author:
PER CURIAM.
      COPE, J.

text:
    Justin KOREN, Appellant, v. SCHOOL DISTRICT OF MIAMI-DADE COUNTY, Florida and Public Employees Relations Commission, Appellees.
    Nos. 3D09-1932, 3D09-1897.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 2010.

      Thomas E. Elfers, Miami, for appellant.
    Sharon E. Cromar, Carlos R. Lopez and Colin M. Roopnarine, Tallahassee, Staff Attorneys, Public Employees Relations Commission; Luis M. Garcia, Deputy Assistant, Miami-Dade School Board, for ap-pellees.
    Before COPE, SUAREZ, and SALTER, JJ.
   PER CURIAM.

Justin Koren [“Koren”] appeals from the Florida Public Employed Relations Commission’s [“PERC”] order affirming the General Counsel’s summary dismissal of Koren’s unfair labor practices complaints. Our review in this case is de novo. See Miami-Dade County v. Government Supervisors Ass’n of Florida, OPEIU AFL-CIO Local 100, 907 So.2d 591, 593 (Fla. 3d DCA2005). We affirm.

Koren filed a complaint against the School Board of Miami-Dade County [“School Board”] alleging unfair labor practices violations pursuant to sections 447.501(l)(a) and (d), Florida Statutes (2008). The allegations arose out of a series of interactions between Koren and Deborah Leal [“Leal”], principal of South-wood Middle School, where Koren worked as a language arts teacher. Koren alleged that Leal determined to discharge or transfer him, was vindictive and manipulative, and that she publically humiliated him with false and misleading charges of misbehavior or malfeasance. Koren alleged that she did this in retaliation for his involvement in a civil rights violation complaint by another employee against Leal.

In evaluating Koren’s complaint, the PERC relied on Pasco County School Board v. Fla. Pub. Emps. Relations Comm’n, 353 So.2d 108 (Fla. 1st DCA 1977), which sets forth a two-part test for the sufficiency of an unfair labor practice charge. The Pasco case provides that, “in any such proceeding the burden is upon the claimant to present proof by a preponderance of the evidence that (a) his conduct was protected and (b) his conduct was a substantial or motivating factor in the decision taken against him by the employer.” Although the PERC found that Ko-ren’s participation in a civil rights action in March 2008 qualified as protected activity and met the first prong of the Pasco test, the General Counsel also found that Koren failed to prove by a preponderance of the evidence that his protected conduct was “a substantial and motivating factor” in Leal’s alleged retaliatory actions.

After Koren’s initial complaint was dismissed, he filed an amended complaint alleging that about one month after he filed his original complaint, he was escorted from his classroom, and subsequently was involuntarily transferred to another school several miles away without explanation. The PERC also dismissed the amended complaint as insufficient to establish a pri-ma facie violation of an unfair labor practice. On appeal, the Commission reviewed Koren’s charges in both cases and concluded that they did not demonstrate prima facie violations of the applicable statutes, and affirmed the General Counsel’s dismissal. On the same day Koren filed his appeals, he filed a new unfair labor practice charge with new allegations. This, too, was summarily dismissed. Koren appealed from that dismissal, and the Commission affirmed that dismissal as well. Koren here appeals.

Koren bases his unfair labor practice allegations on several incidents that he claims show adverse employment action and prove Leal’s animus against him for engaging in a protected activity. Although PERC decisions on unfair labor practice charges are entitled to considerable deference on appeal, we review this case de novo. See Cagle v. St. Johns County School Dist., 939 So.2d 1085 (Fla. 5th DCA 2006) (holding that review of an agency’s statutory interpretation is de novo, and that a reviewing court must defer to an agency’s interpretation of an operable statute as long as that interpretation is consistent with legislative intent and is supported by substantial, competent evidence, and is not clearly erroneous) and cases cited therein; see also Miami-Dade County v. Government Supervisors Ass’n of Florida, OPEIU AFL-CIO Local 100, 907 So.2d 591, 593 (Fla. 3d DCA 2005) (acknowledging the case law that accords deference to PERC and warning that PERC’s interpretation of the law should not be reversed unless clearly erroneous, yet stating that the appellate court does not have to accord deference to PERC’s interpretation of the law where that interpretation conflicts with the plain and ordinary meaning of the statute); Florida Public Employees Council 79, AFSCME, AFL-CIO v. State, 921 So.2d 676 (Fla. 1st DCA 2006) (same); School Bd. of Dade County v. Dade Teachers Ass’n, FTP-NEA, 421 So.2d 645 (Fla. 3d DCA 1982).

After a thorough reading of the record, we cannot say that the events set forth in Koren’s complaints rise to the level of retaliation or employment discrimination contemplated by sections 447.501(l)(a) and (d), Florida Statutes (2008) and conclude that the record reveals no basis for finding a prima facie violation of that statute. See Sch. Bd. of Lee County v. Lee County Sch. Bd. Employees, Local 780, AFSCME, 512 So.2d 238, 239 (Fla. 1st DCA 1987) (holding that, in proving a violation of section 447.501(1)(a), an employee must show that his or her otherwise protected activity was a substantial or motivating factor in the employer’s decision or action which constituted the alleged violation). “A successful claim under section 447.501(l)(a) does not hinge on the employee’s ‘reasonable belief.’ Rather, a successful claim under this provision requires proof that the exercise of statutorily protected conduct motivated the employer to make a threatening or coercive decision or a decision against the employee’s interest.” City of Coral Gables v. Coral Gables Walter F. Stathers Mem’l Lodge 7, Fraternal Order of Police, 976 So.2d 57, 63 (Fla. 3d DCA 2008); see also MacLean v. City of St. Petersburg, 194 F.Supp.2d 1290, 1298 (M.D.Fla.2002) (reminding that an employment action is not adverse merely because the employee dislikes or disagrees with it). A public employee’s failure to prove that the exercise of statutorily protected conduct motivated the employer to make a threatening or coercive decision or a decision against the employee’s interest constitutes a failure to establish a prima facie case of the alleged unfair labor practice. City of Coral Gables, 976 So.2d at 64. Although the record suggests that the two parties had disagreements, there is just not sufficient objective evidence of animus, or relation of adverse events to Koren’s participation in a protected activity, necessary to sustain the allegations of unfair labor practices as set forth by statute and case law. See Lawrence v. Wal-Mart Stores, Inc., 236 F.Supp.2d 1314 (M.D.Fla.2002) (holding that, even if Plaintiff showed that he suffered an adverse employment action, he did not show that the employment actions were causally related to his statutorily protected conduct).

Affirmed.

SUAREZ and SALTER, JJ., concur.

COPE, J.

(dissenting).

Respectfully, the Public Employee Relations Commission (“PERC”) and the majority opinion have applied incorrect legal standards to this case.

This is an appeal from orders which dismiss an unfair labor practice (“ULP”) charge which a teacher, Justin Koren, filed against the School District of Miami-Dade County. The theory of the dismissal is that Mr. Koren failed to state a cognizable claim. This is the labor law equivalent of an order dismissing a complaint. In reality the teacher’s filings do state a cognizable claim and PERC erred in entering the dismissal order.

I.

Mr. Koren was a teacher at Southwood Middle School, where he had taught since 2005. In February 2008 he assisted a security guard, Ms. Morris, in drafting a charge of harassment for sexual orientation against the School District and the school principal, Ms. Leal.

After Ms. Leal learned about Ms. Morris’ complaint, she became aware that Mr. Koren had been involved with the drafting of the complaint. She summoned Mr. Ko-ren to a meeting in her office. Mr. Koren was accompanied by a union representative. Principal Leal confronted Koren about the Morris complaint, insinuating that he was the author of the complaint. She questioned Koren about whether he believed that the contents of the Morris complaint were true, and if that was why his (Koren’s) behavior toward Ms. Leal had changed. PERC and Mr. Koren both agree that any action Mr. Koren took to assist Ms. Morris in drafting a harassment complaint qualifies as protected activity, and that it is impermissible to retaliate against an employee for engaging in protected activity.

In his ULP charge, Mr. Koren alleged that thereafter Ms. Leal took a series of retaliatory actions against him whereby he was subjected to two groundless disciplinary actions and was then transferred, without explanation, to a school which was twenty-four miles away. Those three employment actions — the two disciplinary actions and the transfer — are the basis of the ULP claim.

As a background fact, Mr. Koren alleges that he was elected as Rookie Teacher of the Year in the spring of 2008 by the school’s faculty and staff. The customary steps for recognition of this honor were not taken by Ms. Leal in Mr. Koren’s case.

In August of 2008 school reconvened after the summer break. On September 8, 2008, Mr. Koren became ill and Ms. Leal signed a document approving a leave of absence. Notwithstanding the approval of this leave of absence, on September 16, 2008, Ms. Leal sent a letter to Mr. Koren accusing him of having abandoned his job and stating that he would be terminated if he failed to respond within three days. The School District’s Leave Office approved the leave of absence. There was no basis for the claim of abandonment and Ms. Leal did not pursue it.

On September 29, 2008, Ms. Leal sent Mr. Koren a certified letter advising him that a formal investigation had begun regarding whether he had violated a School District policy by giving his user name and password to a substitute teacher and paraprofessional in order to enter students’ grades into the grade book during his leave of absence. Mr. Koren denied the allegations, stating that he had left his password for the Department Chair while he was on his leave of absence. Mr. Koren has quoted the regulation in his ULP charge and the text of the regulation cited by him does not prohibit the action that he took. Mr. Koren alleges that no disciplinary action of this type has ever been initiated against any other School District teacher.

Mr. Koren filed his initial ULP charge against the School Board in February, 2009. The charge was filed with PERC. The General Counsel of PERC dismissed the charge with leave to amend.

In the meantime, Ms. Leal summoned Mr. Koren to her office and informed him that he was being transferred to another school twenty-four miles away. He alleges that he has been given no explanation for the transfer. Mr. Koren filed an amended charge alleging that the transfer was retaliatory, and filed another amendment. The General Counsel dismissed all of the charges. Mr. Koren appealed to PERC, which approved the dismissals. Mr. Koren has appealed the PERC dismissal orders.

II.

It is first necessary to outline the process for filing an ULP charge. Florida law prohibits the committing of unfair labor practices by a public employer or their agents or representatives. § 447.501(1), Fla. Stat. (2009).

An employee (or an employer or employee organization) can file an ULP charge with PERC. Id. § 447.503; 34 Fla. Jur.2d Labor and Labor Relations § 179 (2010). The process is similar to filing a civil action in court, but there are some differences.

