author: SALTER, J. WELLS, Judge

text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Appellant, v. The ESTATE OF Stephen D. LEVINE, assignee of Jose Hernandez, assignor, by and through Tracy HOWARD, as Personal Representative, Appellee.
    No. 3D09-3234.
    District Court of Appeal of Florida, Third District.
    March 30, 2011.
    Rehearing Denied Oct. 28, 2011.

      White & Case, and Raoul G. Cantero, III, Miami, and Rachel Wagner Furst, for appellant.
    Ross & Girten, and Lauri Waldman Ross, Miami; Freidin Dobrinsky, and Philip Freidin, Miami; Slawson, Cunningham, Whalen & Gaspari, and Richard W. Slaw-son and Fred Cunningham, Palm Beach Gardens, for appellee.
    Before WELLS, SALTER, and EMAS, JJ.
   SALTER, J.

United Auto Insurance Company (UAIC) appeals a final judgment and orders denying post-trial motions in a case brought under the bad faith statute. We affirm.

UAIC raises four points on appeal. First, it argues that the trial court abused its discretion in excluding evidence regarding the insurer’s prompt action in settling two of four separate policy-related claims arising from a tragic two-car collision. Second, UAIC contends that the trial court abused its discretion by affording the ap-pellee, plaintiff below, an opportunity to re-open her case and offer “surprise testimony” to prove her status as the assignee of UAIC’s insured. Third, UAIC argues that a jury instruction regarding “no realistic possibility of settlement within the policy limits” impermissibly shifted the burden of proof from the appellee to UAIC. Fourth, UAIC maintains that the appellee failed to prove a prima facie case of insurer bad faith under the statute and applicable precedent.

We address each of these points in order, although only the first issue merits extended analysis. Before doing so, however, we note one feature of the trial below that distinguishes the record here from many other insurance bad faith cases: no expert witness testified on behalf of UAIC regarding claims-handling policies generally or in this specific case. Two expert witnesses testified for the appellee regarding these issues.

I. Background

In December 2001, UAIC’s insured under a personal injury protection (PIP) policy, Jose Hernandez, drove his flatbed truck into an automobile driven by Steven D. Levine. Levine and his passenger, Lourdes Maldonado, were killed. Hernandez and his passenger, Ruben Soto, were seriously injured. Hernandez’s PIP policy covered $10,000 per person for bodily injury, with an aggregate limit of $20,000, as well as $10,000 of property damage.

Levine’s spouse, Tracy Howard, was appointed personal representative of his estate. She retained an attorney to investigate the estate’s claims arising from the accident and death. These included potential claims against Hernandez and his insurer, claims for uninsured/underinsured coverage under a non-UAIC policy, a claim against an establishment that served alcoholic beverages to Hernandez in the hours before the accident, and other claims.

UAIC assigned a non-attorney adjuster to the case who determined that there were four prospective claims against Hernandez under the policy: bodily injury claims on behalf of the Levine estate, the Maldonado estate, and Soto, and a property damage claim on behalf of the owner of the automobile driven by Levine and destroyed in the accident. On February 4, 2002, Levine’s estate notified Hernandez of its claim against him. Two days later, Hernandez’s attorney notified UAIC of the claim (although UAIC had begun its investigation of the claim immediately after the accident). The same day, UAIC tendered to counsel for the Levine estate a check for the $10,000 bodily injury limit, transmitting it with a “Release of All Claims,” a “Hold Harmless and Indemnification Agreement,” and a transmittal letter. The letter indicated that the release was provided “for execution,” but the letter also requested five additional documents: (1) a subrogation waiver from any uninsured motorist carrier, if applicable, (2) disclosure of all liens and medical/health insurance subrogation claims against the proffered settlement, (3) written confirmation that all such liens and subrogation claims would be satisfied out of the proceeds of this settlement, (4) the “Hold Harmless Agreement,” and (5) letters of administration appointing the personal representative of the estate. The transmittal letter was unclear whether the execution and return of the specified documents was a condition to the “prompt and proper disbursement” of the tendered amount.

The release and hold harmless agreements were forms modified to identify the claim and policy numbers as well as the identity of the payee and UAIC’s insured. The terms of these agreements were sweeping in their breadth and scope.

II. Analysis

A. Exclusion of Evidence Regarding the Maldonado and Soto Settlements

Section 624.155(l)(b)(l), Florida Statutes, affords “any person,” including an insured, a civil remedy against an insurer for “[n]ot attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests....” UAIC argues that “claims” and “under all the circumstances” refers to all four claims against its insured, Hernandez, and all the circumstances pertaining to all four of those claims. More specifically, UAIC contends that it was entitled to show the jury that UAIC settled the Soto and Maldonado claims quickly and by tendering more than the aggregate policy limits.

