author: HAWKES, C.J.

text:
    Honorable Jim FULLER, as the Clerk of Courts for the Fourth Judicial Circuit in and for Duval County, Florida, Petitioner, v. Charles J. TRUNCALE, on his own behalf and on behalf of all those similarly situated, and The City of Jacksonville, a political subdivision of the State of Florida, Respondents.
    No. 1D10-3240.
    District Court of Appeal of Florida, First District.
    Nov. 2, 2010.
    Rehearing Denied Dec. 15, 2010.

      David J. D’Agata, Assistant General, Counsel, Office of General Counsel, Jacksonville, for Petitioner.
    George G. Mahfood, of Broad and Cas-sel, Miami; Carl H. Lida, Plantation; Beverly A. Pohl, P.A., of Broad and Cassel, Fort Lauderdale; and A. Russell Smith, Jacksonville, for Respondents.
   HAWKES, C.J.

Petitioner Jim Fuller — Clerk of Courts for the Fourth Judicial Circuit — has petitioned this Court to quash a trial court order denying his motion to dismiss a class action. The class action was brought against Fuller in his official capacity by cited drivers who claimed he acted improperly by recommending to the DMV that their licenses be suspended without first scheduling a court hearing. In the motion to dismiss, Fuller claimed judicial immunity against the class action, arguing he was simply following protocol established in several administrative orders. The trial court rejected this defense and allowed the class action to proceed. We find a departure from the essential requirements of the law, and irreparable harm, if the litigation proceeds further. We grant the writ and quash the order.

Standard of Review

To receive certiorari jurisdiction over a non-final, non-appealable order, a petitioner must show two prerequisites. First, that the order caused irreparable harm which cannot be remedied on appeal following final judgment; and second, that the order departed from the essential requirements of the law. To demonstrate irreparable harm, the petitioner must show either that the injury cannot be redressed in a court of law or that there is no adequate legal remedy. To demonstrate a departure from the essential requirements of the law, the petitioner must show “the trial court made an error so serious that it amounts to a miscarriage of justice.” Irreparable harm must be considered first.

Assuming Fuller enjoys judicial immunity against this class action, he will be irreparably harmed if forced to participate in the underlying proceeding

According to Johnson v. Harris, 645 So.2d 96, 98 (Fla. 5th DCA 1994), judges and officials “enjoy absolute immunity for acts performed in the course of their judicial capacities unless they clearly act without jurisdiction.” The doctrine extends as well to quasi-judicial officers who perform judicial functions. The reason for extending immunity to quasi-judicial officers is because “a strict guarantee of immunity is necessary to preserve the[ir] effectiveness and impartiality.”

Regardless of whether the officer is judicial or quasi-judicial, it is well settled that judicial immunity is “immunity from suit, not just assessment of damages.” Because judicial immunity is intended to prevent a judicial party from becoming involved in a lawsuit, it would be compromised, and irreparable harm sustained, simply by forcing a judicial party to become involved in litigation, irrespective of its outcome. The harm would be irreparable because if the parties wait to address the issue of judicial immunity until appeal, any protection the immunity affords against suit would be sacrificed.

Given the foregoing, Fuller will be irreparably harmed if this case is allowed to proceed to trial without first determining his judicial immunity defense. Assuming Fuller is entitled to judicial immunity, there would be no way on appeal to redress the harm caused by entangling him in litigation. Therefore, the first prong of certiorari review — irreparable harm — exists here.

The trial court departed from the essential requirements of the law by finding that Fuller did not have judicial immunity against the claims raised in the class action

A judge or quasi-judicial official may claim judicial immunity if he can demonstrate two prerequisites: (1) the ruling in question was a “judicial act;” and (2) there was jurisdiction to issue the ruling. When these two prongs can be shown, the judge or quasi-judicial official may claim judicial immunity, even if the ruling in question was unwise, reckless, or malicious. Both of these prongs are met here.

First, Fuller’s act in question was a “judicial act.” A judge’s act may be viewed as “judicial” unless the conduct in question was purely ministerial. Ministerial acts “involve[] obedience to instructions or laws instead of discretion, judgment, or skill.” Here, the “act” in question was Fuller’s decision to recommend that the DMV suspend the licenses of certain cited drivers without first scheduling a court hearing.

We find that any analysis of judicial immunity must focus upon the outcome of a particular action, instead of the act itself. See Mink v. Arizona, 2010 WL 2690633 (D.Ariz. July 6, 2010). In Mink, which we view as persuasive authority, the clerk of a municipal court recommended license suspension when a driver failed to pay a fine. The driver sued the clerk for intentional infliction of emotional distress and negligence, arguing the clerk had made the recommendation without noting that the fine had been paid in full. The court found that because the ultimate decision to suspend the driver’s license was judicial, the “constituent parts of that act” — including the clerk’s recommendation — were also entitled to immunity. Mink stated:

[T]he actual judicial decision to suspend Plaintiffs license is not the only action subject to judicial immunity. ‘The activities that are part and parcel of the decision process [also] justify absolute immunity.’

Similarly, here, although Fuller lacked the power to suspend the licenses of those in the class, his recommendation was one step in that process. Without his recommendation, license suspension — which is obviously a discretionary judicial act— would not have occurred. Therefore, Fuller was engaging in a judicial act, not a ministerial one, when he recommended license suspension without scheduling a hearing.

Second, Fuller had jurisdiction to recommend license suspension. In the Fourth Circuit, Administrative Order 2001-7 gives drivers ninety days to respond to a traffic citation. It then states:

If a defendant has not rendered payment in full by the end of the said ninety (90) calendar days, the Clerk of the Court shall commence administrative action for suspension of the defendant’s driver’s license ...
Any defendant who fails to schedule a court date within ninety (90) days of receipt of a payable citation[] shall be considered to have waived any rights to a court hearing.

This language gave Fuller the authority to recommend license suspension once the ninety-day period expired, even if no court hearing had been held.

Since Fuller has shown he was engaged in a “judicial act” and had jurisdiction to do so, he has satisfied both prerequisites for judicial immunity and his actions were covered by the doctrine. Therefore, the trial court departed from the essential requirements of the law in denying his motion to dismiss the class action on judicial immunity grounds.

The doctrine of judicial immunity can be asserted in cases, such as this, where the relief requested is purely equitable

In its response, the class’s main argument is that judicial immunity was unavailable here as the complaint requested only equitable relief. Traditionally, cases dealing with judicial immunity in Florida address the doctrine only in the context of monetary damages. However, simply because a complaint requests equitable relief does not remove the action from judicial immunity’s reach. No Florida case limits the doctrine’s application to cases involving monetary damages, nor does any Florida case hold the doctrine inapplicable to claims for equitable relief.

What is clear from caselaw, as previously mentioned, is that judicial immunity means “immunity from suit, not just assessment of damages.” Accordingly, if a judicial or quasi-judicial officer’s actions qualify for judicial immunity, no suit — whether for monetary damages or equitable relief — can be brought.

The class cites Pulliam v. Allen, 466 U.S. 522, 104 S.Ct. 1970, 80 L.Ed.2d 565 (1984), for the proposition that judicial immunity does not apply to actions seeking equitable relief. Pulliam held that “judicial immunity is not a bar to prospective injunctive relief against a judicial officer acting in her judicial capacity.” However, in 1996, Congress limited Pulliam’s holding by amending the Federal Courts Improvement Act to state injunctive relief against judges for judicial acts can be granted only in narrow circumstances. Moreover, Pulliam is only persuasive authority, not binding precedent. Because the doctrine of judicial immunity arises from common law, and is not a right guaranteed by the Federal Constitution, this Court is not bound by any United States Supreme Court case regarding it.

Accordingly, we reject the class’s argument that judicial immunity is available only when a party requests monetary damages. The doctrine applies equally to requests for equitable relief. Although the class has raised additional arguments to show judicial immunity should not apply, we find them unpersuasive.

Conclusion

We find Fuller was entitled to assert judicial immunity as an affirmative defense against the class action. Because involving Fuller in further litigation will negate this immunity, thereby causing irreparable harm, and because the trial court departed from the essential requirements of the law in finding the defense inapplicable, we GRANT the petition and QUASH the order denying Fuller’s motion to dismiss on judicial immunity grounds.

ROBERTS and ROWE, JJ., concur.

      . See Dep't of Children & Families v. L.D., 840 So.2d 432, 435 (Fla. 5th DCA 2003); Smithers v. Smithers, 743 So.2d 605, 606 (Fla. 4th DCA 1999).

      . See Egan v. City of Miami, 130 Fla. 465, 178 So. 132 (1938); Kellar v. Moore, 820 So.2d 1015, 1016 (Fla. 1st DCA 2002).

      . See State v. Smith, 951 So.2d 954, 958 (Fla. 1st DCA 2007).

      . See Taylor v. TGI Friday's, Inc., 16 So.3d 312, 313 (Fla. 1st DCA 2009).

      . See also Dep’t of Highway Safety & Motor Vehicles v. Marks, 898 So.2d 1063, 1065 (Fla. 5th DCA 2005).

      . See Office of State Attorney, Fourth Judicial Cir. of Fla. v. Parrotino, 628 So.2d 1097, 1098 (Fla.1993).

      . Id.

      . Kalmanson v. Lockett, 848 So.2d 374, 378 (Fla. 5th DCA 2003); see also Mireles v. Waco, 502 U.S. 9, 11, 112 S.Ct. 286, 116 L.Ed.2d 9 (1991).

