author: WELLS, Chief Judge.

text:
    SUNBEAM TELEVISION CORPORATION, Appellant, v. Marilyn A. MITZEL, Appellee.
    No. 3D11-249.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 2012.

      Ross & Girten and Lauri Waldman Ross, Miami; Duane Morris and Michael W. Casey, III, Miami, for appellant.
    Amlong & Amlong, William R. Amlong, Kareb Coolman Amlong and Jennifer Daley, Fort Lauderdale, for appellee.
    Before WELLS, C.J., CORTIÑAS, and ROTHENBERG, JJ.
   WELLS, Chief Judge.

Sunbeam Television Corporation appeals from a final judgment awarding damages on a discrimination claim in favor of Marilyn A. Mitzel, a reporter whose contract Sunbeam opted to terminate. We conclude that the trial court erred when, years into the litigation, it permitted Mit-zel to change the theory of her case from one of strictly age discrimination, as reflected in her charge to the FCHR and EEOC and in her complaint, to an unpled claim of age-plus-sex discrimination and allowed a trial to proceed on this unpled theory. For that reason, we reverse.

Mitzel was hired at age thirty-five by Sunbeam as a reporter for WSVN-TV (Channel 7) in late 1988. She initially contracted for a two year term as a “medical reporter,” but over a period of years, executed a series of additional, two or three year contracts. On February 11, 2005, when Mitzel was fifty-one years old, the parties executed their final employment contract. In this and each of the parties’ contracts, Sunbeam reserved the sole right to schedule and assign programming.

Early that same year, Alice Jacobs, Channel 7’s Vice President of News and the head of Sunbeam’s news operations had informed Mitzel that she wanted to change the format of the medical news that Mitzel was reporting. Jacobs, with over twenty-one years experience in the newsroom at Sunbeam and with complete control over news programming at Channel 7, had become increasingly convinced since 9/11 that viewers had become more interested in stories related to international news, terrorism, and politics, and Jacobs had decided to move away from the standard medical reports that Mitzel was presenting in favor of more current, breaking medical news stories. At her direction, a number of Mitzel’s standard reports, including “Health Cast” and “Doc Talk,” were cut back or entirely eliminated, and Mitzel was told to concentrate on breaking medical news. By December of that year, 2005, Jacobs decided to take the station in a different direction and to eliminate the medical reporter position altogether. Jacobs advised Robert Leider, the Executive Vice President of Sunbeam and General Manager of Channel 7, of her decision, who in turn discussed it with Edward An-sin, the owner of the station. Both agreed with her decision, and on December 13, 2005, Leider advised Mitzel that Sunbeam was discontinuing her contract, because it was “going in a different direction with medical news.” The next day, Sunbeam notified Mitzel in writing that it was exercising its option not to renew her contract.

Mitzel subsequently requested additional compensation and benefits, a waiver of her contract’s non-compete provision, and written confirmation that she was “not fired for any reason but that [her] segment was eliminated.” At no point did Mitzel ask to stay on at the station in another capacity. Sunbeam paid all sums due, released Mitzel from her contract’s non-compete obligation and acknowledged in writing that “WSVN-TV is eliminating the position of Health Specialist.” Sunbeam thereafter cut its medical news reporting by more than half, reducing that coverage from.every day, to two or three times a week, with reports being read by news anchors and lasting only ninety seconds out of a thirty minute newscast. Sunbeam also reduced the support personnel for medical news.

On May 24, 2006, Mitzel filed a Charge of Discrimination form with the FCHR and the EEOC claiming a violation of the Florida Civil Rights Act (“FCRA”). See § 760.10, Fla. Stat. (2006). This charging document form called for Mitzel to “check the appropriate box” for the “cause of discrimination,” listing “race,” “color,” “sex,” “religion,” “national origin,” “age,” “retaliation,” and “other (specify),” as the basis for a discrimination claim. Mitzel, who was represented by an attorney, checked only the “age” box as the basis of her discrimination claim, leaving the “race,” “color,” “sex,” “religion,” “national origin,” “retaliation,” and “other,” boxes blank. In the “Particulars” portion of the charging document, Mitzel made no mention of sex discrimination, claiming only that she was discriminated against on the basis of her age:

I am a 52 year old woman who has worked as a broadcast journalist for Sunbeam Television Corp. (WSVN-TV) for approximately 17 years. I was, until my termination, one of very few of the more than 30 broadcast journalist [sic] there who is 50 or older. I was terminated with two years remaining on my current contract, being given no reason other than the station was “changing directions” in its healthcare reporting, which was the area that I covered. I previously had served as the station’s primary backup anchorperson, sitting in as a news anchor four of five times a month. Once I turned 50, however, I was never asked to serve as an anchor; instead, the station used persons who were substantially younger than I.

When the Charge was not resolved by the EEOC, Mitzel filed a one count complaint under the Florida Civil Rights Act of 1992, alleging solely age discrimination:

1. This is a[sic] age-discrimination action brought pursuant [to] the Florida Civil Rights Act of 1992 by Marilyn A. Mitzel, a 53-year-old woman whom Sunbeam Television Corp. fired as Channel 7’s healthcare reporter even though two years remained on her contract....
4. Marilyn A. Mitzel (“Mitzel”) is a 53-year-old woman who worked as a broadcast journalist for Sunbeam Television Corp. (WSVN-TV) for approximately 17 years. She is protected by the age-discrimination provision of the Florida Civil Rights Act of 1992, §§ 760.01, et seq., Fla. Stat. (2007).
6. Section 760.10(l)(a), Fla. Stat. (2003), provides in pertinent part:
(1) It is an unlawful employment practice for an employer:
(a) To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual’s ... age ...
8. Mitzel was in December 2005 one of the very few of the more than 30 broadcast journalists employed by Sunbeam Television Corp. at Miami’s Channel 7, WSVN-TV, who was 50 year[s] old or older.
9. Additionally, Mitzel previously had served as the station’s primary back-up anchorperson, sitting in as a news anchor four or five times a month.
10. Once Mitzel turned 50, however, Sunbean [sic] never again asked her to serve as an anchor: instead, the station used persons who were substantially younger than Mitzel.
13. Sunbeam offered Mitzel no reason for terminating her other than the station was “changing directions” in its health-care reporting [.]
14. Sunbeam’s termination of Mit-zel was based on Mitzel’s age, and constituted discrimination as envisioned and proscribed by § 760.10(l)(a), Fla. Stat. (2007).

(Emphasis added).

Sunbeam answered that it had legitimate reasons for its actions and that any claim exceeding the scope of the administrative charge was impermissible and time-barred. For almost the next four years this case proceeded solely as an age discrimination case. During a pretrial deposition taken on March 4, 2008, Mitzel reconfirmed that her action was based solely on a claim of age discrimination and was founded on two, and only two, actions: (1) Channel 7’s failure in 2004 to allow her to continue to serve as back-up anchor after she turned fifty and (2) her termination without cause:

Q. The complaint also alleges at paragraph 12 that — well, actually 14 it says that Sunbeam terminated you because of your age. Is that claim, the termination claim and the claim that you’re no longer serving as the anchor are those the only claims of age discrimination you’re asserting in the lawsuit?
Q. Are those the only instances of age discrimination?
A. Being terminated.
Q. And no longer serving as back-up anchor?
A. Yes.

At no point in this deposition, or otherwise up to this point, did Mitzel state or suggest that her claim was also premised on a claim of sex discrimination.

Mitzel also acknowledged that, other than her perceptions, she had no facts to support her claim. Rather, Mitzel deduced that she was the victim of age discrimination because she was doing a good job and could “think of no other reason” for the termination:

Q. When did you decide or think that the station’s terminating your employment constituted age discrimination?
A. Immediately.
Q. When Mr. Leider told you?
A. Pretty much.
Q. Why did you think that?
A. I don’t know any other reason.
Q.... Now, my question is why do you contend that [the] station terminated your employment because of your age; evidence, facts, what evidence or facts leads you to conclude that your termination—
A. I can think of no other reason.
Q. Do you have any knowledge whether actual knowledge or hearsay or based on rumor that anyone at the station terminated you because of your age?
A. Did I hear management say that, no.
Q. Did you hear it or did you hear second hand that anyone in management said or made the decision to terminate you because of your age?
A. No.

In contrast, Alice Jacobs testified at deposition, and Robert Leider confirmed, that Jacobs had sole control over the day-to-day operations of Channel 7’s newsroom. She made all personnel decisions and decided what would be on Channel 7⅛ newscasts and who would do it. According to Jacobs, she engaged no focus groups, took no surveys, and reviewed no ratings in making her decisions as to how to present the news; she relied on her over twenty years experience at Channel 7 to decide what news to present and how. With regard to the changes made to the presentation of medical news, Jacobs testified that after 9/11 she perceived that interest in medical news was dwindling. She decided to change the focus of the Channel’s medical reportage to breaking news rather than its standard packaged medical reporting. In keeping with this decision, medical news was gradually decreased with regular reports declining from eight reports a week to two, and because breaking news does not happen all the time, she decided that the Channel no longer needed a medical reporter.

Jacobs further testified that although Mitzel had done some anchoring for the station in the past, she found Mitzel ill suited for such duty. Jacobs found Mitzel was “not very good” at ad-libbing breaking news and thought she looked uncomfortable doing it. Thus, when the time came to eliminate the medical reporter position, Jacobs decided to terminate Mitzel rather than move her to another reporting position. Leider and Ansin approved of her decision.

After two-and-one-half years of discovery, in December 2009, Sunbeam moved for summary judgment. Based on the pleadings and discovery taken, Sunbeam claimed entitlement to a judgment as a matter of law on Mitzel’s age discrimination claim, the only claim asserted up to that point. The company argued first, following Sunbeam’s purported “reduced use” discrimination relating to its refusal to use Mitzel as a back-up anchor, that Mitzel had failed to file a Charge of Discrimination with the FCHR within 365 days of the alleged discrimination as required by section 760.11(1) of the Florida Statutes; and second, that Mitzel could not satisfy the burdens imposed by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), or demonstrate that “but for” her age, her employment would not have been terminated, the standard set out in Gross v. FBL Financial Services, Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009).

