text:
    WAGNER, VAUGHAN, McLAUGHLIN & BRENNAN, P.A., Petitioner, v. KENNEDY LAW GROUP, Respondent.
    No. SC08-1525.
    Supreme Court of Florida.
    April 7, 2011.

      Joel D. Eaton and Stephen F. Rosenthal of Podhurst Orseck, P.A., Miami, FL, for Petitioner.
    Steven L. Hearn and Jeanne A. McLean of Steven L. Hearn, P.A., Tampa, FL, for Respondent.
   QUINCE, J.

The law firm of Wagner, Vaughan, McLaughlin, and Brennan seeks review of the decision of the Second District Court of Appeal in Wagner, Vaughn, McLaughlin & Brennan, P.A. v. Kennedy Law Group, 987 So.2d 741, 744 (Fla. 2d DCA 2008), on the ground that the decision expressly and directly conflicts with the decision of the Third District Court of Appeal in Perez v. George, Hartz, Lundeen, Flagg & Fulmer, 662 So.2d 361 (Fla. 3d DCA 1995), on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons stated below, we approve in part and quash in part the decision of the Second District.

FACTUAL AND PROCEDURAL HISTORY

The underlying case involves the application of section 768.26, Florida Statutes (2005), the attorney fees provision of the Florida Wrongful Death Act (the Act), in a wrongful death action that settled before suit was filed and in which the survivors were represented by separate counsel. The case stems from the deaths of Robert and Thelma Elmore as the result of an automobile accident that occurred in June 2005. The Elmores were survived by three adult sons, Gary, Larry, and Robert. In August 2005, Gary was appointed the sole personal representative of the El-mores’ estates, pursuant to a provision in the Elmores’ wills. Larry and Robert both signed forms approving Gary’s appointment as the personal representative.

Gary retained the Kennedy Law Group (KLG) to represent him in his capacity as personal representative. KLG negotiated a settlement for the full proceeds of the accident tortfeasor’s bodily injury insurance policy and distributed the net proceeds to Gary, who in turn divided the proceeds equally among the three brothers on August 19, 2005.

On August 17, 2005, an attorney from the law firm of Wagner, Vaughan, McLaughlin & Brennan, P.A. (the Wagner firm) wrote KLG to inform them that the Wagner firm represented Larry Elmore. The Wagner firm also proposed a fee-sharing arrangement between the law firms for a wrongful death action. The Wagner firm suggested that the two firms participate equally in handling the action and split the attorney’s fee for whatever recovery was obtained for Gary and Larry Elmore. KLG did not respond to the letter.

On the day that Larry received his share of the proceeds from the bodily injury settlement, the Wagner firm wrote to the attorney who represented the Elmores’ estates in the probate action. The letter stated that Larry did “not approve of the distribution apportionment,” that Larry should have been given an opportunity to object to the apportionment of the funds in the probate court, and that the probate court was required to approve the disbursement of the funds from the settlement. The Wagner firm also copied the letter to KLG and informed KLG that it did not have the authority to settle on behalf of Larry. The Wagner firm requested that KLG immediately stop payment on the settlement checks and take no further action regarding the claim.

The Wagner firm then filed a petition in the probate court seeking the removal of Gary as the personal representative and the return of the settlement proceeds to the trust account until Larry’s objections could be heard. The probate court denied the petition as procedurally deficient, and the Wagner firm made no further objections to the distribution of the settlement proceeds. Larry cashed his settlement check without taking any further action in the courts.

Shortly thereafter, KLG made a demand upon the Elmores’ automobile insurer for $2 million in uninsured motorist insurance proceeds. The insurer requested pre-suit mediation. On the morning of mediation, Robert Elmore retained the same Wagner firm attorney representing Larry to also represent him in the proceedings. The Wagner firm and KLG accompanied the three Elmore brothers to the mediation, which produced a settlement of $1.28 million.

The Wagner firm memorialized Larry and Robert’s position in a letter to KLG at the end of the day of the mediation. The letter asserted that the case “could have and should have settled” higher than it did. The letter also stated that Larry and Robert’s claims were worth more than Gary’s, but the two brothers were willing to approve the settlement in exchange for a one-third distribution of the proceeds to each brother. The probate court approved the settlement, and the parties proceeded to an evidentiary hearing on attorney’s fees. It was at this hearing that the probate court determined that the Wagner firm was not entitled to a portion of the attorney’s fee award because Larry and Robert did not have any competing claims with Gary. The probate court issued an order awarding KLG the entire contingency attorney fee amount from the $1.23 million in settlement proceeds.

The Wagner firm appealed the probate court order to the Second District Court, arguing that the lower court erred in awarding KLG the entire fee for three reasons. First, the Wagner firm asserted that the Act does not provide for fees incurred if the case settles before suit is filed. Second, the Wagner firm argued that there was a conflict of interest between Gary and his brothers that precluded KLG from collecting attorney’s fees for work done for Larry and Robert. Third, the Wagner firm contended that it did not have to show that Larry and Robert had a competing claim in order to be entitled to fees under the Act. The Second District concluded that none of these arguments merited reversal. See Wagner, Vaughn, McLaughlin & Brennan, P.A. v. Kennedy Law Group, 987 So.2d 741, 744 (Fla. 2d DCA 2008).

The Second District held that even though the wrongful death action settled prior to the filing of a suit, section 768.26, Florida Statutes (2005), did not preclude the award of attorney fees to the personal representative’s counsel. Id. at 745-46. The Second District explained that pre-suit negotiations are an important part of wrongful death litigation and that section 768.26 does not limit recoverable fees to those incurred subsequent to filing suit. The Second District also cited this Court’s decision in Wiggins v. Estate of Wright, 850 So.2d 444 (Fla.2003), in which this Court approved the Fourth District’s decision in In re Estate of Catapane, 759 So.2d 9 (Fla. 4th DCA 2000), and its method for allocating attorney’s fees in a wrongful death action. Because this Court approved the decision in Catapane, in which the insurers had offered the limits of coverage before counsel filed a wrongful death action, the Second District reasoned that “there is no question that section 768.26 applies to provide for fees incurred even in cases that settle before suit is filed.” Wagner, 987 So.2d at 746.

The Second District also concluded that the other survivors did not have competing interests with Gary that would preclude the attorney fee award to the personal representative’s counsel. The court explained that the Wagner firm’s objection to the apportionment of the bodily injury settlement would have established a conflict of interest, had it been pursued. However, the court noted, Larry had abandoned his objection to the apportionment after his petition to remove Gary as personal representative was dismissed. Further, neither Larry nor Robert objected to the amount or the apportionment of the settlement and had waived any objection by accepting their equal shares. Id.

