). For PRR sentencing, the State was required to demonstrate that Roberts committed the offense for which he was being prosecuted within three years after his release from prison. Id. PRR sentencing in no way depends on the nature of the crime that led to the prior prison sentence. Id.

      . § 775.082(9)(a)l„ Fla. Stat. (2004).

      . PRR sentencing only applies to certain offenses, enumerated in the statute. In this case, Roberts was sentenced as a PRR for attempted voluntary manslaughter (enhanced for use of a weapon). Attempted manslaughter is enumerated in the PRR statute as one of the offenses that qualifies for PRR sentencing, if the defendant committed the offense while serving a prison sentence or within three years after being released from prison.


text:
    CRC 1809, LLC, etc., and CRC 1203, LLC, etc., Appellants, v. NORTH CARILLON, LLC, etc., Appellee.
    Nos. 3D09-3496, 3D10-16.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2010.
    Rehearing Denied Nov. 9, 2010.
    Lawrence R. Metsch, Miami, for appellants.
    Berman Rennert Vogel & Mandler and Jáson R. Block, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and SALTER, JJ.
   PER CURIAM.

Affirmed. See 15 U.S.C. § 1703(c) (2005).


text:
    DEPARTMENT OF REVENUE and The Division of Risk Management-State of Florida, Appellants, v. Dora Trevino GROMAN, Appellee.
    No. 1D10-3997.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2010.
    Rehearing Denied Nov. 8, 2010.

      Wanda Reas of Znosko & Reas, P.A., Longwood, for Appellants.
    Susan W. Fox of Fox & Loquasto, P.A., Tampa, and Laurie Thrower Miles of Smith, Feddeler, Smith & Miles, P.A., Lakeland, for Appellee.
   PER CURIAM.

Having considered the parties’ timely responses to this court’s order to show cause why this appeal should not be dismissed, we hereby dismiss the appeal as non-final and non-appealable under Florida Rule of Appellate Procedure 9.180. Although both parties assert that the order on appeal “adjudicates jurisdiction,” and thus falls under Rule 9.180(b)(1)(A), neither the order on appeal, nor Appellants’ Initial Brief, indicates a dispute exists concerning the Judge of Compensation Claims’ (JCC’s) jurisdiction over the parties, the subject matter of this workers’ compensation claim, or the case itself. Rather, the dispute at hand relates to a pretrial order striking a witness, in a case, pertaining to a subject matter and parties, over which the JCC undoubtedly has jurisdiction.

Here, the JCC excluded from evidence the opinions of an expert medical advisor (EMA) based on his analysis of authority granted to him under the Workers’ Compensation Law. Appellants challenge the non-final order striking the original EMA and appointing a substitute, and assert that the JCC’s actions were impermissible and beyond the “jurisdiction” granted to him by the Legislature. Nevertheless, the allowance for this court’s review of non-final orders adjudicating jurisdiction under Florida Rule of Appellate Procedure 9.180(b)(1)(A) pertains to orders wherein the JCC’s jurisdiction over the parties, the subject matter, or the case is at issue and adjudicated — it does not serve as a means to facilitate an interlocutory appeal where there is no such dispute. Compare Delgado v. J.C. Concrete, 721 So.2d 353, 354 (Fla. 1st DCA 1998) (accepting jurisdiction under Florida Rule of Appellate Procedure 9.180(b)(1)(A) where JCC compelled claimant’s attendance at independent medical examination (IME), in absence of pending claim and over claimant’s objection on grounds of JCC’s lack of jurisdiction over case); Karell v. Miami Airport Hilton, 668 So.2d 227, 228 (Fla. 1st DCA 1996) (accepting jurisdiction of non-final order which determined “subject matter jurisdiction” where order was entered compelling claimant to attend IME prior to filing of claim, and in absence of pending claim); and Canovas v. Sugar Supply, Inc., 921 So.2d 26 (Fla. 1st DCA 2006) (accepting jurisdiction under Rule 9.180(b)(1) where JCC compelled discovery over Claimant’s objection regarding JCC’s jurisdiction over case based on absence of pending dispute or claim); with Kimmins Corp. v. Collier, 664 So.2d 299, 300 (Fla. 1st DCA 1995) (treating appeal of non-final order compelling IME as writ of certiorari where, notwithstanding E/C’s assertion that JCC lacked “subject matter jurisdiction,” facts in record established pending case before JCC over which JCC had jurisdiction).

