author: WALLACE, Judge.

text:
    Andrew GIACALONE, Petitioner, v. HELEN ELLIS MEMORIAL HOSPITAL FOUNDATION, INC., Respondent.
    No. 2D08-4807.
    District Court of Appeal of Florida, Second District.
    May 1, 2009.

      Michael D. Walrath and Matthew W. Dietz of Law Offices of Matthew W. Dietz, P.L., Miami, for Petitioner.
    Robert A. Vigh of Solomon, Ginsberg, and Vigh, P.A., Tampa, for Respondent.
   WALLACE, Judge.

Andrew Giacalone petitions this court for a writ of certiorari to quash the circuit court’s order denying his motion to compel responses to discovery requests propounded to Helen Ellis Memorial Hospital Foundation, Inc. We hold that the circuit court’s order departed from the essential requirements of the law, causing material injury to Mr. Giacalone for which there is no adequate remedy at law. Accordingly, we grant the petition and quash the circuit court’s order.

FACTS AND PROCEDURAL HISTORY

On October 13, 2006, Mr. Giacalone was admitted to the Hospital on an emergency basis and underwent surgery during which a pacemaker was implanted. On his admission to the Hospital, Mr. Giacalone signed a standard form in which he agreed — in pertinent part — “to pay the account at the hospital in accordance with the regular rates and terms of the hospital.” Mr. Giacalone was uninsured and requested that he be treated under the Hospital’s charity program, claiming that he had no income or available credit. He was released on October 16, 2006. The next day, Mr. Giacalone paid the Hospital $1000 on his account. Subsequently, the Hospital determined that Mr. Giacalone was not eligible for the charity program.

. On December 13, 2006, the Hospital’s attorneys sent Mr. Giacalone a letter notifying him that he owed the Hospital $52,280.70. Mr. Giacalone responded promptly in writing and disputed the charges.

In February 2007, the Hospital filed an action against Mr. Giacalone seeking to recover the unpaid charges. Mr. Giacal-one answered, asserting the affirmative defenses of unconscionability (unreasonable pricing), lack of mutual assent and fraudulent nondisclosure, and undue influence. He also counterclaimed, alleging claims for unfair or deceptive trade practices, breach of contract (implied covenants of good faith and fair dealing), and for declaratory relief. The central theme of Mr. Giacalone’s defenses and counterclaims was that the Hospital’s charges for its services were unreasonable and unconscionable.

Subsequently, Mr. Giacalone served on the Hospital a request for production of documents and a set of interrogatories. The Hospital objected to the production of most of the documents and declined to respond to several of the interrogatories. Mr. Giacalone filed a motion to compel discovery. After a hearing, the circuit court issued a form order denying the motion.

STANDARD OF REVIEW

A party seeking review of a pretrial discovery order must show that the trial court’s order departed from the essential requirements of law and caused “material injury to the petitioner throughout the remainder of the proceedings below, effectively leaving no adequate remedy on appeal.” Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987). Certiorari is rarely available to review orders denying discovery because in most cases the harm can be corrected on appeal. State Farm Mut. Auto. Ins. Co. v. Peters, 611 So.2d 597, 598 (Fla. 2d DCA 1993); see also Power Plant Entm’t, LLC v. Trump Hotels & Casino Resorts Dev. Co., 958 So.2d 565, 567 (Fla. 4th DCA 2007) (“[F]ew orders denying discovery will involve information so relevant and crucial to the position of the party seeking discovery, that it will amount to a departure from the essential requirements of law so as to warrant certiorari review.”).

However, when the requested discovery is relevant or is reasonably calculated to lead to the discovery of admissible evidence and the order denying that discovery effectively eviscerates a party’s claim, defense, or counterclaim, relief by writ of certiorari is appropriate. The harm in such cases is not remediable on appeal because there is no practical way to determine after judgment how the requested discovery would have affected the outcome of the proceedings. See Bush v. Schiavo, 866 So.2d 136, 140 (Fla. 2d DCA 2004); Beekie v. Morgan, 761 So.2d 694, 698 (Fla. 5th DCA 2000); Criswell v. Best W. Int’l, Inc., 686 So.2d 562, 563 (Fla. 3d DCA 1994).

DISCUSSION

The primary claim on which Mr. Giacalone bases his defenses and counterclaims is that the charges for the supplies and services rendered to him by the Hospital were unreasonable. The information Mr. Giacalone sought by his motion to compel was broadly pertinent to the Hospital’s charges and the discounts granted to the various categories of patients that it serves (e.g., self-pay patients, Medicare patients, Medicaid patients, charity care patients, and privately insured patients) and to the Hospital’s internal cost structure. Mr. Giacalone argues that this information was not only relevant but critical to establish his defenses and counterclaims. We agree.

In Payne v. Humana Hospital Orange Park, 661 So.2d 1239 (Fla. 1st DCA 1995), the First District noted:

A patient may not be bound by unreasonable charges in an agreement to pay charges in accordance with “standard and current rates.” Mercy Hosp. v. Carr, 297 So.2d 598, 599 (Fla. 3d DCA 1974). When a contract fails to fix a price furthermore, a reasonable price is implied. See F.L. Stitt & Co. v. Powell, 94 Fla. 550, 556, 114 So. 375, 378 (1927) (holding that, where a contract for legal services fails to expressly provide for the amount of the fee, a “reasonable” fee is implied); McGill v. Cockrell, 88 Fla. 54, 58, 101 So. 199, 201 (1924) (where a contract fixes no definite sum to be paid for services, “a reasonable sum is presumed by law to have been contemplated by the parties”); cf. 19A Fla. Stat. Ann. 218 (1993) (§ 672.305(2): “A price to be fixed by the seller or by the buyer means a price for him to fix good faith.”), cmt. at 219 (“This seemingly unnecessary admonition was included to deny to the seller the unbridled license to fix any exorbitant or unreasonable price he may wish.”).

Id. at 1241 (footnote omitted). Thus the reasonableness of the Hospital’s charges was the primary issue to be determined in the pending action. We also note that the Hospital first placed the reasonableness of its charges at issue by alleging in its complaint that “[t]he reasonable value of [its] unpaid services totals $52,280.70.”

In Colomar v. Mercy Hospital, Inc., 461 F.Supp.2d 1265 (S.D.Fla.2006), the United States District Court for the Southern District of Florida outlined three nonexclusive kinds of evidence relevant to the determination of a claim of unreasonable pricing by a hospital:

A thorough review of the case law from Florida and elsewhere leads to the conclusion that no single factor can be used to determine the reasonableness of Mercy’s hospital charges. Rather, several non-exclusive factors are relevant to the inquiry. As discussed in more detail below, those factors include but are not necessarily limited to: (1) an analysis of the relevant market for hospital services (including the rates charged by other similarly situated hospitals for similar services); (2) the usual and customary rate Mercy charges and receives for its hospital services; and (3) Mercy’s internal cost structure. Consideration of the [second amended complaint] in light of these factors establishes that Plaintiff has stated a claim for breach of contract and violation of [Florida’s Deceptive and Unfair Trade Practice Act] based on unreasonable pricing.

Id. at 1269. Here, the order denying the motion to compel discovery prevents Mr. Giacalone from developing two of the three kinds of relevant evidence outlined by the Colomar court: (1) the discovery of the Hospital’s charges and the discounts that it grants to the various categories of patients it serves and (2) the Hospital’s internal cost structure. By preventing Mr. Giacalone from making any inquiry into this relevant information, the circuit court’s order denying the motion to compel departs from the essential requirements of the law.

The Hospital argues that Mr. Giacalone has not shown irreparable injury because he has not exhausted other means of obtaining pertinent information, such as comparative market pricing. We disagree. The use of comparative market pricing is only one type of relevant information which may be helpful in establishing a claim of unreasonable pricing. As the Co-lomar court points out, the proof of such a claim may also involve inquiry concerning the usual and customary rates the Hospital charges and receives for its services and concerning the Hospital’s internal cost structure, in addition to a comparative analysis of the relevant market. Colomar, 461 F.Supp.2d at 1269.

Furthermore, we note that the circuit court’s order is a form order containing no explanation of its decision to deny the motion or an analysis of the individual requests. Under the circumstances shown here, such a blanket denial of relevant discovery is insufficient. See Towers v. City of Longwood, 960 So.2d 845, 849 (Fla. 5th DCA 2007) (holding that the trial court’s order labeling the entire document production process a fishing expedition was “insufficient, particularly where it is obvious from looking at the notice to produce and the allegations in the complaint that the document production is being directed at many relevant items”).

Finally, we have not overlooked the Hospital’s argument that the circuit court properly denied the motion to compel because the information requested by Mr. Giacalone constitutes trade secrets. However, we need not address this issue. Although the Hospital asserted its trade secrets claim in opposition to the motion to compel, the circuit court made no finding either at the hearing on the motion to compel or in its written order that any of the requested information constitutes trade secrets. When the circuit court reconsiders the motion to compel on remand, it should give appropriate consideration to the trade secrets issue under section 90.506, Florida Statutes (2008). See Ameritrust Ins. Corp. v. O’Donnell Landscapes, Inc., 899 So.2d 1205, 1207 (Fla. 2d DCA 2005).

CONCLUSION

We conclude that much of the information Mr. Giacalone seeks is either directly relevant to his defenses and counterclaims or is reasonably calculated to lead to the discovery of admissible evidence. Because the documents sought and the questions raised in the interrogatories are critical to Mr. Giacalone’s defenses and counterclaims, the circuit court departed from the essential requirements of the law in making a blanket denial of Mr. Giacal-one’s discovery requests. On remand, the circuit court should reconsider the individual requests and address the Hospital’s trade secrets claim.

The circuit court’s order will cause irreparable injury that cannot be remedied on appeal. Accordingly, we grant the petition, quash the circuit court’s order, and remand for further proceedings consistent with this opinion.

Petition granted; ■ order quashed.

KELLY and VILLANTI, JJ., Concur.

      . We will refer to both the corporate entity and the hospital it operates as “the Hospital.”

      . See Fla. R. Civ. P. 1.280(b)(1).


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    Kenneth McMILLAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-4460.
    District Court of Appeal of Florida, Second District.
    May 1, 2009.
    James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Donna S. Koch, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

Kenneth McMillan appeals his conviction and sentence for attempted burglary of a structure. We reverse solely as to the trial court’s imposition of a public defender fee and two service charges assessed for preparation and recording of “Satisfaction of Lien/Document.” We affirm in all other respects.