Finally, the Second District concluded that the probate court did not abuse its discretion in declining to award the Wagner firm a share of the attorney’s fees because the Wagner firm did not perform any work on any aspect of the case in which KLG had a conflict of interest. The court explained that the survivors’ counsel was required to show a competing interest in order to be entitled to share of attorney fees, which it had not shown. Id. at 746-47.

The Wagner firm sought review by this Court based on direct conflict with the decision of the Third District in Perez v. George, Hartz, Lundeen, Flagg & Fulmer, 662 So.2d 361 (Fla. 3d DCA 1995), which also involved the allocation of attorney’s fees in the settlement of a wrongful death action. In a footnote in Perez, the Third District concluded that section 768.26 was not applicable because “[t]here was no action for wrongful death filed or litigated in this case.” Id. at 364 n. 4. We granted review on the basis of this conflict as to the applicability of section 768.26. For the reasons explained below, we approve in part and quash in part the decision in Wagner.

ANALYSIS

The Florida Wrongful Death Act (the Act), which encompasses sections 768.16 to 768.26 of the Florida Statutes, provides that it is the public policy of the State of Florida to shift the losses resulting when wrongful death occurs from the survivors of the decedent to the wrongdoer. § 768.17, Fla. Stat. (2005). The Act is designed to substitute the financial resources of the wrongdoer for the resources of the decedent, in an attempt to meet the financial obligations of the decedent, Ellis v. Humana of Fla., Inc., 569 So.2d 827 (Fla. 5th DCA 1990), and to prevent a tortfeasor from evading liability for his or her misconduct when such misconduct results in death, Variety Children’s Hosp. v. Perkins, 445 So.2d 1010 (Fla.1983). The Act also eliminates the multiplicity of suits that resulted from each survivor bringing an independent action and avoids survivors racing to get the first judgment. See In re Estate of Catapane, 759 So.2d 9, 11 (Fla. 4th DCA 2000). By statute, the personal representative is the only party with standing to bring a wrongful death action to recover damages for the benefit of the decedent’s survivors and the estate. § 768.20, Fla. Stat. (2005); see also Wiggins v. Estate of Wright, 850 So.2d 444, 446 (Fla.2003). The survivors may not bring separate legal actions and are required to participate in the single legal action filed by the estate. Wiggins, 850 So.2d at 446. However, the survivors are still entitled to be represented by counsel of their choice. Id. at 449.

In analyzing the provisions of the Act, this Court has stated that it “is guided by the Legislature’s general intent that the remedial provisions of the wrongful death statute should be liberally, rather than strictly or narrowly, construed. While the general rule is that statutes in derogation of the common law are strictly construed, the general rule of strict construction does not, in Florida, apply to a remedial statute in derogation of the common law.” BellSouth Telecomms., Inc. v. Meeks, 863 So.2d 287, 290 (Fla.2003); see also § 768.17, Fla. Stat. (2005) (“Sections 768.16-768.26 are remedial and shall be liberally construed.”).

Section 768.26 of the Act, which is entitled “Litigation Expenses,” provides:

Attorneys’ fees and other expenses of litigation shall be paid by the personal representative and deducted from the awards to the survivors and the estate in proportion to the amounts awarded to them, but expenses incurred for the benefit of a particular survivor or the estate shall be paid from their awards.

§ 768.26, Fla. Stat. (2005). The Wagner firm argues that the plain language of this section makes it applicable only where a wrongful death suit has been filed, and not where there is a pre-suit settlement. The Wagner firm cites the Third District’s decision in Perez v. George, Hartz, Lundeen, Flagg & Fulmer, 662 So.2d 361 (Fla. 3d DCA 1995), to support this argument.

Perez involved the settlement of a wrongful death action brought by the surviving parents of a minor child who had been killed in a car accident. The divorced parents retained counsel separately and signed agreements with their own counsel. In pre-suit mediation, the mother’s attorneys obtained a $500,000 settlement for the estate. Both parents were subsequently named as co-personal representatives of the child’s estate. The mother’s attorneys sought a one-third contingency fee from the entire proceeds of the settlement. The Third District concluded that the mother’s attorneys were not entitled to a fee from the father because he had not signed a contract with them for legal services. The court held that the mother’s attorneys were only entitled to a fee award of one-third of the proceeds received by the mother under the contingency fee agreement signed by her. However, pertinent to the instant case, the Third District also concluded that section 768.26 did not apply because “[t]here was no action for wrongful death filed or litigated in [the] case.” Id. at 364 n. 4.

Other Florida courts, including this Court, have not restricted section 768.26 to circumstances where a lawsuit has been filed or litigated. In fact, other Florida courts have repeatedly applied the statute to pre-suit settlements obtained by counsel. See, e.g., Wiggins v. Estate of Wright, 850 So.2d 444, 445 (Fla.2003) (applying section 768.26 in a wrongful death case where counsel “negotiated a settlement of the estate’s claim with the hospital”); Perris v. Estate of Perris, 764 So.2d 870, 870-71 (Fla. 4th DCA 2000) (stating that the case “concerns the computation of attorney’s fees in a wrongful death action” where the “ease was settled for the total policy limits of $125,000”); In re Estate of Catapane, 759 So.2d 9, 10 (Fla. 4th DCA 2000) (“It was unnecessary for [survivors] to file a wrongful death action as the [uninsured motorist] insurer offered its limits of $100,000 and the liability insurer offered its limits of $30,000.”).

This application of the statute is consistent with the stated legislative intent that the Act be “liberally construed.” § 768.17, Fla. Stat. (2005). Additionally, this furthers the public policy favoring settlement of disputes without litigation where possible. Thus, we agree with the Second District that section 768.26 applies even in those circumstances where a wrongful death claim is settled pre-suit and disapprove the Third District’s decision in Perez to the extent that it holds that the statute does not apply where no action for wrongful death has been filed or litigated.

However, resolution of this issue does not end our review of this case. We must also determine how the fees authorized by section 768.28 are to be apportioned when survivors are represented by separate counsel, as were the brothers in the instant case. The Second District concluded that the Wagner firm was not entitled to any portion of the contingency fee because the firm “did not perform work on any aspect of the case in which KLG had a conflict of interest.” Wagner, 987 So.2d at 746. The Second District explained that while there was a potential conflict of interest between Larry and Robert and the personal representative’s counsel, no actual conflict arose because Larry and Robert never objected to the amount or the apportionment of the uninsured motorist settlement obtained by counsel. Id. The Second District further concluded that the Wagner firm had to show that Larry and Robert had a competing claim in order to be entitled to attorney’s fees under the Act. We find the Second District’s reading of the statute to be too restrictive on this point and inconsistent with our previous decision in Wiggins v. Estate of Wright, 850 So.2d 444 (Fla.2003).