Under the statute, the complaining person’s charge “shall contain a clear and concise statement of facts constituting the alleged unfair labor practice, including the names of all individuals involved in the alleged unfair labor practice.... ” § 447.503(1), Fla. Stat. (2008). The complaining person must make “specific reference to the provisions of s. 447.501 [which defines unfair labor practices] alleged to have been violated,” id., and “any other information relevant to the charge.” Fla. Admin. Code R. 60CC-5.001(3)(e). The statute also requires that the ULP charge “must be accompanied by sworn statements and documentary evidence sufficient to establish a prima facie violation of the applicable unfair labor practice provision.” § 447.503(1), Fla. Stat. (2008). The pleading requirement is therefore similar to the filing of a civil action, in that it requires a clear and concise statement of the alleged facts, and an identification of the legal basis. It differs, however, insofar as it requires providing sworn statements and documentary evidence.

Once the ULP charge is received by PERC, the statute requires PERC or its designated agent to “review the charge to determine its sufficiency.” Id. § 447.503(2). If the ULP charge is found to be legally sufficient, and there are disputed issues of material fact, then the matter is assigned to a hearing officer, who conducts an evidentiary hearing. Id. § 447.503(5). The hearing officer makes findings of fact, and if requested by PERC, will make recommended conclusions of law. Id. § 447.503(5)(c). The recommended order then goes to PERC to issue a final order. Id. § 447.503(6)(d).

If, however, the designee (in this case the General Counsel) finds the ULP charge to be legally insufficient, then the General Counsel may issue a summary dismissal of the charge. Id. § 447.503(2)(a). The complaining party has a right to appeal the dismissal to PERC, id., which Mr. Koren did in this case. If the charge was erroneously dismissed, then the charge shall be reinstated. Id.

The important point here is that the General Counsel’s sole role is to determine whether the ULP charge and accompanying documents establish “a prima facie violation of the applicable unfair labor practice provision.” Id. § 447.503(1). The General Counsel’s function is to determine whether the ULP charge facially states a claim and whether there is evidence in the package to support that claim. Cagle v. St. John’s Cnty. Sch. Dist., 939 So.2d 1085, 1089 (Fla. 5th DCA 2006).

Where, as here, the complaining party has appealed the dismissal order to PERC, PERC’s review is de novo. PERC must confine its inquiry to the question whether a prima facie case has been stated and whether the accompanying documentation provides evidence in support of the charge.

III.

Florida case law establishes the elements for proving a prima facie case of retaliation. In Gibbons v. State Pub. Emps. Relations Comm’n, 702 So.2d 536 (Fla. 2d DCA 1997), an employee filed an ULP charge alleging that his employer retaliated against him for union activity by transferring him to an office more than fifty miles away from his present office. Id. at 536. Relying on federal case law, the Second District said:

[PJroof of a prima facie case of retaliation requires a showing that: 1) the plaintiff was engaged in protected activity; 2) the plaintiff was thereafter subjected by his employer to an adverse employment action; and 3) there is a causal link between the protected activity and the adverse employment action.

Id. at 537 (citing Weaver v. Casa Gallardo, Inc., 922 F.2d 1515 (11th Cir.1991) superseded by statute on other grounds, Munoz v. Oceanside Resorts, Inc., 223 F.3d 1340 (11th Cir.2000); see also City of Coral Gables v. Coral Gables Walter F. Stathers Mem’l Lodge 7, 976 So.2d 57, 63-64 (Fla. 3d DCA 2008); Sch. Bd. of Lee Cnty. v. Lee Cnty. Sch. Bd. Emp., 512 So.2d 238, 239 (Fla. 1st DCA 1987); Pasco Cnty. Sch. Bd. v. Fla. Pub. Emp. Relations Comm’n, 353 So.2d 108, 117 (Fla. 1st DCA 1977)).

Thus the first element is that the plaintiff engaged in protected activity and the second element is that the plaintiff was subjected to an adverse employment action. The third element is a requirement for a causal link. As the Gibbons court explained, this only requires the plaintiff to plead that employer was aware of the protected expression when it took the adverse employment action:

[T]he causal link in the [retaliatory discharge] formula [is not] the sort of logical connection that would justify a prescription that the protected participation in fact prompted the adverse action. Such a connection would rise to the level of direct evidence of discrimination, shifting the burden of persuasion to the defendant. Rather, we construe the ‘causal link’ element to require merely that the plaintiff establish that the protected activity and the adverse action were not wholly unrelated.
Simmons v. Camden County Bd. of Educ., 757 F.2d 1187, 1189 (11th Cir.1985). The plaintiff, at a minimum, must establish that the employer was aware of the protected expression when it took the adverse employment action.

Gibbons, 702 So.2d at 537.

In Gibbons, the court found that the employee had sufficiently alleged an unfair labor practice. He alleged that his union activity was protected activity under Florida labor law; that he was subjected to an adverse employment action because he was transferred to an office more than fifty miles from his current office; and that there was a causal link because his employer was aware of his protected expression when the employer took the adverse employment action. Id. at 587.

PERC had dismissed Gibbons’ ULP charge on the theory that Gibbons “was required to provide affidavits from witnesses who heard Gibbons’ supervisors state their intention to retaliate against him by transferring him to another office.” Id. at 536. The Second District rejected the idea that Gibbons had to provide such witness affidavits. The court concluded that Gibbons’ own sworn statement was sufficient to establish “a prima facie charge and that affidavits proving the employer’s motive were not necessary.” Id.

An unfair labor practice can be proven by circumstantial evidence. Pasco Cnty. Sch. Bd., 353 So.2d at 119. Writing in the context of a claim of retaliation for engaging in union activity, the First District has said:

The timing of the decision by the employer in connection with the employee’s union activity is a proper consideration to a determination whether an unfair labor practice was committed. A discharge of an employee, followed closely on the heels of an employer’s display of anti-union animus, supports a finding of an unfair labor practice.

Id.

Attached to Mr. Koren’s ULP charge are some witness affidavits. To the extent that they contain hearsay, those affidavits may be considered within the following parameters. The Administrative Procedure Act

allows the admission of hearsay at agency hearings when used for the purpose of supplementing or explaining other evidence but precludes its admission if solely used to support a finding unless it would be admissible over objection at civil actions. Thus if hearsay is corroborated by otherwise competent substantial evidence, it is admissible.

Pasco Cnty. Sch. Bd., 353 So.2d at 120 (citation omitted).

One of the retaliatory acts alleged by Mr. Koren is that he was reassigned to another school twenty-four miles away. “Whether a particular reassignment is materially adverse depends upon the circumstances of the particular case, and ‘should be judged from the perspective of a reasonable person in the plaintiffs position, considering all the circumstances.’ ” Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 71, 126 S.Ct. 2405, 165 L.Ed.2d 345 (2006).

IV.

Clearly Mr. Koren has stated a prima facie case of retaliation. First, the plaintiff must allege that he was engaged in protected activity. Gibbons, 702 So.2d at 537. He has done so. Mr. Koran states that he assisted a school security guard, Ms. Morris, in drafting a harassment complaint against the principal, Ms. Leal. Mr. Koren and PERC agree that filing a complaint of discrimination, or assisting someone in filing a complaint of discrimination, is protected activity. Thus, the first element is met.

Second, the plaintiff must allege that he was subjected by his employer to an adverse employment action. Gibbons, 702 So.2d at 537. In determining what constitutes an adverse employment action, Florida courts have followed federal precedent under Title VII of the Civil Rights Act of 1964. The United States Supreme Court has addressed this issue in Burlington, 548 U.S. at 56, 126 S.Ct. 2405. In that case, Ms. White was a forklift operator who complained of sexual harassment by her immediate supervisor, Mr. Joiner. Burlington suspended Joiner. A higher level supervisor told Ms. White about Joiner’s suspension but simultaneously told her that he was removing her from her indoor job as forklift operator and reassigning her to outdoor duty as a track laborer. She filed a retaliation complaint with the Equal Employment Opportunity Commission (“EEOC”). Soon thereafter, there was a disagreement between White and her new immediate supervisor about transportation from one location to another. The new supervisor suspended White without pay for thirty-seven days. After an internal investigation, Burlington reinstated her with back pay. Ms. White filed an additional retaliation complaint regarding the suspension.

The question considered by the Supreme Court was whether these employment actions — transfer and suspension — amounted to forbidden retaliatory actions. The Court said:

The antiretaliation provision protects an individual not from all retaliation, but from retaliation that produces an injury or harm. As we have explained, the Courts of Appeals have used differing language to describe the level of seriousness to which this harm must rise before it becomes actionable retaliation. In our view, a plaintiff must show that a reasonable employee would have found the challenged action materially adverse, “which in this context means it well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ”

548 U.S. at 67-68, 126 S.Ct. 2405 (emphasis added). The Court went on to say that petty slights or minor annoyances are not actionable. “We spoke of material adversity because we believe it is important to separate significant from trivial harms.” Id. at 68, 126 S.Ct. 2405.

The Court concluded that the steps taken against Ms. White by Burlington were actionable. As to the job transfer, Burlington had kept Ms. White’s job classification and pay the same, but reassigned her from the indoor job of forklift operator to the outdoor job of track laborer. The evidence supported the proposition that a reasonable employee in the plaintiffs position would view such a transfer as a materially adverse charge in work assignment, because the forklift operator position was objectively considered a better job and the outdoor duties were more arduous and dirtier. Id. at 71, 126 S.Ct. 2405. Thus the transfer was an adverse employment action, even though the job classification and pay stayed the same.

As to the suspension, Burlington argued that it had already taken corrective action. Burlington had suspended Ms. White without pay. Burlington argued that this could not be considered a materially adverse job action because Burlington eventually reinstated White with back pay. The Court rejected that argument. It held that such action does amount to a materially adverse action if it is done (as the evidence established) for retaliatory purposes. Id. at 72, 126 S.Ct. 2405. Although Ms. White eventually received back pay, the family was without income for thirty-seven days.

Applying Burlington to the present case, Mr. Koren has alleged that three actions were taken against him which, under Burlington, do amount to adverse employment action:

1. False Charge of Job Abandonment. Ms. Leal approved a leave of absence for Mr. Koren on grounds of illness. Soon thereafter, Ms. Leal sent Mr. Koren a letter stating that he had abandoned his job and that failure to respond to her within three days “will result in termination due to job abandonment.”

Based on the allegations of the ULP charge, this amounted to intentional bad faith conduct on the part of Ms. Leal. Ms. Leal approved the leave of absence. Then during the leave of absence which she herself had approved, Ms. Leal accused Mr. Koren of abandoning his position. Assuming that those are the facts, there is no innocent explanation for such conduct.

Under the Burlington test, the question is whether this type of action is one which “well might have ‘dissuaded a reasonable worker from making or supporting a charge of discrimination.’ ” 548 U.S. at 68, 126 S.Ct. 2405. Clearly the answer is yes. As alleged, this was a deliberate threat to remove Mr. Koren from his job. Plainly a threat of discharge might well have dissuaded a reasonable worker from making or supporting a charge of discrimination.

