author: POLSTON, J. LEWIS, J.,

text:
    STATE of Florida, Petitioner, v. Joseph Eugene McFADDEN, Respondent.
    No. SC09-1755.
    Supreme Court of Florida.
    Oct. 7, 2010.
    Rehearing Denied Dec. 8, 2010.
    Bill McCollum, Attorney General, Tallahassee, FL, Celia Terenzio, Bureau Chief, Helen C. Hvizd and Myra J. Fried, Assistant Attorneys General, West Palm Beach, FL, for Petitioner.
    Carey Haughwout, Public Defender, and Christine C. Geraghty, Assistant Public Defenders, Fifteenth Judicial Circuit, West Palm Beach, FL, for Respondent.
   POLSTON, J.

The State seeks review of the decision of the Fourth District Court of Appeal in McFadden v. State, 15 So.3d 755 (Fla. 4th DCA 2009), on the grounds that it expressly and directly conflicts with the decision of this Court in State v. Evans, 770 So.2d 1174 (Fla.2000). The issue before this Court is whether Florida Rule of Criminal Procedure 8.220(b)(1)(B) requires the State to disclose to a defendant an oral, unrecorded witness statement if that statement does not materially change a prior recorded statement previously provided to the defendant by the State. We hold that, pursuant to Evans, rule 3.220(b)(1)(B) does not apply to such oral, unrecorded statements. Accordingly, we quash the decision of the Fourth District.

I. BACKGROUND

Joseph McFadden was charged with three felony counts arising out of an armed robbery that occurred on April 20, 2007. At trial, the defense called McFadden’s sister, who testified that there had never been a gun in the house she shared with McFadden. McFadden, 15 So.3d at 756. It was the first time McFadden’s sister had ever made this claim on record. In fact, the only recorded statement McFadden’s sister ever made regarding a gun, prior to testifying at trial, was during her deposition, when she merely stated that McFadden was not carrying a shotgun when he entered the house on the evening of the armed robbery. In her deposition, she was not asked and made no claims regarding whether there had ever been a gun in the house, or whether she had ever reported a gun being in the house.

The State, surprised by McFadden’s sister’s testimony at trial, called a sheriffs deputy on rebuttal to testify regarding a prior inconsistent verbal statement McFadden’s sister had made. See id. The deputy testified that McFadden’s sister had spoken with him on the day before the armed robbery to report her concern about a shotgun McFadden was keeping in their house. Id. The defense immediately objected to this testimony, but the trial court overruled the objection and allowed the deputy to testify regarding this prior conversation. Id. McFadden was ultimately convicted on all counts and received a life sentence.

On appeal to the Fourth District, McFadden argued that the State had violated discovery required by rule 3.220(b)(1)(B), by not disclosing his sister’s oral statement before trial. The State argued that disclosure was unnecessary because the oral statement was never written or otherwise recorded and therefore was not subject to the disclosure requirements of the rule. Id. at 757. The Fourth District agreed with McFadden that the nondisclosure was a discovery violation, concluding that “the State’s failure to disclose the substance of the detective’s testimony was directly contrary to the purpose and spirit of [rule 3.220(b)(1)(B)].” Id. The Fourth District explained that, accordingly, the trial court should have conducted a Richardson hearing to determine the effect of this discovery violation, and McFadden was granted a new trial. See id. at 757-58. The State sought review of the decision of the Fourth District in this Court.

II. ANALYSIS

Rule 3.220(b)(1)(B) requires the State to disclose to the defendant “the statement of any person” who is a -witness as defined by rule 3.220(b)(1)(A). The types of statements subject to disclosure are defined as follows:

The term “statement” as used herein includes a written statement made by the person and signed or otherwise adopted or approved by the person and also includes any statement of any kind or manner made by the person and written or recorded or summarized in any writing or recording. The term “statement” is specifically intended to include all police and investigative reports of any kind prepared for or in connection with the case, but shall not include the notes from which those reports are compiled[.]

Fla. R.Crim. P. 8.220(b)(1)(B).

On its face, the rule does not include unrecorded oral statements. Additionally, this Court in Evans discussed the meaning of rule 3.220(b)(1)(B), and whether it applies to oral witness statements that have not been written or recorded:

Courts construing rule 3.220(b)(1)(B) have determined that the State is not required to disclose to the defendant a witness’s oral statement when such statement has not been reduced to writing or recorded in a manner prescribed by the rule. See, e.g., Olson v. State, 705 So.2d 687, 690-91 (Fla. 5th DCA 1998) (stating that the clear implication of rule 3.220(b)(1)(B) is that witness statements “if not written or recorded, are not discoverable”); Johnson v. State, 545 So.2d 411, 412 (Fla. 3d DCA 1989) (determining that State was not required to disclose to the defendant an oral, unrecorded statement made by a state witness to the prosecutor); Whitfield v. State, 479 So.2d 208, 215-16 (Fla. 4th DCA 1985) (determining that witness’s oral statements to prosecutor after suppression hearing were not discoverable, in part because such statements were not written or recorded); cf. Watson v. State, 651 So.2d 1159, 1163-64 (Fla.1994) (determining that oral statement made by State’s expert witness was not discoverable, as it was not a “statement” as defined in rule 3.220(a)(l)(ii) (1988), the predecessor to current rule 3.220(b)(1)(B)).

Evans, 770 So.2d at 1180. Acknowledging this settled interpretation of rule 3.220(b)(1)(B), we recognized an exception in Evans that requires disclosure when “the oral statement materially alters a pri- or written or recorded statement previously provided by the State to the defendant.” Id. We explained that, ordinarily, “unlike failure to name a witness, changed testimony does not rise to the level of a discovery violation and will not support a motion for a Richardson inquiry.” Id. at 1178 (quoting Bush v. State, 461 So.2d 936, 938 (Fla.1984)). However, when a witness is “transformed from a witness who ‘didn’t see anything’ into an eyewitness — indeed, apparently the only eyewitness — to the [crime,] ... the State’s nondisclosure of the changes ... was tantamount to failing to name a witness at all” and therefore warranted a Richardson hearing. Id. at 1182.

But the limited exception set forth in Evans is not applicable to this case, where the oral statement at issue occurred before McFadden’s sister made any recorded case-related statements. In fact, the prior oral statement to the deputy, which was never recorded in any manner, was made before the events underlying this case arose. Moreover, the oral statement that McFadden kept a shotgun in the house was not a material departure from any recorded statement McFadden’s sister had made and was certainly not a radical change in testimony, as was the basis for requiring disclosure in Evans. Rather, in her deposition, McFadden’s sister stated only that McFadden was not carrying a shotgun when he entered the house on the evening of the armed robbery. She made no claims regarding whether a gun had ever been present in the house. And because the earlier oral statement was not inconsistent with anything McFadden’s sister said in her deposition or in any other recorded statement, it did not “materially alter[ ] a prior written or recorded statement previously provided by the State to the defendant.” Id at 1180. Therefore, according to Evans, the State was not required to disclose the oral statement to McFadden.

Florida district courts have repeatedly held, consistent with Evans, that rule 3.220(b)(1)(B) does not require the State to disclose a witness’s oral statement when that statement was not written or recorded. See, e.g., Burkes, 946 So.2d at 37; Olson, 705 So.2d at 691; Johnson, 545 So.2d at 412. “To do otherwise would require the prosecutor to record and disclose virtually any case[-]related conversation. ...” Burkes, 946 So.2d at 37. As the Fifth District has explained, when information from a witness is not a statement as defined by rule 3.220(b)(1)(B), “the State [i]s under no obligation to disclose” the information if that information is “not Brady material and [i]s not a material alteration to an existing written or recorded statement previously provided by the State to the defendant.” Id. at 36-37. In such circumstances of nondisclosure by the State, “no discovery violation [has] occurred and, consequently, there [i]s no need to conduct a Richardson hearing.” Id. at 37. Likewise, we hold that no discovery violation occurred here; therefore, there was no need for the trial court to conduct a Richardson hearing.

III. CONCLUSION

Applying our precedent in Evans, we quash the decision of the Fourth District and remand for further proceedings consistent with this opinion.

It is so ordered.

CANADY, C.J., and QUINCE, LABARGA, and PERRY, JJ., concur.

LEWIS, J., dissenting with an opinion.

PARIENTE, J., recused.

LEWIS, J.,

dissenting.

Common sense suggests that this case presents an issue of concern and raises many unanswered questions. Mr. McFadden was charged with crimes which involved the use and possession of a firearm. He presented a theory of self-defense that included a statement by his sister that a firearm had never been possessed within the residence where the crimes allegedly occurred. Suddenly, in the midst of trial, the State surprisingly presented previously undisclosed statements through the testimony of a police officer, who was not only known but also conveniently and immediately accessible to the State for the very purpose of impeaching the statements of the sister. Moreover, on appeal, the State conceded that the prosecutor was aware of prior statements by the sister with regard to firearms, and when the sister testified that there had never been a firearm in the residence, the prosecutor instantly stated, “That opens the door.” As a representative of the State of Florida, a prosecutor’s interest is not simply to win cases but to ensure that the law is applied fairly and justly. See Scipio v. State, 928 So.2d 1138, 1145 (Fla.2006) (quoting Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 79 L.Ed. 1314 (1935)). Thus, it is confounding that the State now asserts that there is nothing wrong with the situation that occurred during this trial.

Regardless of whether the statement was revealed during rebuttal, common sense dictates that this type of statement should not be disclosed for the first time during trial in a courtroom without the trial court conducting an inquiry as to whether a discovery violation occurred. This Court has consistently held that the chief purpose of the rules of discovery is to facilitate the truth-finding function of our justice system and to prevent trial by surprise or ambush. See Scipio, 928 So.2d 1138 at 1144; State v. Evans, 770 So.2d 1174, 1182 (Fla.2000); Binger v. King Pest Control, 401 So.2d 1310, 1314 (Fla.1981); Kilpatrick v. State, 376 So.2d 386, 388 (Fla.1979). Accordingly, once a possible discovery violation is brought to the attention of the trial court, the court can properly exercise its discretion only after it has made an adequate inquiry into all of the surrounding circumstances. See Richardson v. State, 246 So.2d 771, 775 (Fla.1971) (quoting Ramirez v. State, 241 So.2d 744, 747 (Fla. 4th DCA 1970)); see also Sears v. State, 656 So.2d 595, 596 (Fla. 1st DCA 1995) (citing Lowery v. State, 610 So.2d 657 (Fla. 1st DCA 1992); D.R. v. State, 588 So.2d 327 (Fla. 4th DCA 1991)). In holding that a harmless error analysis applies to the failure to conduct an adequate Richardson hearing, this Court noted that in the vast majority of cases, it is likely that an appellate court will be unable to determine from a cold record whether the error is harmless without the facts developed by a Richardson inquiry. See State v. Schopp, 653 So.2d 1016, 1019-1021 (Fla.1995). This is such a case.