Section 768.26 provides that attorney’s fees and other expenses of litigating a wrongful death action are to be paid by the personal representative and deducted from the awards to the survivors and the estate in proportion to the amounts awarded to them. Counsel for the personal representative is only required to have a contingent fee contract with the personal representative who prosecutes the case for the benefit of all survivors and the estate. See In re Estate of Catapane, 759 So.2d 9, 11 (Fla. 4th DCA 2000). Thus, counsel for the personal representative potentially may be compensated out of the entire recovery to the estate. However, where counsel for the personal representative cannot represent a survivor because of a conflict of interest, counsel is not entitled to a fee on that survivor’s portion of the recovery. Id. Further, a survivor creates a competing claim when he or she chooses to be represented by separate counsel, which is the survivor’s right. Wiggins, 850 So.2d at 449. The Act only limits the number of lawsuits that may be filed in a wrongful death case, not the number of attorneys who may represent the survivors.

In Wiggins, we approved of and adopted the Catapane procedure for the allocation of attorney’s fees when there are survivors with competing interests who are represented by separate counsel. Wiggins, 850 So.2d at 450. Under this procedure, “a trial court determines the attorneys’ fee awards by compensating the personal representative’s attorney out of the total settlement proceeds, reduced by the amount necessary to reasonably compensate the other survivors’ attorneys for their services in representing those survivors in the proceedings.” Id. Where it can be demonstrated that one attorney played a greater role in securing a total award in a wrongful-death action in which the decedent’s survivors were represented by more than one attorney due to competing interests, a larger fee may be proper for that attorney. Id. When survivors have competing claims and are represented by separate attorneys, the attorney’s fees from the wrongful-death suit should be awarded in a manner commensurate with the attorney’s work, providing for the proportional payment of attorney’s fees by all the survivors out of their respective awards. Id. In no instance, however, should a survivor be penalized for hiring separate counsel by having to pay a fee for recovery of the same amount twice. Id.

Wiggins involved the estate of a woman who was survived by her husband, her two minor children with that husband, and her two minor children from a previous marriage. As personal representative and surviving spouse, the husband retained an attorney on a contingency fee basis to institute a wrongful death claim on behalf of the survivors and the estate against the hospital where the wife died. The two children from the prior marriage retained their own attorney to look after their interests as surviving beneficiaries. Counsel for the personal representative negotiated a settlement with the hospital, which the court and all parties approved. However, counsel for the personal representative proposed a distribution plan that favored the husband and his two children and did not compensate the children from the prior marriage on par with the children from the current marriage. The attorney for the children from the prior marriage opposed the distribution plan on her clients’ behalf. The trial court rejected the proposed inequitable plan and instead ordered that the survivors receive equal shares of the settlement. Wiggins, 850 So.2d at 445. However, the trial court awarded counsel for the personal representative a full fee based on his agreement with the husband and calculated the percentage of the fee based on the entire settlement paid to the estate. The children’s attorney sought to be awarded a portion of this fee, but the trial court determined that her fee should come solely from her clients out of their net share of the proceeds, which had been reduced by the payment of the fee to counsel for the personal representative. On appeal, the Fifth District affirmed this ruling. Id. at 446. We accepted review based on conflict with Catapane on the issue of allocation of fees.

We approved the holding in Catapane and quashed the decision in Wiggins. Id. at 450. In reaching our decision, we explained that the Wiggins court had ignored the potential conflict of interest that is created when survivors hire separate counsel to prosecute a claim for the damages that each is entitled to under the statute. 850 So.2d at 448. Florida’s wrongful death statute focuses on the loss suffered by survivors of the decedent and creates a separate entitlement to damages for each survivor. Id. at 446. Thus, “the potential for conflict between the competing interests of the individual beneficiaries” is “ever present” in a wrongful death claim. Id. at 449.

In the instant case, Larry and Robert chose to be represented by separate counsel, indicating a lack of “commonality of interest” among the Elmores’ survivors. See id. at 448 (noting that a single attorney may be able to represent the survivors when all of the survivors have a “commonality of interest” as to prosecuting a wrongful death claim and in distributing the recovery). Under the Act, Larry and Robert were entitled to be represented by counsel of their choice. See id. at 449. Further, their counsel was entitled to reasonable compensation for the services rendered. Id.

Under the Second District’s holding in this case, survivors would be deprived of the right to hire their own counsel unless they were willing to pay double fees from their recovery, i.e., one fee to the counsel hired by the personal representative and another to their separate counsel with whom they have a contractual obligation. We roundly condemned this outcome in Wiggins. Id. at 450 (“In no instance, however, should a survivor be penalized for hiring separate counsel by having to pay a fee for recovery of the same amount twice.”).

The Second District also ruled that the Wagner firm was not entitled to a share of the attorney’s fees because they “did not perform work on any aspect of the case in which KLG had a conflict of interest.” Wagner, 987 So.2d at 743. The Second District concluded that there was no conflict of interest between Larry and Robert and KLG because the brothers never objected to the amount or the apportionment of the uninsured motorist insurance settlement. Id. at 746. As we noted above, this reading of the Act is unduly restrictive and unfairly impinges on a survivor’s right to hire separate counsel.

Additionally, under the Second District’s ruling the survivors’ separate attorney would not be entitled to a fee from the settlement even if he or she made a pivotal contribution to recovering that settlement, if the survivors had not asserted an actual competing claim. Under the method we approved in Wiggins, attorney’s fees from a wrongful death suit are to be awarded in a manner commensurate with the attorneys’ work. 850 So.2d at 450. As we explained in Wiggins, in those circumstances where “all of the survivors have a commonality of interest and a single attorney can represent those interests,” id. at 448, that single attorney will be entitled to attorney’s fees based on the entire recovery. However, where there is no commonality of interest among the survivors, the personal representative’s attorney cannot represent all of the survivors without their consent. Id. at 450 (citing Rule Regulating the Florida Bar 4-1.7, which prohibits an attorney from representing adverse interests unless specific requirements are met, including that each affected client gives informed consent to such representation). Further, in those circumstances where survivors have competing claims and are represented by separate attorneys, the fee payable to the personal representative’s attorney and the survivors’ separate counsel will be determined by the work performed by each. For example, where two competing survivors are represented by separate attorneys throughout the litigation and both successfully prosecute a claim to judgment, then the fees should ordinarily be awarded out of the survivors’ respective recoveries. Id. However, if it can be demonstrated that one attorney played a greater role in securing the total award, a larger fee may be proper. Id. We concluded that the attorney who had represented the competing survivors in Wiggins was entitled to attorney’s fees for the services she rendered in securing a greater portion of the settlement for those survivors. Id. at 449. However, we also explained that it was unclear what part this attorney had played in securing the overall settlement. We noted that if her services were limited to securing an increase in the competing survivors’ recovery over that proposed by the personal representative’s attorney, then her fee might have to be adjusted accordingly. Id. at 449-50.

