author: CLARK, J.

text:
    WELLS FARGO BANK, N.A. As Trustee for the Holders of SASCO 2007-MLN1, Appellant, v. Darren D. REEVES and Melissa Reeves, Appellees.
    No. 1D11-2923.
    District Court of Appeal of Florida, First District.
    June 13, 2012.
    Rehearing Denied July 24, 2012.

      Joseph Poklemba and Manuel Santiago Hiraldo of Blank Rome LLP, Boca Raton, for Appellant.
    Sharon Delene Regan of Regan & Roark, Pensacola and Gregory B. Wilhelm of Martinez & Wilhelm, PA, Gulf Breeze, for Appellees.
   CLARK, J.

This court must decide whether the trial court abused its discretion by dismissing with prejudice a mortgage foreclosure action based upon defenses raised in a motion to dismiss. The defendants asserted in their motion that the plaintiff, Wells Fargo Bank, N.A. as Trustee for the Holders of SASCO 2007-MLN1, filed the foreclosure complaint without attaching a document required by the circuit court’s administrative order governing foreclosure actions; committed fraud upon the court by pleading false allegations of its identity and existence; filed the action without standing and capacity to do so; and conducted trust business (filing the lawsuit) without complying with section 660.27, Florida Statutes. Based upon the complaint, the defense motion, and arguments of counsel, the trial court found that Wells Fargo had committed all the violations as argued by the defense, including fraud upon the court. The dismissal of the foreclosure action with prejudice was a sanction for this fraud upon the court.

Dismissal of an action as a sanction for a party’s fraudulent conduct during the litigation is reviewed for abuse of discretion. Distefano v. State Farm Mut. Auto. Ins. Co., 846 So.2d 572 (Fla. 1st DCA 2003). The power to dismiss a case for fraud upon the court “is an extraordinary remedy found only in cases where a deliberate scheme to subvert the judicial process has been clearly and convincingly proved.” Bologna v. Schlanger, 995 So.2d 526, 528 (Fla. 5th DCA 2008). A court certainly “possesses the authority to protect judicial integrity in the litigation process.” Pino v. Bank of New York, 57 So.3d 950, 954 (Fla. 4th DCA 2011). However, the authority to dismiss actions for fraud or collusion “should be used ‘cautiously and sparingly,’ and only upon the most blatant showing of fraud, pretense, collusion, or other similar wrong doing.” Granados v. Zehr, 979 So.2d 1155, 1157 (Fla. 5th DCA 2008).

Fraud upon the court is an egregious offense against the integrity of the judicial system and is more than a simple assertion of facts in a pleading which might later fail for lack of proof. As defined in Cox v. Burke, 706 So.2d 43, 46 (Fla. 5th DCA 1998) (affirming dismissal for fraud upon the court):

The requisite fraud on the court occurs where it can be demonstrated, clearly and convincingly, that a party has sen-tiently set in motion some unconscionable scheme calculated to interfere with the judicial system’s ability impartially to adjudicate a matter by improperly influencing the trier of fact or unfairly hampering the presentation of the opposing party’s claim or defense.

To support dismissal for fraud on the court, “[t]he party alleging fraudulent behavior must prove such by clear and convincing evidence.” Distefano, 846 So.2d at 574; see also Granados, 979 So.2d at 1157. Inartful pleadings, inconsistent testimony, and even lying to the court by a witness are generally insufficient to support a dismissal for fraud upon the court.

Here, the trial court found the plaintiffs allegations in the complaint— that the plaintiff owned the mortgage and note and that it brought the suit in its capacity as a valid securitized trustee— constituted fraud upon the court. Assertions in a motion to dismiss the complaint do not provide an evidentiary basis for finding fraud upon the court. The trial court’s dismissal of this case with prejudice is not supported by clear and convincing evidence advanced by the defendants of sufficiently unconscionable, deceitful conduct by the plaintiff. Dismissal with prejudice due to fraud upon the court was thus an abuse of the trial court’s discretion.

The other grounds relied upon by the trial court to dismiss this cause with prejudice were also not sufficient to support dismissal with prejudice at this stage of the litigation.

The defendants’ challenges to Wells Fargo’s status as a legal entity and to its capacity to sue on behalf of trustees were not properly raised via the motion to dismiss. When a defendant seeks to challenge “the legal existence of any party, the capacity of any party to sue ... or the authority of a party to sue ... in a representative capacity, that party shall do so in a specific negative averment which shall include such supporting particularities as are peculiarly within the pleader’s knowledge.” Fla. R. Civ. P. 1.120(a). A complaint is not required to contain an averment of “the capacity of a party to sue ... the authority of a party to sue ... in a representative capacity, or the legal existence of an organized association of persons that is made a party, except to the extent required to show the jurisdiction of the court.” Fla. R. Civ. P. 1.120(a). Accordingly, the defendants’ specific negative averments regarding Wells Fargo’s status as a legal entity and its capacity to bring suit are properly raised in a responsive pleading (answer) by denying the particular paragraphs of the complaint contested by the defendants and by asserting any applicable affirmative defenses, not by a pre-answer “motion for fraud upon the court.” See Fla. R. Civ. P. 1.110(c) & 1.140(b).

Likewise, lack of standing is an affirmative defense. Phadael v. Deutsche Bank Trust Co. Americas, 83 So.3d 893 (Fla. 4th DCA 2012). Generally, this affirmative defense must be asserted in the responsive pleading and the issue is then determined upon evidence presented or the party’s inability to produce sufficient evidence of its standing. Wells Fargo’s compliance or failure to comply with section 660.27, Florida Statutes, is also a possible affirmative defense or counterclaim which would be determined upon averments of fact in a responsive pleading and sufficient proof of those facts. This issue was not properly before the trial court at the pre-answer stage of the litigation.

Finally, Wells Fargo’s failure to attach to its complaint a document required by the court’s administrative order is insufficient to support dismissal with prejudice without granting an opportunity to attach the document in an amended complaint. “The public policy of Florida favors liberality in permitting amendments to pleadings so that the resolution of disputes will be on their merits.” Dimick v. Ray, 774 So.2d 830, 833 (Fla. 4th DCA 2000); Fla. R. Civ. P. 1.190(a). Failure to attach a required document can easily be remedied by amendment of a complaint and is not, in itself, justification for the harsh sanction of dismissal with prejudice.

For all the foregoing reasons, the order granting the motion to dismiss, with prejudice, and the final order dismissing the case with prejudice, are reversed. This cause is remanded for further proceedings.

DAVIS and ROWE, JJ., concur.

      . The defendants’ omnibus motion was entitled "Defendants, Darren D. Reeves and Melissa Reeves’ Motion for Failure to Comply With Administrative Order Number 2009-18 Re: Mediation: Case Management Order and Mandatory Referral of Residential Mortgage Foreclosure Cases to Mediation, Motion for Fraud on the Court and Request for Formal Evidentiary Hearing (Non-telephonic) and Motion to Dismiss/Abate Action.”

      . In addition, fraud upon the court by a lawyer is a serious breach of the rules of professional conduct which the court would be obligated to report to the appropriate regulating authority. See R. Regulating Fla. Bar 4-3.3 & 4-3.4; Code of Jud. Conduct Cannon 3D(2).


source: Caselaw Access Project

author: BENTON, C.J.

license: Public Domain

text:
    Allan Edward OVERTON, Former Husband, Appellant, v. Kathy Lynn OVERTON, Former Wife, Appellee.
    No. 1D11-5854.
    District Court of Appeal of Florida, First District.
    June 14, 2012.
    Rehearing Denied July 24, 2012.
    See also, 34 So.3d 759.

      Michael T. Webster of Michael T. Webster, P.A., Shalimar, for Appellant.
    Anthony C. Bisordi of Bisordi & Bisordi, P.A., Shalimar, for Appellee.
   BENTON, C.J.

Allan Edward Overton appeals the final judgment that denied his counter petition for modification of alimony. In denying the relief he sought, the trial court found that, although Kathy Lynn Overton, his former wife, cohabited with a third party, with whom she was in a supportive relationship within the meaning of section 61.14(l)(b), Florida Statutes (2010), the supportive relationship did not require or justify a reduction or termination of alimony because her “substantial needs” for economic support persisted. We affirm.

Mr. Overton argues that the trial court erred as ' a matter of law in failing to reduce or terminate the alimony award. In part, he relies on our opinion on Mrs. Overton’s appeal of the original alimony award, Overton v. Overton, 34 So.3d 759 (Fla. 1st DCA 2010) (Overton I), where we cited French v. French, 4 So.3d 5 (Fla. 4th DCA 2009). We said:

A supportive relationship is a relationship that “takes the financial place of a marriage and necessarily decreases the need of the obligee.” French, 4 So.3d at 6. Section 61.14(l)(b) recognizes the economic support that occurs when independent individuals cho[o]se to live together. Such support is equivalent to a marriage and requires a reduction in alimony. See id. at 8.

Overton I, 34 So.3d at 761. In Overton I, however, we had for decision only the question of whether the trial court had properly determined that Mrs. Overton was actually in a supportive relationship. Our citation to French in obiter dicta notwithstanding, we did not reach the question of whether a court must reduce or terminate alimony if it properly determines that a supportive relationship exists.

In fact, we had previously expressly held that, when deciding whether to reduce or terminate alimony under section 61.14(l)(b), the trial court must evaluate the parties’ economic circumstances in each case. See Bagley v. Bagley, 948 So.2d 841, 841 (Fla. 1st DCA 2007) (rejecting the former husband’s argument that “because it was shown that the [former wife] was in a ‘supportive relationship’ the court should not have considered [her] financial need in deciding whether to modify the alimony,” deciding instead that “financial circumstances remain pertinent”). See also Buxton v. Buxton, 963 So.2d 950, 953-56 (Fla. 2d DCA 2007) (holding that “[i]f the trial court concludes that a ‘supportive relationship’ exists, the trial court has the discretion to reduce or terminate the alimony obligation,” and that the economic factors enumerated in section 61.08(2) apply to modification proceedings under section 61.14(1)(b)).

In the present case, the trial court found that Mrs. Overton was in a supportive relationship, but also made detailed and extensive findings that the relationship had no net effect on her need for alimony. Under controlling authority, the trial court acted properly in “considering] [Mrs. Overton’s] financial need.” Bagley, 948 So.2d at 841. The parties’ financial circumstances remain pertinent when a supportive relationship exists. On this point, we agree with the Second District’s opinion in Baumann v. Baumann, 22 So.3d 719, 721 (Fla. 2d DCA 2009). See also Morris v. Morris, 42 So.3d 341 (Fla. 5th DCA 2010) (affirming exercise of discretion in terminating alimony for former spouse in a supportive relationship). We also certify conflict with French. The statute plainly contemplates an exercise of discretion: “The court may reduce or terminate an award of alimony upon specific written findings by the court that since the granting of a divorce and the award of alimony a supportive relationship has existed between the obligee and a person with whom the obligee resides.” § 61.14(1)(b)1., Fla. Stat. (2010) (emphasis supplied).

