author: GROSS, C.J.

text:
    CORZO TRUCKING CORPORATION, a Florida Corporation, Obdulio Corzo and RITA Corzo, Appellants, v. Bob WEST, individually and d/b/a West Enterprises, Richard Douse and Nancy Douse, Appellees.
    Nos. 4D10-33, 4D10-880.
    District Court of Appeal of Florida, Fourth District.
    June 1, 2011.

      See also 281 Ga.App. 361, 636 S.E.2d 39.
    See also 296 Ga.App. 399, 674 S.E.2d 414.
    Carl M. Collier, Lake Worth, and Arthur J. Morburger, Miami, for appellants.
    Carey E. Atkins of Moore Ingram Johnson & Steele, LLP, for appellee Bob West.
   GROSS, C.J.

This is a tale of modern courts confronting a common law cause of action, an action on a judgment. In entering a final judgment in 2006, the circuit court used language which obscured the nature of the final judgment. The judgment creditor sought to address that problem by filing an action on that judgment. The circuit court dismissed the action with prejudice. We reverse, holding that the judgment creditor was authorized to bring an action on the 2006 judgment.

On March 6, 1985, appellant Corzo Trucking Corporation obtained an amended final judgment against appellee Bob West. The judgment amended a final judgment entered on June 5, 1984. Corzo Trucking was unable to enforce the judgment.

In 2001, Corzo Trucking discovered that West was residing in Georgia. It filed the Florida judgment in Georgia and sought execution. The Georgia courts held the Florida judgment was subject to Georgia’s ten year statute of limitations on the enforcement of judgments and that the statute began to run when the judgment was rendered in Florida in 1985. Corzo Trucking Corp. v. West, 281 Ga.App. 361, 636 S.E.2d 39 (2006). The Georgia appellate court relied upon Potomac Leasing Co. v. Dasco Technology Corp., 10 P.3d 972 (Utah 2000); it described Potomac as holding that a “judgment must be filed in Utah within Utah’s eight-year statute of limitation, which begins to run from the date the judgment is entered or last renewed in the rendering state.” Corzo, 636 S.E.2d at 41 (emphasis added).

On August 3, 2006, Corzo Trucking filed a lawsuit in Florida against West entitled “Complaint to Renew Judgment,” apparently tracking the language used by the Georgia court. It appears that West was personally served in Georgia on August 11, 2006. The circuit court entered a default final judgment on September 14, 2006; the judgment stated that the original judgment, as amended, “should be renewed” and the decretal portion of the judgment stated that the “Final Judgment as amended by Amended Final Judgment is renewed with all accrued post judgment interest.” The 2006 judgment awarded the original principal amount of the 1985 amended final judgment plus $297,933.61, which represents 22 years, 3 months, and 9 days of interest.

Corzo Trucking returned to Georgia to enforce its renewed judgment. The Georgia courts held that the “2006 renewal” of the “1985 Florida judgment” was unenforceable in Georgia. Corzo Trucking Corp. v. West, 296 Ga.App. 399, 674 S.E.2d 414, 415 (2009). The court reasoned that the renewed judgment did not avoid Georgia’s ten-year statute of limitations, because to “hold otherwise would allow the Florida judgment to have a longer life than a judgment in Georgia, which directly contradicts the principle that litigation under the [Uniform Enforcement of Foreign Judgments Law] is limited to that which is afforded [to] any other Georgia judgment.” Id. The court commented that “the record clearly shows that the 2001 [sic ] judgment is a renewal of the 1985 judgment and not a new action.” Id.

After the 2009 Georgia appellate opinion, Corzo Trucking returned to Florida and took two separate litigation tacks.

First, in March, 2009, it filed a new case seeking an “action on a judgment” and other relief. In various pleadings, including an answer, West argued that the statute of limitations on the original judgment had expired in 2005, so both the 2006 judgment and any new action were barred. Corzo Trucking moved for summary judgment; West filed a response. Without explanation, Circuit Judge Barkdull denied the motion for summary judgment, dismissed the complaint with prejudice and entered final judgment “for defendant.”

Corzo Trucking’s second approach was to file a motion under Florida Rule of Civil Procedure 1.540(a) to clarify the 2006 “renewed” final judgment by “removing” the words “renew” and “renewed.” Circuit Judge Kelley denied the motion “finding that there is no error by way of omission or oversight under Rule 1.540(a).”

To decide this case, we must first examine the common law cause of action called an “action upon a judgment.” Every judgment “is regarded as a cause of action ... upon which a new and independent action may be based.” Crane v. Nuta, 26 So.2d 670, 671 (Fla.1946); see also Petersen v. Whitson, 14 So.3d 300, 302 (Fla. 2d DCA 2009). “At common law, a party has a right of action upon a judgment as soon as it is reeovered[.]” 47 Am. Jur. 2d Judgments § 762 (updated May 2011).

We explained in Burshan v. National Union Fire Insurance Co. of Pittsburgh that the main purpose of an action on a judgment, a separate cause of action from the original judgment, was to obtain a new and independent judgment which would “facilitate the ultimate goal of securing satisfaction of the original cause of action.” 805 So.2d 835, 841 (Fla. 4th DCA 2001) (quoting Adams v. Adams, 691 So.2d 10, 11 (Fla. 4th DCA 1997)). We also explained:

If a limitations period has almost run on a judgment, a judgment creditor “can start the limitation period anew by bringing an action on the judgment to obtain a new judgment.” 47 Am. Jur. 2d Judgments § 945 (1995); accord Adams, 691 So.2d at 11 (quoting Koerber v. Middlesex College, 136 Vt. 4, 383 A.2d 1054, 1057 (1978)). A party may not relitigate the merits of the original cause of action in an action on a judgment. See Klee v. Cola, 401 So.2d 871, 872 (Fla. 4th DCA 1981).

Id.

In defending an action on a judgment, a “defendant cannot avail himself of defenses which he might have interposed in the original action.” Restatement (First) of Judgments § 47 cmt. e. However, a defendant may “interpose defenses which have arisen since the rendition of the judgment, such as payment, release, accord and satisfaction, or the [sjtatute of [[limitations.” Id.

The cause of action underlying the 2006 judgment was an action on a judgment. That judgment was not merely a continuation of the 1984-85 case, but a new and independent judgment. See 50 C.J.S. Judgments § 1261 (updated Mar. 2011). As in a newly filed case, there was service of process on West to secure jurisdiction over him in the 2006 case. The use of the words “renew” and “renewed” in the judgment may have led to confusion, but those words have been used in Florida cases to describe the effect of an action on a judgment. Although it appears that the 20 year statute of limitations on an action on a judgment had run by 2006 when the case was filed, that defense “is waived unless pleaded.” Aboandandolo v. Vonella, 88 So.2d 282, 284 (Fla.1956); see also Ramos v. Philip Morris Cos., Inc., 743 So.2d 24, 30 (Fla. 3d DCA 1999). West thus could not attempt to resurrect that defense in this current and separate action.

An action on a judgment is different than post judgment proceedings, filed under the same case number as the final judgment, where the goal is to satisfy the judgment. Such proceedings are merely “ ‘continuation^] of an action,’ ” which “ ‘create! ] nothing anew, but may be said to reanimate that which before had existence.’ ” Massey v. Pineapple Orange Co., 87 Fla. 374, 100 So. 170, 171 (1924) (quoting Brown v. Harley, 2 Fla. 159 (1848)). For example, the 2006 action was not a proceeding by writ of scire facias, which was formerly used to revive a dormant judgment so that execution could issue. Petersen, 14 So.3d at 302. Such a proceeding was not regarded as a new proceeding, “but rather as a continuation of the original action.” Id.; see also Burshan, 805 So.2d at 841-43. If applicable, a petition for relief available by scire facias would be filed in the same case where the judgment issued. Petersen, 14 So.3d at 302. We are aware of no such “continuation of the original action” that extends the 20 year life of a Florida judgment.

Corzo Trucking was authorized to bring the 2009 action on the 2006 judgment. No useful purpose is usually served by bringing an action on a judgment so soon after the rendition of the underlying judgment. However, the unusual circumstances in this case explain Corzo Trucking’s motivation. The 2009 action was authorized by the rule articulated by the Florida Supreme Court that a judgment “constitutes a cause of action upon which a new and independent action may be based.” Crane, 26 So.2d at 671; see Dahlin v. Kroening, 796 N.W.2d 503, 505 (Minn.2011) (indicating that “an action on a judgment results in a new judgment, which may then serve as the basis for a subsequent action on a judgment”).

We reverse the circuit court’s dismissal of the action on the judgment. We affirm the denial of Rule 1.540 relief, since we find no abuse of discretion. See Schultz v. Time Warner Entm’t Co., 906 So.2d 297, 299 (Fla. 5th DCA 2005).

POLEN and DAMOORGIAN, JJ., concur.

      . In Florida, “an execution is valid and effective during the life of the judgment or decree on which it is issued.” § 56.021, Fla. Stat. (2009). "Subject to the provisions of s. 55.10, no judgment, order, or decree of any court shall be a lien upon real or personal property within the state after the expiration of 20 years from the date of the entry of such judgment, order, or decree.” § 55.081, Fla. Stat. (2009).

      . In Petersen, 14 So.3d at 303, the second district, in discussing the circuit court’s personal jurisdiction over a defendant in an action on a judgment, wrote that "the court that rendered the judgment in the original action has continuing jurisdiction over the defendant in an action to renew the judgment.” (Emphasis added.) In Burshan, 805 So.2d at 843, this court contrasted proceedings supplementary and scire facias with an action on a judgment: "Unlike an action upon a judgment, neither proceeding renews or extends the twenty year life of a judgment." 805 So.2d at 843.