In the instant case, it is unclear what part, if any, the Wagner firm played in securing the overall settlement. There is also no record evidence that the Wagner firm secured any increase in the settlement recovery for Larry and Robert. Accordingly, we conclude that the personal representative’s attorney KLG should be compensated out of the total settlement proceeds, reduced by the amount necessary to reasonably compensate the Wagner firm for the work they performed in representing Larry and Robert in the proceedings. See Wiggins, 850 So.2d at 450.

CONCLUSION

For the reasons expressed above, we approve in part and quash in part the Second District’s decision in Wagner and remand for proceedings to determine reasonable compensation for the survivors’ attorneys.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, POLSTON, LABARGA, and PERRY, JJ., concur.


source: Caselaw Access Project

author: CANADY, C.J.,

license: Public Domain

text:
    THE FLORIDA BAR, Complainant v. Petia Dimitrova KNOWLES, Respondent.
    No. SC09-403.
    Supreme Court of Florida.
    April 28, 2011.
    Rehearing Denied June 13, 2011.

      PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ„ concur.
    CANADY, C.J., concurs in part and dissents in part with an opinion.
   CANADY, C.J.,

concurring in part and dissenting in part.

I concur in the approval of the referee’s recommendation that the respondent be found guilty, but I dissent from the sanction imposed by the Court.

In addition to other misconduct, the respondent was guilty of threatening to present criminal charges solely to obtain an advantage in a civil matter, conduct which is expressly prohibited by Rule Regulating the Florida Bar 4-3.4(g). Such misconduct by its very nature causes harm to the legal system. The respondent was chargeable with knowledge of the rule prohibiting this misconduct. Florida Standard for Imposing Lawyer Sanctions 7.2 provides that “[s]uspension is appropriate when a lawyer knowingly engages in conduct that is a violation of a duty owed as a professional and causes injury or potential injury to ... the legal system.” Given all of the relevant circumstances, the misconduct here warrants a ninety-day suspension.


author: PER CURIAM. PARIENTE, J.,

text:
    In re AMENDMENTS TO FLORIDA SMALL CLAIMS RULE 7.090.
    No. SC10-1227.
    Supreme Court of Florida.
    May 12, 2011.
    Michele. A. Cavallaro, Chair Small Claims Rules Committee, Fidelity National Title Group, Inc., Fort Lauderdale, Florida, Judge Robert W. Lee, Past Chair Small Claims Rules Committee, Seventeenth Judicial Circuit, Fort Lauderdale, Florida, and John F. Harkness, Jr., Executive Director, The Florida Bar, Tallahassee, Florida, for Petitioner.
    Judge Pauline Drake, Fourth Judicial Circuit, Jacksonville, Florida, on behalf of the County Court Judges of the Fourth Judicial Circuit; Judge Walt A. Fullerton, Sixth Judicial Circuit, St. Petersburg, Florida; Chief Judge J. Thomas McGrady, B. Elaine New, Court Counsel, and Christina Everton, Staff Attorney, Sixth Judicial Circuit, St. Petersburg, Florida; Chief Judge G. Keith Cary, Twentieth Judicial Circuit, Ft. Myers, Florida, Judge Wayne Miller, President, Conference of County Court Judges of Florida, Sixteenth Judicial Circuit, Key West, Florida, and Chief Judge Terry David Terrell, Chair, Commission on Trial Court Performance and Accountability, First Judicial Circuit, Pensacola, Florida, Responding with comments.
   PER CURIAM.

This matter is before the Court for consideration of proposed amendments to Florida Small Claims Rule 7.090 (Appearance; Defensive Pleadings; Trial Date). We have jurisdiction. See art. V, § 2(a), Fla. Const.

The Florida Bar Small Claims Rules Committee (Committee) has proposed amendments to rule 7.090, subdivisions (a) (Appearance), and (b) (Notice to Appear; Pretrial Conference). The amendments proposed would require that the pretrial conference in a small claims action be conducted before a judge. The Committee’s proposals to amend rule 7.090 were first presented to the Court for consideration as a part of the Committee’s regular-cycle report, filed in January 2010. At that time, the Court published each of the Committee’s proposed amendments for comment in The Florida Bar News. The Court received a number of comments from the public specifically addressing the proposal to amend rule 7.090. Ultimately, because the Court determined that this proposal warranted further study, we entered an order directing that the proposed amendments to rule 7.090 be severed from the regular-cycle report and addressed separately in the instant case. See In re Amendments to the Florida Small Claims Rules, No. SC10-144 (Fla. order to sever entered July 1, 2010). We also requested supplemental materials from the Committee, the Commission on Trial Court Performance and Accountability, the Conference of County Court Judges, and any other party who filed comments specifically addressing rule 7.090. See In re Amendments to Florida Small Claims Rule 7.090, No. SC10-1227 (Fla. order requesting supplemental report entered July 1, 2010). As a result, the Court received several additional comments, some in favor of and some opposed to the Committee’s proposed amendments to rule 7.090. Upon consideration of these comments, we decline to adopt the amendments to rule 7.090 as proposed by the Committee. Instead, we adopt the language suggested in the comment from the Sixth Judicial Circuit Court, which allows management of the pretrial conference by nonjudicial personnel subject to direct supervision by the trial judge and mandates that a trial judge be available should his or her presence be necessary.

Accordingly, we amend the Florida Small Claims Rules as set forth in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. These amendments shall take effect on July 1, 2011, at 12:01 a.m.

It is so ordered.

CANADY, C.J., and LEWIS, POLSTON, LABARGA, and PERRY, JJ., concur.

PARIENTE, J., concurs in result with an opinion, in which QUINCE, J., concurs.

PARIENTE, J.,

concurring in result.

I concur in the majority’s adoption of a revision to the rule in the hope that it serves the same purpose as the rule proposed by the Florida Bar Small Claims Rules Committee and supported by the Conference of County Court Judges. However, I would have preferred to adopt the rule as proposed, which made clear that at the time of the pretrial conference the plaintiff and defendant appear before a judge, but also explained by a proposed committee note that:

This change is not intended to prohibit the use of hearing officers, mediators, and other non-judicial court personnel as part of the pretrial process.