Affirmed, and conflict certified.

THOMAS and SWANSON, JJ., concur.


author: ROTHENBERG, J.

text:
    The REAL ESTATE VALUE COMPANY, INC., etc., Appellant, v. CARNIVAL CORPORATION, etc., Appellee.
    No. 3D11-1618.
    District Court of Appeal of Florida, Third District.
    June 20, 2012.
    Rehearing Denied July 19, 2012.

      Criden & Love, P.A., and Michael E. Criden, Kevin B. Love, and Jason G. Andrew; and The Saunders Law Firm, and Terry Rose Saunders and George L. Saunders, for appellant.
    Bilzin Sumberg Baena Price & Axelrod, LLP, and Marty Steinberg; and Hunton & Williams, LLP, and Jamie Zysk Isani, Melissa Levit, and David B. Massey, for appellee.
    Before SUAREZ, ROTHENBERG and EMAS, JJ.
   ROTHENBERG, J.

THE FACTUAL AND PROCEDURAL BACKGROUND

The Real Estate Value Company (“TRIP$”) appeals from a final summary judgment entered in favor of Carnival Corporation (“Carnival”) as to all counts in TRIP$’s second amended complaint. For the reasons that follow, we affirm the judgment in its entirety.

This case centers around a business dispute between TRIP$ and Carnival. In 1995, TRIP$ and Carnival entered into a written contract (the “TRIP$-Carnival Contract”), pursuant to which TRIP$ was authorized to offer patrons individually numbered TRIP$ discount certificates valid on specified Carnival cruises. The TRIP$ discount certificates provided for a savings of $50 per cabin ($25 per guest based on double occupancy) on three and four day cruises, and $100 per cabin ($50 per guest based on double occupancy) on seven day cruises. The TRIP$ discounts could be redeemed during the booking process by presenting the distinct code number located on the TRIP$ certificates. Carnival agreed to track all bookings generated through the TRIP$ discount certificate program, and to pay TRIP$ a specified marketing allowance based on the number of such bookings.

The dispute arose when Carnival subsequently entered into promotional discount agreements with the American Association of Retired Persons (“AARP”) on October 1, 1996, and AARP Services, Inc. (“ASI”), on June 1, 2001 (collectively, “the AARP discount programs”). TRIP$ took the position with Carnival that, pursuant to the TRIP$-Carnival Contract, TRIP$ was contractually entitled to a marketing allowance for bookings generated through the AARP discount programs. Like the TRIP$ discount program, the AARP discount programs provided for discounts of $50 per cabin ($25 per guest based on double occupancy) on three and four day cruises, and $100 per cabin ($50 per guest based on double occupancy) on seven day cruises. Unlike the TRIP$ discount program, however, the AARP discount programs did not provide for the use of TRIP$ discounts certificates — AARP members could redeem their discounts by presenting their AARP membership card or membership number during the booking process — and could only be used for staterooms on levels six through twelve. It is also undisputed that neither the TRIP$Carnival Contract nor any other written agreement between TRIP$ and Carnival specifically addresses the AARP discount programs, and TRIP$ was not a party to, or mentioned in, the 1996 AARP-Carnival agreement or the 2001 ASI-Carnival agreement.

Nevertheless, TRIP$ claims it was ultimately responsible for the procurement of the AARP discount programs. Specifically, TRIP$ alleges that it identified and targeted AARP and ASI as entities with which Carnival could establish lucrative promotional discount programs; acted as a broker in the negotiations of these agreements; and, in fact, negotiated the terms of the AARP discount agreements on behalf of Carnival. On these grounds, TRIP$ claimed entitlement to bookings generated through the AARP discount programs in accordance with the TRIP$Carnival Contract.

It appears that while Carnival disputed that it was contractually obligated under the TRIP$-Carnival Contract to pay TRIP$ a marketing allowance for bookings generated through the AARP discount programs, Carnival was sympathetic toward TRIP$’s request for compensation for such bookings, presumably because of the role TRIP$ allegedly played in procuring the AARP discount programs. Thus, from 1996 through March 2004, Carnival and TRIP$ attempted to negotiate a contractual agreement whereby Carnival would pay TRIP$ a marketing allowance for bookings generated through the AARP discount programs. Although the parties were ultimately unable to finalize such an agreement, Carnival tracked all bookings generated through the AARP discount programs, and paid TRIP$ a marketing allowance for those bookings from 1996 through March 2004.

In early 2004, TRIP$ accused Carnival of underreporting the level of usage being generated through the AARP discount programs, and claimed entitlement to a marketing allowance not only for bookings ultimately made under the AARP discount programs, but for all bookings made by AARP members who inquired about the AARP discount programs, even if they ultimately used a different discount program or rate. TRIP$ claimed such bookings were “generated through” the AARP discount program. Carnival disagreed with that position, and when TRIP$ demanded payment of $35 million in marketing allowances for such bookings, Carnival terminated its business relationship with TRIP$ and ceased to pay TRIP$ for any bookings generated under the AARP discount programs.

TRIP$ filed the instant lawsuit. In its second amended complaint, TRIP$ alleged claims for breach of written contract, breach of oral contract, breach of fiduciary duty, and unjust enrichment. TRIP$ alleged Carnival breached its contractual and fiduciary responsibilities by failing to track all bookings generated through the AARP discount programs, and to pay TRIP$ a marketing allowance for such bookings. In the alternative, TRIP$ pleaded an unjust enrichment claim, arguing that as a result of TRIP$’s efforts with respect to the AARP discount programs, Carnival knowingly received hundreds of thousands of additional bookings, and that it would be inequitable for Carnival to retain the benefits of TRIP$’s work without paying TRIP$ for the value of that work.

In support of TRIP$’s interpretation of the TRIP$-Carnival Contract, TRIP$ sought to present the expert testimony of Roderick McLeod, a former executive in the cruising industry. In his report, Mr. McLeod opined that the TRIP$Carnival Contract was a “lead generation” contract, which required Carnival to track and compensate TRIP$ for all bookings made by AARP members who inquired about the AARP discount programs, even if they ultimately booked a cruise using a different rate or program. The trial court ultimately excluded Mr. McLeod’s testimony for several reasons, including its determination that the TRIP$-Carnival Contract was unambiguous, thus prohibiting consideration of extrinsic evidence to interpret the agreement.

Carnival then filed a motion for summary judgment, which the trial court granted after a hearing. The trial court issued a written order concluding, in pertinent part: the TRIP$-Carnival Contract was unambiguous, and its express terms applied only to the TRIP$ discount certificate program, not to the AARP discount programs; there was no evidence in the record to establish the elements of an oral agreement between Carnival and TRIP$ relating to the AARP discount programs; the TRIP$-Carnival Contract provided for an arms length, rather than a fiduciary, commercial relationship; and TRIP$’s unjust enrichment claim failed as a matter of law. This appeal followed.

ARGUMENTS ON APPEAL

On appeal, TRIP$ advances several arguments, which we address below.

I. Whether the trial court properly entered summary judgment on TRIP$’s breach of written and oral contract claims.

As a preliminary matter, TRIP$ does not challenge the trial court’s ruling that TRIP$ failed to present sufficient evidence to establish the elements for breach of an oral contract. We therefore affirm the trial court’s entry of summary judgment on TRIP$’s breach of oral contract claim without further discussion.

Instead, TRIP$ contends the trial court erred in ruling that the TRIP$-Carnival Contract was unambiguous and did not apply to the AARP discount programs. TRIP$ argues this ruling is contradicted by the documentary record and the course of dealing between TRIP$ and Carnival. We reject TRIP$ argument. Upon review of the TRIP$-Carnival Contract, we agree with the trial court that it is unambiguous and does not contractually obligate Carnival to track bookings generated through the AARP discount programs or to pay TRIP$ a marketing allowance for such bookings.

The interpretation of a contract, including whether the contract or one of its terms is ambiguous, is a matter of law subject to de novo review. Zurich Am. Ins. Co. v. Ainsworth, 18 So.3d 9, 12 (Fla. 3d DCA 2009); Envtl. Servs., Inc. v. Carter, 9 So.3d 1258 (Fla. 5th DCA 2009); Imagine Ins. Co. v. State ex rel. Dep’t of Fin. Servs., 999 So.2d 693, 696 (Fla. 1st DCA 2008). “A contract is ambiguous when its language is reasonably susceptible to more than one interpretation, or is subject to conflicting interests.” Pan Am. W., Ltd. v. Cardinal Commercial Dev., LLC, 50 So.3d 68, 71 (Fla. 3d DCA 2010) (quoting Specialty Rests. Corp. v. City of Miami, 501 So.2d 101, 103 (Fla. 3d DCA 1987)). “There are two types of ambiguities — patent and latent. Patent ambiguities are on the face of the document, while latent ambiguities do not become clear until extrinsic evidence is introduced and requires parties to interpret the language in two or more possible ways.” Prime Homes, Inc. v. Pine Lake, LLC, 84 So.3d 1147 (Fla. 4th DCA 2012) (citations omitted). “[I]n the absence of some ambiguity, the intent of the parties to a written contract must be ascertained from the words used in the contract, without resort to extrinsic evidence.” Lee v. Montgomery, 624 So.2d 850, 851 (Fla. 1st DCA 1993); Wheeler v. Wheeler, Erwin & Fountain, P.A., 964 So.2d 745, 749 (Fla. 1st DCA 2007).