      . § 95.11(1), Fla. Stat. (2009).

      . Florida Rule of Civil Procedure 1.100(d) provides that "[a]ny relief available by scire facias may be granted on motion after notice without the issuance of a writ of scire facias.” It is unclear when scire facias relief is appropriate today. At one time, Florida law limited the issuance of a writ of execution to three years after the entry of a judgment. Burshan, 805 So.2d at 841. A writ of scire facias addressed this limitation. In 1924, for example, "a writ of scire facias revived a judgment and caused a writ of execution to issue after three years, but during the twenty year life of a judgment.” Id. Under current law, an execution may issue during the 20 year life of the judgment on which it is based. Id. at 839.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    ODDI HOME HEALTHCARE, INC., Appellant, v. The STATE of Florida, AGENCY FOR HEALTHCARE ADMINISTRATION, Appellee.
    No. 3D10-2514.
    District Court of Appeal of Florida, Third District.
    June 1, 2011.
    Richard J. Caldwell, Tampa, for appellant.
    Tracy Lee Cooper, for appellee.
    Before GERSTEN, SUAREZ and SALTER, JJ.
   PER CURIAM.

Affirmed. See § 400.471(10)(d), Fla. Stat. (2010).


text:
    William HASHEM, Appellant, v. The STATE of Florida, Appellee.
    Nos. 3D10-2875, 3D10-2877.
    District Court of Appeal of Florida, Third District.
    June 1, 2011.
    William Hashem, in proper person.
    Pamela Jo Bondi, Attorney General, and Natalia Costea, Assistant Attorney General; Sheron Wells, Assistant General Counsel, Department of Corrections, Tallahassee, for appellee.
    Before RAMIREZ, C.J., and CORTINAS and SALTER, JJ.
   PER CURIAM.

William Hashem appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion in which he asserts that the Department of Correction’s allocation of the credit for time served awarded by the trial court effectually violates the sentence imposed as a result of his plea agreement. We have consolidated this appeal from Hashem’s appeal from an order denying habeas corpus in which he asserts the same fundamental issue.

In its response, the state concedes that the defendant is entitled to raise this issue in a 3.850 motion. If the sentence, as written, cannot be carried out because of DOC guidelines, then the defendant is entitled to be resentenced in a manner that effectuates the intent of his plea agreement. State v. Jackson, 842 So.2d 1040 (Fla. 3d DCA 2003); Williams v. Dept. of Corrections, 734 So.2d 1132 (Fla. 3d DCA 1999). On remand, “the trial court should either resentence [defendant] in a manner that effectuates the plea agreement after considering the DOC forfeiture of gain time or allow him to withdraw his plea.” Dellofano v. State, 946 So.2d 127, 129 (Fla. 5th DCA 2007). Defendant shall be appointed counsel to represent him.

Reversed and remanded for further proceedings.


author: SHEPHERD, J.

text:
    Alfred CARDONNE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2224.
    District Court of Appeal of Florida, Third District.
    June 1, 2011.
    Evan H. Baron, Weston, for appellant.
    Pamela Jo Bondi, Attorney General, and Douglas J. Glaid, Senior Assistant Attorney General, for appellee.
    Before SHEPHERD, CORTIÑAS, and SALTER, JJ.
   SHEPHERD, J.

The defendant, Alfred Cardonne, appeals his dual convictions and sentences for grand theft of over $100,000 and organized scheme to defraud $50,000 or more. As in Pizzo v. State, 945 So.2d 1203, 1206-07 (Fla.2006), we vacate the defendant’s conviction for grand theft as a lesser included offense of his conviction for organized fraud; it being settled in Florida that where convictions for grand theft and organized fraud are based upon the same conduct, “double jeopardy principles preclude convictions for both” and “the appellate court should reverse the lesser offense conviction and affirm the greater.” Id. at 1206 (citing State v. Barton, 523 So.2d 152, 153 (Fla.1988)). We find no merit on any of the other issues raised.

Affirmed in part, and reversed in part with directions to vheate the defendant’s conviction for the lesser included offense of grand theft. The defendant need not be present.


text:
    CABANA BEACH CLUB, LLC, Appellant, v. KEYBANK NATIONAL ASSOCIATION, a National banking association, in its capacity as Administrative agent for RBS Citizens, N.A., a National banking association, d/b/a, Charter One and successor to Charter One Bank, N.A., Integra Bank National Association, a national Banking association and KeyBank National Association, a national banking association, Appellee.
    No. 1D11-0607.
    District Court of Appeal of Florida, First District.
    June 2, 2011.
    Joseph M. Cook, Miramar Beach; Mark D. Davis of Matthews Jones & Hawkins, LLP, DeFuniak Springs, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

Because the order on appeal merely grants a motion for summary judgment without entering a judgment of foreclosure, the order is not final. See McQuaig v. Wal-Mart Stores, Inc., 789 So.2d 1215 (Fla. 1st DCA 2001). Accordingly, the appeal is hereby dismissed for lack of jurisdiction.

DAVIS, LEWIS, and WETHERELL, JJ., concur.


text:
    HILLSBOROUGH COUNTY AVIATION AUTHORITY and Florida Municipal Insurance Trust, Appellants, v. Anthony CESIRO, Appellee.
    No. 1D11-1224.
    District Court of Appeal of Florida, First District.
    June 2, 2011.
    Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for Appellants.
    Kelli Biferie Hastings of Bichler, Clel-land, Oliver, Kelley, Hastings, Longo, Spears & Parrish, PLLC, Maitland, for Appellee.
   PER CURIAM.

Upon review of Appellants’ response to this Court’s show cause order entered March 16, 2011, the Court DENIES the Joint Motion for Remand and hereby DISMISSES this appeal for lack of jurisdiction. See Fla. R.App. P. 9.180(b)(1)(C). See also, e.g., Landry v. AMS Staff Leasing, 993 So.2d 1071 (Fla. 1st DCA 2008); Sun Sentinel & Tribune Co. v. Petrovich, 744 So.2d 1056 (Fla. 1st DCA 1999); Cadco Builders, Inc. v. Roberts, 712 So.2d 457 (Fla. 1st DCA 1998).

DAVIS, VAN NORTWICK, and CLARK, JJ., concur.


text:
    Lawrence ELWELL, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4822.
    District Court of Appeal of Florida, Fourth District.
    June 8, 2011.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jeanine M. Germanowicz, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Appellant, Lawrence Elwell, was convicted of corruption by threat and two separate charges of direct criminal contempt. After the trial on the corruption by threat and the first direct criminal contempt conviction, a competency hearing was held and Elwell was found competent. We affirm without discussion the trial court’s finding that Elwell was competent as well as his convictions and sentences for corruption by threat and the second direct criminal contempt. We reverse Elwell’s conviction and sentence on the first direct criminal contempt.

After Elwell’s trial at which he was found guilty of corruption by threat, the trial court recommended that a competency hearing be held pursuant to Florida Rule of Criminal Procedure 3.210. At the hearing held to schedule the competency hearing, Elwell’s actions which gave rise to the first direct criminal contempt charge occurred. Elwell was immediately tried and sentenced for the first direct criminal contempt charge at the end of that hearing and while his competency hearing was pending. “[A] hearing to determine whether a defendant was competent at the time he was tried generally cannot be held retroactively.” Tingle v. State, 536 So.2d 202, 204 (Fla.1988). We therefore reverse Elwell’s first conviction and sentence for direct criminal contempt.

Affirmed in Part; Reversed in Part.

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


text:
    Idilio RAMOS, Appellant, v. CONTINENTAL FLORIDA MATERIALS AND TRAVELERS, Appellees.
    No. 1D10-5458.
    District Court of Appeal of Florida, First District.
    Date of Accident: June 28, 2005.
    May 27, 2011.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    H. George Kagan of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals from an order of the Judge of Compensation Claims (JCC) denying, among other benefits, temporary partial disability (TPD) benefits, on the ground that Claimant failed to prove a causal connection between the accident and his subsequent wage loss. Because it is not clear from the final order that the JCC applied the correct rule of law, we reverse the denial of TPD benefits and the denial of penalties, interest, costs, and attorney’s fees pertaining thereto, and remand for further proceedings.

As part of establishing entitlement to TPD benefits, “[a] claimant must show a causal connection between his or her injury and a subsequent wage loss.” Arnold v. Fla.’s Blood Ctrs., Inc., 949 So.2d 242, 247 (Fla. 1st DCA 2007). Claimant, in seeking TPD benefits here, submitted evidence intended to meet this requirement. The JCC, in the final order, recited the rule from Arnold, and found Claimant “has failed to prove a causal connection between his work-related injury and resulting wage loss,” but did not explicitly accept or reject Claimant’s evidence of a causal connection between the injury and wage loss. Instead, in the subsequent three paragraphs, the JCC set forth detailed findings that Claimant did not establish a sufficient causal relationship between his accident and his injury, findings relevant to section 440.09, Florida Statutes, which concerns whether an accident or injury is covered by workers’ compensation — that is, its compensability. Findings on compensability were extraneous in this case because, as the JCC specifically found and as the record indicates, the E/C accepted the injury as compensa-ble. Once the E/C accepted the injury as compensable, the initial connection of the accident to the injury was no longer disputed. See Engler v. Am. Friends of Hebrew Univ., 18 So.3d 613 (Fla. 1st DCA 2009). Thus, the presence of these findings in the final order suggests that the JCC erroneously conflated, or supplanted, the Arnold rule for establishing entitlement to TPD benefits with the rule for establishing compensability.

Consequently, we REVERSE the final order, and REMAND for further proceedings in accordance with this opinion.