Therefore the proposed rule would not have prevented nonjudicial personnel from greeting litigants, explaining the process, calling the docket, or sending the parties to mediation. Rather, as explained by the Committee, the only counties that would be affected are those where the parties do not see a judge before trial and the current inquiry under rule 7.090(b) is not conducted.

While I encourage the use of nonjudicial personnel, particularly mediators, to make the process more efficient and effective, especially in resolving the matter without trial, I stress that the availability of the judge must be meaningful and contemporaneous with the time of the pretrial conference. At the present time, at least two of the counties, Lake County and Madison County, reported that if the case does not resolve at mediation on the day of the pretrial conference, the pretrial conference is set for a later date before a judge. While this may be convenient for judges, it is completely inconvenient for the litigants who are typically unrepresented, who have “small claims,” and who must then take another day off from work to attend the pretrial conference with attendant, and often extreme, financial hardship.

The existing version of rule 7.090(b) mandates that six matters be considered at the pretrial conference. The rule as proposed by the. Committee made clear that those six matters must be determined by a judge (words underlined are the proposed addition to the rule):

(b) Notice to Appear; Pretrial Conference. The summons/notice to appear shall specify that the initial appearance shall be for a pretrial conference. The initial pretrial conference shall be set by the clerk not more than 50 days from the date of the filing of the action. At the pretrial conference, all of the following matters shall be considered by a judge:
(1) The simplification of issues.
(2) The necessity or desirability of amendments to the pleadings.
(3) The possibility of obtaining admissions of fact and of documents that avoid unnecessary-proof.
(4) The limitations on the number of witnesses.
(5) The possibilities of settlement.
(6) Such other matters as the court in its discretion deems necessary.

The purpose of the amendment is to ensure that a party sees a judge at the pretrial conference and that the issues listed above are determined by a judge.

As explained by the Conference of County Court Judges, which supports the proposals, small claims cases are different from most civil cases. Small claims actions are processed through Florida’s county courts under a set of rules with a stated goal to reach a “simple, speedy, and inexpensive” resolution of these cases. The current procedural structure provides for only two appearances: a pretrial conference, at which mediation may take place, and a trial. The stated goals and tight timeframes in the rules make it clear that additional appearances, as well as an active motion practice, are discouraged.

The Conference further explains that typically, at a pretrial conference, a small claims case may take one of several courses. First, if the plaintiff does not appear, the case may be dismissed. Second, if the defendant does not appear, a default may be entered. Third, if both parties appear, the case may be referred to mediation. Finally, if none of the first three resolutions is applicable, or if the case does not settle in mediation, the Small Claims Rules require that the court “shall” consider during pretrial the six items currently set out in rule 7.090(b). At this point, the court may also determine that the case presents “no triable issue” and enter a summary disposition pursuant to Small Claims Rule 7.135.

The Conference explains that the Committee’s proposed amendments would more clearly require that a judge preside over the pretrial conference in small claims actions. Currently, the majority of Florida counties provide for judges to preside at such conferences. Nonetheless, in a small minority of counties, the pretrial procedures differ, with varying degrees of judicial involvement. While nonjudicial personnel may assist the judge in handling pretrial conferences — including calling the docket, referring cases to a mediator, noting nonappearances for the court, and collecting settlement documents for the judge — the Conference believes a judge must actually be involved at that stage.

I would defer to the expertise of the Committee and the Conference, which voted by “overwhelming majority” to recommend adoption of the Committee’s proposed amendments. However, I emphasize that under the substituted rule adopted by this opinion, a “judge must be available to hear any motions and resolve any legal issues,” which would presumably include the six matters set forth in subdivision (b). Hopefully, the availability of the judge will be meaningful so that litigants are able to obtain what the rules require: “a simple, speedy, and inexpensive” resolution of these cases.

QUINCE, J., concurs.

APPENDIX

Rule 7.090. Appearance; Defensive Pleadings; Trial Date

(a) [No change]

(b) Notice to Appear; Pretrial Conference. The summons/notice to appear shall specify that the initial appearance shall be for a pretrial conference. The initial pretrial conference shall be set by the clerk not more than 50 days from the date of the filing of the action. The pretrial conference may be managed by nonjudicial personnel employed by or under contract with the court. Nonjudicial personnel must be subject to direct oversight by the court. A judge must be available to hear any motions or resolve any legal issues. At the pretrial conference, all of the following matters shall be considered:

(1) The simplification of issues.

(2) The necessity or desirability of amendments to the pleadings.

(3) The possibility of obtaining admissions of fact and of documents that avoid unnecessary proof.

(4) The limitations on the number of witnesses.

(5) The possibilities of settlement.

(6) Such other matters as the court in its discretion deems necessary.

Form 7.322 shall and form 7.323 may be used in conjunction with this rule.

(c) — (g) [No Change]

Committee Notes

[No Change]

Court Commentary

[No Change]

      . The Board of Governors of The Florida Bar unanimously approved the Committee’s regular-cycle report.

      . The Court ultimately adopted the remaining amendments to the Small Claims Rules and Forms as proposed in the Committee's report. See In re Amendments to the Florida Small Claims Rules, 44 So.3d 573 (Fla.2010).


author: PER CURIAM.

text:
    In re AMENDMENTS TO FLORIDA RULES FOR CERTIFIED AND COURT-APPOINTED MEDIATORS.
    No. SC10-1013.
    Supreme Court of Florida.
    May 19, 2011.
    Judge William D. Palmer, Chair, Committee on Alternative Dispute Resolution Rules, Fifth District Court of Appeal, Day-tona Beach, FL, for Petitioner.
   PER CURIAM.

The Supreme Court Committee on Alternative Dispute Resolution Rules and Policy (Committee) filed a petition asking the Court to adopt amendments to rules 10.130 and 10.830. We have jurisdiction. See art. V, § 2(a), Fla. Const.; § 44.106, Fla. Stat. (2010).

Upon consideration of the Committee’s petition, we amend rules 10.130 and 10.830 as proposed. First, we amend rule 10.130(a) (Notification of Conviction; Definition) to expand the definition of the term “conviction” to include second-degree misdemeanors involving dishonesty or false statement. Next, we amend rule 10.830 (Sanctions) to provide separate requirements for reinstatement after suspension and reinstatement after decertification under the rule.

Accordingly, Florida Rules for Certified and Court-Appointed Mediators 10.130 and 10.830 are hereby amended as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. These amendments shall become effective immediately upon the release of this opinion.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.

APPENDIX

Rule 10.130. Notification of Conviction

(a) Definition. “Conviction” means a determination of guilt resulting-from which is the result of a trial, or entry of a plea to a felony , or misdemeanor of the first-de-greeof guilty or no contest, regardless of whether adjudication of guiltwas withheld or whether imposition of sentence was suspended, deferred, or withheld, and applies in relation to any of the following: All Florida, federal,-ouh-of-state, military, and foreign convictions-as-an-adult or violations of county ordinances that bring -within-the municipal or county-code-the violation of a state ■ statute-or-^tatutes-shall qualify-as convictions?