McMillan challenges the imposition of a $100 public defender fee, arguing that the trial court failed to inform him of his right to contest the amount of the fee at a hearing as required by Florida Rule of Criminal Procedure 3.720(d)(1). The State argues that McMillan waived his right to a hearing, noting the following colloquy between the trial court and McMillan:

THE COURT: And, Mr. McMillan, do you agree $100 is a reasonable public defender fee in the case?
THE DEFENDANT: (Shrugs shoulders).
THE COURT: All right. He remains mute on that point. I’ll assess it. He’s had his opportunity to object.

In Norris v. State, 659 So.2d 1352, 1355 (Fla. 5th DCA 1995), the Fifth District addressed a colloquy similar to that quoted above. There, however, when the trial court asked the defendant if he had any objection to a public defender fee of $100, the defendant replied that he did hot. The appellate court concluded that the exchange was insufficient to comply with the due process requirements of rule 3.720(d)(1) and section 27.56(7), Florida Statutes (1993). The court reasoned that the rule and statute were not subject to implied waiver and that although the defendant indicated that he did not object to the lien, he did not specifically waive his right to a hearing. Id.; see also Wilson v. State, 675 So.2d 613, 615 (Fla. 2d DCA 1996) (concluding that the defendant’s failure to object to the imposition of a public defender lien did not constitute a valid waiver of the due process requirements of rule 3.720(d)(1)).

Here, the trial court did not advise McMillan of his right to contest the amount of the public defender fee. McMillan’s shrugging of his shoulders and remaining silent, without having been advised that he had a right to contest the fee at a hearing, does not constitute a valid waiver of his right to a hearing. Thus, we reverse the imposition of the $100 public defender fee. The trial court may reimpose the fee if it provides McMillan with notice of its intent to do so and the opportunity to be heard at a hearing on the matter. See Bruno v. State, 960 So.2d 907, 908 (Fla. 2d DCA 2007). On remand, the trial court shall enter a corrected Monetary Obligation Order and Lien Order either omitting the $100 fee or reflecting its reimposition.

McMillan also challenges two charges appearing on the Lien Order and on a Judgment Lien, both rendered on August 29, 2007. One is a $12 service charge for “Preparation of Satisfaction of Lien/Document” pursuant to section 28.24(8), Florida Statutes (2006), and the other is a $16 charge for “Recording of Satisfaction of Lien/Document” pursuant to section 28.241. McMillan claims that section 28.24(8) only authorizes the clerk to charge $6 for preparation of the satisfaction of lien and that section 28.241 does not authorize the imposition of a $16 charge for recording a satisfaction of lien. The State concedes error, acknowledging that the trial court should strike $6 of the $12 service charge and should rescind the $16 charge. Thus, we reverse as to these charges and remand for the trial court to enter corrected lien documents.

In summary, we reverse the imposition of the $100 public defender fee, $6 of the $12 service charge, and the $16 recording charge. On remand, the trial court shall enter a corrected Monetary Obligation Order, Lien Order, and Judgment Lien consistent with this opinion. If the trial court reimposes the $100 public defender fee, it shall do so only after proper notice and the opportunity for McMillan to be heard on that issue.

Affirmed in part, reversed in part, and remanded.

FULMER, J., and GALLEN, THOMAS M., Associate Senior Judge, Concur.

      . McMillan preserved his challenge to the fee and charges by filing a motion to correct sentencing error pursuant to Florida Rule of Criminal Procedure 3.800(b)(2), which the trial court granted in part and denied in part.

      . Section 938.29(5), Florida Statutes (2006), also provides that when a trial court determines the value of the public defender's service, the defendant "after adequate notice thereof, shall have opportunity to be heard and offer objection to the determination, and to be represented by counsel, with due opportunity to exercise and be accorded the procedures and rights provided in the laws and court rules pertaining to civil cases at law.”

      . Section 27.56 was renumbered as section 938.29 in 1997. Ch. 97-271, § 22, at 4994-96, Laws of Fla.

      . The trial court apparently intended to eliminate the $16 recording charge from the Lien Order and Judgment Lien when it ruled on McMillan’s motion to correct sentence, but it did not enter corrected documents omitting the charge.


author: BENTON, J.

text:
    Ed LABRY, Bill Benton & Kevin Adams, Appellants, v. WHITNEY NATIONAL BANK, AB9G, LLC, Steven R. Bradley, Jon D. Laplante, & Brad Zeitlin, Appellees.
    Nos. 1D09-0243, 1D09-0246, 1D09-0247.
    District Court of Appeal of Florida, First District.
    May 4, 2009.
    Patrick K. McCarthy and Brooke E. Ei-senhut of Matthews & Hawkins, P.A., Des-tín, for Appellants.
    Linda A. Hoffman and Robert S. Rushing of Carver, Darden, Koretzky, Tessier, Finn, Blossman & Areaux, LLC, Pensacola, for Appellees.
   BENTON, J.

Ed Labry, Bill Benton, and Kevin Adams appeal the denial of their motion to dismiss, on grounds of lack of personal jurisdiction, the complaint filed by Whitney National Bank (Whitney) against them (and others) seeking to collect on a loan Whitney made to AB9G, LLC, a Florida corporation. Whitney alleged that appellants (and others) guaranteed the loan and that AB9G’s default triggered payment obligations under the guaranties. In their motion, appellants, defendants below, asserted that they reside in Tennessee, executed the guaranties there, and lack any other connection to Florida in their personal capacities; and that Whitney failed to allege or prove facts that show that Florida courts have personal jurisdiction over them. We have jurisdiction of the appeal. See Fla. R.App. P. 9.030(b)(1)(B) (2009), 9.130(a)(3)(C)(i) (2009).

Insofar as it presents a question of law, we review de novo an order denying a motion to dismiss on grounds of lack of personal jurisdiction. See Execu-Tech Bus. Sys., Inc. v. New Oji Paper Co., 752 So.2d 582, 584 (Fla.2000); Ganiko v. Ganiko, 826 So.2d 391, 393 (Fla. 1st DCA 2002). A plaintiff seeking to establish in person-am jurisdiction over a nonresident defendant has the burden of alleging sufficient facts (1) to bring the action within Florida’s long arm statute and (2) to show that exercising personal jurisdiction over the defendant comports with due process. See Venetian Salami Co. v. Parthenais, 554 So.2d 499, 502 (Fla.1989) (“In determining whether long-arm jurisdiction is appropriate in a given case, two inquiries must be made. First, it must be determined that the complaint alleges sufficient jurisdictional facts to bring the action within the ambit of the statute; and if it does, the next inquiry is whether sufficient ‘minimum contacts’ are demonstrated to satisfy due process requirements.” (quoting Unger v. Publisher Entry Serv., Inc., 513 So.2d 674, 675 (Fla. 5th DCA 1987))).

Whitney’s complaint alleged as a basis for jurisdiction over appellants only that they were out-of-state residents who “ha[ve] engaged in business in Walton County, Florida, including without limitation, the transaction relating to the note and guaranty that is the subject of this litigation.” Florida’s long arm statute provides, in relevant part:

(1) Any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.
(g) Breaching a contract in this state by failing to perform acts required by the contract to be performed in this state.

§ 48.193, Fla. Stat. (2008). Whitney’s complaint can be read as contemplating section 48.193(l)(a) alone. Although the only basis for relief specified in the complaint is appellants’ failure to repay AB9G’s indebtedness, the complaint makes no mention of section 48.193(l)(g).

On appeal, however, Whitney does contend that jurisdiction is proper under section 48.193(l)(g). We assume for purposes of decision that the section 48.193(l)(g) point was preserved for appeal, and that Whitney demonstrated below that section 48.193(l)(g)’s requirements have been met. Even on these assumptions, however, Whitney had also to demonstrate that the constitutional minimum contacts requirement for personal jurisdiction was satisfied. On this score, our supreme court has said:

Long ago, the United States Supreme Court in International Shoe Co. v. Washington, 326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945), held that in order to subject a defendant to an in personam judgment when he is not present within the territory of the forum, due process requires that the defendant have certain minimum contacts with the forum such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice. More recently, the same Court stated that the test is whether the defendant’s conduct in connection with the forum state is “such that he should reasonably anticipate being ha[i]led into court there.” WorldWide Volkswagen Corp. v. Woodson, 444 U.S. 286, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980).

Venetian Salami, 554 So.2d at 500. We have held that a lender does not meet the test just by showing that payments a defaulting borrower owes are to be made in Florida. See Ganiko, 826 So.2d at 395 (“It is also not enough to satisfy due process concerns that payment is to be made in the forum state.” (citing Quality Christmas Trees Co. v. Florico Foliage, Inc., 689 So.2d 1222 (Fla. 5th DCA 1997))); see also Edwards v. Geosource, Inc., 473 So.2d 36, 37 (Fla. 1st DCA 1985) (“Signing a promissory obligation, in and of itself, is insufficient contact to confer personal jurisdiction.” (citing Odell v. Signer, 169 So.2d 851 (Fla. 3d DCA 1964))).

Both Whitney and appellants filed affidavits: Appellants aver that they have never been residents of Florida, that they have never engaged in business in Florida in their personal capacities, that they do not personally own any real property in Florida, that the guaranties were executed in Tennessee, and that the guaranties do not specify the performance of any act or create any obligation in Florida. Whitney, through a vice president, executed an affidavit averring that “[i]n connection with the execution of the Note, [appellants] as guarantors of the indebtedness due under the Note, provided financial statements to [Whitney] and certified those financial statements to [Whitney] and that “[appellants] jointly and severally guaranteed the prompt payment of 30% of the indebtedness due under the Note and agreed to be bound by all of the obligations of AB9G, LLC in the State of Florida, as specifically set forth in the guarantees executed by [appellants].... ” Financial statements “provided” by mail or facsimile transmission do not necessarily entail any action in Florida on the provider’s part.

The Fifth District has specifically rejected the contention that simply executing a guaranty of a loan a Florida bank makes creates the requisite minimum contacts. See Holton v. Prosperity Bank of St. Augustine, 602 So.2d 659, 662-63 (Fla. 5th DCA 1992) (“[A] guarantor’s mere obligation to honor a payment obligation of another, even if that obligation is required to be made in Florida is not a substantial activity to subject the nonresident guarantor to the jurisdiction of a Florida court.” (citing Hotchkiss v. FMC Corp., 561 So.2d 1261 (Fla. 2d DCA 1990))). But see Kane v. Am. Bank of Merritt Island, 449 So.2d 974, 975-76 (Fla. 5th DCA 1984) (finding sufficient minimum contacts when out-of-state guarantors defaulted on a note payable in Florida, even though the guaranties were executed outside of Florida).

