text:
    Bruce HARRINGTON and Janet Harrington, Appellants, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 4D09-2591.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 2010.
    Rehearing Denied March 17, 2011.

      Joel S. Perwin of Joel S. Perwin, P.A., Miami, and Joseph P. D’Ambrosio, P.A., Delray Beach, for appellants.
    Anne C. Sullivan of Gaebe, Mullen, An-tonelli & DiMatteo, Coral Gables, for ap-pellee.
   TAYLOR, J.

Bruce and Janet Harrington appeal a summary final judgment entered in favor of Citizens Property Insurance Corporation in a declaratory judgment action brought by the Harringtons to establish liability coverage under a Citizens’ policy for an accident that occurred at their residence. Because the trial court erred in interpreting the policy language, we reverse.

The Harringtons owned real property in West Palm Beach at 477 Mozart Road (“the Mozart property”), their primary residence, and at 301 Vallette Way (“the Vallette property”), their rental property, where they did not live. Citizens issued the Harringtons a homeowners insurance policy with personal liability limits of $300,000. Stuart Williams was seriously injured on the Mozart property while performing work. Williams filed a claim against the Harringtons, who, in turn, sought liability coverage under the Citizens policy. Citizens denied coverage, contending that the policy covered only the Vallette property. The Harringtons filed a complaint against Citizens, seeking declaratory relief that the Mozart property was an “insured location,” as defined by the policy; thus, the policy provided liability coverage for Williams’s accident under “Coverage L — Personal Liability” and “Coverage M — Medical Payments to Others.” The complaint further alleged breach of the insurance policy.

“Insured Location” is defined in the policy as:

a. the “residence premises”; [or]
b. the part of other premises, other structures and grounds used by you as a residence, and:
(1) which is shown in the Declarations; ....

The Harringtons moved for final summary judgment, arguing that the Mozart premises fell under the definition of “insured location,” despite Citizens’ contention that the Mozart property was not listed in the Declarations as the “residence premises.” Asserting that the Mozart property was not covered, Citizens moved for summary judgment. After a hearing, the trial court ruled that Citizens was entitled to final summary judgment as a matter of law and denied the Harringtons’ motion for summary judgment. The court stated that “it is so abundantly clear that when [Plaintiffs] walked in they were seeking insurance not on the ... Mozart Road house ... but they were seeking insurance on the [Vallette] Way property. I do not believe the policy is so ambiguous as to be required an interpretation to find that there is coverage for the worker’s injury on the Mozart Way property. And the policy applies to the [Vallette] Way property in West Palm Beach. So, I’m going to deny the Plaintiffs Motion for Summary Judgment and grant the Defendant’s Motion for Summary Judgment.” The court entered its written order, finding that “[b]ased upon the pleadings, depositions, exhibits, affidavits and other matters of record in this action, there is no genuine issue of material fact. It appears from the terms and conditions of the Citizens homeowners insurance policy at issue in this matter, that there is no coverage for the claim as presented by the allegations of the Complaint in this cause.”

The Harringtons appealed, arguing that the court erred in its interpretation of the policy and that the Mozart property was covered by the policy. They contend that the Vallette property met the definition of “residence premises” and “insured location.” “The standard of review for summary judgment orders is de novo.” Sulkin v. All Fla. Pain Mgmt., Inc., 932 So.2d 485, 486 (Fla. 4th DCA 2006). Questions of insurance policy interpretation — legal questions — are subject to de novo review. Penzer v. Transp. Ins. Co., 29 So.3d 1000, 1005 (Fla.2010).

Summary judgment is proper where no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000) (citing Menendez v. Palms W. Condo. Ass’n, 736 So.2d 58 (Fla. 1st DCA 1999)). Summary judgment should be granted where “ ‘the facts are so clear and undisputed that only questions of law remain.’ ” Sulkin, 932 So.2d at 486 (quoting Dade Cnty. Sch. Bd. v. Radio Station WQBA, 731 So.2d 638, 643 (Fla.1999)). Further, the record must be reviewed by the appellate court in a light most favorable to the non-moving party. Id. (citing City of Lauderhill v. Rhames, 864 So.2d 432, 434 n. 1 (Fla. 4th DCA 2003)). Florida Rule of Civil Procedure 1.510(c) (2009) provides that the parties may rely on “affidavits, answers to interrogatories, admissions, depositions, and other materials as would be admissible in evidence.”

An insurance contract “ ‘must be construed in accordance with the plain language of the policy.’ ” Taurus Holdings, Inc. v. U.S. Fid. & Guar. Co., 913 So.2d 528, 532 (Fla.2005) (quoting Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla.2003)). The policy terms “should be given their plain and unambiguous meaning as understood by the ‘man-on-the-street.’ ” State Farm Fire & Cas. Co. v. Castillo, 829 So.2d 242, 244 (Fla. 3d DCA 2002). The Third District explained:

“A court may resort to construction of a contract of insurance only when the language of the policy in its ordinary meaning is indefinite, ambiguous or equivocal. If the language employed in the policy is clear and unambiguous, there is no occasion for construction or the exercise of a choice of interpretations. In the absence of ambiguity ... it is the function of the court to give effect to and enforce the contract as it is written.”

Id. (quoting U.S. Fire Ins. Co. v. Morejon, 338 So.2d 223, 225 (Fla. 3d DCA 1976)) (alteration in original). If the language is ambiguous, the contract should be construed in favor of the insured ; but if it is unambiguous, it must be given effect as written. Siegle v. Progressive Consumers Ins. Co., 819 So.2d 732, 735 (Fla.2002), Courts may not “ ‘rewrite contracts, add meaning that is not present, or otherwise reach results contrary to the intentions of the parties.’” State Farm Fire & Cas. Ins. Co. v. Deni Assocs. of Fla., Inc., 678 So.2d 397, 403 (Fla. 4th DCA 1996) (quoting State Farm Mut. Auto. Ins. Co. v. Pridgen, 498 So.2d 1245, 1248 (Fla.1986)).

Florida courts apply an “objective” theory of contractual intent when interpreting insurance policies, which are contracts between the insured and the carrier: “ ‘The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs—not the parties having meant the same thing but on their having said the same thing.’ ” Id. at 400 (quoting Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla.1957)) (internal quotations omitted). Thus, meaning is derived from the parties’ unambiguous language, not from their subjective understandings. Id. Here, when the court stated that “it is so abundantly clear that when [Plaintiffs] walked in they were seeking insurance not on the ... Mozart Road house ... but they were seeking insurance on the [Vallette] Way property,” the court appeared to have been considering the parties’ subjective intent, rather than applying an objective interpretation of the policy language.

If an insurer does not define a policy term, “the insurer cannot take the position that there should be a ‘narrow, restrictive interpretation of the coverage provided.’ ” State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1076 (Fla.1998) (quoting State Comprehensive Health Ass’n v. Carmichael, 706 So.2d 319, 320 (Fla. 4th DCA 1997)). Further, we explained as follows:

Strict construction does not mean that a court must always find coverage. Strict construction does not mean ... that clear words may be tortured into uncertainty so that new meanings can be added. Where the insurer has defined a term used in the policy in clear, simple, non-technical language, ... strict construction does not mean that judges are empowered to give the defined term a different meaning deemed more socially responsible or desirable to the insured.

Deni Assocs., 678 So.2d at 401.

If more than one interpretation could be given to the policy provision, an ambiguity results. State Farm Fire & Cas. Co. v. Metro. Dade Cnty., 639 So.2d 63, 65 (Fla. 3d DCA 1994) (citing Ellsworth v. Ins. Co. of N. Am., 508 So.2d 395, 400 (Fla. 1st DCA 1987)). The Florida Supreme Court explained ambiguity:

“If the relevant policy language is susceptible to more than one reasonable interpretation, one providing coverage and another limiting coverage, the insurance policy is considered ambiguous.” To find in favor of the insured on this basis, however, the policy must actually be ambiguous. “A provision is not ambiguous simply because it is complex or requires analysis.... ‘[I]f a policy provision is clear and unambiguous, it should be enforced according to its terms.’ ”

Penzer, 29 So.3d at 1005 (quoting Garcia v. Fed. Ins. Co., 969 So.2d 288, 291 (Fla.2007)) (alterations and emphasis in original).

First, we disagree with the Har-ringtons’ argument that the Mozart property falls under the definition of “residence premises. The policy defines “residence premises” in pertinent part as:

a. the one family dwelling, other structures and grounds; or
b. that part of any building;
where you reside and which is shown as the “residence premises” in the Declarations.

The word “and” is used to join the elements of “where you reside” and “which is shown as the ‘residence premises’ in the Declarations”; “and” is a conjunction to mean that both elements must be met. Based on the plain, unambiguous meaning, to meet the definition, one must both reside in the dwelling, and that location must be shown as the “residence premises” in the Declarations. The Mozart property does not meet this definition. Although the Harringtons reside in the Mozart property, the Mozart property was not shown as the “residence premises” in the Declarations.

We agree, however with the Har-ringtons’ next argument that the Mozart property falls under subsection (b)(1) of the “Insured Location” definition, which states as follows:

“Insured Location” is defined in the policy as:

b. the part of other premises, other structures and grounds used by you as a residence, and:
(1) which is shown in the Declarations; ....

The Mozart property, based on the plain, unambiguous meaning, falls under this definition. First, the provision includes “the part of other premises, other structures and grounds.” “Premises” are not defined in the insurance policy. The Florida Supreme Court stated that “ ‘[t]he lack of a definition of an operative term in a policy does not necessarily render the term ambiguous and in need of interpretation by the courts.’ ” Swire Pac. Holdings, 845 So.2d at 166 (quoting CTC Dev. Corp., 720 So.2d at 1076). Insurance policy terms must be given their every day meaning and should be read with regards to ordinary people’s skill and experience. Watson v. Prudential Prop. & Cas. Ins. Co., 696 So.2d 394, 396 (Fla. 3d DCA 1997) (citing Lindheimer v. St. Paul Fire & Marine Ins. Co., 643 So.2d 636, 638 (Fla. 3d DCA 1994)). Florida courts will often use legal and non-legal dictionaries to ascertain the plain meaning of words that appear in insurance policies. Id. (citing Brill v. Indianapolis Life Ins. Co., 784 F.2d 1511, 1513 (11th Cir.1986)).