(1) a felony, misdemeanor of the first degree, or misdemeanor of the second degree involving dishonesty or false statement;

(2) a conviction of a similar offense described in subdivision (1) that includes a conviction by a federal, military, or tribal tribunal, including courts-martial conducted by the Armed Forces of the United States;

(3) a conviction of a similar offense described in subdivision (1) that includes a conviction or entry of a plea of guilty or no contest resulting in a sanction in any jurisdiction of the United States or any foreign jurisdiction. A sanction includes, but is not limited to, a fine, incarceration in a state prison, federal prison, private correctional facility, or local detention facility; or

(4) a conviction of a similar offense described in subdivision (1) of a municipal or county ordinance in this or any other state.

(b)-(d) [No Change]

Rule 10.830. Sanctions

(a)-(g) [No Change]

(h) Reinstatement after Suspension. Except if inconsistent with rule 10.110, a mediator who has been suspended shall be reinstated as a certified mediator upon the expiration of the imposed or accepted suspension period and satisfaction of any additional renewal obligations.

(hi) Reinstatement after Decertification. Except if inconsistent with rule 10.110, a mediator who has been suspended or decertified may be reinstated as a certified mediator. Except as otherwise provided in the decision of the panel, no application for reinstatement may be tendered within 2 years after the date of decertification. The reinstatement procedures shall be as follows:

(1) [No Change]

(2) The petition for reinstatement shall contain:

(A) the name, age, residence, and address of the petitioner;

(B) the offense or misconduct upon which the saspension-or decertification was based, together with the date of such suspension or decertification; and

(C) a concise statement of facts claimed to justify reinstatement as a certified mediator.

(3) [No Change]

(4) The panel shall review the petition and, if the petitioner is found to be unfit to mediate, the petition shall be dismissed. If the petitioner is found fit to mediate, the panel shall notify the center and the center shall reinstate the petitioner as a certified mediator; provided, howevexv-if-the-decer-tifioation — has-conilnued- -for more than 3 -year-s^-the-reinstatement may — be-conditioned upoa-the-completion of a certified training course as-provided-for in these ralescontingent on the petitioner’s completion of a certified mediation training program of the type for which the petitioner seeks to be reinstated. Successive petitions for reinstatement based upon the same grounds may be reviewed without a hearing.


author: QUINCE, J.

text:
    Howard B. WALD, Jr., Petitioner, v. Athena F. GRAINGER, etc., Respondent.
    No. SC08-1143.
    Supreme Court of Florida.
    May 19, 2011.

      S. Perry Penland, Jr. and Eric S. Block, Jacksonville, FL, for Petitioner.
    Susan S. Oosting and J. Stephen O’Hara, Jr. of O’Hara Law Firm, Jacksonville, FL, for Respondent.
   QUINCE, J.

Howard B. Wald, Jr., seeks review of the decision of the First District Court of Appeal in Grainger v. Wald, 982 So.2d 42 (Fla. 1st DCA 2008), on the ground that it expressly and directly conflicts with decisions of other district courts of appeal and this Court on two questions of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons expressed below, we quash the decision of the First District.

FACTUAL AND PROCEDURAL HISTORY

Howard Wald, Jr., was involved in a car accident with Sam Gus Felos, who admitted his fault for the accident. Wald alleged injuries to his neck, back, right arm, foot, and thigh from the collision. Wald sought damages for his neck and back injuries, but not the thigh injury because it caused no “ongoing chronic pain.”

Because the defendant admitted fault, the only issues the jury had to consider were causation, the permanency of Wald’s injuries, and damages. Two doctors testified at trial. Wald’s treating physician, Dr. Jackson Tan, stated that Wald’s injuries, including his neck, back, right elbow, and right thigh injuries, were permanent and connected with the accident. The defendant’s expert physician, Dr. Howard Hogshead, testified that Wald had permanent right thigh numbness and, giving Wald “the benefit of the doubt,” that condition was related to the collision. Dr. Hogshead also stated his opinion that Wald did not sustain permanent neck or back injury as a result of the accident.

Wald moved for directed verdict on the issue of permanency. Over the defendant’s objection, the trial court granted the motion for directed verdict on permanency, but only as to the right thigh condition. The trial court instructed the defendant that he was free to argue to the jury that none of Wald’s other injuries were permanent. The trial court instructed the jury that it was free to weigh, accept, or reject the opinions of any expert witness. However, there was no reference to permanency in the verdict form or in the jury instructions. The jury entered judgment for Wald and awarded him over $1 million in damages for his injuries.

On appeal, the First District Court reversed the final judgment, finding that the trial court committed reversible error by directing a verdict as to permanency as that was a jury question. The First District explained that a jury is free to weigh the credibility of expert witnesses as it does any other witness and to reject any testimony regarding permanency, including uncontradicted testimony. The First District concluded that there was conflicting testimony as to the permanency of Wald’s neck and back injuries and ambivalent testimony as to the permanency of the thigh injury, for which Wald did not even seek damages. Grainger v. Wald, 982 So.2d 42 (Fla. 1st DCA 2008).

Wald sought review of the First District’s decision in Grainger based on alleged express and direct conflict with decisions of other district courts and this Court on two points of law, whether permanency is a jury question and whether the jury can reject uncontradicted expert testimony. This Court granted review and heard oral argument from the parties.

ANALYSIS

In the instant case, the First District concluded that the trial court erred as matter of law by directing a verdict on issue of permanency, as “permanency is a jury question.” Grainger, 982 So.2d at 43. The First District also concluded that “the jury was free to reject any testimony regarding permanency, including uncontra-dicted testimony.” Id. However, we conclude that these statements by the First District are overly broad and do not accurately reflect Florida law on these issues.

Determinations about the permanency of an injury are generally made by juries. See State Farm Mut. Auto. Ins. Co. v. Orr, 660 So.2d 1061 (Fla. 4th DCA 1995). Nonetheless, where the evidence of injury and causation is such that no reasonable inference could support a jury verdict for the defendant, it is not improper to direct a verdict on the permanency issue for the plaintiff. Id. at 1063. A plaintiff can establish a prima facie case of permanency by presenting expert testimony of permanency. Once this is done, the burden shifts to the defendant to present countervailing expert testimony, severely impeach the plaintiffs expert, or present other evidence which creates a direct conflict with the plaintiffs evidence. See Evans v. Montenegro, 728 So.2d 270, 271 (Fla. 3d DCA 1999) (holding that a directed verdict for the plaintiff on permanency was proper where the defendant did not impeach the plaintiffs expert and did not present conflicting evidence on permanency). If the defendant succeeds in this endeavor, a jury question is presented; if not, a directed verdict on permanency is appropriate. Id.