The plain language of the TRIP$-Carnival Contract is susceptible only to a single interpretation — that it applies specifically to “TRIP$ Programs” using “TRIP$ certificates,” and not to the AARP discount programs. The TRIP$-Carnival Contract provides, in pertinent part:

TRIP$ agrees, at its option, to provide promotional exposure for Participant in the form of discount offers contained in its local and/or national discount programs including, but not limited to, TRIP$ Program and/or other promotional programs of TRIP$.
TRIP$ Travel Reward Incentive Plan (TRIP$) agrees that it will feature Carnival Cruise Lines (CCL) offers in TRIP$ certificates.... Certificates will carry a distinct code number and may be redeemed through the primary authorized travel agent, Carlson Wagon-lit Travel, or any other travel agent.
All bookings generated through the program will be tracked by CCL and CCL agrees to pay TRIP$ an Association Marketing Allowance for bookings generated in accordance with the following schedule:
The Allowance will be paid based on the percentage indicated above applied against the net revenue for each TRIP$ certificate booking. Net revenue is defined as the gross cruise amount, less the TRIP$ certificate discount, less the booking travel agent commission.
The CCL offer reflects the savings and terms applicable to the 1996 TRIP$ certificates. CCL reserves the right to modify the offer for the 1997 TRIP$ certificates. CCL reserves the right to modify the offer for the 1996 TRIP$ certificates.... CCL must review each specific offer, utilizing the TRIP$ certificates, for promotional exposure and consistency.
Terms and Conditions:
Certificate may be redeemed at any Carlson Wagonlit Travel, or any other travel agent, and is valid on selected 3, 4, and 7 day Carnival cruises departing between January 4, 1996, and December 20,1996.
Only original TRIP$ certificates will be accepted....
Certificate has no cash value and savings amount is expressed in U.S. dollars.
Certificate must be submitted with deposit payment....

(emphasis added).

The language of the TRIP$-Carnival Contract clarifies that “[t]his agreement governs only the Programs set forth in this Agreement, and shall not affect any other Agreement between the parties.” As shown above, the only program set forth in the TRIP$-Carnival Contract is the TRIP$ certificate program. It is un-

disputed that the AARP discount programs do not incorporate the use of TRIP$ certificates, and the contracts establishing the AARP discount programs do not contain any language classifying them as part of a TRIP$ certificate program or make any mention of TRIP$ whatsoever. It follows that the plain language on the face of the TRIP$-Carnival Contract does not apply to the AARP discount programs.

The trial court’s correct determination that the TRIP$-Carnival Contract is unambiguous rendered futile TRIP$’s resort to extrinsic evidence. Although TRIP$ may have identified AARP and ASI as ideal entities for participation in Carnival’s discount program and then “brokered” and/or “negotiated” the terms of the AARP discount programs on behalf of Carnival, and although Carnival admittedly paid TRIP$ a marketing allowance for bookings generated through the AARP discount programs for eight years, these facts do not call into question whether the language of the TRIP$-Carnival Contract encompasses the AARP discount programs, and thus do not give rise to a latent ambiguity in the TRIP$-Carnival Contract. Thus, we affirm the trial court’s entry of summary judgment on TRIP$’s claim for breach of written contract.

II. Whether the trial court erred in entering summary judgment on TRIP$’s breach of fiduciary duty claim.

TRIP$ contends the trial court erred in entering summary judgment on its claim for breach of fiduciary duty. It is axiomatic that to succeed on a cause of action for breach of fiduciary duty, one must first establish the existence of a fiduciary duty. Crusselle v. Mong, 59 So.3d 1178, 1180 (Fla. 5th DCA 2011). “Where ... there is not an express fiduciary relationship, one may be implied in law based on the ‘specific factual situation surrounding the transaction and the relationship of the parties.’ ” Id. at 1181 (quoting Capital Bank v. MVB, Inc., 644 So.2d 515, 518 (Fla. 3d DCA 1994)). “An implied fiduciary relationship will lie when there is a degree of dependency on one side and an undertaking on the other side to protect and/or benefit the dependent party.” Crusselle, 59 So.3d at 1181 (quoting Masztal v. City of Miami, 971 So.2d 803, 809 (Fla. 3d DCA 2007)) (emphasis added).

In its second amended complaint, TRIP$ did not allege the existence of an express fiduciary relationship. Instead, TRIP$ claimed that an implied fiduciary relationship arose under the TRIP$-Carnival Contract because Carnival maintained exclusive control over the information necessary to track bookings generated under the AARP discount programs, and thus TRIP$ relied entirely on Carnival to track all such bookings. TRIP$ alleged that by not tracking all bookings generated by AARP members who inquired about the AARP discount programs but ultimately used a different discount program or rate, Carnival breached its fiduciary duty. We disagree.

As established above, Carnival was not contractually obligated under the TRIP$Carnival Contract to track bookings generated through the AARP discount programs. Thus, it cannot be said that an implied fiduciary duty arose under the TRIP$-Carnival Contract or that Carnival undertook to protect TRIP$ with respect to the tracking of bookings generated under the AARP discount programs. Having failed to establish the existence of a fiduciary duty, TRIP$’s claim for breach of fiduciary duty fails as a matter of law.

III. Whether the trial court abused its discretion in excluding Mr. McLeod’s testimony.

TRIP$ contends the trial court abused its discretion by striking Mr. McLeod’s expert testimony regarding the interpretation of the TRIP$-Carnival Contract. However, as established above, the meaning of an unambiguous contract is an issue for the trial court to determine as a matter of law, and the trial court correctly concluded the TRIP$-Carnival Contract was unambiguous. Thus, resort to extrinsic evidence was impermissible, and the testimony of TRIP$’s expert could not be considered to contravene the express terms of the contract. Lee, 624 So.2d at 851; see also Iden v. Kasden, 609 So.2d 54, 56 (Fla. 3d DCA 1992) (“The expert’s testimony was based chiefly upon custom of the real estate trade, and while custom or usage may be employed in explanation and qualification of the terms of a contract that would otherwise be ambiguous, it cannot operate to contravene express instructions or to contradict an express contract to the contrary.”).

IV. Whether the trial court erred in entering summary judgment on TRIP$’s claim for unjust enrichment claim.

Lastly, TRIP$ argues that the trial court’s entry of summary judgment on the unjust enrichment claim must be reversed. We disagree.

The trial court set forth three grounds upon which it relied in entering summary judgment on TRIP$’s unjust enrichment claim. Although two of these grounds were erroneous, we agree with the trial court that there was no genuine issue of material fact with respect to any of the elements of unjust enrichment, and Carnival was entitled to judgment as a matter of law.

In its second amended complaint, TRIP$ alleged that: it conferred a benefit upon Carnival in the form of bookings generated through the AARP discount programs; Carnival knowingly accepted this benefit; and it would be unjust for Carnival to retain this benefit without adequately compensating TRIP$ for its value. However, it is well established that “[u]njust enrichment ‘cannot exist where payment has been made for the benefit conferred.’” N.G.L. Travel Assocs. v. Celebrity Cruises, Inc., 764 So.2d 672, 675 (Fla. 3d DCA 2000) (quoting Gene B. Glide Co. v. Sunshine Ready Concrete Co., 651 So.2d 190, 190 (Fla. 4th DCA 1995)); see also Am. Safety Ins. Serv., Inc. v. Griggs, 959 So.2d 322, 331-32 (Fla. 5th DCA 2007) (“When a defendant has given adequate consideration to someone for the benefit conferred, a claim of unjust enrichment fails.”). The record reflects, and TRIP$ concedes, that for roughly eight years Carnival paid TRIP$ a sizeable marketing allowance for bookings made under the AARP discount programs. The payments ceased only after the termination of the business relationship. During this eight year period, TRIP$ accepted Carnival’s payments without objection. Because the record reflects that TRIP$ was adequately compensated for any benefit conferred on Carnival, the trial court did not err in granting summary judgment as to TRIP$’s unjust enrichment claim.

Affirmed.

      . TRIPS alleges there is an ambiguity with respect to the discrepancy between the singular and plural use of the word "program/s” in the TRIP$-Camival Contract. However, any singular/plural-discrepancy is of no consequence because the only program or programs relevant to, and governed by, the TRIP$-Camival Contract are TRIP$ program/s, and as established above, the AARP discount programs are not TRIP$ programs.

      . First, the trial court determined that the existence of the express TRIP$-Carnival Contract precluded TRIPS's claim for unjust enrichment. This was error.
      We acknowledge the well settled principle that "the law will not imply a contract where an express contract exists concerning the same subject matter.” Kovtan v. Frederiksen, 449 So.2d 1, 1 (Fla. 2d DCA 1984) (emphasis added). However, as set forth above, the trial court correctly determined that the TRIP$Carnival Contract unambiguously does not encompass the AARP discount programs. Thus, the TRIP$-Carnival Contract does not concern the same subject matter, and its existence did not preclude TRIPS from advancing a claim for unjust enrichment.
      Further, contrary to Carnival’s contention, TRIPS’s allegation that the TRIP$-CarnivaI Contract encompasses the AARP discount programs likewise did not preclude TRIPS from proceeding on its unjust enrichment claim. Under Florida law, a party may simultaneously allege the existence of an express contract and alternatively plead a claim for unjust enrichment. Hazen v. Cobb, 96 Fla. 151, 117 So. 853, 857-58 (1928). Of course, upon a showing that an express contract concerning the same subject matter exists, the unjust enrichment claim necessarily fails. However, that was not the case here.
      With respect to the second ground, the trial court determined that TRIPS had an adequate remedy at law in the form of money .damages, and after noting that unjust enrichment is equitable in nature, concluded that TRIPS could not maintain its claim for unjust enrichment. This was error.
      The trial court relied on Bowleg v. Bowe, in which this Court held “Bowleg’s second count fails because the theory of unjust enrichment is equitable in nature and is, therefore, not available where there is an adequate legal remedy-here, an action on the presumably valid Final Contract.” Bowleg v. Bowe, 502 So.2d 71, 72 (Fla. 3d DCA 1987) (emphasis added). Unlike in Bowleg, however, the TRIP$-Carnival Contract does not encompass the AARP discount programs. Thus, TRIPS cannot recover under the TRIP$-Carnival Contract, and, consequently, TRIPS has no adequate legal remedy.


author: PER CURIAM.

text:
    Dwayne Curtis LITTLEJOHN and Joanne M. Littlejohn, Appellants, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, as trustee for Long Beach Mortgage Loan Trust, etc., Appellee.
    No. 4D11-2330.
    District Court of Appeal of Florida, Fourth District.
    June 20, 2012.
    Rehearing Denied Aug. 6, 2012.
    C. William Berger, Boca Raton, for appellants.
    Katherine J. Walke of Kelly E. Elkins, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Affirmed. See Flagstar Bank, F.S.B. v. Cleveland, 87 So.3d 63 (Fla. 4th DCA 2012).

WARNER, DAMOORGIAN and CONNER, JJ., concur.


author: WETHERELL, J.

text:
    UNIVERSITY OF FLORIDA BOARD OF TRUSTEES, Appellant, v. Marguerite STONE, as Personal Representative of the Estate of Ronald Pat Stone, Deceased, and on Behalf of Valerie A. STONE, Appellee.
    No. 1D11-1951.
    District Court of Appeal of Florida, First District.
    June 21, 2012.
    Rehearing Denied July 26, 2012.