On the other hand, guaranties of notes given to finance the sale of goods in Florida, secured by a security agreement filed in Florida, and intended “to provide funds for operating a business in Florida,” were held to provide the requisite contacts for asserting personal jurisdiction over the guarantor, at least where the guarantor had “business contacts” in Florida and “serve[d] as a trustee of a college in Florida.” Hamilton v. Bus. Assistance Consortium, Inc., 602 So.2d 619, 621 (Fla. 3d DCA 1992). Although the Fourth District said in Harris v. Caribank, 536 So.2d 394, 396 (Fla. 4th DCA 1989), which, like the present case, involved “a mortgage on property located in Florida,” that the “fact that payment was to be made in Florida, and the fact that payment was not made, would appear to be enough to bring the Harrises within the scope of section 48.193(l)(a),” the separate, constitutional issue of minimum contacts may have turned on the fact that the guaranties in that case “specified Florida as ... the jurisdictional forum for deciding legal disputes between the parties.” Id. at 395-96. But see Hamilton, 602 So.2d at 621 (stating that “even with a choice of forum clause, it is necessary to establish that a guarantor has minimum contacts with the forum state” (citations omitted)).

In the present case, the documents contain a choice of law provision, but no forum selection clause, agreement to litigate in Florida, nor any waiver of rights to contest personal jurisdiction. Because we have held that even an unconditional obligation to make payments in Florida does not, by itself, establish that the obligor has constitutionally sufficient contact with Florida to support personal jurisdiction, see Ganiko, 826 So.2d at 395; see also Edwards, 473 So.2d at 37, we do no more than adhere to precedent in holding that the contingent obligation a guaranty represents remains, even in the event of default, a constitutionally inadequate basis for personal jurisdiction. We reject the argument that furnishing financial statements in connection with a guaranty makes a material difference.

Reversed.

LEWIS and CLARK, JJ., concur.


text:
    JACKSON NATIONAL LIFE INSURANCE COMPANY, Appellant, v. Cora Joy LOVALLO, Appellee.
    No. 1D08-2536.
    District Court of Appeal of Florida, First District.
    May 4, 2009.
    Hala Sandridge of Fowler, White, Boggs, Banker, P.A., Tampa, for Appellant.
    Thomas C. Staples of Staples, Ellis & Associates, P.A., Pensacola, for Appellee.
   BENTON, J.

On motion for summary judgment, the trial judge ruled that Cora Joy Lovallo was, by virtue of a dissolution decree, the equitable owner of a ten-year, renewable, term life insurance policy her former husband purchased from Jackson National Life Insurance Company and, for that reason, individually entitled to notice, as the end of the original term approached, of her right to renew the policy. Ms. Lovallo became the equitable owner of the policy, the trial judge concluded, as a result of the decree incorporating the terms of the marital settlement agreement she entered into with her former husband; and she so advised Jackson National before the policy expired.

We assume without deciding that the trial judge ruled correctly that Ms. Lovallo has all the rights of any owner of the policy. See Dixon v. Dixon, 184 So.2d 478, 481 (Fla. 2d DCA 1966) (“We hold that the terms of the stipulation were so encompassing as to amount to a surrender of the essential incidents of ownership. If a person may make a parole gift of his policy ownership, a fortiori he may, by written stipulation concurrent with the bargaining inherent in a divorce settlement, similarly divest himself of his ownership interest in an insurance policy.”); Primerica Life Ins. Co. v. Moore, 2008 WL 1886032, at *4 (M.D.Fla. Apr. 28, 2008) (“[T]he Moore divorce decree ... divested Joe Moore of his ownership of the life insurance policy and created an indefeasible interest in the proceeds of the life insurance policy in [his three daughters].”); Metro. Life Ins. Co. v. Williams, 82 F.Supp.2d 1346, 1353 (M.D.Fla.1999) (“Just as in Dixon, the terms of the Agreement, adopted and incorporated into the Final Judgment of Dissolution of Marriage ..., ‘were so encompassing as to amount to a surrender of the essential incidents of ownership.’ ” (quoting Dixon, 184 So.2d at 481)); Prudential Ins. Co. of Am. v. Boyd, 781 F.2d 1494, 1497 (11th Cir.1986) (“This Court is required by Dixon to hold that, by the terms of his divorce decree, Daniel Boyd was divested of his ownership of the proceeds of his life insurance policy with Prudential.”); Pensyl v. Moore, 415 So.2d 771, 772 (Fla. 3d DCA 1982) (affirming based on Dixon in an “almost identical” case).

The trial court also ruled, however, that, as an owner of the policy — -which we assume she was, for purposes of decision — Ms. Lovallo was entitled to additional notice of the right to renew the policy, shortly before the time to renew expired. But the terms of the policy confer no right to any notice — apart from the language of the policy itself — of an owner’s right to secure additional coverage after the initial ten-year term expires. Nor is such a right conferred by statute, even though statutes do confer a right to notice of the renewal premium (or notice of nonrenewal) for other kinds of insurance policies.

We are concerned here with the right to renew, not with simple non-payment of premiums. Section 627.4555, Florida Statutes (2008), which requires issuers of life insurance policies to notify policy holders of the nonpayment of premiums, only applies, moreover, to policies issued on or after October 1, 1997, and thus has no application to the policy in dispute here, which was issued in 1994.

There being no contractual, statutory, or common law basis upon which an owner of a renewable, term life insurance policy is entitled to receive notice of the right to renew beyond the notice in the policy itself, we are constrained to reverse the summary judgment entered below. We are not persuaded by Ms. Lovallo’s argument that, because premiums were paid during the original term by electronic funds transfers, the common law required additional notice of the right to renew the policy.

No other question is before us and we decide no other question in the case. We express no view, for example, on whether any communication between the parties constituted a request for renewal of the policy, or imposed any duty on Jackson National to seek clarification.

Reversed and remanded for further proceedings.

WOLF and BROWNING, JJ., concur.

      . After the expiration of the initial ten-year term, the policy could have been renewed, but the premiums would have increased dramatically. The former husband was aware of the right to renew the policy, but instructed the company not to renew it, some months before his demise.

        . See § 627.728(4)(a), Fla. Stat. (2008) ("No insurer shall fail to renew a [motor vehicle insurance] policy unless it mails or delivers to the named insured, at the address shown in the policy, and to the named insured's insurance agent at her or his business address, at least 45 days’ advance notice of its intention not to renew; and the reasons for refusal to renew must accompany such notice.”); § 627.4133(1)(a), Fla. Stat. (2008) ("An insurer issuing a policy providing coverage for workers’ compensation and employer’s liability insurance, property, casualty, except mortgage guaranty, surety, or marine insurance, other than motor vehicle insurance subject to s. 627.728, shall give the named insured at least 45 days' advance written notice of non-renewal or of the renewal premium.”). The principle of expressio unius est exclusio alteri-us, which means "the mention of one thing implies the exclusion of another,” Rotemi Realty, Inc. v. Act Realty Co., 911 So.2d 1181, 1187 (Fla.2005) (citing Grenitz v. Tomlian, 858 So.2d 999, 1002 (Fla.2003)), supports the conclusion that the Florida Legislature did not intend to obligate life insurance carriers to provide notice of the right to renew to holders of term life insurance policies.


text:
    Antonio D. VANN, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-4313.
    District Court of Appeal of Florida, Second District.
    May 6, 2009.
   WALLACE, Judge.

Antonio D. Vann filed a petition for writ of mandamus seeking to compel his former counsel, the Public Defender of the Thirteenth Judicial Circuit, to provide free of charge copies of everything in his case file. Although the public defender cannot be required to provide copies of the files prepared and maintained by counsel without adequate compensation, “transcripts that were prepared at public expense on behalf of an indigent defendant must be provided to the defendant without charge for copying.” Potts v. State, 869 So.2d 1223, 1225 (Fla. 2d DCA 2004) (citing Thompson v. Unterberger, 577 So.2d 684, 685-86 (Fla. 2d DCA 1991)). Similarly, a defendant is entitled to the return of any personal property that he or she provided to counsel. Id. Because Mr. Vann did not specifically request personal property or copies of transcripts, the circuit court correctly denied his petition. See Harrell v. State, 963 So.2d 359, 360 (Fla. 2d DCA 2007). We affirm the order denying the petition for writ of mandamus without prejudice for Mr. Vann to file a new request for the Public Defender to provide him with copies of specifically identified items that he is legally entitled to receive without charge.

Affirmed.

WHATLEY and LaROSE, JJ., Concur.


author: PER CURIAM.

text:
    Burnett C. HARRIS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-633.
    District Court of Appeal of Florida, Third District.
    May 6, 2009.
    Burnett C. Harris, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and CORTIÑAS and SALTER, JJ.
   PER CURIAM.

Affirmed. See Bannister v. State, 844 So.2d 767 (Fla. 3d DCA 2003).


text:
    Fermin TORRES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D09-887.
    District Court of Appeal of Florida, Third District.
    May 6, 2009.
    Fermín Torres, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before GERSTEN, C.J., and CORTIÑAS and SALTER, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.800(a). On appeal from a summary denial, this Court must reverse unless the post-conviction record, see Fla. R.App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R.App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the post-conviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


author: CIKLIN, J.

text:
    Ainslee R. FERDIE, Law Offices of Ainslee R. Ferdie, and Ferdie and Lones, Chartered, Appellants, v. Lawrence ISAACSON; Lori Isaacson; Promises 10, 11 & 12, Inc., a Florida corporation d/b/a Your Salon; and Peggy Gregorovic, Appellee.
    No. 08-1122.
    District Court of Appeal of Florida, Fourth District.
    May 6, 2009.

      Stuart A. Lones of Ferdie & Lones, Chartered, Coral Gables, for appellants.
    Joseph A. Sacher of Sacher, Zelman, Hartman, Paul, Beiley & Rolnick, PA., Miami, for appellees Lawrence and Lori Isaacson and Promises 10, 11 & 12, Inc.
   CIKLIN, J.

A law firm appeals a final summary judgment entered against its former client and two orders requiring the former client and the law firm itself to each pay 50% of the opposing party’s attorneys’ fees under section 57.105, Florida Statutes (2006). Because the trial court did not conduct an evidentiary hearing or otherwise make an express finding that the law firm was not acting in good faith, we must reverse the trial court’s order. We also reverse the trial court’s assessment of costs against the law firm because section 57.105 does not permit it.