Black’s Law Dictionary defines “premises” as “[a] house or building, along with its grounds.” Black’s Law DiotionaRY 1219 (8th ed. 2004). The non-legal definition is, in part, either “a tract of land with the buildings thereon” or “a building or part of a building usu. with its appurtenances (as grounds).” MerRiam-WebsteR’s Collegiate DiCtionary 980 (11th ed. 2004). Therefore, giving the word “other premises” its plain meaning, we conclude that the Mozart house qualifies.

According to the policy, the other premises must be used by the insureds as their “residence.” Although the policy does not define “residence,” it is undisputed that the Mozart property was the Harringtons’ principal residence.

The final element of “insured location” is residence property “which is shown in the Declarations.” The Declarations state in the first column that the Named Insured and Mailing Address are: “Bruce Harrington, Janet Harrington, 477 Mozart Rd.” The second column lists the Location of the Residence Premises as: “301 Vallette Way.” The Mozart property address is thus “shown in the Declarations” when one reviews the plain and unambiguous meaning of this provision element. See Castillo, 829 So.2d at 244 (explaining the policy terms “should be given their plain and unambiguous meaning as understood by the ‘man-on-the-street’ ”). Even though the Mozart property was listed as the mailing address, nothing indicates the “insured location” definition excludes such a listing. Although Citizens may not have intended for coverage to extend to the Mozart property for an injury that occurred there and had nothing to do with the Vallette “residence premises,” the insurance policy appears to cover it, based on the plain reading of subsection (b)(1) of “insured location.”

When courts construe insurance policies, they should read the policies as a whole, thereby giving “every provision its full meaning and operative effect.” Gen. Star Indem. Co. v. W. Fla. Vill. Inn, Inc., 874 So.2d 26, 30 (Fla. 2d DCA 2004) (citing Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 34 (Fla.2000)). Additionally, “a single policy provision should not be considered in isolation, but rather, the contract shall be construed according to the entirety of its terms as set forth in the policy and as amplified by the policy application, endorsements, or riders.” Id. (citing e.g. Swire Pac. Holdings, 845 So.2d at 166).

Here, Citizens, when defining “residence premises,” stated the property must be “shown as the ‘residence premises ’ in the Declarations.” Therefore, Citizens knew how to clarify what it intended and could have used a more precise term.

In Epstein v. Hartford Casualty Insurance Co., 566 So.2d 331, 334 (Fla. 1st DCA 1990), the First District held the insurance language was ambiguous and construed it against the insurer. Hartford insured the Epstein’s Cumbrian Garden residence, which met the definition of “residence premises.” Id. at 332. However, the Ep-steins’ personal property was stolen from a rental property on Huntington Forest Boulevard, where the Epsteins never lived. Id. They filed a claim under Coverage C, which covered theft; however, this provision excluded “ ‘theft that occurs off the residence premises of ... property while at any other residence....’” Id. (first alteration in original). The policy did not define “residence” in this sense — the Ep-steins argued it meant “residence” as used in “residence premises” to mean a dwelling used by the insureds as their dwelling; Hartford argued “residence” meant any dwelling house or the like intended to be used as a dwelling. Id. at 333. The court found both interpretations reasonable, the provision ambiguous, and construed it against the insurer, explaining that “Hartford could as easily have used a more precise term, but it failed to do so. The result of this failure is uncertainty as to the application of the policy exclusion to the facts of this case.” Id.

Because Citizens did not use more precise language in explaining what exactly was to be shown on the Declarations— where it used “which is shown in the Declarations” to define “insured location” but used “which is shown as the ‘residence premises ’ in the Declarations” to define “residence premises” — the provision covers the Mozart property. Citizens presumably knew how to draft the language and could have made it more precise if it so desired.

Although Citizens may not have intended the homeowner’s policy at issue to extend to the Mozart property, the Mozart property meets subsection (b)(1) of “insured location” based on the plain, unambiguous language of that definition: it qualifies as “other” premises used by the insureds as a residence and which is shown in the Declarations.

Moreover, if the language is ambiguous, the language must be construed against the drafter of the contract, Citizens, in favor of the insureds, the Harringtons. We therefore reverse the final summary judgment entered in favor of Citizens.

Reversed.

CIKLIN, J., and TOWBIN SINGER, MICHELE, Associate Judge, concur.

      . Because insurance policies are often adhesion contracts, Pasteur Health Plan, Inc. v. Salazar, 658 So.2d 543, 544 (Fla. 3d DCA 1995), the ambiguities are construed against the insurer who prepared the policy. Graham v. Lloyd’s Underwriters at London, 964 So.2d 269, 274 (Fla. 2d DCA 2007).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    LAKELAND REGIONAL MEDICAL CENTER and Commercial Risk Management, Inc., Appellants, v. Terri M. WEECH, Appellee.
    No. 1D10-2333.
    District Court of Appeal of Florida, First District.
    Dec. 21, 2010.
    Warren K. Sponsler and Janelle G. Ko-ren of Sponsler, Bennett, Jacobs & Adams, P.A., Tampa, for Appellants.
    Susan W. Fox of Fox & Loquasto, P.A., Tampa, and Laurie Thrower Miles of Smith, Feddeler, Smith & Miles, P.A., Lakeland, for Appellee.
   PER CURIAM.

The employer/carrier (E/C) in this workers’ compensation case appeals the judge of compensation claims’ (JCC’s) denial of its motion to certify facts to the circuit court filed because Claimant failed to pay the costs awarded to the E/C following Claimant’s unsuccessful attempt to obtain benefits. We agree with the JCC that section 440.33(2), Florida Statutes (2009), does not apply to the situation presented in this case.

Because resolution of this issue requires statutory interpretation, our review is de novo. See Lombardi v. S. Wine & Spirits, 890 So.2d 1128, 1129 (Fla. 1st DCA 2004). Section 440.33(2) provides that:

If any person in proceedings before the judge of compensation claims disobeys or resists any lawful order or process, or misbehaves during a hearing or so near the place thereof as to obstruct the hearing, or neglects to produce, after having been ordered to do so, any pertinent book, paper, or document, or refuses to appear after having been subpoenaed, or upon appearing refuses to take oath or affirmation as a witness, or after having taken the oath refuses to be examined according to law, the judge of compensation claims shall certify the facts to the court having jurisdiction in the place in which it is sitting, which shall thereupon in a summary manner hear the evidence as to the acts complained of and, if the evidence so warrants, punish such person in the same manner and to the same extent as for a contempt committed before the court, or commit such person upon the same conditions as if the doing of the forbidden act had occurred with reference to the process of or in the presence of the court.

A review of the conduct prohibited by the section, and application of the rule of statutory construction expressio unius est ex-clusio alterius, that the mention of one thing implies the exclusion of another, supports the notion that the activity sought to be certified here, Claimant’s failure to pay as directed by the final order, without more, was not intended by the Legislature to be conduct addressed via the application of this statute. See Orr v. Trask, 464 So.2d 131, 135 (Fla.1985) (applying rule of statutory construction in construing section 440.45, Florida Statutes (1981)).

After listing various actions that could result in disruptions in the process of trying a case, section 440.33(2) concludes by directing the JCC to certify facts to a civil court that is to hear evidence and punish a guilty party “in the same manner and to the same extent as for a “contempt ” committed before the court.” (emphasis added). In defining “contempt,” Black’s Law Dictionary references a treatise on contempt:

Contempt is a disregard of, or disobedience to, the rules or orders of a legislative or judicial body, or an interruption of its proceedings by disorderly behavior or insolent language, in its presence or so near thereto as to disturb the proceedings or to impair the respect due to such a body. Edward M. Dangel, Contempt § 1, at 2 (1939).

Black’s Law Dictionary 336 (8th ed. 2004). Contempt proceedings are appropriately used to ensure the orderly conduct of a hearing, not to enforce final orders of a JCC. A JCC has only those powers conferred by chapter 440. See Avalon Ctr. v. Hardaway, 967 So.2d 268, 272 (Fla. 1st DCA 2007) (“Courts of Compensation Claims are not courts of general jurisdiction, and therefore do not have ‘general’ jurisdiction over any subject matter beyond that specifically conferred by statute.”). Thus, we reject the E/C’s argument that application of section 440.33(1), Florida Statutes (2009), giving JCCs the power to effectuate and discharge the duties of their office, would allow the action requested here. Nothing in the language of section 440.33(2) suggests that it applies to the broader notion of contempt encompassing the enforcement of final orders.

The E/C further argues that if the JCC cannot certify to the circuit court facts such as those present here, it will have no other remedy to enforce the JCC’s award of costs, the order awarding the costs will be meaningless, and its due process rights will have been violated. This court recently referenced a remedy available to an E/C in addressing whether an E/C had a right to file a rule nisi petition, pursuant to section 440.24(1), Florida Statutes. See Brown v. Clay County Bd. of County Comm’rs, 43 So.3d 782, 784 (Fla. 1st DCA 2010) (approving the Fifth District Court of Appeal’s suggestion in Orange County v. New, 39 So.3d 423 (Fla. 5th DCA 2010), “that an E/C may seek enforcement of the award as any other debt may be enforced in the appropriate court”). We see no reason why the same remedy would not be available to the E/C here.

AFFIRMED.

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


author: VILLANTI, Judge.

text:
    Salvador DIAZ-VERSON, Jr., Petitioner, v. WALBRIDGE ALDINGER COMPANY, Respondent.
    No. 2D10-933.
    District Court of Appeal of Florida, Second District.
    Dec. 29, 2010.

      Salvador Diaz-Verson, Jr., pro se.
    Daniel J. DeLeo of Shumaker, Loop & Kendrick, LLP, Sarasota, for Respondent.
   VILLANTI, Judge.