2. False Charge of Misuse of Password. The ULP charge alleges that Ms. Leal initiated a disciplinary proceeding whereby Mr. Koren was charged with violating a regulation regarding computer passwords. Mr. Koren has shown that the text of the regulation states, “Users should not share their passwords with anyone. ...” Mr. Koren alleges that no School Board employee has ever been the subject of a charge of this type, and contends that since the rule says “should not,” not “shall not,” the charge is entirely baseless. He also points out that it is entirely reasonable to provide the password to the department head during the period that he was going to be away on a leave of absence. As alleged, this adverse employment action qualifies as retaliation under the Burlington test.

3.Involuntary Transfer Twenty-Four Miles. The ULP charge alleges that Mr. Koren was transferred to a school twenty-four miles away. As was the case in Burlington, Mr. Koren did not want to be transferred and the transfer imposes additional financial costs on him. He states that the transfer adds 960 miles per month and costs him an additional $200 per month. He also alleged that he and his union have requested an explanation for the transfer and no explanation has been given. The ULP charge sufficiently alleges an adverse job action under Burlington.

The Second District has held that a transfer of over fifty miles qualifies as an adverse employment action. Gibbons, 702 So.2d at 537. Whether analyzed under Burlington or under Gibbons, the transfer qualifies as an adverse employment action.

Third, the plaintiff must allege a causal link between the protected activity and the adverse employment action. Gibbons, 702 So.2d at 537. Mr. Koren has alleged such a causal connection. He states that in the spring of 2008 Ms. Leal initiated the meeting in her office in which she indicated her belief that Mr. Koren had helped Ms. Morris write her harassment complaint, and interrogated Mr. Koren about that. Clearly Ms. Leal was aware that Mr. Ko-ren had engaged in protected activity, i.e., helping Ms. Morris draft her harassment complaint. Thereafter he was subjected to a succession of adverse job actions. Under Gibbons, it is sufficient to allege that the employer “was aware of the protected expression when it took the adverse employment action.” 702 So.2d at 587. That requirement has been met.

V.

The majority opinion states that Mr. Koren has failed to allege any adverse job action. According to the majority opinion, an adverse job action occurs only if the employee “suffered a loss of wages or benefits, demotion, or similar actions.” For this proposition the majority opinion relies on Graham v. Florida Dept. of Corrections, 1 F.Supp.2d 1445, 1449 (M.D.Fla.1998). The Graham decision does not support the majority opinion.

Graham was decided in 1998. The Graham decision, like the Burlington decision, was a Title VII suit. Ms. Graham had complained that she had been sexually harassed by other employees of the Department of Corrections. After she complained of sexual harassment, the Department transferred Ms. Graham out of her job location, the North Florida Reception Center, and placed her at a nearby institution. Id. at 1449. The federal District Court granted summary judgment on the retaliation claim, because the evidence showed that Ms. Graham wanted to leave the North Florida Reception Center. Id. at 1450. She did not lose any pay or benefits by reason of the transfer, and she did not submit any evidence of any hardship which resulted from the transfer. Id. The denial of relief was based on those facts.

In 2006 (as explained earlier in this opinion), the United States Supreme Court issued its decision in Burlington. That Court clarified and amplified the legal test to be applied in cases of retaliation. The clarified test of Burlington is the test to be applied here. As previously explained, Burlington held that a transfer or a baseless disciplinary action can be the basis for a retaliation claim. Those are the claims that Mr. Koren has made in this case.

Unlike Ms. Graham, Mr. Koren did specifically allege that the transfer to the new location increases his travel time by one hour and twenty minutes daily, amounting to 960 miles per month, and an additional financial cost of $200 per month. To the extent that the majority opinion argues that a transfer cannot be a basis for a retaliation claim, the majority opinion is not only in conflict with Burlington but also in conflict with the Second District opinion in Gibbons, 702 So.2d at 536-37.

The majority opinion also affirms the dismissal order because “there is just not sufficient object of evidence of animus or relation of adverse events to Koren’s participation in a protected activity, necessary to sustain the allegations of unfair labor practices as set forth by statute and case law.” Majority opinion at 1093. Respectfully, this passage seems to say that the plaintiff must produce affidavits of witnesses who may have overheard Ms. Leal say that she was retaliating against Mr. Koren. However, the Gibbons decision states that such affidavits are not required. 702 So.2d at 536. The Gibbons decision correctly holds that the plaintiffs own sworn statement is sufficient support. Here, too, it appears that the majority ruling is in conflict with Gibbons.

As stated in Pasco County School Board, an unfair labor practice may be proven by circumstantial evidence. 353 So.2d at 119. One of the circumstantial facts which can be considered is the time frame between the protected activity and the subsequent retaliatory behavior.

The time frame here is that in February 2008, Mr. Koren assisted security guard Morris in drafting her complaint. On March 10, Ms. Leal confronted Mr. Koren about his involvement in the complaint. In April, a civil rights compliance investigator interviewed Mr. Koren about the Morris complaint. In the same time period, Ms. Leal snubbed Mr. Koren regarding the Teacher of the Year award.

After the summer break, school reconvened in August 2008. Mr. Koren obtained his leave of absence on September 8. On September 16, Ms. Leal sent the letter accusing Mr. Koren of abandoning his job. On September 29, Ms. Leal sent Mr. Koren a certified letter stating that he was the subject of a formal investigation regarding the computer password. In March 2009, Mr. Koren was transferred to another school. Reading the allegations in the light most favorable to Mr. Koren, a claim of retaliation has been more than sufficiently alleged.

The majority opinion also says that the School District authorized the twenty-four mile transfer “but this is not directly attributable to Leal as actionable retaliation.” Majority opinion at 1092 n. 3. But this reasoning misapprehends the alignment of the parties. The defendant in the ULP action is the School District. Ms. Leal, as Mr. Koren’s supervisor, is the agent of the District. All of the actions are attributable to the School District, which is the employer.

For the stated reasons, the dismissal order should be reversed.

      . (1) Public employers or their agents or representatives are prohibited from:
      (a) Interfering with, restraining, or coercing public employees in the exercise of any rights guaranteed them under this part.

      (d) Discharging or discriminating against a public employee because he or she has filed charges or given testimony under this part.

      . Although the record below does not explicitly state that Koren ghost-wrote the 2008 civil rights complaint for a school district employee, Koren indicates in his Initial Brief to this Court that he assisted the school district employee in drafting her civil rights complaint against the School Board and Leal. Koren alleges that Leal confronted him about his role in the complaint, and that Koren refused to discuss the matter with her when she asked him. The record also indicates that Koren received a witness notification letter from the School District’s Office of Civil Rights Compliance requesting his cooperation as a witness in the investigation of the other employee's complaint against Leal.

      . For example: granting Koren sick leave and then accusing him of abandoning his job; unfairly charging Koren with violating a regulation regarding his computer password; failing to enthusiastically endorse his "Rookie Teacher-of-the-Year” award; failing to place his "Rookie Teacher-of-the-Year” announcement on the forward face of the school marquee over spring break; failing to personally announce his award on the school intercom. The school board authorized Koren’s transfer to a school twenty-four miles distant, but this is not directly attributable to Leal as actionable retaliation. Koren has not claimed that he has suffered a loss of wages or benefits, demotion, or similar actions. See Graham v. Fla. Dep't of Corrections, 1 F.Supp.2d 1445, 1449 (M.D.Fla.1998) (finding that a materially adverse change related to retaliation might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices that might be unique to a particular situation).

      . Although Mr. Koren does not contend that this amounted to a retaliatory job action, he cites it as indicative of animus on the part of Ms. Leal.

      . Although not involved here, the statute also prohibits unfair labor practices by a public employee organization, or anyone acting on its behalf, or its officers, representatives, agents, or members. Id. § 447.501(2).

      . The Gibbons court went on to explain:
      Once the plaintiff has established a prima facie case of retaliation, the burden shifts to the defendant to rebut the presumption of retaliation by producing legitimate, nonre-taliatory reasons for the adverse employment action. If the defendant sets forth such reasons, the burden then shifts back to the plaintiff to raise a genuine factual question as to whether the reasons are mere pretext.

        Gibbons, 702 So.2d at 537 n. 3 (citations omitted). This second stage was never reached in this case because the ULP charge was dismissed as being legally insufficient.

      . Because this matter comes to us on a dismissal for failure to state a prima facie case, this court (as well as PERC) must assume that the facts stated by Mr. Koren are true.

      . In its dismissal order, PERC stated, "After thoroughly reviewing the alleged facts, the General Counsel concluded that the charge relied primarily on the proximate timing of the events, which alone is insufficient to establish a prima facie violation based upon discrimination.” Order, June 8, 2009, at 9. PERC cited several prior PERC decisions and then stated, “We agree with the General Counsel’s conclusion.” To the extent that PERC means that an employee cannot rely on timing of events in order to establish a circumstantial evidence case, PERC’s statement is contrary to the Pasco County School Board case. Pasco County was decided in 1977 and has been much cited since that time. The Second District's decision is authoritative and must be followed by PERC.

      . Under the statute, an ULP charge must be based on events which occurred within six months prior to the filing of the charge. § 447.502(6)(b), Fla. Stat. (2008). The ULP charge is timely with regard to the three alleged retaliatory actions in this case.
      However, this limitation period does not prevent the employee from relying on events which occurred prior to the six-month period. The employee may "seek to prove that [ULP] charge by evidence of events occurring prior to the six-month period.” Da Costa v. Public Emps. Relations Comm’n, 443 So.2d 1036, 1040 (Fla. 1st DCA 1983).


source: Caselaw Access Project

author: CORTIÑAS, J.

license: Public Domain

text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. LAW OFFICES OF MICHAEL I. LIBMAN, and Michael I. Libman, Esquire, Appellees.
    No. 3D09-2197.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 2010.

      Feldman, Gale and Jeffrey D. Feldman, James A. Stepan, Christopher P. Deme-triades, Miami, Lidsky, Vaccaro, Montes & Martinez, and Juan C. Montes, Hialeah, for appellant.
    Stuart B. Yanofsky, for appellees.
    Before CORTIÑAS and LAGOA, JJ., and SCHWARTZ, Senior Judge.
   CORTIÑAS, J.

United Automobile Insurance Company, Inc. (“United Auto”) sued the Law Offices of Michael I. Libman and Michael I. Lib-man, Esq., (collectively “Libman”) on theories of restitution, fraud, and insurance fraud, seeking recovery of personal injury protection benefits (“PIP benefits”), attorney’s fees and costs in previously filed and now closed personal injury protection lawsuits (“PIP lawsuits”).