      Susan L. Kelsey of Kelsey Appellate Law Firm, P.A., Tallahassee, for Appellant.
    Sharon H. Proctor of Proctor Appellate Law, PA, Lake Saint Louis, MO; and Mark A. Avera of Avera & Smith, LLP, Gainesville, for Appellee.
   WETHERELL, J.

Appellee, the plaintiff below, brought a wrongful death suit against the University of Florida Board of Trustees (UFBOT) after her husband, Ronald Pat Stone, died at a UFBOT medical facility. The jury awarded Appellee approximately $2.8 million in damages, and after the trial court denied UFBOT’s post-verdict motions and entered final judgment in accordance with the verdict, UFBOT timely appealed the judgment to this court. UFBOT raises three issues in this appeal: 1) whether the trial court erred in granting Appellee’s motion for directed verdict as to the inapplicability of the heightened standard of proof in section 768.13(2)(b), Florida Statutes (2004), commonly known as the Good Samaritan Act (hereafter “the GSA” or “the Act”); 2) whether the trial court abused its discretion in excluding the medical examiner’s opinion as to the cause of Mr. Stone’s death; and 3) whether the trial court abused its discretion in denying UFBOT’s motion for new trial based on juror misconduct. We conclude that the trial court erred in determining as a matter of law that the GSA did not apply and, accordingly, we reverse the final judgment and remand for a new trial.

On August 6, 2004, around 12:45 p.m., Mr. Stone went to the emergency room at a UFBOT hospital in Starke complaining of severe stomach pain and vomiting. While there, he received intravenous medications to control his symptoms. He also underwent a series of tests that ruled out cardiac problems, as well as a chest x-ray which showed density consistent with a hernia. The physician in charge of Mr. Stone’s care at the Starke facility determined that surgical intervention may be needed, and because a surgeon was not available at the Starke facility, he arranged for a transfer of Mr. Stone to another UFBOT medical facility, Shands at Alachua General Hospital (AGH).

Dr. Hurst, the physician at AGH who would oversee Mr. Stone’s care upon his arrival, suggested that the Starke facility conduct a CT scan before the transport because of possible delays in getting the scan done at AGH. The scan was completed at the Starke facility and the results showed that Mr. Stone’s stomach was inverted and partially in his chest cavity, having pushed through his hiatal hernia. The physicians at the Starke facility did not know the results of the scan before Mr. Stone was transported to AGH, but the radiologist who read the scan indicated in her report that the findings were “worrisome for gastric outlet obstruction,” a condition which is serious and can be life threatening.

Shortly after the CT scan, Mr. Stone was transferred via ambulance to AGH and, upon his arrival at approximately 6:30 p.m., he was admitted to a room on the medical/surgical floor of the hospital. Dr. Wilbur, a resident at AGH, assessed Mr. Stone and ordered a surgical consultation for the next morning. Dr. Wilbur also ordered medication, a nasogastric tube, and directed that Mr. Stone not receive anything by mouth. When Mr. Stone’s blood pressure began dropping, Dr. Wilbur ordered his bed repositioned. Mr. Stone went into cardiac arrest at 11:39 p.m. and was transferred to the intensive care unit where he died the following morning around 9:00 a.m. after arresting a second time.

It was undisputed based on Mr. Stone’s autopsy that his stomach was necrotic; however, there was conflicting evidence as to the mechanism that caused the stomach to die. The experts presented by Appellee testified that Mr. Stone’s stomach died due to lack of blood flow as a result of his hiatal hernia, and that his death was the result of cardiac compressive shock from the pressure the stomach placed on his heart. Appellee’s experts opined that Mr. Stone’s condition was curable had it been diagnosed and treated on an emergent basis by the AGH physicians. By contrast, the experts presented by UFBOT testified that Mr. Stone’s stomach died as a result of a gastric volvulus, or twisting of the stomach, and that his death was a result of shock due to toxins released with the death of the stomach. UFBOT’s experts opined that Mr. Stone’s condition was incurable by the time he arrived at AGH.

UFBOT argued below that the heightened standard of proof in the GSA should apply because, although unbeknownst to the AGH physicians at the time, Mr. Stone was suffering from an emergency medical condition when he arrived at AGH. Appel-lee responded that the Act does not apply because Mr. Stone’s condition was stable when he was transferred to AGH and he was not treated as an emergency patient at AGH until the first cardiac arrest. After the close of the evidence, the trial court ruled that the GSA did not apply as a matter of law and denied UFBOT’s request to present the issue to the jury for resolution.

We review the trial court’s ruling de novo because it involves a question of statutory interpretation and a ruling on a motion for directed verdict. See Health Options, Inc. v. Palmetto Pathology Servs. P.A., 983 So.2d 608, 613 (Fla. 3d DCA 2008) (citing Found. Health v. Westside EKG Assocs., 944 So.2d 188, 193-94 (Fla.2006), and Contreras v. U.S. Sec. Ins. Co., 927 So.2d 16, 20 (Fla. 4th DCA 2006)).

There is surprisingly little case law discussing the GSA. Our research has not located any case interpreting the phrase “emergency services” in the Act, and the parties agree that this issue is one of first impression. Accordingly, we begin our analysis with a brief review of the legislative history of the GSA.

The GSA was enacted in 1965. See Ch. 65-313, Laws of Fla. The Act provided that those who “gratuitously and in good faith” render aid or emergency care at the scene of an emergency outside of a medical facility and without objection of the injured victim could not be held liable for any resulting damages as long as the person was acting as an “ordinary and reasonably prudent man” would have acted under similar circumstances. § 768.13, Fla. Stat. (1965); accord White v. City of Waldo, 659 So.2d 707, 710 (Fla. 1st DCA 1995) (discussing the common law good Samaritan rule). The Act was intended to remove the fear of civil suit or liability that may serve as a deterrent to individuals who would otherwise provide aid to victims of accidents or emergencies. See Ch. 65-313 at 1072, Laws of Fla.

The GSA was substantially amended in 1988 to “promote the availability of emergency medical care by providing immunity from civil liability to hospitals and trauma centers ... rendering care therein to medical emergency care patients.... ” Ch. 88-1, § 45(2), Laws of Fla.; see also id. at § 45(1)(c)2., Laws of Fla. (finding that civil lawsuits brought on behalf of emergency patients often are the result of factors beyond the control of the hospital, including “[t]he fact that the emergency patient may not have had a previously established medical relationship with the defendant, may have been unknown to the defendant, and may have been unconscious or unable to provide essential information, such as medical history, allergies to drugs, and other relevant factors”). The 1988 amendments provided immunity to hospitals and their employees when rendering medical care or treatment “necessitated by a sudden, unexpected situation or occurrence resulting in a serious medical condition demanding immediate medical attention.” Id. at § 46, Laws of Fla. (creating section 768.13(2)(b)1., Florida Statutes). This immunity only applied when the patient entered the hospital through the emergency room or trauma center, and it did not apply after the patient is stabilized and capable of receiving medical treatment as a nonemergency patient. Id. (creating section 768.13(2)(b)2., Florida Statutes). To overcome the immunity provided by the Act, the plaintiff was required to establish that the defendant acted with “reckless disregard” for the consequences to the life or health of another. Id. (creating section 768.18(2)(b)3., Florida Statutes).

The GSA was next substantially amended in 2003. See Ch. 2003-416, § 65 Laws of Fla. The 2003 amendments eliminated the requirement that the patient enter the hospital through the emergency room for the Act to apply and also expanded the medical care subject to the Act to specifically include diagnosis. Id. (amending section 768.13(2)(b)1. and 2., Florida Statutes). The 2003 amendments retained and revised the “reckless disregard” standard that must be shown to overcome the immunity provided by the Act, id. (amending section 768.13(2)(b)3., Florida Statutes), and also retained the language stating that the immunity did not apply after the patient is stabilized and capable of receiving medical treatment as a nonemergency patient. Id. (making only minor grammatical changes to section 768.13(2)(b)2.a., Florida Statutes).

The GSA, as amended in 2003 and in effect at the time of the incident giving rise to this case, provided in pertinent part:

1.Any health care provider, including a hospital licensed under chapter 395, providing emergency services pursuant to obligations imposed by 42 U.S.C. s. 1395dd, s. 395.1041, s. 395.401, or s. 401.45 shall not be held liable for any civil damages as a result of such medical care or treatment unless such damages result from providing, or failing to provide, medical care or treatment under circumstances demonstrating a reckless disregard for the consequences so as to affect the life or health of another.
2. The immunity provided by this paragraph applies to damages as a result of any act or omission of providing medical care or treatment, including diagnosis:
a. Which occurs prior to the time the patient is stabilized and is capable of receiving medical treatment as a non-emergency patient, unless surgery is required as a result of the emergency within a reasonable time after the patient is stabilized, in which case the immunity provided by this paragraph applies to any act or omission of providing medical care or treatment which occurs prior to the stabilization of the patient following the surgery.
b. Which is related to the original medical emergency.
3. For purposes of this paragraph, “reckless disregard” as it applies to a given health care provider rendering emergency medical services shall be such conduct that a health care provider knew or should have known, at the time such services were rendered, created an unreasonable risk of injury so as to affect the life or health of another, and such risk was substantially greater than that which is necessary to make the conduct negligent.

§ 768.13(2)(b), Fla. Stat. (2004).

Although couched in terms of “immunity,” the GSA merely imposes a heightened standard of proof on the plaintiff in cases where the statutory prerequisites are met. The question in this case is whether the trial court correctly ruled that the prerequisites were not met and, thus, the heightened standard of proof did not apply.

As a threshold matter, we reject Appel-lee’s contention that the GSA does not apply in this case because AGH was not providing services to Mr. Stone pursuant to one of the statutes listed in the GSA. The record refutes this tipsy-coachman argument and establishes that AGH was providing services to Mr. Stone pursuant to its obligations under section 395.1041, Florida Statutes. That, however, does not resolve this case because the parties disagree as to whether the services being provided were “emergency services,” as that phrase is used in the GSA.

The GSA does not define “emergency services.” That specific phrase is not defined elsewhere in the Florida Statutes, but the similar phrase “emergency services and care” is broadly defined in section 395.002(10), Florida Statutes (2004), to encompass the medical screening, examination, evaluation, care, treatment, and surgery for an “emergency medical condition,” which, in turn, is defined as a “medical condition manifesting itself by acute symptoms of sufficient severity, which may include severe pain, such that the absence of immediate medical attention could reasonably be expected to result in” serious consequences to the patient’s health or, with respect to a pregnant woman, the health and safety of the fetus. § 395.002(9), Fla. Stat. (2004).