BENTON, C.J., WEBSTER and LEWIS, JJ., concur.


text:
    Rosemarie SPANO, Appellant, v. Dennis E. BRUCE, Appellee.
    No. 3D07-3327.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 2011.
    Rehearing Denied June 20, 2011.

      Rosemarie Spano, in proper person; Diane H. Tutt, Davie, for appellant.
    Dennis E. Bruce, in proper person; John G. Crabtree, Key Biscayne, for appel-lee.
    John G. Crabtree, Key Biscayne, for appellee; Pamela Jo Bondi, Attorney General, and William H. Branch, Tallahassee, Assistant Attorney General for the Department of Revenue, as amicus curiae.
    Before RAMIREZ, C.J., and CORTIÑAS and LAGOA, JJ.
   ON MOTION FOR REHEARING

PER CURIAM.

Upon consideration of appellant Rosemarie Spano’s motion for rehearing, we withdraw this Court’s opinion issued on August 11, 2010, and substitute the following opinion in its stead.

Spano appeals the trial court’s Order on Exceptions to Report of General Magistrate. We reverse the trial court’s child support modification retroactive to the date on which Spano first moved for modification, rather than the date on which she filed her second amended petition for modification. We also reverse the court’s denial of the mother’s request for attorney’s fees and costs.

The underlying action involves a paternity suit in which the parties entered into a Mediation Settlement Agreement which the trial court ratified and approved in its Agreed Final Judgment Modifying Parental Responsibility and Other Matters of April 2001. Since the parties entered into the 2001 mediation agreement, the case has been before this Court on several occasions.

1. Factual Background

Under the Mediation Agreement, child support was abated for a period of two years, and either party could apply for a modification of child support after the two-year period. On May 1, 2003, two years after the court approved the Mediation Agreement, the mother moved for modification of child support. The trial court entered an order which, in pertinent part, stated that if the court granted the mother’s petition for modification of child support, the court could make changes retroactive to the date of the filing of the petition.

In July of 2004, the mother moved to amend her petition for modification. The father thereafter moved to dismiss. He argued that the court should dismiss the petition for modification because he had never been served a copy of the petition within the statutory requisite 120 days. He further argued that the court should dismiss the amended petition based upon the mother’s failure to prosecute the petition for modification within the statutory requirement of one year.

The trial court granted the father’s motion, without prejudice, on the ground that service on him had not been perfected within 120 days. The court denied the father’s motion to dismiss on the grounds that the mother had failed to prosecute the petition within one year.

On January 6, 2006, the mother filed an affidavit of return of service for the father. The return of service affidavit indicates that the father received individual service of the petition on May 14, 2008.

The mother filed her second amended petition on August 31, 2006. She sought a reduction in child support, retroactive to the date of filing the original petition of May 1, 2003. The State Attorney’s Office represented the father in this proceeding.

In the General Magistrate’s subsequent Interim Report, the magistrate granted the mother’s request for downward modification of child support. The mother argued that the reduction should be made retroactive to the date on which she first sought to modify in May of 2003, to which the father argued that the reduction should be made retroactive to the date when the mother filed her amended petition for modification in July of 2004.

The court based its child support modification ruling on the fact that the mother’s petition and amended petition were dismissed in December 2005 and, although the dismissal was without prejudice, it occurred within months prior to the time during which the mother filed her second amended petition for modification. The court held that the second amended petition for modification was a new case for which the mother paid a filing fee.

The General Magistrate also considered the mother’s claim for attorney’s fees and costs incurred in connection with the modification proceeding. The father argued that this was a Title IV-D case, under which the mother would not be entitled to recover attorneys fees as the non-prevailing obligor. In response, the mother argued that this was not a Title IV-D case because the Department of Revenue was never named a party. Additionally, the mother argued that the Department of Revenue never intervened, and thus under controlling law, this was not a Title IV-D case, despite the fact that the State Attorney’s Office provided representation to the father.

The General Magistrate rejected the father’s argument that this was a Title IV-D case. The General Magistrate ruled that due to the much greater income and assets of the father as compared with the mother’s lesser income and minimal assets, the father should be required to pay for part of the mother’s attorney’s fees and costs. The General Magistrate found $80,644.16 to be a reasonable amount for the mother’s attorney’s fees and costs and recommended that the father be required to pay $24,515.82, plus eighty per cent of the mother’s post-hearing fees.

The court disagreed with the General Magistrate and denied the mother’s request for attorney’s fees and costs on the grounds that this was a Title IV-D case and the law only authorized fees against the non-prevailing obligor, and the father was the prevailing obligee. The court rejected the mother’s argument that in order for this to have been a Title IV-D case, the Department of Revenue had to have been named as a party or intervened in the case.

Both parties filed exceptions to the General Magistrate’s conclusions. On December 14, 2007, the trial court entered its Order on Exceptions to Report of General Magistrate. The court ruled in favor of the father.

2. Child Support Modification

We first turn to the issue of whether the trial court committed error in its child support modification. We agree with the mother that the trial court’s failure to make her modification of child support retroactive to the date on which she first filed her petition for modification on May 1, 2003, constituted error.

The abuse of discretion- standard governs the review of trial court orders that modify child support modifications. See Alois v. Alois, 937 So.2d 171 (Fla. 4th DCA 2006). The trial court’s authority to order a reduction in a child support obligation retroactive to the date on which a petition for modification is filed is clear. See Miles v. Champlin, 805 So.2d 1085, 1086 (Fla. 1st DCA 2002) (“[A] trial court may ‘modify an order of support ... by increasing or decreasing the support ... retroactively to the date of the filing of the action or supplemental action for modification as equity requires’ ”) (citation omitted). Furthermore, child support modifications should be made retroactive to the time when the petition for modification was filed. See Batts v. Batts, 600 So.2d 1301 (Fla. 5th DCA 1992).

When the trial court dismissed the mother’s initial petition for modification, the trial court treated the second amended petition for modification as the mother’s initial pleading which did not relate back to any other pleading. Thus, the court denied the mother’s request for modification of child support retroactive to May of 2003, when the mother filed her original petition for modification. We conclude that this determination constituted error.

The mother’s alleged failure to serve the father within 120 days resulted in the trial court’s order that granted the father’s motion to dismiss the original petition. The trial court dismissed the initial petition based upon a false representation that the father had not been served with a copy of the petition. The father indeed had received timely service of the original petition for modification, approximately two weeks after the mother had filed her petition.

Notwithstanding that the father had received timely service of the original petition, he misrepresented this fact to the trial court when he moved to dismiss the mother’s amended petition for modification. In his motion to dismiss, the father argued that the court should dismiss the original petition because he was never served within the requisite 120 days. Thus, the father was well aware of the initial modification proceeding, and he should not be allowed to benefit from his own wrongdoing. See Dep’t of Revenue v. Jackson, 846 So.2d 486, 498 (Fla.2003) (holding that equitable principles apply to child support proceedings).

Although the mother did not move for reconsideration of the order of dismissal, she was, nonetheless, entitled to file her second amended petition as the court dismissed her initial amended petition without prejudice. Further, the father never objected to the filing of a second amended petition.

Additionally, the mother’s child support modification should be made retroactive to the time when she filed her first petition for modification because the mother’s reduced income occurred in 2003. Where the circumstances that give rise to a modification of child support exist at the time during which a petition for modification is filed, failure to order the modification retroactive to the date of the filing of the petition constitutes an abuse of discretion. See Levi v. Levi, 780 So.2d 261, 263 (Fla. 3d DCA 2001). As a result, the retroactive date for the purpose of child support modification is the date on which the mother first filed her petition for modification on May 1, 2003.

3. Attorney’s Fees and Costs

The abuse of discretion standard governs the review of an award of attorney’s fees. See Bateman v. Serv. Ins. Co., 836 So.2d 1109 (Fla. 3d DCA 2003). Where entitlement to attorney’s fees depends upon the interpretation of a statute, however, the standard of review is de novo. See Iannuzzelli v. Lovett, 981 So.2d 557, 559 (Fla. 3d DCA 2008). Here, a review of the attorney’s fee award in the mother’s favor appears inadequate, and the attorney’s fee order lacks the requisite findings to justify the award. An inadequate award of attorney’s fees is subject to reversal. See Urbieta v. Urbieta, 446 So.2d 230 (Fla. 3d DCA 1984); Marchion Terrazzo, Inc. v. Altman, 372 So.2d 512 (Fla. 3d DCA 1979).

Section 61.16, Florida Statutes (2009), provides for Title IV-D cases and non-IVD family law cases. In Title IV-D cases, section 61.16 states that attorney’s fees may only be assessed against the non-prevailing obligor. In this case, the father is the non-prevailing obligor.

The issue here is whether the presence of the Department of Revenue, as the state agency enforcing the child support payment of the mother, and the State Attorney’s office as the legal services provider, automatically converts this case into a Title IV-D case. We find that all child support cases that are administered by the Department of Revenue are considered Title IV-D cases, despite the fact that the Department of Revenue has not been named a party to the case.

While sections 61.16 and 409.2564(5), Florida Statutes (2009), discuss Title IV-D cases, neither requires that the Department of Revenue be a party to the case for it to be a Title IV-D case. Furthermore, the mother relied on Satchell v. Satchell, 949 So.2d 1116 (Fla. 1st DCA 2007) where the court determined that the Department of Revenue was already a party to a case, therefore making it a Title IV-D proceeding. Id. While the Department of Revenue, as a party to a case, does convert the case into a Title IV-D case, the issue here is whether a case can still be considered a Title IV-D case even if the Department of Revenue is not a party.