At this point, with Sunbeam’s motion for summary judgment pending and the heavy evidentiary burden so recently set out in Gross on age discrimination cases looming over Mitzel’s single-count age discrimination claim, this action underwent a complete transformation from an age discrimination only action to an age plus sex discrimination action, an action which might allow Mitzel to muddy the waters, by reference to the Title VII standard for recovery, where a claim of discrimination can be advanced on a plaintiffs claim that being an older woman was “a motivating factor” for her employer’s action. See Gross, 129 S.Ct. at 2349 (confirming that “Congress has ... amended Title VII by explicitly authorizing discrimination claims in which an improper consideration was ‘a motivating factor’ for an adverse employment action. See 42 U.S.C. § 2000e-2m (providing that ‘an unlawful employment practice is established when the complaining party demonstrates that race, color, religion, sex, or national origin was a motivating factor for any employment practice, even though other factors also motivated the practice’ (emphasis added))”).

Two months after the motion for summary judgment was filed, Mitzel for the first time identified an expert witness, Sherlynn Howard-Byrd, Ph.D., an associate professor and Chair of the Department of Mass Communications at Alcorn State University in Alcorn, Mississippi. Mitzel also filed a declaration, prepared by Mit-zel’s attorney and signed by Dr. Howard-Byrd, in which Dr. Howard-Byrd admitted that she could not “testify that Sunbeam Television Corp.’s termination of Marilyn Mitzel was age discriminatory.” Despite the fact that this admittedly first time expert witness could shed no light on the only issue raised by the pleadings in this case, she declared under oath:

While I cannot testify that Sunbeam Television Corp.’s termination of Marilyn Mitzel was age discriminatory, it is my opinion that:
One, Channel 7’s staffing patterns are identical to the widespread industry practice of basing decisions concerning the retention of older journalists, especially older women journalists, on consumer preference (be it documented or perceived) for “sweet young things” rather than seasoned professionals;
Two, Alice Jacobs’s “professional judgment” is without any objective support and would appear to be both jour-nalistically counter-intuitive and financially self-destructive;
Three, the truth of Ms. Jacobs’s assertion that she reduced the number of medical stories is called into question by both Ms. Mitzel’s testimony that she continued to be on the air regularly with medical news, notwithstanding the elimination of specially named, sponsored segments such as “HealthCast” and “Doc Talk,” as well as the volume of medical stories I found on WSVN’s web site — both of which are consistent with my understanding of the popularity of medical news amongst broadcast news consumers; and
Fourth, I could find no objective justification for not continuing to employ Ms. Mitzel, an experienced broadcast journalist with anchoring capabilities, in some other role under the rather broad terms of her contract.

These opinions were, as Dr. Howard-Byrd’s deposition confirmed, based on nothing more than anecdotal evidence, hearsay, and rank speculation. Indeed, Dr. Howard-Byrd conducted no studies and undertook no investigation that would permit her to determine what Channel 7’s staffing patterns were or whether they were consistent with any recognized industry standards. She also conceded that while in her opinion age discrimination in broadcast news begins at age forty, Channel 7 employed at least seven broadcast journalists over that age, four of whom (not including Mitzel) are female, including one a number of years older than Mitzel. She further admitted that her conclusion that there exists “a widespread industry practice of basing decisions concerning the retention of older journalists, especially older women journalists, on consumer preference (be it documented or perceived) for ‘sweet young things’ rather than seasoned professionals,” was premised on no statistics whatsoever, since admittedly none exists, but was premised on nothing more than “flipping through the [T.V.] channels and seeing things”;4 conversations with her students at Alcorn State University; a study about the number of women, not the ages of women, in broadcast journalism; review of a few age discrimination lawsuits involving women journalists; and surveys that found that the airline industry at one point preferred thin, young women as stewardesses.

Dr. Howard-Byrd’s second opinion, that Alice Jacobs’ decision to change the delivery of medical news was without objective support, was derived in significant part from her review of Neilsen ratings from which she concluded that Mitzel’s medical reports were viewer favorites. However these ratings were based on fifteen minute news segments during which Mitzel’s medical news ran for no more than two minutes. Dr. Howard-Byrd, however, attributed an uptick in ratings solely to Mitzel’s reports, irrespective of the other reports presented by other newscasters during these segments. Moreover, this conclusion was reached’ without Dr. Howard-Byrd having watched the full fifteen minute newscasts that were the subject of the reports.

Dr. Howard-Byrd’s conclusion that Jacobs was not being truthful when she said she wanted to reduce, and then reduced, the number of medical reports is based on Dr. Howard-Byrd’s conclusion that the number of such reports had not been reduced and indeed would not have been reduced because they were “popular” with viewers. First, Dr. Howard-Byrd had to admit that she had no idea how many medical reports were aired weekly either before or after Mitzel’s position was terminated. Indeed, she had viewed only two medical reports and was unaware that standard, non-breaking, medical news reports had been reduced between 2003 and 2006 from eight a week to only two. Second, as for her conclusion that such reports were popular with viewers, according to Dr. Howard-Byrd, she knew this because she had seen such reports “everywhere,” and “popular wisdom is that health news is and always will be big news.”

Dr. Howard-Byrd’s final conclusion that she “could find no objective justification for not continuing to employ Ms. Mitzel,” not only ignores Jacobs testimony that Mitzel was unsuited for breaking news reporting but also fails to acknowledge the oft cited admonishment that bad business decisions do not necessarily correlate with decisions that violate the law. See Reilly v. Novartis Pharm. Corp., No. 6:07-cv-230-CM-19GKJ, 2008 WL 795322, at *10 (M.D.Fla. Mar. 24, 2008) (citing Chapman v. AI Transp., 229 F.3d 1012, 1024 (11th Cir.2000) (en banc)); see also Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d 1354, 1361 (11th Cir.1999) (“We have repeatedly and emphatically held that a defendant may terminate an employee for a good or bad reason without violating federal law.... We are not in the business of adjudging whether employment decisions are prudent or fair.”); Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir.1991) (“Federal courts do not sit as a super-personnel department that reexamines an entity’s business decisions. No matter how medieval a firm’s practices, no matter how high-handed its decisional process, no matter how mistaken the firm’s managers, [federal discrimination law] does not interfere. Rather our inquiry is limited to whether the employer gave an honest explanation of its behavior.”).

In conjunction with Dr. Howard-Byrd’s April 7, 2010 declaration, and just before the scheduled summary judgment hearing, Mitzel submitted an affidavit for the first time asserting that women broadcasters had a “shelf life,” that plastic surgery was expected of women in the industry, and that she was a victim of discrimination because she was a woman over fifty. Mit-zel also pointed to two statements purportedly made by Jacobs to support her newly asserted “women” over 50 discrimination claim. The first stemmed from a discussion that occurred in 2001, four years before she was terminated, and before she executed her last employment contract with Channel 7. This discussion was, according to Mitzel, prompted by Mitzel herself, when she voiced her anxiety that she might someday be let go because of her age, to which Jacobs allegedly responded, “Oh, I know what you’re worried about— you don’t have to worry about that. You can work here a long time. At least five years.” The second stemmed from a comment by Jacobs about a medical story featuring a breast cancer patient in her sixties, which Jacobs had pulled, saying “No one wants to look at old ugly people on T_v.”

Sunbeam promptly moved in limine to preclude any testimony regarding Mitzel’s new allegation of sex discrimination or age-plus-sex discrimination, including that of her newly identified expert. On April 9, 2010, the trial court denied Sunbeam’s summary judgment motion, as well as its motions to exclude Mitzel’s sex discrimination allegations and her expert’s testimony. Following a five day trial centered around Mitzel’s age-plus-sex theory, a jury returned a verdict finding that age was “a substantial or motivating factor that prompted” Sunbeam to terminate Mitzel, and awarded her $790,000 for past lost wages and benefits, $97,000 for future wages and benefits, and $50,000 for punitive damages. After denying Defendant’s Amended Motion for Judgment in Accordance with the Prior Motion for Directed Verdict or, in the Alternative, Motion for a New Trial, the trial court entered judgment in Mitzel’s favor.

Sunbeam advances a number of arguments for reversal of this judgment, including the argument that this plaintiff should not have been permitted to proceed on a new theory that went beyond anything either claimed in her FCHR/EEOC Charge or advanced in her complaint. Because we agree with this argument, we reverse and remand for reconsideration of this case solely on the issue of age discrimination.

The Florida Civil Rights Act of 1992 (FCRA), prohibits discrimination in the workplace because of an individual’s race, color, sex, national origin, age, handicap, or marital status. See § 760.10, et. seq., Fla. Stat. (2007); Brown Distrib. Co. of W. Palm Beach, 890 So.2d at 1230 n. 1; see also Hogan, 986 So.2d at 641. Under its provisions, an individual claiming discrimination in the workplace must first file an administrative complaint with the FCHR within 365 days of an alleged violation and exhaust the administrative remedies provided by the Act before a civil action asserting discrimination may be brought. See § 760.11, Fla. Stat. (2010); Woodham v. Blue Cross & Blue Shield of Fla., Inc., 829 So.2d 891, 894 (Fla.2002).

The purpose of these requirements is to notify the employer of discriminatory practices and to provide the FCHR with “the first opportunity to investigate the alleged discriminatory practices to permit it to perform its role in obtaining voluntary compliance and promoting conciliation efforts.” See Gregory v. Ga. Dept. of Human Res., 355 F.3d 1277, 1279 (11th Cir.2004); Buzzi v. Gomez, 62 F.Supp.2d 1344, 1351 (S.D.Fla.1999).

These purposes are, of course, frustrated when a claimant asserts one set of claims in the administrative proceedings but attempts to assert another set of unrelated claims in a subsequent civil action. See Gregory, 355 F.3d at 1280. Thus, while “judicial claims are allowed if they ‘amplify, clarify, or more clearly focus’ the allegations in the [administrative] complaint, ... allegations of new acts of discrimination are inappropriate.” Id. at 1279-80 (quoting Wu v. Thomas, 863 F.2d 1543, 1548 (11th Cir.1989)); see Gaston v. Home Depot USA, 129 F.Supp.2d 1355, 1365 (S.D.Fla.2001) (“Absent some allegation of fact [in the administrative proceeding] that put the defendant on notice of the nature and scope of the claim against it, the plaintiff is barred from asserting other types of claims in subsequent judicial proceedings that may bear some connection, however distinct, to the bare claim asserted in the [administrative] charge.”).