As noted by Judge Hazouri below,

the error here was compounded by the failure of the trial judge to conduct a Richardson hearing. When McFadden’s counsel objected and asserted a discovery violation, the trial judge overruled the objection because he concluded the detective’s testimony was rebuttal and, therefore, not subject to a discovery violation. “There is neither a rebuttal nor impeachment exception to the Richardson rule.” Elledge v. State, 613 So.2d 434, 436 (Fla.1993); see also Portner v. State, 802 So.2d 442, 446 (Fla. 4th DCA 2001) (citing Elledge, 613 So.2d at 436).

McFadden v. State, 15 So.3d 755, 758 (Fla. 4th DCA 2009) (Hazouri, J., concurring specially) (footnote omitted). The majority focuses on whether Florida Rule of Criminal Procedure 3.220(b)(1)(B) requires the State to disclose oral, unrecorded witness statements if the statement does not materially change a prior recorded statement previously provided to the defendant by the State. This was not the basis for the trial court’s ruling below. The fundamental underpinnings of the majority’s analysis rest on the assumption that this statement was never recorded. However, without an adequate inquiry by the trial court, it is impossible to establish whether this statement was, in fact, recorded in some form elsewhere, such as by the other officer who testified in the case. Thus, it was necessary for the trial court to conduct a Richardson hearing to ascertain the circumstances surrounding the creation of the statement to determine whether a violation occurred.

Our system contains serious, fundamental flaws if we allow the State to play a disingenuous game of “hide the ball” without judicial inquiry into these actions. In my view, there are profound and concerning issues with the State possessing evidence that is damning to a defendant and not being required to disclose that evidence. When a party faces trial, it is necessary to know whether a witness is going to provide ruinous and devastating evidence. If we start down this path, parties will never know what statements they are required to produce. Moreover, the decision of the majority foreshadows the inevitable and undesirable result that key statements will not be placed into writing or recorded as a means to avoid production through discovery. It is the duty of the trial court to conduct hearings to ascertain and determine whether violations occur.

Accordingly, I must dissent and agree with the court below because the majority holds that a Richardson hearing was not required.

      . The State also asserts conflict with the decisions of the Fifth District Court of Appeal in both Burkes v. State, 946 So.2d 34 (Fla. 5th DCA 2006), and Olson v. State, 705 So.2d 687 (Fla. 5th DCA 1998), and the decision of the Third District Court of Appeal in Johnson v.

        State, 545 So.2d 411 (Fla. 3d DCA 1989). We have jurisdiction. See art. V, § 3(b)(3), Fla. Const.

      . Richardson v. State, 246 So.2d 771 (Fla.1971).

      . We review the district courts' construction of a procedural rule de novo. Barco v. School Bd. of Pinellas County, 975 So.2d 1116, 1121 (Fla.2008).

      . Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) (holding that the State must disclose material information within the State's possession or control that tends to negate the guilt of die defendant).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Randolph SHIFLET, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4773.
    District Court of Appeal of Florida, Fourth District.
    Oct. 6, 2010.
    Randolph Shiflet, South Bay, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s denial of appellant’s motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800(a). Appellant already raised this very issue in a prior motion, which the trial court denied, and this court affirmed on appeal. See Shiflet v. State, 956 So.2d 466 (Fla. 4th DCA 2007). In addition, as noted by the trial court, his claim that his sentence is illegal based upon State v. Huggins, 802 So.2d 276 (Fla.2001), is without merit, as the ruling of Huggins was abrogated by statute for all crimes committed after July 1, 2001, which would include the offense committed by appellant.

WARNER, POLEN and LEVINE, JJ., concur.


text:
    Troy JACKSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D09-4901.
    District Court of Appeal of Florida, Fourth District.
    Dec. 1, 2010.
    Rehearing Denied Feb. 4, 2011.
    Troy Jackson, Jasper, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the trial court’s order denying appellant’s Rule 3.800(a) motion to correct illegal sentence. Appellant was convicted of armed robbery and aggravated assault in 1995. The trial court sentenced him to forty years in prison as a habitual violent felony offender (“HVFO”) based on an earlier robbery conviction. In October 2009, appellant filed a motion to correct his sentence, claiming that section 775.084(5), Florida Statutes, requires two prior felony convictions before a defendant may be sentenced as an HVFO. The trial court properly rejected this argument, as “[a] defendant needs only one qualifying prior conviction in order to be sentenced as a habitual violent felony offender.” Hall v. State, 821 So.2d 1154, 1155 (Fla. 2d DCA 2002). The robbery conviction was sufficient to sustain appellant’s HVFO sentence.

We also affirm the trial court’s order enjoining appellant from filing any further pro se pleadings regarding his 1995 conviction. In May 2008, the trial court issued an order giving appellant the opportunity to show cause why he should not be prohibited from filing future post-conviction motions for relief. Instead of responding to the order to show cause, appellant simply filed another motion to correct. We find that the 2008 order gave appellant ample “notice and an opportunity to respond” prior to entering its order prohibiting further pro se filings. State v. Spencer, 751 So.2d 47, 48 (Fla.1999).

Finally, pursuant to Spencer, we order appellant to show cause within twenty (20) days of the date of this order why he should not be prohibited from filing future pro se post-conviction motions in this court challenging his 1995 conviction and sentence. This order acts as the notice and opportunity to respond required by Spencer. As he has in the trial court, appellant has filed repeated challenges to his conviction and sentence in this court that we deem frivolous and lacking in merit. A “highly-experienced prisoner litigant,” like appellant, must be aware after repeated denials of his pleadings “that none of the claims raised in the instant appeal[ ] have arguable merit.” McCutcheon v. State, 44 So.3d 156, 161 (Fla. 4th DCA 2010). Failure to respond will result in an order prohibiting future pro se filings by appellant.

Affirmed.

WARNER, POLEN and LEVINE, JJ„ concur.


author: WARNER, J.

text:
    Jacquelyn BENNETT and Bobbie Sue Miller, Appellants, v. Marie-Christine BERGES, Christian DeVocht, Jean-Luc DeVocht, Ludovic J. DeVocht, M.D., Ltd. Profit Sharing Plan, and John L. DeVocht, Trustee, Appellees.
    No. 4D09-3129.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 2010.

      Diane H. Tutt of Diane H. Tutt, P.A., Davie, for appellants.
    Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippman & Gregoire, PLLC and Jody Leslie of Leslie & McLaughlin, LLP, Fort Lauderdale, for appellees.
   WARNER, J.

This appeal arises out of an attorney’s fees award in an adversarial probate proceeding. The court awarded fees against appellants personally, and they appeal. We affirm the sanction but reverse the determination of the amount of the award, because not only did the trial court fail to determine the reasonable number of hours expended, it also awarded an excessive amount for the sanctionable conduct.

The decedent, Dr. Ludovic DeVocht, passed away in 2005, survived by his wife, who passed away fifteen days later, and his three children. The appellants, Bennett and Miller, sought to admit a will executed in 2005, which left a substantial portion of the estate to them. Bennett claimed to be the decedent’s long-term mistress, while the relationship of Miller to DeVocht is not stated. DeVocht’s children challenged the will and sought to admit a will executed in 2004. The parties settled the case at mediation, agreeing to admit the 2005 will to probate with substantial modifications. The court entered an order approving the settlement in 2006. However, Bennett refused to sign the releases contemplated under the settlement, and in September 2006, the children moved for sanctions and to enforce the settlement.

Bennett moved to vacate the settlement agreement because the settlement agreement approved by the court contained different terms than the one agreed to at mediation. The court vacated the order approving the settlement, although it found that the changes made to the agreement were a result of neglect and not bad faith. Despite the fact that the trial court vacated its approval of the 2006 settlement, the estate apparently continued to be probated pursuant to the terms of the 2006 settlement agreement.

In 2008 Bennett’s attorney announced at a court hearing that the parties had agreed to another settlement. Subsequently, the attorney withdrew, and Bennett, acting pro se, filed a myriad of motions attacking the purported settlement agreement. The children filed a motion to enforce, claiming that the dispute had been resolved and that the parties had reached a formal settlement agreement. They alleged that before Bennett’s counsel withdrew, he represented to the court that his clients would sign the formal settlement agreement and the releases, but the appellants still had not done so.

During a November 2008 hearing on the children’s motion to enforce settlement, the children argued that appellants’ counsel made numerous representations to the court at the prior hearing that appellants would sign the settlement agreement, but nothing had been signed. Bennett, who was then representing herself, opposed the motion to enforce the settlement. Among other things, she claimed that she had not agreed to the settlement and that she hired an investigator who informed her that the children had improperly removed assets from the profit sharing plan which was part of the estate. She also claimed that she was misinformed concerning her entitlement to assets of the estate other than the profit sharing plan. The court asked her what evidence she had to support her allegations of misappropriation, or to give the court the name of her investigator, explaining that the motion to enforce was set and she had to support her objections to enforcement at the hearing. She could provide neither, maintaining that she did not know that she needed that information at the hearing. In an abundance of caution, the court decided to continue the hearing, admonishing Bennett that if she did not provide proof at the reset hearing, it would order her responsible for the children’s attorney’s fees “for today and any other time we come back.” The court also indicated that if she did not come forward with proof of her allegations, it would enforce the 2008 settlement. The court scheduled a hearing for January 2009 for Bennett to present proof that assets were taken out of the profit sharing plan.

Before the January 2009 hearing, the trial court entered two orders compelling reimbursement of estate assets, as well as an order discharging the personal representative. In a related case (case no. 4D08-4986), appellants appealed those orders, arguing primarily that there was no enforceable settlement agreement.

While the related appeal was pending, the trial court held the January 2009 hearing. Appellants, through new counsel, argued that there was no settlement agreement. As to appellants’ allegations regarding a misappropriation of assets, Bennett admitted that she did not bring any evidence with her to show that any assets were improperly removed from the profit sharing plan. The court acknowledged that it could not force Bennett to sign the formal settlement agreement (i.e., the formal agreement her former counsel had prepared in 2008), but that it could find her responsible for attorney’s fees if it determined that she engaged in vexatious litigation and unduly prolonged the litigation. In March 2009, the court entered an order refusing to enforce the 2008 settlement agreement but finding that appellants failed to produce any evidence to substantiate their claim that the children removed assets from the profit sharing plan. The court thus ordered them to pay the children’s fees and costs for the preparation and attendance of the November and January hearings.