The issue was presented to the trial court via the Levine estate’s motion in limine. The Levine estate sought to exclude evidence regarding the settlements by UAIC and (a) the Maldonado estate as against Hernandez, and (b) Soto as against Hernandez, although argument regarding the motion was principally directed to UAIC’s settlement of the claim of the Maldonado estate against Hernandez. UAIC argued that the prompt resolution of the Maldonado estate claim — which occurred because UAIC did not require the Maldonado estate to sign the release as a precondition for negotiating the check in payment of that claim — tended to prove good faith vis-a-vis UAIC’s insured, Hernandez.

We review the trial court’s exclusion of the evidence under the abuse of discretion standard, a standard testing whether the trial court’s conclusion is “arbitrary, fanciful, or unreasonable.” H & H Elec., Inc. v. Lopez, 967 So.2d 345, 347-48 (Fla. 3d DCA 2007) (quoting Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980)). In the case at hand, the trial court recognized that the fact that one independent claimant negotiated separate settlement terms (no release required) with UAIC did not tend to prove whether UAIC acted properly regarding the claim of another independent claimant. To hold otherwise would be to risk distracting the jury — which was to focus on UAIC’s efforts or lack of effort in settling the Levine estate’s claim against Hernandez — with a “trial within a trial” on the collateral question of why the Maldonado estate and UAIC settled with Hernandez, while the Levine estate did not (one such reason, according to the Levine estate’s witnesses, was that the Levine estate wanted to preserve a claim against the bar that served alcoholic beverages to Hernandez). The jury’s focus was to be on UAIC’s obligation to protect its insured from the anticipated, substantial, and actual claim of the Levine estate. We conclude that the trial court fairly balanced the purported relevance and probative value of the Soto and Maldonado estate/UAIC settlements against the prejudicial impact, with the result that no abuse of discretion has been shown. H & H Elec., Inc., at 347-48 (citing Trees v. K-Mart Corp., 467 So.2d 401 (Fla. 4th DCA 1985)).

The trial court’s ruling is practical as well. Suppose an insured driver hits six pedestrians. The insurer immediately settles with five, but refuses to act reasonably and in good faith regarding the sixth injured claimant, resulting in an excess (above policy limits) judgment in favor of the sixth claimant against the insured. In the statutory insurance bad faith trial involving the sixth claim, must the trial court allow the insurer to offer evidence of each of the five cases that were settled, and the inevitable cross-examination to explore the different terms of, and reasons, for, each of those settlements by the five other claimants?

Neither the statute nor any reported case requires or even permits such detours. In what is perhaps the most recent, comprehensive analysis of statutory bad faith by the Supreme Court of Florida, Berges v. Infinity Insurance Co., 896 So.2d 665, 677 (Fla.2005), that Court observed that “the focus in a bad faith case is not on the actions of the claimant but rather on those of the insurer in fulfilling its obligations to the insured.” However, in that case (as here), the question was whether the insurer investigated and gave fair consideration to a particular settlement proposal that was not unreasonable under the facts, “where a reasonably prudent person, faced with the prospect of paying the total recovery, would do so.” Id. at 681 (citing Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783, 785 (Fla.1980)). In short, the focus is on the insurer’s reasonable assessment of “a” claim against its insured. In this case, “the” claim upon which the statutory bad faith claim was based was the Levine estate’s claim against Hernandez. For these reasons, we find no error in the trial court’s exclusion of evidence regarding UAIC’s resolution of the separate Maldonado estate and Soto claims against Hernandez.

B. The Assignment

The Levine estate’s amended complaint against UAIC alleged a statutory bad faith claim based on Hernandez’s assignment of the claim to the estate. A copy of the assignment was attached to the amended complaint and served on UAIC over two years before the trial of the bad faith case. UAIC’s answer denied the allegation that Hernandez had assigned his statutory bad faith claim to the Levine estate, but did not assert any affirmative defense directed to the estate’s standing or right to assert the claim. The assignment itself is a bilateral agreement between Hernandez and the estate (and purportedly signed by each) in which the estate undertook (among other things) to prosecute and bear the expenses of the bad faith action against UAIC on behalf of Hernandez.

At trial, after the Levine estate closed its case, UAIC moved for a directed verdict on grounds which included an argument that the estate had not proven the validity of the assignment. The trial court permitted the estate to re-open its case to present additional testimony of the personal representative/assignee (Levine’s widow) and the insured/assignor’s attorney (who had not been listed on the pretrial witness list) regarding the assignment. This testimony was taken while the jury was not present. UAIC presented no evidence challenging the genuineness or authenticity of the signed assignment document.