In this case, Mitzel’s administrative charge of discrimination and the claim of discrimination made in her complaint are the same: both allege discrimination based solely on age. But the claim that Mitzel was allowed to go to the jury on was completely different. See Evans v. Techs. App. & Serv. Co., 80 F.3d 954, 963 (4th Cir.1996) (confirming that “age discrimination does not necessarily flow from sex discrimination and vice versa”); Arnett v. Aspin, 846 F.Supp. 1234, 1240-41 (E.D.Pa.1994) (confirming that age and sex discrimination are not the same thing); see also Cartee v. Wilbur Smith Assocs., Inc., No. 3:08-4132-JFA-PJG, 2010 WL 1052082, at *3 (D.S.C. Mar. 22, 2010). While Mitzel’s administrative claim nowhere suggests that older female journalists are treated differently from older male journalists or even that younger female journalists were treated more favorably than she, her new claim focuses on the differences in treatment between men and women over the same age. This new claim, raised on the eve of summary judgment and trial, does not in any manner “amplify, clarify, or more clearly focus” the age discrimination claim made in her Charging Document, was therefore administratively barred, and should not have been allowed to go to the jury below.

Mitzel also should not have been allowed to proceed on a claim that had not been pled in her complaint. “[Ljitigants at the outset of a suit must be compelled to state their pleadings with sufficient particularity for a defense to be prepared.” Arky, Freed, Steams, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So.2d 561, 563 (Fla.1988). Thus, when a plaintiff pleads one claim but tries to prove another, it is error for a trial court to allow the plaintiffs to argue the unpled issue at trial. Agrofollajes, S.A. v. E.I. Du Pont De Nemours & Co., 48 So.3d 976, 995 (Fla. 3d DCA 2010); Bloom v. Dorta-Duque, 743 So.2d 1202, 1203 (Fla. 3d DCA 1999) (stating that “[i]t is well settled that a defendant cannot be found liable under a theory that was not specifically pled”); see also Cioffe v. Morris, 676 F.2d 539, 543 n. 8 (11th Cir.1982) (confirming that unplead issues tried without consent deny due process). In this case, Mit-zel alleged a pure age discrimination claim yet was allowed to try not just an age but also a sex discrimination claim. This in itself requires reversal. See Robbins v. Newhall, 692 So.2d 947 (Fla. 3d DCA 1997) (reversing final judgment where plaintiff had alleged three specific acts of negligence, but tried the ease on a fourth alleged act that was never pled); Freshwater v. Vetter, 511 So.2d 1114, 1115 (Fla. 2d DCA 1987) (“A judgment upon a matter entirely outside the issues made by the pleadings cannot stand, and such a judgment is voidable on appeal.”).

We also find reversible error in allowing Mitzel, via Dr. Howard-Byrd’s testimony, to try an entire industry, the broadcast news industry, for age and sex discrimination rather than trying the issues raised in her pleadings — that is, whether Sunbeam engaged in age discrimination against her when it eliminated her position. At the hearing on Sunbeam’s motion in limine, its counsel unsuccessfully sought to exclude Dr. Howard-Byrd’s testimony because, among other reasons, it was not relevant to the issues raised by the pleadings; it was generic to age discrimination in the broadcast news industry as a whole; and it would not assist the trier of fact. As previously stated, Dr. Howard-Byrd expressly admitted that she could not opine as to any discrimination at Channel 7, the only issue relevant here. Her deposition further confirmed that her testimony as a whole was no more than an unsupported running theory that age discrimination against women is pervasive within the broadcast news industry:

Question: What part of your testimony will help the jury understand the evidence?
Answer: The research that I have done about various cases and case studies. All I have to offer is my expert opinion about the research I have done.
[Question]: And you have done no research or studies on Channel 7 in Miami ever, correct? Other than reviewing the website and looking at the depositions. So you are going to say that some TV stations historically have discriminated against older women in this country, correct?
[Answer]: Yes. The ones that I have researched, yes.
[Question]: What does that have to do with Sunbeam Television Channel 7?
[Answer]: Mitzel’s case may parallel with some of the other cases where people have alleged age discrimination. That’s the information I can offer. That discrimination does happen. It does occur.
I believe that society still has in mind what happened [ ... ] during the World War II era. I really believe that they still look at the woman as maybe a figure that is not as authoritative as the man [ ... ] Men are more likely to continue reporting past the age of 40, more so than the women because the women would start to age more. And, [ ... ] once the men age gracefully it is considered authoritative and experienced by not for women ... The older woman is often considered too old, too unattractive, and not deferential enough to men.

As Rowe Entertainment, Inc., v. The William Morris Agency, Inc., No. 98 Civ. 8272(RPP), 2003 WL 22272587, at *1 (S.D.N.Y. Oct. 2, 2003), confirms, this type of generic evidence is not necessarily probative of a discrete discrimination claim. There, four black promoter agencies sued white booking agency defendants alleging a conspiracy to exclude the plaintiffs from promoting concerts on the basis of race. The plaintiffs retained an expert who conducted research of “Institutional Racism in the Entertainment Industry.” That expert opined that statistical data on the concert promotion sector showed an institutionalized pattern of racial discrimination. The expert further opined that accounts and incidents recounted by a number of black promoters were similar to accounts and incidents described by the other African Americans in the Concert Promotion Business, all of which purportedly established racial discrimination. The district court excluded this testimony of industry discrimination as irrelevant and prejudicial stating that “the conclusion by [Plaintiffs expert] of institutionalized discrimination in the United States concert promotion industry is not relevant to the issues in Plaintiffs case and would only serve ‘to interject substantial unfair prejudice into the case’ and confuse the jury by directing its attention from the issues in this case.” Id. at *7; see also Rolls-Royce Corp. v. Herns, Inc., No. 3:07-CV-0739-D, 2010 WL 184313, at *6 (N.D.Tex. Jan. 14, 2010) (“An opinion is unhelpful to a trier of fact if it attempts to apply a general observation about a larger group to particular individuals whose conduct is in question.”). The same may be said here. The fact that a handful of broadcast stations may have engaged in improper employment actions based on age does not prove that this is what happened here.

In sum, Dr. Howard-Byrd’s testimony reached beyond the scope of this case to come to conclusions she was not competent to reach, and served only to interject irrelevant conjecture into the jury’s consideration, all to Sunbeam’s prejudice. This pervasive discussion of a generalized distaste for older woman in the news industry by this expert unfairly suggested Mitzel’s termination was caused by the same kind of discrimination, and certainly diverted the jury from its task of deciding whether Mitzel’s age was the “but for” cause of her contract being terminated in this case. This was wholly improper and so prejudicial as to warrant reversal and a new trial.

For these reasons, the order under review is reversed with this matter remanded to the court below for consideration of Mitzel’s claim of age discrimination.

      . The Florida Commission on Human Relations ("FCHR”) and the Equal Employment Opportunities Commission (“EEOC”).

      . In 1994, Sunbeam removed from Mitzel’s contract the term "medical reporter.”

      . FCRA protects employees from age discrimination in the workplace. It provides, in pertinent part, that it is unlawful for an employer to discriminate against any individual "because of’’ such individual's age. § 760.10(l)(a), Fla. Stat. (2010) (emphasis added). This Act was derived from two federal statutes, Title VII of the Civil Rights Acts of 1964 and 1991, 42 U.S.C. § 2000, et seq., as well as the ADEA, 29 U.S.C. § 623. See Brown Distrib. Co. of W. Palm Beach v. Marcell, 890 So.2d 1227, 1230 n. 1 (Fla. 4th DCA 2005). Title VII pertains to employment discrimination because of race, color, religion, sex and national origin, while the ADEA pertains to age discrimination. Florida courts apply federal case law interpreting Title VII and the ADEA to cases arising under the FCRA. See Id.; City of Hollywood v. Hogan, 986 So.2d 634, 641 (Fla. 4th DCA 2008).

      . As to her back-up anchor claim, Mitzel testified at deposition that although she viewed the fact that after she turned fifty in 2004 she was no longer called on to act as back-up anchor as “age discrimination,” she complained to no one about it; suffered no financial or other ramifications as a consequence of it; and subsequently entered into another employment contract with the station in early 2005.

      . Gross, 129 S.Ct. at 2352 provides:
      We hold that a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the "but-for” cause of the challenged adverse employment action. The burden of persuasion does not shift to the employer to show that it would have taken the action regardless of age, even when a plaintiff has produced some evidence that age was one motivating factor in that decision....

      . To support this proposition, Dr. Howard-Byrd asked the court below to ''[cjonsider, for example, the counterpoint of the emphasis that Cable News Network puts on the role of its chief medical correspondent, Sanjay Gupta, M.D.” This perhaps makes a point but also highlights the fact that medical updates now appear to be delivered by physicians such as Dr. Gupta and not lay people such as Mitzel.

      . The United States Court of Appeal for the Eleventh Circuit "has been hesitant to conclude that 'ambiguous stray remarks' constitute evidence of pretext.” Reilly, 2008 WL 795322 at *10 n. 19; see also Koestner v. Derby Cellular Prods., 518 F.Supp.2d 397, 402 (D.Conn.2007) ("In determining whether a comment is a probative statement that evidences an intent to discriminate or whether it is a non-probative 'stray remark,’ a court should consider the following factors: (1) who made the remark, i.e., a decisionmaker, a supervisor, or a low-level co-worker; (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark, i.e., whether a reasonable juror could view the remark as discriminatory; and (4) the context in which the remark was made, i.e., whether it was related to the deci-sionmaking process.” (quoting Schreiber v. Worldco, LLC, 324 F.Supp.2d 512, 518-19 (S.D.N.Y.2004))).

      . The court in Freese v. Wuesthoff Health System, Inc., No. 6:06-cv-175-Orl-31JGG, 2006 WL 1382111, at *4 (M.D.Fla. May 19, 2006), rejected a similar attempt to assert a gender discrimination claim following an administrative proceeding in which only age discrimination and retaliation were raised. There, Freese checked the boxes on her Charge of Discrimination indicating discrimination based on “age” and “retaliation,” and described the misconduct involved in the Particulars section of the Charge as follows:
      1) Age-at the time these events took place, I was Sixty-Two (62) years of age.
      Retaliation-I believe I have been retaliated against by management at Wuesthoff because I complained about workplace conditions ....