The court then held two hearings on the attorney’s fees issue. The children’s expert testified to a reasonable hourly rate of $325 per hour and a reasonable number of hours, which included all of the time preparing for and attending the November hearing as well as the January hearing and all the subsequent hearings, including those on the determination of the amount of attorney’s fees. The expert also stated that his rate was $350 an hour and his total fee was $1,225 for the work he had done. The children’s attorney also testified, claiming that she was entitled to fees based upon section 733.106, Florida Statutes, in that her efforts benefited the estate by ending litigation and preserving assets. Counsel seemed to acknowledge that not all of the fees requested were directly related to the appellants’ failure to come forward with proof that assets had been taken from the profit sharing plan, but nevertheless maintained that she presented the time incurred that she believed was reasonable pursuant to the court’s orders and oral ruling at the November 19, 2008 hearing. Appellants’ counsel further argued that the children were seeking a fee award which would punish the appellants for not signing the formal settlement agreement. The court, however, stated that the appellants “can’t be punished for not entering into the Settlement Agreement.”

At the conclusion of the hearing, the trial court found that the children’s use of an expert witness was necessary given appellants’ refusal to provide a written waiver. The court also found that “fees for fees” were awardable under the circumstances of this case, reasoning that children were paying their attorney, the fees were contested, and the award was being imposed as a sanction on the appellants pursuant to the court’s inherent authority. The court cited Moakley v. Smallwood, 826 So.2d 221 (Fla.2002), in support of the award, though the court stated that it was not “sanctioning the attorney,” but rather was “sanctioning the client” based upon her unsupported allegations, which caused a delay in the proceedings.

The court awarded $12,500 in fees out of the $15,990 requested, but the court did not make any findings regarding the fee or otherwise explain the basis for the reduction, nor did it make any findings specifying the amount of reasonable hours or the hourly rate of the children’s counsel. The court awarded the full $2,558.30 of the requested costs. The entire amount was assessed against the appellants personally. This appeal follows.

Because the appellees argued entitlement pursuant to section 733.106, Florida Statutes, and the trial court did not explain in its written order whether it was awarding fees as a sanction or pursuant to statute, we first address the legal basis to support an award. Based upon the trial court’s oral statements at several hearings, we conclude that the court awarded fees as a sanction and not pursuant to the statute. We agree with the appellants that an award pursuant to the statute would be improper.

Section 733.106(3), Florida Statutes, provides: “Any attorney who has rendered services to an estate may be awarded reasonable compensation from the estate.” Section 733.106(3) does not provide a valid basis for personal liability for attorney’s fees. See Snyder v. Bell, 746 So.2d 1100, 1104 (Fla. 2d DCA 1999); Dayton v. Conger, 448 So.2d 609, 612 (Fla. 3d DCA 1984). Although the fee order stated that the fees could come from the appellants’ share of the estate if the appellants did not pay the fees by a date certain, the order imposed personal liability on the appellants. We thus reject appel-lees’ contention that the award could be based upon the statute.

Instead, as the trial court itself orally pronounced in at least two hearings and one written order, the fees were awarded as a sanction. A trial judge’s decision to impose sanctions for bad faith litigation conduct is reviewed under an abuse of discretion standard. See Shniderman v. Fitness Innovations & Techs., Inc., 994 So.2d 508, 515 (Fla. 4th DCA 2008).

In Moakley, our supreme court held that a trial court possesses the inherent authority to impose attorney’s fees against an attorney for bad faith conduct. 826 So.2d at 226. “Although Moakley involved the imposition of fees against an attorney, the procedures described in the case are equally applicable to the assessment of fees against a party.” T/F Sys., Inc. v. Malt, 814 So.2d 511, 513 (Fla. 4th DCA 2002). The supreme court cautioned, however, that the “inherent authority of the trial court, like the power of contempt, carries with it the obligation of restrained use and due process.” Moakley, 826 So.2d at 227. A trial court’s exercise of the inherent authority to assess attorney’s fees “must be based upon an express finding of bad faith conduct and must be supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys’ fees.” Id. Further, “the amount of the award of attorneys’ fees must be directly related to the attorneys’ fees and costs that the opposing party has incurred as a result of the specific bad faith conduct of the attorney.” Id.

Based upon the appellants’ position at the November and January hearings, we conclude that the court acted within its discretion in sanctioning appellants to some extent. At the November 2008 hearing, Bennett represented to the court that she would not execute the formal settlement agreement, in part because of the children’s alleged theft from the profit sharing plan. She claimed to have evidence of improprieties of the children in handling the estate assets. The court deferred ruling on the motion to enforce and continued the case so that appellants would have the opportunity to bring proof of this allegation, cautioning her that if she failed to support those allegations with proof, that the court would award attorney’s fees for the November hearing and any subsequent hearings. It is therefore clear that the continuance was attributable to appellants’ allegations, which were never substantiated. Further, the court specifically found that appellants had engaged in vexatious litigation conduct by making the unsubstantiated claim that the children had improperly taken assets from the profit sharing plan.

Nevertheless, at the January hearing, the court refused to enforce the settlement agreement because it found that the appellants could not be compelled to sign the settlement agreement and releases, even though it found that appellants should be sanctioned for failing to support their allegations of improprieties by the children.

Thus, the sanctionable conduct consisted only of the appellants’ failure to support their allegations of misconduct by the children, not the appellants’ other arguments as to why the case had not been settled. Here, it is clear that appellants caused some delay in the proceedings, and the court acted in its discretion in imposing a sanction for fees caused by the delay. This case is analogous to cases affirming fee awards as sanctions where a party moves for a continuance on the eve of trial, causing the other side to incur unnecessary fees. See Dep’t of Children & Families v. M.G., 838 So.2d 703 (Fla. 5th DCA 2003) (holding that a trial court did not abuse its discretion in awarding fees incurred because the Department moved for a continuance on the eve of trial).

The amount of fees awarded, however, is excessive based upon the extent of the sanctionable conduct. As stated by the Fifth District, an award of fees under the inequitable conduct doctrine requires “an express finding of bad faith conduct and must be supported by detailed factual findings describing the specific acts of bad faith conduct that resulted in the unnecessary incurrence of attorneys’ fees.” Allegheny Cas. Co. v. Roche Sur., Inc., 885 So.2d 1016, 1020 (Fla. 5th DCA 2004). Likewise, Moakley makes clear that an award of fees as a sanction must be directly related to the attorney’s fees and costs that the opposing party has incurred as a result of the specific bad faith conduct.

It is apparent that the trial court awarded fees that were not directly related to the specific bad faith conduct of appellants. The fee award should have been limited to the narrow circumstance of the appellants’ failure to come forward with proof of their allegation of theft at the January 2009 hearing. The November hearing was scheduled by the children on their motion to enforce the settlement agreement. Bennett’s conduct compelled the trial court to continue the hearing until January 2009. Thus, the only delay or “vexatious litigation” involved the January hearing, and at most fees should have been limited to those incurred in preparing for and attending that hearing. Moreover, since the presentation at that hearing convinced the court that it could not enforce the alleged 2008 settlement agreement, we are hard-pressed to conclude that the entire hearing was “vexatious.” Bennett obtained the relief she sought. Nevertheless, the court could have assessed some portion of appel-lees’ fees against Bennett as a sanction.

Not only did the court award fees in excess of those directly related to the sanctionable conduct, it failed to determine the reasonable number of hours and hourly rate. When someone other than the client is required to pay the other party’s attorney’s fees, the trial court must award only a reasonable fee, determined from testimony by expert witness lawyers as to the prevailing rates for attorneys in comparable circumstances and as to the amount of time reasonably expended by the attorney for the party seeking payment. Franklin & Marbin, P.A. v. Mascola, 711 So.2d 46, 48-49 (Fla. 4th DCA 1998); Fla. Patient’s Comp. Fund v. Rowe, 472 So.2d 1145 (Fla.1985). This requires the trial court to make findings of fact in the judgment as to the number of hours spent and a reasonable hourly rate. Simpson v. Simpson, 780 So.2d 985, 988 (Fla. 5th DCA 2001).

In this case the trial court simply awarded a lump sum of $12,500 in fees. The court made no findings as to the reasonable hourly rate and the reasonable number of hours. Although the children suggest in their brief that the court awarded 38.46 hours, the court never actually made this finding. Rather, it is apparent that the children have simply arrived at that figure by dividing the court’s lump-sum fee award by the hourly rate claimed at the fee hearing ($325). The court’s order was insufficient, because it is improper to “reverse engineer” the required findings based upon a lump sum award of fees. Id. at 988.

The court also assessed “fees on fees” for all of the time spent by appellees in the two hearings to secure an award. Appellants contend that it was improper to assess those fees. In State Farm Fire & Casualty Co. v. Palma, 629 So.2d 830, 833 (Fla.1993), the supreme court held that in cases involving disputed insurance claims, statutory fees may be awarded pursuant to section 627.428(1) “for litigating the issue of entitlement to attorney’s fees but not the amount of attorney’s fees.” However, this court has affirmed an award of attorney’s fees, including fees incurred in determining the amount of fees to be awarded, where the award of attorney’s fees was a sanction. See Condren v. Bell, 853 So.2d 609, 610 (Fla. 4th DCA 2003) (holding that “because the fees awarded for litigating the issue of fees was a sanction and supported by substantial competent evidence, the award does not run afoul of [Palma ]”); accord Bates v. Islamorada, 939 So.2d 171, 172 (Fla. 3d DCA 2006) (“The fees awarded in the instant case differ in that they were not statutorily based, and were instead, awarded as sanctions levied against the appellants for failing to comply with the trial court’s orders.”) (emphasis in original). Because the trial court awarded fees as a sanction against Bennett, it was within its discretion to include “fees on fees” for the time spent in litigating the amount of fees.

Finally, as to the issue of awarding the expert’s fees, this too was within the trial court’s discretion. See Condren, 853 So.2d at 610 (affirming award of sanctions which included fees for the expert witness). Absent a stipulation, case law required the children to have an expert witness as to the reasonableness of fees. See Franklin, 711 So.2d at 48-49. However, in this case the expert’s testimony regarding the fees did not comport with the law. The expert opined on the entire amount of time expended by appellees’ attorneys, rather than the time incurred connected with the narrow range of sanctionable conduct. The court should take this into consideration on remand in determining the appropriate costs to be awarded to the appel-lees.