      . Parallels can be seen in the protection afforded by sovereign immunity. Compare Tucker v. Resha, 648 So.2d 1187, 1189 (Fla.1994) (stating that if sovereign immunity applies, "the public official cannot be ‘re-immunized’ if erroneously required to stand trial or face the other burdens of litigation’’); and O’Brien v. Exposito, 824 So.2d 954, 955 (Fla. 3d DCA 2002) (stating ”[b]ecause qualified immunity protects an individual from having to defend a suit, O'Brien will effectively lose his entitlement to qualified immunity if the case proceeds to trial, thereby causing irreparable injury to O’Brien”).

      . See Johnson, 645 So.2d at 98; see also Limehouse v. Whittemore, 773 So.2d 86, 87 (Fla. 2d DCA 2000).

      . See Cunningham v. Fla. Dept’ of Children & Families, 782 So.2d 913, 918 (Fla. 1st DCA 2001).

      . Black’s Law Dictionary, 1011 (7th ed. 1999).

      . See Mink, 2010 WL 26906233, at *2.

      . Id. at *2, quoting In re Castillo, 297 F.3d 940, 952 (9th Cir.2002).

      . The original complaint from the class contained three causes of action, each requesting a different form of relief. The first two causes of action requested, respectively, declaratory and injunctive relief. These forms of relief are obviously equitable. The third cause of action requested restitution; because this monetary request was simply to recoup the funds that the drivers spent to prevent license suspension or have their licenses reinstated, it may be considered equitable as well. See Ocean Communications v. Bubeck, 956 So.2d 1222, 1225 (Fla. 4th DCA 2007) (finding restitution is an equitable remedy when it is intended to place the injured party in the same position he would have occupied had the harm not occurred).

      . See Limehouse, 773 So.2d at 87 (stating judicial immunity applies in a malpractice suit because it "protects judges from liability for damages”); Berry v. State, 400 So.2d 80, 82-83 (stating judicial immunity “insures that judges are immune from liability for damages”).

      . Kalmanson, 848 So.2d at 378.

      . Id. at 541-42, 104 S.Ct. 1970.

      . See Tesmer v. Granholm, 114 F.Supp.2d 603, 618 (E.D.Mich.2000) (finding the 1996 amendment narrowed the circumstances in which injunctive relief could be obtained against judges, although it had no effect on requests for declaratory relief).

      . See Berry, 400 So.2d at 82-83.


source: Caselaw Access Project

author: MARSTILLER, J.

license: Public Domain

text:
    CITY OF PEMBROKE PINES and Gallagher Bassett Services, Inc., Appellants, v. Leslie ORTAGUS, Jr., Appellee.
    No. 1D09-6168.
    District Court of Appeal of Florida, First District.
    Nov. 2, 2010.
    Rehearing Denied Dec. 16, 2010.
    Edward D. Schuster and Gregory G. Coican of Massey, Coican, Schuster, Ried-hammer & King, LLC, Fort Lauderdale, for Appellants.
    Kelli Biferie Hastings of the Law Office of Kelli Biferie Hastings, PLLC, Maitland, Barbara A. Eagan of Eagan Appellate Law, PLLC, Orlando, and Robert S. Winess of Robert S. Winess, P.A., West Palm Beach, for Appellee.
   MARSTILLER, J.

The claimant in this worker’s compensation appeal is a firefighter for the City of Pembroke Pines (“City”). On May 11, 2005, during his annual physical examination, he was diagnosed with hypertension. His physician assigned him to light duty and prescribed medication. After several days off work and two days of light duty, the claimant returned to normal duty and was deemed to have reached maximum medical improvement (“MMI”) on May 17, 2005. He has needed continued medical treatment since then, including medication to control high blood pressure and cholesterol, semi-annual physical examinations, and annual stress tests. He filed a petition for benefits in January 2009 when the employer/carrier (“E/C”), after paying medical benefits for three years, terminated benefits claiming that under section 112.18, Florida Statutes, he became ineligible for workers’ compensation benefits once he returned to normal duty. The Judge of Compensation Claims (“JCC”) ruled that the E/C must pay for treatment of the claimant’s hypertension even though he is no longer disabled by the condition and can fully perform his duties as a firefighter. We agree and affirm the JCC’s order.

The Workers’ Compensation Act covers occupational diseases, provided that the “disease has resulted from the nature of the employment in which the employee was engaged ..., was actually contracted while so engaged, and the nature of the employment was the major contributing cause of the disease.” § 440.151(1)(a), Fla. Stat. (2004). The occupational disease must have caused a disability to be “treated as the happening of an injury by accident,” and thus, compensable. Id. See City of Port Orange v. Sedacca, 953 So.2d 727, 729 (Fla. 1st DCA 2007). Section 112.18, Florida Statutes, creates a presumption of compensability for certain conditions suffered by firefighters and law enforcement and correctional officers.

Any condition or impairment of health of any ... firefighter or any law enforcement officer or correctional officer ... caused by ... tuberculosis, heart disease, or hypertension resulting in total or partial disability ... shall be presumed to have been accidental and to have been suffered in the line of duty unless the contrary be shown by competent evidence.

§ 112.18(1), Fla. Stat. (2004). “[A] claimant’s burden of proving major contributing cause ... is fully met where the presumption ... is applied.... ” Fuller v. Okaloosa Corr. Inst., 22 So.3d 803, 806 (Fla. 1st DCA 2009). The E/C here accepted com-pensability of the claimant’s hypertension and paid for his medical treatment for more than three years. But now they assert the claimant was only entitled to the presumption in section 112.18, and thus medical benefits, during the week-long period his hypertension resulted in “total or partial disability.” In other words, now that the claimant’s job-related hypertension is successfully controlled by medication such that he is back to normal duty, the E/C need no longer pay for ongoing treatment of the condition.

To be sure, under section 112.18 disability is necessary to establish compensability of any condition or impairment of health “caused by ... hypertension.” See Sedacca at 729. But once compensability is established, nothing in section 440.151, or elsewhere in chapter 440, conditions the receipt of medical benefits on continued disability, or limits payment of medical benefits to only the period of disability. See City of Miami v. Thomas, 657 So.2d 927, 928 (Fla. 1st DCA 1995) (rejecting assertion by employer/carrier that disability giving rise to section 112.18 presumption must be permanent). Indeed, the occupational disease is treated as if it were “an injury by accident.” § 440.151(l)(a), Fla. Stat. (2004). As the JCC in this case correctly noted, section 440.13(2)(a), Florida Statutes (2004), requires employers to furnish medically necessary care for a compensable condition “for such period as the nature of the injury or the process of recovery may require.... ” The claimant here still suffers from a compensable occupational disease — hypertension—and he proved the condition requires continued medical treatment in the form of medication and routine periodic evaluation. The E/C therefore must pay for the claimant’s ongoing treatment for hypertension as long as the condition remains the major contributing cause of his need for medical care. See Engler v. Am. Friends of Hebrew Univ., 18 So.3d 613, 614 (Fla. 1st DCA 2009) (concluding once compensability of injury is established, carrier can no longer contest occupational cause, but can contest specific treatment based on its lack of connection to compensable injury).

AFFIRMED.

WEBSTER and LEWIS, JJ., concur.


author: PER CURIAM.

text:
    Melvin PEREZ, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D10-1200.
    District Court of Appeal of Florida, First District.
    Nov. 10, 2010.
    Rehearing Denied Dec. 16, 2010.
    Melvin Perez, pro se, Petitioner.
    Bill McCollum, Attorney General, and Joe Belitzky, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The circuit court dismissed petitioner’s complaint for declaratory judgment without prejudice. Accordingly, this petition for writ of certiorari is dismissed because petitioner will have an adequate remedy on final appeal. See South Broward Hosp. Dist. v. Dupont, 683 So.2d 1135 (Fla. 4th DCA 1996).

DISMISSED.

WEBSTER, LEWIS, and MARSTILLER, JJ., concur.


text:
    Howard Christian SULLIVAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-4332.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2010.
    Rehearing Denied Dec. 15, 2010.

      Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Anne C. Conley, Assistant Attorney Generals, Tallahassee, for Appellee.
   HAWKES, C.J.

Howard Sullivan appeals his convictions and sentences for second-degree murder and robbery with a deadly weapon. We affirm the robbery conviction without further discussion, and write only to address Sullivan’s argument that the trial court committed fundamental error when instructing the jury on second-degree murder. Sullivan claims the trial court erred because, when instructing the jury on manslaughter by act, a lesser included offense of second degree-murder, it informed the jury that intent to kill was a required element. Defendant did not object to this instruction at trial. We find Sullivan’s argument persuasive and, there-foi-e, reverse his second-degree murder conviction and sentence.

Pursuant to State v. Montgomery, 39 So.3d 252, 257 (Fla.2010), the relevant intent in the charge of manslaughter by act “is the intent to commit an act which caused death, [not] that the defendant intended to kill the victim.” Montgomery states any instruction that includes intent to kill as an element of manslaughter by act is fundamental error. Id. at 258. A narrow exception exists when the trial court gives the erroneous instruction on manslaughter by act in combination with the instruction on manslaughter by culpable negligence. See Joyner v. State, 41 So.3d 306, 306-07 (Fla. 1st DCA 2010). Fundamental error does not occur in such circumstances because it is possible the jury will base its decision only upon the elements of manslaughter by culpable negligence, which do not require a finding of intent to kill. Id. at 306; see also Riesel v. State, 48 So.3d 885, 886-87 (Fla. 1st DCA 2010); Jackson v. State, 49 So.3d 271, 271-72 (Fla. 1st DCA 2010); Salonko v. State, 42 So.3d 801, 803 (Fla. 1st DCA 2010).

Here, the trial court instructed the jury that manslaughter by act required an intent to kill, and gave no instruction on manslaughter by culpable negligence. Accordingly, under Montgomery, the jury instruction was fundamental error. Therefore, we reverse Sullivan’s conviction for second-degree murder and remand for a new trial on that charge.