Prior to the underlying lawsuit, Libman had received monies from United Auto as part of several PIP lawsuits. Some time after the resolution of the PIP lawsuits, United Auto filed a new and separate lawsuit against Libman alleging that its own investigation revealed false billing for tasks performed by a non-lawyer medical billing company, Continental Providers’ Services (“Continental”), improper fee-splitting with Continental after payment, and false prosecution of several PIP lawsuits without authority from the putative plaintiffs. The trial court dismissed United Auto’s complaint with prejudice on grounds that it stemmed from the PIP lawsuits and, as such, had been previously adjudicated by courts of competent jurisdiction or resolved by settlement agreements. United Auto appeals the dismissal of the counts for restitution and fraud. We reverse.

“As a ruling on a motion to dismiss for failure to state a cause of action is an issue of law, it is renewable on appeal by the de novo standard of review.” Extraordinary Title Servs., LLC v. Fla. Power & Light Co., 1 So.3d 400, 402 (Fla. 3d DCA 2009) (quoting Susan Fixel, Inc. v. Rosenthal & Rosenthal Inc., 842 So.2d 204, 206 (Fla. 3d DCA 2003)). Particularly; “W trial court’s ruling that relief is barred on the grounds of res judicata or collateral estoppel is reviewed de novo.” Felder v. State, Dep’t of Mgmt. Servs., Div. of Ret., 993 So.2d 1031, 1034 (Fla. 1st DCA 2008) (citing Campbell v. State, 906 So.2d 293, 295 (Fla. 2d DCA 2004)). “A motion to dismiss under rule 1.140(b) tests whether the plaintiff has stated a cause of action, not whether the plaintiff will prevail at trial.” Lonestar Alt. Solution, Inc. v. Leview-Boymelgreen Soleil Developers, LLC., 10 So.3d 1169, 1171 (Fla. 3d DCA 2009) (citing Meadows Cmty. Ass’n v. Russell-Tutty, 928 So.2d 1276, 1280 (Fla. 2d DCA 2006)). Therefore, “[a]ll allegations of the complaint must be taken as true and all reasonable inferences drawn therefrom must be construed in favor of the non-moving party.” Felder, 993 So.2d 1081 at 1034 (citing The Fla. Bar v. Greene, 926 So.2d 1195, 1199 (Fla.2006)).

It is well established “that for the doctrine of res judicata to apply, several conditions must exist, which include: ‘identity of the thing sued for; identity of the cause of action; identity of [the] parties; and identity of the quality in the person for or against whom the claim is made.’ ” Dadeland Depot, Inc. v. St. Paul Fire & Marine Ins. Co., 945 So.2d 1216, 1235 (Fla.2006) (quoting Albrecht v. State, 444 So.2d 8, 12 (Fla.1984)). “Res judicata applies to matters actually raised and determined in the original proceeding and also to matters which could have properly been raised and determined.” Id. (citing State v. McBride, 848 So.2d 287, 290 (Fla.2003)). “The rule of collateral estoppel (or estoppel by judgment) requires that the matter sought to be interposed as a bar must have been litigated and determined by the judgment, or if not expressly adjudicated, essential to the rendition of the judgment.” Pa. Ins. Co. v. Miami Nat’l Bank, 241 So.2d 861, 863 (Fla. 3d DCA 1970). Neither res judicata nor collateral estoppel apply to this case.

We agree with United Auto that “[t]he present case is not appropriate for the application of res judicata, as neither the parties nor the cause of action are the same.” Id. In the prior actions, Lib-man litigated the PIP lawsuits against United Auto on behalf of insureds for judgment of first-party insurance benefits. Presently, United Auto brings a separate lawsuit against Libman that alleges a claim for restitution and fraud based on the monies it paid out in connection with the PIP lawsuits. Although the allegations of restitution and fraud may arise in relation to the PIP lawsuits, “[t]he mere reference to a prior controversy is insufficient to raise the res judicata issue.” McLean v. McLean, 461 So.2d 1031, 1033 (Fla. 2d DCA 1985). Moreover, on the merits, the judgments entered in the PIP lawsuits determined whether there was insurance coverage, and if so, whether the medical treatment was reasonable, related to the automobile accident, medically necessary, and lawfully rendered. Auto Owners Ins. Co. v. Marzulli, 788 So.2d 1031, 1033-34 (Fla. 2d DCA 2001).

Likewise, collateral estoppel would have applied if the same issues that were adjudicated in the PIP lawsuits were the same as found within the amended complaint. See Wacaster v. Wacaster, 220 So.2d 914, 916 (Fla. 4th DCA 1969) (“Where the actions are upon different claims, the former [judgment] operates as an estoppel only as to those matters in issue or points controverted upon the determination of which the finding or verdict is rendered.”). “The doctrine of collateral estoppel bars relitigation by parties or their privies of issues common both to the present action and to the action previously litigated.” Skidmore, Owings & Merrill v. Volpe Constr. Co. Inc., 511 So.2d 642, 644 (Fla. 3d DCA 1987). Notably, if the issue in dispute has not been fully litigated, the doctrine is inapplicable. Wacaster, 220 So.2d at 916. United Auto’s amended complaint alleged restitution and fraud in the underlying lawsuit. These are separate and distinct issues from those adjudicated in the PIP lawsuits: the amended complaint disputes Libman’s authority to prosecute the PIP lawsuits and alleges fee-splitting with Continental, both of which have yet to be fully litigated on the merits by a court of competent jurisdiction. Because “[t]hese matters could not properly be raised or considered on a motion to dismiss[,]” we agree with United Auto that the counts for restitution and fraud were improperly dismissed by the trial court. Bess v. Eagle Capital, Inc., 704 So.2d 621, 622 (Fla. 4th DCA 1997).

Accordingly, we reverse the trial court’s order dismissing the amended complaint with prejudice and remand with instructions to reinstate count I for restitution and count II for fraud.

Reversed and remanded.

      . The PIP lawsuits were brought pursuant to section 627.736, Florida Statutes, which provides personal injury protection benefits from an insurer to an insured.

      . On appeal, United Auto does not seek review of the decision to dismiss its claim for insurance fraud pursuant to section 627.736(4)(h), Florida Statutes.


author: PER CURIAM.

text:
    Guiseppe SERVEDIO a/k/a Joseph Servedio, Appellant, v. US BANK NATIONAL ASSOCIATION, as Indenture Trustee, on behalf of the holders of Terwin Mortgage Trust 2007-AHL1, Asset-Backed Securities Series 2007-AHL1, Appellee.
    No. 4D10-1898.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 2010.

      Peter J. Snyder of Peter J. Snyder, P.A., Boca Raton, for appellant.
    Heidi J. Weinzetl of Shapiro & Fishman, LLP., Boca Raton, for appellee.
   PER CURIAM.

The issue presented in this appeal is whether the trial court erred in granting a final summary judgment of foreclosure where appellee failed to file with the court a copy of the original note and mortgage prior to the entry of judgment. Because the absence of the original note created a genuine issue of material fact regarding appellee’s standing to foreclose on the mortgage, summary judgment was not proper. We reverse.

In November 2008, appellee filed an unverified complaint against appellant, seeking both foreclosure of the mortgage and reestablishment of the lost promissory note. Appellant attached to the complaint a copy of the mortgage it sought to foreclose, but this document identified Bankers Express Mortgage, Inc. as the lender and mortgagee. An adjustable rate rider and prepayment penalty rider also identified Bankers Express as the lender and mortgagee.

Appellant answered and denied all of the allegations in appellee’s complaint. In addition, appellant asserted affirmative defenses that appellee was not “in privity” with the lender and mortgagee and that appellee lacked standing to seek foreclosure.

Appellee filed for summary judgment on the foreclosure count alone. In support of its motion, appellee filed an affidavit from a representative of the loan servicing company who stated the total amount due on the mortgage. The affidavit did not indicate that appellee was an owner or holder of the mortgage and note, and no documentary evidence was appended to the affidavit. The trial court granted appel-lee’s motion for summary judgment. The record on appeal contains no indication that appellee filed the original note with the trial court.

Summary judgment is proper if there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). The court may consider “affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence” on which the parties rely. Fla. R. Civ. P. 1.510(c). The court must draw “every possible inference” in favor of the non-moving party. Edwards v. Simon, 961 So.2d 973, 974 (Fla. 4th DCA 2007). The facts must be “so crystallized that nothing remains but questions of law.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985.) The moving party bears the burden of showing the complete absence of genuine issues of material fact. Frost v. Regions Bank, 15 So.3d 905, 906 (Fla. 4th DCA 2009). Moreover, the “party moving for summary judgment must factually refute or disprove the affirmative defenses raised, or establish that the defenses are insufficient as a matter of law.” 770 PPR, LLC v. TJCV Land Trust, 30 So.3d 613, 618 (Fla. 4th DCA 2010) (quoting Leal v. Deutsche Bank Nat’l Trust Co., 21 So.3d 907, 909 (Fla. 3d DCA 2009)). We review de novo an order granting summary judgment. Frost, 15 So.3d at 906.

“The party seeking foreclosure must present evidence that it owns and holds the note and mortgage in question in order to proceed with a foreclosure action.” Lizio v. McCullom, 36 So.3d 927, 929 (Fla. 4th DCA 2010). A plaintiff must tender the original promissory note to the trial court or seek to reestablish the lost note under section 673.3091, Florida Statutes. State St. Bank & Trust Co. v. Lord, 851 So.2d 790, 791 (Fla. 4th DCA 2003). Moreover, if the note does not name the plaintiff as the payee, the note must bear a special indorsement in favor of the plaintiff or a blank indorsement. Riggs v. Aurora Loan Servs., LLC, 36 So.3d 932, 933 (Fla. 4th DCA 2010). Alternatively, the plaintiff may submit evidence of an assignment from the payee to the plaintiff or an affidavit of ownership to prove its status as a holder of the note. Verizzo v. Bank of N.Y., 28 So.3d 976 (Fla. 2d DCA 2010); Stanley v. Wells Fargo Bank, 937 So.2d 708 (Fla. 5th DCA 2006).

The record on appeal does not contain the original note, evidence of an assignment of the mortgage and note to appellee, or an affidavit of ownership by appellee. Appellee filed no other admissible “pleadings, depositions, answers to interrogatories, admissions, affidavits, and other materials” to support its contention that it owns and holds the note and mortgage. Fla. R. Civ. P. 1.510(c). “[I]t is apodictic that summary judgments may not be granted ... absent the existence” of admissible evidence in the record. TRG-Brickell Point NE, Ltd v. Wajsblat, 34 So.3d 53, 55 (Fla. 3d DCA 2010). Without evidence demonstrating appellee’s status as holder and owner of the note and mortgage, genuine issues of material fact remain, and summary judgment was improper.