Persons eligible for Title IV-D aid include all those who apply for enforcement or support of child support collection services. See § 409.2557(2), Fla. Stat. (2009). The State Attorney’s Office represented the father in his defense of the mother’s child support proceeding, a right available to any parent, irrespective of whether the parent is indigent. This representation automatically converted this case into a Title IV-D case. The legislative intent behind the State’s enforcement of support for financially dependent children by persons responsible for their support is to augment additional remedies directed to the resources of the responsible parents. See § 409.2551, Fla. Stat. (2009). That intent supports the conclusion that the state legislature meant for the Department of Revenue to use its Title IV-D power to enforce child support collection against those parents who have not fulfilled their financial obligations.

Thus, the trial court was correct when it concluded that this was a Title IV-D case. However, because the father is now the non-prevailing obligor under section 61.16, the mother’s claim for attorney’s fees against the father is permitted.

4. Conclusion

In conclusion, the trial court incorrectly denied the mother’s request that her petition for modification be retroactive to the date on which she filed her first modification proceeding in 2003. We therefore reverse the trial court’s order in which it denied retroactive modification of child support to the date on which the second modification proceeding commenced. We also reverse the trial court’s denial of attorney’s fees in the mother’s favor.

Reversed and remanded.

      . She also appealed the trial court’s order on attorney's fees and costs entered on November 26, 2007. Appellee Dennis E. Bruce confessed error to the extent that the trial court failed to make specific findings of fact when it awarded $6000 in attorney’s fees in Spano’s favor. Accordingly, this Court remanded the cause to the trial court on February 23, 2009, so that it could make specific findings in support of the $6000 award. The trial court has since entered its attorney's fees order upon remand, but that order does not constitute part of the case before us.

      . See In re BB, 820 So.2d 409 (Fla. 3d DCA 2002); Spano v. Bruce, 816 So.2d 714 (Fla. 3d DCA 2002).

      . In this Court’s August 11, 2010 opinion, the father was the prevailing obligee in light of this Court’s affirmance of the trial court's dismissal of the mother’s initial petition for modification and denial of attorney’s fees in favor of the mother. The father is now the non-prevailing obligor.


author: WELLS, Judge.

text:
    Ibis Morejon VALDES, a/k/a Ibis Morejon, Appellant, v. Pablo J. VALDES, Appellee.
    Nos. 3D09-1291, 3D06-2980, 3D07-2894, 3D08-2173.
    District Court of Appeal of Florida, Third District.
    March 2, 2011.

      John G. Crabtree and George R. Baise, Jr., Key Biscayne; W. Stephen Lorenzo, for appellant.
    Leinoff & Lemos and Andrew M. Lei-noff, South Miami; Greene Smith & Associates, Cynthia L. Greene and Laura Davis Smith, Miami, for appellee.
    Before GERSTEN, WELLS, and SUAREZ, JJ.
   WELLS, Judge.

These consolidated appeals are from a number of orders entered on remand for the purpose of determining the enhanced value of the former husband’s non-marital property and distribution of same. Because the orders fail to accomplish our mandate we reverse and remand for further proceedings as provided herein.

FACTS

The parties were married for nine years and are the parents of three children. The former husband, Pablo J. Valdes, was and is a successful real estate investor and developer who entered the marriage with a net worth of approximately $8,000,000 in real estate holdings. The former wife, Ibis Morejon Valdes, entered the marriage with about $180,000 in personal property. See Valdes v. Valdes, 894 So.2d 264, 264 (Fla. 3d DCA 2005) {“Valdes P’).

Before the parties married, they entered into a prenuptial agreement. In Valdes I, this court agreed with the court below that although the former wife had waived any interest in the former husband’s separate or non-marital property in the prenuptial agreement, she had not waived “the enhanced value of [the former husband’s] non-marital properties” which stemmed from marital labor. Id. at 267. However, we reversed the distribution fashioned by the court below because the enhanced value assessed, $8,000,000, lacked evidentiary support:

In the instant case, the prenuptial agreement does not address enhancement value.... Accordingly, we conclude that the trial court properly found that [the former wife] did not waive her right to seek equitable distribution of the enhanced value of non-marital properties, despite the prenuptial agreement. Additionally, the enhancement value of the non-marital properties was the result of marital labor from both parties.
However, we reverse the valuation of the enhancement on the ground that there is no Record evidence to support the trial court’s valuation of the enhancement value of the non-marital property/assets.... In the instant case, the court’s valuation was based strictly on [the former husband’s] net worth, which presumably also includes other assets not subject to the valuation. Where the Final Judgment does not identify the property, nor its value, we cannot affirm the court’s rational for the distribution. Accordingly, we reverse the calculation of the enhancement value and remand for further proceedings consistent with section 61.075, Florida Statutes.

Id. at 267-68 (citations omitted).

The First Remand

On remand, the former wife requested that the lower court consider new evidence regarding the enhanced value of the former husband’s premarital properties. The former husband objected, claiming that there was sufficient evidence from the nine-day divorce trial to make a determination. The lower court denied the former wife’s request concluding that it would “rely solely upon the evidence and testimony previously presented in adjudicating the remanded issue.” Then, relying solely on the former husband’s Exhibit W, which contained figures taken from the former husband’s 2001 financial affidavit, and which was introduced into evidence at trial, the court below concluded that: (1) at the time of the marriage, the former husband had $10,961,458 in assets and $2,936,127 in liabilities, leaving him with net worth of $8,025,331; (2) of the thirty-one assets listed oh Exhibit W as being owned by the former husband at the time of the marriage, only thirteen assets still existed and had any value at the time the petition for dissolution was filed in 2000; and (3) based on the numbers provided by Exhibit W, these thirteen properties had increased in value by only $293,535 during the marriage.

The former wife appealed from this determination. While this appeal was pending, the former wife filed a Florida Rule of Civil Procedure 1.540 motion for relief from judgment claiming that the former husband’s 2001 financial affidavit and his Exhibit W intentionally omitted the values of a number of premarital assets that he still owned at the time of the divorce. Jurisdiction was relinquished for consideration of this motion. Although the trial court denied the Rule 1.540 motion on finding that no fraud had been demonstrated, it requested a further relinquishment of jurisdiction upon realizing that Exhibit W — the exhibit on which it had “relied completely in making its findings” — did not accurately represent the former husband’s ownership interests at the time of the divorce:

8. [I]n the process of taking testimony on the Former Wife’s [Rule 1.540] Motion, the Court Found that it had made a mistake in it’s calculations of the properties and the values in its previous [Order on Remand from District Court of Appeal].
9. This is so because the Court relied completely in making its findings in the Order on Remand, and in the trial, on what has been identified as Exhibit W. Exhibit W was a comparative list of properties and their values on the date of the parties’ prenuptial agreement and again on the date of filing of the dissolution of marriage. The Husband argues that this was simply a demonstrative exhibit, yet it was admitted into evidence during the trial and this Court has relied upon it for its accuracy and in so doing appears to have made a mistake.
10. After listening to the testimony during the hearing on the Former Wife’s Motion, the Court found that several properties were owned at the time of the marriage, were still owned or in the Former Husband’s possession or control at the time of filing the dissolution, had a value and were not listed on Exhibit W.
11. The Former Husband argued that he didn’t list them on Exhibit W because the form of ownership changed, i.e. to another corporation. However this was never presented to the Court at the time of trial. Further, this Court ruled at trial that properties owned by the Former Husband were “... regularly in play and interrelated to all other properties ...” and were “... so intermingled that the increase should be all marital ...”
12. The Court finds that it did not have the full benefit of all of the information from the Husband on Exhibit W upon which this Court relied.
13. The Court finds that as to some properties listed on Exhibit “W”, the Former Husband did in fact have some ownership interest at the date of the filing of the divorce. Those properties were not listed as of the date of filing on Exhibit “W”. This includes 92nd Avenue, Tract 12, Trac[t] 57, 10 Acres— HG/TR 12, 20 Acres — HG/TR 15 + 16, Les Fountain, 70 Lots — HG/Garden Development, 55 Lots — HG/TR 9. Some may have an increased value, others not, and still others may actually not be in existence at the time of filing, but the Court needs to take testimony in this regard.
14. The Husband testified that he was not sure of the exact evolution of some of the properties and that his assistant Lucy Suero would have the information.
15.... The Court should have included those and any others that belong on the list in the Final Judgment of Dissolution of Marriage, but more importantly in the Order on Remand.
16. This Court requests that The Third District Court of Appeal relinquish jurisdiction to allow this Court to make a determination as to the value of those additional properties that should have been included on Exhibit “W” as of the date of filing [ (“the Omitted Assets ”) ] and to determine whether the appreciation in those properties was active or passive.

(Emphasis added).

Jurisdiction was relinquished for the reasons set forth by the trial court.

The Second Remand

Following this court’s second remand, the trial court held a hearing at which only one witness testified: Lucy Suero, the former husband’s longtime bookkeeper. Relying on the former husband’s 2001 financial affidavit (which he represented as accurately representing the value of his assets when the petition for dissolution was filed), Exhibit W, schedule C to the parties’ prenuptial agreement and the former husband’s April 2008 affidavit, the former wife demonstrated that the Omitted Assets had significantly increased in value during the marriage.

The former husband, unlike the former wife, disregarded the trial court’s prior order precluding presentation of new evidence and, over objection, introduced a chart, the “Suero Summary,” a document purportedly representing the enhanced valuation of the Omitted Assets. Based upon this new evidence, which showed that the Omitted Assets did not enhance in value, but actually lost value, during the parties’ marriage, the court below concluded that the former wife was entitled to no further distributions. In these consolidated appeals, the former wife appeals from the zero enhancement valuation given the Omitted Assets and the trial court’s decision that no further distributions of these assets were warranted.