In sum, while the court was within its discretion in sanctioning the appellants for Bennett’s “vexatious litigation” in making unfounded claims of misappropriation against the children, it awarded fees in excess of those directly related to the sanc-tionable conduct. We reverse for a rede-termination of those fees and leave it to the trial court’s discretion whether to award “fees on fees” as well as expert costs, in an amount commensurate to what would be necessary to establish fees permitted by Moakley.

Affirmed in part, reversed in part and remanded for proceedings consistent with this opinion.

POLEN and FARMER, JJ., concur.

      . On appeal, this court reversed for an evi-dentiary hearing on the issue of whether an enforceable settlement agreement exists:
      Appellants assert that there is no enforceable settlement agreement because the court vacated the order approving the settlement. Appellees argue the court vacated only the order approving the incorrect version of the settlement and that the correct version of the settlement upon which the parties agreed in mediation is valid and enforceable. From the record, it is unclear whether an enforceable settlement agreement exists. Because a factual determination needs to be made, we reverse and remand for an evidentiary hearing on whether the settlement agreement is enforceable and should be accepted; if not enforceable, then the case should proceed to a trial on the merits.

        Bennett v. Berges, 32 So.3d 771, 771-72 (Fla. 4th DCA 2010).

      . Although Bennett appears to have been the driving force behind the allegation that the children misappropriated assets, Miller has not individually raised any argument on appeal that the trial court should have sanctioned only Bennett.


author: POLEN, J.

text:
    Stacy PATRICK and Terrell Patrick, Wife and Husband, Appellants, v. PALM BEACH COUNTY SCHOOL BOARD, Palm Beach County School District, George and Mary Webster, Husband and Wife, James and Catherine Webster, Husband and Wife, Appellees.
    No. 4D09-922.
    District Court of Appeal of Florida, Fourth District.
    Dec. 8, 2010.
    Rehearing Denied Feb. 4, 2011.

      Barry Silver, Boca Raton, for appellants.
    Misti Zaruches Barnett and Debra Potter Klauber of Haliczer, Pettis & Schwamm, P.A., Fort Lauderdale, for ap-pellees.
   POLEN, J.

Stacy Patrick is a middle school teacher who was injured during the course and scope of her employment when she interceded into a fight between two students. She appeals a final judgment on a jury verdict that the intentional tort exception to the worker’s compensation act exclusive remedy provision did not apply. Patrick challenges the trial court’s limitation of evidence as to the school board’s alleged “cover-up” of dangerous situations in the school, disallowing evidence as to Patrick’s post-incident miscarriage, and any evidence regarding the shooting death of teacher Barry Grunow at the same school two years earlier (which Patrick also claimed to involve a “cover-up”), as well as the school board’s alleged admission against interest that Patrick’s miscarriage was causally related to the incident. Patrick also argues that the jury instructions were erroneous. We have reviewed each of these claims, which involve discretionary calls by the trial court, and conclude that no reversible error has been demonstrated. Although we affirm as to all issues raised, we write only to highlight the evidence that negated the basis for Patrick’s suit; namely, that Patrick voluntarily inserted herself into the student altercation, in disregard of school policy, and despite her knowledge that such students may act out violently.

In Patrick’s personal injury action against her employer, the school board, the trial court granted the school board’s motion for summary judgment on the ground of worker’s compensation immunity. Patrick appealed, and this court reversed, finding that the school board did not, on its motion for summary judgment, establish that there were no genuine issues of material fact as to whether the employer’s behavior satisfied the intentional tort exception to the general rule of workers’ compensation immunity. See Patrick v. Palm Beach Cnty. Sch. Bd., 927 So.2d 973 (Fla. 4th DCA 2006).

At the subsequent trial, it was elicited that Patrick taught severely learning disabled (SLD), emotionally handicapped (EH) and severely emotionally disturbed (SED) students, who were inclined to act out physically and verbally, and sometimes even violently. Patrick was injured when she interceded in a fight between two such students, one of whom was D.W., a new transfer, who had a history of acting out, including making violent threats. Prior to D.W.’s transfer, the teachers were advised that they were getting a new student with behavioral problems. The behaviors exhibited by D.W. were consistent with that of a typical EH-SED student. Patrick herself testified that she knew that students such as D.W. have the propensity to act out violently.

Moreover, the school had policies and procedures in place to deal with various crises, including student altercations like the one that ensued here. In such a situation, the school had a team of first responders, consisting of specifically designated and specially trained administrators and teachers. Patrick was not a member of this response team. She, like other teachers, was instructed to call a “Code 36” during such an altercation, to alert the specially assigned response team. While waiting for the team to arrive, verbal directives could be given to break up a fight, and the teachers could establish a perimeter, but physical intervention was not allowed due to risk of injury.

During the student altercation here, instead of following school protocol (calling a Code 36), and waiting for the response team, Patrick took it upon herself to intercede. She put one hand on each of the students’ shoulders to separate them and was drawn into the fight. During the scuffle, D.W. grabbed Patrick’s hair, and, as Patrick was extracted from the melee by other teachers, she fell on her knee. Her lawsuit centered on her claim that the school board’s actions were substantially certain to cause injury to her; however, the evidence reflects that Patrick recognized and ignored the inherent risk of personal injury in trying to break up the fight.

As the evidence reflects that Patrick’s injuries resulted from her decision to put herself at risk and intervene into a fight between two behaviorally challenged students, in contravention of school policy, this negates any possibility that Patrick could recover from the school board under the intentional tort exception to workers’ compensation immunity. Accordingly, we must affirm.

Affirmed.

WARNER and FARMER, JJ., concur.


author: NORTHCUTT, Judge.

text:
    Robert Hood FREEMAN, Appellant, v. STATE of Florida, Appellee.
    No. 2D09-2952.
    District Court of Appeal of Florida, Second District.
    Dec. 10, 2010.

      James Marion Moorman, Public Defender, and Julius S. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

Robert Freeman appeals his convictions for armed trespass and improper exhibition of a weapon. He contends, and we agree, that the trial court erred when it denied a challenge for cause during jury selection, and we reverse on that issue. We affirm without further discussion the trial court’s denial of Freeman’s motion for a judgment of acquittal.

Freeman’s charges arose when he failed to immediately leave a Walgreens store at the request of an assistant manager and waved a knife during his conversation with the assistant manager. In jury selection, the parties explored the venire-members’ views on the credibility of police officers. In response to the prosecutor’s questions, one prospective juror revealed that her three children and one son-in-law worked in law enforcement. She said that they occasionally talked to her about their cases; two of the children actually worked in administration. The prosecutor mentioned that there would be testimony from law enforcement officers in this case, and the prospective juror said that she could be fair and impartial.

When it was his turn to question the venire, the assistant public defender returned to this person’s connection to law enforcement. He pointed out that a juror has to evaluate the credibility of witnesses and that the prosecutor had announced the names of police officers as potential witnesses. He then asked: “[I]f you had to evaluate the testimony of a police officer could you put the police officer on the same starting line as any other witness or would you tend to believe or disbelieve a police officer more because he was a police officer[?]” The prospective juror’s response was: “Possibly I would.” Defense counsel then clarified: “You just think because they’re a police officer you might tend to think they’re more credible or believable, correct?” And she responded: “Possibly.”

After inquiring of another venire-member, defense counsel returned to the prospective juror previously questioned, and the following exchange occurred:

[Defense counsel]: Now going back to you ..., do you think it’s fair, and I don’t want to put words in your mouth, do you think it’s fair to say because of your experience and relatives you in your own mind you have some doubt whether or not you could start a police officer on the same line, you might tend to find them a little more believable?
[Prospective juror]: Are you just asking me the same thing?
[Defense counsel]: Well, I’m actually phrasing it a little bit differently. But what my question basically is, do you think because of your life experience and your relatives, in your own mind do you think you might tend to find a police officer more believable because they’re a law enforcement officer?
[Prospective juror]: I don’t think that’s necessarily always the case. I know they are people just like everyone else. But to be honest I—
[Defense counsel]: That’s all we’re asking you to do.
[Prospective juror]: — I may, I may give them a little more credibility. Yes.

Defense counsel challenged this prospective juror for cause, arguing that she had expressed some doubt about her ability to be fair and impartial. The trial court denied the challenge, and defense counsel used a peremptory strike to remove her from the jury. After later exhausting his peremptory challenges, defense counsel sought to strike another prospective juror. But the trial court denied the defense request for additional peremptory challenges, and that person served on the jury. Defense counsel renewed his previous objection when the jury was sworn.

Freeman argues on appeal that the trial court erred in denying the cause challenge. The issue was properly preserved for appeal. See Adkins v. State, 736 So.2d 719, 720-21 (Fla. 2d DCA 1999) (concluding issue was preserved when defense used peremptory strike on particular juror after court denied cause challenge, asked for but was denied additional peremptory strikes, identified juror that would have been stricken, and renewed objection when accepting the panel).

The State argues that Freeman failed to preserve the issue because he did not demonstrate a reason for objecting to the juror who was seated after he exhausted his peremptory challenges. It cites Trotter v. State, 576 So.2d 691 (Fla.1990), which held that the defense must identify an objectionable juror who was allowed to serve after the improper denial of a cause challenge. But the supreme court explained that an “objectionable juror” means “a specific juror whom [the defense] otherwise would have struck peremptorily. This juror must be an individual who actually sat on the jury and whom the defendant either challenged for cause or attempted to challenge peremptorily or otherwise objected to after his peremptory challenges had been exhausted.” Id. at 693 (footnote omitted). Indeed, the supreme court has specifically refused to adopt a standard that would require the defendant to show that a seated juror was “ ‘legally objectionable,’ or one who [was] biased or partial.” Busby v. State, 894 So.2d 88, 97 (Fla.2004).