Salvador Diaz-Verson, Jr., petitions for a writ of certiorari directed to the trial court’s order that denied his motion for protective order relating to fifteen subpoenas duces tecum issued by Walbridge Al-dinger Company that sought discovery of Diaz-Verson’s personal financial information. Because the information sought by this discovery is private financial information that is irrelevant to the allegations against Diaz-Verson contained in Wal-bridge’s second amended complaint, we hold that the trial court departed from the essential requirements of law by denying Diaz-Verson’s motion for protective order. Therefore, we grant the petition and quash the trial court’s order.

According to the allegations of Wal-bridge’s second amended complaint, Wal-bridge, a general contractor, entered into a contract with DVA Sports, LLC, to construct a sports arena in Manatee County. The contract was subsequently assigned to DVA Arena, LLC. Diaz-Verson was a principal of both DVA Sports and DVA Arena, but he was not personally a party to the contract between DVA Sports and Walbridge. According to the complaint, Walbridge performed several million dollars of work on the arena before it became apparent that it was not going to be paid. Walbridge filed liens against the arena property, and it subsequently sued DVA Arena and several other entities involved in the construction project on various theories.

Of the twelve counts contained in Wal-bridge’s second amended complaint, only one was alleged against Diaz-Verson personally. In count VI of its second amended complaint, Walbridge sued Diaz-Verson for fraud, alleging that (1) Diaz-Verson and/or his agent told Walbridge that Landmark Bank was providing construction funding; (2) Diaz-Verson and/or his agent told Walbridge that construction financing was in place; (3) Diaz-Verson and/or his agent told Walbridge that there was no reason for it to believe that it would not be paid; (4) Diaz-Verson and/or his agent told Walbridge that DVA Arena would be providing some of the construction funding directly; (5) Diaz-Verson and/or his agent told Walbridge that DVA Arena had decided to refinance the original construction loan and that there were delays in payment due to the refinancing; (6) Diaz-Verson and/or his agent told Walbridge that DVA Arena was refinancing the construction loan because it did not like the terms of the Landmark Bank loan; (7) Diaz-Verson and/or his agent told Wal-bridge that a third-party lender had provided sufficient financing to fund the project; (8) Diaz-Verson and/or his agent told Walbridge that Diaz-Verson was holding certain stock in escrow as security for further funding; and (9) Diaz-Verson and/or his agent repeatedly told Walbridge that funding and payments were forthcoming. Walbridge alleged that each of these statements were false when they were made, that Diaz-Verson intended Wal-bridge to rely on these statements to continue construction, that Walbridge did rely on these statements when continuing construction activities, and that it had been damaged as a result of its reliance on these false statements. In his answer, Diaz-Verson denied making some of the statements and denied that other statements were false when made.

During the course of the ensuing discovery, Walbridge sought to issue fifteen subpoenas duces tecum to various nonparty banks and financial institutions that were listed on Diaz-Verson’s personal financial statement. These subpoenas sought records concerning Diaz-Verson’s personal financial accounts, including joint accounts with Diaz-Verson’s wife, who was not a party to the litigation. In response to these subpoenas, Diaz-Verson filed a motion for protective order, alleging that the information sought by the subpoenas was both irrelevant to the allegations of the complaint and privileged from disclosure. Following a hearing, the trial court denied Diaz-Verson’s motion for protective order and allowed the subpoenas to issue. It is this order that Diaz-Verson asks this court to quash.

Certiorari review of a discovery order is appropriate “when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.” Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). The disclosure of various types of information can result in irreparable harm, including material protected by privilege, trade secrets, or work product. Id. However, the test for discovery is always relevance. Id.; see also Friedman v. Heart Inst. of Port St. Lucie, Inc., 868 So.2d 189, 194 (Fla.2003). Thus,

[a] party’s finances, if relevant to the disputed issues of the underlying action, are not excepted from discovery under this rule of relevancy, and courts will compel production of personal financial documents and information if shown to be relevant by the requesting party.

Friedman, 863 So.2d at 194 (emphasis added). However, “ ‘the disclosure of personal financial information may cause irreparable harm to a person forced to disclose it, in a case in which the information is not relevant.’” Id. (quoting Straub v. Matte, 805 So.2d 99, 100 (Fla. 4th DCA 2002)) (emphasis added). “ ‘[Compelled disclosure through discovery [must] be limited to that which is necessary for a court to determine contested issues....”’ Friedman, 863 So.2d at 194 (quoting Woodward v. Berkery, 714 So.2d 1027, 1036 (Fla. 4th DCA 1998)).

For example, in All About Cruises, Inc. v. Cruise Options, Inc., 889 So.2d 905, 906 (Fla. 4th DCA 2004), Cruise Options’ complaint alleged counts for breach of contract, equitable accounting, and piercing the corporate veil in an action against All About Cruises for failure to pay commissions. The complaint alleged that the owner of All About Cruises, Ms. Myman, had diverted corporate funds for her personal use, thus depriving Cruise Options of payments due to it under the parties’ contract. Id. Cruise Options sought discovery of Myman’s personal financial information to establish where the disputed funds had gone. The trial court denied Myman’s motion for protective order, and the Fourth District denied certiorari. In doing so, the court noted that an “‘order compelling production of relevant financial information cannot be the object of a writ of certiorari because there is no irreparable harm.’ ” Id. at 907 (quoting In re Estate of Sauey, 869 So.2d 664, 665 (Fla. 4th DCA 2004)). Because the financial records sought by Cruise Options were relevant to its claims for accounting and piercing the corporate veil, those records were properly discoverable. Id.

In contrast, in Capco Properties, LLC v. Monterey Gardens of Pinecrest Condominium, 982 So.2d 1211, 1213 (Fla. 3d DCA 2008), Monterey Gardens had alleged claims against Capeo and its principals for fraudulent concealment, fraudulent transfers, negligent nondisclosure, and negligent hiring. The complaint alleged that Capeo had made cash distributions to its principals in an effort to render itself insolvent so as to avoid any judgment Mon-terey Gardens might obtain. Monterey Gardens sought to discover financial information from Capeo and its principals, including financial statements, balance sheets, tax returns, bank statements, and cancelled checks. Id. The trial court denied Capco’s motion for protective order, and Capeo and the principals sought cer-tiorari review. The Third District noted that the items requested “comprise personal financial information that is ordinarily discoverable only in aid of execution.” Id. at 1214. It also noted that Monterey Gardens’ complaint was “lacking sufficient allegations” to establish the relevance of the financial information it was seeking to the counts alleged in the complaint. Id. Therefore, the court granted certiorari and quashed the trial court’s order because “[Monterey Gardens] has not shown why the discovery of petitioners’ financial information is relevant and should be allowed at this time.” Id.; see also O’Barry v. Ocean World, S.A., 17 So.3d 1286, 1287 (Fla. 4th DCA 2009) (granting certiorari and quashing an order compelling discovery when Ocean World did not establish that O’Barry’s financial information was relevant to the causes of action alleged against him in the complaint); Spry v. Prof'l Emp’r Plans, 985 So.2d 1187, 1188 (Fla. 1st DCA 2008) (granting certiorari and quashing order granting motion to compel discovery of plaintiffs financial information when the defendant failed to establish any relevance of that information to the issues in the case).

Here, Walbridge sought discovery of Diaz-Verson’s personal financial information by way of fifteen nonparty subpoenas to various financial institutions identified in Diaz-Verson’s personal financial statement. However, none of the fraud allegations in Walbridge’s second amended complaint pertain to Diaz-Verson’s personal financial condition or render Diaz-Ver-son’s personal financial situation relevant. Since Diaz-Verson’s personal financial information is neither relevant nor necessary for the court to determine the issues raised in the litigation, that information was not discoverable at this stage of the litigation.

Perhaps recognizing that its complaint did not establish the relevance of Diaz-Verson’s personal financial information, Walbridge argued at the hearing that Diaz-Verson’s personal financial information was relevant because Walbridge had relied on Diaz-Verson’s personal financial statement when making its decision to continue construction on the arena project. Walbridge also identified a letter — written by Diaz-Verson to another defendant four months after Walbridge had started construction and in which Diaz-Verson gave personal assurances of payment — that Walbridge claimed it also relied on in continuing to perform work on the project. According to Walbridge, its purported reliance on these two documents rendered Diaz-Verson’s personal financial information relevant and discoverable.

The problem with this argument is that Walbridge’s purported reliance on these two documents is not alleged anywhere in the otherwise very detailed second amended complaint. Count VI of the second amended complaint, which is the only count against Diaz-Verson, contains thirty-one numbered paragraphs of allegations and incorporates an additional thirty-one paragraphs from the general allegations of the complaint. Not a single one of these paragraphs alleges that Walbridge relied on any representation by Diaz-Verson that he would personally make payments or that he had personally guaranteed payment. Further, not a single one of these paragraphs references Diaz-Verson’s personal financial statement or the letter purporting to say that Diaz-Verson was personally guaranteeing payment. In the absence of allegations of this nature, Walbridge cannot establish that Diaz-Verson’s personal financial information is relevant to the issues framed by the pleadings.

It is true, as Walbridge points out in its response to the petition, that its counsel told the trial court at the hearing on Diaz-Verson’s motion that Walbridge relied on these documents. However, “information sought in discovery must relate to the issues involved in the litigation, as framed in all pleadings.” Krypton Broad. of Jacksonville, Inc. v. MGM-Pathe Commc’ns Co., 629 So.2d 852, 854 (Fla. 1st DCA 1993), disapproved on other grounds by Allstate Ins. Co. v. Langston, 655 So.2d 91, 95 (Fla.1995) (emphasis added); see also Richard Mulholland & Assocs. v. Polverari, 698 So.2d 1269, 1270 (Fla. 2d DCA 1997) (“A protective order should be granted when the pleadings indicate that the documents requested are not related to any pending claim or defense ....”) (emphasis added). Here, the pleadings, i.e., the second amended complaint, do not establish the relevance of any of Diaz-Ver-son’s personal financial information, and the unsworn representations of counsel at a hearing, even if somehow properly considered, cannot create relevance where it does not otherwise exist.