Appellee argues on appeal that it presented to the trial court a copy of the original note and an affidavit of ownership at the summary judgment hearing. Ap-pellee concedes, however, that the documents were not filed with the clerk of the court until several days after the entry of summary judgment. The documents were not part of the record at the time the motion for summary judgment was granted, so we cannot determine whether the trial court considered those documents in rendering its decision. See Poteat v. Guardianship of Poteat, 771 So.2d 569 (Fla. 4th DCA 2000) (noting that an appellate court may review only items considered by the trial court). Because appellant does not stipulate that the documents were considered at the hearing, and because appellee has not sought relief in the trial court to recreate the record, we must reverse the order granting summary judgment. We cannot rely on the representations of counsel alone. Wright v. Emory, 41 So.3d 290, 292 (Fla. 4th DCA 2010) (“[An] attorney’s unsworn, unverified statements do not establish competent evidence.”).

Even if the trial court considered the note and mortgage at the hearing, the documents were not authenticated, filed, and served more than twenty days before the hearing as required by Rules 1.510(c) and 1.510(e). Appellee’s failure to abide by these rules also necessitates reversing the order granting summary judgment. Verizzo, 28 So.3d at 977-78; Mack v. Commercial Indus. Park, Inc., 541 So.2d 800 (Fla. 4th DCA 1989).

Accordingly, we reverse the entry of final summary judgment in favor of appel-lee and remand for further proceedings. We note that a summary judgment motion may be filed “at any time” under Rule 1.510(a), and “this opinion does not preclude a re-filing of such motion if and when the necessary legal documents are before the court.” Mack, 541 So.2d at 800.

Reversed and remanded.

WARNER, POLEN and LEVINE, JJ., concur.

      . Appellee has twice moved this court to supplement the record on appeal to include a copy of the original note and mortgage it claims to have filed at the summary judgment hearing. This court denied the motions with leave for appellee to seek relinquishment of jurisdiction to the trial court to recreate the record. Appellee has not sought leave to recreate the record in the court below. Likewise, appellee has not designated any transcripts to support its position.


text:
    Ethel BENDER, Appellant, v. F.H.C.S., INC., a Florida Corporation, dba Caregivers of America, Appellee.
    No. 4D10-3152.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 2010.
    Ben Murphey of Lawlor Winston, LLP, Fort Lauderdale, for appellant.
    Jacqueline Emanuel of Knoerr & Emanuel, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Upon concession of error based upon this court’s recent opinion in Bender v. CareGivers of America, Inc., 42 So.3d 893 (Fla. 4th DCA 2010), we reverse the summary final judgment and remand for further proceedings.

GROSS, C.J., WARNER and LEVINE, JJ., concur.


text:
    21ST CENTURY INSURANCE COMPANY OF CALIFORNIA, INC., a foreign insurer, American International Group, Inc., and AIG Marketing, Inc., a foreign corporation, Petitioners, v. Marizi MORNEAU & Dennis M. Morneau, Respondents.
    No. 4D10-2324.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 2010.

      Rosemary Wilder of Marlow, Connell, Abrams, Adler, Newman & Lewis, Coral Gables, for petitioners.
    Henry A. Seiden of The Seiden Law Firm, West Palm Beach, for respondents.
   PER CURIAM.

This matter is remanded to the trial court to either dismiss or abate the bad faith claim until resolution of the Uninsured Motorist benefits (UM) claim. See Progressive Select Ins. Co. v. Shockley, 951 So.2d 20 (Fla. 4th DCA 2007).

Petition for unit of certiorari is granted; case remanded with instructions.

DAMOORGIAN, CIKLIN and GERBER, JJ., concur.


text:
    Carlos ARZOLA, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-3012.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 2010.
    Carey Haughwout, Public Defender, and James W. Mclntire, Assistant Public Defender, West Palm Beach, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We affirm without prejudice to the defendant filing a Rule 3.850 motion.

MAY, DAMOORGIAN and GERBER, JJ., concur.


text:
    FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellant, v. E.L.A. f/k/a M.J.H., V.A., and the Guardian At Litem Program, Appellees.
    Nos. 3D10-442, 3D10-443.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 2010.
    Bill McCollum, Attorney General, Scott D. Makar, Solicitor General, and Louis F. Hubener, Chief Deputy Solicitor General, and Charles B. Upton II, Deputy Solicitor General, for appellant.
    Alan I. Mishael, Hillary S. Kambour, for Guardian Ad Litem; Carlton Fields, and Cristina Alonso, Amicus Curiae, for appel-lee; National Center for Lesbian Rights, and Ilona M. Turner, Amicus Curiae, for Appellee.

      Before RAMIREZ, C.J., and COPE and ROTHENBERG, JJ.
   PER CURIAM.

Affirmed. See Fla. Dep’t of Children & Families v. In re: Matter of Adoption of X.X.G. & N.R.G., 45 So.3d 79 (Fla. 3d DCA 2010).


author: PER CURIAM. SHEPHERD, J.,

text:
    OLIMPIA HEALTH SYSTEMS, INC., a Florida corporation, Appellant, v. PREFERRED CARE PARTNERS HOLDING CORP.; Finlay Physician Group, Inc.; Palm Springs Mile Associates, Ltd.; and Preferred Care Partners Medical Group, Inc., Appellees.
    No. 3D09-2220.
    District Court of Appeal of Florida, Third District.
    Oct. 27, 2010.
    Ross & Girten and Lauri Waldman Ross, Miami; Michael Schiffrin, Miami, for appellants.
    Legón Ponce & Fodiman and Todd R. Legón and William F. Rhodes, Miami, for appellees.
    Before GERSTEN, SHEPHERD, and CORTINAS, JJ.
   PER CURIAM.

As the party alleging fraud, it was the appellant’s burden to prove it by substantial evidence. Tischler v. Robinson, 79 Fla. 638, 84 So. 914 (1920); Volusia County Bank v. Bigelow, 45 Fla. 638, 33 So. 704 (1903). Here, the trial court “weighted] the testimony presented to it with due consideration being given to the particular circumstances surrounding the conveyances under attack. The court’s findings of fact and conclusions of law come to us with a presumption of correctness and will not be disturbed unless they are clearly erroneous.” Scott v. Dansby, 334 So.2d 331, 333 (Fla. 1st DCA 1976). We find no reversible error in the trial court’s ruling.

Affirmed.

GERSTEN and CORTINAS, JJ., concur.

SHEPHERD, J.,

dissenting.

I dissent.


author: JACOBUS, J.

text:
    Ken RESNICK, Appellant, v. FLAGLER COUNTY SCHOOL BOARD, Appellee.
    No. 5D09-88.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 2010.

      Jennifer S. Blohm of Meyer, Brooks, Demma & Blohm, P.A., Tallahassee, for Appellant.
    Kristy J. Gavin and F. Scott Pauzar of Gobelman, Love, Gavin, Wasilenko & Broughan, L.L.C., Jacksonville, for Appel-lee.
   JACOBUS, J.

Ken Resnick appeals from a final order of the Flagler County School Board terminating his employment. He argues the School Board erred by modifying the administrative law judge’s recommended order, which proposed a lesser penalty. We agree and reverse.

Mr. Resnick is a licensed practical nurse who served in the physically impaired classrooms at Belle Terre Elementary School. His duties included monitoring students who were prone to seizures and administering meals by feeding tube to students who could not eat unassisted. Mr. Resnick took extended medical leave to seek treatment for a disorder, similar to narcolepsy, that caused him to fall asleep on the job. For whatever reason, Mr. Resnick received a less than warm welcome from most of the staff when he returned to work. Complaints that he was inattentive and appeared to be sleeping at times cropped up almost immediately. The incident that gave rise to the present case had nothing to do with the allegations of sleeping or inattentiveness.

The incident occurred on April 26, 2007, just days after Mr. Resnick returned to work. On that date, Mr. Resnick was tube feeding a seizure-prone, quadriplegic student when he was called to a different classroom to assess another student whom teachers feared was having a seizure. Mr. Resnick clamped the first student’s feeding tube and hurried to the second student. He quickly evaluated the second student and determined she was not having a seizure. He left that student, who was known to sometimes feign seizures, in the care of her teacher and immediately returned to the student he was tube feeding. It is apparent from the record that the teacher who called upon Mr. Resnick to evaluate the second student was unaware that he was in the middle of tube feeding the first child. Concern occasioned by the brevity of Mr. Resnick’s assessment of the second student culminated in the School Board seeking termination of his employment.

The School Board’s formal letter to Mr. Resnick notified him it intended to terminate his employment for “failure to assess and provide first aid to students and follow safe classroom procedures.... ” Mr. Res-nick was also on notice of allegations that he had failed to properly record seizures and had failed to check the residuals in a child’s stomach before administering additional food through the feeding tube.

Mr. Resnick disputed the basis for his termination and exercised his right to a formal hearing before an administrative law judge. The administrative law judge heard testimony from numerous witnesses, reviewed documents that were admitted into evidence, and rendered a comprehensive recommended order. The administrative law judge found that only two instances of minor misconduct were proven by the greater weight of the evidence: Mr. Res-nick failed to check a child’s residuals on one occasion, and he failed to document seizures on the proper form. The administrative law judge found that it was not proven, however, that Mr. Resnick failed to provide appropriate nursing care to a child or that he fell asleep on duty after his medical leave. The administrative law judge recommended that the School Board discipline Mr. Resnick by imposing a written reprimand and requiring a medical evaluation to determine the status of his sleep disorder.

After exceptions to the recommended order were filed and heard, the School Board issued its final order. The final order substantially changed the administrative law judge’s findings of fact, conclusions of law, and recommended penalty, with the result being the termination of Mr. Resnick’s employment. We agree with Mr. Resnick’s contention on appeal and conclude the School Board erred in modifying the recommended order, particularly the factual findings.

In a fact-driven case such as this, where an employee’s conduct is at issue, great weight is given to the findings of the administrative law judge, who has the opportunity to hear the witnesses’ testimony and evaluate their credibility. See Dunham v. Highlands County Sch. Bd., 652 So.2d 894, 896 (Fla. 2d DCA 1995); Heifetz v. Dep’t of Bus. Regulation, 475 So.2d 1277, 1281 (Fla. 1st DCA 1985). An administrative agency such as the School Board may not modify an administrative law judge’s factual findings “unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence ....” § 120.57(1)0, Fla. Stat. (2007); see also Packer v. Orange County Sch. Bd., 881 So.2d 1204, 1207 (Fla. 5th DCA 2004). If the administrative law judge’s findings are supported by competent substantial evidence, the agency cannot reject them even to make alternate findings that are also supported by competent substantial evidence. See Gross v. Dep’t of Health, 819 So.2d 997, 1002 (Fla. 5th DCA 2002); Umatilla v. Pub. Employees Relations Comm’n, 422 So.2d 905, 907-08 (Fla. 5th DCA 1982). An agency abuses its discretion when it improperly rejects an administrative law judge’s findings. See Strickland v. Fla. A & M Univ., 799 So.2d 276, 278-80 (Fla. 1st DCA 2001).