Having concluded that the issue was properly preserved, we turn to the merits. A juror should be excused for cause “[i]f there is a basis for any reasonable doubt as to any juror’s possessing that state of mind which will enable him to render an impartial verdict based solely on the evidence submitted and the law announced at the trial.” Hill v. State, 477 So.2d 553, 555 (Fla.1985) (quoting Singer v. State, 109 So.2d 7, 24 (Fla.1959)). “The test for determining juror competency is whether the juror can lay aside any bias or prejudice and render [a] verdict solely upon the evidence presented and the instructions on the law given ... by the court.” Id. (quoting Lusk v. State, 446 So.2d 1038, 1041 (Fla.1984)). On review of this mixed question of law and fact, a trial court’s decision should be reversed only for manifest error. Id. at 556. A trial court’s failure to excuse a juror for cause is manifest error “when the juror responds with equivocal or conditional answers, thus raising a reasonable doubt as to whether the prospect possesses the requisite state of mind necessary to render an impartial decision.” Salgado v. State, 829 So.2d 342, 344 (Fla. 3d DCA 2002) (finding manifest error in denial of cause challenge to prospective juror who equivocated on issue of judging police officer’s credibility).

Here, the prospective juror’s answers indicated a basis for reasonable doubt as to her ability to be impartial and free from bias in her assessment of the witnesses’ credibility. “A juror is not impartial when one side must overcome a preconceived opinion in order to prevail.” Hill, 477 So.2d at 556. While she first said that she could be fair and impartial when faced with testimony from law enforcement officers, thereafter she was consistently equivocal. Her final, “honest” answer was that she may give more credibility to police officers. As this court has held, “[a] juror who expresses a bias in favor of the testimony of a law enforcement officer should be excused for cause.” Garcia v. State, 805 So.2d 827, 828 (Fla. 2d DCA 2001); accord Rimes v. State, 993 So.2d 1132, 1134 (Fla. 5th DCA 2008) (“A juror who would tend to defer to a police witness should be excused for cause.”); Martinez v. State, 795 So.2d 279, 282 (Fla. 3d DCA 2001) (reversing where juror was at best equivocal on his view of police officers’ credibility and stating that “close calls on the issue of juror competency should be resolved in favor of removal”).

Accordingly, we reverse Freeman’s convictions and remand for a new trial.

CASANUEVA, C.J., and CRENSHAW, J., Concur.


text:
    Michael HOOD and Teri Hood, his wife, Appellants, v. MATRIXX INITIATIVES, INC., a Delaware corporation, f/k/a Gumtech International Inc., a foreign corporation, and ZICAM, LLC, a limited liability corporation, f/k/a Gel Tech, LLC, an Arizona limited liability company, Publix Super Markets, Inc., a Florida corporation, and Botanical Laboratories, Inc., Appellees.
    No. 4D09-1994.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 2010.
    Rehearing Denied Feb. 10, 2011.

      Keith Chasin of Law Office of Keith Chasin, Miami, for appellants.
    Alan J. Lazarus of Drinker Biddle & Reath, L.L.P., San Francisco, California, and Mercer K. Clarke, Karen H. Curtis and Matthew Cordis of Clarke Silverglate & Campbell, P.A., Miami, for appellees.
   PER CURIAM.

Michael Hood and his wife, Teri Hood, appeal the summary final judgment entered in this product liability action in favor of Matrixx Initiatives, Inc., Zicam, LLC (collectively referred to as “Ma-trixx”), Publix Super Markets, Inc. (Pub-lix), and Botanical Laboratories, Inc. (Botanical). We reverse the summary judgment because we find that the relevant issue — whether the Hoods’ expert, Dr. Bruce Jafek, should be allowed to testify that Mr. Hood’s use of Zicam gel caused him to lose his sense of smell — is controlled by the standards set forth in the Florida Supreme Court’s decision in Marsh v. Valyou, 977 So.2d 543 (Fla.2007). Applying Marsh, we find that the trial court erred in refusing to allow Dr. Jafek to testify on the issue of causation.

The present action arises out of Michael Hood’s claim that he sustained personal injuries as the result of his use of Zicam nasal gel, a homeopathic over-the-counter cold remedy that the Hoods purchased at a Publix grocery store. In particular, Mr. Hood alleged that in November of 2000, he used Zicam to prevent a possible cold. Zicam is used by squirting a gel-like substance, which contains zinc gluconate, into the nose. Mr. Hood alleged that as a result of the application of Zicam gel in his nose, he developed anosmia, otherwise known as the loss of the sense of smell.

The Hoods brought this action against several defendants that were involved in the development, manufacturing, marketing, or retail sale of Zicam nasal gel— Matrixx, Publix and Botanical. Mr. Hood asserted various claims, including strict products liability, negligence, and breach of warranty. In addition, his wife, Teri, brought a claim for loss of consortium.

By way of background, it is generally accepted that there are multiple possible causes of persistent loss of smell, such as upper respiratory infections, sinonasal disease, and head trauma. In an effort to prove the element of causation, the plaintiffs presented the opinion of Dr. Bruce Jafek, a professor of otolaryngology at the University of Colorado, School of Medicine. Dr. Jafek conducted an independent medical examination on Mr. Hood in December 2005. Dr. Jafek subsequently prepared a medical report which described Mr. Hood’s medical history, discussed the results of the medical examination, reviewed medical and scientific literature, and set forth Dr. Jafek’s opinions regarding the cause of Mr. Hood’s anosmia. The plaintiffs also presented excerpts of Dr. Jafek’s deposition testimony in other Zi-cam cases, as well as medical case study articles regarding anosmia after the use of zinc gluconate. See Bruce W. Jafek et al., Anosmia after Intranasal Zinc Gluconate Use, 18 Am. J. Rhinol. 137 (2004); T.H. Alexander & T.M. Davidson, Intranasal Zinc and Anosmia: The Zinc-Induced Anosmia Syndrome, 116 Laryngoscope (Vol. 2) 217-20 (Feb.2006).

According to Dr. Jafek’s written report, Mr. Hood used Zicam because he thought he might be getting a cold. Mr. Hood squirted Zicam into each nostril, sniffed, and experienced an immediate burning sensation, lasting several hours. Soon after using Zicam, Mr. Hood noticed a loss of smell, and when it did not return, he consulted several doctors. He was evaluated with both CT and MRI testing, both of which were normal, thus excluding trauma as a possible cause of his anosmia. Dr. Jafek performed an examination of Mr. Hood’s olfactory groove, which he reports showed “apparent scarring of the mucosa (olfactory epithelium) of the olfactory cleft.... ” Having reviewed the patient data, Dr. Jafek concluded that Mr. Hood’s allergies, medications, past history, social history, family history, and other medical history were not contributing factors to his anosmia.

In his report, Dr. Jafek further opined that: (1) Zicam nasal gel, when used according to the directions contained in the package, reaches the olfactory epithelium (smell tissue) in humans; (2) the active ingredient in Zicam, zinc gluconate, is toxic to the olfactory epithelium; (3) Zicam nasal gel is toxic to the olfactory epithelium in the amounts delivered with the pump; (4) Zicam toxicity to the olfactory epithelium is permanent in some cases; and (5) the acute nature and strong temporal association of Mr. Hood’s loss, accompanied by burning pain (a recognized sign of injury), strongly supports that the application of Zicam was the cause of Mr. Hood’s loss of smell, as opposed to the other “several hundred causes of loss of smell described in the literature.”

One of Dr. Jafek’s foundational opinions on causation is that Zicam nasal gel, when used as directed, can reach the olfactory epithelium (i.e., tissue containing nerve cells that detect smell). Through personal observations, Dr. Jafek noted that the Zi-cam nasal pump could squirt gel into the air at a distance of four to ten feet, routinely reaching the ceiling. He further noted that Zicam gel, when pumped, travels in a straight stream, according to his personal observation. Dr. Jafek asserted that the pathway from the nasal sill (the outer opening of the nose) to the cribiform plate (the site of the olfactory epithelium) is straight in most patients, as shown in a 1930s polio study. Dr. Jafek relied upon a 1937 article entitled “The Chemical Prophylaxis for Poliomyelitis,” which studied whether the intranasal application of zinc sulfate could protect children from the polio virus. See Max M. Peet et al., The Chemical Prophylaxis for Poliomyelitis, 108 J. Am. Med. Ass’n 2184 (1937). In Dr. Jafek’s opinion, there was no visible obstruction or significant septal deviation in Mr. Hood’s nose.

Another of Dr. Jafek’s foundational opinions is that zinc gluconate is toxic to the olfactory epithelium. Dr. Jafek’s conclusion in this regard is founded in large part bn polio studies of the 1930s and 40s, animal experiments, and his own protein-precipitation experiment. In the polio studies, polio researchers applied a zinc sulfate solution directly to the olfactory epithelium, attempting to prevent the entry of the polio virus. The polio studies demonstrated that zinc sulfate is toxic to the olfactory epithelium. However, the active ingredient of Zicam is zinc gluco-nate. Dr. Jafek concluded that zinc gluco-nate produces analogous effects to zinc sulfate, reasoning that: (1) zinc gluconate releases zinc ions when dissolved in water, (2) zinc sulfate and zinc gluconate had similar solubility, (3) zinc sulfate does not react with water to form sulfuric acid, which indicates that it is the zinc ion (rather than sulfuric acid) causing the toxicity, (4) animal studies, in particular a study on fish, showed that it was the release of zinc ions from the zinc sulfate that is toxic to olfactory tissue, as sodium sulfate was not toxic to the olfactory tissue, (5) zinc ions are “the standard method” to produce the loss of smell in animals, and (6) Dr. Jafek’s own protein-precipitation experiment showed that zinc gluconate produces analogous effects to other zinc salts, “implying analogous pharmacodynamic mechanisms in the production of loss of smell.”

Dr. Jafek further opined that zinc gluco-nate is toxic to the olfactory epithelium in the amounts delivered with the pump. Dr. Jafek based this opinion on an animal study regarding the toxicity of zinc sulfate to the olfactory epithelium in mice. Dr. Jafek’s report noted that the olfactory epithelium of a mouse is approximately the same size as that of a human. Dr. Jafek asserted that the recommended human dose of zinc gluconate in Zicam is 17 ½ times the LOEL (least observable effect level) for olfactory damage in mice.

The defendants moved to exclude the testimony of Plaintiffs’ sole causation expert, Dr. Jafek, and for summary judgment. The defendants contended that Dr. Jafek’s expert opinion testimony that Zi-cam nasal gel reached Mr. Hood’s olfactory epithelium failed to meet the standards set forth in Frye, v. United States, 293 F. 1013 (D.C.Cir.1923), because this opinion had not been generally accepted by the relevant scientific community, and further contended that his opinion concerning the toxicity of zinc gluconate was new and novel and not based on scientific principles.