Appellees Laurence Isaacson, Lori Isaacson, and Promises 10, 11, & 12, Inc. d/b/a Your Salon (collectively “the Isaac-sons”) hired Bernard Skuzinsky (who is not a party to this appeal) to work as a hair stylist and later promoted him to manager of the hair salon. According to Skuzinsky, in addition to making him manager, the Isaacsons verbally offered him a 50% ownership interest in the salon, which he accepted. The Isaacsons contended that at all relevant times, they had a 90% interest in the salon and a third party not involved in this action had a 10% interest.

Mr. Isaacson subsequently terminated Skuzinsky in a written letter (“the termination letter”) and enclosed two checks for hair styling and management services previously rendered. The termination letter expressly stated: “By depositing any and or all of these checks, you hereby release all monetary claims you or your wife, Janice Bates, may have in the past or in the future against us.” Skuzinsky deposited both checks. Shortly after Skuzinsky’s termination, the Isaacsons sold the salon. The sale did not result in a profit as all the proceeds went to pay a portion of the salon’s substantial debt.

In May of 2006, appellants Ainslee Fer-die, Esq., Ferdie & Lones Chartered, and Law Offices of Ainslee Ferdie (collectively “F & L”) filed a three-count complaint on behalf of Skuzinsky against the Isaacsons seeking a declaratory judgment regarding Skuzinsky’s ownership interest, seeking an accounting, and alleging fraud in connection with the purported verbal ownership agreement.

The Isaacsons filed a motion for summary judgment wherein they asserted the affirmative defense of accord and satisfaction and attached verified copies of the termination letter and of the cancelled checks cashed by Skuzinsky. On September 18, 2006, the trial court entered a final summary judgment of dismissal with prejudice based upon accord and satisfaction. Skuzinsky moved unsuccessfully for rehearing. Skuzinsky did not appeal the final summary judgment or the denial of rehearing.

In the summary judgment motion (granted by the court on September 18, 2006), the Isaacsons’ expressly reserved the right to seek section 57.105 attorneys’ fees unless F & L and its client withdrew the complaint within twenty-one days. Obviously, Skuzinsky did not withdraw the complaint. After the court granted their summary judgment motion, the Isaacsons filed a motion to impose “sanctions” which included 57.105 attorneys’ fees against both Skuzinsky and F & L.

The trial court conducted two hearings and entered two orders on the Isaacsons’ sanction motion. Following the first hearing, the court, on June 18, 2007, entered an order determining that the Isaacsons were entitled to attorneys’ fees. In so doing, the court found that Skuzinsky knew or should have known that the complaint “[w]as not supported by the material facts necessary to establish the claim” or “[wjould not be supported by the application of then-existing law to those material facts.” The court’s order directed the parties to appear for a second hearing on (1) “the amount of reasonable fees to be awarded” and (2) “whether the amount awarded is to be paid in equal amounts by [Skuzinsky] and his attorney.”

During the second hearing, the Isaac-sons’ counsel presented expert testimony pertaining to the reasonableness of the attorneys’ fees sought. In response, F & L elicited testimony from its own attorney fee expert. Following F & L’s presentation of expert testimony as to the reasonableness of the attorneys’ fees— and without more — the court terminated the proceedings explaining that it had reserved only thirty minutes for the hearing. When F & L explained it had an additional expert who would testify regarding the good faith exception under section 57.105, the court directed F & L to address this issue in an “initial” post-hearing memorandum. F & L complied by filing a memo and attaching numerous documents provided to F & L by Skuzin-sky and which, F & L claimed, supported a conclusion that Skuzinsky had a viable claim.

Apparently upon simply reviewing the evidence presented at the second hearing and F & L’s “initial” memorandum of law, the trial court, on February 21, 2008, awarded $15,988.75 in attorneys’ fees and $2,087.66 in costs to be paid equally by Skuzinsky and F & L. On March 17, 2008, F & L filed a notice of appeal from the trial court’s orders as well as from the original September 18, 2006 final summary judgment (and a October 26, 2006 order denying rehearing).

As a preliminary matter, this court lacks jurisdiction to consider the final summary judgment and the order denying rehearing because the latter was not appealed within thirty days. See Fla. RApp. P. 9.110(b) (In order to invoke this court’s jurisdiction, the appellant must file notice “with the clerk of the lower tribunal within 30 days of rendition of the order to be reviewed.”); E-Z Marine Supply, Inc. v. Wachovia Commercial Mortgage Inc., 875 So.2d 729, 730 (Fla. 4th DCA 2004) (“[A] motion for rehearing authorized by the Rules of Civil Procedure will suspend rendition of an order under the appellate rules.”) (citation omitted). Furthermore, the trial court’s decision to reserve ruling on attorneys’ fees did not toll the time in which to appeal the underlying judgment. See Ulrich v. Eaton Vance Distribs., Inc., 764 So.2d 731, 733 (Fla. 2d DCA 2000) (“[A] judgment on the merits of a suit is final and appealable even if it reserves jurisdiction to later determine either a party’s entitlement to an attorney’s fee award or the amount to be awarded.”)

This court does have jurisdiction to review the trial court’s June 18, 2007, order determining the Isaacsons’ right to sanctions and the February 21, 2008, order determining the amount (and the financial responsibility apportionment) because F & L appealed the latter order within thirty days. See Green v. Callahan, 664 So.2d 21, 23 (Fla. 4th DCA 1995) (A party does “not waive his right to contest the issue of entitlement on appeal by failing to appeal the order granting entitlement to attorney’s fees, because the postjudgment order awarding fees was not appealable until the amount of fees was determined.”)

In its order setting the amount and finding F & L 50% liable, the court made the following written findings:

This court finds that the award of attorney’s fees and costs pursuant to § 57.105, Fla. Stat., should be paid in equal amounts by plaintiff and his former counsel. Plaintiffs former counsel filed a post-hearing memorandum of law in which counsel argues that sanctions should not be awarded equally against plaintiff and counsel. However, this memorandum essentially attempts to re-litigate the issue of whether sanctions pursuant to § 57.105, Fla. Stat., should be imposed. This issue was decided by this court on June 18, 2007, when the Court granted defendant’s motion for sanctions.... Therefore this Court finds plaintiffs former counsel has not put forth a sufficient argument why attorney’s fees pursuant to § 57.105, Fla. Stat., should not be imposed equally between plaintiff and his former counsel.

When a trial court imposes liability against counsel for a fee award entered under section 57.105, it “must make [1] an express finding that the claim was frivolous and, ... [2] an express finding that the attorney was not acting in good faith based upon the representations of his client.” Perlman v. Ameriquest Mortgage Co., 987 So.2d 1292, 1292 (Fla. 4th DCA 2008) (emphasis supplied) (citing Valdes v. Lovaas, 784 So.2d 474 (Fla. 3d DCA 2001); Weatherby Assoc. Inc. v. Ballack, 783 So.2d 1138, 1143 (Fla. 4th DCA 2001)).

The trial court’s order finding the Isaacsons to be entitled to fees satisfied the first element in Perlman by including “an express finding that the claim was frivolous,” namely, “[Skuzinsky] knew or should have known that at the time he presented his claim, it was not supported by the material facts necessary to establish the claim and was not supported by the application of the law to those facts.” This finding is supported by competent substantial evidence that the Isaacsons had a complete defense in the form of accord and satisfaction.

However, because the court’s order does not include the required express finding as to the lack of good faith on the part of Skuzinsky’s counsel, the trial court failed to satisfy the second requirement in Perl-man.

A trial court’s decision under section 57.105(1) must be supported by competent substantial evidence; therefore, it follows that a full evidentiary hearing on the good faith issue is necessary. See Tobin v. Bursch, 977 So.2d 745, 747 (Fla. 3d DCA 2008) (holding that “[u]pon remand, the trial court is directed to hold an evi-dentiary hearing to determine whether ... [the losing party’s] attorney ‘acted in good faith, based on the representations of his or her client as to the existence of those material facts’ ”) (quoting § 57.105(1), Fla. Stat.)

The parties dispute whether the trial court has already afforded F & L a meaningful opportunity to be heard regarding the issue of good faith. A “full hearing” is one during which the party was “represented by counsel, examined witnesses, and had the opportunity to offer evidence.” Brinkley v. County of Flagler, 769 So.2d 468, 472 (Fla. 5th DCA 2000). In this case, F & L appeared at the hearing, which had been scheduled to address whether F & L would itself be responsible for a portion of the fees, with a witness prepared to testify that F & L relied on Skuzinsky’s representations in good faith when pursuing the underlying claim. Clearly, this testimony was relevant to the issue of F & L’s liability under section 57.105. F & L did not have a meaningful opportunity to offer this evidence because the court terminated the hearing.

The court attempted to rectify the situation by permitting F & L to file a post-hearing “initial” memorandum regarding the good faith exception. F & L complied and attached various documents which, presumably, it would have introduced had its expert been permitted to testify. By instructing counsel to submit “initial” memoranda, the court implied that F & L would have an opportunity to authenticate the attachments (or present additional evidence) at a subsequent hearing. Instead, the court, upon receipt and consideration of only the “initial” filings, entered the order awarding fees and costs and finding F & L liable under section 57.105.

Lastly, F «fe L correctly argues that the trial court erred in awarding the Isaac-sons $2,087.66 in costs to be paid equally by Skuzinsky and F <fe L. Section 57.105, Florida Statutes (2006) provides that “the court shall award a reasonable attorney’s fee to be paid to the prevailing party,” but makes no mention of costs, (emphasis supplied). See also Berman & Feldman v. Winn Dixie, Inc., 684 So.2d 320, 323 (Fla. 4th DCA 1996) (affirming an award of attorneys’ fees but reversing the portion for costs assessed because “section 57.105 does not provide for the imposition of costs against the losing party’s attorney”)

We reverse the portion of the order awarding costs. We also reverse the attorneys’ fee awards to the extent that they require F «fe L to pay 50%. This matter is remanded to the trial court to conduct an evidentiary hearing and, subsequently, either make the required finding regarding F «fe L’s lack of good faith reliance or deny the imposition of fees as to F & L.

Affirmed in part, reversed in part, and remanded.

POLEN and HAZOURI, JJ., concur.