Significantly, in this case, Appellants request as a remedy, not that the case be removed from the JCC for lack of jurisdiction, or that a party be released from the case based on an improper assertion of jurisdiction, but that the order be corrected and the case remanded to the JCC so that he may continue to preside over the merits of the case. If Rule 9.180(b)(l)(A)’s allowance for this court to review non-final orders which “adjudicate jurisdiction” were read so broadly so as to include any challenge to an order based on the propriety of a JCC’s pretrial rulings, then the prohibition against the appeal of a non-final order would be meaningless. And, consequently, all orders would be appeal-able upon a mere assertion of an improper exercise of statutory authority (couched in terms of “jurisdiction”) — which is, after all, the essence of any challenge to any ruling made by a JCC. See, e.g., Millinger v. Broward County Mental Health Div., 672 So.2d 24, 26 (Fla.1996) (“The [JCC] derives its very existence and authority from the legislature. The [JCC] is an administrative body possessing quasi-judicial power but it is not a court.” (citations omitted)).

Although not requested by either party in their respective responses to this court’s order to show cause why this appeal should not be dismissed for lack of jurisdiction, we have considered whether this appeal of a nonfinal, nonappealable order can properly be treated as a petition for writ of certiorari. See Fla. R.App. P. 9.040(c) (“If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.”). Because here, the initial EMA has rendered a report making manifest his opinions on the issue in dispute, any error committed by the JCC, in striking this expert and appointing another, can be remedied by plenary appeal after the entry of a final order. See Taylor v. TGI Friday’s, 16 So.3d 312 (Fla. 1st DCA 2009) (denying writ of certiorari alleging error in JCC’s appointment of EMA, because any error committed was correctable on plenary appeal); Dawson v. Clerk of Circuit Court-Hillsborough County, 991 So.2d 407 (Fla. 1st DCA 2008) (reversing JCC’s appointment of EMA on plenary appeal where appointment was improper under prevailing legal standards).

Accordingly, this appeal is DISMISSED.

WOLF, ROBERTS and WETHERELL, JJ., concur.


author: WALLACE, Judge. ALTENBERND, Judge,

text:
    Chadwick KEGLER, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4685.
    District Court of Appeal of Florida, Second District.
    Oct. 15, 2010.
    James Marion Moorman, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

Chadwick Kegler appeals his judgment and sentences entered in accordance with his no contest plea, challenging the denial of his pro se motion to withdraw plea after sentencing. Because the circuit court erred in declining to appoint conflict-free counsel to assist Mr. Kegler on his motion, we reverse the order denying the motion to withdraw plea and remand for further proceedings.

Mr. Kegler’s motion asserted that he should be permitted to withdraw his plea due to “misunderstanding and miseommu-nication.” The circuit court permitted Mr. Kegler to clarify his claims at a hearing, and Mr. Kegler asserted that his trial counsel had refused to pursue a viable entrapment defense; that counsel had represented that he could get certain charges, to which Mr. Kegler ultimately pleaded, thrown out; and that counsel had essentially forced him into accepting the plea. Mr. Kegler stated that his counsel, who was present at the hearing, would have to admit Mr. Kegler’s contentions if counsel was placed under oath.