Analysis

We agree with the former wife that the zero enhancement valuation and distribution determinations made below regarding the Omitted Assets are wholly without support. They are without support because the single document on which they are based, the Suero Summary, should not have been admitted into evidence and because this summary is facially and woefully inaccurate by over $1,000,000.

Simply put, the Suero Summary should not have been admitted into evidence because it violated the trial court’s earlier decree that only evidence considered at the 2001 divorce trial would be considered in determining the enhanced value of the former husband’s premarital assets. The summary did not exist at the time of the divorce trial and, as conceded at oral argument, the information detailed in it did not come, as represented by the former husband’s counsel below, from tax returns or other evidence introduced into evidence at the divorce trial. This document should not, therefore, have been admitted into evidence and should have played no part in the trial court’s enhancement valuation determination.

It also should not have been admitted because the former wife was given insufficient notice of it. This detailed summary was handed to counsel for the former wife for the first time only minutes before the Omitted Asset hearing was to begin. A cursory examination of the document itself, which lists fifty individual lots followed by rows of numbers purporting to represent: (1) the lot’s pre-nuptial fair market value; (2) the lot’s associated construction costs; (3) the combination of the pre-nuptial value and construction costs for the lot; (4) the lot’s fair market value in 2000; and (5) each lot’s purported enhanced value as of the date of the divorce, confirms that no meaningful review of it could have been made in time to question its origin or accuracy. Indeed, the proof of this comes with the aid of a calculator and significant peace and quiet, which reveals that the enhanced values stated in this summary were derived, in part, by incorrectly deducting the premarital value of each lot twice from its 2000 fair market value. This simple mathematical error resulted in more than a million dollar error in the enhancement value of the Omitted Assets which, if corrected, would have shown the cumulative enhanced value of the Omitted Assets was, at a minimum, $1,046,679 and not a net loss of $108,881. Needless to say, this mode of proceeding was highly prejudicial and should not have been countenanced. See Agrofollajes, S.A. v. E.I. Du Pont De Nemours & Co., 48 So.3d 976, 994 (Fla. 3d DCA 2010) (recognizing that the rules of civil procedure are intended to avoid surprise and trial by ambush and that cases should be determined on the facts “rather than gamesmanship, surprise, or superior trial tactics” (quoting Binger v. King Pest Control, 401 So.2d 1310, 1313 (Fla.1981))); S.Z. v. Dep’t of Children & Family Servs., 873 So.2d 1277 (Fla. 3d DCA 2004) (finding that providing an incomplete discovery packet late in the day on Friday before a Monday hearing constituted an impermissible trial by ambush resulting in a denial of due process). Thus, even if the particulars of the summary were in accord with the trial judge’s prior evidentiary ruling, it should not have been admitted without providing counsel for the former wife with an adequate opportunity to examine it.

In short, the Suero Summary was not only improperly admitted into evidence, but also wholly inaccurate; therefore, it provides no support for the trial court’s Omitted Asset enhancement valuation.

That is not to say that there is no evidence in the record from which the enhanced value of the Omitted Assets may be ascertained. In accordance with its prior rulings, the court below had before it competent and substantial evidence from the divorce trial in the form of the former husband’s Exhibit W, his 2001 financial affidavit and schedule C to the parties’ prenuptial agreement. These documents demonstrate that the former husband’s premarital assets had significantly increased in value during the marriage. In fact, comparing the value of the Omitted Assets in 1991 as represented in these documents (by the former husband’s own figures valued at $3,743,151 less liabilities of $2,606,348), with the value of those same assets in 2000 (by the former husband’s own figures valued at $9,012,707 less liabilities of $2,129,765), the enhanced value of the Omitted Assets exceeded $5 million. See Dyson v. Dyson, 597 So.2d 320, 324 (Fla. 1st DCA 1992) (citing Crapps v. Crapps, 501 So.2d 661, 665 (Fla. 1st DCA 1987), and instructing that in evaluating the enhanced value of a party’s non-marital asset for equitable distribution purposes the court should consider: “(1) the value of [that party’s] equity in the property prior to the marriage; (2) the value of the property as of the petition filing date, unless another valuation date was specified to be more just and equitable under the circumstances; (3) the extent to which the value of the [ ] property was enhanced by causes other than the parties’ contribution of marital funds and labor; and (4) the extent to which value of the [] property was enhanced by the use of marital funds and labor”); see generally Equitable Distribution, Enhancement In Value And Appreciation Of Nonmarital Assets, FACS FL-CLE 6-1 § I.A.2. (2010).

We therefore reverse the Final Order on Hearing Dated March 10, 2009 and remand with instructions to recalculate the enhanced value of the Omitted Assets based on evidence introduced at the 2001 divorce trial. On remand, the trial court shall set out in its order the value of each premarital property at the time the prenuptial agreement was entered and at the time the petition was filed and shall state the enhanced value of each for equitable distribution. This includes not only the Omitted Assets, but also the assets previously valued by the court below in the Order on Remand from District Court of Appeal. Should the court decide to distribute the enhanced value of these assets unequally between the parties, it shall state its reasons for doing so, and the record support for same, in the final order. See § 61.075(1), Fla. Stat. (2010) (providing “in a proceeding for dissolution of marriage ... the court shall set apart to each spouse that spouse’s non-marital assets and liabilities, and in distributing the marital assets and liabilities between the parties, the court must begin with the premise that the distribution should be equal, unless there is a justification for an unequal distribution based on all relevant factors, including [those listed herein]”).

Reversed and remanded with instructions.

      . The trial court entered this order, titled “Order on Remand from District Court of Appeal,” on October 26, 2006.

      . The trial court entered this order, titled "Final Order on Hearing Dated March 10, 2009," on April 27, 2009.

      . At oral argument, counsel for the former husband admitted that the tax returns relied on to prepare this summary were not part of the evidence at the divorce trial. Moreover, while counsel for the former husband justified admission of this summary at the hearing below on the ground that it was based, in part, on information culled from the former wife’s expert’s report, the hearing transcripts reflect this report was not admitted into evidence at the former husband’s insistence. Having kept this document out, the former husband was in no position to invoke and rely on it to support either this summary or his case. See Hernandez v. State, 749 So.2d Í284, 1286 (Fla. 3d DCA 2000) (observing that the defendant had " ‘hoisted himself on his own petard,' ” having made a tactical decision and then reaped the benefits of it); Cole v. Angora Enters., Inc., 403 So.2d 1010, 1012 (Fla. 4th DCA 1981) (”[T]he developer-lessor should not expect to be able to invoke the ‘from time to time' language when it suits its purpose to do so and reject it when not to its taste and advantage. The developer-lessor has quite simply been hoisted on its own petard by these particular amendments.”).

      . Counsel for the former husband was unable, when questioned at oral argument, to supply or suggest a reason for twice deducting the premarital value of each parcel.

      . For example, as to the fourteen lots purportedly still owned by the former husband at the 92nd Avenue property (one of the Omitted Assets), the Suero Summary shows a net enhancement value in the amount of only $2,313 per lot at the time of the divorce:

      The only way to achieve this $2313 net enhancement result is to deduct the sum of the prenuptial land cost and the construction cost ($11,777 + $83,699 = $95,276) from the 2000 value ($109,366 — $95,276 = $14,090), and then to reduce this amount again by the premarital land value ($14,090 — $11,777 = $2313). The reason for this double dip is nowhere explained and could not be justified at oral argument and in all respects appears to be wholly inappropriate. See Cox v. Cox, 10 So.3d 180, 182 (Fla. 2d DCA 2009) (reversing alimony award and remanding where trial court had "double-counted” certain expenses).

      . In light of this evidence from the divorce trial, we see no valid reason why the court below chose to rely on documents not in evidence at the divorce trial or documents that should not have been admitted. The former husband repeatedly represented that his 2001 financial affidavit contained the most accurate valuation of his assets from 1998 through 2001. And, Exhibit W was merely a summary of that affidavit which the trial court relied on in determining the enhanced value of the former husband’s thirteen other premarital properties on remand.

      . In his April 2008 affidavit, the former husband identified the numerous properties listed on his 2001 Financial Affidavit that he claimed made up the Omitted Assets.

      . This court does not presume to determine the enhanced value of the Omitted Assets for the court below, but only to demonstrate that the enhanced value of the Omitted Assets is not zero as determined by the court below.

      . We further note that this court already has determined that "the enhancement value of the non-marital properties was the result of marital labor from both parties.” Valdes I, 894 So.2d at 267.

      . In the Final Judgment of Dissolution of Marriage, the former wife was awarded ten percent of the enhanced value of his premarital assets (an amount there determined to be over $8,000,000). On appeal, this court affirmed the trial court's determination that the former husband was entitled to an unequal distribution of the enhancement valuation based on the reasons set forth in the final judgment, but did not presume to approve a particular assigned percentage on remand. Valdes I, 894 So.2d at 268. In the Order on Remand from District Court of Appeal, the court below, without explication, awarded the former wife fifteen percent of the newly determined enhanced value of the former husband's premarital assets. On the record before us, we are unable to discern, and counsel for the former husband was at a loss to explain, how these percentages were derived and, thus, whether they comply with the mandates of section 61.075(1) of the Florida Statutes.


author: RAMIREZ, C.J.

text:
    Clifton D. SHEPPARD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-2870.
    District Court of Appeal of Florida, Third District.
    March 2, 2011.
    Rehearing Denied June 16, 2011.
    Carlos J. Martinez, Public Defender, and Andrew Stanton, Assistant Public Defender, for appellant.