UFBOT argues based on these definitions that, when determining the applicability of the GSA, the focus should be on the existence of the “emergency medical condition” the patient is suffering, whether or not the physician was aware of the emergency nature of the condition at the time. Appellee responds that the definitions of “emergency services and care” and “emergency medical condition” do not apply outside of Chapter 395, Florida Statutes, and that the immunity provided by the Act should extend only to those physicians who act or proceed as if the patient is suffering an emergency medical condition.

We are not persuaded that either of these positions is entirely correct. The subjective standard advocated by Appellee is not workable and goes more to the issue of whether the physician acted with reckless disregard than to the issue of whether the immunity in the GSA applies. Likewise, although the objective standard advocated by UFBOT properly focuses on the patient’s medical condition, it does not take into account when the care was provided.

The plain language of the GSA defines its scope and, therefore, it is unnecessary to look outside the Act for clarification of its terms. Section 768.13(2)(b)2.a. provides that immunity under the Act applies to medical care occurring “prior to the time the patient is stabilized and is capable of receiving medical treatment as a non-emergency patient.” This language describes the scope of the immunity provided by section 768.13(2)(b)l., and in doing so, it provides a temporal limitation on the “emergency services” that are subject to immunity.

Construing these provisions in pari materia, we conclude that “emergency services” are those provided for the diagnosis or treatment of an emergency medical condition prior to the time the patient is stabilized and capable of receiving treatment as a nonemergency patient. This interpretation does not hinge solely on the existence of an emergency medical condition, nor does it depend solely on the physicians’ subjective view of the patient’s condition at the time; rather, it takes into account both considerations and, consistent with the plain language of the GSA, focuses on whether the patient’s emergency medical condition was stabilized to the point that it no longer required emergency care. Not only is this interpretation consistent with the language of the Act, but it is also furthers the purpose of the Act because once the patient is stabilized and capable of receiving medical treatment as a non-emergency patient, the rationale underlying the immunity no longer applies.

Accordingly, in this case, the determinative issue is whether, at the time the care was provided to Mr. Stone at AGH, he was stabilized and capable of receiving medical treatment as a nonemer-gency patient. If so, the heightened standard of proof in the GSA does not apply; if not, the Act applies.

In some cases, the applicability of the GSA can be determined as a matter of law, but in others, the applicability of the Act depends on the resolution of factual disputes. Accordingly, the Florida Supreme Court approved two different jury instructions for cases in which the Act is implicated — one for cases “in which either the parties agree that the [Act] applies, or the court, in response to a motion for a directed verdict concludes that, as a matter of law, the [Act] applies,” and another for cases “in which a jury issue exists regarding the applicability of the [Act].” See In re Standard Jury Instructions-Civil Cases-Nos. 95-1 and 95-2, 658 So.2d 97, 98 (Fla.1995) (approving Jury Instructions MI 9.1 and 9.2). We recognize that the supreme court’s approval of these jury instructions for publication does not necessarily reflect a determination by the court that the instructions, or the associated committee notes, are legally correct, but we find it noteworthy that the committee notes for these instructions indicate that, consistent with our plain language interpretation of the Act, neither instruction is to be used “in cases involving patients capable of receiving treatment as nonemergency patients, even if treated in the emergency room.” Id. at 98 (emphasis added); accord In re Standard Jury Instructions In Civil Cases-Report No. 09-01, 35 So.3d at 716.

In this case, there was conflicting evidence as to whether Mr. Stone was medically stabilized after his arrival at AGH. For example, Mr. Stone’s family testified that after he was admitted to AGH he was nonresponsive and in excruciating pain, but the treating physicians at AGH testified that he was stabilized, resting comfortably, and able to carry on a conversation; Mr. Stone was transferred by ambulance from Starke to AGH, but the emergency medical technician in charge of his care during the transport testified that it was a “routine transfer” during which Mr. Stone required no medical intervention; and although all physicians involved at AGH and the Starke facility agreed that Mr. Stone would likely require surgery and his CT scan results revealed a possible life threatening condition, the surgical consultation was not ordered “stat,” but instead was scheduled for the next morning. In light of these, and other, conflicts in the evidence, the question as to whether Mr. Stone was stabilized and capable of receiving medical treatment as a nonemergency patient (and, hence, whether the heightened standard of proof in the GSA applied) was for the jury to decide. Accordingly, the trial court erred in granting Appellee’s motion for directed verdict as to the applicability of the GSA and, thus, a new trial is required.

Based on this disposition, UFBOT’s argument that the trial court erred in denying its motion for new trial based on juror misconduct is moot. Likewise, we need not address the exclusion of the medical examiner’s testimony regarding the cause of Mr. Stone’s death, but we choose to do so in order to provide guidance to the parties and the trial court on remand.

Prior to trial, Appellee filed a motion in limine to exclude the medical examiner’s opinion regarding the cause of Mr. Stone’s death. The motion relied on Linn v. Fossum, 946 So.2d 1032 (Fla.2006), and argued that the medical examiner’s opinion that Mr. Stone died as a result of gastric volvulus should be excluded because the opinion was based entirely on the opinion of another pathologist. The trial court granted the motion, and although the medical examiner’s deposition was read at trial, the portions during which he gave his opinion as to the ultimate cause of Mr. Stone’s death were omitted.

We review this ruling for an abuse of discretion. See Doctors Co. v. Dept. of Ins., 940 So.2d 466, 469 (Fla. 1st DCA 2006).

Linn was a medical malpractice case in which the defense expert testified that she consulted with colleagues to determine that the defendant met the standard of care. The supreme court held that it was error to allow this testimony because it served as a conduit for the admission of hearsay testimony — the opinions of the non-testifying colleagues — that was effectively immune from challenge because the plaintiff was unable to cross-examine the non-testifying experts. Id. at 1038-39; see also Schwarz v. State, 695 So.2d 452, 454-55 (Fla. 4th DCA 1997) (explaining that there was nothing improper about the medical examiner consulting .with other experts in his field, but holding that it was improper to permit him to testify on direct examination that he did so because such testimony creates the impression that the other experts agreed with him and “improperly permits one expert to become a conduit for the opinion of another expert who is not subject to cross-examination”), approved by Linn, 946 So.2d at 1033, 1041.

These concerns are not present in this case because the pathologist whose opinion the medical examiner relied upon in formulating his opinion as to the cause of Mr. Stone’s death testified at trial through his videotaped deposition and UFBOT had a full and fair opportunity to cross-examine him during the deposition. Additionally, the trial court did not simply preclude the medical examiner from testifying on direct examination that his opinion was based on the opinion of another pathologist; rather, the trial court excluded the medical examiner’s opinion altogether. Thus, Linn does not support the trial court’s ruling.

Additionally, although the trial court has considerable discretion in determining whether an expert is qualified to render an opinion, the court should not exclude an expert’s opinion based on matters that go to the weight of the opinion because it is the exclusive province of the jury to weigh the evidence. See Fla. Dept. of Transp. v. Armadillo Partners, Inc., 849 So.2d 279, 288-89 (Fla.2003); Lombard v. Executive Elevator Serv., Inc., 545 So.2d 453, 454-55 (Fla. 3d DCA 1989). Here, it is undisputed that the medical examiner had the requisite qualifications as a pathologist to render opinions regarding cause of death. Indeed, the medical examiner has the statutory duty to determine the cause of death in certain types of cases. See § 406.11, Fla. Stat. (2004). The alleged deficiencies in the medical examiner’s opinion as to Mr. Stone’s cause of death — i.e., that he was unfamiliar with gastric volvulus and that he relied on the opinion of another pathologist to determine that condition as the cause of death— go to the weight of his opinion, not its admissibility. Accordingly, the trial court abused its discretion in excluding the medical examiner’s opinion as to the cause of Mr. Stone’s death.

In sum, because the trial court erred in determining as a matter of law that the GSA does not apply, we reverse the final judgment and remand for a new trial.

REVERSED and REMANDED.

ROBERTS and ROWE, JJ., concur.

      . The 2004 version of the GSA applies in this case. The Act was amended in 2004, but that amendment did not impact any of the changes made in 2003 to the provisions of the Act at issue in this case. See Ch. 2004-45, § 1, Laws of Fla. (amending section 768.13(2)(d), Florida Statutes, only).

      . Under this statute, general hospitals with emergency departments are required to provide emergency services and care when requested by another hospital seeking a medically necessary transfer of a patient. See § 395.1041(3)(a)2.b., Fla. Stat. (2004). The hospital's obligation to accept medically necessary transfers includes stabilized patients for whom the benefits of the transfer outweigh the increased risks of the transfer. See § 395.1041(3)(c), Fla. Stat. (2004) ("A patient, whether stabilized or not, may be transferred to another hospital which has the requisite service capability ... if ... [a] physician has signed a certification that ... the medical benefits reasonably expected from the provision of appropriate medical treatment at another hospital outweigh the increased risks to the individual's medical condition from effecting the transfer; ... provided that this paragraph shall not be construed to require acceptance of a transfer that is not medically necessary.”) (emphasis added).

      . The GSA also provides immunity for “any act or omission of providing medical care or treatment which occurs prior to the stabilization of the patient following surgery” that is required as a result of the emergency and that occurs within a reasonable time after the patient is initially stabilized. § 768.13(2)(b)2.a., Fla. Stat. (2004). We need not determine in this case whether, based on this language, the immunity provided by the Act covers the period after the patient is initially stabilized but before the patient undergoes surgery (in addition to the period during and after stabilization from the surgery) because Mr. Stone did not undergo surgery as a result of the surgical consultation not being scheduled prior to his death.

      . These instructions were recently renumbered as 402.16a and 402.16b, respectively. See In re Standard Jury Instructions in Civil Cases-Report No. 09-01, 35 So.3d 666, 716-19 (Fla.2010). The revised instructions no longer include a definition of “emergency circumstances,” which, consistent with our interpretation of the phrase "emergency services,” was defined in the original instructions as:

        [Care] [treatment] is rendered under emergency circumstances when a [hospital] [(identify hospital employee providing patient care) ] [physician] renders medical [care] [treatment] required by a sudden unexpected situation or event that resulted in a serious medical condition demanding immediate medical attention, for which (claimant) (decedent) initially entered the hospital through its [emergency room] [trauma center] before (claimant) (decedent) was medically stabilized and capable of receiving [care] [treatment] as a nonemergency patient. In re Standard Jury Instructions-Civil Cases-Nos. 95-1 and 95-2, 658 So.2d 97 at 101 (emphasis added).