We conclude the School Board abused its discretion in this case when it modified the factual findings in the recommended order. The administrative law judge’s findings were supported by competent substantial evidence. The School Board improperly substituted certain of its own findings to support the desired result of termination. When “the reasons for the change are legally insufficient, it is entirely appropriate to remand with instructions to approve the hearing officer’s recommendations.” Dep’t of Prof'l Regulation v. Bernal, 531 So.2d 967 (Fla.1988). Accordingly, we reverse and remand with directions to the School Board to adopt the administrative law judge’s recommended order.

REVERSED and REMANDED with directions.

PALMER and LAWSON, JJ., concur.

      . This is not a case where the legal conclusions and increased penalty can withstand reinstatement of the administrative law judge's factual findings. See Jamerson v. Spruell, 658 So.2d 599 (Fla. 1st DCA 1995); cf. Goss v. Dist. Sch. Bd. of St. Johns County, 601 So.2d 1232 (Fla. 5th DCA 1992).


text:
    Andrew URBAN, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-1022.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 2010.
    James S. Purdy, Public Defender, and Ailene S. Rogers, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellee.
   JACOBUS, J.

Andrew Urban appeals his convictions and sentences for possession of cannabis and two counts of driving under the influence. Urban raises two issues. First, he argues the trial court erred by denying his motion for judgment of acquittal. We find the evidence was sufficient and reject this argument without further comment. In his second issue, Urban contends the trial court applied the wrong version of Florida’s Youthful Offender Act at sentencing. The State concedes error on this point. On the date of Urban’s offenses, September 27, 2008, a trial court could impose a youthful offender sentence under section 958.04(l)(b), Florida Statutes, if the defendant committed the crime before his 21st birthday. On October 1, 2008, section 958.04(l)(b) was amended to require the defendant to be under the age of 21 at the time of sentencing. As luck would have it, Urban was under 21 on the date he committed the crimes, but over 21 on the date of sentencing. The trial court declined to consider a youthful offender sentence, retroactively applying the amended version of the statute. This was error. The trial court should have applied the statute in effect on the date of the crime, not the date of sentencing. See Postell v. State, 971 So.2d 986 (Fla. 5th DCA 2008); Allen v. State, 383 So.2d 674 (Fla. 5th DCA 1980).

Therefore, we affirm Urban’s convictions but reverse his sentences. We remand for resentencing under the correct version of the youthful offender statute. We do not hold that Urban should be sentenced as a youthful offender, only that the trial court must consider a youthful offender sentence at a de novo sentencing hearing on remand.

AFFIRMED in part; REVERSED in part and REMANDED with instructions.

MONACO, C.J., and ORFINGER, J., concur.


author: PALMER, J.

text:
    Joseph R. TYLER, Jr., Appellant, v. Cynthia Lynn TYLER, Appellee.
    No. 5D09-3158.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 2010.
    Robert Charles McClain, Melbourne, for Appellant.
    No Appearance for Appellee.
   PALMER, J.

Joseph Tyler (husband) appeals the final dissolution judgment entered by the trial court, contending that the trial court erred in valuing the parties’ marital home for purpose of equitable distribution. Determining that the trial court used an incorrect figure in calculating the value of the marital home, we reverse.

In January 2008, the husband filed a petition to dissolve the parties’ short-term marriage. The matter was referred to a general magistrate. After conducting an evidentiary hearing, the magistrate issued a report and recommendation. The magistrate concluded, inter alia, that the value of the marital home at the time of the marriage was $69,470.00 (apparently based on the assessed value of the home at the time of the marriage), and that the market value of the home at the time the petition for dissolution was filed was $125,000.00. The magistrate further concluded that the increase in the value of the home was due to improvements made by the parties during the course of the marriage and, therefore, the wife was entitled to receive a one-half share in the increase of value.

The husband filed exceptions to the magistrate’s report and the trial court held a hearing thereon. At the conclusion of the hearing, the trial court ruled that the $125,000.00 market value of the house was accurate. However, the court further ruled that, in calculating the increase in the value of the home during the course of the marriage, it was improper for the general magistrate to use the 2005 assessed value of the home, rather than the market value of the home. The court explained that the magistrate should have used the market value on both ends. However, the court then mistakenly indicated that the market value of the marital home in 2005 was $79,600.00, when the undisputed evidence showed that the market value in 2005 was $94,540.00. The court awarded each party a one-half interest in the appreciated value of the marital home as calculated by the court ($125,000.00 minus $79,600.00 equaling $45,400.00; thereby entitling each spouse to a $22,700.00 interest). Utilizing the correct value, the increase in the value of the marital home over the course of the parties’ marriage was $80,500.00, thereby entitling each spouse to an interest of $15,250.00.

Accordingly, we reverse the final dissolution judgment and remand this matter to the trial court for correction in the calculation of the increased value of the marital home over the course of the parties’ marriage and for any other adjustment in the equitable distribution scheme which may be appropriate in light of this recalculation.

REVERSED and REMANDED.

GRIFFIN and SAWAYA, JJ., concur.


author: PER CURIAM. ORFINGER, J.,

text:
    AAA TITLE AGENCY, INC., f/k/a AAA, etc., et al., Appellants, v. Cecilia C. FULLER, Appellee.
    No. 5D10-563.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 2010.
    J. Steven Garthe and Carly R. Fish-paugh, of Heebner, Baggett, Upchurch & Garthe, P.L., Daytona Beach, for Appellant.
    Barry E. Hughes, South Daytona, for Appellee.
   PER CURIAM.

AFFIRMED.

LAWSON and EVANDER, JJ., concur.

ORFINGER, J., concurs and concurs specially, with opinion.

ORFINGER, J.,

concurs specially.

Affirmance is appropriate here because if, as Appellants’ claim, error exists, it was invited error. To the extent that 50 State Security Service, Inc. v. Murray, 973 So.2d 533, 535 n. 3 (Fla. 3d DCA 2007), suggests a contrary result, that footnoted comment constitutes dicta and was not an essential holding of the case. Only language that is “clearly critical to the outcome” of the case may be considered a holding of the case. See BellSouth Tele-comm., Inc. v. Church & Tower of Fla., Inc., 930 So.2d 668, 673 (Fla. 3d DCA 2006). When a statement does not directly control the outcome, it is dicta and without the force of precedent. State ex rel. Biscayne Kennel Club v. Bd. of Bus. Regulation of Dep’t of Bus. Regulation, 276 So.2d 823, 826 (Fla.1973). As a consequence, I see no conflict with Murray.


text:
    Jose L. PEREIRA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D10-2968.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 2010.
    Jose L. Pereira, III, Malone, pro se.
    Bill McCollum, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the lower court and be treated as the notice of appeal from the order denying the motion for post-conviction relief in Case Number 2006-CF-002344, in and for Hernando County, Florida. See Fla. RApp. P. 9.141(c)(5)(D).

PETITION GRANTED.

TORPY, EVANDER and JACOBUS, JJ., concur.


author: DAVIS, Judge.

text:
    Gary E. COCHRAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-545.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 2010.
   DAVIS, Judge.

Gary E. Cochran challenges the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.850. Cochran raised numerous claims of ineffective assistance of counsel in the motion. We affirm without comment the summary denial of all but one claim.

Cochran was indicted for first-degree murder. The State sought the death penalty; however, Cochran entered a negotiated plea to the charge in exchange for a sentence of life imprisonment. In the first ground of his rule 3.850 motion, Cochran alleged that if his counsel had filed and adequately pursued a motion to determine mental retardation as a bar to execution pursuant to Florida Rule of Criminal Procedure 3.203(d), the trial court would have found him ineligible for execution. He therefore alleges that his plea was involuntary; he would not have pleaded to the charge but would have proceeded to trial but for the possibility of facing the death penalty. This constitutes a facially sufficient claim for relief. See Davis v. State, 15 So.3d 770, 773 (Fla. 2d DCA 2009) (concluding that a claim of ineffective assistance of counsel for failing to investigate a defense that alleges both a deficient performance and that the defendant would not have entered the plea absent counsel’s failure states a facially sufficient claim that requires record evidence or an evidentiary hearing to refute).

The postconviction court summarily denied this claim, finding that trial counsel had thoroughly investigáted Cochran’s mental health. The attachments to the postconviction court’s order include only motions and orders regarding the appointment and payment of experts. These documents indicate that trial counsel investigated Cochran’s alleged mental retardation. However, they give no indication as to the experts’ opinion regarding his mental status. Thus, the attachments do not refute Cochran’s claim that his plea was involuntary. We therefore reverse the denial of this claim and remand to the postconviction court for further proceedings. Should the postconviction court again summarily deny this claim, it shall attach those portions of the trial court record that conclusively refute the claim; otherwise it shall conduct an evidentiary hearing on the issue.

Affirmed in part, reversed in part, and remanded.

VILLANTI and LaROSE, JJ., Concur.

      . We also affirm without comment the post-conviction court's denial of Cochran's motion to appoint counsel and motion for leave to amend.


author: VILLANTI, Judge.

text:
    Marion WALLACE, Appellant, v. Melba WALLACE, Appellee.
    No. 2D09-3042.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 2010.
    Joseph C. Hood, Tampa, for Appellant.
    Melba Wallace, pro se.
   VILLANTI, Judge.

Marion Wallace (the Husband) appeals the final judgment of dissolution of his marriage to Melba Wallace (the Wife). We affirm the dissolution of marriage but reverse the remainder of the judgment and remand for further proceedings.

The Husband claims that the trial court committed reversible error by (1) failing to make the requisite findings to support its determination that the Wife’s income was less than that established by the undisputed testimony, (2) distributing the parties’ assets and liabilities unequally without establishing a valuation date and without making specific findings to justify the unequal distribution, and (3) ordering the Husband to pay the Wife’s attorney’s fees without making the requisite findings concerning the reasonable hours expended and the reasonable hourly rate. Because controlling statutory and case law requires that each of these determinations be made by the trial court, we must reverse and remand for such findings. See Lin v. Lin, 37 So.3d 941, 943 (Fla. 2d DCA 2010) (“The trial court’s determination of the amount of a party’s income must be supported by competent, substantial evidence.”); Rogers v. Rogers, 12 So.3d 288, 291-92 (Fla. 2d DCA 2009) (reversing an attorney’s fee award and remanding for specific findings supporting the court’s determination of entitlement to fees, the amount of fees awarded, and any payment plan it imposes); McCants v. McCants, 984 So.2d 678, 682 (Fla. 2d DCA 2008) (holding that a final judgment of dissolution that awards alimony based on a determination of income that is not supported by competent, substantial evidence must be reversed); Pavese v. Pavese, 932 So.2d 1269, 1270 (Fla. 2d DCA 2006) (citing section 61.075(3), Florida Statutes, and holding that a final judgment of dissolution that fails to include specific written findings of fact that identify, classify, value, and distribute the parties’ assets and liabilities must be reversed); Pignataro v. Rutledge, 841 So.2d 636, 638 (Fla. 2d DCA 2003) (holding that a final judgment of dissolution must contain specific written findings valuing the parties’ assets and liabilities and justifying any unequal distribution); Walker v. Walker, 818 So.2d 711, 713 (Fla. 2d DCA 2002) (holding that the trial court’s failure to make adequate factual findings to explain or support its decision regarding the type and amount of alimony requires reversal for such findings).