      . Section 57.105(1), Florida Statutes (2006), provides:
      [T]he court shall award a reasonable attorney's fee to be paid to the prevailing party in equal amounts by the losing party and the losing party’s attorney on any claim ... in which the court finds that the losing party or the losing party's attorney knew or should have known that a claim ... when initially presented to the court or at any time before trial:
      (a) Was not supported by the material facts necessary to establish the claim or defense; or
      (b) Would not be supported by the application of then-existing law to those material facts.
      However, the losing party’s attorney is not personally responsible if he or she has acted in good faith, based on the representations of his or her client as to the existence of those material facts.

      . Section 57.105(4), Florida Statutes (2006), provides: "A motion by a party seeking sanctions under this section must be served but may not be filed with or presented to the court unless, within 21 days after service of the motion, the challenged paper, claim, defense, contention, allegation, or denial is not withdrawn or appropriately corrected.”

      . F & L appeared on its own behalf and Skuzinsky appeared pro se as F & L had successfully moved to withdraw as Skuzin-sky's counsel.

      . Section 57.105(2), Florida Statutes (2006), provides: "Paragraph (l)(b) does not apply if the court determines that the claim or defense was initially presented to the court as a good faith argument for the extension, modification, or reversal of existing law or the establishment of new law, as it applied to the material facts, with a reasonable expectation of success.”


author: FARMER, J.

text:
    Robert S. ROSE, Appellant, v. Constance A. ROSE, Appellee.
    No. 4D08-582.
    District Court of Appeal of Florida, Fourth District.
    May 6, 2009.

      Bradford J. Beilly and John Strohsahl of Bradford J. Beilly, P.A., Fort Lauderdale, for appellant.
    Hale Schantz of Schantz & Schantz, P.A., Weston, for appellee.
   FARMER, J.

A final judgment in 1994 dissolved the marriage of the parties, incorporating their marital settlement agreement (MSA). Under the MSA the parties agreed that he would pay her child support for each minor child until they “reach the age of majority, marry, die, graduate from high school or becomes self supporting, whichever occurs first.” [e.s.] One of their children reached the age of majority while in her senior year of high school. Three months before the child reached the age of 18, the mother brought a proceeding to modify child support to require him to continue to pay after the child had reached majority and until the child graduates from high school. The trial judge entered a summary judgment concluding that the child’s passage to majority while still in high school constitutes a substantial change not contemplated by the parties when they agreed to the MSA and jointly prayed for the court to incorporate their agreement into the final judgment. We reverse.

There is no ambiguity in the MSA and its consequent final judgment. The parties agreed that the occurrence of one of five singular events in the lives of a child' — majority, marriage, death, high school graduation, or self support — would terminate his duty of support. They explicitly agreed that any one of these events would end support if it was the first of the five variables to occur. In their five alternatives, they specifically listed both majority and graduation. It is simply a fiction to hold that these parents did not “contemplate” their child reaching the age of majority before graduation, when they specifically listed that very event as a possible terminating event.

The mother argues that the MSA is against public policy in this regard, citing § 743.07(2). She is mistaken. The policy of requiring parents to support their children is limited to their minority and dependency. The statute does not itself require the parent to continue to support the child after reaching majority while in the last year of high school. Rather it merely authorizes the court to do so if the statutory conditions are met. The MSA does not conflict with that policy by voluntarily ending his support when the child reaches the age of majority while still in school. Nothing in § 743.07(2) bars parents from providing, as these parents did, that his duty of support ends with the majority of the child even though secondary education is not yet complete. Even if the statute could be read to require prior court approval of such a MSA, in this instance the final judgment of dissolution of marriage must necessarily be deemed to have provided such approval.

She concedes that when they made the agreement the child was three years old and that she understood then that the child would reach majority in her senior year of high school. She argues, however, that the parties “misinterpreted” § 743.07(2). She adds she did not appreciate “the problem” until some two years after the final judgment. Assuming for the sake of argument that such a mistake of law (rather than fact) would support relief from the MSA and its consequent judgment, the father has already fully performed his duties under their agreement. The triggering event was only days away when she filed this proceeding 14 years after the judgment, and had already occurred by the time the court entered its summary judgment granting the relief. We find error in the trial court’s decision.

Reversed.

WARNER and DAMOORGIAN, JJ., concur.

      . § 743.07(2), Fla. Stat. (2007) ("[removing the disability of nonage for all persons 18 years of age] shall not prohibit any court of competent jurisdiction from requiring support for a dependent person beyond the age of 18 years when ... such person ... is still in high school, performing in good faith with a reasonable expectation of graduation before the age of 19”).

      . See BMW of N. Am. Inc. v. Krathen, 471 So.2d 585 (Fla. 4th DCA 1985), rev. denied, 484 So.2d 7 (Fla.1986) (holding that a party to a consent judgment who later filed a motion for relief under rule 1.540(b) was not entitled to relief because she misunderstood the legal meaning of the agreement).


author: DAMOORGIAN, J.

text:
    Kelly A. McGRATH, Appellant, v. Michael P. CARON, Appellee.
    No. 4D08-3955.
    District Court of Appeal of Florida, Fourth District.
    May 6, 2009.

      Kelly A. McGrath, Jupiter, pro se.
    Michael Caron, Vero Beach, pro se.
   DAMOORGIAN, J.

Kelly McGrath timely appeals the trial court’s non-final order on her motion for contempt alleging that Michael Caron had failed to meet his child support obligation. See Fla. R.App. P. 9.130(a)(4) (non-final orders entered after final orders on authorized motions are reviewable); Eggleston v. Eggleston, 751 So.2d 191, 191 (Fla. 4th DCA 2000). We reverse because the trial court erred by sua sponte reducing Caron’s child support obligation. Moreover, even assuming that Caron had requested a reduction in the amount of child support, the trial court faded to make the required findings for the downward modification of a child support obligation. See Pimm v. Pimm, 601 So.2d 534, 536 (Fla.1992); Harbin v. Harbin, 762 So.2d 561, 563 n. 2 (Fla. 5th DCA 2000).

McGrath and Caron are parents to two minor children. On August 14, 2003, they entered into an Agreed Final Judgment of Paternity to resolve a pending paternity action in connection with their children. The final judgment required Caron to pay child support in the amount of $569.00 per month. Caron also owed $2,779.00 in back child support and agreed to pay an additional $31.00 per month in order to satisfy the child support arrearage.

In May 2008, McGrath filed a Motion for Civil Contempt/Enforcement alleging that Caron had willfully failed to pay child support and arrearages, as required by the court’s several orders since June 1, 2007. The record on appeal does not reflect that Caron filed a response or a counter-petition. After a hearing on the motion, the trial court entered an order in which it found that Caron had failed meet his child support obligation since June 1, 2007. The court also found that Caron did not have the present ability to pay his support obligation, but did have the ability to pay $300 per month in twice-monthly installments. Accordingly, it reduced his child support obligation to this amount. The order also prohibited McGrath from filing motions for contempt or affidavits of delinquency so long as Caron met his reduced child support obligation.

McGrath raises several issues on appeal. First, she argues that the trial court erred by reducing Caron’s monthly child support obligation without a request from Caron for a downward modification. We agree.

“[A] court cannot modify a child support award unless the issue is presented ... with sufficient notice and an opportunity for the nonmoving party to be heard. Notice of a contempt proceeding does not provide sufficient notice that a court may modify a previously imposed child support obligation.” Dep’t of Revenue v. Leonardi, 696 So.2d 472, 472 (Fla. 2d DCA 1997) (citations omitted); see also Khan v. Dep’t of Revenue, 901 So.2d 992 (Fla. 4th DCA 2005) (noting that proper notice is “an essential part of the concept of due process”); Dep’t of Revenue v. Kiedaisch, 670 So.2d 1058 (Fla. 2d DCA 1996) (notice of contempt motion seeking child support arrearage did not constitute notice that the court might modify the child support order).

Even assuming that Caron had requested a reduction in the amount of child support, the trial court failed to find that there was a substantial change in circumstances, that the change was not contemplated at the time of the final judgment, and that the change is sufficient, material, involuntary, and permanent in nature. See Pimm, 601 So.2d at 536. While it is possible that Caron suffered a permanent change in his circumstances which was material and involuntary, thereby justifying the reduction of his monthly child support obligation, the trial court failed to make any findings to support such conclusion. The lack of findings regarding Caron’s change in circumstances precludes any meaningful review as to the correctness of the trial court’s conclusion. See Harbin, 762 So.2d at 563.

McGrath also argues that the trial court erred by failing to rule on her motion for contempt after having determined that Caron failed to pay child support since June, 2007. The only issue raised by the pleadings was whether Caron should be held in contempt for failing to pay child support and arrearages. McGrath was entitled to a ruling on that issue. Cf. Dileo v. Dileo, 939 So.2d 181, 184 (Fla. 5th DCA 2006) (in an order of contempt, the trial court must include factual findings reflecting the existence of a prior valid support order, the failure to pay all or part of that order, the present ability to pay, and the willful refusal of the offending parent to comply with the order).

Finally, McGrath argues that the trial court’s prohibition against her filing any further motions for contempt or affidavits of delinquency so long as Caron continues to pay $300 per month toward his child support obligation was error. Trial courts generally do not have the authority to restrict a litigant’s access to the courts, unless the litigant is abusing the legal process. See, e.g., § 68.093, Fla. Stat. (2008) (Florida’s Vexatious Litigant Law); Smith v. Fisher, 965 So.2d 205 (Fla. 4th DCA 2007) (holding that Florida’s Vexatious Litigant Law, section 68.093, Florida Statutes, is constitutional and remedies the problem of meritless litigation without unduly restricting the vexatious litigant’s access to courts); Sibley v. Sibley, 885 So.2d 980, 985-86 (Fla. 3d DCA 2004) (a court may require a frivolous litigant to be represented by counsel in future actions). In light of the court’s conclusion that Car-on failed to pay child support since June, 2007, McGrath’s motion was well taken. Accordingly, there was no basis to restrict McGrath’s access to the courts.

This matter is remanded for the trial court to rule on McGrath’s motion for contempt. We reverse the modification of child support payments contained in the order. Our holding is without prejudice to Caron to file a petition for modification of the amount of child support, prospectively.

Reversed and Remanded.

WARNER and STEVENSON, JJ., concur.