The Hoods opposed the defendants’ motion, arguing that Dr. Jafek’s medical opinion, based on a “differential diagnosis,” was a “pure opinion” that was not subject to Frye and was admissible under Marsh Second, they argued that even if Frye applied, Dr. Jafek’s opinion satisfied Frye, as it was based upon a differential diagnosis as well as studies dating back to the 1930s linking zinc to anosmia.

At an October 2008 hearing on defendants’ motion to exclude Dr. Jafek’s testimony, the defendants presented multiple expert reports and studies in support of their motion to exclude the expert report and testimony of Dr. Jafek. The defendants also relied upon a number of federal opinions excluding Dr. Jafek’s causation testimony as unreliable under the federal standard set forth in Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). See, e.g., Polski v. Quigley Corp., 538 F.3d 836, 841 (8th Cir.2008) (affirming the exclusion of Dr. Jafek’s opinions on causation because they all “relied on his untested opinion that Cold-Eeze, when used as directed, comes into direct contact with the olfactory epithelium”); Lusch v. Matrixx Initiatives, Inc., 74 Fed.R.Evid. Serv. 880 (D.Or.2007) (excluding Dr. Jafek’s causation opinion and finding that there is no reasonable scientific evidence supporting his opinions that Zicam actually reaches the olfactory epithelium, that Zicam is toxic to the olfactory epithelial tissue, or that Zicam is delivered in a dose sufficient to permanently damage olfactory epithelial tissue); O’Hanlon v. Matrixx Initiatives, Inc., 2007 WL 2446496 (C.D.Cal.2007) (finding, among other faults, that Dr. Jafek merely extrapolated from an accepted premise, that zinc ions are toxic to the olfactory epithelium, to an unfounded conclusion, that zinc ions contained in a dose of Zicam are toxic to the olfactory epithelium); Benkwith v. Matrixx Initiatives, Inc., 467 F.Supp.2d 1316, 1332 (M.D.Ala.2006) (excluding Dr. Jafek’s causation opinions because “he attempts to use animal studies without support for extrapolation to humans, cites ‘epidemiologic studies’ that fail to follow the fundamentals of epidemiology, makes unsupported analogies between different chemical substances, performs unsound experiments, draws impermissible conclusions from other scientists’ articles and experiments, and relies on irrelevant and unreliable data”); Sutherland v. Matrixx Initiatives, Inc., 2006 WL 6617000 (N.D.Ala.2006) (concluding that “the methods and procedures [Dr. Jafek] employed are not sufficiently reliable under Daubert and Rule 702 to allow him to share his opinions with a jury”); Hans v. Matrixx Initiatives, Inc., 2006 WL 5229820 (W.D.Ky.2006) (same).

The defendants also presented testimony from Dr. Richard Dalby,-Ph.D., a professor of pharmaceutical sciences and a researcher in the field of nasal and respiratory drug delivery. Dr. Dalby testified to the various methods used by scientists to investigate nasal drug delivery, including gamma scintigraphy (a technique whereby the dosage delivery can be non-invasively imaged), dye-tracking studies in living humans, studies on “model noses,” and mathematical models based on particle dynamics to make predictions about where the fluid will travel. Noting that the user is instructed not to sniff after applying Zicam gel, Dr. Dalby testified that if an individual follows the instructions “exactly as they are written,” it was “extraordinarily certain” that the gel would be deposited in the lower nasal cavity, below the smell tissue.

Dr. Dalby criticized the methodologies employed by Dr. Jafek, explaining that there is no correlation between open air spray characteristics and intranasal deposition patterns. Dr. Dalby also criticized the methodology of a “cadaver experiment” performed by Dr. Jafek, in which Dr. Jafek added blue dye to Zicam nasal gel and sprayed it into the nasal cavity of a cadaver to demonstrate that the Zicam can reach the olfactory epithelium. Dr. Dalby testified that “this type of experiment with a cadaver” was not a reliable or generally accepted method for testing whether a nasal solution will reach the olfactory region in a living human. Dr. Dalby was unaware of anyone, other than Dr. Jafek, who used this method to investigate nasal drug deposit patterns. Dr. Dalby also criticized Dr. Jafek’s use of an “incredibly deep insertion” during Ms cadaver experiment.

The trial court granted the motion to exclude Dr. Jafek’s general causation opinion, ruling that it did not meet the standards for the admissibility of expert scientific testimony under Frye. The trial court concluded that “Plaintiffs have failed to carry their burden of demonstrating that the methods and techmques upon which Dr. Jafek relies to form his causation opinion have been shown to [be] reliable through general acceptance in the scientific community as required by Frye.” The trial court’s evidentiary ruling excluded the plaintiffs’ sole causation expert and, therefore, the trial court subsequently granted Defendants’ motion for summary judgment.

The plaintiffs contend on appeal that the trial court erred in relying on Frye to exclude Dr. Jafek’s testimony, arguing that Dr. Jafek’s testimony is admissible pursuant to the standards articulated by the Florida Supreme Court in Marsh. The plaintiffs argue that under Marsh, Dr. Jafek’s expert medical causation testimony is not “new or novel” and is not subject to the Frye test. The plaintiffs point out that Dr. Jafek’s opinion was based upon his clinical experience, his review of Mr. Hood’s medical history, a physical examination, and a review of scientific literature, which documents a link between zinc ions and damage to the olfactory epithelium. Alternatively, Plaintiffs argue that even if Frye applied, Dr. Jafek’s opinion satisfied Frye, as it was based upon a differential diagnosis, as well as studies linking zinc to anosmia dating back to the 1930s.

Defendants contend that the trial court properly applied Frye to exclude Dr. Jaf-ek’s opinions on causation because the methods used by Dr. Jafek to reach his opinions as to general causation are neither reliable nor generally accepted in the scientific community. In particular, the defendants maintain that Dr. Jafek failed to employ generally accepted scientific methods in reaching his opinions that (1) zinc ions reach the smell tissue under conditions of ordinary use of Zicam, (2) the properties of zinc gluconate are chemically analogous to the properties of zinc sulfate, and (3) the amount of Zicam administered by the pump is sufficient to cause the anosmia (i.e., the dose-response relationship). Finally, Defendants contend that Dr. Jafek’s testimony is not “pure opinion” testimony immune from Frye scrutiny.

The Florida Supreme Court continues to adhere to the Frye test as the proper standard for admitting novel scientific evidence in Florida. See Hadden v. State, 690 So.2d 573, 578 (Fla.1997) (“Our specific adoption of that test after the enactment of the evidence code manifests our intent to use the Frye test as the proper standard for admitting novel scientific evidence in Florida, even though the Frye test is not set forth in the evidence code.”); Flanagan v. State, 625 So.2d 827, 829 n. 2 (Fla.1993) (“Florida continues to adhere to the Frye test for the admissibility of scientific opinions.”). Under Frye, the proponent of the expert evidence “bears the burden of establishing by a preponderance of the evidence the general acceptance of the underlying scientific principles and methodology.” Castillo v. E.I. Du Pont De Nemours & Co., 854 So.2d 1264, 1268 (Fla.2003). “This test requires that the scientific principles undergirding this evidence be found by the trial court to be generally accepted by the relevant members of its particular field.” Hadden, 690 So.2d at 576. Nonetheless, “the Frye standard only applies when an expert attempts to render an opinion that is based upon new or novel scientific techniques.” U.S. Sugar Corp. v. Henson, 823 So.2d 104, 109 (Fla.2002). Therefore, Frye is inapplicable to the “vast majority” of cases. Marsh, 977 So.2d at 547.

In Marsh, the Florida Supreme Court explained the distinction between “pure opinion” testimony and novel scientific testimony in considering whether Frye applies to medical expert testimony causally linking trauma to fibromyalgia. Id. at 544.

“Pure opinion” testimony does not have to meet Frye because this type of testimony is based on the expert’s personal experience and training. Flanagan, 625 So.2d at 828. This court has explained that “pure opinion” testimony “refers to expert opinion developed from inductive reasoning based on the experts’ own experience, observation, or research, whereas the Frye test applies when an expert witness reaches a conclusion by deduction, from applying new and novel scientific principle, formula, or procedure developed by others.” See Holy Cross Hosp., Inc. v. Marrone, 816 So.2d 1113, 1117 (Fla. 4th DCA 2001). Thus, “medical expert testimony concerning the causation of a medical condition will be considered pure opinion testimony — and thus not subject to Frye analysis — when it is based solely on the expert’s training and experience.” Gelsthorpe v. Weinstein, 897 So.2d 504, 510 (Fla. 2d DCA 2005). “Frye will be applied where particular expert testimony concerning the cause of a medical condition is based on a novel scientific methodology.” Id.

Our supreme court, in Marsh, held that Frye does not apply to expert testimony causally linking trauma to fibromyalgia and that “even if the testimony had to satisfy Frye, it does.” Marsh, 977 So.2d at 546. First, the court concluded that the expert medical causation testimony was not “new or novel,” explaining that Marsh’s experts had based their opinions about the cause of her fibromyalgia “on a review of her medical history, clinical physical examinations, their own experience, published research, and differential diagnosis.” Id. at 548. The court reasoned that because testimony causally linking trauma to fibromyalgia is based on the experts’ experience and training, it is “pure opinion,” admissible without having to satisfy Frye. Id. at 549. The court then elaborated:

Marsh’s experts did not base their opinions on new or novel scientific tests or procedures, and Respondents did not challenge the patient history, examination methods, clinical practices, or other methodologies upon which they did rely. In fact, Respondents could not challenge the underlying methodology, as we have previously held that differential diagnosis is a generally accepted method for determining specific causation. Instead, Respondents challenged the experts’ conclusions that trauma caused Marsh’s fibromyalgia.

Id. (citations omitted) (emphasis in original).

The court in Marsh also concluded that even if subject to Frye, the testimony linking trauma to fibromyalgia satisfies the Frye test. Noting that there are numerous published articles and studies which recognize an “association” between trauma and fibromyalgia, the court reaffirmed that a “lack of studies conclusively demonstrating a causal link between trauma and fi-bromyalgia and calls for further research do not preclude admission of the testimony.” Id. at 550. The court held that Frye does not require unanimity, and Marsh had sufficiently demonstrated the reliability of her experts’ testimony, even though “the precise etiology of fibromyalgia” was not fully understood. Id.