AFFIRMED in part; REVERSED in part and REMANDED.

ROBERTS and ROWE, JJ., concur.


author: ROBERTS, J.

text:
    Syna LIM, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-5780.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2010.
    Rehearing Denied Dec. 16, 2010.

      Nancy A. Daniels, Public Defender, and David A. Davis, Assistant Public Defender, Tallahassee, for Appellant.
    Bill McCollum, Attorney General, and Charmaine M. Millsaps, Assistant Attorney General, Tallahassee, for Appellee.
   ROBERTS, J.

The appellant, Syna Lim, was charged and convicted of aggravated child abuse and first-degree felony murder in the death of two-year-old Amara Ou, who died of blunt force trauma to the head. The appellant raises two issues on appeal, only one of which merits discussion. She argues that her conviction for aggravated child abuse must be set aside because the merger doctrine precludes the use of aggravated child abuse as the underlying felony in a felony murder charge if only a single act of abuse led to the child’s death. We disagree and affirm.

The felony murder statute specifically provides that aggravated child abuse can serve as the underlying felony in a felony murder charge. See § 782.04(l)(a)2.h., Fla. Stat. (2006). This is true regardless of the number of acts of abuse that led to the child’s death. See Lewis v. State, 34 So.3d 183, 185-87 (Fla. 1st DCA 2010). Thus, the merger doctrine neither applies nor precludes the use of aggravated child abuse as the underlying felony in a felony murder charge so long as one or more acts of abuse led to the child’s death. See id. But see Sturdivant v. State, 2010 WL 3464410 (Fla. 1st DCA Sept.7, 2010), rev. granted, SC10-1791 (Fla. Oct. 15, 2010).

Even if aggravated child abuse can only serve as the underlying felony in a felony murder charge if more than one act of abuse led to the child’s death, we would still affirm. The cause of death in this case was blunt force trauma to the head. Although the exact form of abuse was unknown, the trauma was caused by multiple injuries to Amara’s head. Amara also suffered multiple injuries to other parts of her body. Thus, it is clear that more than one act of abuse led to Amara’s death. See Lewis, 34 So.3d at 187 (finding that more than a single act of abuse led to the child’s death based on her injuries and the manner of her death — drowning); Rosa v. State, 2010 WL 2430985, *1 (Fla. 2d DCA June 18, 2010) (finding that more than a single act of abuse led to the child’s death where the child was strangled and had multiple injuries on other parts of his body); Dorsey v. State, 942 So.2d 983, 985-86 (Fla. 5th DCA 2006) (finding that more than one act of abuse led to the child’s death where the child was shaken to death).

AFFIRMED.

HAWKES, C.J., and ROWE, J., concur.


text:
    Robert J. WATERS and Suzanne J. Waters, Appellants, v. Christopher D. BEECHLER, Suzanne M. Beechler and Beechler-Waters, Inc., a Florida corporation, Appellees.
    No. 1D10-0572.
    District Court of Appeal of Florida, First District.
    Nov. 17, 2010.
    Rehearing Denied Dec. 22, 2010.
    Leonard E. Ireland, Jr. of Clayton-Johnston, P.A., Gainesville, for Appellants.
    Kris B. Robinson of Robinson, Kennon & Kendron, P.A., Lake City, for Appellees.
   PER CURIAM.

Robert J. Waters and Suzanne J. Waters appeal an order granting a new trial following a jury trial in which the jury returned a verdict finding that Christopher Beechler, Suzanne M. Beechler, and Beechler-Waters, Inc., appellees, had breached a stock purchase agreement entered into among the parties in 2004; that the Waters had not breached a subsequent stock purchase agreement entered into among the parties in 2006; and that the Waters had breached their fiduciary duty as directors of Beechler-Waters, Inc. The jury awarded damages to Waters in the amount of $751,099 and to the Beechlers in the amount of $38,235.46. As we read the order under review, in essence, the trial court determined that the jury’s verdict was contrary to the manifest weight of the evidence. This court reviews the trial court’s order using an abuse of discretion standard of review. Brown v. Estate of Stuckey, 749 So.2d 490 (Fla.1999). In Brown, the Supreme Court explained the trial court’s discretionary authority to grant a new trial in this circumstance:

The trial judge’s discretionary power to grant a new trial on the grounds that the verdict is contrary to the manifest weight of the evidence is the only check against a jury that has reached an unjust decision on the facts. This discretionary power emanates from the common law principle that it is the duty of the trial judge to prevent what he or she considers to be a miscarriage of justice. The role of the trial judge is not to substitute his or her own verdict for that of the jury, but to avoid what, in the judge’s trained and experienced judgment, is an unjust verdict.

Brown, 749 So.2d at 495 (citations omitted). Brown also describes our standard of review, as follows:

When reviewing the order granting a new trial, an appellate court must recognize the broad discretionary authority of the trial judge and apply the reasonableness test to determine whether the trial judge committed an abuse of discretion. If an appellate court determines that reasonable persons could differ as to the propriety of the action taken by the trial court, there can be no finding of an abuse of discretion. The fact that there may be substantial, competent evidence in the record to support the jury verdict does not necessarily demonstrate that the trial judge abused his or her discretion.

Brown, 749 So.2d at 497-98. Under the facts here, we find no abuse of discretion in granting the motion for new trial.

AFFIRMED.

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


author: SALTER, J.

text:
    The STATE of Florida, Appellant, v. Rigoberto FERNANDEZ, Appellee.
    No. 3D10-905.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2010.
    Rehearing Denied Jan. 11, 2011.

      Bill McCollum, Attorney General, and Lunar Clame Alvey, Assistant Attorney General, for appellant.
    Emilio de la Cal, Miami, for appellee.
    Before SUAREZ, ROTHENBERG, and SALTER, JJ.
   SALTER, J.

The State of Florida appeals an order suppressing evidence obtained during the execution of a duly-issued search warrant. Based upon an evidentiary hearing and findings that (1) the law enforcement officers executing the warrant violated Florida’s “knock-and-announce” statute, section 933.09, Florida Statutes (2009), and (2) no exigent circumstances existed to justify the violation of that statute, the trial court granted the motion to suppress.

The trial court initially denied the motion, concluding that this case was on “all-fours” with Hudson v. Michigan, 547 U.S. 586, 126 S.Ct. 2159, 165 L.Ed.2d 56 (2006). Upon rehearing, however, the defense persuaded the trial court that it was obligated to follow Cable v. State, 18 So.3d 37 (Fla. 2d DCA), review granted, 22 So.3d 539 (Fla.2009). In Cable, our sister district court of appeal concluded that the violation of Florida’s knock-and-announce statute is an independent basis for excluding evidence — a basis that was not displaced or abrogated by Hudson. Cable certified to the Florida Supreme Court a question of great public importance:

IN VIEW OF THE ABROGATION OF THE EXCLUSIONARY RULE FOR FOURTH AMENDMENT KNOCK-AND-ANNOUNCE VIOLATIONS, SHOULD THE JUDICIAL REMEDY OF EXCLUSION OF EVIDENCE BE APPLIED FOR VIOLATIONS OF FLORIDA’S STATUTORY KNOCK-AND-ANNOUNCE PROVISIONS?

Our analysis begins with Article I, section 12, of the Florida Constitution, directing us to analyze rights and remedies relating to searches, seizures, and warrants “in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.” Evidence otherwise admissible must be suppressed if and only if it is “inadmissible under decisions of the United States Supreme Court construing the 4th Amendment to the United States Constitution.”

Hudson observed that the exclusionary rule previously applied to knock-and-announce violations “was also a command of the Fourth Amendment,” citing Wilson v. Arkansas, 514 U.S. 927, 115 S.Ct. 1914, 131 L.Ed.2d 976 (1995). Applying Article I, section 12 of the Florida Constitution to the rules of law set forth in Hudson and Wilson, we have previously concluded that the exclusionary rule does not apply to a knock-and-announce violation. State v. Brown, 36 So.3d 770, 775 (Fla. 3d DCA 2010).

We decline to apply the reasoning in Cable to this case. Cable relies upon a 1964 Florida Supreme Court case, Benefield v. State, 160 So.2d 706 (Fla.1964), followed in a 1968 decision of the Second District and a 1973 decision of this Court. Benefield involved evidence obtained from a home without a search or arrest warrant. The suspected crime in Benefield was an attempt to commit grand larceny (by offering to help a bowling alley secure a liquor license for $5000 in small bills). The Supreme Court found that “the officers did not make the slightest effort to comply with [the knock-and-announce arrest statute, section 901.19(1) ].” Id. at 708.

In this case, in contrast, the officers duly obtained a search warrant. The information supporting issuance of the warrant included details regarding the sale of large quantities of cocaine from the subject residence. The officers preparing for the search thus assembled a team of 11 S.W.A.T. members and additional narcotics officers. The officers executing the warrant had to confront and overcome a locked wrought-iron gate at the end of a driveway twenty to thirty feet away from another wrought-iron gate in front of the door to the residence. There was also testimony that an officer continuously yelled “search warrant” as the two exteri- or gates were knocked down to gain entry. The notion that the S.W.A.T. team should have knocked on the front door after overcoming the successive wrought-iron gates, waited a few more moments, and then asked permission to enter, seems impractical. Section 933.09 refers to “due notice of the officer’s authority and purpose,” and the record in this case (but not in Bene-field) contains evidence of at least some efforts to convey that authority and purpose.