      . McGrath had previously filed a Petition for Modification. In response, Caron filed a Counter-Petition concerning shared parental responsibility, the children’s primary residence and child support. In February, 2008, the trial court entered an agreed order on the petition and counter-petition requiring Caron to continue to pay child support and arrearag-es as set out in the Agreed Final Judgment of Paternity.


author: STEVENSON, J.

text:
    Francis X. McCARROLL, Appellant, v. Daniel VAN DYK, Safe Hurricane Shutters, Inc. d/b/a Advanced Hurricane Protection, and Edward Leiva, Appellees.
    No. 4D08-4653.
    District Court of Appeal of Florida, Fourth District.
    May 6, 2009.

      Harry 0. Boreth of Glasser, Boreth & Kleppin, Plantation, for appellant.
    Andrew D. Wyman of Mattlin & Wy-man, PL, Boca Raton, for appellee Daniel Van Dyk.
   STEVENSON, J.

The defendants below appeal the trial court’s denial of their motion to transfer venue from Palm Beach County to Bro-ward County. We reverse and remand because the defendants established the propriety of venue in Broward County alone.

Daniel Van Dyk, a Palm Beach County resident, marketed and sold hurricane shutters for Safe Hurricane Shutters, Inc., a Florida corporation with its principal place of business in Broward County. In return, Van Dyk would receive commission payments from Safe Hurricane. In 2008, Van Dyk filed a complaint in Palm Beach County circuit court, alleging that Safe Hurricane failed to make commission payments he had earned. In addition to Safe Hurricane, the complaint named as defendants two principals of the corporation: Edward Leiva, a Broward County resident, and Francis McCarroll, a non-resident of Florida.

The determination of venue in Florida is relatively straightforward — actions shall be brought only in the county where the cause of action accrued, where the property in litigation is located, where the defendant resides, or, in the case of a domestic corporation, in the county where such corporation has, or usually keeps, an office for the transaction of its customary business. §§ 47.011, 47.051, Fla. Stat. (2008). In the instant case, there is no property in litigation, and the defendants either reside or keep an office for the transaction of customary business in Bro-ward County. In order to place venue in Palm Beach County, Van Dyk relied on the debtor-creditor venue rule, which provides that where payment of a debt is the performance called for by a contract, the residence of the payee is presumed to be the place of the required performance and thus where the cause of action accrues. James A. Knowles, Inc. v. Imperial Lumber Co., 238 So.2d 487, 487 (Fla. 2d DCA 1970).

A debtor can overcome the presumption that payment was to be made at the payee’s place of residence with sufficient evidence establishing a contrary course of conduct between the parties. Pinch-A-Penny, Inc. v. Mudd, 464 So.2d 719, 720 (Fla. 2d DCA 1985). In the instant case, the defendants filed a motion to transfer venue to Broward County accompanied by an affidavit in which defendant Leiva swore that since April 12, 2006, when Van Dyk entered into his contract of employment with Safe Hurricane, he had picked up all of his checks, including payroll, at Safe Hurricane’s headquarters in Broward County. Van Dyk presented no contrary affidavits or record evidence. Pursuant to Pinch-A-Penny, we find the cause of action accrued in Broward County-

Additionally, the debtor-creditor venue rule is inapplicable when the cause of action arises, as here, in an employment context. See Precision Software, Inc. v. Gauthier, 605 So.2d 592, 593-94 (Fla. 2d DCA 1992) (explaining that the severance provision in Gauthier’s contract was a condition of his employment with Precision, rendering his cause of action one for breach of contract, not suit on a debt). We find Precision Software could also place venue in Broward County.

Based on Leiva’s undisputed affidavit, venue lies in Broward County alone, so we reverse and remand.

Reversed and remanded.

WARNER and DAMOORGIAN, JJ., concur.

      . Notably, our supreme court has instructed that non-resident defendants, like McCarroll, are removed from the scope of section 47.011, Florida Statutes, and courts should apply that section to the resident defendants in order to make proper venue determinations. See Kauffman v. King, 89 So.2d 24, 26 (Fla.1956).


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. COUNTY LINE CHIROPRACTIC CENTER a/a/o Anasa Dexter, Respondent.
    No. 4D09-187.
    District Court of Appeal of Florida, Fourth District.
    May 6, 2009.

      Michael J. Neimand, Miami, for petitioner.
    Laura M. Watson, Fort Lauderdale, for respondent.
   PER CURIAM.

Petitioner United Automobile Insurance Company (United) brought this second-tier petition for writ of certiorari, challenging a Broward Circuit Court order, rendered in appellate capacity, which dismissed its appeal for failure to timely file an initial brief after multiple prior extensions of time. We grant the petition and quash the order of dismissal.

This case commenced when respondent County Line Chiropractic Center sued United in Broward County Court for breach of contract in a personal injury protection case, and obtained a final judgment against United for $45,000. United timely appealed to the Broward Circuit Court, and moved for extensions of time to file its initial brief five times from June 2008 to October 2008. The motions were granted. The sixth motion for extension of time, however, was denied by the circuit court in an order entered on December 5, 2008, finding an abuse of the appellate process and unnecessary delay. The circuit court directed United to file an initial brief within ten days, i.e., by December 15, 2008, or suffer dismissal of its appeal. On December 17, 2008, United filed a motion for relief from the December 5, 2008 order, alleging that it did not receive the order until after the ten-day period had expired, and that insufficient notice had been given. United filed its initial brief along with the motion for relief. The circuit court denied United’s motion for relief. The court subsequently dismissed the appeal for failure to file the brief within the ten-day period provided in the December 5, 2008 order.

Second-tier certiorari in this court calls for a determination of whether the circuit court afforded procedural due process and whether it applied the correct law. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523 (Fla.1995). It is reserved for cases in which there has been a violation of a clearly-established principle of law resulting in a miscarriage of justice. Ivey v. Allstate Ins. Co., 774 So.2d 679 (Fla.2000).

We find that petitioner has made the required demonstration of a violation of clearly-established principle of law and resulting miscarriage of justice in this case. Florida Rule of Appellate Procedure 9.410 entitles a party to ten days’ notice before the court can impose a sanction such as dismissal of the appeal. The circuit court order in this case providing the ten days’ notice was mailed to petitioner, the practical result of which was that, with time taken for ordinary mail delivery, petitioner had less than ten days’ notice. As well, petitioner’s counsel advised that he did not receive the order within the ten-day period.

"While we understand the frustration of the lower tribunal, especially in these times of limited judicial resources, dismissal is an extreme remedy reserved for the most flagrant violations of the rules. Irvin v. Williams, 736 So.2d 705 (Fla. 1st DCA 1999). Public policy favors courts deciding controversies on their merits, even when an untimely brief is filed. See United Auto. Ins. Co. v. Total Rehab & Med. Ctr., 870 So.2d 866 (Fla. 3d DCA 2004).

The harsh sanction of dismissal of the appeal is inappropriate in this case, as this was not a case of extreme, willful misconduct by petitioner or counsel, or an intentional disregard of court orders or appellate rules rising to the level of inexcusable neglect. See Kaloyios v. Regal Homes of Cent. Fla., Inc., 967 So.2d 1035 (Fla. 5th DCA 2007); Gillespie v. City of Destin, 946 So.2d 1195 (Fla. 1st DCA 2006).

While the appellate division of the circuit court has discretion in managing its docket, we conclude that petitioner has demonstrated a departure from the essential requirements of law resulting in a miscarriage of justice in this case. Therefore, we quash the order of dismissal and remand to the circuit court for further appellate proceedings.

STEVENSON, DAMOORGIAN and CIKLIN, JJ., concur.


text:
    PEPSI BOTTLING GROUP, INC., and Sedgwick Claims Management Services, Inc., Petitioners, v. Wanzell J. UNDERWOOD, Respondent.
    No. 1D08-6216.
    District Court of Appeal of Florida, First District.
    May 7, 2009.

      Richard Heinzman and Timothy A. Dun-brack of Kelley, Kronenberg, Gilmartin, Fichtel & Wander, Orlando, for Petitioners.
    No appearance for Respondent.
   PER CURIAM.

Petitioners seek a writ of certiorari quashing the Judge of Compensation Claims’ (JCC) order requiring them to schedule a medical evaluation to establish a maximum medical improvement (MMI) date, and permanent impairment rating (PIR). The purpose of determining this information was to establish the amount of income impairment benefits (IIBs) to which Respondent would be entitled for purposes of offsetting this amount against overpaid temporary total disability (TTD) benefits. Petitioners assert this order departs from the essential requirements of law, and complying with it would cause irreparable harm that cannot be remedied on appeal. We disagree, and deny the petition.

Factual Background

Respondent (who was unrepresented during the entire course of the proceedings below) suffered a compensable accident, underwent back surgery, and was paid TTD benefits. For reasons apparently unrelated to the accident, Respondent left his employ with Petitioners to work for a different employer. He began earning a salary from the new employer on July 5, 2005. For reasons not clear from the record, Petitioners continued to pay Respondent TTD benefits through January 29, 2006. Respondent was working this entire time. After learning of their error, Petitioners filed a motion for repayment of all TTD benefits paid during this period pursuant to section 440.15(12), Florida Statutes (2004). At a hearing on the motion, Petitioners also asserted the statute of limitations (SOL) had run on the claim.

The JCC granted the motion, but in so doing found Respondent had not yet been assigned an MMI date and PIR. The JCC found Respondent “would most likely be entitled to a physician-assessed [PIR],” and in such event, Respondent “would be entitled” to IIBs. Consequently, the JCC ordered Petitioners to schedule an evaluation for Respondent with the surgeon who operated on his back to determine the MMI date and PIR. The JCC decided that any IIBs Respondent would have been entitled to based on the PIR could be used as a credit against the overpayment of TTD benefits. The JCC reasoned this credit would simply reclassify as IIBs all or part of the TTD benefits already paid. In a motion for rehearing, Petitioners argued the JCC was not only awarding benefits Respondent was not seeking, and could not seek because the SOL had expired, but that complying with the order would result in a revival of the otherwise expired claim. This abrogation of their SOL defense, Petitioners argued, would cause irreparable harm that cannot be remedied on appeal.

Analysis

For a nonfinal workers’ compensation order to be renewable by certiorari, a petitioner is required to demonstrate that the order constitutes departure from the essential requirements of law, and would cause material harm that cannot be adequately remedied by appeal. See, e.g., Diestel v. Winfrey Plumbing, Inc., 668 So.2d 283, 284 (Fla. 1st DCA 1996). Irreparable harm is a condition precedent to invoking certiorari jurisdiction, that should be considered first. See Spry v. Prof'l Employer Plans, 985 So.2d 1187, 1188 (Fla. 1st DCA 2008).