Accordingly, because Diaz-Verson’s personal financial information is not relevant to any issue raised by the pleadings, the trial court departed from the essential requirements of law in denying Diaz-Ver-son’s motion for protective order. Further, because Diaz-Verson’s personal financial information is not relevant to the issues raised in the pleadings, disclosure of that information would result in irreparable harm. Therefore, we grant Diaz-Verson’s petition and quash the order denying his motion for protective order.

Petition granted.

KELLY and LaROSE, JJ., Concur.


author: VAN NORTWICK, J.

text:
    Frederick W. KORTUM, Jr., Appellant, v. Alex SINK, in her capacity as Chief Financial Officer and head of the Department of Financial Services for the State of Florida, Appellee.
    No. 1D10-2459.
    District Court of Appeal of Florida, First District.
    Dec. 29, 2010.

      Wilbur E. Brewton, Kelly B. Plante, and Tana D. Storey, Brewton Plante, P.A., and Talbot D’Alemberte and Patsy Palmer, D’Alemberte & Palmer, PLLC, Tallahassee, for Appellant.
    Michael H. Davidson, Tallahassee, for Appellee.
    Cynthia S. Tunnicliff and Ashley P. Mayer of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for Ami-ci Curiae Property Casualty Insurers Association of America and National Association of Mutual Insurance Companies.
    Maria Elena Abate and Elana H. Gloetz-ner of Colodny, Fass, Talenfeld, Karlinsky & Abate, P.A., Ft. Lauderdale, for Amicus Curiae Florida Property and Casualty Association.
   VAN NORTWICK, J.

Frederick W. Kortum, Jr., a public adjuster, appeals a final judgment determining that section 626.854(6), Florida Statutes (2008), which bans solicitation by public adjusters for a period of 48 hours, is not unconstitutional. We reject the argument of the Department of Financial Services, appellee, accepted by the trial court, that the statute is ambiguous and, as a result, the agency’s interpretation that the statute constitutionally regulates only the time, place, and manner of commercial solicitation should be accepted. We hold that the statute unambiguously bans all solicitation for 48 hours and that this restriction on commercial speech violates Article I, § 4 of the Florida Constitution under the standards of Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 100 S.Ct. 2343, 65 L.Ed.2d 341 (1980). Accordingly, we reverse and remand for further proceedings.

Factual and Procedural History

A public adjuster, for compensation, assists insureds in negotiating for or effecting the settlement of a claim for loss or damages covered by an insurance policy. § 626.854(1), Fla. Stat. (2008). Florida has regulated public adjusters at least since 1955. See § 636.23(5), Fla. Stat. (1955); Larson v. Lesser, 106 So.2d 188 (Fla.1958). During its 2007 special session, the Florida Legislature created the Task Force on Citizens Property Insurance Claims Handling and Resolution (Task Force) to make recommendations regarding the 2004-2005 hurricane claims of Citizens Property Insurance Corporation. During its work, the Task Force became aware of the impact that public adjusters have on the insurance claims process following a hurricane. The Task Force identified abuses on the part of certain public adjusters and proposed legislation to revise the statutes governing public adjusters. Pertinent to this appeal, with respect to solicitation by public adjusters, the Task Force recommended that the legislature enact the following statutory provision:

A public adjuster shall not directly or indirectly through any other person or entity engage in face-to-face or telephonic solicitation or enter into a contract with any insured or claimant under an insurance policy until at least 72 hours after the occurrence of an event that may be the subject of a claim under the insurance policy unless contact is initiated by the insured or claimant.

The language of the statute enacted by the legislature, see § 626.854(6), Florida Statutes (2008), differed from the recommendation and provides as follows:

A public adjuster may not directly or indirectly through any other person or entity initiate contact or engage in face-to-face or telephonic solicitation or enter into a contract with any insured or claimant under an insurance policy until at least ⅛8 hours after the occurrence of an event that may be the subject of a claim under the insurance policy unless contact is initiated by the insured or claimant.

(emphasis added). The legislature changed the language recommended by the Task Force by adding the phrase “initiate contact or” and reducing the temporal length of the solicitation restriction from 72 to 48 hours.

Kortum, a public adjuster, filed a complaint for declaratory and injunctive relief alleging that section 626.854(6) violates his constitutional rights to free speech, equal protection of the laws, and to be rewarded for his industry. Because we agree with Kortum that section 626.854(6) unconstitutionally burdens the commercial free speech rights of public adjusters, we do not address his further contention that the statute violates his right to equal protection of the law or his right “to be rewarded for industry” guaranteed by Article I, § 2 of the Florida Constitution.

At trial, Kortum introduced testimony that the first 48 hours after a claim inducing event are critical because an uninformed policyholder can make decisions that would substantially diminish recovery under the insurance policy by failing to preserve evidence, by failing to find damaged property, and by overspending on mitigation or restoration efforts. The Department’s expert witness disagreed. Further, the Department asserted that section 626.854(6) did not prohibit a public adjuster from contacting a potential claimant through email or in writing. Both Kortum and his expert witness contended that the statute prohibited contact or communication of any kind with claimants during the 48-hour period. Neither party has introduced relevant legislative history to support their respective positions. The Department candidly conceded at oral argument, however, that, if the statute is read as a total ban on all solicitation during the first 48 hours, it cannot pass constitutional muster.

In its final judgment, the trial court found that the language of section 626.854(6) is ambiguous and, therefore, the agency’s interpretation should be upheld unless that construction is clearly unauthorized or erroneous. GTC, Inc. v. Edgar, 967 So.2d 781, 785 (Fla.2007). The court accepted the Department’s interpretation that the statute only prohibited face-to-face or telephonic communication within the first 48 hours. Next, relying upon United States v. O'Brien, 891 U.S. 867, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968), the court found that the statute regulates conduct and only narrowly affects speech by prohibiting face-to-face solicitations and telephonic solicitations. O’Brien holds that when “speech” and “nonspeech” elements are combined in the government regulation of a course of conduct:

[Tjhat ... government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest.

Id. at 376-77, 88 S.Ct. 1673. The trial court found that a legitimate governmental purpose exists to provide a citizen who has been traumatized by a casualty loss with some “breathing room before making weighty decisions.” To accomplish such purpose, the trial court found that section 626.854(6) was narrowly drawn and did not prohibit anything other than face-to-face solicitation and telephonic solicitations. The court found that the primary purpose of the statute is to control conduct, but recognized that the statute does affect the public adjuster’s ability to speak. This appeal followed.

Commercial Speech

The trial court’s construction of a statute is subject to de novo review. Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005). Appellee has relied upon two cases to support its argument that section 626.854(6) is a conduct statute, O’Brien and State v. Comforti, 688 So.2d 350 (Fla. 4th DCA 1997). Those cases are inapposite since they clearly regulated conduct. O’Brien involved an antiwar protester’s conviction for burning his draft card. Conforti involved lewd dancing in a nightclub.

We agree with Kortum that Central Hudson governs the case before us. “[Cjommercial speech ... is, expression related solely to the economic interests of the speaker and its audience.” Central Hudson, 447 U.S. at 561, 100 S.Ct. 2343. “Commercial expression not only serves the economic interest of the speaker, but also assists consumers and furthers the societal interest in the fullest possible dissemination of information.” Id. Commercial speech has been afforded protection under the First Amendment since Virginia Board of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 96 S.Ct. 1817, 48 L.Ed.2d 346 (1976) (invalidating a state law prohibiting pharmacists from advertising the price of prescription drugs). However, commercial speech is not accorded the same protection as other constitutionally protected expression. Central Hudson, 447 U.S. at 563, 100 S.Ct. 2343. As the court explained in Virginia Board of Pharmacy, commercial speech can be subject to time, place, and manner restrictions provided that they are imposed without reference to the content of the speech, they serve significant governmental interests, and “they leave open ample alternative channels for communication of the information.” 425 U.S. at 771, 96 S.Ct. 1817.

In Central Hudson, the court set forth the four-part test to determine the constitutionality of a restriction on commercial speech:

At the outset, we must determine whether the expression is protected by the First Amendment. For commercial speech to come within that provision, it at least must concern lawful activity and not be misleading. Next, we ask whether the asserted governmental interest is substantial. If both inquiries yield positive answers, we must determine whether the regulation directly advances the governmental interest asserted, and whether it is not more extensive than is necessary to serve that interest.

Central Hudson, 447 U.S. at 566, 100 S.Ct. 2343. The parts of the test are not entirely discreet and are to some extent interrelated. Greater New Orleans Broadcasting Ass’n v. U.S., 527 U.S. 173, 184, 119 S.Ct. 1923, 144 L.Ed.2d 161 (1999). Once it is determined that the speech concerns a lawful activity, the government bears the burden of identifying a substantial interest 'and justifying the challenged restriction. Edenfield v. Fane, 507 U.S. 761, 770, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993) (“It is well established that ‘the party seeking to uphold a restriction on commercial speech carries the burden of justifying it.’ ” (quoting Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60, 71 n. 20, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983)).

Third Prong of Central Hudson Test

Applying Central Hudson, it is without debate that the commercial speech involved in this case concerns lawful activity. Next, Kortum concedes that the interest purportedly served by the statute (to seek to ensure more ethical behavior on the part of public adjusters generally and to ensure the privacy of people who have just suffered a calamity) are substantial. Kor-tum maintains, however, that the prong requiring the Department to demonstrate that the regulation directly advances the governmental interest asserted was not met because the Department failed to prove that solicitation by public adjusters in Florida causes actual harm.

Kortum acknowledges that there was evidence of three distinct instances of solicitation misconduct by public adjusters. Nevertheless, he contends this evidence was meager and does not overcome the lack of evidence that Florida consumers perceive public adjusters as prone to misconduct or evidence of prosecutorial investigations involving solicitation-related misconduct. Mere “speculation as to possibilities” does not satisfy this Central Hudson prong. Beckwith v. Dep’t of Bus. and Prof'l Regulation, 667 So.2d 450, 452 (Fla. 1st DCA 1996) (invalidating a restriction on solicitation by hearing aid specialists because of the failure to satisfy the third prong of Central Hudson). See also Edenfield v. Fane (striking down a restriction on solicitation by CPAs on the grounds, among others, that Florida had not offered studies or anecdotal evidence showing that the restriction addressed a real problem).