Benefield has also been overtaken by important developments in federal and Florida constitutional law. Hudson and Wilson have determined that knock-and-announce requirements and violations have their roots in the Fourth Amendment to the U.S. Constitution. The Florida Constitution has directed that we apply U.S. Supreme Court interpretations to questions of admissibility under the Fourth Amendment, and the Florida Supreme Court has consistently done so. See State v. Betz, 815 So.2d 627 (Fla.2002); Bernie v. State, 524 So.2d 988 (Fla.1988). Our Supreme Court also has declined to apply a judge-made exclusionary rule as a remedy for the violation of a statutory search provision when the statute itself “does not expressly provide for exclusion of evidence as a remedy for a violation of the statute.” Jenkins v. State, 978 So.2d 116, 128 (Fla.2008) (finding the exclusionary rule is not a remedy for violation of a “strip search” statute, section 901.211, Florida Statutes (2002)).

Recognizing, however, that the Florida Supreme Court has Cable before it and ripe for decision, we respectfully certify conflict with Cable v. State, 18 So.3d 37 (Fla. 2d DCA), review granted, 22 So.3d 539 (Fla.2009).

Reversed and remanded with directions to vacate the suppression order and to enter an order denying the motion.

      . The search in Hudson also was conducted pursuant to a duly-issued warrant. The Supreme Court concluded that the common law knock-and-announce violation in that case was, without more, insufficient to support the "massive remedy of suppressing evidence of guilt.” 547 U.S. at 599, 126 S.Ct. 2159.

      . This decision was unavailable to the trial court in the case at hand, however, as the suppression order below was entered March 22, 2010, and our decision in Brown was issued May 12, 2010. In addition, the entry in Brown was a warrantless "hot pursuit” arrest implicating a similar but separate knock-and-announce provision, section 901.19(1), Florida Statutes (2007).

      . The distinction between knock-and-announce violations where no warrant has been obtained and those where a warrant has been obtained is important. In the latter case, as here, the "detached scrutiny of a neutral magistrate” has authorized the entry. State v. Campbell, 948 So.2d 725, 726 (Fla.2007) (concurring opinion of Justice Pariente, quoting United States v. Leon, 468 U.S. 897, 913— 14, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984)).


author: CORTINAS, J.

text:
    ST. TROPEZ II, LLC (St. Tropez on the Bay, Condominium) and Wachovia Bank, N.A., Appellants, v. Michael ADLEROV and Adele Adlerov, Jorge E. Arbelaez, Israel Bachar, Alexander Braginsky, Igor Chausovskiy, Daniel Diaz, Yakov Eydelman, Israel Flor and/or Hena Flor, Victoria Gorelik, Elias Americo Kluger, Lev Marissov, Aleksander Polyakov, Amnon and Hanna Rafailov, Yevgeniy Shenderov, Ida Umanskaya and Yuri Zilber, Appellees.
    No. 3D10-598.
    District Court of Appeal of Florida, Third District.
    Nov. 17, 2010.
    Rehearing and Rehearing En Banc Denied Jan. 5, 2011.
    Robert P. Frankel and Nolan K. Klein, Miami, for appellants.
    Crabtree & Associates and John G. Crabtree and George R. Baise, Key Biscayne; Robert H. Cooper, Aventura, for appellees.
    Before SHEPHERD, CORTINAS, and ROTHENBERG, JJ.
   CORTINAS, J.

This is an appeal from a non-final order returning to the appellees specified sums of their deposit in excess of fifteen percent of the purchase price. We have jurisdiction under Florida Rule of Appellate Procedure 9.130(a)(3)(C)(ii). St. Tropez, LLC (the “Developer”) entered into fifteen separate contracts on varying dates for the purchase and sale of fifteen different pre-construction condominium units with the appellees (the “Purchasers”). When the Developer allegedly failed to complete construction of the condominium in accordance with the contracts, the Purchasers filed a single lawsuit against the Developer, seeking damages and a return of the deposits paid. While the lawsuit was pending, and before the Developer had the opportunity to file an answer and affirmative defenses, the Purchasers filed a motion to return deposit payments in excess of 15% of the purchase price (the “Deposit Motion”). The trial court granted the Deposit Motion and ordered the Developer to refund specified sums that were in excess of 15% of the purchase price to each of the Purchasers. Because there remains a genuine issue of material fact, and we find the Purchasers were procedurally prohibited from obtaining a joint judgment, we reverse and remand for further proceedings.

Although the Deposit Motion was not captioned as such, it essentially operated as a motion for partial summary judgment on Count XIV of the complaint, which sought declaratory relief on behalf of the fifteen Purchasers and “demandfed] judgment for damages in the amount of [the Purchasers’] deposits in excess of 15% of the purchase price.” See TRG-Brickell Point NE, Ltd. v. Wajsblat, 34 So.3d 53 (Fla. 3d DCA 2010). However, we note the contract language in this case provides additional damages to Seller not found in the contract in TRG-Brickell. The agreement signed by each purchaser in this case reads as follows:

If Purchaser defaults after fifteen percent (15%) of the Purchase Price (exclusive of interest) has been paid, Seller will refund to the Purchaser any amount which remains from the payments Purchaser actually made, after subtracting fifteen percent (15%) of the Purchase Price, exclusive of interest, or the amount of Seller’s actual damages, whichever is greater.

(emphasis added). Unlike the purchasers in TRG-Brickell, who admitted they were in breach of the purchase agreement, there still remains an issue of fact regarding who breached the purchase agreement in this case. Thus, based upon the plain language of each agreement, the amount due each purchaser, if any, cannot be fully calculated until the determination of who breached the agreement occurs. Moreover, given that the Developer had not yet served its answer to the complaint or asserted any affirmative defenses, the Purchasers’ “burden to show the absence of any genuine issue of material fact was extremely high [and] ... it was incumbent upon them to establish that no answer that [the Developer] could properly serve or affirmative defense it might raise could present such an issue.” W. Fla. Cmty. Builders v. Mitchell, 528 So.2d 979, 980 (Fla.1988); Beach Higher Power Corp. v. Granados, 717 So.2d 563, 565 (Fla. 3d DCA 1998) (“The burden for such a movant ... is extremely heavy in that ‘the movant must demonstrate conclusively and to a certainty from the record that the defendant cannot plead or otherwise raise a genuine issue of material fact.’ ”) (quoting Hodkin v. Ledbetter, 487 So.2d 1214, 1217 (Fla. 4th DCA 1986)).

Finally, in the interest of efficiency, we agree with the Developer’s contention that the Purchasers were improperly joined in this suit, and thereby provide further support in reversing the order on the Deposit Motion. The underlying lawsuit contains multiple counts, some of which apply only to specific Purchasers. For example, Count V seeks rescission for violation of the New Jersey Full Disclosure Act and applies only to Purchasers Jorge E. Arbelaez and Ida Umanskaya. Similarly, Count VII alleges a violation of the Martin Act, N.Y. General Business Law §§ 352-53, and applies only to Purchasers who were New York residents. Count II of the complaint alleges that “the Developer modified the rotation and/or orientation of the building” and as a result, “some [Purchasers] purchased units believing they would have ocean views but no longer have views of the same, thus constituting a material and adverse change.” (emphasis added). Count II further alleges that certain Purchasers signed contracts to purchase specific unit model types, but according to the condominium prospectus, were actually placed in different unit model types, while other Purchasers were moved from one floor to another. Given the separate and independent causes of action set forth in the complaint the Purchasers could not properly obtain a joint judgment. See Tamiami Trail Tours, Inc. v. Cotton, 463 So.2d 1126, 1128 (Fla.1985). Although the Developer insists dismissal is required, “the law is clear, however, that misjoinder of parties is not a ground for dismissal.” Alanco v. Bystrom, 544 So.2d 217, 218 (Fla. 3d DCA 1989). Rather, in such cases, when a determination of misjoinder has been made, the trial court may sever the claims or order separate trials. See Fla. R. Civ. P. 1.250(a); Alanco, 544 So.2d at 218.

We, therefore, hold that the Purchasers failed to satisfy the heavy burden of showing the absence of any genuine issues of material fact to be awarded summary judgment. Moreover, the fifteen different Purchasers cannot pursue their individual claims within this single count. Accordingly, we reverse the order on appeal and remand for further proceedings.

Reversed and remanded.

      . The Purchasers argue the contract language providing for the reduction of the deposit by the amount of the Seller's actual damages should be stricken as illegal. The Purchasers argued that the contract cannot provide for both liquidated and actual damages or that the contract violates the Department of Housing and Urban Development (HUD) regulation stating a liquidated damages clause cannot exceed fifteen percent of the purchase price. Neither argument is accurate. See 24 C.F.R. § 1715.4(a).

      . However, upon severance, die Purchasers are not precluded from moving for consolidation, if applicable under Florida Rule of Civil Procedure 1.270(a) (“When actions involving a common question of law or fact are pending before the court, it may order a joint hearing or trial of any or all the matters in issue in the actions.”).


text:
    Melanie DUGUAY, Appellant, v. PROGRESSIVE CORPORATION/ST. PAUL TRAVELERS, Appellees.
    No. 1D10-2700.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2010.
    Rehearing Denied Dec. 16, 2010.

      Joseph M. Rooth of The Rooth Law Firm, P.A., New Port Richey, and Richard W. Ervin, III, of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    Beatriz E. Justin and Nicolette E. Tsambis of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Tampa, for Appellees.
   PER CURIAM.

Claimant raises four issues in this workers’ compensation appeal. Finding no reversible error, we affirm the Final Compensation Order in all respects. We reject Claimant’s argument that the Judge of Compensation Claims erred in denying continuing authorization of Dr. Maser. In context, we read the Final Compensation Order as denying continuing authorization of Dr. Maser only for treatment related to the unauthorized surgery.

AFFIRMED.

DAVIS, HAWKES and THOMAS, JJ., concur.


text:
    Debbie BENNETT, Appellant, v. CHRISTIANA BANK & TRUST COMPANY, etc., Appellee.
    No. 3D09-2653.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 2010.