        Id. at *4.
      She later filed a civil action wherein she attempted to claim discrimination based on her gender. The court rejected the new claim concluding that it did not serve to "amplify, clarify, or more clearly focus” the allegations of age discrimination and retaliation made in the administrative complaint:
      Nowhere in her charge does [Freese] make any allegations or statements that could, even when construed entirely in her favor, even be considered hints, much less actual allegations, of gender discrimination and retaliation. Her allegations of gender discrimination and retaliation in her Second Amended Complaint are entirely new and different allegations than those found in her Employment Charge of Discrimination. Therefore, Freese has failed to meet the jurisdictional prerequisite for the filing of Title VII and FCRA gender discrimination and retaliation claims, and those claims will be dismissed.

        Id. at *4.

      . As a threshold matter, the expert’s opinion must be relevant, that is, the evidence must prove or tend to prove a fact in issue. Stano v. State, 473 So.2d 1282, 1285 (Fla. 1985).

      . Section 90.702, Florida Statutes (2010), provides:
      If scientific, technical, or other specialized knowledge will assist the trier of fact in understanding the evidence or in determining a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify about it in the form of an opinion; however, the opinion is admissible only if it can be applied to evidence at trial.

      . See Lubkey v. Compuvac Sys., Inc., 857 So.2d 966, 968 (Fla. 2d DCA 2003) (finding that in attorney's fee hearing, "[t]he expert’s opinion, lacking any factual foundation, was not competent proof”); Dozier v. Hodges, 849 So.2d 1094, 1095 (Fla. 3d DCA 2003) (finding it was proper to exclude officer's estimate of speed even though the expert had been qualified as an expert because he had testified in his deposition that “he took no measurements, made no calculations, and no factual basis for his opinion”); Young-Chin v. City of Homestead, 597 So.2d 879, 882 (Fla. 3d DCA 1992) ("It has always been the rule that an expert opinion is inadmissible where it is apparent that the opinion is based on insufficient data.” Husky Indus., Inc. v. Black, 434 So.2d 988, 992 (Fla. 4th DCA 1983); Martin v. Story, 97 So.2d 343 (Fla. 2d DCA 1957) (opinion based on incomplete information is not admissible). Section 90.705 Florida Statutes (1989), states that if a “party establishes prima facie evidence that the expert does not have a sufficient basis for his opinion, the opinions and inferences of the expert are inadmissible unless the party offering the testimony establishes the underlying facts or data.”).


source: Caselaw Access Project

author: HAZOURI, J.

license: Public Domain

text:
    Barbara KIMMICK a/k/a Barbara Waldon Kimmick, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee for the GSAA Home Equity Trust 2007-7 Asset Backed Certificates, Series 2007-7; Unknown Tenant No. 1; Unknown Tenant No. 2; and All Unknown Parties Claiming Interests by, Through, Under or Against A Named Defendant to this Action, or Having or Claiming to Have Any Right, Title or Interest in the Property Herein Described, Appellees.
    No. 4D10-4158.
    District Court of Appeal of Florida, Fourth District.
    Jan. 18, 2012.

      Robert P. Bissonnette of Robert P. Bis-sonnette, P.A., Fort Lauderdale, for appellant.
    Roy A. Diaz and Diana B. Matson of Smith, Hiatt & Diaz, P.A., Fort Lauder-dale, for appellee U.S. Bank National Association.
   HAZOURI, J.

Barbara Kimmick appeals from the granting of U.S. Bank’s amended motion for summary final judgment of foreclosure and attorneys’ fees, which was based upon the affidavit of indebtedness, the mortgage, and the promissory note. Kimmick asserts there were genuine issues of material fact precluding the granting of the summary judgment. We agree and reverse.

Kimmick filed an affidavit in opposition to the motion for summary judgment. She stated that she has resided at the subject property for twenty years and in February of 2009, she lost her job. She continued paying her mortgage from her savings through July of 2009. She then stated:

4. On or about August 6, 2009, I contacted my lender, Bank of America, and explained that I was experiencing financial hardship due to the loss of my job and that I had exhausted my personal savings thereafter in paying the subject note and mortgage from February 2009 to July 2009.
5. I requested assistance from Bank of America in paying my mortgage and, over the phone, Bank of America, by and through its representative, Bethany, calculated a new and reduced mortgage payment in the amount of $506.85 and that I was to start paying the new amount immediately.
6. Bank of America, by and through Bethany, further stated to me that after three (3) month’s payment of the $506.85, they would review my payment history and, if I had consistently met my payment obligations, that they would grant me a permanent mortgage modification at that amount.
7. In reliance on Bank of America’s representations above, I faithfully paid Bank of America the monthly sum of $506.85 for six (6) months from August 2009 through January 2010. A true copy of my Bank of American Payment Overview reflecting and evidencing the foregoing is attached hereto as Exhibit “A”.
8. Importantly, the Bank of America Payment Overview, on its face, clearly states that my six (6) months of reduced mortgage payments was for “mortgage remodification” [emphasis supplied].
9. Thereafter, on January 11, 2010, this foreclosure action was filed against me claiming that I defaulted in the subject mortgage of this action by failing to pay my mortgage payments due commencing September 1, 2009.
10. However, I could not possibly have been in default of the subject mortgage because, as evidenced by Exhibit “A” attached, Bank of America agreed to accept and was accepting monthly mortgage payments from me from August 2009 until January 2010 — when this foreclosure action was unilaterally filed. I have also paid for insurance and real estate taxes on the subject property. 11. Accordingly, Plaintiff is equitably stopped from maintaining this action not only by accepting monthly mortgage payments from me but also by bootstrapping and manufacturing the alleged basis for my mortgage default herein. Thus, Plaintiff has filed the instant action in bad faith without any investigation prior thereto.

Exhibit A is a printout from Kimmick’s online bank account showing the six payments to Bank of America Home Loans from her account.

U.S. Bank filed an affidavit of the assistant secretary of BAC Home Loans Servicing in which he states that the records show that the September 1, 2009, payment was not made. It further states:

7. There has been no payment after the date of October 16, 2009. The borrower has not qualified for a loan modification under the HAMP guidelines and the borrower is not paying on a loan modification currently.

At the summary judgment hearing, Kimmick’s counsel presented the facts from her affidavit to the court. He asserted equitable estoppel. He also argued that where an affirmative defense is pleaded, and the plaintiff does not negate it, the plaintiff is not entitled to summary judgment.

In response to Kimmick’s affidavit U.S. Bank referred the court to the pre-acceler-ation letter sent to the borrower in September and October which counsel stated they said: “The default will not be considered cured unless BAC Home Loan Servicing, LP receives good funds in the amount of $3,153.77 on or before November 18, 2009. BAC Home Loan Servicing, LP reserves the right to accept or reject a partial payment of the total amount due without waiving any of its rights herein or otherwise. For example, if less than the full amount that is due is sent to us, we can keep the payment and apply it to the debt but still proceed to the foreclosure since the default would not have been cured.” Kimmick’s counsel did not deny that Kimmick received the letter but that they had told her to pay a reduced amount and which the bank accepted. U.S. Bank acknowledged that it received five of six of Kimmick’s payments.

The trial court entered its Summary Final Judgment of Foreclosure which did not address any of Kimmick’s affirmative defenses.

“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). The “party moving for summary judgment must factually refute or disprove the affirmative defenses raised, or establish that the defenses are insufficient as a matter of law.” Leal v. Deutsche Bank Nat’l Trust Co., 21 So.3d 907, 909 (Fla. 3d DCA 2009) (citing Kendall Coffey, Foreclosures in Florida 493 (2008) (citing Stop & Shoppe Mart, Inc. v. Mehdi, 854 So.2d 784 (Fla. 5th DCA 2003); Manassas Inv., Inc. v. O’Hanrahan, 817 So.2d 1080 (Fla. 2d DCA 2002))). See also Knight Energy Servs., Inc. v. Amoco Oil Co., 660 So.2d 786, 788 (Fla. 4th DCA 1995) (“Before a plaintiff is entitled to a summary judgment of foreclosure, the plaintiff must either factually refute the alleged affirmative defenses or establish that they are legally insufficient to defeat summary judgment.”).

Kimmick argues that U.S. Bank waived its right to foreclose based upon the representations made to her by the agent she spoke to at Bank of America. The affirmative defense was stated as follows:

24. For her Twelfth Affirmative Defense, KIMMICK states that Plaintiff has waived its rights to foreclosure by the actions of Plaintiffs agent and loan servicer for the subject mortgage, to-wit: Bank of America, agreeing to and actually accepting reduced mortgage payments from KIMMICK for at least six consecutive months.

In Destín Savings Bank v. Summerhouse of FWB, Inc., 579 So.2d 282 (Fla. 1st DCA 1991), the court set forth the following principles:

Waiver is defined as an intentional relinquishment or abandonment of a known right or privilege, or conduct that warrants an inference of the intentional relinquishment of a known right. In order to establish a valid waiver, the following elements must be satisfied: (1) the existence at the time of the waiver of a right, privilege, advantage, or benefit that may be waived; (2) the actual or constructive knowledge thereof; and (3) an intention to relinquish that right, privilege, advantage or benefit.

Id. at 235 (citations omitted). In Barnes v. Resolution Trust Corp., 664 So.2d 1171 (Fla. 4th DCA 1996), this court held:

An acceleration clause in a mortgage confers upon the mortgagee a contract right of constitutional dimensions. Courts are obligated to protect the validity of such contracts and may impair the mortgagee’s right to foreclose only in limited situations. Specifically, courts will bar acceleration and foreclosure as follows:
Foreclosure on an accelerated basis may be denied when the right to accelerate has been waived or the mortgagee estopped to assert it, because of conduct of the mortgagee from which the mortgagor (or owner holding subject to a mortgage) reasonably could assume that the mortgagee, for or upon a certain default, would not elect to declare the full mortgage indebtedness to be due and payable or foreclose therefore; or where the mortgagee failed to perform some duty upon which the exercise of his right to accelerate was conditioned; or where the mortgagor tenders payment of defaulted items, after the default but before notice of the mortgagee’s election to accelerate has been given (by actual notice or by filing suit to foreclose for the full amount of the mortgage indebtedness) or where there was intent to make timely payment, and it was attempted, or steps taken to accomplish it, but nevertheless the payment was not made due to a misunderstanding or excusable neglect, coupled with some conduct of the mortgagee which in a measure contributed to the failure to pay when due or within the grace period.