The assignment is not a required element of the Levine estate’s statutory bad faith claim against UAIC. A judgment creditor of the insured “may maintain suit directly against tortfeasor’s liability insurer for recovery of the judgment in excess of the policy limits, based upon the alleged fraud or bad faith of the insurer in the conduct or handling of the suit.” Thompson v. Commercial Union Ins. Co. of New York, 250 So.2d 259, 264 (Fla.1971). Similarly, in section 624.155(1), Florida Statutes (2007), the term “any person” has been held to confer a direct third-party cause of action by claimants such as the estate. Auto-Owners Ins. Co. v. Conquest, 658 So.2d 928 (Fla.1995). In the present case, the validity of the assignment is thus an issue which only affects the entitlement of the Levine estate to attorney’s fees under section 627.428, Florida Statutes (2010).

As a result, we find no prejudice to UAIC; jurisdiction to determine and award any attorney’s fees and costs was separately reserved in the amended final judgment under review. The record before us does not disclose whether the trial court subsequently awarded attorney’s fees and costs, but certainly the purportedly “surprise” authentication testimony by the personal representative/assignee and the assignor’s attorney at trial was (or will be) no longer a “surprise” at the attorney’s fee hearing months later. We find no abuse of discretion in the trial court’s decisions to allow the Levine estate to re-open its case briefly to offer testimony responsive to UAIC’s supposed concern about the assignment and to admit that document and the related testimony (subject to UAIC’s rights to cross-examine the witnesses and offer any evidence tending to prove that the assignment is invalid or something other than it appears to be).

C. Jury Instruction

UAIC maintains that the jury instructions ultimately given impermissibly shifted the burden of proof to UAIC. We disagree. The jury instruction in question was expressly limited to “the defense of the unwillingness of the plaintiff to settle.” Regarding the bad faith claims as a whole, the jury was instructed that a defense verdict should be entered if the Levine estate’s evidence did not support the estate’s claims. Any such objections were raised belatedly, and thus waived, and considering the verdict form and instructions collectively, as required, no error has been shown. Parker v. Graham & James, 834 So.2d 881, 882 (Fla. 3d DCA 2002) (citing Gallagher v. Fed. Ins. Co., 346 So.2d 95 (Fla. 3d DCA 1977)).

D. Denial of UAIC’s Motion for Directed Verdict

Finally, regarding UAIC’s arguments that the Levine estate failed to make a prima facie case and that “the undisputed facts demonstrate that the insurer could not have acted in bad faith,” this record amply supports the submission of the estate’s case to the jury. UAIC’s initial enthusiasm for tendering its policy limits to the Levine estate pales when set against the one-size-fits-all release required by UAIC, UAIC’s failure to follow up in more than a superficial way (in a case plainly involving a catastrophic claim), and UAIC’s failure to present expert testimony responsive to the estate’s experts.

III. Conclusion

The essence of UAIC’s claim in this case, though not directly articulated, is that it was set up for a bad faith claim as a strategy, by the Levine estate’s failure to tell UAIC why UAIC’s tender, release, and other requirements were unacceptable. The “strategy” question was debated in the majority and dissenting opinions in Berges, and it is far from over. Until there is a substantial change in the statutory scheme or the rationale explained in the majority opinion in Berges, however, juries will continue to render verdicts regarding an insurer’s alleged bad faith when the pertinent facts are in dispute.

For the reasons detailed above, we find no abuse of discretion or reversible error by the trial court in this case. The amended final judgment and post-trial orders below are affirmed.

EMAS, J., concurs.

WELLS, Judge

(dissents).

I would reverse the $5.2 million dollar judgment against United Automobile Insurance Company for failure to make a prima facie bad faith case. While I fully agree that valid insurance claims must be timely paid and egregious conduct in delaying or denying payment of such a claim is properly sanctioned by an action sounding in bad faith, I find that the instant claim cannot be supported on a mere incantation of the mantra that bad faith is a jury question.

While the facts of this case are tragic, as a matter of law, the insurers’ actions did not constitute bad faith. On the evening of December 9, 2001, Jose Hernandez, while purportedly intoxicated, ran a stop sign in the Redlands section of Miami-Dade County and rammed a sports car driven by Circuit Court Judge Steve Levine. Levine died quickly from horrific injuries sustained in the crash; his passenger, Ms. Maldonado also died. Mr. Hernandez and his passenger, Ruben Soto, were injured.

At the time of the accident, Hernandez was insured by United under a policy which provided coverage in the amount of $10,000 per person for bodily injuries, with a $20,000 limit per incident, and in amount of $10,000 for property damage. A little less than two months after this accident, on February 6, 2002, United received notice of this incident from passenger Maldonado’s counsel. Although no notice was received from Levine’s estate, United tendered a check the very next day, February 7, 2002, in the amount of $10,000, the bodily injury policy limits, to Levine’s estate. It accompanied that tender with what may best be described as a general release, releasing Hernandez and all others from all liability from any and all claims arising from this accident. Acceptance of the check was in no manner conditioned on execution and return of the general release.