It may well be that the result on remand is a change in the composition of the award types and amounts, and therefore the trial court is not bound by its initial determinations on these issues. Further, as freely acknowledged by the Husband at oral argument, remand for additional factual findings may result in a greater alimony award to the Wife in this long-term marriage. This is a risk the Husband has chosen to take. In addition, while the parties have few assets to be distributed between them, controlling authority does not recognize the paucity of assets as an exception to the requirement that the statutorily required findings be included in the final judgment of dissolution. Hence, while we affirm the dissolution of marriage, we must reverse and remand the balance of the judgment for further findings.

Affirmed in part, reversed in part, and remanded with instructions.

SILBERMAN and CRENSHAW, JJ„ Concur.


author: WALLACE, Judge.

text:
    A.S., Appellant, v. STATE of Florida, Appellee.
    No. 2D09-537.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 2010.
    James Marion Moorman, Public Defender, and Douglas S. Connor, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   WALLACE, Judge.

A.S. challenges her adjudication of delinquency for first-degree arson. We affirm the adjudication of delinquency and the disposition order without comment. However, we remand the case to the circuit court for the correction of an order transferring A.S.’s case to Lee County. Although A.S. pleaded not guilty, the transfer order recites that she entered a guilty plea. On remand, the circuit court shall correct the transfer order to reflect A.S.’s plea of not guilty and the finding of guilty after a trial.

Affirmed; remanded with directions.

ALTENBERND and LaROSE, JJ., Concur.


text:
    Mario CORDOVEZ, Appellant, v. HIGH-RISE INSTALLATION, INC. and Bridgefield Employers Insurance Company, Appellees.
    No. 1D09-5786.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2010.
    Jay M. Levy of Jay M. Levy, P.A., Miami, and Jeffrey I. Jacobs of Malea & Jacobs, P.A., South Miami, 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 seeks reversal of the Judge of Compensation Claims’ (JCC’s) denial of his motion to vacate a settlement. Claimant argues that his carotid cavernous fistula (CCF) was a condition unknown to the parties at the time of settlement, rather than an unknown manifestation of Claimant’s known injury, as found by the JCC. We agree with the JCC’s conclusion, and affirm the order on appeal.

Background

The facts are not in dispute. On July 20, 2006, Claimant’s supervisor hit him with a radio, on the top left side of his head. Claimant received emergency treatment on the date of the accident for a head trauma and scalp laceration, including staples for the laceration and a CT scan of his neck and brain.

Because of continuing complaints of headaches with occasional nausea and vomiting, Claimant was referred to a neurologist, Dr. Martinez, who saw Claimant first on September 5, 2006. Dr. Martinez’s diagnosis was post-traumatic neuralgic syndrome, which referred to the pain in and around Claimant’s left eye, and post-concussion syndrome, which is seen with head injuries. Dr. Martinez recommended a brain MRI and an EEG because of the trauma to the brain and because time had passed and Claimant was not improving. The doctor also prescribed Lyrica for the nerve pain. Dr. Martinez testified that both the MRI and the EEG were normal. He next saw Claimant on September 26, 2006. The doctor noted Claimant’s exam was normal, as it had been on September 5. His impression was of post-concussion syndrome with no evidence of any intra-cranial lesion. He advised Claimant to take Lyrica for a couple more months and return to see him in six weeks; he released Claimant for full-duty work. Dr. Martinez testified that at the time of that September 26 exam, which was the last time he saw Claimant, he did not expect any residual dysfunction and anticipated Claimant would reach maximum medical improvement in six to eight weeks.

On November 18, 2006, Claimant, who was represented by an attorney, participated in a voluntary, private mediation. The mediation report states: “The parties completely resolved all issues as set forth in the attached Mediation Settlement Agreement.” Claimant and his attorney signed the Settlement Agreement and Release on December 7, 2006, and the JCC entered an order approving the parties’ agreement on December 29, 2006.

On January 16, 2009, Claimant filed a Motion to Vacate or Set Aside Settlement Agreement and Release on grounds he has a CCF — an unknown injury that was not within the contemplation of the parties. The E/C responded on January 29, 2009, that there was no mutual mistake of fact as the only mistake was Claimant’s failure to ascertain the severity of his condition. Further, there was no mistake as to the terms and legal effect of settling Claimant’s right to future workers’ compensation benefits.

During his deposition taken on April 14, 2009, Dr. Martinez was questioned about his review of Claimant’s medical records for treatment received in February 2007 at Bascom Palmer Eye Institute. Dr. Martinez noted that on February 19, 2007, Claimant reported to the physicians at Bascom Palmer that he had pain in his right eye and on exam the eye was noted to be protruding and the veins were dilated. The doctor further noted that, based on diagnostic testing, Bascom Palmer physicians found Claimant to be suffering from CCF, which he explained was “an abnormal connection between the arteries in the brain and the veins in the brain.”

Dr. Martinez testified that Claimant never had symptoms associated with CCF while Claimant was under his care and that post-concussion syndrome is distinct from CCF. When asked to opine as to the major contributing cause of the CCF, Dr. Martinez testified that it would “more likely to be due to the head injury than to chance.” He further explained that head trauma is one of the common causes of CCF and the occurrence of CCF without a known cause is rare. Finally, he explained that CCF can take months or years to develop.

At the September 16, 2009, final hearing, Claimant argued that the settlement and release should be set aside based on a mutual mistake of fact as to the existence of an unknown injury — CCF. Claimant argued that this case represented an unknown injury as opposed to an unexpected consequence of a known injury. The E/C countered that Claimant, while represented, voluntarily agreed to a settlement which released the E/C from future obligations to pay any and all future benefits for injuries related to the accident or any known or unknown injuries. The E/C further argued that Claimant agreed he was responsible for any arguably related conditions not yet manifested.

Analysis

A JCC has the power to vacate or set aside settlement agreements. See Sanders v. City of Orlando, 997 So.2d 1089, 1098-95 (Fla.2008). “[A] release of a claim for personal injuries may not be set aside based on a mistake of fact when the claimant’s known injury proves to be more serious than was anticipated by the parties at the execution of the release.” Sponga v. Warro, 698 So.2d 621, 624 (Fla. 5th DCA 1997). It was known that Claimant sustained an injury to his head/brain. His complaints included nausea, vomiting, and headaches. Multiple diagnostic studies— CT scan of the brain, brain MRI, EEG— were conducted in an effort to explain Claimant’s symptoms. Claimant was still complaining of headaches at the time of the November 2006 mediation, yet he had not returned to see Dr. Martinez as he had been instructed in September 2006. Instead, while represented by counsel, he voluntarily entered into a settlement agreement at the mediation which resolved all rights he had under the workers’ compensation law on account of the July 2006 workplace accident.

The facts in Swilley v. Long, 215 So.2d 340 (Fla. 1st DCA 1968), are remarkably similar to the facts in this case. Swilley was diagnosed with a contusion and sprain of his lower back as a result of a motor vehicle accident. Id. at 340. Thereafter, he agreed to settle his case. Id. “Based upon such agreement, a general release of all claims by plaintiff against defendant was prepared and executed.” Id. Because plaintiff continued to have back pain after he settled the case, he went to a new doctor who diagnosed a herniated disc for which surgery was performed. Id. at 340-41. A summary judgment was rendered in favor of defendant based on plaintiff having executed a general release. Id. at 341. This court affirmed the trial court:

In the case sub judice it was known to both parties that plaintiff suffered an injury to his lower back which resulted in pain to both his back and legs.... Neither party knew nor had reason to believe that the consequences of the known injury were more serious than those discovered and reported by plaintiffs doctors. The injured disc condition was not discovered until later by another doctor, but this is only an additional consequence of the known injury and not a mistake as to the existence of the injury itself.

Id. at 841-42.

Similarly, here, both parties knew Claimant suffered an injury to his head; they did not, however, know the full extent of that head injury. The JCC did not err in rejecting Claimant’s request to vacate the settlement and release because “[t]he weight of authority ... [is] that a release of a claim for personal injuries can not be voided merely because the injuries have proved more serious that the releasor, at the time of executing the release, believed them to be.” Id. at 342.

Claimant’s focus on the Fourth District’s pronouncement in Cardinale v. Thompson, 592 So.2d 799 (Fla. 4th DCA 1992), is misplaced because the appellees in Cardi-nale stipulated they were not “aware of or considered any brain injury or potential seizure activity at the time the release was executed.” Id. at 800.

Thus, the stipulation was such that the only issue remaining before the trial court was whether Cardinale’s seizure constituted an unknown consequence of a known injury, (the known blow to his left eye and orbit), or whether the seizure resulted from an unknown injury (the unknown brain injury). If the former were true, the release would not be set aside. If the latter were true, it would.

Id. The Fourth District rejected the appel-lees’ description of Cardinale’s injuries as “an injury to the head,” given the stipulations that Cardinale suffered contusions to his left eye and neck, and the appellees were not aware of a brain injury. Id. at 800-01. The statement by the court that it did “not agree with appellees’ overly broad characterization of the injuries Car-dinale sustained” was not a pronouncement of a principle of law.

We agree with the reasoning in Sponga, as did the JCC, that “cases settled in mediation are especially unsuited for the liberal application of a rule allowing rescission of a settlement agreement based on a unilateral mistake.” 698 So.2d at 625. The time to ascertain the full implication of Claimant’s injury was before the mediation. As explained by the Fifth DCA:

Mediation, like arbitration, is an alternative dispute resolution device. It is not to be engaged in casually or carelessly. The decision to engage in mediation and to settle at mediation means that remedies and options otherwise available through the judicial system are foregone. The finality of it once the parties have set done their agreement in writing is critical.

Id. The JCC rightly concluded that “parties have ... the right to make, what is apparent in hindsight, a bad bargain— especially when represented by counsel.”

AFFIRMED.

KAHN, LEWIS, and CLARK, JJ.', concur.


text:
    Sergio HERNANDEZ, Appellant, v. The GEO GROUP, INC./SPECIALTY RISK SERVICES, Appellees.
    No. 1D09-4661.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2010.