We reject Kortum’s argument that the Department was required to introduce evidence of actual harm. Instead, the government need only show “that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” Edenfield, 507 U.S. at 771, 113 S.Ct. 1792. While many cases rely upon empirical data to support this prong, introduction of empirical data is not always necessary as a common sense conclusion will sometimes suffice. Tennessee Secondary School Athletic Ass’n v. Brentwood Academy, 551 U.S. 291, 300, 127 S.Ct. 2489, 168 L.Ed.2d 166 (2007). Contrary to Kortum’s argument, this is not a situation of imaginary or unjustified harms. Protecting citizens that have suffered a traumatizing loss from intrusive unsolicited contact by public adjusters by granting them a brief period of breathing room furthers the governmental interest asserted. Further, the statute was supported by a legislative study, statistical data and anecdotal evidence. Compare Florida Bar v. Went For It, Inc., 515 U.S. 618, 626, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995) (upholding Florida Bar rules that “prohibit[ed] personal injury lawyers from sending targeted direct mail solicitations to victims and their relatives for 30 days following an accident or disaster,” id. at 620, 115 S.Ct. 2371 and ruling that the regulation there was supported by a two-year study, statistical data, and anecdotal evidence). We find that section 626.854(6) satisfies the third prong of Central Hudson.

Fourth Prong of Central Hudson Test

Turning to the fourth prong, we are required to examine whether section 626.854(6) is more extensive than necessary to serve the asserted governmental interest. This analysis requires that we determine whether the statute contains a complete ban on all solicitation for 48 hours or, as the Department argues, the statute prohibits only face-to-face or telephonic solicitation and permits written and email solicitation. We agree that we should strive to construe a statute in a manner that avoids holding the statute unconstitutional. State v. Giorgetti, 868 So.2d 512, 518 (Fla.2004). Should we find nothing which would indicate that such a limiting construction was intended by the legislature, however, we are precluded from rewriting the statute to preserve its constitutionality. State v. Cronin, 774 So.2d 871, 874-75 (Fla. 1st DCA 2000).

In Cronin, we held that an anti-solicitation statute, section 817.234(8), Florida Statutes (1997), which prohibited a person from soliciting business for the purpose of making motor vehicle tort claims or claims for PIP benefits, was violative of the First Amendment. The state urged this court to construe the statute as including a fraudulent intent element, but the court found no support for that argument. Cronin, 774 So.2d at 874. Further, we rejected the state’s argument that the statute could be construed as applying only to in-person or telephonic solicitations because we found no support in the statutory language that this limiting construction was intended by the legislature. Id. at 875. In rejecting a construction not supported by the plain language of the statute, we explained:

Such construction, however, must be consistent with the legislative intent ascertainable from the statute itself or its common sense application. See State v. Globe Communications Corp., 648 So.2d 110, 113 (Fla.1994); Long v. State, 622 So.2d 536, 537-38 (Fla. 1st DCA 1993). “It is fundamental that judges do not have the power to edit statutes so as to add requirements that the legislature did not include.” Meyer v. Caruso, 731 So.2d 118, 126 (Fla. 4th DCA 1999).

Id. at 874.

Examining the plain language of section 626.854(6), it is clear to us that it prohibits all public adjuster-initiated contact, whether electronic, written or oral. The statute mandates that “[a] public adjuster may not directly or indirectly through any other person or entity initiate contact ... with any insured or claimant under an insurance policy....” The Department’s argument that the statute does not prohibit written contact ignores the plain, natural meaning of the statute.

We agree with appellant that the adverbial phrase “directly or indirectly through any other person or entity” modifies all three of the statute’s prohibitions (initiate contact, engage in face-to-face or telephonic solicitation, or enter into a contract). State v. Bodden, 877 So.2d 680, 685 (Fla.2004) (“[t]he legislature is presumed to know the meaning of words and the rules of grammar, and the only way the court is advised of what the legislature intends is by giving the generally accepted construction, not only to the phraseology of the act but to the manner in which it is punctuated.” (quoting Florida State Racing Comm’n v. Bourquardez, 42 So.2d 87, 88 (Fla.1949)). Reading the statute as the Department contends would require the court to eliminate the “initiate contact” prohibition inserted by the legislature. “It is an elementary principle of statutory construction that significance and effect must be given to every word, phrase, sentence, and part of the statute if possible, and words in a statute should not be construed as mere surplusage.” Hechtman v. Nations Title Ins. of New York, 840 So.2d 993, 996 (Fla.2003). Further, as argued by Kortum, there is no legislative history that supports the Department’s interpretation of the statute. Though there may have been some support for the Department’s argument in recommendations made by the Task Force, there has been no showing that the legislature adopted the findings and recommendations of the Task Force in enacting section 626.854(6).

Because section 646.854(6) unambiguously contains a ban on all solicitation for 48 hours, the Department has failed to prove that the statute is narrowly tailored to meet the State’s objectives. We find persuasive the decision of the Pennsylvania Supreme Court in Insurance Adjustment Bureau v. Insurance Commissioner, 518 Pa. 210, 542 A.2d 1317 (1988). In that case, the Pennsylvania Supreme Court struck down a law prohibiting public adjusters from soliciting business for 24 hours after a claim inducing event. The court rejected the argument that the 24-hour ban was merely a reasonable time, place, and manner restriction noting that “the period of time immediately following the disaster may be the only time during which the property owner can be located before moving to an unknown address because of the disaster which has affected his property.” Id. at 1323.

We reject the contention of amicus curiae that, even if the statute is construed as a prophylactic ban on all solicitation, it is constitutional under the rational employed in Ohralik v. Ohio State Bar Ass’n, 436 U.S. 447, 449, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978) (holding that state “may discipline a lawyer for soliciting clients in person, for pecuniary gain, under circumstances likely to pose dangers that the state has a right to prevent”). Both Ohralik and Florida Bar v. Went For It allow a prophylactic ban on lawyer solicitation. In Edenfield, the court held that the ban on direct, in person solicitation by certified public accountants (CPAs) adopted by the Florida Board of Accountancy violated the commercial speech rights of the CPAs to which First Amendment protection applied. 507 U.S. at 763, 113 S.Ct. at 1796. Like amicus curiae here, the Board in Edenfield argued that Ohralik supported its prophylactic ban on solicitation by CPAs. The court rejected the Board’s reliance on Ohralik, explaining:

We reject the Board’s argument and hold that, as applied in this context, the solicitation ban cannot be justified as a prophylactic rule. Ohralik does not stand for the proposition that blanket bans on personal solicitation by all types of professionals are constitutional in all circumstances. Because “the distinctions, historical and functional, between professions, may require consideration of quite different factors,” Virginia State Bd. of Pharmacy, supra, 425 U.S., at 773, n. 25, 96 S.Ct., at 1831, n. 25, the constitutionality of a ban on personal solicitation will depend upon the identity of the parties and the precise circumstances of the solicitation. Later cases have made this clear, explaining that Ohralik’s holding was narrow and depended upon certain “unique features of in-person solicitation by lawyers” that were present in the circumstances of that case. Zauderer v. Office of Disciplinary Counsel of Supreme Court of Ohio, 471 U.S., at 641, 105 S.Ct., at 2277; see also Shapero v. Kentucky Bar Assn., 486 U.S. 466, 472, 108 S.Ct. 1916, 1921, 100 L.Ed.2d 475 (1988).

507 U.S. at 774, 113 S.Ct. at 1802. As in Edenfield, we find these “lawyer cases” distinguishable, because lawyers are trained in the art of persuasion, public adjusters are not. Thus, direct in-person solicitation by lawyers is more in need of regulation. 507 U.S. at 774-75, 113 S.Ct. at 1802-03.

Amicus curiae further asserts that public adjusters are soliciting clients who are in the same position as accident victims and that section 626.854(6) is designed to prevent the possibility that a public adjuster can take advantage of a traumatized person who is dealing with the aftermath of a disaster. Although public adjusters represent the interests of claimants, as CPAs in Edenfield they do not have the advocacy training and persuasive skills of attorneys. The United States Supreme Court has expressly limited its approval of a prophylactic ban on all solicitation to the attorney-client relationship which was present in Ohralik. Brentwood Academy, 551 U.S. at 305, 127 S.Ct. 2489. In Brentwood, a majority of the court joined in the concurring opinion of Justice Kennedy in which Justice Kennedy concluded that Brentwood should be decided solely on the basis that the school had entered a voluntary contract with the state sponsored association in order to promote a code of conduct affecting solicitation. Justice Kennedy addressed the reliance on Ohra-lik in Justice Stevens’ opinion, as follows:

Although I have little difficulty concluding that the regulation at issue [prohibiting undue influence in recruitment of middle school students for athletic programs] does not contravene the First Amendment, I do not agree with the principal opinion’s reliance on Ohralik v. Ohio State Bar Association, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978). Ohralik, as the principal opinion notes, involved communications between attorney and client, or, more to the point, the in-person solicitation by an attorney of an accident victim as a potential client. Ohralik was later extended to attorney solicitation of accident victims through direct mail, though the court was closely divided as to the constitutionality of that extension. See Florida Bar v. Went For It, Inc., 515 U.S. 618, 115 S.Ct. 2371, 132 L.Ed.2d 541 (1995). But the court has declined to extend the Ohralik rule beyond the attorney-client relationship.
In Edenfield v. Fane, 507 U.S. 761, 113 S.Ct. 1792, 123 L.Ed.2d 543 (1993), the Court struck down a ban on solicitation from accountants to potential clients. The court there made clear that Ohralik “did not hold that all personal solicitation is without First Amendment protection.” 507 U.S. at 765, 774, 113 S.Ct. 1792, 123 L.Ed.2d 543. It further noted “Ohralik’s holding was narrow and depended upon certain ‘unique features of in-person solicitation by lawyers’ that were present in the circumstances of that case.” Ibid. (quoting Zauderer v. Office of Disciplinary Council of Supreme Court of Ohio, 471 U.S. 626, 105 S.Ct. 2265, 85 L.Ed.2d 652 (1985)).