Id. at 1172-73 (citations omitted) (emphasis supplied).

Kimmick also asserts that U.S. Bank waived acceleration when its agent told Kimmick that she could make the lower payments for several months, possibly get a modification, and then U.S. Bank would not proceed with an acceleration.

U.S. Bank asserts that this court can affirm the judgment with respect to the affirmative defense of waiver for a different reason. In both the note and the mortgage, there is the same provision which states:

Borrower not released; Forbearance by Lender Not a Waiver. Extension of the time for payment or modification of amortization of the sums secured by this Security Instrument granted by Lender to Borrower or any Successor in Interest of Borrower shall not operate to release the liability of Borrower or any Successors in Interest of Borrower. Lender shall not be required to commence proceedings against any Successor in Interest of Borrower or to refuse to extend time for payment or otherwise modify amortization of the sums secured by this Security Instrument by reason of any demand made by the original Borrower or any Successors in Interest of Borrower. Any forbearance by Lender in exercising any right or remedy including, without limitation, Lender’s acceptance of payments from third persons, entities or Successors in Interest of Borrower or in amounts less than the amount then due, shall not be a waiver of or preclude the exercise of any right or remedy.

U.S. Bank argues that this “No Waiver” provision allows it to accept prior late or reduced payments without losing its right to enforce its rights and remedies. Kim-mick, however, is asserting that U.S. Bank waived this provision by representing to her that she could make reduced payments, which were timely, and meet the requirements for a permanent mortgage modification.

Therefore, there remain genuine issues of material fact as to the issues raised by the affirmative defense of the loan modification. We reverse and remand for further proceedings consistent with this opinion.

Reversed and remanded.

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


author: PER CURIAM.

text:
    Douglas HOLCOMBE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2745.
    District Court of Appeal of Florida, Third District.
    Jan. 18, 2012.
    Douglas Holcombe, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, SUAREZ, and SALTER, JJ.
   PER CURIAM.

Affirmed. See Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011), and cases cited therein.


author: ALTENBERND, Judge.

text:
    Floyd LaFOUNTAIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-4917.
    District Court of Appeal of Florida, Second District.
    Jan. 18, 2012.
    Rehearing Denied March 28, 2012.

      Floyd LaFountain, pro se.
   ALTENBERND, Judge.

Floyd LaFountain appeals the order denying his motion to correct an illegal sentence. Mr. LaFountain was sentenced to life without possibility of parole for a felony murder that occurred in 1994. He claims that this sentence is now illegal in light of the U.S. Supreme Court’s ruling in Graham v. Florida, — U.S. -, 180 S.Ct. 2011, 176 L.Ed.2d 825 (2010). We affirm the trial court’s order denying this motion.

Mr. LaFountain was convicted in 1995 of felony first-degree murder, armed burglary, and attempted robbery with a firearm. He received sixty-eight-month sentences of imprisonment for the burglary and robbery, which he has fully served. He challenges only his life-without-parole sentence for the felony murder.

The facts underlying these sentences are not well established in this record. Mr. LaFountain claims that he was sixteen at the time of these offenses and that his codefendant, Kyle Dylan Moran, was the person who actually killed the victim. For purposes of this opinion, we assume the truth of these representations.

Although the Supreme Court held in Graham that life without possibility of parole was unconstitutional for juveniles convicted of nonhomicide offenses, its holding did not address whether a felony murder charge is a nonhomicide offense. In Arrington v. State, — So.3d -, 2012 WL 180276 (Fla. 2d DCA 2012), an opinion that this - court is releasing simultaneously with this opinion, we classify felony murder as a homicide offense, but require a trial court to conduct a case-specific analysis of all of the factual circumstances to determine whether a sentence of life without possibility of parole is disproportionate where a juvenile is convicted of felony murder but did not actually commit the homicide.

Even if we have the authority to make the decision in Arrington retroactive in this context — a power that we doubt we have — we decline to do so. See, e.g., Selectman v. Zavaras, Civil Action No. 09-CV-02006-WJM, 2011 WL 1597678 (D.Colo. Apr. 28, 2011) (declining to give Graham retroactive application on collateral review). We also note that the holding in Arrington involves a mixed issue of fact and law and does not create an avenue for relief at any time under Florida Rule of Criminal Procedure 3.800(a).

Affirmed.

DAVIS and KELLY, JJ., Concur.

      . The public records of the Department of Corrections confirm that Kyle Dylan Moran is serving two life sentences for murder and burglary for crimes committed on the same dates as Mr. LaFountain's offenses.


text:
    Tommy Lee GREEN, Sr., Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1376.
    District Court of Appeal of Florida, Fifth District.
    Jan. 20, 2012.
    Rehearing Denied Feb. 29, 2012.
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Tommy L. Green, Sr., Wewahitchka, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

We affirm Green’s convictions and sentence without prejudice to his right to seek appropriate and timely postconviction relief. See Dunbar v. State, 35 So.3d 54, 55 (Fla. 5th DCA 2010) (sentencing errors that occur after effective date of amendment to Florida Rule of Criminal Procedure 3.800(b), even if formerly deemed fundamental or patent on face of record, cannot be reviewed by appellate court if issue is not raised at sentencing or in timely post-sentencing proceeding pursuant to Rule 3.800); see also Williams v. State, 56 So.3d 899 (Fla. 5th DCA 2011).

AFFIRMED.

MONACO, EVANDER and JACOBUS, JJ., concur.


author: SILBERMAN, Chief Judge.

text:
    In the Interest of S.C., a child. J.C. and C.C., Petitioners, v. Department of Children and Family Services and Guardian Ad Litem Program, Respondents.
    No. 2D11-3659.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 2012.
    Rehearing Denied March 27, 2012.

      Melissa A. Tartaglia of Tartaglia Law, P.A., Port Richey, for Petitioners.
    Bernie McCabe, State Attorney, and Leslie M. Layne, Assistant State Attorney, Clearwater, for Respondent Department of Children and Family Services.
    Jennifer S. Paullin, Tavares, for Respondent Guardian ad Litem Program.
   SILBERMAN, Chief Judge.

In this pending dependency case, J.C. and C.C., the paternal grandparents, seek certiorari review of the trial court’s Order on Keeping Children Safe Act that prohibits J.C., the grandfather, from contact with his grandson, S.C., and continues S.C. in the care, custody, and control of C.C., the grandmother. Because the grandparents have shown irreparable harm and a departure from the essential requirements of the law, we grant the petition.

S.C., born March 3, 2009, had been living with the grandparents since he was five months old because the parents were abusing prescription drugs. S.C. was born dependent on methadone, and on March 1, 2010, the parents executed powers of attorney which gave the grandparents custody of S.C. The father subsequently died of a drug overdose. The grandparents filed a private petition for termination of parental rights as to the mother. Pursuant to a mediation agreement, the mother consented to an adjudication of dependency based upon her substance abuse and agreed to complete services in a case plan. Later, the grandparents asserted that the mother was not actively working on her case plan, and they filed a private petition for dependency.

During the course of the proceedings, the grandfather voluntarily disclosed to the State’s child protective investigator that he had a conviction for a misdemeanor molestation of a child in New York in 1988, when he was still abusing drugs and alcohol. Following a status hearing, the trial court ordered that the grandfather reside outside the home and scheduled a hearing pursuant to the Keeping Children Safe Act.

At the hearing on the Keeping Children Safe Act, the grandparents presented the testimony of Brian Weist, who previously worked as a child protective investigator and who performed the investigation concerning S.C. Weist testified that the child’s parents were abusing prescription drugs and that S.C. was staying with the paternal grandparents. Weist’s report, which was admitted into evidence, reflected that the grandfather admitted that he was convicted of misdemeanor molestation in New York over twenty years ago, when he was still abusing drugs and alcohol. He had touched his ten-year-old daughter, and his wife (the grandmother) contacted law enforcement. The grandfather told Weist that he had counseling and went to rehab and stopped the substance misuse. Weist found the grandfather to be very honest in admitting this and that the grandfather regretted the incident. A criminal history search verified a charge of felony sex abuse in New York in 1988.

Weist recommended that S.C. stay with the grandparents and observed S.C. to be well bonded with the grandfather. Weist determined that the grandfather had no substance abuse issue based on a clean drug screen and Weist’s observation of the grandfather. He also commented that the current situation was different from the prior incident because S.C. was a boy and the earlier situation involved a girl. However, Weist did not review any of the grandfather’s treatment records.

Tabitha Lambert, the guardian ad litem (GAL), testified that she visited S.C. with the grandparents on March 3, 2011, that S.C. was very bonded with the grandfather, and that S.C. seemed very happy. She was not aware of the earlier charge against the grandfather at the time of the visit; she became aware of the charge on April 6, 2011. When asked whether, knowing about the past criminal charge, she had any position as to whether it would be safe for the grandfather to be with S.C., the GAL stated that she did not have any concerns. In her opinion, S.C. would be safe living with the grandfather as well as the grandmother, and there were no indicators of sexual abuse of S.C.

The grandfather testified that he was sixty-three years old and currently was living in a motel. He voluntarily left the home two and a half months earlier. S.C. had lived with him and his wife since S.C. was five months old, and S.C. was now two years old. The grandfather was convicted of molestation of his ten-year-old daughter in New York in 1988; the original charge was a felony but he was convicted of a misdemeanor. His wife reported him, and she remained his wife. He served three years’ probation and completed all the terms of his probation, including counseling. He tried to get records but was told the records no longer existed because they were from 1988. He completed two substance abuse programs, attended Narcotics Anonymous and Alcoholics Anonymous, and has been clean and sober for twenty-four years. He continues to go to AA periodically. There have been no other allegations against him since 1988, and he has no doubt that his wife would report any instance of sexual abuse or substance abuse. The grandfather wishes to move back into the home with his wife and grandchild.

On cross-examination, the grandfather testified that the incident in 1988 occurred when he was heavily intoxicated and high on drugs and that he had a total blackout. His wife and daughter told him that he had his daughter on his lap and touched her through her pajamas. As soon as his wife found out, she took the children, left, and called the police. After he was arrested he went into a rehab alcohol program, completed it, and has not had drugs or alcohol since then. He would have no objection to doing a substance abuse evaluation or a psychosexual evaluation.