      . We find no merit in UFBOT’s related contention that the trial court abused its discretion in denying its motion for mistrial after the medical examiner informed defense counsel during trial that he had formed a new opinion as to the cause of Mr. Stone’s death after conducting additional research in preparation for his testimony.


text:
    Nicholas A. HUTCHINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1343.
    District Court of Appeal of Florida, Third District.
    July 5, 2012.
    Nicholas A. Hutchins, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SUAREZ and CORTINAS, JJ.
   PER CURIAM.

Affirmed. See Clines v. State, 912 So.2d 550 (Fla.2005).


text:
    Liliana CABRERA, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3127.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2012.
    Ricardo Corona and Manuel Guarch of The Corona Law Firm, Miami, for appellant.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. Davis v. State, 69 So.3d 315 (Fla. 4th DCA 2011) (citing Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011), rev. granted, 81 So.3d 414 (Fla.2012) (holding that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) is not retroactive)).

MAY, C.J., DAMOORGIAN and CIKLIN, JJ., concur.


text:
    Donald HOMERDING, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-3457.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2012.
    Donald Homerding, Moore Haven, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed. See Grant v. State, 837 So.2d 1075 (Fla. 4th DCA 2003).

GROSS, DAMOORGIAN and CIKLIN, JJ., concur.


author: DAMOORGIAN, J.

text:
    Deborah A. WATTS, an individual, and Robert L. Watts, an individual, Appellants, v. BENEFICIAL FLORIDA, INC., a Delaware corporation, Appellee.
    No. 4D10-5287.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2012.
    Rehearing Denied Aug. 6, 2012.
    David H. Charlip of Charlip Law Group, LC, Aventura, for appellants.
    Jason Daniel Joffee and Traci H. Rollins of Squire, Sanders & Dempsey (US) LLP, West Palm Beach, for appellee.
   DAMOORGIAN, J.

Deborah A. Watts and Robert L. Watts timely appeal an amended order granting Beneficial Florida, Inc.’s motion for summary judgment. We reverse.

Appellants entered into a loan agreement with Beneficial, which was secured by a mortgage on their residence. After the loan closed, Beneficial realized that there was an error in the Truth in Lending Act (“TILA”) disclosures, 15 U.S.C. § 1601, et seq., provided to Appellants in connection with the loan. Beneficial provided Appellants with a corrected disclosure and a “Notice of Right to Cancel,” pursuant to 15 U.S.C § 1635(a). Appellants elected to . cancel the loan. Beneficial requested that Appellants repay the amount of $311,340.63. Appellants failed to tender the Net Loan Proceeds to Beneficial and demanded that Beneficial cancel the loan before they would pay the amount sought by Beneficial.

Because Beneficial wanted to seek a conditional release of its mortgage lien, it filed an action for declaratory judgment. Appellants filed a pro se answer to the complaint stating that the security interest was void upon Beneficial’s receipt of their notice of cancellation. Accordingly, Beneficial was required to remove the mortgage lien. They also asserted, among other things, that the loan was predatory and that Beneficial lied to them regarding the terms of the mortgage.

Beneficial moved for summary judgment in September of 2010. In its motion, Beneficial argued that although its security interest became void upon rescission by Appellants, 15 U.S.C. § 1635(b), the trial court could modify that procedure according to Regulation Z, 12 C.F.R. § 226.1, et seq. Beneficial requested that the trial court condition the release of the mortgage upon receipt of payment by Appellants. Appellants filed a response to the motion essentially arguing that TILA required immediate cancellation of the mortgage upon execution of the Notice of Right to Cancel. Less than a month after the motion for summary judgment was filed, the case was before the trial court for a case management conference. For reasons which cannot be fully explained, the trial court dismissed the case for lack of prosecution.

Unaware of the dismissal of the case, Beneficial noticed its summary judgment motion for hearing to be held in November of 2010. At the hearing, having realized that the suit had been improperly dismissed for lack of prosecution, the trial court rescinded the dismissal of the suit. The trial court then entertained the argument on the motion for summary judgment. The trial court granted Beneficial’s motion and ordered Appellants to tender the Net Loan Proceeds within twenty-one days or provide a loan commitment for the same amount. Upon receipt of the funds, Beneficial was required to cancel its mortgage. In the event the amount was not tendered, the order reinstated the mortgage under its original terms. However, Beneficial was required to notify all credit reporting agencies to remove any negative reports received by them from Beneficial in connection with the loan. This appeal follows.

We first address whether the trial court should have proceeded to hear argument on the summary judgment motion after vacating the order of dismissal. Although Beneficial’s motion was properly noticed, at that point in time the case had been dismissed. And, while we agree that the dismissal was erroneous and the court properly vacated the dismissal, the record clearly reflects that Appellants, who appeared pro se, were under the impression that the case had concluded and that Beneficial would have to re-file the action. Our reading of the record leads us to the inescapable conclusion that the Appellants were not prepared to argue the motion because they believed the case had been dismissed earlier. Accordingly, although we hold the trial court did not err when it reinstated Beneficial’s suit, it did err by proceeding to immediately hear argument on the motion for summary judgment immediately after vacating its order of dismissal.

Turning to whether the case was ripe for summary judgment, we conclude that the case was not ripe because the answer identified certain alleged practices engaged in by Beneficial, which the trial court was required to consider before it exercised its equitable jurisdiction. See Williams v. Homestake Mortg. Co., 968 F.2d 1137, 1139-40 (11th Cir.1992); Yamamoto v. Bank of New York, 829 F.3d 1167, 1171 (9th Cir.2003).

While we recognize the possibility that the trial court may reach the same resolution, it is nonetheless required to afford Appellants the opportunity to present the details of Beneficial’s alleged transgressions before exercising its equitable jurisdiction.

. Reversed and Remanded for further proceedings.

WARNER and CONNER, JJ., concur.

      . fThis amount was referred to as the “Net Loan Proceeds” because the amount Appellants were being asked to repay was the amount of the loan reduced by all interest, origination fees, servicing fees, and principal paid.

      . Apparently Beneficial’s counsel did not receive notice of the case management conference and was not present at the conference.

      . The trial court was advised that the waiver of the accrued interest was significant because no mortgage payments had been made for approximately two years.

      . In Williams, the Eleventh Circuit described the factors that a court should consider:
      [T]he district court should consider traditional equitable notions, including such factors as the severity of [the creditor's] TILA violations and whether [the mortgagor] has the ability to repay the principal amount. While the goal should always be to “re-stor[e] the parties to the status quo ante,” ... rescission must also maintain its vitality as an enforcement tool.

        Williams, 968 F.2d at 1142 (emphasis added) (footnote omitted).


text:
    Juan I. PACHECO, Appellant, v. INDYMAC FEDERAL BANK, F.S.B., Appellee.
    No. 4D11-999.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2012.

      Jay L. Farrow of Farrow Law, P.A., Davie, for appellant.
    Jeffery M. Gano of Florida Default Law Group, P.L., Tampa, for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s motion for relief from final judgment on the authority of Phadael v. Deutsche Bank Trust Co. Americas, 83 So.3d 893 (Fla. 4th DCA 2012), which holds that the failure to raise the affirmative defense of lack of standing of the plaintiff in a mortgage foreclosure ease precludes relief from judgment pursuant to Florida Rule of Civil Procedure 1.540(b).

In an unsworn motion for relief from judgment, appellant claims that the bank lacked standing when it filed the complaint to foreclose the mortgage, because the mortgage and note were not held by the bank at the time suit was filed. The complaint, however, alleged that the bank was the owner and holder of the note and mortgage. A copy of the mortgage, an assignment which occurred on the date of the complaint was filed, and the original note with an allonge were filed with the court at the time of summary judgment.

While this case differs from Phadael in that the appellant filed a pro se answer to the complaint to foreclose the mortgage, he did not raise the issue of standing as an affirmative defense and did not contest the motion for summary judgment which ended in the judgment of foreclosure. He did not raise the issue in a motion for rehearing from the final judgment. Consistent with Phadael, we hold that appellant cannot raise the issue of standing for the first time months after the final judgment in a motion for relief brought under Rule 1.540(b).

Secondarily, appellant contends that he was at least entitled to an eviden-tiary hearing on the issue of fraud. A movant may be entitled to an evidentiary hearing when a Rule 1.540(b)(3) motion sufficiently specifies the fraud and explains why the fraud would allow the court to set aside the judgment. Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994). Here, the fraud alleged is that the bank did not have standing at the time of filing the complaint. While appellant appears to rely on the record documents, they do not support a claim of fraud. The unsworn allegations of the motion are insufficient to satisfy the appellant’s burden to show fraud with precision. See Freemon v. Deutsche Bank Trust Co. Americas, 46 So.3d 1202, 1204 (Fla. 4th DCA 2010). The trial court did not err in summarily denying appellant’s motion.

Affirmed.

WARNER, DAMOORGIAN and CONNER, JJ., concur.


text:
    Edward CISNEROS, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D11-2688, 4D11-2689.
    District Court of Appeal of Florida, Fourth District.
    July 5, 2012.
    Jonathan S. Friedman, Fort Lauderdale, for appellant.
    No appearance required for appellee.
   PER CURIAM.

This case is sua sponte consolidated with Cisneros v. State, case no. 4D11-2689, as the two appeals concern the same appellant, the same plea challenge and same trial court order of summary denial.

We affirm the trial court’s summary denial of appellant’s motions to vacate plea and sentence filed pursuant to Florida Rule of Criminal Procedure 3.850, following his no contest pleas to possession of cocaine and possession of marijuana in case 08-4070CF10A, and his no contest pleas to home burglary in case 08-495CF10A. After his pleas, he alleges he was informed that he was in imminent danger of removal proceedings and subject to a detainer by immigration authorities. He claims that counsel did not advise him about the immigration consequences of his pleas and that had he been properly advised, he would not have entered the pleas.

Appellant’s reliance on Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), recognizing ineffective assistance of trial counsel claims where a defendant is misadvised on deportation consequences of a plea, is misplaced because that decision does not apply retroactively. See Smith v. State, 85 So.3d 551 (Fla. 4th DCA 2012) (citing McCalla v. State, 77 So.3d 845 (Fla. 4th DCA 2012), and other authorities).

Further, the record attachment to the State’s response filed in the trial court, which the trial court attached and incorporated as the basis for its summary denial of relief, demonstrated that the trial judge expressly informed appellant that if he was not a U.S. citizen, taking the pleas could result in deportation. Appellant told the judge he understood this. This precludes a claim of ineffective assistance of trial counsel on this ground. See Flores v. State, 57 So.3d 218 (Fla. 4th DCA 2010). As in Flores, we note that this decision expressly and directly conflicts with Hernandez v. State, 61 So.3d 1144, 1145 (Fla. 3d DCA 2011), review granted, 81 So.3d 414 (Fla.2012), in which the third district held that Padilla rendered Florida’s existing standard deportation warning “constitutionally deficient” under its circumstances. We certify the conflict and certify a question of great public importance:

DOES THE IMMIGRATION WARNING IN FLORIDA RULE OF CRIMINAL PROCEDURE 3.172(c)(8) BAR IMMIGRATION-BASED INEFFECTIVE ASSISTANCE OF TRIAL COUNSEL CLAIMS BASED ON THE UNITED STATES SUPREME COURT’S DECISION IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010)?