551 U.S. at 304-05, 127 S.Ct. 2489.

Conclusion

In sum, we are persuaded that the Department has failed to prove that section 626.854(6) is narrowly tailored to meet the state’s objectives. “While a statute regulating commercial speech need not be the least restrictive means of achieving the state’s asserted goal objective, it must be narrowly tailored to achieve the desired objective.” Cronin, 774 So.2d at 875. The Department has not demonstrated that prohibiting property owners from receiving any information from public adjusters for a period of 48 hours is justified by the possibility that some public adjuster may unduly pressure traumatized victims or otherwise engage in unethical or unprofessional behavior. Nor has the Department demonstrated that the other provisions of section 626.854 and the Rules of Professional Conduct and Ethics governing the Florida Association of Public Insurance Adjusters are insufficient to regulate unduly coercive or misleading solicitation by public adjusters.

REVERSED.

LEWIS and CLARK, JJ., concur.

      . Citizens Property Insurance Corporation is a governmental entity created under section 627.351(6), Florida Statutes (2004), to provide insurance for residential and commercial property for property owners who are unable to procure insurance through the private insurance marketplace. Citizens Property Ins. Corp. v. Ashe, 50 So.3d 645 (Fla. 1st DCA 2010).


author: KHOUZAM, Judge.

text:
    Julio ORTIZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-4649.
    District Court of Appeal of Florida, Second District.
    Jan. 14, 2011.

      James Marion Moorman, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   KHOUZAM, Judge.

Julio Ortiz appeals the revocation of his probation and the resulting sentence for failure to report his status as a sex offender. Ortiz argues that the trial court abused its discretion in determining that he willfully and substantially violated condition nine of his probation by failing to promptly and truthfully answer his probation officer’s inquiries. We agree and reverse.

In October 2008, Ortiz pleaded guilty to one count of failure to report his status as a sex offender and was placed on probation for thirty-six months. On April 30, 2009, an affidavit of violation of probation was filed alleging that Ortiz had twice violated condition nine of his probation, which provides: “You will promptly and truthfully answer all inquiries directed to you by the court or the officer, and allow your officer te visit in your home, at your employment site or elsewhere, and you will comply with all instructions your officer may give you.” The State maintained that Ortiz violated condition nine by failing to comply with his probation officer’s instructions to be home at 5:30 p.m. on April 23, 2009, and by failing to truthfully answer his officer’s inquiries on April 24, 2009.

At the revocation hearing, Ortiz’s probation officer testified that he had previously made two unsuccessful attempts to visit Ortiz at his residence. On April 23, 2009, the officer called Ortiz at work and instructed him to be home at 5:30 p.m. that day so the officer could conduct his home visit. The officer waited until 6:40 p.m. but Ortiz did not show up. The following day, the probation officer called Ortiz to inquire about his whereabouts the previous day. Ortiz informed him that he left work at 4:45 p.m. but had gotten stuck in traffic. The officer heard Ortiz’s employer in the background stating that work wrapped up around 6 p.m.

The trial court found that Ortiz did not willfully fail to return home by the time instructed by his probation officer. The court, however, determined that Ortiz violated condition nine by being untruthful about the time he left work. The court revoked Ortiz’s probation, determined that he qualified as a violent felony offender of special concern, and sentenced him to 63.9 months in prison.

On appeal, Ortiz argues that the trial court’s revocation was an abuse of discretion given his reasonable efforts to comply with the terms of his probation. See Benedict v. State, 774 So.2d 940, 941 (Fla. 2d DCA 2001). We agree. Ortiz did not have any new law violations, had completed his community service requirement, and was attempting to comply with court orders regarding court costs and costs of supervision. His single misstatement about the time that he left work did not demonstrate that he was unfit for probation. See id. Under these circumstances, we cannot conclude that Ortiz’s conduct rose to the level of a substantial violation. See Audl v. State, 993 So.2d 1172, 1174 (Fla. 5th DCA 2008).

Accordingly, we reverse the order revoking Ortiz’s probation and remand with directions that Ortiz’s probation be reinstated.

Reversed and remanded with directions.

ALTENBERND and WALLACE, JJ„ Concur.

      . The revocation order incorrectly states that Ortiz's probation was revoked for two viola-lions of condition nine.


text:
    Rico S. YOUNG, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-3473.
    District Court of Appeal of Florida, Second District.
    Jan. 19, 2011.
   KHOUZAM, Judge.

In this appeal of the denial of his motion to correct illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a), Rico Young claims that the prison releasee reoffender (PRR) sentence imposed for his 1998 offense of armed burglary of a conveyance is illegal. This is at least the third time that this court has considered and rejected this issue on appeal. See, e.g., Young v. State, 25 So.3d 1242 (Fla. 2d DCA 2009) (table); Young v. State, 976 So.2d 1115 (Fla. 2d DCA 2007) (table). We write only to explain briefly why the premise behind Mr. Young’s argument is unsound.

At the time Mr. Young committed his crime, the prison releasee reoffender statute designated armed burglary as an offense for which enhanced punishment could be imposed. See § 775.082(8)(a)(l)(p), Fla. Stat. (1997). A 2001 amendment to the statute did not affect that designation. See § 775.082(9)(a)(l)(p), Fla. Stat. (2001-2010). Accordingly, Mr. Young’s sentence for armed burglary of a conveyance is legal under any version of the statute. Furthermore, Mr. Young’s arguments founded upon the illegality of PRR sentencing for burglary of an unoccupied dwelling or structure are fundamentally flawed-not only because he did not burglarize a dwelling or structure but also because he was armed during the commission of the offense.

Affirmed.

ALTENBERND and LaROSE, JJ., Concur.


author: ROTHENBERG, J.

text:
    Manuel De Jesus DERAS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2933.
    District Court of Appeal of Florida, Third District.
    Jan. 19, 2011.
    Rehearing Denied March 11, 2011.
    Manuel De Jesus Deras, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, C.J., and SUAREZ and ROTHENBERG, JJ.
   ROTHENBERG, J.

The defendant, Manuel De Jesus Deras, appeals from the denial of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. We reverse and remand for further proceedings.

The defendant was charged with one count of DUI manslaughter and one count of leaving the scene of an accident involving a death. The defendant pled guilty and was sentenced to eleven years in prison.

The charges stemmed from two car accidents. The defendant was involved in one accident which involved property damage only. He fled the scene of that accident and approximately five minutes later was involved in another accident, this time involving a death. The defendant was injured in the second accident and was airlifted to the hospital.

Following his conviction, the defendant filed a motion for postconviction relief alleging ineffective assistance of counsel and insufficient evidence to sustain a conviction. The motion was summarily denied. Following three additional motions for postconviction relief, the defendant filed the instant motion under rule 3.850, again alleging that the evidence was insufficient to support a conviction for the crimes to which he pled guilty. The trial court denied the motion as untimely.

We acknowledge that the defendant has made this argument in a previous postcon-viction motion, and that relief was denied. Nonetheless, if what the defendant claims is true, his claim should be revisited under the manifest injustice exception articulated in State v. McBride, 848 So.2d 287, 291-92 (Fla.2003). If in fact, the defendant fled the scene of the first accident which, based on the citations submitted by the defendant in his appeal, only involved property damage, and he did not flee the scene of the second accident, which resulted in the death of the victim, then to deny the defendant relief would result in manifest injustice. If the defendant pled to a charge to which there was no factual basis, his trial counsel provided ineffective assistance of counsel resulting in manifest injustice. Thus, if the defendant did not flee from the second accident, he should be permitted to withdraw his plea as to leaving the scene of the accident involving death, the charge should be reduced to leaving the scene of an accident involving property damage, the offenses should be rescored, and the sentence for both offenses reconsidered.

Reversed and remanded.


author: CLARK, J.

text:
    Dicorium GARDNER, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4418.
    District Court of Appeal of Florida, First District.
    Jan. 24, 2011.

      Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Appellee.
   CLARK, J.

The appellant challenges his conviction for armed robbery and kidnapping, contending that the court should have granted his request for a mistrial when one of the witnesses referred to the appellant’s involvement in other criminal activity. Rather than granting the request for a mistrial, the court instead gave the jury a cautionary instruction. Because the witness’ brief remark was not so prejudicial as to destroy the fairness of the trial, and the cautionary instruction sufficiently addressed the matter, the appellant’s request for a mistrial was properly denied.

The evidence at trial included the testimony of the victim, who described in detail how he was robbed and kidnapped by the appellant and the appellant’s girlfriend. The appellant’s girlfriend also testified, and likewise described her own and the appellant’s commission of the armed robbery and kidnapping.

During cross-examination of the girlfriend, defense counsel asked if the appellant regularly had money or if he was broke, with counsel apparently intending to suggest that the appellant did not have a financial need to commit the robbery. The girlfriend indicated that the appellant did have money and was not broke. On redirect, the prosecutor referred to those questions by defense counsel, and the suggestion that the appellant did not need money, with the prosecutor then asking if the appellant “was working at this time.” The girlfriend responded by saying “No, he was selling drugs.”

Defense counsel objected and asked for a mistrial, arguing that the remark that the appellant was selling drugs was highly prejudicial and irrelevant. The court denied the request for a mistrial, and instead instructed the jury to “disregard the last sentence of testimony that was given,” with the court telling the jury “not to consider it in your deliberations at the end of the case.”

In Hamilton v. State, 703 So.2d 1038 (Fla.1997), the Florida Supreme Court considered an instance in which a witness made a brief and unanticipated remark alluding to the defendant’s involvement in uncharged crimes, and a mistrial was not required there in that the witness’ comment was not so prejudicial as to vitiate the entire trial. Hamilton emphasizes that the request for a mistrial is addressed to the trial court’s discretion, and other cases further indicate that a mistrial should be granted only when necessary to ensure that the defendant receives a fair trial. See e.g. Cole v. State, 701 So.2d 845 (Fla.1997).