      Pamela Jo Bondi, Attorney General, and Timothy R.M. Thomas, for appellee.
    Before RAMIREZ, C.J., and GERSTEN and WELLS, JJ.
   RAMIREZ, C.J.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. By information, the State of Florida charged Clifton D. Sheppard •with home-invasion robbery, attempted first degree murder, burglary with assault, two counts of kidnapping, felony causing bodily injury, and possession of a firearm while engaged in a criminal offense. The information alleged that all of the offenses occurred on or about August 31, 1997. Sheppard entered a plea of not guilty. He turned down a plea offer of eighteen years in prison. The case proceeded to trial, where Sheppard was represented by counsel. The jury found him guilty. He then filed a direct appeal from the judgment and sentence. In a per curiam opinion, we affirmed, and stated the following:

Although we deplore the prosecutorial misconduct evident in this case, the defendant elected to make no contemporaneous objections. The unobjected-to comments complained of do not rise to the level of fundamental error; they did not destroy the essential fairness of the trial. See Rogers v. State, 783 So.2d 980, 1002 (Fla.2001); Kilgore v. State, 688 So.2d 895, 898 (Fla.1996); Scoggins v. State, 691 So.2d 1185, 1189 (Fla. 4th DCA 1997)(“Fundamental error has been defined as one that goes to the essence of a fair and impartial trial, error so fundamentally unfair as to amount to a denial of due process.”).

Sheppard v. State, 834 So.2d 390 (Fla. 3d DCA 2003) (footnotes omitted).

Sheppard thereafter filed a timely motion pursuant to rule 3.850, where he alleged that his counsel had rendered ineffective assistance of counsel due to his failure to object to prosecutorial misconduct and his failure to investigate and discover two favorable witnesses. He also alleged that there was newly discovered evidence in the form of exculpatory testimony from the co-defendant. At the hearing, however, Sheppard abandoned his grounds for failure to investigate and the newly discovered evidence argument. The trial court summarily denied the motion without an evidentiary hearing of the failure to object.

On appeal from a summary denial, this Court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See also Fla. R.App. P. 9.141(b)(2)(D). The issue before us, however, is whether Sheppard has raised a facially sufficient claim for rule 3.850 relief when it is based only on the same grounds of unpreserved errors that have already been determined not to constitute fundamental error.

This Court’s previous finding of no fundamental error is determinative. In Chandler v. State, 848 So.2d 1031, 1046 (Fla.2003), the Florida Supreme Court stated that “[b]ecause [the defendant] could not show the comments were fundamental error on direct appeal, he likewise cannot show that trial counsel’s failure, to object to the comments resulted in prejudice sufficient to undermine the outcome of the case under the prejudice prong of the Strickland test.” See Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Here, the trial court correctly denied relief because Sheppard could not show prejudice in counsel’s failure to object. As such, because Chandler controls in this case, we must affirm.


author: CLARK, J.

text:
    Donna FRANKS, as Personal Representative of the Estate of Joseph James Franks, Sr., Deceased, Appellant, v. Gary John BOWERS, M.D., Benjamin M. Piperno, III, M.D., and North Florida Surgeons, P.A., a Florida Corporation, Appellees.
    No. 1D10-3078.
    District Court of Appeal of Florida, First District.
    March 16, 2011.
    Rehearing Denied May 20, 2011.
    Thomas S. Edwards, Jr., Jennifer K. Millis, and Eric C. Ragatz, of Edwards & Ragatz, P.A., Jacksonville, for Appellant.
    Kelly B. Mathis and Laurie M. Lee, of Mathis & Murphy, Jacksonville, for Appel-lees.

      Bryan S. Gowdy, of Creed & Gowdy, P.A., Jacksonville, for the Florida Justice Association, amicus curiae.
    Andrew S. Bolin, of Beytin, Bolin, McLaughlin & Willers, P.A., Tampa, for the Florida Defense Lawyers Association, amicus curiae.
   CLARK, J.

The appellant challenges an order by which the circuit court stayed the appellant’s wrongful death and medical negligence action, and compelled arbitration pursuant to a doctor-patient agreement. In contesting that ruling, the appellant contends that the contractual agreement was misconstrued, that it is otherwise void as being contrary to public policy, and unconscionable. However, the appellant has not established any such infirmity with regard to the contractual provisions, or any error in the court’s enforcement of the contractual agreement.

The appellant, as the personal representative of the estate of Joseph Franks, sued the appellees for wrongful death and medical negligence when Mr. Franks died after receiving medical care from the appellees. In obtaining such care, Mr. Franks had signed a document entitled “North Florida Surgeons Financial Agreement” which contained a provision whereby the doctor and patient agreed that all disputes, including “any negligence claim relating to the diagnosis, treatment, or care of Patient ... shall be resolved by arbitration.... ” The agreement called for the arbitration to be “in lieu and instead of .any trial by Judge or Jury.” The agreement further provided a limitation on non-economic damages, and required compliance with the pre-suit notice requirements in Chapter 766, Florida Statutes.

In response to the appellant’s lawsuit, the appellees sought to compel arbitration under the terms of the Financial Agreement. The appellant replied to that motion by asserting that the Financial Agreement’s invocation of the pre-suit notice provisions in Chapter 766 also invoked the arbitration provisions in that chapter, with such arbitration being voluntary rather than mandatory. The circuit court rejected that argument, ruling instead that the mandatory arbitration clause in the Financial Agreement was controlling. Although the appellant now argues that the court misconstrued the Financial Agreement in that regard, the court properly construed and applied the arbitration clause.

The appellant contends that the arbitration clause in the Financial Agreement is contrary to the public policy reflected in Chapter 766, which contains a somewhat different arbitration scheme for claims of medical negligence. Among other differences, for the voluntary arbitration in Chapter 766 to pertain, the defendants must not contest liability and the arbitration would address the amount of damages, with certain specified evidentiary standards, and a limitation on the amount of non-economic damages that could be awarded in arbitration, and another limitation if the claim proceeds to trial. See §§ 766.106(3)(b)(3); 766.207(2); 766.207(7); 766.118(2), Fla. Stat. The arbitration clause in the Financial Agreement contains a similar limitation on the arbitrated non-economic damages, but without any requirement that liability not be contested, and without any provision for the claim to proceed to trial (as arbitration under the Financial Agreement is mandatory). The appellant points to these differences, along with certain other differences between the Financial Agreement and Chapter 766 arbitration, and asserts that the Financial Agreement is thereby inconsistent with the public policy which the legislature embodied in Chapter 766.

In furtherance of that policy argument, the appellant refers to Alterra Healthcare Corp. v. Estate of Linton, 953 So.2d 574 (Fla. 1st DCA 2007), which invalidated an arbitration agreement with limitations on non-economic damages and with other restrictions, as being inconsistent with statutory provisions and public policy. The court in Alterra Healthcare referred to the Nursing Home Residents Act in Chapter 400, Florida Statutes, and the Assisted Living Facilities Act which is now in Chapter 429, Florida Statutes. See also Blankfeld v. Richmond Health Care, Inc., 902 So.2d 296 (Fla. 4th DCA 2005); Romano v. Manor Care, Inc., 861 So.2d 59 (Fla. 4th DCA 2003). However, those cases do not address Chapter 766 arbitration, and instead involved arbitration agreements that were contrary to remedial enactments which did not authorize arbitration, and which created private rights and a statutory cause of action which had not previously existed. And as was emphasized in Blank-feld and Romano, the legislature enacted the nursing home provisions after a grand jury investigation revealed that substantial abuses of residents were occurring on a frequent basis in those facilities, whereupon the legislature responded with statutes intended to protect the residents, guaranteeing them certain rights and providing a civil cause of action for violations of those rights. See e.g. § 400.023, Fla. Stat.

The medical negligence provisions in Chapter 766, on the other hand, were enacted in response to a dramatic increase in the cost of medical malpractice insurance, see section 766.201, Florida Statutes, which the supreme court described in University of Miami v. Echarte, 618 So.2d 189 (Fla. 1993), as creating an “overpowering public necessity.” Chapter 766 itself imposes limitations on non-economic damages, and provides for arbitration as a means of dispute resolution. See §§ 766.207; 766.209; 766.118, Fla. Stat.

The differences between the arbitration process in Chapter 766 and arbitration under the Financial Agreement in the present case do not countermand the public policy reflected in Chapter 766, as applied to the claims presented in this case. Unlike the nursing home cases, the Financial Agreement does not eliminate statutory rights which are essential in effectuating legislative intent, or policy. Instead, the arbitration clause, as applied in this instance, affords meaningful relief and is consistent with the legislative purpose and the public policy which led to the enactment of the medical negligence provisions in Chapter 766.

The appellant has likewise failed to show any infirmity with regard to the arbitration provisions in the Financial Agreement, upon the assertion that they should be deemed to be unconscionable. Such unconscionability relates to the procedural manner in which the agreement was obtained, and substantive notions of basic fairness. See e.g., Gainesville Health Care Center, Inc. v. Weston, 857 So.2d 278 (Fla. 1st DCA 2003); Fowertel. Inc. v. Bexley, 743 So.2d 570 (Fla. 1st DCA 1999); see also Frantz v. Shedden, 974 So.2d 1193 (Fla. 2d DCA 2008). To prevail on an assertion that a contractual provision is unconscionable and should not be enforced, the appellant must show that the agreement is both procedurally and substantively unconscionable. Id. The appellant has not made that necessary showing, and in the circumstances of this case has thus not demonstrated any unconscionability, or any error in the circuit court’s enforcement of the contractual agreement.

The appealed order is AFFIRMED.