Affirmed; Conflict and Question Certified.

WARNER, TAYLOR and HAZOURI, JJ., concur.


text:
    Alfonso JENKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2356.
    District Court of Appeal of Florida, Third District.
    July 11, 2012.
    Alfonso Jenkins, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTIÑAS, EMAS, and FERNANDEZ, JJ.
   PER CURIAM.

Alfonso Jenkins petitions this Court for a writ of habeas corpus. This Court ordered Jenkins to show cause why he should not be prohibited from filing successive pro se motions in this Court. See Carter v. State, 1 So.3d 253 (Fla. 3d DCA 2008) (holding a court can restrict future pro se pleadings if it first provides a pro se litigant notice and an opportunity to respond).

After considering Jenkins’ response to this Court’s show cause order, we conclude that good cause has not been shown. Jenkins pled guilty to the charges of sexual battery, robbery, and burglary with an assault with a dangerous weapon for which he was convicted. He received a sentence of life in prison. Since his conviction, Jenkins has filed numerous and successive motions for post-conviction relief in the trial court, challenging his conviction and sentence. The trial court denied all the motions, and this Court has either affirmed or dismissed the appeals on at least eleven occasions: Jenkins v. State, 3D90-650; Jenkins v. State, 3D90-1633; Jenkins v. State, 3D91-1610; Jenkins v. State, 3D94-634; Jenkins v. State, 3D94-2149; Jenkins v. State, 656 So.2d 160 (1995) 3D95-1414; Jenkins v. Singletary, 683 So.2d 497 (1996) 3D96-2390; Jenkins v. Singletary, 683 So.2d 497 (Fla. 3d DCA 1996); Jenkins v. State, 718 So.2d 190 (1998) 3D98-75; Jenkins v. State, 48 So.3d 61 (Fla. 3d DCA 2010); Jenkins v. State, 51 So.3d 469 (Fla. 3d DCA 2010).

Accordingly, Jenkins is now prohibited from filing any further pro se appeals, pleadings, motions, or petitions both here and in the trial court relating to his convictions and sentences in lower court case numbers 81-21695, 81-21693, 81-18468, and 81-21694. See Prieto v. State, 990 So.2d 588 (Fla. 3d DCA 2008). We direct the Clerk of the Third District Court of Appeal to refuse to accept any such papers relating to lower court case numbers 81-21695, 81-21693, 81-18468, and 81-21694 unless an attorney, who is a duly licensed member of the Florida Bar in good standing, has reviewed and signed them.


author: SUAREZ, J.

text:
    Christopher James GREEN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1503.
    District Court of Appeal of Florida, Third District.
    July 11, 2012.
    Christopher James Green, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SUAREZ and FERNANDEZ, JJ.
   SUAREZ, J.

Affirmed. We treat this appeal as an appeal from the denial of a writ of habeas corpus and affirm the trial court’s denial.


text:
    Emilio L. MOGENA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1436.
    District Court of Appeal of Florida, Third District.
    July 11, 2012.
    Emilio L. Mogena, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011); Adams v. State, 76 So.3d 367 (Fla. 3d DCA 2011); Ortega v. State, 76 So.3d 346 (Fla. 3d DCA 2011). See also State v. Adkins, 71 So.3d 184 (Fla. 2d DCA 2011), review granted, 71 So.3d 117 (Fla.2011).


text:
    Travis BECKLES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1441.
    District Court of Appeal of Florida, Third District.
    July 11, 2012.
    Travis Beckles, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG and SALTER, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722, 722-23 (Fla. 3d DCA 2011) (holding that “section 893.13, as amended by section 893.101, Florida Statutes (2002), is constitutional”; rejecting Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289, 1308 (M.D.Fla.2011), in which a federal court held that section 893.13, Florida Statutes (2004), “violates the due process clause and that the statute is unconstitutional on its face”); Ortega v. State, 76 So.3d 346 (Fla. 3d DCA 2011); see also State v. Washington, — So.3d - (Fla. 3d DCA 2012); Bryant v. State, 89 So.3d 1073 (Fla. 3d DCA 2012); Alvarez v. State, 88 So.3d 430 (Fla. 3d DCA 2012); State v. Adkins, 71 So.3d 184 (Fla. 2d DCA 2011), review granted, 71 So.3d 117 (Fla.2011).


text:
    Howard H. BABB, Jr., Public Defender, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-2285.
    District Court of Appeal of Florida, Fifth District.
    July 13, 2012.

      Howard H. Babb, Jr., Public Defender, and William A. Miller, Chief Assistant Public Defender, Ocala, for Petitioner.
    No Appearance for Respondent.
   PER CURIAM.

Howard H. Babb, Jr., Public Defender, seeks a writ of prohibition to vacate the trial court’s order appointing the Office of the Public Defender to represent a death-sentenced prisoner in a clemency proceeding.

The prisoner at issue, William F. Happ [“Happ”], was convicted of first degree murder, kidnapping, sexual battery likely to cause serious personal injury and burglary of a conveyance with battery in Citrus County, and was sentenced to death. At his May 1995 trial, Happ was represented by attorney Jeff Pfister and was represented on direct appeal by the Seventh Judicial Circuit Public Defender. Various forms of postconviction relief have been, or are being prosecuted on his behalf by the Office of Capital Collateral Representative, Middle Region.

In a March 26, 2012, letter, the Coordinator of the Office of Executive Clemency informed the Chief Judge of the Fifth Circuit that “the Governor respectfully requests appointment of counsel as soon as possible to represent Mr. Happ in the clemency process.” In response, the Chief Judge issued an order appointing the Office of the Public Defender in and for Citrus County to represent Mr. Happ “for purposes of clemency.”

Petitioner asserts that the Governor has recently asked chief judges in several parts of Florida to appoint public defenders to prosecute executive clemency cases on behalf of death-sentenced prisoners from their circuits and that this is a departure from decades of settled practice. Petitioner contends that clemency is particularly an executive function and that appointment by the judiciary of the public defender to appear in the clemency proceedings is a violation of separation of powers. It is his position that counsel must be provided and paid by the Executive Branch.

Petitioner acknowledges that the Governor’s request for the appointment of the public defender was based on three Florida Statutes: section 27.51(5)(a), 27.5303(4)(b) and 27.5304(5)(b), all of which are legislative grants of authority to the courts to appoint counsel in clemency cases. Codified in Part III of Chapter 27, “Public Defenders and Other Court-Appointed Counsel.” Section 27.51(5)(a), Florida Statutes (2011) provides:

When direct appellate proceedings prosecuted by a public defender on behalf of an accused and challenging a judgment of conviction and sentence of death terminate in an affirmance of such conviction and sentence, whether by the Florida Supreme Court or by the United States Supreme Court or by expiration of any deadline for filing such appeal in a state or federal court, the public defender shall notify the accused of his or her rights pursuant to Rule 3.850, Florida Rules of Criminal Procedure, including any time limits pertinent thereto, and shall advise such person that representation in any collateral proceedings is the responsibility of the capital collateral regional counsel. The public defender shall then forward all original files on the matter to the capital collateral regional counsel, retaining such copies for his or her files as may be desired. However, the trial court shall retain the power to appoint the public defender or other attorney not employed by the capital collateral regional counsel to represent such person in proceedings for relief by executive clemency pursuant to ss. 2740 and 27.5303

[Emphasis added]. According to Petitioner, some version of this statute has been in effect for over forty years. Previously, courts appointed private lawyers to represent capital defendants both at trial and on appeal. If the death sentence was imposed and affirmed on appeal, the private lawyer who handled the appeal was authorized to receive “up to” an additional $1,000 to handle the clemency matter as well. After the advent of the public defender system, “public defender” was added to implement the change.

Petitioner contends that the legislative authorization for the trial court to appoint the public defender in executive clemency proceedings is contrary to the general law that establishes the public defender’s duties, and it intrudes impermissibly on the management of the office of the elected public defender because, as custodian of public funds, Petitioner is not authorized to expend funds for purposes not appropriated by the Legislature. Section 27.51 (5)(a) is a general law, however, and although we agree that the language of the statute is odd, there also does not seem to be much doubt that it authorizes a court to appoint the public defender in an executive clemency case.

We do not see the constitutional impediment in the Legislature’s authorization for the courts to appoint the public defender to appear on behalf of a prisoner in clemency proceedings. Art. 5, § 18, Fla. Const. Doing so does not intrude on the power of the executive to decide clemency applications or create an excessive entanglement with an executive function. Nor can we agree that a clemency proceeding has no connection to the State’s system of justice. Scholars examining the clemency process suggest otherwise:

The roots of clemency in America extend at least as far back as English medieval law. The early criminal law was uncompromising. Defenses based on justification and excuse, including self-defense, insanity, infancy and others, were not recognized. However, the crown was invested with the authority to make appropriate adjustments to the inflexible application of the law by pardoning offenders and commuting their sentences. Because many felonies carried mandatory punishment by death under the common law, clemency played an especially important and prominent role in capital cases.
[T]he [United States Supreme] Court also has taken pains to reaffirm the important role that executive clemency serves in the administration of justice. As Justice Holmes observed:
A pardon in our day is not a private act of grace from an individual happening to possess power. It is part of the Constitutional scheme. When granted it is the determination of the ultimate authority that the public welfare will be better served by inflicting less than what the judgment fixed.
The Court’s lead opinion in Gregg v. Georgia recognized that a state capital-punishment system that did not comprehend executive clemency “would be totally alien to our notions of criminal justice.” Later, in Herrera v. Collins, the Court observed that “all ... States that authorize capital punishment have constitutional or statutory provision for clemency,” and emphasized that “[executive clemency has provided the ‘fail safe’ in our criminal justice system.” The Court’s most recent, and most direct consideration of executive clemency as an aspect of a state’s capital-punishment system, heralded clemency as “traditionally unavailable to capital defendants as a final and alternative avenue of relief....”

James R. Acker & Charles S. Lanier, May God — or the Governor — Have Mercy: Executive Clemency and Executions in Modern Death-Penalty Systems, 86 Crim. L. Bull., 200, 205-07 (2000) (Footnotes omitted).