      Joseph J. Pappacoda, Fort Lauderdale, for appellant.
    Florida Foreclosure Attorneys, PLLC, and Klarika J. Caplano, Clearwater, for appellee.
    Before SUAREZ, CORTIÑAS, and SALTER, JJ.
   SALTER, J.

Debbie Bennett appeals the denial of her emergency motion to vacate a final foreclosure judgment. Based on the record and our conclusion that there was no personal service of process on Ms. Bennett, we reverse the judgment and remand for further proceedings.

On November 20, 2008, Christiana Bank & Trust Company filed an action to foreclose the mortgage on Ms. Bennett’s home. The plaintiffs attorneys, Golson Felberb-aum Law Firm, hired Pro-Vest LLC, a process service company, to serve Ms. Bennett. Christopher P. Mas, on behalf of Pro-Vest, filed a verified return of service on December 29, 2008. The return indicated that individual service was accomplished on December 20 at 4:18 p.m. The return further indicated that “DEFENDANT REFUSED TO DISCLOSE MILITARY STATUS; PROPERTY IS NOT A MOBILE HOME. I asked the person spoken to if the person served is married and I received a negative reply.”

However, the front and reverse sides of the summons attached to the return were covered with the process server’s notes. These notes reflected the server’s attempts to serve Ms. Bennett at her house to no avail. The notes disclosed that on two occasions he left “ec” of the summons and complaint in the mailbox at the home. Finally, after several more attempts, on December 20, the process server wrote that he left the papers at the door. His notation for that date states: “12/20/08-4:13pm Saw Curtains Move, Read Aloud Docs, SVP Docs at Door.” The return does not identify the name or age of any individual supposedly served or identified within the premises. The time, however, is precisely the time identified on the face of the return of service.

Ms. Bennett never filed a responsive pleading in the case. Christiana Bank filed motions for default and for summary judgment. In May 2009, Christiana Bank obtained an order granting default and a final foreclosure judgment. The sale was scheduled for September 4, 2009.

On September 2, Ms. Bennett, through counsel, filed a motion to vacate the judgment and to stay the foreclosure sale. The trial court denied the motion to stay the sale, but granted Ms. Bennett a hearing on the motion to vacate. Ms. Bennett filed an affidavit to support her motions asserting that the only notice she had of the foreclosure was the copy of the final foreclosure judgment received by mail at her home on August 20, 2009. Ms. Bennett stated in her affidavit that she had undergone surgery the day after Thanksgiving and was convalescing at her mother’s home the next six weeks.

After the hearing, the court entered an order finding that the service was “questionable,” but that there was no meritorious defense to the foreclosure. The court denied the motion to vacate. This appeal followed.

Analysis

Strict construction of, and compliance with, statutes governing service of process is required. Shurman v. Atl. Mortgage & Inv. Corp., 795 So.2d 952, 954 (Fla.2001). Without proper service, a court may not proceed in the matter. Re-Employment Servs., Ltd. v. Nat’l Loan Acquisitions Co., 969 So.2d 467, 471 (Fla. 5th DCA 2007) (citing Henry P. Trawick, Jr., Florida Practice and Procedure § 8:20 (2007 ed.)). “A summons properly issued and served is the method by which a court acquires jurisdiction over a defendant.” Seymour v. Panchita Inv., Inc., 28 So.3d 194, 196 (Fla. 3d DCA 2010). In analyzing whether service is proper, the return of service is the point of departure.

A process server’s return which is regular on its face is presumed valid absent clear and convincing evidence to the contrary. Bank of Am. v. Bornstein, 39 So.3d 500 (Fla. 4th DCA 2010); Telf Corp. v. Gomez, 671 So.2d 818, 818 (Fla. 3d DCA 1996). Moreover, a simple denial is insufficient to impeach the validity of service. Telf Corp. However, in this case, Ms. Bennett raised more than her own sworn denial. The process server’s own notes, an admission against the interest of his principal, see § 90.803(18)(d), Fla. Stat. (2009), prove the insufficiency of service. The process server’s last entry reflects that he “Saw Curtains Move, Read Aloud Docs, SVP Docs at Door.”

Christiana Bank argues that there is no testimony to explain what “SVP” means, but “Docs at Door” is quite self-explanatory. Curtains may move because of the wind or curious cats, and not just because some prospective defendant is attempting to avoid service. The pertinent statute is clear:

Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint ... or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents.

The process server’s notes contain no evidence of compliance with these requirements. Rather, the notes squarely conflict with his attestation that Ms. Bennett herself refused to disclose a military status. As to Ms. Bennett’s marital status, the process server stated: “I asked the person spoken to if the person served is married and I received a negative reply.” That recitation avoided an identification of the “person spoken to” and again implies that “the person served” was personally handed the papers.

Far more troubling is the fact that Christiana Bank and its attorneys ignored this discrepancy in the return of service. In its motion for summary judgment Christiana Bank alleges that the “Defendant(s) were duly and regularly served with process.” The Bank’s proposed Final Judgment of Foreclosure, prepared by its attorneys, stated: “Service of process having been duly and regularly obtained over DEBBIE BENNETT.

Once a defect in the return of service is shown, the burden of demonstrating regular service is on the party seeking to invoke the court’s jurisdiction. Bornstein, 39 So.3d at 503; BoatFloat, LLC v. Cen. Transp. Int’l, Inc., 941 So.2d 1271 (Fla. 4th DCA 2006). That burden was not met here. Christiana Bank, its trial court attorneys, and Christopher P. Mas of the process serving entity Pro-Vest LLC offered no testimony or other competent evidence to address the deficiency in service identified by Ms. Bennett’s counsel. Nor did Christiana Bank examine the process server’s notes after they were specifically called to its attention by Ms. Bennett’s newly-retained counsel, confess error by stipulating to the vacation of the final judgment, and allow Ms. Bennett to file and serve a responsive pleading.

Where no in personam jurisdiction is obtained over a defendant, the defendant is not required to demonstrate a meritorious defense to set aside the default. Ubilla v. L & W Supply, 637 So.2d 994 (Fla. 3d DCA 1994); Gamboa v. Jones, 455 So.2d 613 (Fla. 3d DCA 1984). The trial court should not have required Ms. Bennett to demonstrate a meritorious defense to the action once it became clear that the summons and complaint were never properly served.

Finally, an examination of the final judgment and supporting affidavit reveals an array of fees and charges that merit attention on remand. Charges for over $6,400 of force-placed insurance, “forbearance interest” of over $11,300 (above and beyond $14,817.73 in accrued interest from alleged default to the date of judgment), and uni-temized, conflicting “foreclosure expenses” were contained in Christiana Bank’s affidavit and the final judgment without reference to the applicable provisions of the loan documents. While we express no opinion regarding the validity or invalidity of these charges, we call them to the parties’ and trial court’s attention so that they can be addressed.

We reverse the order denying the motion to vacate the final foreclosure judgment and the final judgment itself, and we remand the case for further proceedings. Ms. Bennett has appeared in the proceeding below through counsel and will be obligated to file a responsive pleading in the trial court pursuant to Florida Rule of Civil Procedure 1.140 after the mandate issues.

Reversed and remanded.

      . There is no transcript of the hearing. However, the annotated summons and return of process are part of the record.

      . § 48.03l(l)(a), Fla. Stat. (2009).

      . The record does not indicate that Christiana Bank’s attorney of record in this appeal prepared any of the misleading documents filed in the trial court.


author: WELLS, Judge.

text:
    Shawn SMALLS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2856.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 2010.

      Shawn Smalls, in proper person.
    Bill McCollum, Attorney General, for appellee.
    Before WELLS, LAGOA, and SALTER, JJ.
   WELLS, Judge.

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

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

Reversed and remanded for further proceedings.


author: SUAREZ, J.

text:
    Eric S. SCHWARTZ, Appellant, v. Tina M. SCHWARTZ, Appellee.
    No. 3D10-171.
    District Court of Appeal of Florida, Third District.
    Dec. 1, 2010.
    Rehearing Denied Jan. 14, 2011.
    Eric Schwartz, in proper person.
    Tina M. Schwartz, in proper person.
    Before RAMIREZ, C.J., and SHEPHERD and SUAREZ, JJ.
   SUAREZ, J.

The former husband appeals from an Amended Final Judgment of Dissolution of Marriage. We affirm the Amended Final Judgment except as follows:

The appellant raises three issues on this appeal: (1) the trial court’s ruling that the $100,000 transfer from Ms. Crane was a gift; (2) the award of nominal alimony in the monthly amount of $100 to Tina Schwartz; and (3) the offset amounts granted to Tina Schwartz for future child support due Eric Schwartz.

We find it necessary to address only the third issue, which we dismiss without prejudice as premature, because the trial court has not made a final determination regarding child support. We affirm the trial court’s decision as to all other issues.

Affirmed in part, dismissed in part.


author: ORFINGER, J.

text:
    SURNA CONSTRUCTION, INC., etc., et al., Appellant, v. Philip MORRILL, et al., Appellee.
    No. 5D09-1351.
    District Court of Appeal of Florida, Fifth District.
    Dec. 3, 2010.

      Christopher C. Cathcart, of Ossinsky & Cathcart, P.A., Winter Park, for Appellant.
    Sherri K. DeWitt, of DeWitt Law Firm, P.A., Orlando, for Appellee.
    Steven R. Bechtel, of Mateer & Harbert, P.A., Orlando, for Amicus Curiae, Bill Do-negan, as Orange County Property Appraiser.
   ORFINGER, J.