Here, the JCC ordered Petitioners to schedule an evaluation for Respondent with his former surgeon for the purpose of determining his MMI date and PIR. This court has held that, at least for SOL purposes, the distinction between an “examination” and “treatment” should not be artificially and unrealistically made. See Barnett v. EMR Telemetry, 396 So.2d 791, 792 (Fla. 1st DCA 1981). To distinguish a “mere” examination from treatment, it is essential to examine not only the actual functions performed by the physician, but also the purpose of the physician’s examination. Id. If the purpose of the examination is solely for evaluation, with no treatment contemplated or authorized, the evaluation does not constitute remedial care for SOL purposes. Id. Consequently, Petitioners’ provision of the evaluation ordered by the JCC would not revive this claim, if in.fact the SOL has expired.

Whether the evaluation ordered by the JCC will result in a credit against overpaid TTD benefits is speculative because no PIR has been determined. Even if such a credit were assessed, it would simply be a reclassification of benefits Petitioners have already paid, not a payment of additional benefits. This calculation of the amount overpaid would itself be based on a medical evaluation that would not, on its own, revive a claim in which the SOL has expired. If a credit is assessed, Petitioners can challenge the order on appeal. Because any harm the JCC’s order may cause Petitioners can be remedied on appeal, Petitioners have failed to satisfy the irreparable harm requirement for establishing entitlement to a writ of certiorari. Accordingly, we need not consider whether the order departs from the essential requirements of the law. See Spry, 985 So.2d at 1188.

Conclusion

Because the JCC’s order would not result in irreparable harm that cannot be remedied on appeal, Petitioners’ petition for writ of certiorari is DENIED.

WOLF, KAHN, and VAN NORTWICK, JJ., concur.


author: BROWNING, J.

text:
    Paul Stanley PANTER, Appellant, v. STATE of Florida, Appellee.
    No. 1D08-1809.
    District Court of Appeal of Florida, First District.
    May 7, 2009.

      Nancy A. Daniels, Public Defender; and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General; and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   BROWNING, J.

Paul Stanley Panter pled nolo contende-re to charges of possession of a controlled substance (cocaine) and possession of drug paraphernalia (syringes, a spoon, and/or a smoking device), reserving his right to appeal the denial of his dispositive motion to suppress physical evidence and his admissions as the products of an illegal search. Because the State failed to prove that the deputy had a reasonable, well-founded, particularized suspicion of criminal activity to justify an investigatory stop, the trial court erred as a matter of law in denying the motion to suppress. See Walker v. State, 846 So.2d 643 (Fla. 2d DCA 2003); Messer v. State, 609 So.2d 164 (Fla. 2d DCA 1992) (concluding that officer lacked reasonable suspicion to stop defendant’s truck, even though officer had observed a person approach defendant as he sat in a truck in the driveway and the person appeared to pass something to defendant, but officer saw only arm movement and could not identify any object exchanged); Stanton v. State, 576 So.2d 925 (Fla. 1st DCA 1991); Dames v. State, 566 So.2d 51 (Fla. 1st DCA 1990); Peabody v. State, 556 So.2d 826 (Fla. 2d DCA 1990). Thus, we are constrained to reverse Panter’s convictions and sentences and remand with directions to grant the motion to suppress and to discharge him for these offenses.

The following facts were adduced at the suppression hearing. Deputy Wiggins testified that on August 2, 2007, he was parked on routine “neighborhood watch” patrol at the intersection of Pace and Mallory Streets around 3:00-3:30 p.m. when he observed two unknown men in a white van pull into the driveway of an address on Mallory. The deputy, who had been with the Escambia County Sheriffs Office for fewer than two years, knew of that neighborhood as a high-crime area where drugs are used. Viewing the scene from four or five city blocks away, Deputy Wiggins saw an unknown male exit a house, approach the driver’s side of the van, reach inside the vehicle, and engage in “a hand-to-hand transaction” of an unknown nature. The deputy did not actually see cash or drugs or anything else pass between the man standing outside and the driver during the episode. Relying on his training and experience, the deputy thought the transaction was suspicious because the man had come out of one of three “Habitat” houses in that block that have a history of narcotics sales. Deputy Wiggins testified there is “a certain way that they do hand-to-hand exchanges,” but he did not elaborate on what it is.

As the van drove off, the deputy followed it about six blocks until the vehicle parked at Beer City, a convenience store on Pace. Deputy Wiggins parked his patrol vehicle a car length or two behind the van so as not to block the van from leaving. He did not observe any traffic infraction; he denied having used his blue lights when he initially made contact with the parked van in the Beer City parking lot.

When the driver (whom the deputy identified in court as Panter) exited the van, Deputy Wiggins got out of his patrol car and made contact with him. When the deputy asked if he had some identification, Panter answered affirmatively. When the deputy sought permission to search him, Panter gave oral consent. Deputy Wiggins did not find any contraband on Pan-ter’s person. The deputy then asked for permission to search the passenger, Mr. Meyers, who gave oral consent. Warrants checks on the two men came back negative. When Deputy Wiggins asked for consent to search the van, the registered owner, Meyers, said “no.” Deputy Wiggins informed Panter and Meyers that he would have to call the K-9 unit. That is when he radioed for assistance from Deputies Levenseller and Crossley, the latter of whom was a canine handler.

Three to five minutes later, Deputy Crossley and the police dog arrived. After the dog was released from the patrol vehicle and “alerted” on the van, Deputy Le-venseller searched the van and found a black nylon pouch containing syringes and cocaine. Panter and the passenger were taken into custody and given their rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), after which Panter voluntarily admitted the nylon pouch was his. The testimony of the other two deputies is consistent with Deputy Wiggins’, except for an immaterial factual conflict as to whether the blue lights were engaged.

The prosecutor argued that Deputy Wiggins’ observation of the hand-to-hand movement outside a known narcotics house created a reasonable, founded suspicion supported by articulable facts that criminal activity was afoot, justifying a temporary detention in the Beer City parking lot to investigate whether a drug offense had occurred. See § 901.151(2), Fla. Stat. (2007) (“Stop and Frisk Law”); United States v. Sokolow, 490 U.S. 1, 7, 109 S.Ct. 1581, 104 L.Ed.2d 1 (1989); Terry v. Ohio, 392 U.S. 1, 30-31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968); Popple v. State, 626 So.2d 185, 186 (Fla.1993).

The defense asserted that Deputy Wiggins lacked a founded suspicion of criminal activity to justify an investigatory stop and detention of Panter and his passenger, both of whom were previously unknown to the deputy. Alternatively, once the identification and warrants checks came back clear and Meyers refused the request to search the van, the police no longer had any lawful basis to detain the men. Nevertheless, Deputy Wiggins informed Pan-ter and Meyers that he had to call the K-9 unit. Defense counsel argued that under these circumstances, where the K-9 unit had been called, and irrespective of whether the blue lights were on, the men were “seized” for Fourth-Amendment purposes, so that a reasonable person would not have felt free to end the encounter and leave. See Popple, 626 So.2d at 188. In fact, the environment was such that any reasonable person would have feared that if he or she left, a charge of obstructing justice might be brought. On that ground, the defense contended that the prolonged detention, including the search of the van, was illegal, so that the fruits of the improper detention and search should have been suppressed. See Dames, 566 So.2d at 52.

The trial judge denied the motion to suppress, concluding that Deputy Wiggins had a reasonable suspicion that the hand-to-hand transaction involved criminal activity, that he had a lawful basis to perform a brief investigatory stop, and that Panter and Meyers were free to leave the site even after the deputy informed them that he had to call the K-9 unit. Judge Terrell accepted Panter’s plea of nolo contendere to the charges and placed him on probation.

“The trial court’s ruling on a motion to suppress is a mixed question of law and fact.” Brye v. State, 927 So.2d 78, 80 (Fla. 1st DCA 2006). We review the trial court’s ruling denying a motion to suppress to determine whether competent, substantial evidence supports the factual findings. See Huffman v. State, 937 So.2d 202, 205 (Fla. 1st DCA 2006).

[M]ixed questions of law and fact that ultimately determine constitutional rights are to be reviewed by the appellate courts applying a two-step approach. Deference is to be shown to the trial court on questions of historical fact, but de novo review of the application of a constitutional standard to the facts in a particular case is proper.

Brye, 927 So.2d at 80-81; see United States v. Bajakajian, 524 U.S. 321, 336 n. 10, 118 S.Ct. 2028, 141 L.Ed.2d 314 (1998); Ornelas v. United States, 517 U.S. 690, 696-99, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996); Huffman, 937 So.2d at 205-06. We must view the evidence and all reasonable deductions and inferences in a manner most favorable to sustaining the ruling. See Pagan v. State, 830 So.2d 792, 806 (Fla.2002). In Florida, when ruling on search and seizure issues, courts are required by the conformity clause in article I, section 12 of the Florida Constitution to follow the applicable United States Supreme Court precedents. See Holland v. State, 696 So.2d 757, 759 (Fla.1997); Brye, 927 So.2d at 80. In evaluating the legality of the officers’ actions, we must examine the facts available to the officers and the totality of the circumstances to determine whether they had a particularized, objective basis to suspect criminal activity. See United States v. Arvizu, 534 U.S. 266, 273, 122 S.Ct. 744, 151 L.Ed.2d 740 (2002); Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983); Hilton v. State, 961 So.2d 284, 294 (Fla.2007).

After review, we conclude that Panter’s position is well-founded. The deputy did not have a reasonable, well-founded, particularized suspicion of criminal activity to justify an investigatory stop. See Terry, 392 U.S. at 30-31, 88 S.Ct. 1868. Because Deputy Wiggins was not justified in conducting the investigatory stop, the trial court erred in denying the dispositive motion to suppress. We REVERSE the judgment and sentence and REMAND WITH DIRECTIONS to the trial court to grant the motion to suppress and to discharge Panter for these offenses.

WOLF and BENTON, JJ., concur.


author: HAWKES, C.J.

text:
    Canom WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D07-6077.
    District Court of Appeal of Florida, First District.
    May 7, 2009.
    Nancy A. Daniels, Public Defender, and Alice B. Copek, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   HAWKES, C.J.

Appellant challenges his convictions and sentences for trafficking cocaine, possession of marijuana with the intent to distribute, and resisting an officer without violence. We affirm Appellant’s convictions without comment and write only to address the propriety of Appellant’s sentences. Appellant argues the trial court improperly relied on charges of which he was acquitted when sentencing him. We find this argument persuasive, vacate Appellant’s sentences, and remand for resen-tencing.