The Third District recently applied the analysis of Marsh in Andries v. Royal Caribbean Cruises, Ltd., 12 So.3d 260 (Fla. 3d DCA 2009). In Andii.es, the issue was whether the trial court properly excluded the plaintiffs experts’ testimony that her staphylococcus infection caused an incurable kidney disease known as “IgA nephro-pathy.” One of the plaintiffs experts testified that the staph infection likely caused the plaintiffs IgA nephropathy, relying on a differential diagnosis to rule out other conditions associated with IgA nephropa-thy. Id. at 262. Another of the plaintiffs experts testified to an observed association between staph infections and IgA nephro-pathy. Id. at 263. By contrast, a defense expert testified that “the etiology of IgA nephropathy is unknown” and criticized the studies relied upon by the plaintiffs experts on the basis that the studies were either unreliable or were not scientific proof that a staph infection may cause IgA nephropathy. Id. at 263-64.

On appeal, the Third District reversed the trial court’s exclusion of the plaintiffs experts’ testimony, finding that the plaintiffs medical and scientific evidence constituted a sufficient predicate for admissibility under Marsh. The Third District explained:

In this case, therefore, as in Marsh, the clinical observations (based on Ms. Andries’ physicians’ “review of her medical history, clinical physical examinations, their own experience, published research,-and differential diagnosis”) indicate a link between a staph infection and Ms. Andries’ kidney disease. Because of the general acceptance of those evaluative measures in the scientific community, her experts’ opinions are not “new or novel” within the meaning of Frye and Marsh.
The experts’ disagreements on the nature of the staph-IgA nephropathy link, and the lack of certainty regarding the precise causative process, are genuine disputes that should be decided by a jury. The jurors will give appropriate weight to the experts, their qualifications, and the facts and literature relied upon by each expert in rendering his or her opinion.
Marsh represents the latest effort in a continuing attempt to limit the admission of opinions based on so-called “junk science” or pseudo science. In this case, however, each condition (staph infection and IgA nephropathy) is a recognized diagnosis, and the anecdotal association between the two has been recognized to be worthy of formal and published research. The fact that the precise causation is still under investigation does not make the expert opinions in this case “new or novel” or inadmissible under the more demanding requirements of Frye.
[I]n this case qualified physicians for the appellant have expressed an opinion that there is a link between recognized medical condition X and sequela Y, those and other observations have been found worthy of further detailed scientific investigation, and the published results of such investigations have focused on the possible etiology. It is precisely this sort of disagreement that, under Marsh, amounts to a duel of competing — and admissible — pure opinions.

Id. at 264-65 (footnote omitted).

While we recognize the federal courts’ uniform refusal to admit Dr. Jaf-ek’s testimony, we are compelled to find that Dr. Jafek’s opinion is admissible in Florida under Marsh. As explained in Marsh, it is unnecessary for a plaintiff to conclusively demonstrate a causal link or to identify the “precise etiology” of the medical condition allegedly caused by the substance or predicate event. Accordingly, Marsh presents a “battle-of-the-experts” approach to the admissibility of expert testimony, designed to prevent trial judges from usurping “the jury’s role in evaluating the credibility of experts and choosing between legitimate but conflicting scientific views.” Marsh, 977 So.2d at 549. Our understanding of Marsh is that where the scientific literature recognizes an association or possible etiology between a medical condition and a predicate event, a medical expert may render a medical causation opinion based upon a differential diagnosis.

Here, as in Marsh and Andries, Dr. Jafek’s causation opinion relied upon a review of Mr. Hood’s medical history, a clinical examination, Dr. Jafek’s personal experience regarding nasal anatomy, published research, and a differential diagnosis. Dr. Jafek opined that Zicam was the cause of Mr. Hood’s smell loss, ruling out other causes based on the strong temporal association and the acute nature of the loss of smell following the application of the Zi-cam. The defendants did not specifically challenge Dr. Jafek’s differential diagnosis below, as their motion challenged only Dr. Jafek’s general causation testimony that Zicam can cause anosmia.

Defendants attempt to distinguish Marsh by arguing that Dr. Jafek’s causation opinion is not based solely on his experience and training, but is rather subject to Frye because it was based in part on experiments and studies. However, in both Marsh and Andries, the medical experts relied upon published articles and studies regarding a possible association between the predicate event and the disease, yet in both of those cases, the medical causation opinions were deemed “pure opinion.” One possible distinction between this case and Marsh is that here, Dr. Jafek did personally conduct experimentation in support of his general causation theory, including a cadaver experiment regarding nasal distribution of Zicam, as mentioned in many of the federal cases. However, the cadaver experiment was not specifically mentioned in Dr. Jafek’s report, and the plaintiffs specifically represented that they were not relying upon the cadaver experiment as support for Dr. Jafek’s opinion that Mr. Hood has anosmia secondary to Zicam usage. To the extent that Dr. Jafek relied upon “new and novel” experiments that he personally conducted regarding Zi-cam, such as the cadaver experiment, evidence regarding such experiments is not admissible as “pure opinion.” Dr. Jafek’s remaining opinions, however, are admissible as “pure opinion” testimony. Furthermore, Dr. Jafek’s testimony regarding the scientific literature he relied upon is also admissible. See Andries, 12 So.3d at 264 (“The jurors will give appropriate weight to the experts, their qualifications, and the facts and literature relied upon by each expert in rendering his or her opinion.”).

Under the reasoning of Marsh, the fact that precise causation is still under investigation does not make Dr. Jafek’s expert opinion causally linking Mr. Hood’s use of Zicam nasal gel to his anosmia “new or novel” or inadmissible under the more demanding requirements of Frye. With the exception of any “new or novel” scientific methodology that Dr. Jafek relied upon to form a causation opinion (i.e., the cadaver experiment), Dr. Jafek may testify to any “pure opinion” he formed based upon his review of Mr. Hood’s medical history, his clinical physical examinations, his personal experience, published research, and differential diagnosis. See Marsh, 977 So.2d at 548.

Reversed and remanded for further proceedings.

GROSS, C.J., CIKLIN, J., and KEYSER, JANIS BRUSTARES, Associate Judge, concur.

      . For example, Defendants presented evidence of multiple studies (funded by Matrixx) investigating Zicam, including the initial efficacy studies (which did not specifically set out to study possible links to anosmia), nasal distribution studies, and an animal toxicology study. Without delving into specifics, the results of these studies were inconsistent with Dr. Jafek’s conclusions.

      . Additionally, subsequent to the hearing on the defendants’ motion to exclude, the federal district court for the Middle District of Florida excluded medical expert opinions on causation in Zicam litigation, finding that those opinions lacked "reliable factual and methodological foundations” because the doctors "lack the specialized knowledge and training needed to properly opine on the toxicity of Zicam and zinc gluconate and have not made up for these shortcomings with adequate investigation or experimentation.” Evans v. Matrixx Initiatives, Inc., 2009 WL 2914252 (M.D.Fla.2009).

      . Plaintiffs’ counsel asserted that Dr. Jafek was not relying on the cadaver experiment as the basis for his opinion that Mr. Hood has anosmia secondary to Zicam usage.

      . The question of general causation focuses on whether a substance is capable of causing a particular disease, while the question of specific causation focuses on whether the substance did, in fact, cause the disease in a specific individual. See, e.g., Berry v. CSX Transp., Inc., 709 So.2d 552 (Fla. 1st DCA 1998). The federal courts have held that in toxic tort cases, a plaintiff must prove both general causation and specific causation. See, e.g., Norris v. Baxter Healthcare Corp., 397 F.3d 878, 881 (10th Cir.2005) ("Plaintiff must first demonstrate general causation because without general causation, there can be no specific causation.”).


text:
    PRESERVE PALM BEACH POLITICAL ACTION COMMITTEE and Patrick Henry Flynn, Appellants, v. TOWN OF PALM BEACH, et al., Appellees.
    No. 4D09-4947.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 2010.
    Rehearing Denied Feb. 4, 2011.
    Robert J. Hauser of Beasley Hauser Kramer Leonard & Galardi, P.A., West Palm Beach, and John M. Jorgensen of Scott, Harris, Bryan, Barra & Jorgensen, P.A., Palm Beach Gardens, for appellants.
    John C. Randolph and Joanne M. O’Con-nor of Jones, Foster, Johnston & Stubbs, P.A., West Palm Beach, for appellee Town of Palm Beach.
    John W. Little, III, P.A., and Richard J. Dewitt, III, of Brigham Moore, LLP, West Palm Beach, for appellee Sterling Palm Beach, LLC.
   POLEN, J.

Appellants, Preserve Palm Beach Political Action Committee and Patrick Henry Flynn (collectively “Preserve”), appeal the trial court’s order granting appellee, Town of Palm Beach’s, motion for summary judgment and denying appellants’ cross-motion for summary judgment.

In the underlying action, the Town filed a Complaint for Expedited Declaratory Relief seeking a determination of the constitutionality of a Charter amendment proposed by Preserve. The proposed amendment, to be voted on by the citizens of the Town in a February 2010 election, would have required that the Town of Palm Beach Charter be amended to incorporate portions of a 1979 Agreement between the Town of Palm Beach and a developer. The incorporated provisions would prohibit the construction of new buildings in Royal Poinciana Plaza and would require that the Poinciana Theater be used only as a theater of the performing arts and/or visual arts or for lectures or other special events.

The complaint pled two counts of declaratory relief. Count I sought a determination of the constitutionality of the proposed amendment based on whether the amendment conflicted with section 163.3167(12), Florida Statutes, by purporting to use the initiative or referendum process to alter a development order. Count II sought a determination of the constitutionality of the proposed amendment based on whether the amendment was clear and unambiguous as required by section 101.161(1), Florida Statutes.

The parties agreed below that there were no genuine issues of material fact. The trial court was simply asked to determine two issues: (1) whether the 1979 Agreement was a development order, and (2) whether the proposed amendment was unconstitutional on its face.

The 1979 Agreement

The 1979 Agreement between the Town and Poinciana Properties, Ltd. (the developer), was executed in order to satisfy a precondition to the Town’s granting of a variance to the developer. At a hearing on the developer’s motion for variance, the Town Council granted the motion “subject to [execution of] an agreement, in a form satisfactory to the Town Attorney,” which would provide for sixteen specific conditions. A town building official subsequently advised the developer that the building permit would only issue after certain procedures had been followed:

After the town has approved said agreement, and after it has been recorded by the applicant, with original copy returned to the Town for the permanent record, and after the Town has received revised plans for approval which reflect the conditions of the agreement, then the Town Building permit to authorize commencement of construction may subsequently be issued.