VAN NORTWICK and LEWIS, JJ., concur.


text:
    Derrick L. PENNYWELL, Appellant, v. DEPARTMENT OF REVENUE, o/b/o, Tamiko WOODARD, Appellee.
    No. 1D10-6105.
    District Court of Appeal of Florida, First District.
    March 16, 2011.
    Rehearing Denied April 8, 2011.
    Derrick L. Pennywell, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of a final judgment in a paternity and child support case. We dismiss the appeal as untimely for the reasons that follow.

The final judgment was entered by the circuit court in Gadsden County on September 16, 2010. Appellant filed a timely motion for rehearing, which was denied by the trial court on September 30, 2010. Appellant then filed a second motion for rehearing, which was denied on October 13, 2010. Thereafter, on November 3, 2010, Appellant filed a notice of appeal in the Second District Court of Appeal. The notice of appeal containing the date-stamp by the clerk of the Second District was then filed in this court on November 16, 2010. (The notice of appeal was apparently returned to Appellant by the Second District and then filed by Appellant with this court.)

In response to our order to show cause why this appeal should not be dismissed as untimely, Appellant argued that the notice of appeal was timely filed in the Second District. Appellant correctly focuses on the date that the notice of appeal was filed in the Second District, but his argument is premised upon the erroneous assumption that the deadline for the appeal ran from the date that the second motion for rehearing was denied.

The notice of appeal should have been filed in the Gadsden County circuit court, not this court (and certainly not the Second District). See Fla. R.App. P. 9.110(b). However, the filing of a notice of appeal in the wrong court is not a jurisdictional defect. See Kaweblum v. Thornhill Estates Homeowners Ass’n, Inc., 755 So.2d 85, 88 (Fla.2000); Alfonso v. Dept, of Envtl. Reg., 616 So.2d 44, 47 (Fla.1993). The notice is considered to have been filed in the proper court as of the date that it was filed in the wrong court, which in this case is November 3, 2010. See Alfonso, 616 So.2d at 47. But, even using that date, the notice of appeal was untimely.

A notice of appeal must be filed within 30 days after rendition of the order to be reviewed. See Fla. R.App. P. 9.110(b). Here, the final judgment was rendered on September 30, 2010, when Appellant’s first motion for rehearing was denied. See Fla. R.App. P. 9.020(h)(1). The second motion for rehearing was unauthorized and did not further delay rendition of the final judgment. Id.; see also Johnson v. Johnson, 902 So.2d 241, 244 (Fla. 1st DCA 2005); De Ardila v. Chase Manhattan Mortgage Corp., 826 So.2d 419, 421 (Fla. 3d DCA 2002).

The 30th day after rendition of the final judgment was Saturday, October 30, 2010. Thus, the deadline for filing the notice of appeal was Monday, November 1, 2010. See Fla. R.App. P. 9.420(f). Appellant’s notice of appeal was not filed until November 3, 2010, which is two days late.

The filing deadline is jurisdictional, and the untimely filing of a notice of appeal precludes the court from exercising jurisdiction over the appeal. Peltz v. Dist. Court of Appeal, Third Dist., 605 So.2d 865, 866 (Fla.1992); see also Mekertin v. Winn Dixie Stores, Inc., 869 So.2d 1286, 1288 (Fla. 4th DCA 2004) (“The time for taking an appeal is a jurisdictional requirement established by Florida Rule of Appellate Procedure 9.110(b). Where the notice of appeal is not filed within thirty days of rendition, the appellate court is precluded from exercising jurisdiction over the appeal.”). Accordingly, we must dismiss this appeal for lack of jurisdiction.

DISMISSED.

BENTON, C.J., PADOVANO and WETHERELL, JJ., concur.


author: THOMAS, J.

text:
    Michael J. FARRELL, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-6354.
    District Court of Appeal of Florida, First District.
    March 22, 2011.
    Rehearing Denied May 19, 2011.

      Michael J. Farrell, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Michael T. Kennett, Assistant Attorney General, Tallahassee, for Appellee.
   THOMAS, J.

In his seventh appeal to this court stemming from his judgment and sentence, Appellant appeals an order dismissing his petition for writ of habeas corpus. For the reasons explained below, we affirm the trial court’s order.

Factual Background

After Appellant reached a plea agreement pursuant to which he would be sentenced to twenty-four months in prison followed by three years’ probation, the trial court set a sentencing date for March 26, 2001. That hearing was continued at Appellant’s request for medical reasons. A second hearing set for April 9, 2001, was also continued for medical reasons. The new hearing was to be held on April 23, 2001, but for reasons not clear from the record, it was rescheduled to April 30, 2001.

Appellant failed to appear at that hearing. Both the prosecutor and defense counsel informed the court that Appellant was notified of the hearing date, and the prosecutor informed the court that Appellant’s father gave him the notice when he received it in the mail and the father did not know where Appellant was. At the State’s request, the trial court issued a capias writ. On May 8, 2001, Appellant was adjudicated guilty and sentenced in absentia. The trial court sentenced appellant to fifteen years in prison.

This court affirmed his judgment and sentence. See Farrell v. State, 829 So.2d 207 (Fla. 1st DCA 2002). Subsequently, over the next eight years Appellant unsuccessfully sought relief via postconviction motions filed pursuant to Florida Rules of Criminal Procedure 3.800 and 3.850, two petitions for writ of mandamus, and a petition for writ of habeas corpus. During that period he also filed five more appeals with this court, and two with the Florida Supreme Court. Appellant once again sought relief via a petition for writ of habeas corpus and, failing in that effort, now appeals to this court.

Analysis

Appellant’s most recent petition for writ of habeas corpus improperly challenges his sentence on various constitutional grounds. As explained in Baker v. State, 878 So.2d 1236, 1238-39 (Fla.2004):

The history of rule 3.850[] indicates that it was intended to provide a procedural mechanism for raising those collateral postconviction challenges to the legality of criminal judgments that were traditionally cognizable in petitions for writs of habeas corpus. Thus, this rule essentially transferred consideration of these traditional habeas claims from the court having territorial jurisdiction over the prison where the prisoner is detained to the jurisdiction of the sentencing court.

Under current law, habeas petitions are proper only to address issues regarding a defendant’s incarceration, not the sentence leading to the incarceration. See Broom v. State, 907 So.2d 1261, 1262 (Fla. 3d DCA 2005) (holding circuit court of the county in which a defendant is incarcerated has jurisdiction to consider a petition for writ of habeas corpus when the claims raised in the petition concern issues regarding his incarceration, but not when the claims attack the validity of the judgment or sentence).

Furthermore, as this court held in Zuluaga v. State, Department of Corrections, 32 So.3d 674, 676-77 (Fla. 1st DCA 2010):

The possibility that Appellant may have exhausted his remedies in the sentencing court — direct appeal, postconviction proceedings and appeals — is not a basis upon which Appellant could obtain the writ of habeas corpus from the circuit court in Hamilton County. Habeas corpus is not a vehicle for obtaining additional appeals of issues which were raised or should have been raised on direct appeal, or which could have been, should have been, or were raised in post-conviction proceedings.

(Footnote omitted.)

Appellant has exhausted his remedies, including direct appeal and postcon-viction proceedings under rules 3.800 and 3.850, Florida Rules of Criminal Procedure. Any attempts to continue seeking redress pursuant to the latter are now barred, because it has been more than two years since Appellant’s judgment and sentence became final. See Fla. R.Crim. P. 3.850(b) (providing that no “motion shall be filed or considered pursuant to this rule if filed more than 2 years after the judgment and sentence became final.”). Thus, because a petition for habeas corpus is an improper method by which to collaterally attack a judgment and sentence, and because Appellant’s other remedies have been exhausted or are time-barred, the trial court properly dismissed Appellant’s petition. Appellant’s only remaining remedy is to seek clemency from the executive branch.

With the exception of Appellant’s appeals from his judgment and sentence and the denial of his motions filed pursuant to rules 3.800 and 3.850, his continuous filing of petitions for various writs (all of which were nothing more than impermissible collateral attacks on his sentence) and his nearly annual appeals constitute a clear abuse of judicial process. Consequently, pursuant to State v. Spencer, 751 So.2d 47 (Fla.1999), we are also issuing an order to show cause as to why Appellant should not be denied further pro se access to this court.

Conclusion

For the foregoing reasons, the trial court’s order dismissing Appellant’s petition for writ of habeas corpus is AFFIRMED.

DAVIS, J., concurs.

BENTON, C.J., concurs in result.


author: ROTHENBERG, J.

text:
    STATE FARM FLORIDA INSURANCE COMPANY, Petitioner, v. Rene PUIG and Sylvia Puig, Respondents.
    No. 3D10-2104.
    District Court of Appeal of Florida, Third District.
    March 23, 2011.

      Carlton Fields, and Paul L. Nettleton and Nancy C. Ciampa, Miami, for petitioner.
    Jeffrey N. Golant, Pompano Beach, for respondents.
    Before ROTHENBERG, LAGOA, and EMAS, JJ.
   ROTHENBERG, J.

In their first-party bad faith action against State Farm Florida Insurance Company (“State Farm”), the plaintiffs, Rene and Sylvia Puig (“the Puigs”), moved to compel State Farm to produce its entire claim file. The trial court granted the Puigs’ motion, and State Farm now seeks a writ of certiorari quashing the trial court’s order. We conclude that the trial court misapplied the Florida Supreme Court’s holding in Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121 (Fla.2005), in the following two ways: (1) by impermissibly compelling, over State Farm’s assertions of work product protection, the production of claim file documents prepared after resolution of the underlying litigation; and (2) by failing to give any consideration to State Farm’s assertions of attorney-client privilege. Accordingly, we grant the petition in part, and deny the petition in part.