Although we do not see separation of powers as an impediment to the public defender continuing its representation of a condemned prisoner through the final process available to spare his life, we appreciate the plight of the public defenders and their assistants who are expected to take on ever increasing workloads with constantly diminishing resources. These men and women fill an essential role in our system of justice, but do not get the credit they deserve for their dedication to their clients and their contributions to the law. They are not an infinitely elastic resource, however. If clemency proceedings are indeed a new burden on their workload, without legislative funding support, it is hard to see how they can continue to fulfill their constitutional duties in any forum.

Petition for Writ of Prohibition DENIED.

GRIFFIN, SAWAYA and COHEN, JJ., concur.

      . Petitioner asserts that, as the Public Defender of the Fifth Circuit for close to thirty years, he has never before been appointed to appear as clemency counsel; nor is he aware of any other public defender office that, until recently, has been appointed to appear as clemency counsel.

      . But see, Reineta v. State, 559 So.2d 1132, 1133, n. 2 (Fla.1990) ("Generally, trial courts appoint the public defender’s office to represent indigent death-sentenced individuals in executive clemency proceedings.”).

      . We also observe that the legislation does not purport to mandate the appointment.


author: ORFINGER, C.J.

text:
    James ROUGHTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-652.
    District Court of Appeal of Florida, Fifth District.
    July 13, 2012.

      James S. Purdy, Public Defender, and Dee Ball, Assistant Public Defender, Day-tona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, C.J.

James Roughton appeals his convictions for sexual battery on a person under twelve years of age and lewd or lascivious molestation of a victim less than twelve years of age. Mr. Roughton asserts that because his convictions for sexual battery and lewd or lascivious molestation arise from the same criminal act, they violate his constitutional protections against double jeopardy. The State concedes that the convictions were based on the same act, but argues that the convictions do not violate double jeopardy. We affirm both convictions.

“Determining whether double jeopardy is violated based on undisputed facts is a purely legal determination, so the standard of review is de novo.” Binns v. State, 979 So.2d 439, 441 (Fla. 4th DCA 2008). “The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’ ” Valdes v. State, 3 So.3d 1067, 1070 (Fla.2009) (quoting M.P. v. State, 682 So.2d 79, 81 (Fla.1996)). Absent clear legislative intent to authorize separate punishments, courts employ the Blockburger “same elements” test, ie., “whether each offense has an element that the other does not,” codified at section 775.021(4)(a), Florida Statutes (2008). If each of the offenses has an element that the other does not, the court must then determine if one of the exceptions set forth in section 775.021(4)(b) applies to preclude separate convictions and sentences. Valdes, 3 So.3d at 1070.

Florida courts have reached differing conclusions about whether sexual battery and lewd or lascivious molestation have different elements. The Fourth District Court holds that the offenses of lewd or lascivious molestation and sexual battery each contain an element that the other does not. As a result, that court concluded that a conviction of both, arising from the same underlying act, is not a violation of double jeopardy. See, e.g., Darville v. State, 995 So.2d 1025, 1027 (Fla. 4th DCA 2008) (“We have no difficulty in ascertaining that the lewd and lascivious molestation offense contains an element not found in the sexual battery conviction, and vice versa.”). Conversely, the First and Second District Courts both hold that convictions of sexual battery and lewd or lascivious molestation arising from the same criminal act are barred by double jeopardy. See, e.g., Berlin v. State, 72 So.3d 284, 284-85 (Fla. 1st DCA 2011); Smith v. State, 41 So.3d 1041, 1043 (Fla. 1st DCA 2010) (“Lewd or lascivious molestation requires proof of an intentional touching of certain body parts, and sexual battery requires proof of penetration or union with those same body parts. The criminal act under both section 794.011(2)(a) and section 800.04(5) is an intentional touching of the type prohibited by the respective statutes. Under the Blockburger test, the two charged offenses arise from a single criminal act and constitute the same offense.”); Robinson v. State, 919 So.2d 623, 623 (Fla. 2d DCA 2006) (holding double jeopardy principles preclude convictions for both sexual battery and lewd or lascivious molestation based on one act); Johnson v. State, 913 So.2d 1291, 1291 (Fla. 2d DCA 2005).

Here, there is no specific statement of legislative intent to have sexual battery and lewd or lascivious molestation punished separately when the two crimes arise from a single act. However, section 775.021(4)(a) establishes the general legislative intent to punish separate offenses that arise from the same act. Thus, we must utilize the Blockburger “same elements” analysis. Roberts v. State, 39 So.3d 372, 373 (Fla. 1st DCA 2010). Comparing the lewd or lascivious and sexual battery statutes demonstrates that their elements are different. Lewd or lascivious molestation requires a specific lewd or lascivious intent, which sexual battery does not. Admittedly, lewd or lascivious intent is often associated with sexual battery, however, it is not an element of that crime, and may be committed without the intent for sexual satisfaction. Surace v. State, 378 So.2d 895 (Fla. 3d DCA 1980) (holding intent to obtain sexual gratification not essential element of sexual battery); see State v. Wiley, 181 Vt. 300, 917 A.2d 501, 505 (2007) (distinguishing sexual assault from lewd or lascivious conduct for double jeopardy purposes based upon intent).

In addition, the anatomy protected by the statutes is, or may be, different. For example, touching the buttocks of a child in a lewd manner would constitute a lewd or lascivious molestation, but would not constitute a sexual battery. Instead, sexual battery requires either penetration or oral, anal or vaginal union with the sexual organ of another, neither of which are elements of lewd or lascivious molestation. Further, the two offenses are not subject to any of the three exceptions set out in section 775.021(4)(b) in that they do not require identical elements of proof, are not degrees of the same offense as provided by statute, nor is one subsumed by the other. Hence, because they are separate statutory offenses not subject to any of the enumerated exceptions, convictions of lewd or lascivious molestation and sexual battery arising from the same act do not violate the prohibition against double jeopardy.

For these reasons, we affirm Mr. Roughton’s convictions. In doing so, we certify direct and express conflict with Berlin v. State, 72 So.3d 284 (Fla. 1st DCA 2011); Smith v. State, 41 So.3d 1041 (Fla. 1st DCA 2010); Robinson v. State, 919 So.2d 623 (Fla. 2d DCA 2006); and Johnson v. State, 913 So.2d 1291 (Fla. 2d DCA 2005).

AFFIRMED; CONFLICT CERTIFIED.

PALMER and EVANDER, JJ., concur.

      . Both counts of the information allege that Mr. Roughton placed his mouth on the victim’s penis.

      . Although the trial court adjudicated Mr. Roughton guilty of lewd or lascivious molestation, it failed to impose a sentence. Withholding the sentence on one of the two convictions does not cure a double jeopardy violation. See Bolding v. State, 28 So.3d 956 (Fla. 1st DCA 2010).

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

      .Section 775.021(4)(a), Florida Statutes (2008), states:
      Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.

      . Section 775.021(4)(b), Florida Statutes (2008), states:
      The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
      1. Offenses which require identical elements of proof.
      2. Offenses which are degrees of the same offense as provided by statute.
      3.Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

      . The lewd or lascivious statute was substantially amended in 1999. Under the previous language, the proscribed acts expressly excluded "the crime of sexual battery.” Welsh v. State, 850 So.2d 467, 471 n. 5 (Fla.2003). Hence, cases decided prior to that amendment are not particularly helpful.

      . We find no merit in Mr. Roughton’s Williams rule argument and decline to address it.


author: PALMER, J.

text:
    Naim JARVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1899.
    District Court of Appeal of Florida, Fifth District.
    July 13, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker and Nora H. Hall, Assistant Public Defenders, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PALMER, J.

Naim Jarvis (defendant) appeals his judgment and sentence, arguing that the trial court erred in denying his motion to suppress. We affirm. However, we remand for correction of a scrivener’s error. The judgment incorrectly states that the defendant pled nolo contendere to a third-degree felony when he actually pled to a first-degree misdemeanor.

AFFIRMED and REMANDED.

JACOBUS, J., and MONACO, D.A., Senior Judge, concur.


text:
    Anthony WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2953.
    District Court of Appeal of Florida, Fifth District.
    July 13, 2012.
    James S. Purdy, Public Defender, and Leonard R. Ross, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Anthony Williams appeals an order finding no probable cause to release him from his involuntary civil commitment as a sexually violent offender pursuant to sections 394.910-.932, Florida Statutes (2010). Finding that he met his burden of proof at the limited probable cause hearing held pursuant to section 394.918(3), we reverse the trial court’s order and remand for trial held pursuant to section 394.918(4).

Probable cause is a question of law subject to de novo review. Pagan v. State, 830 So.2d 792, 806 (Fla.2002). In determining whether a petitioner has met the burden of proof to establish probable cause, the court should base its decision “upon an analysis of the sufficiency of the evidence presented, rather than by weighing the evidence presented by both parties .... ” Westerheide v. State, 888 So.2d 702, 706 (Fla. 5th DCA 2004). In other words, if the committed person presents evidence supporting release at a limited probable cause hearing, the trial court considers only that evidence to determine probable cause; it does not weigh the evidence against any information from the Florida Civil Commitment Center or other evidence presented by the State. In re Commitment of Allen, 927 So.2d 1070, 1074 (Fla. 2d DCA 2006).

Having considered this matter de novo, we reverse the order finding no probable cause and remand for a trial under section 394.918(4).

REVERSED and REMANDED.

ORFINGER, C.J., PALMER and JACOBUS, JJ., concur.


text:
    Carl Barnett HANSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3109.
    District Court of Appeal of Florida, Fifth District.
    July 13, 2012.
    James S. Purdy, Public Defender, and Rose M. Levering, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

The evidence presented in this case was legally insufficient to establish that the pursuing officer had “agency insignia and other jurisdictional markings prominently displayed on the vehicle” as required by section 316.1935(2), Florida Statutes (2010). See Slack v. State, 30 So.3d 684 (Fla. 1st DCA 2010); Gorsuch v. State, 797 So.2d 649 (Fla. 3d DCA 2001).

However, because the evidence was sufficient to support a conviction for the lesser included offense set forth in section 316.1935(1) and the jury necessarily found that the elements of such lesser offense were proven, we remand, pursuant to section 924.34, Florida Statutes (2010), for the trial court to enter a judgment of conviction for that offense. See Slack; Sanner v. State, 63 So.3d 934 (Fla. 4th DCA 2011); Erskine v. State, 23 So.3d 1207 (Fla. 3d DCA 2009).

REVERSED and REMANDED.

EVANDER and COHEN, JJ. and MONACO, D.A., Senior Judge, concur.