The trial court then asked the following questions:

THE COURT: Please let me ask a question or two of the State to make sure I understand Eckerd’s position. As I understand counsel for Eckerd’s representation, Eckerd is — cannot recommend placement of the child [S.C.] in a home where the paternal grandfather, [C.C.], resides and hence would have contact with the child?
MS. BARBELES: Correct.
THE COURT: And that would be the case in light of the evidence already presented regardless of an opinion from a psychosexual examiner or a substance abuse evaluator I presume because the paternal grandfather has no legal right to have custody of the child, and why would anybody take a chance essentially?
MS. BARBELES: Correct.

The grandmother testified that S.C. had been living with her since he was five months old and was currently living with her. She testified that she reported the sexual abuse incident approximately twenty-three years ago on the same night that it occurred. She testified that her husband had come home drunk and that he was trying to touch their daughter’s bottom or underwear while she was wearing clothes. The grandmother was enraged and left with the children. At that time the grandfather had a drinking and substance abuse problem. He was on probation for three years and out of the home for about a year and in drug rehab. The whole family went to counseling. He has remained clean and sober since that time.

The grandmother has no further concerns about sexual abuse issues with children. A document was admitted into evidence reflecting that Reverend Gale Hoone at L.I.F.E. Ministries in Florida, where the grandmother works, performed counseling for the family and for the grandfather’s alcoholism. The grandmother testified that she had no doubt that she would report the grandfather if he used alcohol or if she thought anything looked suspicious or inappropriate. She has no concerns about the grandfather being around S.C., and she would be comfortable with him moving back in the residence. She observed that he was a loving grandfather and was very appropriate with S.C.

The trial court entered a written order that prohibits the grandfather from any contact with his grandson and orders that S.C. remain in the custody of the grandmother. The order contains no findings of fact or explanation of the trial court’s reasoning, but it keeps in effect the prior order that prohibits the grandfather from living with his wife.

The Department contends that the grandparents lack standing to challenge the order because grandparents are generally participants but not parties. See C.V. v. Dep’t of Children & Family Servs., 19 So.3d 381, 383 (Fla. 2d DCA 2009) (determining that grandparents had no standing to appeal an order that rejected their request to transfer placement to them after an adjudication of dependency but recognizing that a grandparent could have “legal rights sufficient to maintain a petition for writ of certiorari if the trial court departed from the essential requirements of the law as to the grandparents’ rights”). Here, as the Department recognizes, the grandparents filed a private termination of parental rights petition and subsequently filed a private dependency petition. But the Department argues that although the grandparents are “essentially” parties they would need some kind of “additional standing” to challenge this order regarding placement.

Section 39.01(51), Florida Statutes (2010), defines “party” to include “the petitioner.” Because the grandparents are petitioners in the trial court, they are not “essentially” parties, they are parties. Thus, we determine that they have standing to challenge the order. In addition, the effect of the order is to prohibit the grandfather from living with his wife, which affects his legal rights.

On certiorari review of a nonfinal order, the petitioner must demonstrate that the trial court departed from the essential requirements of the law and that the trial court’s order caused irreparable harm that cannot be remedied on post-judgment appeal. See Dep’t of Children & Family Servs. v. J.G., 67 So.3d 251, 253 (Fla. 2d DCA 2010); K.G. v. Fla. Dep’t of Children & Families, 66 So.3d 366, 368 (Fla. 1st DCA 2011). With respect to irreparable harm, the grandparents have shown that the trial court’s order forces them to live apart in two separate households if they desire for the grandmother to retain temporary custody of their grandson. The court appeared to determine that it was in the child’s best interest to reside with his grandmother. The order, which has the effect of prohibiting the grandfather from residing with his wife, results in an injury that cannot be remedied on postjudgment appeal.

With respect to a departure from the essential requirements of the law, “[a] petitioner can demonstrate a departure from the essential requirements of the law by showing ‘that the trial court made an error so serious that it amounts to a miscarriage of justice.’ ” K.G., 66 So.3d at 368 (quoting State v. Smith, 951 So.2d 954, 958 (Fla. 1st DCA 2007)). At issue here is the Keeping Children Safe Act, section 39.0139, Florida Statutes (2010) (the Act). There has been no suggestion that S.C., a two-year-old boy, has ever been sexually abused. Our review of the Act leads us to conclude that it applies only to sexually abused or exploited children. Section 39.0139(2) provides as follows:

(2) Legislative findings and intent.—
(a) The Legislature finds that:
1. For some children who are abused, abandoned, or neglected by a parent or other caregiver, abuse may include sexual abuse.
2. These same children are at risk of suffering from further harm during visitation or other contact.
3. Visitation or other contact with the child may be used to influence the child’s testimony.
(b) It is the intent of the Legislature to protect children and reduce the risk of further harm to children who have been sexually abused or exploited by a parent or other caregiver by placing additional requirements on judicial determinations related to visitation and other contact.

(Emphasis added.)

Section 39.0139(3) provides for a rebuttal presumption of detriment to a child when a parent or caregiver has been found guilty of certain crimes that include the child molestation conviction at issue here. Section 39.0139(4) provides that “[a] person who meets any of the criteria set forth in paragraph (3)(a) may visit or have other contact with a child only after a hearing and an order by the court that allows the visitation or other contact.” After the hearing, “[i]f the court finds the person proves by clear and convincing evidence that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by such visitation or other contact, the presumption in subsection (3) is rebutted and the court may allow visitation or other contact.” § 39.0139(4)(e).

Reading subsection (2) on legislative intent as a whole with the remainder of section 39.0139 supports the conclusion that the Act is intended to apply to children who have been sexually abused or exploited. Based on the legislature’s express statement of intent to protect and reduce the risk of further harm to children who have been sexually abused or exploited, it appears that the Act does not apply to S.C. Thus, the trial court applied the incorrect law, thereby departing from the essential requirements of the law in ordering that the grandfather have no contact ■with his grandson based on the Act.

Even if the Act applies to S.C., who has not been sexually abused or exploited, the trial court departed from the essential requirements of the law in not applying the rebuttable presumption that the Act expressly creates. The grandparents presented substantial evidence that the grandfather’s misdemeanor conviction in 1988 for molestation of his ten-year-old daughter was tied to the grandfather’s alcoholism and substance abuse at that time. They presented evidence that the grandfather had completed treatment and has been clean and sober for well over twenty years. The evidence reflects that the grandmother had reported her husband in 1988 and that she would not hesitate to do so again if she had any indication that he was using alcohol or if she thought anything looked suspicious. She had no concerns about the grandfather being around S.C. and observed her husband to be very appropriate with S.C. Moreover, the child protective investigator and the GAL both recommended that S.C. continue to live with the grandfather and grandmother. S.C. was found to be well bonded with the grandfather and very happy.

It is clear from the trial court’s comments at the hearing that it was not treating the presumption of harm as rebuttable. The grandfather testified that he would be willing to undergo a substance abuse evaluation or a psychosexual evaluation. At the end of the hearing, the trial court stated as follows:

I don’t see what would be accomplished in a psychosexual evaluation for the paternal grandfather at this time or a substance abuse evaluation because, assuming for the sake of argument, they are both totally favorable to the paternal grandfather. In light of the evidence that I have already heard, I cannot justify returning the paternal grandfather to contact with the child [S.C.].

The trial court provided no factual findings in its written order as to the basis for ordering no contact.

Under these circumstances, although the grandparents were permitted to put on evidence at the hearing, which was essentially uncontradicted, the trial court made it clear that it believed that no amount of evidence could rebut the presumption of harm to the child. This is an error so serious that it amounts to a manifest injustice. Thus, even if the Act applies to S.C., the trial court departed from the essential requirements of the law in not applying section 39.0139(3) which provides for a re-buttable presumption. Therefore, we grant the grandparents’ petition for writ of certiorari and quash the trial court’s Order on Keeping Children Safe Act.

Petition granted and order quashed.

LaROSE and CRENSHAW, JJ„ Concur.

      . At the end of the hearing, one of the attorneys noted that she tried to get records from New York relating to the case and was also told that they did not exist.

      . We recognize that under another provision of chapter 39, section 39.0138, the trial court may consider the criminal history of a person seeking placement of a child. Section 39.0138(7)(b) provides that a person with such a criminal history may present evidence of rehabilitation to show that the person would not pose a danger to the child if placement were allowed and outlining factors that would be relevant to establish rehabilitation.


text:
    Sandra Gill McDONALD, Petitioner, v. Wiley JOHNSON and James Randy Johnson, as successor Co-Trustees of the Paul D. McDonald Revocable Trust Agreement dated April 19, 1991, as amended; Paula McDonald Runo; Debra Kay McDonald; Jackson Paul Runo, a minor, by and through Paula McDonald Runo, as parent and natural guardian; Rebekah McDonald Klein a/k/a Rhebecca Elisha McDonald; and Michael D. Klein, Respondents.
    No. 2D11-3200.
    District Court of Appeal of Florida, Second District.
    Jan. 27, 2012.
    Rehearing Denied March 27, 2012.

      Monterey Campbell, Mark Miller, Sandra G. Sheets and Kristie Hatcher-Bolin of GrayRobinson, Lakeland, for Petitioner.
    Robert E. Puterbaugh and Stephen R. Senn of Peterson & Myers, P.A., Lake-land, for Respondents Paula McDonald Runo, individually and as parent and natural guardian of Jackson Paul Runo, Debra Kay McDonald, Rebekah McDonald Klein, and Michael D. Klein.
    Marie Tomassi, J. Eric Taylor, and Karen E. Lewis of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., St. Petersburg, for Respondents Wiley Johnson, Personal Representative and Co-Trustee of the Paul D. McDonald Revocable Trust, and James Randy Johnson, Co-Trustee of the Paul McDonald Revocable Trust.
    Benjamin H. Hill, III, and Marie A. Borland of Hill, Ward & Henderson, P.A., Tampa, for Amicus Curiae McDonald Construction Corporation.
   PER CURIAM.