      S. Peter Capua of the S. Peter Capua Law Offices, LLC, Miami, for Appellant.
    H. George Kagan and Julia Dolce of Miller, Kagan, Rodriguez & Silver, P.L., West Palm Beach, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant challenges an order of the Judge of Compensation Claims (JCC) which denies permanent total disability (PTD) benefits for a period preceding maximum medical improvement (MMI). For reasons explained below, we modify the order on appeal, and affirm the denial of PTD for the period preceding the date of MMI.

On December 2, 2007, Claimant suffered a compensable traumatic brain injury which affects his balance, reasoning, memory, and cognitive functioning. Claimant filed a claim for PTD before being placed at MMI by all of his treating physicians, and at a time when he was receiving temporary total disability (TTD) benefits and was medically restricted from returning to any level of work by his authorized doctors. The JCC denied the PTD claim, relying on opinions from Claimant’s authorized treating medical providers that lasting improvement in Claimant’s medical condition was reasonably expected, and that Claimant’s permanent work restrictions would best be determined at the time of MMI. Because competent substantial evidence supports these findings, we affirm the JCC’s denial of PTD for the period preceding the attainment of MMI, based on the premature nature of the PTD claim. See, e.g., Olmo v. Rehabcare Starmed/SRS, 930 So.2d 789 (Fla. 1st DCA 2006) (explaining an award of PTD made before effects of treatment are known is premature).

For reasons which are not entirely clear, in addition to denying PTD because Claimant had not reached MMI and (concomitantly) that it was simply too early to accurately determine Claimant’s permanent work restrictions, the JCC denied PTD (ostensibly for periods after MMI, once reached) on the alternative basis that Claimant did not introduce vocational evidence establishing that he would not be able to work once he reached MMI. This alternative finding is untenable because, by finding Claimant’s permanent work restrictions could not accurately be ascertained until MMI, the JCC, of necessity, determined Claimant’s permanent work restrictions were speculative. Here, there is no record basis for an assumption that Claimant, who was totally restricted from all levels of work on a medical basis at the time of hearing and for twenty months prior thereto, would, once achieving MMI, have the physical capacity to engage in sedentary work or greater, and thus require vocational testimony to establish his entitlement to PTD. See § 440.15(l)(b)5., Fla. Stat. (2007) (conditioning award of PTD on inability to engage in sedentary work); see also, e.g., Blake v. Merck & Co./SRS, 1D09-5464, 43 So.3d 882 (Fla. 1st DCA September 7, 2010) (explaining available means of proving entitlement to PTD, including proof based on medical incapacity to perform requisite level of work). The JCC’s alternative denial of PTD for periods following MMI is equally, if not more, speculative and impermissible than a determination as to Claimant’s permanent work status once he reaches MMI. Thus, we conclude that the JCC’s alternative basis of denial is unsustainable and improper. Accordingly, we hereby modify the order on appeal by quashing the JCC’s denial of PTD for any period following the attainment of MMI, and striking from the order the JCC’s denial of PTD on the alternative basis that no vocational testimony was introduced. See Lawrence v. Aquarius Sales & Serv., Inc., 30 So.3d 690 (Fla. 1st DCA 2010) (modifying JCC’s order in part, and affirming as modified).

Claimant also argues the JCC erred in relying on the medical opinion of a neuropsychologist (a non-physician) regarding the severity of his injuries. Because competent substantial evidence supports the JCC’s finding that lasting improvement in Claimant’s condition was reasonably anticipated, a determination of the severity of Claimant’s permanent condition is also premature. Nevertheless, to the extent the JCC relied on the opinion of the neuropsychologist to determine the existence or extent of Claimant’s permanent impairment, we modify the order by quashing any findings based on such reliance. See § 440.15(3)(b), Fla. Stat. (2007) (explaining no persons other than limited class of physicians and medical doctors (which class does not include psychologists or neuropsychologists) are allowed to render opinions regarding existence or extent of permanent impairment).

Based on the foregoing we affirm the JCC’s denial of PTD benefits preceding the date of MMI, and modify the order by quashing any denial of PTD benefits which might otherwise be awardable after MMI and any findings as to the existence or extent of permanent impairment based on the opinions of the treating neuropsychologist. The order is AFFIRMED as modified.

HAWKES, C.J., ROBERTS and ROWE, JJ., Concur.


author: THOMAS, J. KAHN, J.,

text:
    Janice LOCKER, Appellant, v. UNITED PHARMACEUTICAL GROUP, INC., and Zenith Insurance Co., Appellees.
    No. 1D10-0464.
    District Court of Appeal of Florida, First District.
    Oct. 29, 2010.

      Scott J. Brook of Scott J. Brook, P.A., Coral Springs, for Appellant.
    William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellees.
   THOMAS, J.

In this workers’ compensation appeal, Claimant argues the Judge of Compensation (JCC) erred in dismissing her petition for benefits (PFB) on the basis that the claimed benefits were “not in default, nor are they ripe, due and owing.” We agree and reverse.

Claimant filed a PFB seeking authorization for continued treatment for her right shoulder, and attached a prescription detailing the recommended treatment. Dr. Bayliss, the physician prescribing the treatment, had been previously authorized to provide treatment for the right shoulder and was never de-authorized by the Employer/Carrier (E/C). The E/C filed a motion to dismiss the PFB based on the JCC’s acceptance of an expert medical ad-visor’s (EMA’s) opinion given in a prior proceeding in this matter regarding an earlier filed PFB. E/C argues that because Claimant did not challenge the earlier order, she was not entitled to re-litigate the issue, thus, the claims in the current PFB could not be “in default, ripe, due and owing.”

In granting the motion to dismiss, the JCC relied on evidence adduced at the earlier hearing on Claimant’s claim for authorization of shoulder surgery. In the course of that earlier proceeding, the JCC granted a request for appointment of an EMA to address a medical issue. Following a hearing on that petition, the JCC entered an abbreviated final order that included no findings of fact and simply denied “Claimant’s request for authorization of right shoulder surgery.” In a ruling letter accompanying the abbreviated final order, the JCC indicated that she accepted the opinion of the EMA that “the incident of 04/19/06 perpetuated an exacerbation of the right shoulder, which was then deemed to be at MMI with a zero percent (0%) impairment rating, essentially bringing Ms. Locker back to baseline.”

Because the basis for the JCC’s dismissal was application of a legal principle, essentially finding the PFB failed to state a legal basis for award of the benefits, our review is de novo. See Gilbreth v. Genesis Eldercare, 821 So.2d 1226, 1228 (Fla. 1st DCA 2002) (reviewing de novo JCC’s conclusions involving questions of law). When workers’ compensation case law fails to provide guidance on procedural matters, this court has utilized analogous civil processes. See Thomas v. Eckerd Drugs, 987 So.2d 1262, 1263 (Fla. 1st DCA 2008) (“In the absence of case law offering guidance regarding summary final orders, we evaluate the JCC’s order using the summary judgment standard.”). Prior decisions have established the standard of review applicable here. See, e.g., Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 734 (Fla.2002). “[Wjhen presented with a motion to dismiss, a trial court is required to ‘treat the factual allegations of the complaint as true and to consider those allegations in the light most favorable to the plaintiffs.’ ” Id. at 734-35 (quoting Hollywood Lakes Section Civic Ass’n, Inc. v. City of Hollywood, 676 So.2d 500, 501 (Fla. 4th DCA 1996)). It is error for the trial court to rely “upon matters raised in the motion, but not contained within the four corners of the complaint.” Chatham Mfg., Corp. v. Cates, 969 So.2d 515, 516 (Fla. 1st DCA 2007).

As we stated in Brewer v. Clerk of Circuit Court, Gadsden County:

This court has explained the time-honored standard for evaluating a motion to dismiss for failure to state a cause of action:
When ruling on a motion to dismiss for failure to state a cause of action, the trial court must accept the allegations of the complaint as true. Likewise, the appellate court must accept the facts alleged in a complaint as true when reviewing an order that determines the sufficiency of the complaint. Whether a complaint is sufficient to state a cause of action is an issue of law. Consequently, a ruling on a motion to dismiss for failure to state a cause of action is reviewable on appeal by the de novo standard of review.

720 So.2d 602, 603 (Fla. 1st DCA 1998) (citing Sarkis v. Pafford Oil Co., Inc., 697 So.2d 524, 526 (Fla. 1st DCA 1997) (citations omitted)).

Here, the only pleading properly before the JCC for consideration was the PFB with the attached medical report. The PFB sought an award of additional medical benefits, as prescribed by Dr. Bayliss. Viewing the allegations in the PFB in the light most favorable to Claimant, the additional treatment recommended by Dr. Bayliss was ripe, due, and owing. In granting the E/C’s motion to dismiss, the JCC erred in going beyond the four corners of the PFB at issue and relying on extra-record evidence to find that the major contributing cause of Claimant’s right shoulder condition had been established adversely to Claimant, thereby concluding that the requested benefits were not in default and, thus, were not ripe, due, and owing. See Chatham Mfg., Corp., 969 So.2d at 516. Although the evidence considered in the proceeding below may well be relevant on remand, it cannot sustain the order of dismissal here.

Accordingly, the order dismissing Claimant’s petition for benefits is REVERSED and this cause is REMANDED for further proceedings.

VAN NORTWICK, J., concurs.

KAHN, J., Concurs with written Opinion.

KAHN, J.,

concurring.

I agree that we are required to reverse in this case. I do not, however, completely agree that a JCC, in reviewing a motion to dismiss, is quite as constrained as the majority opinion suggests. As we indicated in Brewer v. Clerk of Circuit of Court, Gadsden County, where the parties are in agreement, the trial court may treat “the hearing on the motion to dismiss as a summary judgment hearing.” 720 So.2d 602, 604 (Fla. 1st DCA 1998). In other words, the parties, by stipulation, may submit to the trial court at the motion-to-dismiss stage, a dispositive issue, even though that issue may rely, at least in part, upon non-record matters. Id. (“The issue of whether appellant had complied with the statutory prerequisite was thus tried by stipulation or consent of the parties.”); see also City of Clearwater v. U.S. Steel Corp., 469 So.2d 915, 916 (Fla. 2d DCA 1985) (“The parties, however, stipulated that the court could consider and take judicial notice of all other proceedings between them. The trial court therefore properly considered the issue of res judica-ta.”).

I believe, respectfully, that such flexibility is particularly appropriate in a workers’ compensation matter which, in many instances, will involve serial petitions for benefits, just as in the present case. The result reached by the majority is correct because we can easily glean from the transcript of the hearing in this case that counsel for appellant never agreed that the JCC could look beyond the four corners of the petition. Accordingly, and with this minor qualification, I concur.