Surna Construction, Inc., as Trustee for Trust Number B-9356, and Health Insurance Plus, LLC, as Trustee for Trust Number 9356-B (collectively “Surna”), appeal a final summary judgment invalidating a tax deed sale rendered in favor of the intervenor, Philip Morrill. Surna argues that the court erred when it determined that (1) the intervenor, Morrill, was entitled to notice of the tax deed sale under section 197.502(4)(h), Florida Statutes (2007); (2) section 197.522, Florida Statutes (2007), was unconstitutional as applied to the facts of this case; and (3) the Orange County Property Appraiser violated section 197.192, Florida Statutes (2004), when it assigned separate parcel numbers to the property at a time when taxes were outstanding on the property. For the reasons expressed below, we affirm in part and reverse in part.

BACKGROUND

Bay Vista Estates is a platted subdivision in Southwest Orange County, Florida. Some of the subdivision lots have direct access to Big Sand Lake; however, most do not. To enable all of the residents of Bay Vista Estates to enjoy access to the lake, in 1982, the subdivision developer, Sand Lake Properties (“Developer”), obtained an easement for “recreation and park purposes only” over a parcel of property that bisected the property which would soon be platted as Bay Vista Estates Unit 1. The easement property fronted on Big Sand Lake at one end and Apopka-Vineland Road at the other. The easement agreement, recorded in the pub-lie records of Orange County, made clear that the easement was for the sole use and benefit of the residents of a parcel described in the agreement by metes and bounds. The easement agreement required Developer, or its assigns, to pay all the real estate taxes imposed on the property encumbered by the easement, and gave Developer, and its assigns, the right to improve the easement property with a boat dock, tennis courts and similar amenities.

Several months after obtaining the easement agreement, Developer recorded the plat for Bay Vista Estates Unit 1. The easement property was shown on the plat, but was clearly excluded from the subdivision, though contiguous to it on both sides. Developer, and later the Bay Vista Homeowner’s Association (Bay Vista HOA), to whom Developer had assigned its easement rights in 1993, improved the easement property by erecting a boat dock, fencing and landscaping for the use solely by Bay Vista residents.

When the easement’s property taxes for the years 1999 and 2000 went unpaid, tax certificates were sold to George Roberts in 2000 and 2001. Five years later, Roberts applied for the issuance of tax deeds. The tax collector’s certification to the clerk of the circuit court named the fee owner of the easement property as the only person or entity entitled to notice under section 197.502(4). The clerk sent notice to the fee owner, but it was returned unclaimed. The sheriff was likewise unable to serve the fee owner with the statutory notice concerning the impending issuance of tax certificates as required by section 197.522, or post the property itself because the sheriff was unable to locate an address for the property. Instead, the sheriff posted the notice at the fee owner’s last known address. Notice of the sale was also published in the Orlando Sentinel. Ultimately, the easement property was sold for taxes to Surna, which posted “no trespassing” signs on it and prevented the Bay Vista residents from accessing the lake.

Bay Vista HOA then turned to the courts, seeking a declaration that its easement had survived the tax deed sale. Sur-na counterclaimed, seeking to quiet title to the property. Morrill, who owns a lot in Bay Vista Estates contiguous to the easement property, filed a motion to intervene, alleging, among other things, that he was entitled to notice of the tax deed sale pursuant to section 197.502(4)(h) and that the failure to notify him rendered the tax deed sale void. The court allowed Mor-rill’s intervention, and subsequently, entered summary final judgment in his favor, setting the tax deed sale aside due to the lack of notice to him. This appeal followed.

ANALYSIS

When an application for a tax deed is made, section 197.502(4) requires the tax collector to provide a statement to the clerk of the circuit court, indicating, among other things, those persons who are to be notified prior to the sale of the property. Persons entitled to notice include any legal titleholder of record of property that is contiguous to the property described in the tax certificate, when the property described is either submerged land or the common element of a subdivision. § 197.522(4)(h), Fla. Stat. (2007). Pursuant to section 197.522(l)(a), the clerk of the circuit court is required to give notice by certified mail to those persons listed in the statement provided by the tax collector pursuant to section 197.502(4). Here, it is undisputed that Morrill’s property is contiguous to the property described in the tax certificate. As a result, he would be entitled to notice if the tax certificate property is either submerged land (other than sovereign property) or the common element of a subdivision.

Section 193.0235, Florida Statutes, which concerns the assessment of ad valo-rem taxes and non-ad valorem assessments against subdivision property, explains that the term “common element” includes:

(a) Subdivision property not included within lots constituting inventory for the developer which are intended to be conveyed or have been conveyed into private ownership.
(b) An easement through the subdivision property, not including the property described in paragraph (a), which has been dedicated to the public or retained for the benefit of the subdivision.
(c) Any other part of the subdivision which has been designated on the plat or is required to be designated on the site plan as a drainage pond, or detention or retention pond, for the exclusive benefit of the subdivision.

§ 193.0235(2), Fla. Stat. (2007) (emphasis added). It appears that section 193.0235(2)(b) applies here. As the plat clearly shows, the easement runs directly through Bay Vista Estates, and indeed, bisects it.

Surna argues that the definition of common element found in section 193.0235(2) cannot apply because the unpaid taxes on the easement property were for 1999 and 2000 and the statute did not become law until 2004. We reject Surna’s position. The act amends the procedures for notification of a tax deed sale relating to submerged lands and common elements located in platted subdivisions. There is nothing in the act that excludes existing subdivisions from the protection it affords. See Op. Att’y Gen. Fla. 2003-63 (2003). Thus, although the Bay Vista Estates subdivision was platted more than twenty years before chapter 2003-284, Laws of Florida, enacted section 193.0235, it applies to this subdivision. More importantly, there is nothing to indicate that the easement property was not a common element of the subdivision before the effective date of the statute. And, the tax deed sale did not take place until 2007, well after the effective date of sections 193.0235(2) and 197.502(4)(h). Consequently, we conclude that the requirements for notification of the sale are governed by 197.502(4)(h), and the definition of common element in section 193.0235(2) was effective at the time of the sale, thereby, guiding a determination of whether the property was a -common element. We conclude Morrill fits squarely into the category of persons entitled to notice pursuant to section 197.522(4)(h) as he is the titleholder of record of property that is contiguous to the property described in the tax certificate, which property is a common element of the subdivision.

In further support of Morrill’s claim of entitlement to notice, section 197.522(2)(b), Florida Statutes (2007), provides:

In addition to the notice provided in subsection (1), the clerk shall notify by certified mail with return receipt requested ... the persons listed in the tax collector’s statement pursuant to s.l97.502(4)(h) that application for a tax deed has been made....
Neither the failure of the tax collector to include the list of contiguous property owners pursuant to s.l97.502(4)(h) in his or her statement to the clerk nor the failure of the clerk to mail this notice to any or all of the persons listed in the tax collector’s statement pursuant to s.l97.502(4)(h) shall be a basis to challenge the validity of the tax deed issued pursuant to any notice under this section.

(emphasis added). A plain reading of the statute indicates that Morrill was entitled to two notices, one under section 197.522(l)(a) and the other under section 197.522(2)(b).

Having determined that Morrill was entitled to notice under both section 197.522(l)(a) and (2)(b), we now consider the ramifications of the failure of those notices to be provided. In Dawson v. Saada, 608 So.2d 806 (Fla.1992), the supreme court considered a similar, though not identical notice problem. In that case, the delinquent property owner was entitled to notice from the clerk of the circuit court under section 197.522(1) and from the sheriff under section 197.522(2)(a). The clerk complied with the notice requirements of section 197.522(1). However, the sheriff failed to give the notice provided by section 197.522(2) because the clerk did not prepare the necessary documents. In the subsequent action to void the tax deed, the delinquent property owner, Saada, contended that he was denied due process because of the failure to strictly comply with the statutory notice requirements of section 197.522(2). Id. at 808. In rejecting that argument, the court held:

[W]e do not agree with Saada’s contention that due process requires strict compliance with the notice provisions in both subsections of section 197.522. In any proceeding which is to be accorded finality, due process requires notice “reasonably calculated, under all the circumstances, to apprise interested parties of the pendency of the action and afford them an opportunity to present their objections.” Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 314, 70 S.Ct. 652, 657, 94 L.Ed. 865 (1950). Subject to this limitation, the legislature has the authority to determine the extent and character of the notice which shall be given by the state before property is sold for nonpayment of taxes.
Florida’s statutory scheme governing the sale of real property for the collection of delinquent taxes and the validity of tax deeds issued pursuant to such sales is comprehensive. The notice provisions contained in chapter 197 are an integral part of that scheme. Section 197.522(1) meets constitutional due process requirements by mandating notice reasonably calculated to apprise landowners of the pending deprivation of their property. Section 197.522(2) provides an additional opportunity for owners of tax-delinquent property to redeem their interest when circumstances allow the sheriff to make service of notice upon the landowner. However, the legislature has clearly stated that any failure on the part of the sheriff to serve notice upon the titleholder would “not affect the validity of the tax deed.” § 197.522(2), Fla. Stat. (1987)....
Based upon the plain language of section 197.522, we find that subsection (1) specifies the mandatory duties of the clerk upon an application for a tax deed, namely that the clerk must notify by mail the persons listed in the tax collector’s statement. However, subsection (2), which provides for additional notice by the sheriff, is directory only.

Id. (some internal citations omitted).

Similar to the facts in Dawson, here, Morrill was entitled to mandatory notice under section 197.522(1) and directory notice under section 197.522(2) (b). While the failure to provide the required notice under section 197.522(2) may be excused, that can only occur if the clerk strictly complies with the mandatory notice requirement under section 197.522(1). Here, neither notice was provided. By enacting section 197.502(4), the Legislature has determined those parties with a sufficient stake in a tax sale to merit notice. Morrill was due notice, which was never sent. As a consequence, he was denied the process that he was due and the trial court was correct in voiding the tax sale.