Sandra Gill McDonald, the surviving spouse of the decedent Paul D. McDonald, petitions this court for a writ of certiorari to quash a discovery order of the probate court. That order sustained the objections of the personal representative and the McDonald family (the Respondents) to her notice of intent to serve subpoena and production of documents pursuant to Florida Rule of Civil Procedure 1.351 on the decedent’s company, McDonald Construction Corporation (MCC), a nonparty to the probate proceeding. To assist her in deciding whether to take the elective share, see § 732.201, Fla. Stat. (2010), the surviving spouse sought financial information from MCC that she asserted was relevant to determining whether the value of MCC’s stock had increased during the marriage due to the efforts of the decedent. See § 732.2155(6)(c). The probate court ruled that the MCC stock was not part of the probate estate, and therefore, the information requested was not relevant. It further ruled that the value of the MCC stock is excluded from the surviving spouse’s elective share calculation pursuant to section 732.2155(6). We grant cer-tiorari and quash the probate court’s order.

To obtain certiorari relief from an allegedly erroneous interlocutory order, a petitioner must establish that the order is: “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on post-judgment appeal.” Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995). This court considers the second and third prongs first because they are used to determine jurisdiction. Id. Although “[c]ertiorari is rarely available to review orders denying discovery because in most cases the harm can be corrected on appeal,” Giacalone v. Helen Ellis Mem’l Hosp. Found. Inc., 8 So.3d 1232, 1234 (Fla. 2d DCA 2009), this case presents one of those rare situations in which certiorari review is appropriate.

At the hearing on the Respondents’ objections to the surviving spouse’s discovery request, the Respondents presented no evidence to rebut a detailed affidavit from the surviving spouse’s expert witness regarding the need for the requested discovery. Discovery of financial information “is relevant to the decision of whether or not to even seek an elective share.” In re Estate of Sauey, 869 So.2d 664, 665 (Fla. 4th DCA 2004). And section 732.2135(1) provides time limits on when a spouse must take the elective share. Thus, the surviving spouse would suffer irreparable harm not remediable on appeal if she were not allowed to obtain information necessary to make a decision regarding whether to take the elective share.

The probate court’s order declaring that the value of the MCC stock is excluded from the surviving spouse’s elective share calculation pursuant to section 732.2155(6) is a departure from the essential requirements of law. Section 732.2155(6) provides as follows:

Sections 732.201-732.2155 do not affect any interest in property held, as of the decedent’s death, in a trust, whether revocable or irrevocable, if:
(a) The property was an asset of the trust at all times between October 1, 1999, and the date of the decedent’s death;
(b) The decedent was not married to the decedent’s surviving spouse when the property was transferred to the trust; and
(c) The property was a nonmarital asset as defined in s. 61.075 immediately prior to the decedent’s death.

The parties agree that only the applicability of subsection (6)(c) is at issue in this case. There are no cases interpreting subsection (6)(c). We conclude that the fact that section 732.2155(6)(c) cites to section 61.075 without a specific citation to the subsection defining nonmarital property indicates the legislature’s intent that the entire statute, which defines both marital and nonmarital property, is to be considered in determining whether the property in the revocable trust was nonmarital at the time of death. The definition of marital assets includes “[t]he enhancement in value and appreciation of nonmarital assets resulting either from the efforts of either party during the marriage or from the contribution to or expenditure thereon of marital funds or other forms of marital assets, or both.” § 61.075(6)(a)(l)(b), Fla. Stat. (2010). In other words, if the value of the MCC stock in the decedent’s revocable trust increased pursuant to the terms of section 61.075(6)(a)(l)(b), that increase would not be excluded from the elective share under section 732.2155(6)(c). Thus, to the extent the information sought by the surviving spouse is necessary to her determination whether the MCC stock value was enhanced during the marriage due to the efforts of the decedent, it is relevant.

Accordingly, we grant the surviving spouse’s petition for writ of certiorari and quash the probate court’s order sustaining the Respondents’ objections to her discovery request. Our holding does not affect MCC’s right to file objections to any subpoena it is served in conjunction with the surviving spouse’s discovery request. See Fla. R. Civ. P. 1.351.

Petition granted; order quashed.

WHATLEY, WALLACE, and CRENSHAW, JJ., Concur.

      . Rule 1.351(b) requires a party desiring production to serve notice on every other party of the intent to serve a subpoena, specifically identifying, among other facts, the person who is to produce the documents or things. Production will not occur if any party files an objection to the notice within ten days of service. The notice and proposed subpoena are not to be served on the person upon whom the subpoena is to be served until the objections are resolved pursuant to rule 1.351(d). Thus, MCC has not yet been served with the subpoena.


text:
    3L REAL ESTATE, LLC, Appellant, v. US BANK NATIONAL ASSOCIATION; Kelly Frank; unknown spouse of Kelly Frank if any; any and all unknown parties claiming by through, under and against the herein named individual defendant(s) who are now known to be dead or alive, whether said unknown parties may claim an interest as spouses, heirs, devisees, grantees or other claimants; Bank of America, N.A.; Boca Gardens Homeowners Association Inc.; John Doe and Jane Doe as Unknown Tenants in Possession, Appellees.
    No. 4D11-1988.
    District Court of Appeal of Florida, Fourth District.
    Feb. 1, 2012.

      Jonathan J. Alfonso of Wesoloski Carlson, P.A., Miami, for appellant.
    No appearance for appellees.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979).

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


author: TAYLOR, J.

text:
    Jean W. PHADAEL a/k/a Jean Phadael, Appellant, v. DEUTSCHE BANK TRUST COMPANY AMERICAS as Trustee for RALI 2007QS9, Appellee.
    No. 4D11-905.
    District Court of Appeal of Florida, Fourth District.
    Feb. 8, 2012.
    Rehearing Denied April 12, 2012.

      Garry W. Johnson and Bruce K. Herman of the 511 Law, P.A., Fort Lauder-dale, for appellant.
    D. Brian O’Dell, Christian W. Hancock, Ann T. Taylor and Jose D. Vega of Bradley Arant Boult Cummings LLP, Birmingham, AL, for appellee.
   TAYLOR, J.

Jean Phadael appeals a non-final order denying his rule 1.540(b) motion to vacate a final judgment of foreclosure. We conclude that because Phadael was defaulted and he failed to defend the action at any point before entry of the final judgment, his claim that Deutsche Bank lacked standing at the inception of the suit is not a ground for setting aside the judgment as “void” under rule 1.540(b)(4). We therefore affirm.

On July 29, 2009, Deutsche Bank filed a two-count mortgage foreclosure complaint against Jean Phadael. Count I sought to re-establish a promissory note, alleging that the original note was lost or destroyed, that Deutsche Bank “is the owner of said note,” and that Deutsche Bank was in possession of the note when the loss of possession occurred. Count II sought to foreclose a mortgage on Phadael’s real property, alleging that Phadael was in default under the note and mortgage. The copy of the mortgage attached to the complaint stated that the lender was Amnet Mortgage, Inc., and that the mortgagee was MERS.

Phadael did not file an answer or otherwise respond to the complaint, and a default was entered against him. Phadael never moved to set aside the default.

On or about the same day as the summary judgment hearing, Deutsche Bank filed in the circuit court the original note, the original mortgage, and an “Amended Affidavit of Indebtedness.” The original note contained an undated special endorsement in favor of Deutsche Bank. Additionally, the Amended Affidavit of Indebtedness stated that Deutsche Bank was “the designated holder of the mortgage and note,” and that Phadael defaulted under the terms of the note and mortgage.

Following the summary judgment hearing, the trial court entered a final judgment of foreclosure. Subsequently, Pha-dael, through counsel, filed a motion to vacate the final judgment of foreclosure, arguing primarily that the judgment should be vacated under Florida Rule of Civil Procedure 1.540(b)(4) because the judgment was “void ab initio” due to Deutsche Bank’s lack of standing on the date it filed the complaint. The trial court denied the motion to vacate, prompting this appeal. On appeal, Phadael mainly argues that Deutsche Bank lacked standing to foreclose, specifically at the inception of the lawsuit.

A trial court may relieve a party from a final judgment on the ground that “the judgment or decree is void.” Fla. R. Civ. P. 1.540(b)(4). An appellate court reviews an order on a rule 1.540(b) motion for relief from judgment under an abuse of discretion standard. See Freemon v. Deutsche Bank Trust Co. Ams., 46 So.3d 1202, 1204 (Fla. 4th DCA 2010).

Florida Rule of Civil Procedure 1.140(b) provides that every defense in law or fact to a claim for relief in a pleading shall be asserted in the responsive pleading, if one is required. However, the rule identifies seven defenses that a defendant may raise by motion before pleading. Fla. R. Civ. P. 1.140(b). “A motion making any of these defenses shall be made before pleading if a further pleading is permitted.” Id. Furthermore, “[a]ny ground not stated shall be deemed to be waived except any ground showing that the court lacks jurisdiction of the subject matter may be made at any time.” Id. Accordingly, defenses are generally waived if not raised by pre-answer motion or responsive pleading. Fla. R. Civ. P. 1.140(h)(1). Likewise, a default terminates the defending party’s right to further defend, except to contest the amount of unliquidated damages. Donohue v. Brightman, 939 So.2d 1162, 1164 (Fla. 4th DCA 2006). When a default is entered, the defaulting party admits all well-pled factual allegations of the complaint. Id.

We have previously explained that lack of standing is an affirmative defense that must be raised by the defendant and the failure to raise it generally results in waiver. See Glynn v. First Union Nat’l Bank, 912 So.2d 357, 358 (Fla. 4th DCA 2005) (holding that a homeowner waived any claim that the bank lacked standing to foreclose where the homeowner never filed a motion or an answer in the trial court); see also Schuster v. Blue Cross & Blue Shield of Fla., Inc., 843 So.2d 909, 912 (Fla. 4th DCA 2003); but cf. Maynard v. Fla. Bd. of Educ., 998 So.2d 1201, 1206 (Fla. 2d DCA 2009) (holding that while standing may not be raised for the first time on appeal, the defendant does not necessarily have to raise standing only by means of an affirmative defense; it was sufficient to raise it in a motion to set aside verdict because “the pertinent question is whether the issue was raised at the trial court, not how it was raised”).