The resulting Agreement provided, in part:

WHEREAS, Partnership made an application for variance No. 39-78 with respect to the property known as the Royal Poinciana Plaza on Cocoanut Row in the Town of Palm Beach ...; and
WHEREAS, after public notice and a public hearing on the Partnership application, the Town Council of Palm Beach granted said variance No. 39-78 with modifications of the original plan at its meeting on February 13, 1979 subject to the following conditions; and
WHEREAS, Partnership suggested and volunteered some of said conditions and by this agreement does hereby covenant and agree with TOWN that the conditions hereinafter set forth have become binding obligations on the part of Partnership, and upon its successors and assigns.
NOW, THEREFORE, know all men by these present that in consideration of the premises hereinbefore set forth and for other good and valuable considerations, the parties do hereby agree as follows:
2. Subsequent to the completion of construction and during its ownership of the Royal Poinciana Plaza, the Partnership (and during the ownership of any purchaser) agrees to perform as follows:
E. It will continue to lease the space now occupied and used by the “Poinciana Theater” only for use as a theater of the performing and/or visual arts and for lectures or other special events.

Proposed Charter Amendment

Prompted by the threat of demolition of the theater, Preserve sponsored the following ballot title, summary, and charter amendment petition in an effort to incorporate portions of the 1979 Agreement into the Town Charter:

BALLOT TITLE: Alterations of covenants of Royal Poinciana Plaza and Royal Poinciana Playhouse only by Referendum.
BALLOT SUMMARY: Voter approval required for alterations to the covenants set forth in the 1979 Royal Poinciana Plaza Agreement between the Town of Palm Beach and the predecessor of Poinciana Properties, Limited, concerning property known as the Royal Poinciana Plaza.
TEXT OF THE PROPOSED CHARTER AMENDMENT
(1) The Town of Palm Beach Charter [s]hall be amended to incorporate portions of the covenants set forth in the 1979 Agreement between the Town of Palm Beach and the predecessor of Poinciana Properties, Limited concerning property known as the Royal Poinciana Plaza; which do not allow the construction of new buildings in Poinciana Plaza, and require that the Poinciana Theater only be used as a theater of the performing arts and/or visual arts or fox-lectures or other special events.
(2) That a majority of Voters of the Town of Palm Beach voting in a referendum must approve any alterations to the Royal Poinciana Plaza Agreement.

After Presex-ve collected the x-equix-ed number of signatures, and the Town was told to put the proposed amendment on the ballot, the Town sought a declaratory judgment as to the constitutionality of the amendment. Following a hearing on the parties’ motion and cross-motion for summary judgment, the ti-ial court determined that the 1979 Agreement was a development order. Accordingly, the court granted the Town of Palm Beach’s motion for summary judgment finding that the proposed amendment was facially unconstitutional because it conflicted with section 163.3167(12). The coui't then determined that the issue of whether the proposed amendment was unconstitutionally vague was moot. Presei-ve now timely appeals.

We agree with the trial court’s order and affirm. Section 163.3167(12), Floi-ida Statutes, provides in part:

An initiative or x-efei-endum process in regard to any development order or in regard to any local comprehensive plan amendment or map amendment that affects five or fewer parcels of land is prohibited.

§ 163.3167(12), Fla. Stat. (2009). “Development order” is defined as “any order granting, denying, or granting with conditions an application for a development permit.” § 163.3164(7), Fla. Stat. (2009).

Preserve primarily argues that the Agreement is a “development agreement” and is not a “development order.” In support of its argument, Preserve first contends that the 1979 Agreement is plainly not an order, which is commonly defined as a “command, direction, or instruction.” The Town of Palm Beach responds that the 1979 Agreement meets the definition of “development order” provided in section 163.3164(7) because only by the 1979 Agreement did the Town officially grant, with conditions, the developer’s variance request.

As the trial court noted, there is no controlling authority defining a “development order” under the circumstances present here. However, a “development agreement” has been defined as “a contract between a [local government] and a property owner/developer, which provides the developer with vested rights by freezing the existing zoning regulations applicable to a property in exchange for public benefits.” Morgran Co. v. Orange County, 818 So.2d 640, 643 (Fla. 5th DCA 2002) (quoting Brad K. Schwartz, Development Agreements: Contracting for Vested Rights, 28 B.C. Envtl. Aff. L.Rev. 719 (Summer 2001)). The 1979 Agreement at issue did not freeze the zoning as to the developer but granted a variance from zoning with specific conditions. The official act of the Town which allowed the development was the execution of the 1979 Agreement, and not the pronouncement of approval during the town meeting.

Much of Preserve’s argument is based on the common understanding that an order, by definition, is often unilateral and non-negotiable. However, we note that development orders are often the product of negotiations between a developer and a municipality. Joseph Van Rooy, The Development of Regional Impact in Florida’s Growth Management, 19 J. Land Use & Envtl. L. 255, 256 (Spring 2004).

The legislative history of section 163.3167(12) does not provide any guidance as to the purpose of the statute. Still, as the trial court recognized, “[I]t is not difficult to see the due process problems associated with subjecting small property owners to public referendum votes when they would otherwise be entitled to a quasi[-]judicial hearing and review procedures.” The proposed amendment attempts to subject the landowner of the property at issue to the referendum process every time the landowner wishes to do something not anticipated in the 1979 Agreement. In other words, this amendment seeks to do the very thing prohibited by section 163.3167(12). The trial court was correct in determining that the amendment conflicted with Florida law.

The right of the people to vote on issues they are entitled to vote on is one of utmost importance in our democratic system of government. But there are issues — such as the right of a small landowner to use his property subject only to government regulations — which should not be determined by popular vote. Section 163.3167(12) rightfully protects the small landowner from having to submit her development plans to the general public and ensures that those plans will be approved or not, instead, by the elected officials of the municipality in a quasi-judicial process.

Affirmed.

WARNER and LEVINE, JJ., concur.

      . Neither party disputes that the subject property is comprised of fewer than five parcels.

      . Citing Black's Law Dictionary (West’s 9th ed.) at 1206.


text:
    Michael ILKHANI, Appellant, v. Al LAMBERTI, Sheriff of Broward County, Florida, Appellee.
    No. 4D09-5052.
    District Court of Appeal of Florida, Fourth District.
    Dec. 15, 2010.
    Michael Ilkhani, Trout, LA, pro se.
    Terrence O. Lynch, Assistant Legal Counsel, Broward Sheriffs Office, Fort Lauderdale, for appellee.
   POLEN, J.

Appellant, Michael Ilkhani, appeals the trial court’s order denying his petition for writ of mandamus in which he sought an order requiring the Broward Sheriffs Office (BSO) to prepare a Sheriffs Certificate pursuant to section 921.161, Florida Statutes, following his release from and subsequent return to the custody of the Department of Corrections.

Ilkhani was sentenced to seven years imprisonment in case number 00-5955 on August 3, 2001 and was delivered to the Department of Corrections on November 13, 2001. The BSO prepared a Sheriffs Certificate pursuant to section 921.161, Florida Statutes, indicating that Ilkhani had originally been incarcerated in the county jail on March 29, 2000 and was convicted on August 3, 2001. On February 5, 2002, Ilkhani was returned to the BSO and was subsequently released on superse-deas bond on March 15, 2002. On February 25, 2004, the trial court issued a no bond capias in case number 00-5955 for Ilkhani’s failure to appear at a hearing. On May 5, 2006, Ilkhani was arrested in New York on the capias and was held in a New York detention facility until he was returned to the BSO on August 31, 2006. On October 19, 2006, Ilkhani was returned to the Department of Corrections.

Based on the foregoing, Ilkhani filed a petition for writ of mandamus with the trial court arguing that A1 Lamberti (Bro-ward County Sheriff) and the BSO were required to certify the dates Ilkhani was at liberty on bond between March 15, 2002 and his arrest in New York on May 5, 2006. The trial court denied relief finding that Ilkhani had failed to establish that Lamberti and the BSO had a duty “to perform the ministerial act or mandatory duty demanded, his ... own clear legal right to demand the action, and a want of any other adequate remedy.”

“An appellate court reviews a trial court’s decision on a petition for writ of mandamus under the abuse of discretion standard of review.” Rosado v. State, 1 So.3d 1147, 1148 (Fla. 4th DCA 2009). Section 921.161(2), Florida Statutes, provides in pertinent part:

(2) In addition to other credits, a person sentenced to imprisonment in custody of the Department of Corrections shall receive credit on her or his sentence for all time spent between sentencing and being placed in custody of the department. When delivering a prisoner to the department, the custodian of the local jail shall certify to it in writing:
(a) The date the sentence was imposed and the date the prisoner was delivered to the department.
(b) The dates of any periods after sentence the prisoner was at liberty on bond.
(c) The dates and reasons for any other times the prisoner was at liberty after sentence.

§ 921.161(2)(a-c), Fla. Stat. (2009) (emphasis added). In Cordova v. State, 855 So.2d 216 (Fla. 3d DCA 2003), the court explained:

In reality, “time spent” under subsection 921.161(2) refers back to a similar phrase used in subsection 921.161(1) and means time spent in custody. See id. § 921.161(1) (“time she or he spent in the county jail”). The jailer is required to certify the dates that the defendant was at liberty on bond or otherwise, id. § 921.161(2)(b), (c), so that these periods can be subtracted from the total time period between sentencing and delivery to the Department of Corrections. The defendant is only entitled to credit for the time incarcerated between sentencing and delivery to the Department of Corrections.

Id. at 218 (emphasis in original).

Section 921.161 states in part: “When delivering a prisoner to the department, the custodian of the local jail shall certify to it in writing ... [t]he dates of any periods after sentence the prisoner was at liberty on bond.” § 921.161(2)(b), Fla. Stat. (2009). The statute does not limit its requirement to the initial delivery of an inmate to the department. Instead, it anticipates a situation like the present case in which an inmate is at liberty on bond after sentencing, and thus, may be entitled to additional credit if he spent time in the county jail prior to being returned to the department.

Ilkhani is mistaken as to the amount of credit he is entitled to under section 921.161. However, at the very least, it appears that the BSO is required to deliver a certificate to the department showing the dates Ilkhani was at liberty on bond after his sentencing and also the dates he was in the custody of the BSO prior to being delivered to the department on October 19, 2006. In fact, the form Sheriffs Certificate provides spaces for these dates. Accordingly, we reverse and remand for proceedings consistent with this opinion.

Reversed and-Remanded.

WARNER and FARMER, JJ., concur.