For these reasons, we affirm the trial court’s conclusion that the tax deeds must be declared void. As a result, we need not consider the other conclusions made by the trial court, save one. The trial court found that the Orange County Property Appraiser improperly split the easement property into two parcels at a time when taxes were outstanding in violation of section of 197.192, Florida Statutes. That conclusion was erroneous because at the time the property appraiser assigned two parcel numbers to the subject property, no taxes were outstanding against it as the purchaser of the tax certificates had paid the taxes, interest, costs and charges in full. Consequently, the property appraiser was within his authority to assign separate parcel numbers to the property, which was, by then, bisected by a road.

AFFIRMED in part; REVERSED in part.

GRIFFIN and TORPY, JJ., concur.

      . It appears that the property benefitted by the easement would later be platted as Bay Vista Estates, but the record is not entirely clear on that point. Nonetheless, it is clear that Morrill’s property is contiguous to the easement.

      . Specifically, section 197.502(4)(h) describes the following legal titleholders of record who are entitled to notice:
      Any legal titleholder of record of property that is contiguous to the property described in the tax certificate, when the property described is either submerged land or common elements of a subdivision, if the address of the titleholder of contiguous property appears on the record of conveyance of the land to that legal titleholder. However, if the legal titleholder of property contiguous to the property described in the tax certificate is the same as the person to whom the property described in the tax certificate was assessed on the tax roll for the year in which the property was last assessed, the notice may be mailed only to the address of the legal titleholder as it appears on the latest assessment roll. As used in this chapter, the term "contiguous” means touching, meeting, or joining at the surface or border, other than at a corner or a single point, and not separated by submerged lands. Submerged lands lying below the ordinary high-water mark which are sovereignty lands are not part of the upland contiguous property for purposes of notification.

      . Section 197.522(l)(a), Florida Statutes (2007), provides, in pertinent part:
      The clerk of the circuit court shall notify, by certified mail with return receipt requested or by registered mail if the notice is to be sent outside the continental United States, the persons listed in the tax collector’s statement pursuant to s. 197.502(4) that an application for a tax deed has been made. Such notice shall be mailed at least 20 days prior to the date of sale....

      . Because we agree with the trial court ruling that the property described in the tax certificate is the common element of a subdivision, we need not consider the trial court’s conclusion that it is also, in part, submerged land.

      . It is undisputed that, as the statute requires, Morrill's address appears on the face of his deed.


text:
    Danny MERRIMAN, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D10-6092.
    District Court of Appeal of Florida, First District.
    Dec. 6, 2010.
    Danny Merriman, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Powell v. Fla. Dep’t of Corr., 727 So.2d 1103 (Fla. 1st DCA 1999).

VAN NORTWICK, LEWIS, and CLARK, JJ., concur.


text:
    Michael W. TURNER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6074.
    District Court of Appeal of Florida, First District.
    Dec. 6, 2010.
    Michael W. Turner, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

VAN NORTWICK, LEWIS, and CLARK, JJ., concur.


text:
    Terry L. ASHLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5812.
    District Court of Appeal of Florida, First District.
    Dec. 6, 2010.
    Terry L. Ashley, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

VAN NORTWICK, LEWIS, and CLARK, JJ., concur.


author: THOMAS, J.

text:
    Jorge PALACIO and Elizabeth R. Palacio, Appellants, v. ALASKA SEABOARD PARTNERS LIMITED PARTNERSHIP, a Delaware Limited Partnership, and Citi-financial Equity Services, Inc.; Oakleaf Plantation Property Owners Association, Inc.; Unknown Tenant # 1; Unknown Tenant # 2; and Other Unknown Parties, Including the Unknown Spouse of Any Title Holder In Possession of Property, and If A Named Defendant Is Deceased, The Surviving Spouse, Heirs, Devisees, Grantees, Creditors, and All Other Parties Claiming By, Through, Under or Against That Defendant, and the Several and Respective Unknown Assigns, Successors In Interest, Trustees or Other Persons Claiming By, Through, Under or Against Any Corporation or Other Legal Entity Named As A Defendant, and All Claimants, Persons or Parties, Natural or Corporate, or Whose Exact Legal Status is Unknown, Claiming Under Any of The Above Named or Described Defendants, Appellees.
    No. 1D10-2690.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2010.

      Henry W. Hicks and Adam J. Knight of Henry W. Hicks, P.A., Tampa, for Appellants.
    Laura L. Walker and Klarika J. Caplano of Florida Foreclosure Attorneys, PLLC, Clearwater, for Appellees.
   THOMAS, J.

Appellants seek reversal of the trial court’s summary denial of their motion to set aside and vacate a default judgment entered against them in the foreclosure proceedings below. For the reasons explained below, we reverse the trial court’s order.

Factual Background

Appellants were served with a foreclosure complaint in February 2009, to which they did not file a response due to what they understood to be assurances by the loan servicer representative. Appellants alleged they contacted the loan servicer representative immediately after being served with the complaint. Appellants were assured by the loan service representative that the foreclosure proceeding would be abated pending application for, and approval of, a loan modification agreement. Appellants alleged that they faxed the application for the loan modification agreement on April 7, 2009. In support of this assertion, Appellants attached affidavits and the facsimile cover sheet to their motion to set aside and vacate a default judgment.

Appellants also alleged that between that date and October 2009 they had several conversations with representatives of the loan servicer involving additional required documents, and “[a]t no time during those conversations were [they] advised that the foreclosure had moved forward.” Appellants further asserted that they did not receive any foreclosure documents after the initial complaint until receiving the notice that a foreclosure sale on their home was rescheduled for May 12, 2010. During the entire time preceding receipt of this notice, Appellants were “under the reasonable belief that the foreclosure action had been abated.”

According to Appellants’ motion and affidavits, in October 2009 they were told that the lender was willing to agree to a modification pursuant to certain terms, including an immediate payment of $8,500 to be applied toward satisfaction of outstanding interest, and a reduction of the principle from $205,000 to $150,000, which would be re-amortized to result in a new monthly payment of $1,375. Appellants attached to their motion and affidavits documentation showing that they presumably complied with these terms.

While the foregoing alleged negotiations were taking place, Appellees filed a default motion on May 19, 2009, followed by a motion for summary judgment on July 16, 2009. Final summary judgment was entered on November 11, 2009. After this order was entered, Appellants made five payments in accordance with what they understood was a modified mortgage agreement. The last of these payments was made on March 28, 2010. The trial court entered an order on March 29, 2010, rescheduling the foreclosure sale for May 12, 2010, and the Notice of Sale was issued two days later. By letter dated April 29, 2010, Appellees returned Appellants’ final payment of $1,451 and informed Appellants that it would not be credited to their account “[d]ue to the pending foreclosure action” and that their account “needs to be reinstated through our attorney.”

On May 7, 2010, Appellants’ attorneys filed the motion to set aside the default judgment. Appellees filed no response to either the motion or affidavits. The trial court did not conduct an evidentiary hearing to address Appellants’ allegations, and entered its order denying the motion on May 11, 2010. This order contained no findings of fact or conclusions of law.

Analysis

It is the trial court’s failure to conduct an evidentiary hearing that warrants reversal of the denial of Appellants’ motion to set aside the default judgment. This court has held that a trial court is required to conduct an evidentiary hearing before entering an order denying a motion to set aside a judgment. See Seal v. Brown, 801 So.2d 993, 994-95 (Fla. 1st DCA 2001). Furthermore, if a moving party’s allegations raise a colorable entitlement to relief, a formal evidentiary hearing and appropriate discovery is required. Id. at 995.

As in the proceedings below, Appellees do not contest Appellants’ factual assertions; rather, they essentially argue that Appellants’ allegations are facially insufficient to warrant entitlement to setting aside a default judgment. We disagree. Appellants’ allegations and supporting documents make a colorable case for their assertion that their failure to respond to the foreclosure complaint was due to their settlement negotiations and complying with what they understood to be a modified mortgage agreement, all of which may reasonably have led them to believe that the foreclosure action was abated. See, e.g., Gables Club Marina, LLC v. Gables Condominium and Club Ass’n, Inc., 948 So.2d 21, 24 (Fla. 3d DCA 2006) (holding trial court did not abuse its discretion by setting aside default judgment in part based on allegations that defaulting party relied on representation that lawsuit would not proceed while settlement discussions remained viable and where Association responded within five days to motion for default). As noted, Appellants also alleged they did not receive any foreclosure pleadings filed subsequent to the complaint until receiving the notice that their home was being put up for sale.

In a case bearing some factual similarity, the Fourth District recently reversed a trial court’s order, which was entered after an evidentiary hearing, denying the borrowers’ motion to set aside a default because their motion and uncontroverted affidavits indicated they had begun a workout agreement with their lender; thus, the court held, they established excusable neglect. See Elliott v. Aurora Loan Serv., LLC, 31 So.3d 304 (Fla. 4th DCA 2010). Likewise, should the trial court here, after conducting an evidentiary hearing, accept as true Appellants’ allegations as to why they did not file a responsive pleading to the foreclosure complaint, it may conclude that Appellants’ failure constituted excusable neglect or some other valid basis for setting aside the default judgment. See, e.g., Gables Club Marina, 948 So.2d 21. In addition, if the trial court determines Appellants have demonstrated adequate grounds for setting aside the judgment, they may have a viable claim for equitable relief in a foreclosure action. See, e.g., David v. Sun Fed. Sav. & Loan Ass’n, 461 So.2d 93, 95 (Fla.1984). In light of the above, we are compelled to reverse and remand with directions that the trial court conduct a hearing on Appellants’ motion to set aside the default judgment.

Conclusion

For the foregoing reasons, we REVERSE the trial court’s order denying Appellants’ motion to set aside the default judgment and REMAND with instructions to conduct an evidentiary hearing consistent with this opinion.