Appellant’s argument focuses on the following comments made by the trial court at sentencing:

You have what has to be considered a long career in court. You have had a .historic career because, essentially, you have acquired the nickname of the Teflon Don of Bay County Jurisprudence. You’ve been to trial any number of times and the jury has found you not guilty.
Most recently, I presided over a case where you were charged with burglary of a dwelling and sexually [sic] battery. The jury in that case found you not guilty even though the DNA sample in that case made it abundantly clear that you’re about the only person on the face of the earth that could have done that. The, the sad part of it was that the jury wasn’t told the whole story there, that the, the complaining victim was, your drug dealer, your drug supplier’s girlfriend and that you and your confederate were there looking for a rip off opportunity, and when that didn’t materialize, you opted for the second best. The jury found you not guilty. I don’t believe that means that you are innocent.
Okay. Asking for, you know, the minimum for you. The, there are people, however, that come before the Court that are dangerous people, people doing dangerous things. Your history here, [ ] is speckled with violence, firearms, aggravated assault type things and batteries and all, and so in looking at all these things, I’ve come to the conclusion that you do dangerous things.

After the above colloquy, the trial court sentenced Appellant to the statutory maximum for all three charges.

Generally, a sentence within the statutory limits is not subject to appellate review. See Howard v. State, 820 So.2d 337, 339 (Fla. 4th DCA 2002). However, an exception is made where the record indicates the trial court considered prior arrests not resulting in convictions when determining a defendant’s sentence. See Berry v. State, 458 So.2d 1155, 1156 (Fla. 1st DCA 1984) (holding a trial court’s consideration of a defendant’s prior acquittals during sentencing warranted resentenc-ing). When portions of the record show the trial court relied upon prior acquittals in determining a defendant’s sentence, the State has the burden to demonstrate those considerations “played no part in the sentence imposed.” See Doty v. State, 884 So.2d 547, 549 (Fla. 4th DCA 2004) (quoting Epprecht v. State, 488 So.2d 129, 131 (Fla. 3d DCA 1986)).

Based on remarks made during the sentencing hearing, the trial court appears to have relied on Appellant’s prior acquittals in sentencing him. The State has failed to assert a persuasive argument showing the court did not consider Appellant’s prior acquittals during sentencing. Accordingly, we AFFIRM Appellant’s convictions but VACATE his sentences and REMAND for resentencing.

VAN NORTWICK and BROWNING, JJ., concur.


author: ALTENBERND, Judge.

text:
    LAKELAND REGIONAL MEDICAL CENTER, a Florida corporation, Petitioner, v. Alexis Leigh NEELY, a minor, by and through her parents, Ronica and Bryan NEELY; Ronica and Bryan Neely, individually; Gracia Maria Damian, M.D.; and Lakeland OB-GYN, P.A., Respondents.
    No. 2D08-4102.
    District Court of Appeal of Florida, Second District.
    May 8, 2009.
    Kelly Jo Lamb and Lisa L. Cullaro of Morgan, Lamb, Goldman & Valles, P.A., Tampa, for Petitioner.
    Christopher V. Carlyle and Shannon McLin Carlyle of The Carlyle Appellate Law Firm, The Villages; and Franklin B. Glinn of Glinn & Somera, P.A., Miami, for Respondents.
    Stephen H. Grimes and Jerome W. Hoffman of Holland & Knight LLP, Tallahassee, for Amicus Curiae Florida Hospital Association.
    Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach; and Lincoln J. Connolly of Rossman, Baumber-ger, Reboso, Spier & Connolly, P.A., Miami, for Amicus Curiae Florida Justice Association.
   ALTENBERND, Judge.

Lakeland Regional Medical Center (LRMC) petitions this court for a writ of certiorari quashing an order of the trial court that required LRMC to produce twelve reports of adverse medical incidents prepared in accordance with Florida law. LRMC submits that these reports are protected from disclosure by the common law work product doctrine. Constrained by the Florida Supreme Court’s decision in Florida Hospital Waterman, Inc. v. Buster, 984 So.2d 478 (Fla.2008), we determine that the trial court did not depart from the essential requirements of the law in ordering the production of reports of adverse medical incidents prepared in anticipation of litigation. We accordingly deny the petition.

In the cause of action before the trial court, Roñica and Bryan Neely, on behalf of their daughter, have presented allegations of medical malpractice against Dr. Gracia Damian and Lakeland OB-GYN. Dr. Damian and her clinic use the facilities of LRMC for deliveries and surgery. In May 2008, the Neelys served a subpoena duces tecum on LRMC seeking several categories of medical records. One category consisted of records of reports of adverse medical incidents involving Dr. Damian, which the Neelys requested based on article X, section 25, of the Florida Constitution, titled “Patients’ right to know about adverse medical incidents” and commonly known as Amendment 7. LRMC objected to the production, filed a privilege log identifying fourteen reports, and moved for a protective order, asserting the reports were protected under the work product doctrine because they had been prepared in anticipation of litigation. After conducting a hearing on the issue in July 2008, the trial court denied LRMC’s motion for a protective order and effectively required LRMC to produce twelve of the fourteen reports of adverse medical incidents.

As this court has recognized, “[c]ertiorari review ‘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.’ ” Harley Shipbuilding Corp. v. Fast Cats Ferry Serv., LLC, 820 So.2d 445, 448 (Fla. 2d DCA 2002) (quoting Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995)). Thus, “a petition for writ of certiorari is appropriate to remedy situations in which hospitals have been wrongly ordered to disclose statutorily privileged documents.” Tarpon Springs Gen. Hosp. v. Hudak, 556 So.2d 831, 832 (Fla. 2d DCA 1990).

In seeking reports of adverse medical incidents, the Neelys rely on the ballot initiative known as Amendment 7, which was approved by the voters on November 2, 2004, and codified as article X, section 25, of the Florida Constitution. Before the passage of Amendment 7, Florida law, by statute, restricted discovery in a civil or administrative action of investigations, proceedings, and records of a health care provider’s review of its staff members and physicians. See §§ 395.0191(8), .0193(8), 766.101(5), Fla. Stat. (2007). The legislature granted these protections to health care providers in conjunction with, and in order to foster, state-mandated peer review requirements. See generally Holly v. Auld, 450 So.2d 217 (Fla.1984). Against this backdrop of statutory protections, the Florida Constitution now provides that a patient has “a right to access any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” Art. X, § 25(a), Fla. Const.

LRMC argues that Amendment 7’s application does not extend to records protected under the common law work product doctrine. Specifically, LRMC contends that Amendment 7 was not intended to apply to materials protected by the work product doctrine and that the Amendment’s retroactive application to preexisting reports of adverse medical incidents would violate the Florida Constitution. We conclude that these arguments are foreclosed by the supreme court’s decision in Buster.

In Buster, the Florida Supreme Court addressed Amendment 7’s application to existing medical records protected under sections 395.0191(8), 395.0193(8), and 766.101(5), as referenced above. 984 So.2d at 486. As broadly construed by the court in Buster, Amendment 7 “removefs] any barrier to a patient’s discovery of adverse medical incident information, including the peer review protections provided by the statute.” Amisub N. Ridge Hosp., Inc. v. Sonaglia, 995 So.2d 999, 1001 (Fla. 4th DCA 2008).

In reaching its conclusion, the supreme court in Buster employed the two-part ret-roactivity analysis of Dade County v. Chase Federal Housing Corp., 737 So.2d 494 (Fla.1999). Under the first part of this analysis, the court read Amendment 7 as intended to apply to existing medical records protected from discovery “by overriding and supplanting existing statutory provisions that limited access.” 984 So.2d at 488. Turning to the second part of its retroactivity analysis, the court determined that Amendment 7 could be constitutionally applied to preexisting records because the statutes protecting such records did not establish a substantive, vested right on which medical providers could rely. Id. at 490. The court thus concluded that the Amendment provided access to existing histories of adverse medical incidents. Id. at 492.

The supreme court’s analysis in Buster controls our determination in this case that the trial court did not depart from the essential requirements of the law. First, like the statutory privileges at issue in Buster, work product materials are not exempted under the language of Amendment 7. The court summarized Amendment 7 as intended to “do away with existing restrictions on a patient’s right to access a medical provider’s history of adverse medical incidents and to provide a clear path to access those records.” Id. at 489. We find no basis to except work product materials from the reach of Amendment 7 as interpreted in Buster.

Second, the work product doctrine is a creation of the common law, first identified by the United States Supreme Court in Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947), and adopted by the Florida Supreme Court in Atlantic Coast Line R.R. Co. v. Allen, 40 So.2d 115 (Fla.1949). As a product of case law, the doctrine grants health care providers no more of a vested, substantive right than the statutory privileges at issue in Buster. Thus, the trial court’s order permitting discovery of adverse medical incident reports that LRMC contends are protected work product is consistent with Amendment 7 as interpreted by the Florida Supreme Court in Buster.

LRMC observes that some of these reports, in all probability, contain statements, opinions, and other information provided by sources who reasonably believed that their identities would not be readily available in litigation except to the lawyers representing LRMC. Admittedly, records prepared in anticipation of litigation are prepared by clients, at least in part, to assist lawyers. LRMC essentially argues that the fact these records are prepared in anticipation of litigation by health care professionals does not necessarily transform them into the type of records the electorate intended to make available for patients. At least as it relates to these incident reports, we conclude these arguments do not override the reasoning in Buster.

Accordingly, we deny LRMC’s petition for writ of certiorari. Because this issue affects litigation throughout the state, as well as rules of procedure promulgated by the supreme court, we certify the following question of great public importance:

DOES THE RIGHT OF ACCESS GRANTED PURSUANT TO AMENDMENT 7, CODIFIED AS ARTICLE X, SECTION 25, OF THE FLORIDA CONSTITUTION, PREEMPT THE COMMON LAW WORK PRODUCT DOCTRINE AS IT APPLIES TO EXISTING REPORTS OF ADVERSE MEDICAL INCIDENTS?

CASANUEVA and SILBERMAN, JJ., Concur.

      . See §§ 395.0191, .0193, 766.101, .1016, Florida Statutes (2007).

      . LRMC does not argue that this case involves documents prepared or produced at the specific request of the client's attorney for use in litigation. Thus, this opinion does not address the impact of Amendment 7 and Buster on such attorney-client communications between health care professionals and their attorneys.