In some circumstances improper references to other offenses may reach the necessary level of prejudice to require a mistrial. See e.g. Henderson v. State, 789 So.2d 1016 (Fla. 2d DCA 2000). In the present case however, the witness’ remark that the appellant was selling drugs was not so pervasively prejudicial, in light of the charged offenses and the extensive testimony as to the violent manner in which those offenses were committed, and the unequivocal identification of the appellant as one of the perpetrators. The comment thus did not vitiate the entire proceeding or deprive the appellant of a fair trial, and the cautionary instruction was sufficient to remedy the situation, whereupon the appellant’s request for a mistrial was properly denied.

The appealed order is therefore affirmed.

VAN NORTWICK and LEWIS, JJ„ concur.


author: WARNER, J.

text:
    FLORIDA DEPARTMENT OF AGRICULTURE AND CONSUMER SERVICES, Appellant, v. Kathryn COX, et al., Appellees.
    No. 4D09-979.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.
    Wesley R. Parsons, Jack R. Reiter and Veronica Tejada Lacayo of Yoss, LLP, Miami, for appellant.
    Robert C. Gilbert and Bruce S. Rogow of Alters Law Firm, P.A., Miami, Julie H. Littky-Rubin of Lytal, Reiter, Clark, Fountain & Williams, LLP, West Palm Beach, Jamie Alan Cole of Weiss Serota Helfman Pastoriza Cole & Boniske, P.A., Fort Lauderdale, and Michael J. Pucillo of Berman DeValerio, Palm Beach Gardens, for appellees.
   WARNER, J.

In an inverse condemnation action, the Department of Agriculture appeals the trial court’s order denying its request for costs as the prevailing party pursuant to section 57.041, Florida Statutes. This action involves the Department’s destruction of backyard citrus trees of homeowners in Broward County in the Department’s futile attempt to eradicate citrus canker in this state. Even though the Department was defeated in its claim that no taking occurred, and the jury awarded damages, which resulted in a net award to the class of plaintiffs of $4,000,000, when the Department argued that no damages occurred, the Department still claims it prevailed because the class sought substantially more in damages than what the jury awarded.

We find the Department’s arguments to be frivolous. No matter how one looks at the facts, the owners prevailed on the significant issues. The mere fact that the owners sought more in damages than the jury awarded does not mean that they did not prevail on both issues of liability and damages.

Moreover, section 57.041, Florida Statutes, applies to all civil actions except those that are governed by specific statutes containing more particular provisions concerning the taxation of costs. See Morales v. Rosenberg, 919 So.2d 476, 480 (Fla. 3d DCA 2005). Sections 73.091 and 73.092 specifically relate to condemnation proceedings, including inverse condemnation proceedings. See Volusia County v. Pickens, 435 So.2d 247, 248 (Fla. 5th DCA 1983). Those statutes govern these proceedings.

Affirmed.

POLEN and STEVENSON, JJ., concur.

      . The history of the citrus canker eradication program is contained in Haire v. Florida Department of Agriculture, 870 So.2d 774 (Fla.2004).

      . Florida Dep’t of Agriculture v. Bogorff, 35 So.3d 84 (Fla. 4th DCA 2010), review denied, 48 So.3d 835 (Fla.2010).


author: MAY, J.

text:
    LAWNWOOD MEDICAL CENTER, INC., d/b/a Lawnwood Regional Medical Center & Heart Institute, Appellant, v. Anil DESAI, M.D., Appellee.
    No. 4D10-49.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.
    Rehearing Denied March 21, 2011.

      Thomas E. Warner of Carlton Fields, P.A., West Palm Beach, Stephen J. Bronis, and Walter J. Tache of Carlton Fields, Miami, Jane Kreusler-Walsh of Kreusler-Walsh, Compiani & Vargas, P.A., West Palm Beach, and Stephanie A. Russo of Broad & Cassel, Miami, for appellant.
    Richard H. Levenstein and David Stein-feld of Kramer, Sopko & Levenstein, P.A., Stuart, for appellee.
   MAY, J.

A hospital appeals a temporary injunction permitting a doctor, for whom reappointment of privileges was denied, to continue to practice at the hospital during the pendency of the doctor’s civil suit against the hospital. The hospital argues the trial court erred in entering the injunction because it is immune from liability under section 395.0191, Florida Statutes (2009). We agree and reverse the temporary injunction.

The doctor was a member of the medical staff at the hospital where he held privileges and credentials to practice medicine for twelve years. The hospital’s medical staff bylaws require its members to apply for reappointment every two years, and to provide accurate information for an evaluation of their competence, character, ethics, and other qualifications.

Applications for reappointment are considered by the medical staffs Recre-dentials Committee [RC] and Medical Executive Committee [MEC], which make recommendations to the hospital’s Board of Trustees. The Board makes the final decision for reappointment after considering the MEC’s recommendation and “such other elements as determined by the governing board.” § 395.0191(4), Fla. Stat. (2009).

In September 2009, the doctor submitted his application for reappointment. The application included the doctor’s authorization for the Board to request information and documents concerning his qualifications. The doctor’s application was forwarded to the RC and MEC for a review of his professional and clinical competence and conduct over the preceding two years.

During the review process, the hospital’s CEO asked the RC and the MEC to investigate serious conduct and quality of care issues concerning the doctor. In one particular letter, the CEO specifically detailed seven major events over the preceding two years, which raised quality of patient care, medical competence, or disruptive behavior issues.

The MEC met on November 23, 2009 to consider the issues outlined in the letter. The MEC either dismissed or disregarded the events as being outside the review period, inconsequential, or resolved. It voted to recommend the doctor for reappointment at a later meeting.

The Board met on December 9, 2009 to consider the doctor’s application, and invited the doctor and his attorney to attend. Both appeared at the meeting where the hospital’s attorneys gave a power point presentation regarding the doctor’s application. The doctor was afforded an opportunity to address the Board, which he did. The Board then voted to deny the application for reappointment.

The doctor’s attorney requested an opportunity to rebut the allegations, and to be given a copy of the meeting transcript, power point presentation, and any other documents or evidence presented. He also requested that the doctor’s privileges be extended for sixty days to convene a special board meeting where the doctor could present testimony to rebut the allegations against him.

The Board agreed to provide the doctor with all materials requested, but declined to set a special meeting. It offered the doctor an opportunity to submit a written response to the Board’s concerns along with any written statements of witnesses supporting his position. The Board reminded the doctor of the opportunity for a formal appellate hearing under the Board’s “Fair Hearing and Appellate Review Plan” if his written response was unsuccessful. That process automatically continued medical staff privileges until the Board’s decision became final. Instead of filing a written response or proceeding to the formal appellate hearing, the doctor filed this action for injunctive relief.

The court held an evidentiary hearing on the doctor’s motion for temporary injunction. The doctor argued he was denied reappointment in retaliation for his ongoing opposition to the hospital administration. The president of the hospital’s medical staff, and Board member, testified on behalf of the doctor. Another Board member testified that the Board had reviewed the MEC’s recommendation and considered the same issues that had been referred to the MEC. He further testified that the Board’s vote was based on concerns for the quality of care at the hospital, and was not related to any extrinsic issue concerning the doctor’s opposition to hospital administration.

The trial court granted the temporary injunction on December 30, 2009. The hospital filed this appeal.

Our standard of review of a temporary injunction is mixed. “To the extent the trial court’s order is based on factual findings, we will not reverse unless the trial court abused its discretion; however, any legal conclusions are subject to de novo review.” Foreclosure FreeSearch, Inc. v. Sullivan, 12 So.3d 771, 774 (Fla. 4th DCA 2009). Because we address a legal issue, our review is de novo.

The hospital argues that section 395.0191, Florida Statutes (2009) provides the hospital with immunity from suit when the claim arises out of the appointment or reappointment process in the absence of an allegation of intentional fraud. According to the hospital, because the doctor failed to allege intentional fraud with particularity, he failed to overcome the immunity afforded by the statute.

The doctor responds that section 395.0191 is inapplicable to his claim because it is limited to the initial appointment, not the reappointment process, which is controlled by the Medical Staff Bylaws. He suggests that once a physician becomes a member of the staff, the bylaws govern the relationship between the doctor and the hospital, not the statute. We disagree with the doctor.

Section 395.0191 provides certain privileges and protections for the management of hospital personnel.

(4) Nothing herein shall restrict in any way the authority of the medical staff of a licensed facility to review for approval or disapproval all applications for appointment and reappointment to all categories of staff and to make recommendations on each applicant to the governing board, including the delineation of privileges to be granted in each case.... The applicant’s eligibility for staff membership or clinical privileges shall be determined by the applicant’s background, experience, health, training, and demonstrated competency; the applicant’s adherence to applicable professional ethics; the applicant’s reputation; and the applicant’s ability to work with others and by such other elements as determined by the governing board, consistent with this part.
(7) There shall be no monetary liability on the part of, and no cause of action for injunctive relief or damages shall arise against, any licensed facility, its governing board or governing board members, medical staff, or disciplinary board or against its agents, investigators, witnesses, or employees, or against any other person, for any action arising out of or related to carrying out the provisions of this section, absent intentional fraud.

§ 395.0191, Fla. Stat. (2009) (emphasis added). Subsection (4) describes the authority of the medical staff and Board over the appointment and reappointment process. Subsection (7) provides a broad grant of immunity against monetary liability or injunctive relief “absent intentional fraud.” Id.

To avoid the immunity protection, the statute “places a burden on the plaintiff to plead extrinsic evidence before authorizing a lawsuit in which such evidence could be discovered.” Dhaduvai v. Belsito, 663 So.2d 1356, 1357 (Fla. 2d DCA 1995). And, like any allegation of fraud, it must be pled with particularity. Id.

Here, the doctor’s verified complaint for injunctive relief alleged an “action arising out of or related to” the medical staff reappointment process, governed by section 395.0191. Although the doctor generally alleged the Board “arbitrarily, capriciously, fraudulently, and maliciously denied” his application, the doctor did not specifically allege or offer any evidence of “intentional fraud” sufficient to overcome the immunity provided by the statute. See, e.g., Feldman v. Glucroft, 580 So.2d 866, 867 (Fla. 3d DCA 1991) (finding allegations that the defendant opposed a candidate’s application “arbitrarily and capriciously” and “without good cause” insufficient to overcome statutory immunity). The verified complaint contained mere conclusory allegations, devoid of the requisite specificity. Absent specific allegations of intentional fraud, section 395.0191’s immunity protects the hospital.