A party moving for a directed verdict admits the truth of all facts in evidence and every reasonable conclusion or inference which can be drawn from such evidence favorable to the non-moving party. See Williamson v. Superior Ins. Co., 746 So.2d 483, 485 (Fla. 2d DCA 1999). A directed verdict is proper when the evidence and all inferences from the evidence, considered in the light most favorable to the non-moving party, support the mov-ant’s case as a matter of law and there is no evidence to rebut it. Orr, 660 So.2d at 1062.

In determining the propriety of a trial court’s directed verdict on permanency, the reviewing court must “first determine whether the evidence supporting [the plaintiffs] claim of permanent injury within a reasonable degree of medical probability met that standard. If so, [the court] then need[s] to examine the record to determine if there is any conflicting evidence or inferences on the issue of permanent injury from which the jury could draw a conclusion favorable to the party against whom the directed verdict was entered.” Id. (finding neither contradictory nor conflicting expert medical evidence and no other evidence that would furnish the jury a reasonable basis upon which to disbelieve the plaintiffs complaints of pain or to reject the opinion testimony of the medical experts).

A jury is free to weigh the opinion testimony of expert witnesses, and either accept, reject or give that testimony such weight as it deserves considering the witnesses’ qualifications, the reasons given by the witness for the opinion expressed, and all the other evidence in the case, including lay testimony. Easkold v. Rhodes, 614 So.2d 495, 497-98 (Fla.1993) (concluding that jury could reject expert medical testimony that the plaintiff had sustained permanent injuries from an automobile accident where the experts’ medical opinions were premised on the plaintiffs self-reported false medical history). See also Orr, 660 So.2d at 1062. However, when medical evidence on permanence is undisputed, unimpeached, or not otherwise subject to question based on the other evidence presented at trial, the jury is not free to simply ignore or arbitrarily reject that evidence and render a verdict in conflict with it. Campbell v. Griffith, 971 So.2d 232, 236 (Fla. 2d DCA 2008) (explaining that the jury’s award of no future medical expenses and no past or future noneconomic damages was improper where both the plaintiffs treating doctor and the defense medical expert testified that plaintiffs subclavian aneurysm was a permanent injury caused by the auto accident and that there was no other medical explanation for its cause); Williamson, 746 So.2d at 485-86 (holding that the jury was not free to reject the uncontroverted medical testimony indicating that the plaintiff had sustained a permanent injury as a result of a car accident where the defendant’s two medical experts both agreed that an aggravation of nonsympto-matic arthritis would be considered a permanent exacerbation).

The First District made a blanket statement that “the jury was free to reject any testimony regarding permanency, including uncontradicted testimony.” Grainger, 982 So.2d at 43. However, as the cases cited above illustrate, the jury’s ability to reject the testimony must be based on some reasonable basis in the evidence. This can include conflicting medical evidence, evidence that impeaches the expert’s testimony or calls it into question, such as the failure of the plaintiff to give the medical expert an accurate or complete medical history, conflicting lay testimony or evidence that disputes the injury claim, or the plaintiff’s conflicting testimony or self-contradictory statements regarding the injury. For example, when a medical expert’s opinion is predicated on an incomplete or inaccurate medical history, the jury is free to reject the expert medical testimony, even without conflicting medical testimony, if there is conflicting lay testimony. See Weygant v. Fort Myers Lincoln Mercury, Inc., 640 So.2d 1092, 1093-94 (Fla.1994) (holding that it was within jury’s province to reject uncon-troverted medical testimony where the plaintiff gave conflicting testimony in a workers’ compensation hearing stating that her car accident injuries were not incapacitating and that the only pain she suffered was attributable to her work-related fall and gave confusing medical histories to her medical experts that raised the possibility that their medical opinions were based on inaccurate predicates); Easkold, 614 So.2d at 497-98 (explaining that the jury was justified in determining that the opinion testimony of the medical experts was flawed based on the untruthful medical history given to the experts by the plaintiff and her contradictory deposition statements concerning her previous medical history); Chomont v. Ward, 103 So.2d 635, 637-38 (Fla.1958) (concluding that the jury had a reasonable basis for doubting the testimony of the plaintiff about his alleged physical injuries where there were many conflicts between the plaintiffs trial testimony and pre-trial deposition and two police officers testified that the plaintiff made no complaint about physical injuries immediately after the accident).

Here, the trial court granted the motion for a directed verdict on permanency of the right thigh injury. The First District stated that the testimony as to the permanency of the thigh injury was ambivalent. Grainger, 982 So.2d at 43. To the contrary, the record actually shows that the medical experts agreed on the permanency of the thigh injury. While the medical experts disagreed as to the medical cause of the thigh injury, both agreed that Wald had sustained a permanent injury to his right thigh that was causally related to the accident.

Additionally, Grainger never argued that the directed verdict on permanency should not be granted based on “ambivalent” or “conflicting” evidence as to the permanency of the thigh injury. In fact, Grainger’s counsel acknowledged that the defense medical expert had related the thigh injury to the accident and had assigned it a permanent impairment rating. Grainger only argued that a directed verdict was not proper because the jury was free to “accept or reject any testimony and any respective evidence,” which was not the standard for determining whether the directed verdict was appropriate. Thus, we conclude that the trial court properly granted Wald’s motion for directed verdict on the issue of permanency.

The First District also stated that by granting a directed verdict as to the permanency of the thigh injury, “the trial court took from the jury’s consideration the issue of the permanency of [Wald’s] neck and back injuries, the only conditions for which [he] sought damages.” Grainger, 982 So.2d at 43. The First District concluded that section 627.737(2), Florida Statutes (2007), precluded the jury from awarding Wald damages based on the permanency of the thigh injury because it did not cause “pain, suffering, mental anguish, or inconvenience” where defense counsel had stated that the thigh injury caused no “ongoing daily chronic pain.” Id. at 43 & n. 1. We find the First District’s reading of the statute does not comport with its plain language.