The circuit court judge expressed her belief that Mr. Kegler understood what was happening when he entered into the plea. She noted that she and Mr. Kegler’s trial counsel spent considerable time going over the plea with Mr. Kegler and that everyone was ready to go to trial. In addition, Mr. Kegler had represented that he was satisfied with counsel’s representation when he entered into the plea. Understandably frustrated with Mr. Kegler, and in the face of his assertion that counsel would have to admit his contentions under oath, the circuit court judge placed counsel under oath and asked him if what Mr. Kegler said was true. Counsel inquired if he had permission to respond, and the judge asked Mr. Kegler if he was willing to waive the attorney-client privilege. Mr. Kegler requested counsel, and when the circuit court pointed out that he had counsel, Mr. Kegler replied that he needed “conflict counsel.” The judge responded that it was too late for “conflict counsel” and denied the motion to withdraw plea.

Mr. Kegler subsequently filed a motion to reconsider the motion to withdraw plea, requesting an opportunity to present his motion with counsel present. The circuit court denied this motion, noting that Mr. Kegler’s attorney was present at the hearing on the motion to withdraw plea.

Mr. Kegler’s claims are that his trial counsel coerced him into entering the plea and that his plea was involuntary. “Coercion by counsel may render a plea involuntary,” Simmons v. State, 485 So.2d 475, 476 (Fla. 2d DCA 1986), and “[a]n involuntary plea is a ground for withdrawal under rule 9.140(b)(2)(A)(ii)(c),” Council v. State, 9 So.3d 721, 722 (Fla. 2d DCA 2009).

Where a defendant seeks to withdraw his plea on the ground that it was coerced by his attorney, the trial court must either appoint conflict-free counsel or permit the defendant the opportunity to secure the same and, then, conduct an evidentiary hearing on the motion to withdraw plea.

Id. (quoting Brown v. State, 885 So.2d 402, 408 (Fla. 2d DCA 2003)). Moreover, this court noted in Krautheim v. State, 38 So.3d 802, 804-05 (Fla. 2d DCA 2010) (citations omitted), as follows:

A motion to withdraw plea is a critical stage of the proceedings at which a defendant is entitled to be present and to have counsel represent him....
... [0]nce it becomes clear that a defendant and his counsel are in an adversarial relationship with respect to the defendant’s entry of his plea, the defendant is entitled to the appointment of conflict-free counsel to represent him and to assist him with respect to his motion to withdraw plea.

See also Applegate v. State, 23 So.3d 211, 212 (Fla. 2d DCA 2009) (noting same); Golden v. State, 987 So.2d 1279, 1280 (Fla. 2d DCA 2008) (noting same).

Here, it became clear that Mr. Kegler and his counsel were in an adversarial relationship when Mr. Kegler made claims about his counsel’s representation and asserted that counsel had coerced him into accepting his plea. Nothing could demonstrate the adversarial nature of their relationship better than the circuit court’s decision to place counsel under oath to respond to Mr. Kegler’s claims. Instead of doing so, the circuit court should have concluded the hearing and appointed conflict-free counsel to represent Mr. Kegler on his motion to withdraw plea. See Garcia v. State, 846 So.2d 660, 661 (Fla. 2d DCA 2003) (noting that the defendant was entitled to the appointment of conflict-free counsel when his counsel gave adverse testimony at a hearing on the defendant’s motion to withdraw plea).

Accordingly, we reverse the order denying Mr. Kegler’s motion to withdraw plea and remand for further proceedings. On remand, the circuit court shall provide Mr. Kegler the opportunity to present his motion with the assistance of conflict-free counsel. Because Mr. Kegler is entitled to assistance in preparing his motion, the court should provide counsel an opportunity to file an amended motion on Mr. Kegler’s behalf. See Applegate, 23 So.3d at 212; Council, 9 So.3d at 722-23. If the amended motion presents a facially sufficient claim or claims for withdrawal, the circuit court should consider the merits of Mr. Kegler’s motion at a hearing at which he shall be entitled to be represented by conflict-free counsel. See Krautheim, 38 So.3d at 806.

We caution Mr. Kegler that if he is successful in withdrawing his plea and is convicted of the subject charges after a trial, the circuit court could impose the maximum penalties, which in Mr. Kegler’s case would amount to a life sentence.

Reversed and remanded.