BACKGROUND AND PROCEDURAL HISTORY

Hurricane Wilma damaged the Puigs’ home in October 2005. The Puigs submitted a timely claim to State Farm seeking to recover approximately $234,000. State Farm acknowledged coverage under the policy, but only paid out approximately $49,000. In December 2006, the Puigs commenced an action for declaratory judgment seeking to establish entitlement to a larger payout. The underlying litigation concluded on February 25, 2008, when the trial court confirmed an appraisal award of approximately $106,000 in favor of the Puigs.

In November 2006, and again in March 2007, the Puigs filed notice that they intended to file a bad faith action against State Farm. In February 2009, the Puigs filed a supplemental complaint for statutory bad faith and defamation. The Puigs requested the production of State Farm’s entire claim file. State Farm objected, but did produce what it considered to be the non-privileged portions of the file, along with a privilege log.

The Puigs moved to compel the production of the entire claim file “as of February-25, 2008.” After the first hearing, the trial court reserved ruling, but ordered State Farm to produce the documents identified in its privilege log for an in camera review. At the next hearing on the motion, the trial court compelled the production of all claim file documents, citing as authority the Florida Supreme Court’s opinion in Ruiz. On July 15, 2010, the trial court issued an amended order compelling State Farm’s production of the entire claim file, despite State Farm’s assertions that they were protected by the work product doctrine and by the attorney-client privilege. Notably, over State Farm’s assertions of work product protection, the trial court’s order compelled the production of documents prepared subsequent to February 25, 2008, after the underlying litigation over the Puigs’ claim had concluded. This petition followed.

JURISDICTION

“To receive certiorari jurisdiction over a non-final, non-appealable order, a petitioner must show two prerequisites. First, that the order caused irreparable harm which cannot be remedied on appeal following final judgment; and second, that the order departed from the essential requirements of the law.” Fuller v. Truncale, 50 So.3d 25, 27 (Fla. 1st DCA 2010); see also Allstate Ins. Co. v. Boecher, 733 So.2d 993, 999 (Fla.1999) (quoting Allstate Ins. Co. v. Langston, 655 So.2d 91, 94-95 (Fla.1995)) (“[Cjertiorari is the appropriate remedy when a discovery order ‘departs from the essential requirements of law, and thus causes material injury to the petitioner throughout the remainder of the proceedings, effectively leaving no adequate remedy on appeal.’ ”).

ANALYSIS

1. The Correct Portion of the Order

The trial court ordered State Farm to produce a number of claim file documents prepared prior to the conclusion of the underlying litigation. State Farm failed to produce a number of those documents, asserting they were protected under the work product doctrine. However, in Ruiz, 899 So.2d at 1129-30, the Florida Supreme Court clearly held that all work product material in the claim and litigation files “that was created up to and including the date of resolution of the underlying disputed matter” must be produced in a first-party bad faith action. Thus, despite State Farm’s assertions of protection, the trial court correctly compelled State Farm to produce the work product materials in its claim file that were prepared on or before February 25, 2008, and we deny the petition as to that portion of the trial court’s order.

2. The Trial Court’s First Departure From the Essential Requirements of Law

The trial court departed from the essential requirements of law by compelling the production of State Farm’s work product materials prepared after the conclusion of the underlying litigation. Admittedly, those materials “may be subject to production upon a showing of good cause or pursuant to an order of the court following an in camera inspection.” Id. at 1130 (emphasis added). However, in this case, the Puigs’ motion to compel production was specifically limited to claim file documents prepared “as of February 25, 2008, the date the [trial court] confirmed the appraisal award.”

The Puigs made no showing of good cause, special relevance, or need. See id. (holding that work product materials prepared after the conclusion of the underlying litigation may be subject to production upon good cause shown). Furthermore, the Puigs did not even request the court to compel the production of post-February 25, 2008 claim file documents. See Homestead-Miami Speedway, LLC v. City of Miami, 828 So.2d 411, 413 (Fla. 3d DCA 2002) (striking portion of order providing relief that was neither pled nor requested); Fed. Nat’l Mortg. Ass’n v. Blocker, 728 So.2d 306, 307 (Fla. 1st DCA 1999) (finding that an order granting relief that was not requested, noticed, or litigated constitutes a departure from the essential requirements of the law). Thus, we conclude that the trial court departed from the essential requirements of the law by compelling the production of claim file documents prepared after the conclusion of the underlying litigation.

3. The Trial Court’s Second Departure From the Essential Requirements of Law

The trial court also departed from the essential requirements of law when it agreed with the Puigs that the Ruiz case entirely eliminated an insurer’s ability to assert its attorney-client privilege in a first-party bad faith action. This decision amounted to a complete misunderstanding of Ruiz. As Justice Wells stated in a separate opinion: “I emphasize that the only issue being decided in this case is the discovery of work product in the claims file pertaining to the underlying insurance claim.” Ruiz, 899 So.2d at 1132 (Wells, J., concurring in part and dissenting in part) (emphasis added). Also, in the years following the Ruiz decision, every other district court of appeal has held that the attorney-client privilege continues to exist and be available to insurers that are defending statutory bad faith claims, see West Bend Mut. Ins. Co. v. Higgins, 9 So.3d 655, 658 (Fla. 5th DCA 2009); Progressive Express Ins. Co. v. Scoma, 975 So.2d 461, 465 (Fla. 2d DCA 2007); Liberty Mut. Fire Ins. Co. v. Bennett, 939 So.2d 1113, 1114 (Fla. 4th DCA 2006); XL Specialty Ins. Co. v. Aircraft Holdings, LLC, 929 So.2d 578, 583 (Fla. 1st DCA 2006).

We agree with the First, Second, Fourth, and Fifth Districts. In Ruiz, the Florida Supreme Court held that in the bad-faith context, the normally automatic work product protection afforded to certain claim file documents will not bar their production. Ruiz, 899 So.2d at 1131. However, that decision did not add a first-party bad faith exception to the statutory protection of confidential communications between attorneys and their clients. See § 90.502(4), Fla. Stat. (2006) (providing a limited list of exceptions where the privilege does not exist). As stated in Higgins:

There are essential distinctions between an immunity from discovery based on the work product doctrine and the attorney-client privilege. First, they have different sources — work product immunity is governed by rule and is designed to facilitate litigation. The attorney-client privilege is the oldest confidential communication privilege known in the common law and is now codified by statute and contained in the Evidence Code, section 90.502, Florida Statutes (2007). The purpose of the attorney-client privilege is to “encourage full and frank corn-munication between attorneys and their clients and thereby promote broader public interests in the observance of law and administration of justice.” Am. Tobacco v. State, 697 So.2d 1249, 1252 (Fla. 4th DCA 1997) (quoting Haines v. Liggett Grp., Inc., 975 F.2d 81 (3d Cir. 1992)). It is an interest traditionally deemed worthy of maximum legal protection. Id.

Higgins, 9 So.3d at 657. The Higgins court and each of our sister courts across this state have concluded that the attorney-client privilege exists for a host of good reasons, and adherence to the law requires that confidential communications between an attorney and a client are not subject to compelled production.

Our review of the instant case reflects that the trial court departed from the essential requirements of law by disregarding State Farm’s rightful assertions of attorney-client privilege. The trial court did so under the banner of the compelled claim file production involved in Ruiz. However, the issue in Ruiz was limited to whether an insurer’s assertion of work product protection must yield to a bad-faith plaintiffs need to determine whether the underlying claim was processed in good or bad faith. Ruiz, 899 So.2d at 1124. The Ruiz holding did not alter the availability and existence of the attorney-client privilege. See id. at 1131 (“In accordance with our decision today, work product protection that may otherwise be afforded to documents prepared in anticipation of litigation of the underlying coverage dispute does not automatically operate to protect such documents from discovery in the ensuing, or accompanying, bad faith action.”) (Emphasis added). In other words, the trial court’s decision lacked any support in the law.

The instant petition must be granted in large part because the essential requirements of law provide that the attorney-client privilege exists and is available to an insurer that is faced with a bad faith claim. On remand, if the trial court finds that State Farm is seeking to protect confidential communications exchanged between State Farm and its personal counsel, the trial court may not order disclosure, unless the privilege was waived or disclosure is otherwise permitted by law.

CONCLUSION

The trial court departed from the essential requirements of law in two ways. First, where there was no good cause shown, and the Puigs did not even request the production of work product materials in State Farm’s claim file prepared after February 25, 2008, the trial court imper-missibly compelled State Farm to produce those documents. Second, the trial court departed from the law by deciding that the Ruiz decision — a work product doctrine case — eliminated the attorney-client privilege for insurers involved in bad faith litigation. Allowing those portions of the order to stand would materially harm State Farm’s interests, leaving no adequate remedy available on appeal. See Langston, 655 So.2d at 94-95.

Petition for writ of certiorari granted in part and denied in part, order quashed in part, and remanded.

      . We note that just prior to our opinion being released, the Florida Supreme Court issued its opinion in Genovese v. Provident Life & Accident Insurance Co., - So.3d - (Fla. 2011), holding that “the attorney-client privilege is applicable in the first-party bad faith context.” Id. at-.

      . We reject the Puigs’ argument that Ruiz somehow "revived” this Court's holding in Fidelity & Casualty Insurance Co. of New York v. Taylor, 525 So.2d 908 (Fla. 3d DCA 1987), as it related to the attorney-client privilege in bad faith cases. Taylor was disapproved by Kujawa v. Manhattan National Life Insurance Co., 541 So.2d 1168, 1169 (Fla. 1989). Although the Florida Supreme Court receded from Kujawa in Ruiz, 899 So.2d at 1122, we again emphasize that Ruiz did not address the attorney-client privilege. Thus, the Puigs’ claim — that Ruiz “revived” that portion of Taylor finding no attorney-client privilege in bad faith cases — is without merit.