Section 627.737(2)(b) provides that a plaintiff may recover damages in tort for pain, suffering, mental anguish, and inconvenience (noneconomic damages) because of a bodily injury arising out of the use of a motor vehicle only in the event that the injury “consists in whole or in part of ... [permanent injury within a reasonable degree of medical probability.” (Emphasis added.) Thus, as long as part of the bodily injury arising out of the motor vehicle accident involves a permanent injury “within a reasonable degree of medical probability,” the plaintiff can recover noneconomic damages related to his pain, suffering, mental anguish, and inconvenience for all of the injuries related to the accident. Additionally, pain is only one of the noneconomic damages provided in the statute. Suffering, mental anguish and inconvenience are also compensable noneconomic damages. According to the record, Wald’s thigh injury caused sensitivity and discomfort, especially if he permitted children to sit on his lap. Thus, contrary to the First District’s conclusion, the statute did not preclude an award of noneconomic damages to Wald for the thigh injury.

Finally, the First District concluded that “there was no avenue through which the jury could reject the permanency of any of the injuries” because “there was no reference to permanence in the verdict form or in the jury instructions.” Grainger, 982 So.2d at 43. In his argument to this Court, Grainger asserts the same. However, the record shows that Grainger never raised any objection to the jury instructions or the verdict form on the basis that the permanency of the neck and back injuries was still at issue.

During a preliminary discussion of the jury instructions, Wald’s counsel stated that the instructions relating to personal injury damages would need to be changed if Grainger’s expert witness testified as expected by giving “permanency to the thigh” and the court granted Wald’s motion for directed verdict on permanency. Grainger’s counsel agreed. There was also a similar discussion relating to the verdict form. After the trial court granted the directed verdict, Wald’s counsel asked the court to remove the instruction relating to permanency and to remove this from the verdict form as well. Grainger’s counsel voiced no objection on this ground when asked by the trial court if the instructions and verdict form were acceptable. Thus, Grainger did not preserve any issue relating to the adequacy of the jury instruction or the verdict form. See Fla. R. Civ. P. 1.470(b) (“At [the charge] conference all objections shall be made and ruled upon and the court shall inform counsel of such instructions as it will give. No party may assign as error the giving of any instruction unless that party objects thereto at such time, or the failure to give any instruction unless that party requested the same.”); City of Orlando v. Birmingham, 539 So.2d 1133, 1135 (Fla.1989) (holding that appellate court improperly addressed issue regarding jury instruction where party failed to object to the instruction and thus did not preserve issue for appellate review).

CONCLUSION

For the reasons stated above, we find that the trial court properly directed a verdict for Wald on the issue of permanency and thus the First District improperly reversed the final judgment in favor of Wald entered. Accordingly, we quash the decision of the First District and remand for reinstatement of the jury verdict.

It is so ordered.

CANADY, C.J., and PARIENTE, LEWIS, POLSTON, LABARGA, and PERRY, JJ., concur.

      . After trial, defendant Felos died and the personal representative of his estate, Athena F. Grainger, was substituted as the defendant in Wald’s suit.

      . Wald's expert attributed the thigh injury to lumbar radiculopathy, while Grainger's expert attributed it to meralgia paresthetica.

      . The court did instruct the jury that it was free to "accept [the expert witnesses’] testimony, reject it or give it the weight you think it deserves, considering the knowledge, skill, experience, training, or education of the witness, the reasons given by the witness for the opinion expressed and all other evidence in the case,” which comports with the standard jury instruction relating to the believability of expert witnesses. See Fla. Std. Jury Instr. (Civ.) 2.2(b).


author: CANADY, C.J.

text:
    James Patrick WONDER, Petitioner, v. STATE of Florida, Respondent.
    No. SC10-1741.
    Supreme Court of Florida.
    May 26, 2011.
    Michael J. Entin and Frank A. Maister, Fort Lauderdale, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   CANADY, C.J.

We have for review Wonder v. State, 52 So.3d 696 (Fla. 4th DCA 2010), in which the Fourth District Court of Appeal denied Wonder’s petition for a writ of certiorari. The Fourth District concluded that the trial court did not depart from the essential requirements of law in denying Wonder’s request for an evidentiary hearing on the issue of immunity from prosecution pursuant to section 776.032, Florida Statutes (2009), Florida’s “Stand Your Ground” law. The Fourth District certified conflict with Peterson v. State, 983 So.2d 27 (Fla. 1st DCA 2008), and also certified the conflict issue as a question of great public importance. The Fourth District granted Wonder’s motion to stay pending this Court’s review of Dennis v. State, 17 So.3d 305 (Fla. 4th DCA 2009). We have jurisdiction. See art. V, § 3(b)(4), Fla. Const.

We have since resolved the conflict, concluding that where a criminal defendant files a motion to dismiss on the basis of section 776.032, the trial court should decide the factual question of the applicability of the statutory immunity. See Dennis v. State, 51 So.3d 456 (Fla.2010). In so holding, we approved the reasoning of Peterson on the conflict issue.

Following that decision, we issued an order directing the State to show cause why this Court should not exercise jurisdiction in the instant case, summarily quash the decision on review, and remand for reconsideration in light of Dennis. The State has filed a response conceding that “given the procedural posture of this case ... this cause should be remanded for reconsideration.”

We accordingly grant the petition for review in the present case. The decision under review is quashed, and this matter is remanded to the Fourth District for reconsideration upon application of this Court’s decision in Dennis.

It is so ordered.

PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.


text:
    Keith JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. SC10-1405.
    Supreme Court of Florida.
    May 26, 2011.
    Leonard Scott Feuer of Dell and Schae-fer, Chartered, Hollywood, FL, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, FL, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, FL, for Respondent.
   CANADY, C.J.

We have for review Jackson v. State, No. 4D10-2100 (Fla. 4th DCA Jun. 15, 2010), in which the Fourth District Court of Appeal concluded that the trial court did not depart from the essential requirements of law. The Fourth District relied upon its prior decision Dennis v. State, 17 So.3d 305 (Fla. 4th DCA 2009). At the time the Fourth District issued Jackson, Dennis was pending review in this Court. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.; Jollie v. State, 405 So.2d 418 (Fla.1981).

We stayed proceedings in this case pending disposition of Dennis v. State, 51 So.3d 456 (Fla.2010), in which we determined that where a criminal defendant files a motion to dismiss on the basis of section 776.032, Florida Statutes (2006), the trial court should decide the factual question of the applicability of the statutory immunity. In so holding, we disapproved the Fourth District’s reasoning. We then issued an order directing the State to show cause why this Court should not exercise jurisdiction in the instant case, summarily quash the order on review, and remand for reconsideration in light of Dennis. The State has filed a response conceding that “given the procedural posture of this case ... this cause should be remanded for reconsideration.”

We accordingly grant the petition for review in the instant case. The order under review is quashed, and this matter is remanded to the Fourth District for reconsideration upon application of this Court’s decision in Dennis.

It is so ordered.

PARIENTE, LEWIS, QUINCE, POLSTON, LABARGA, and PERRY, JJ., concur.