HAWKES, J., Concurs; DAVIS J., Concurs in result only.


text:
    Oscar HERNANDEZ, Appellant, v. MANATEE COUNTY GOVERNMENT/COMMERCIAL RISK MANAGEMENT, INC., Appellees.
    No. 1D10-0738.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2010.
    Bill McCabe, Longwood, and James E. Hack, St. Petersburg, for Appellant.
    Dan J. DeMay, Sarasota, and Shawna G. Andres of Pallo, Marks & Hernandez, Ge-chijian & DeMay, P.A., Palm Beach Gardens, for Appellees.
   THOMAS, J.

In this workers’ compensation appeal, Claimant argues that the judge of compensation claims (JCC) erred in awarding certain costs to the E/C as a prevailing party after the JCC denied Claimant’s 2008 petition for benefits (PFB). The JCC awarded costs incurred for depositions taken prior to the filing of the 2008 PFB, in which the Claimant sought permanent total disability benefits. Claimant argues the doctrine of res judicata prohibits this award, because the JCC had previously denied the E/C’s request for payment of these costs in connection with a 2007 PFB, pursuant to which the Claimant was awarded medical care. We affirm and write to address this novel question.

In the order under review, the JCC considered each cost item, to determine whether it was “relevant to any issue” raised in the 2008 PFB, and awarded only those costs she found relevant, regardless of the date the deposition was taken. Some of the depositions for which the JCC awarded costs were taken prior to the filing of any PFB and some were taken in reference to a 2007 PFB. (In the order addressing the 2007 PFB, because the E/C was not the prevailing party in that proceeding, the JCC had denied the E/C’s request she award it costs.) The standard utilized by the JCC in awarding costs in connection with the denial of the 2008 PFB was “not whether the information was originally obtained in connection with a different proceeding, but whether it was received in evidence at the more recent proceeding and relevant to any issue.” Thus, the JCC determined that even though the depositions may have been taken prior to the filing of the 2008 PFB, the E/C’s foresight in covering the issues raised in the 2007 PFB, as well as issues that could, based on the facts in this case, foreseeably arise in the future, resulted in those depositions being relevant in more than one proceeding.

An award of costs is reviewed for abuse of discretion. See Nilo v. Fugate, 30 So.3d 623 (Fla. 1st DCA 2010). The relevant statute under which the JCC awarded the costs provides, “If any party should prevail in any proceedings before a [JCC] or court, there shall be taxed against the nonprevailing party the reasonable cost of such proceedings.” § 440.34(3), Fla. Stat. (2003); see F.A. Richard & Assocs. v. Fernandez, 975 So.2d 1224, 1225 (Fla. 1st DCA 2008) (interpreting section 440.34(3) to mandate award of costs to prevailing party whether it be claimant or E/C).

Costs are at issue in every workers’ compensation proceeding. See Fernandez, 975 So.2d at 1226 (holding “all parties to workers’ compensation cases are on notice that costs are at issue”). Workers’ compensation proceedings are, of necessity, often serial in nature. See, e.g., Nelson & Co. v. Holtzclaw, 566 So.2d 307, 309 (Fla. 1st DCA 1990) (acknowledging “periodic nature of wage loss ... can be relitigated on successive claims without the required showing for modification”); Lewis v. Town & Country Auto Body Shop, 473 So.2d 803, 805 (Fla. 1st DCA 1985) (acknowledging “[t]he serial nature of workers’ compensation claims”). Although no workers’ compensation case addresses the particular issue raised here, this court’s reasoning in Holtzclaw lends support to the notion that res judicata is not applicable in this case. In Holtzclaw, this court, in addressing the various issues arising in claims for wage loss benefits, determined that

elements which might change from period to period (such as the causal connection between the injury and the particular periodic benefit) can be relitigated on successive claims without the required showing for modification. However, when a non-recurring issue such as permanent impairment is “ripe and clearly litigated” at a previous hearing, relitigation in a subsequent proceeding is barred by res judicata absent a showing which would support modification of the previous order.

Id. at 309. Here, the changing “element” is the success in prosecuting or defending a particular claim, which results in entitlement to costs for the prevailing party. Because entitlement to costs is contingent upon prevailing in the substantive proceeding, it is not “ripe and clearly litigated” until that particular point in time.

Here, E/C’s entitlement to the costs at issue did not arise until the JCC ruled on the 2008 PFB. Accordingly, res judicata does not bar the award of costs for that proceeding. See generally Moore v. Hillsborough County Sch. Bd., 987 So.2d 1288, 1289 (Fla. 1st DCA 2008) (holding witness fees taxable against nonprevailing E/C if testimony was used in any way to support award); see also Boynton Landscape v. Dickinson, 752 So.2d 1236, 1237 (Fla. 1st DCA 2000) (holding mature claims not litigated at merits hearing considered waived by application of res judicata and cannot be raised in subsequent litigation).

Moreover, because it was not necessary to re-depose these deponent-physicians, thereby reducing the time necessary to prepare for the final hearing, the legislature’s stated intent “to ensure the prompt delivery of benefits to the injured worker” has been met. § 440.015 Fla. Stat. (2003). This result also serves to further the public policy suggested by the Florida Supreme Court, as stated in the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions (which the JCC is obliged to consider pursuant to Florida Administrative Rule of Procedure 60Q-6.124(3)(e)): “The trial court should exercise that discretion [to award costs] in a manner that is consistent with the policy of reducing the overall costs of litigation and of keeping such costs as low as justice will permit.”

AFFIRMED.

DAVIS and HAWKES, JJ., Concur.

      . The workers’ compensation rules of procedure permit discovery "prior to or after invoking the jurisdiction of the judge.” Fla. Admin. Code R. 60Q-6.114(1).


text:
    David LOWE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-3159.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2010.
    David Lowe, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order of September 21, 2009, denying petitioner’s motion for postconviction relief and amended motion for postconviction relief in Leon County Circuit Court case number 2005-CF-4550, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal in accordance with Florida Rule of Appellate Procedure 9.141(c)(5)(D).

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


text:
    Alphonsia CANTY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-3222.
    District Court of Appeal of Florida, First District.
    Dec. 8, 2010.
    Alphonsia Canty, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the order rendered April 16, 2009, denying petitioner’s motion for correction of sentence(s) in Duval County Circuit Court case number 16-1983-3297-AXXX, is granted. Upon issuance of mandate in this cause, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal in accordance with Florida Rule of Appellate Procedure 9.141(c)(5)(D).

PADOVANO, ROBERTS, and MARSTILLER, JJ., concur.


author: CRENSHAW, Judge.

text:
    STATE of Florida, Appellant, v. Joshua Delmar MALONE, Appellee.
    No. 2D09-5470.
    District Court of Appeal of Florida, Second District.
    Dec. 8, 2010.

      Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Allyn M. Giambalvo, Assistant Public Defender, Bartow, for Appellee.
   CRENSHAW, Judge.

The State appeals the sentence imposed after Joshua Delmar Malone pleaded no contest to attempted first-degree murder with a firearm. Malone concedes and we agree that the trial court erred in sentencing Malone as a youthful offender for a life felony. We therefore reverse and remand for further proceedings.

Malone was charged by information in 2008 with attempted first-degree murder with a firearm pursuant to sections 782.04(l)(a), 777.04, 775.087(1), and 775.087(2)(a)(2), Florida Statutes (2008). Malone pleaded no contest to the charge and was sentenced as a youthful offender to six years’ imprisonment following a plea colloquy. The State objected to the imposed sentence, arguing that Malone was subject to a mandatory minimum sentence of twenty years’ imprisonment under section 775.087(2)(a)(2).

We find the trial court erred in sentencing Malone to six years’ prison as a youthful offender because Malone pleaded no contest to a life felony, making him ineligible for youthful offender sentencing. First-degree murder is a capital felony under section 782.04(l)(a)(l), and therefore attempted first-degree murder qualifies as a first-degree felony. See § 777.04(4)(b). Because the use of a firearm is not an essential element of the offense of attempted first-degree murder, the felony here is reclassified as a life felony because a firearm was used during the commission of the attempted murder. See § 775.087(l)(a). And because Malone was convicted of a life felony, it was error for the court to sentence him as a youthful offender. See § 958.04(l)(c), Fla. Stat. (2008) (“[A] person who has been found guilty of a capital or life felony may not be sentenced as a youthful offender under this act.”); McKinney v. State, 27 So.3d 160, 161 (Fla. 1st DCA 2010) (“The trial court has discretion to sentence as a youthful offender a defendant who is at least 18 years old and has been found guilty of a felony {except for a capital or life felony) committed before the defendant’s 21st birthday.” (emphasis added)). Instead, a life felony is punishable by a “term of imprisonment for life or by imprisonment for a term of years not exceeding life imprisonment.” § 775.082(3)(a)(3). Further, because a firearm was discharged during the course of the attempted murder, Malone, after pleading no contest to the charge, was subject to a minimum mandatory term of twenty years’ imprisonment. See § 775.087(2)(a)(2). Because the trial court erroneously sentenced Malone as a youthful offender when Malone was subject to a minimum mandatory term of twenty years’ imprisonment, we reverse the judgment and sentence and remand to the trial court for further proceedings. On remand, the trial court shall give Malone the opportunity to withdraw his plea. See State v. Smith, 654 So.2d 1299, 1299-1300 (Fla. 4th DCA 1995).

Reversed and remanded.

CASANUEVA, C.J., and NORTHCUTT, J., Concur.

      . Although the plea form and written judgment list the offense as attempted first-degree murder and omit any mention of a firearm, the written judgment lists the offense as a life felony, and the factual basis provided at the plea colloquy supports the charge of attempted murder with a firearm. Malone concedes he pleaded to the offense as charged in the information.