Villanti, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

Chadwick Kegler had twenty-four prior convictions, including several for sale of cocaine, when he was charged with these seventeen new felonies. He undoubtedly qualified for enhanced sentencing under two or more theories. His attorney negotiated a plea under which Mr. Kegler obtained concurrent sentences, the longest of which is twelve years. In light of the drug trafficking multiplier on his scoresheet, these sentences are downward departures. Given these circumstances, the trial court can be forgiven for concluding that Mr. Kegler’s theory of entrapment to the multiple offenses of sale of cocaine was frivolous.

Rather than appealing the trial court’s order denying his motion to withdraw his plea, Mr. Kegler should recognize that the experienced trial judge accepted this favorable negotiated plea and denied a motion that could only make matters far worse for Mr. Kegler. Legally, however, Mr. Kegler is entitled to conflict-free counsel, who will undoubtedly encourage him to abandon his effort to withdraw his plea.

      . Mr. Kegler pleaded to one count of trafficking in cocaine, seven counts of sale of cocaine, one count of felonious possession of a firearm, seven counts of possession of cocaine, and one count of operating a drug house.

      . Mr. Kegler also asserted in his motion that the circuit court had imposed an illegal sentence. The circuit court entered a separate order denying Mr. Kegler’s motion to correct illegal sentence, which is not at issue in this appeal.

      . If the maximum possible sentences for each of the charged crimes are run consecutively, Mr. Kegler could receive a total sentence of 186 years’ imprisonment. See §§ 775.082(3)(b), (3)(c), (4)(a); 790.23(l)(a), (3); 893.13(l)(a)(l), (7)(a)(5); 893.135(l)(b)(l)(a), Fla. Stat. (2006-07).


text:
    UNITED STATES of America, Appellant, v. Charles MORRISON, et al., Appellee.
    No. 1D09-2261.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2010.
    Rehearing Denied Nov. 18, 2010.
    A. Brian Albritton, United States Attorney, David P. Rhodes, Assistant United States Attorney, and Todd B. Grandy, Assistant United States Attorney, Tampa; Tony West, Assistant Attorney General, A. Lee Bentley, III, Acting United States Attorney, Michael S. Raab, and Benjamin M. Shultz, U.S. Department of Justice, Washington, D.C., for Appellant.
    Stephen C. Bullock, Live Oak; Matthew C. Mitchell of Brannon, Brown, Haley & Bullock, Lake City, for Appellee.
   PER CURIAM.

The United States appeals an award of attorneys’ fees to Charles and Shirley Morrison. The Morrisons were the prevailing party in a foreclosure action until this court reversed and remanded that case with directions to enter judgment for the United States and to dismiss the Mor-risons’ counterclaim with prejudice. United States v. Morrison, 28 So.3d 94 (Fla. 1st DCA 2010). “Once a final judgment is reversed and remanded by an appellate court, there can be no prevailing party for purposes of an award of prevailing party attorney’s fees. Consequently, an award of attorney’s fees and costs predicated on a reversed or vacated final judgment also must be reversed.” Marty v. Bainter, 727 So.2d 1124, 1125 (Fla. 1st DCA 1999). Accord, Dooley & Mack Constr., Inc. v. Buildtec Constr. Group, Inc., 983 So.2d 1243 (Fla. 3d DCA 2008); Viets v. Am. Recruiters Enters., Inc., 922 So.2d 1090 (Fla. 4th DCA 2006).

We reject the Morrisons’ argument that they prevailed on Count II in which the United States sought damages on two promissory notes that were secured by the mortgage. After the government filed the complaint, the Morrisons declared bankruptcy and the bankruptcy court granted a discharge, which enjoined creditors from attempting to collect debts of the Morrisons. The discharge did not bar the foreclosure proceeding. The trial court directed a verdict on Count II because the discharge barred continued prosecution of the cause of action. The discharge in bankruptcy court did not transform the debtors into the “successful party” in pending litigation in state court to collect on the debt.

REVERSED and REMANDED for further proceedings.

BENTON, PADOVANO, and CLARK, JJ., concur.