Nevertheless, the doctor argues that the statutory immunity provided by section 395.0191 is limited to initial appointment decisions. Once appointed, the doctor suggests that the contractual relationship between a physician and the hospital is governed by the bylaws and not by the statute. To support his argument, the doctor relies on two sentences of our twenty-three page opinion in Lawnwood Medical Center, Inc. v. Sadow, 43 So.3d 710 (Fla. 4th DCA 2010).

There, we stated that “[t]he immunity of § 395.0191(7) is not a broad, general grant immunizing every kind of hospital liability after granting clinical privileges. The plain text confines its immunity only to ‘action[s] arising out of or related to carrying out the provisions of this section.’ ” Sadow, 43 So.3d at 721 (emphasis omitted). This general statement does not support the doctor’s argument.

Our comment in Sadow cannot, and should not, be read as any limitation on the plain language of section 395.0191. In fact, Sadow involved claims for breach of contract and defamation. We specifically found the doctor had not alleged any violation arising out of the appointment statute. Id. at 722. For this reason, we found the allegations in Sadow fell outside the immunity provided by section 395.0191(7).

A simple reading of the statute explains why. Section 395.0191(4) explicitly states that it applies to “all applications for appointment and reappointment.” § 395.0191(4), Fla. Stat. (2009). The allegations in this case arise out of the doctor’s application for reappointment. The immunity therefore applies.

The doctor also argues that the statutory immunity does not apply because the Board’s decision was not supported by “good cause” or “valid reasons,” citing Lawnwood Medical Center, Inc. v. Seeger, 990 So.2d 503, 516 (Fla.2008). The doctor then argues the hospital breached the bylaws when it refused to follow the recommendations of its own MEC.

We also find the doctor’s reliance on Seeger misplaced. Seeger focused on whether a special law bestowed “rights, benefits, and advantages” on a private corporation that fell within the term “privilege” used in Article III, Section ll(a)(12), Florida Constitution. Id. at 514. The court held that the statute, which allowed a board to unilaterally amend bylaws, rendered it unconstitutional. Id. at 517-18. Our supreme court did not add a “good cause” or “valid reasons” requirement to all board decisions. It certainly did not address the immunity issue now before us.

Section 395.0191 immunizes the hospital against any action for monetary or injunc-tive relief if it arises out of, or is related to, the appointment or reappointment process absent intentional fraud. Because the doctor’s claims directly challenge the reappointment process, the trial court should have denied the doctor’s request for in-junctive relief.

The court erred in issuing the temporary injunction. We therefore reverse and remand this case for dismissal of the complaint.

Reversed and Remanded.

DAMOORGIAN and GERBER, JJ., concur.

      . The hospital also argues the trial court lacked jurisdiction because the doctor failed to exhaust his administrative remedies; and that the doctor failed to establish the requisite elements for entry of an injunction. Because we find the hospital immune from suit, we do not reach these issues.

      . The doctor signed the authorization “under protest.”


text:
    James LINDER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-572.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.
    Rehearing Denied March 15, 2011.

      James Linder, Belle Glade, pro se.
    No appearance required for appellee.
   WARNER, J.

We affirm the denial of appellant’s motion to correct an illegal sentence, pursuant to Florida Rule of Criminal Procedure 3.800(a). His sole claim on appeal is that the court failed to attach portions of the record which conclusively refute the allegations of his motion. This claim lacks merit.

Linder was charged with and convicted of sexual battery of a person more than twelve but less than eighteen by a person in familial authority. A scoresheet was filed in which 80 points were included for penetration. He was sentenced to eighteen years in the DOC followed by ten years of probation. Linder filed a rule 3.800(a) motion to correct an illegal sentence, asserting that the scoresheet added fourteen points for a crime that was twelve years old and could not be used in calculating his scoresheet. He also asserted that 80 points were erroneously added to the scoresheet for victim injury. He asserted that these two errors, combined, improperly increased his score by 94 points. The state filed a response and attached both the scoresheet as well as the verdict form which showed that the defendant had been found to have penetrated the victim’s vagina in the commission of the sexual battery. The trial court denied the motion, and appellant filed this appeal.

Although under rule 3.850 the court is required to attach portions of the record where the summary denial of a motion is not based upon its legal insufficiency, see Fla. R.Crim. P. 3.850(d), there is no such requirement in rule 3.800(a) for the court to attach portions of the record conclusively refuting allegations of the motion. Nevertheless, this requirement has been engrafted by judicial decision. See, e.g., Fenelon v. State, 932 So.2d 431, 431 (Fla. 4th DCA 2006) (holding that trial court must attach portions of record conclusively refuting a legally sufficient 3.800(a) claim); see also Johnson v. State, 665 So.2d 380 (Fla. 4th DCA 1996).

In this case, however, the state attached copies of the relevant documents refuting his claims, which the court incorporated in its order. This sufficiently complies with the requirement that copies of those portions of the record be attached to the order for our review. As to the claim that 80 points were erroneously included, section 921.0024, Florida Statutes, provides that 80 points shall be scored for sexual penetration, which corresponds to the jury’s finding. Appellant’s claim that the evidence did not support penetration cannot be brought in a motion to correct an illegal sentence. As to his claim of improper inclusion of points for a twelve-year-old offense, it is clear that the court could have imposed the same sentence with a corrected scoresheet, making inclusion of these points harmless error. See Brooks v. State, 969 So.2d 238, 243 (Fla.2007).

Affirmed.

POLEN and STEVENSON, JJ„ concur.

      . Appellant has mislabeled this as a motion pursuant to Florida Rule of Criminal Procedure 3.850.


text:
    Walter CLARK, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1034.
    District Court of Appeal of Florida, Fourth District.
    Jan. 26, 2011.
    Rehearing Denied March 14, 2011.
    Walter Clark, Florida City, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s order denying appellant’s motion to correct illegal sentence. Appellant claimed that his prior offenses for which the court withheld adjudication of guilt and placed him on probation do not qualify as predicate offenses for habitual felony offender (HFO) sentencing. Appellant is wrong. At the time appellant committed the offense for which he received the HFO sentence, the relevant section of the HFO statute provided: “For the purposes of this section, the placing of a person on probation or community control without an adjudication of guilt shall be treated as a prior conviction.” § 775.084(2), Fla. Stat. (2000); see also ch. 99-188, § 3, Laws of Fla. (effective July 1, 1999).

Affirmed.

DAMOORGIAN, CIKLIN and LEVINE, JJ., concur.


text:
    James KWONG and Lifen Li Kwong, Appellants, v. COUNTRYWIDE HOME LOANS SERVICING, L.P., Branch Banking and Trust Company, Boca Del Mar Improvement Association, Inc., John Doe, and Jane Doe, Appellees.
    No. 4D10-1129.
    District Court of Appeal of Florida, Fourth District.
    Feb. 2, 2011.

      Thomas E. Ice and Enrique Nieves of Ice Legal, P.A., Royal Palm Beach, for appellants.
    Serena Kay Tibbitt of Kahane and Associates, P.A., Plantation, for appellee Countrywide Home Loans Servicing, L.P.
   ON APPELLEE’S MOTION FOR CLARIFICATION

PER CURIAM.

We grant the appellee’s motion for clarification, withdraw our previous opinion dated December 15, 2010, and substitute the following:

James Kwong and Lifen Li Kwong appeal from a non-final order denying their motion to quash service of process. They claim that service was defective because the process servicer failed to note, among other things, the time of service on the process served. Because strict compliance with statutory requirements of service is mandated, we conclude that failure to make the obligatory notations renders the service defective. We therefore reverse and remand for further proceedings. See Vidal v. Suntrust Bank, 41 So.3d 401 (Fla. 4th DCA 2010).

Reversed and remanded.

HAZOURI, CIKLIN and LEVINE, JJ., concur.


text:
    Anthony SALLEY, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-1469.
    District Court of Appeal of Florida, Fourth District.
    Feb. 2, 2011.
    Rehearing Denied March 25, 2011.
    Anthony Salley, Ridgeland, South Carolina, pro se.
    No appearance required for appellee.
   PER CURIAM.

We treat the trial court’s March 15, 2010 order as one denying relief in a probation violation proceeding and not as a motion for postconviction relief. Appellant is a fugitive on an outstanding violation of probation warrant and he currently serves a sentence in South Carolina. Appellant sought to have the trial court accept a plea in absentia and sentence him concurrently with his South Carolina sentence. The circuit court’s ruling in essence denying relief is not an appealable order, so this appeal is dismissed.

Appeal Dismissed.

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


text:
    Barbree CRONEY, Petitioner, v. STATE of Florida, Respondent.
    No. 4D10-4538.
    District Court of Appeal of Florida, Fourth District.
    Feb. 2, 2011.
    Rehearing Denied March 17, 2011.
    Barbree Croney, Doral, pro se.
    No response required for respondent.
   ON ORDER TO SHOW CAUSE

PER CURIAM.

Barbree Croney has repeatedly initiated frivolous proceedings in this court. Today, after having provided an opportunity to respond, we impose the sanction of no longer accepting Croney’s pro se filings.

Croney has a long history of initiating meritless proceedings. Originally convicted and sentenced on two counts of sexual battery on a child in 1985, Croney has since initiated at least sixteen proceedings in this court. See Croney v. State, 495 So.2d 926, 927 (Fla. 4th DCA 1986). In his reply to this court’s order to show cause, Croney attested that he would no longer file any pro se documents concerning the matter in the instant case.

Accordingly, we exercise our discretion and henceforth refuse to accept any more of Croney’s pro se filings. See Perry v. Mascara, 959 So.2d 771, 773 (Fla. 4th DCA 2007) (citing State v. Spencer, 751 So.2d 47 (Fla.1999)). The clerk of this court is directed to no longer accept any of Croney’s filings unless the document is signed by an attorney licensed to practice law in Florida who certifies that the document is filed in good faith.

STEVENSON, TAYLOR and HAZOURI, JJ., concur.