Here, Phadael did not file an answer, he was defaulted, and he never defended this action at all before the final judgment of foreclosure. If the issue of standing cannot be raised for the first time on appeal from a final judgment, it follows that it cannot be raised for the first time in a motion to set aside a judgment under rule 1.540(b)(4). A rule 1.540(b) motion is not a substitute for a motion for rehearing or an appeal. See Beaulieu v. JPMorgan Chase Bank Nat’l Ass’n, 80 So.3d 365 (Fla. 4th DCA 2012). Even where a judgment is entered in favor of a plaintiff that lacks standing, the judgment is merely voidable, not void. See Jones-Bishop v. Estate of Sweeney, 27 So.3d 176, 177 (Fla. 5th DCA 2010). A judgment that is merely voidable cannot be set aside under rule 1.540(b)(4). See Miller v. Preefer, 1 So.3d 1278, 1282 (Fla. 4th DCA 2009). Because Phadael was defaulted and never defended the action at any point before the entry of the final judgment, the claim that Deutsche Bank lacked standing at the inception of the suit would, at most, render the judgment voidable, not void. Therefore, the judgment may not be .set aside as “void” under rule 1.540(b)(4). See Beaulieu, 80 So.3d at 365 (“Because appellant defaulted, she cannot contest, as she tries to do in her post-judgment motion, the allegations of the complaint that the appellee was the owner and holder of the note and mortgage”).

Affirmed.

DAMOORGIAN and GERBER, JJ„ concur.


author: PER CURIAM. SHEPHERD, J.,

text:
    The CITY OF MIAMI and Miami Sports and Exhibition Authority, Appellants, v. CHALKS AIRLINES, INC., Appellee.
    No. 3D11-1339.
    District Court of Appeal of Florida, Third District.
    Feb. 8, 2012.
    Rehearing Denied April 12, 2012.

      Julie O. Bru, City Attorney, and Kevin R. Jones and John A. Greco, Assistant City Attorneys, for appellants.
    Nolan Klein, Miami, for appellee.
    Before SHEPHERD, CORTINAS, and LAGOA, JJ.
   PER CURIAM.

Affirmed.

CORTINAS and LAGOA, JJ., concur.

SHEPHERD, J.,

dissenting.

I respectfully dissent. This is an appeal from a non-final order by a successor trial judge granting rehearing and vacating a predecessor judge’s “Order of Final Judgment,” which provided that the appellants, the City of Miami and the Miami Sports and Exhibition Authority (MSEA), were entitled to final judgment on Count II of their counterclaim and issuance of a writ of immediate possession of the leasehold estate from the appellee, Chalks Airlines, Inc. The successor trial judge entered the order on appeal on motion of Chalks Airlines, on the basis the predecessor judge “abused his discretion” by entering final judgment while Chalks Airlines was in the process of obtaining substitute counsel. Whatever may be the merits of the trial court’s decision, it is settled law in this state that when a predecessor judge enters final judgment, “a successor judge may not correct errors of law committed by his predecessor and hence he cannot review and reverse on the merits and on the same facts the final orders and decrees of his predecessor.” Better Constr., Inc. v. Camacho Enters., Inc., 311 So.2d 766, 767 (Fla. 3d DCA 1975) (quoting Groover v. Walker, 88 So.2d 312, 313 (Fla.1956); see also Jauregui v. Bobb’s Piano Sales & Serv., Inc., 922 So.2d 303, 305 (Fla. 3d DCA 2006); Batista v. Batista, 553 So.2d 1281, 1282 (Fla. 3d DCA 1989). The proper procedure for Chalks Airlines to seek relief from the final judgment was to seek appellate review. See Better Constr., Inc., 311 So.2d at 767 (“[W]here the judge rendering a final judgment is not available to hear a motion for new trial or for rehearing, a hearing and ruling thereon by another or successor judge is not appropriate, but rather the proper procedure is to seek an appellate review of the judgment.”). Thus, I would reverse the successor trial judge’s order granting rehearing and vacating the original final judgment.


text:
    Erick James ERICKSON, Petitioner, v. Kenneth S. TUCKER, Secretary, Florida Department of Corrections, Respondent.
    No. 1D11-5284.
    District Court of Appeal of Florida, First District.
    Feb. 14, 2012.
    Erick James Erickson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Daniel A. Johnson, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner’s motion to take leave of court to extend rendition will be treated by this court as a response to the show cause order of December 8, 2011. The petition for writ of certiorari is dismissed as untimely. See Powell v. Florida Department of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999).

LEWIS, ROBERTS, and RAY, JJ., concur.


text:
    Delvarice STINFIL, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D11-3332, 4D11-4914.
    District Court of Appeal of Florida, Fourth District.
    Feb. 15, 2012.
    Rehearing Denied April 16, 2012.
    Delvarice Stinfil, Arcadia, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

We sua sponte consolidate these two cases, affirm the appeal and deny the petition for writ of habeas corpus.

GROSS, TAYLOR and CIKLIN, JJ., concur.


author: LAGOA, J.

text:
    Mario MEJIA, Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. 3D11-2985.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 2012.
    Mark J. Feldman, Miami, for petitioner.
    Lara J. Edelstein, for respondent.
    Before CORTINAS, LAGOA, and EMAS, JJ.
   LAGOA, J.

Pursuant to Florida Rule of Appellate Procedure 9.040(c), we treat the motion for review filed in the instant case as a petition for writ of certiorari, grant the petition, and quash the order below. See Ramirez v. United Auto. Ins. Co., 67 So.3d 1174 (Fla. 3d DCA 2011) (finding that circuit court appellate division order denying appellate attorney’s fees was properly reviewed pursuant to first-tier certiorari).

Mario Mejia (“Mejia”) filed .suit against United Auto in the county court seeking payment of medical bills pursuant to the personal injury protection section of his auto insurance policy. Mejia voluntary dismissed his lawsuit against United Auto, without prejudice. United Auto subsequently obtained a cost judgment against Mejia in the county court, and Mejia appealed the cost judgment to the circuit court’s appellate division. United Auto sought appellate attorney’s fees in the circuit court, arguing that it was entitled to fees pursuant to section 768.79, Florida Statutes (2011), the offer of judgment statute. The circuit court affirmed the cost judgment, and in a separate order awarded United Auto appellate attorney’s fees. Mejia seeks review of the circuit court’s order awarding United Auto appellate attorney’s fees.

United Auto concedes, and we agree, that the order on review must be quashed. United Auto is not entitled to an award of appellate attorney’s fees pursuant to section 768.79, because Mejia’s voluntary dismissal of his case was without prejudice. See MX Invs., Inc. v. Crawford, 700 So.2d 640 (Fla.1997); Smith v. Loews Miami Beach Hotel Operating Co., 35 So.3d 101 (Fla. 3d DCA 2010). The circuit court’s award of appellate attorney’s fees to United Auto under these circumstances was a departure from the essential requirements of the law. See Ramirez, 67 So.3d at 1176; Guadagno v. United Auto. Ins. Co., — So.3d -, 2011 WL 4949820 (Fla. 3d DCA 2011).

Accordingly, we grant the petition for certiorari, and quash the circuit court’s order awarding United Auto appellate attorney’s fees.

Petition granted.


text:
    Jean Berton Saint FLEUR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2825.
    District Court of Appeal of Florida, Third District.
    Feb. 15, 2012.
    Rehearing Denied March 29, 2012.
    Jean Berton Saint Fleur, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before CORTIÑAS, LAGOA, and EMAS, JJ.
   PER CURIAM.

Affirmed. See Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).


text:
    LAUFEN, INC. and James Jackson, Appellant, v. Thomas ANDREW and Constantina Andrew, Appellee.
    No. 5D10-1888.
    District Court of Appeal of Florida, Fifth District.
    Feb. 17, 2012.

      Peter J. Sweeney, Jr., of Vocelle & Berg, LLP, Vero Beach, for Appellant.
    Allan P. Whitehead, of Frese, Hansen, Anderson, Anderson, Heuston & Whitehead, P.A., Melbourne, for Appellee.
   PER CURIAM.

Laufen, Inc. and James Jackson, defendants below, appeal a final judgment entered following a non-jury trial in favor of Thomas and Constantina Andrew. The Andrews had contracted with Laufen to repair hurricane damage and make other improvements to their oceanfront single family home in Brevard County, Florida. The complaint alleged, and the proof at trial established, that Laufen breached the contract by failing to complete construction; by failing to pay subcontractors for work done; and by causing (and covering up) extensive additional damage to the home. Contrary to Defendants’ argument, we find that the damage amount awarded on the breach of contract count ($1,165,-356.34 together with pre-judgment interest) was supported by competent, substantial evidence. These same (duplicative) damages were also awarded for counts alleging negligence and violations of the Florida Deceptive and Unfair Trade Practices Act,), section 501.201, et seq., Florida Statutes (“FDUTPA”). An additional $177,272.72 was awarded under a civil theft theory.

Although it makes no difference in the final judgment amount, we agree with Defendants that Andrews’ recovery on a negligence theory was barred by the economic loss rule given the facts of this case. See, e.g., Vesta Construction and Design, LLC v. Lotspeich & Assocs., Inc., 974 So.2d 1176 (Fla. 5th DCA 2008) (explaining that the economic loss rule generally prohibits parties in contractual privity from recovering in tort for damages caused when performing the contract). We also agree that the facts adduced at trial do not support an award of damages for civil theft. Seabridge, Inc. v. Superior Kitchens, Inc., 672 So.2d 848 (Fla. 4th DCA 1996). However, we find no trial court error with respect to the damages awards on the breach of contract or FDUPTA claims. We agree with Defendants that because the same measure of damages applied to both theories of recovery, the final judgment must make clear that the Andrews are only entitled to a single recovery of the damage amount. Montage Group, Ltd. v. Athle-Tech Computer Sys., Inc., 889 So.2d 180, 199 (Fla. 2d DCA 2004) (“A double recovery based on the same elements of damages is prohibited.”).

Accordingly, we reverse as to the negligence and civil theft claims, affirm as to the breach of contract and FDUPTA claims, and remand for entry of an amended final judgment consistent with this opinion.

AFFIRMED IN PART; REVERSED IN PART; REMANDED WITH DIRECTIONS.

SAWAYA, PALMER and LAWSON, JJ., concur.

      . We noted in our independent review of the record that the amended complaint in this case only sought relief from Laufen as to both the breach of contract and FDUPTA counts, but that the final judgment awards damages against both Laufen and Jackson, individually, on the FDUPTA count. Because this issue was never raised in the trial court, or argued as error on appeal, we do not address it.