Two weeks later, on February 22, 2002, counsel for Levine’s estate requested a copy of Hernandez’ policy. Five days later, the policy was provided. Two months later, the estate returned United’s check without explanation. When United inquired as to the reason for this rejection, United was advised by someone in the office of the counsel for the estate that the tender was insufficient and would preclude the estate from taking other actions. No further communications were forthcoming from counsel for the estate regarding the claim, despite phone calls from a United adjuster in April, May, and June.

Although United exceeded its policy limits for bodily injuries by paying out $30,000, it received no claim for property damages and made no tender for damage to the car Levine was driving. On June 16, 2002, the estate sued Hernandez ultimately securing a $5.2 million judgment against him. In November of 2006, Hernandez assigned all of his rights against United to Levine’s estate, which sued United in a single count complaint for bad faith claiming that United failed to timely settle the estate’s claim against Hernandez and that “[h]ad Defendant, UNITED, timely tendered the available policy limits, [the estate] would have accepted the available policy limits and released Hernandez.” (Emphasis added). Following a jury verdict, a final judgment finding that United had acted in bad faith was entered against United, and the underlying judgment against Hernandez for over $5.2 million was assessed against United.

As a matter of law, these facts do not constitute bad faith and as such, the matter should never have gone to a jury. Although United received no notice, claims or demands whatsoever from Levine’s estate, it issued a check to the estate for its bodily injury policy limits within a day of learning of the incident. As a matter of law, this cannot be bad faith.

The fact that this tender was accompanied by a general release also cannot for a number of reasons constitute bad faith. First, acceptance of the tendered check was not conditioned on execution of the release. Because the tender was not conditioned on the release, the estate was free to accept the tender and ignore the release, leaving Hernandez no worse off than he would have been had a check alone been sent. However, had the estate executed the release, Hernandez would have been relieved of any further liability, a result obviously to his benefit. In any event, no matter how viewed, providing a general release along with a check for the policy limits inured solely to Hernandez’ benefit and could not constitute bad faith. If the estate refused to execute the release, Hernandez was no worse off than he was without the release — his insurance had paid up and he was still on the hook for any excess — and if the estate executed the release he was forever off the hook.

As far as the estate’s claim that it would have executed the “one size fits all release,” absolving Hernandez completely from its multimillion dollar claims had United only tendered a check for $10,000 for damage to Levine’s car along with the check for $10,000 for bodily injuries, the record is that the estate never made a property damage claim against the United policy and when United inquired as to why the estate rejected its bodily injury tender, it never explained that it was rejecting the tender because United had not also tendered a $10,000 check for property damage. Rather, instead of negotiating a settlement in good faith by making a counter offer to United’s settlement tender, the estate brought its suit for bad faith.

On these facts, I cannot agree to affirm the instant judgment. Had the estate made a counter offer to United’s settlement offer or offered to settle its claims within policy limits as had the injured parties in Berges v. Infinity Insurance Co., 896 So.2d 665 (Fla.2004), my opinion would be different. But there was no indication whatsoever that Levine’s estate was interested in, much less willing to, settle its multimillion dollar claims against Hernandez for policy limits. And, after United initiated “settlement” discussions by issuing a check for the full amount of its bodily injury coverage, the estate remained mute, never objecting to the notation accompanying the check or the release or making a claim or demand for policy limits for property damages. I therefore cannot see how anything that United did or did not do was the cause of any damage to Hernandez. Absent same, no bad faith claim could exist.

In short, United did everything it could to maximize protection for its insured. Without a demand or claim, it promptly paid an amount exceeding policy limits for bodily injuries; it attempted to secure a release from liability for its insured; and it timely attempted to determine who should be paid and in what amount for property damage. In the end, Hernandez' suffered no damage that he otherwise would not have incurred but for United’s actions. While juries are responsible for determining bad faith claims, it is the responsibility of the courts to treat all litigants which or who come before them on a fair and equal basis. This, of course, applies to insurance companies. It is therefore incumbent on courts to view the facts objectively and, where appropriate, to preclude obviously collusive or contrived claims from moving forward. This action presents just such a case where counsel for an injured party refuses to communicate or negotiate following a good faith offer by an insurer and after dodging information requests via vague responses by office staff, brings an action for bad faith.

As one knowledgeable author on the subject of bad faith claims has confirmed, no bad faith claim exists as a matter of law where a “claimant [has] failed to respond to [an] insurer’s attempts to settle claims within the policy limits. Thus, the courts have properly, effectively, and firmly rejected attempts to justify bad faith claims based on either arbitrary or unrealistic time deadlines, or in response to settlement offers, with which compliance is impossible, or which were not made in a good faith attempt to reach a resolution of the claim.” Rutledge R. Liles, Florida Insurance Bad Faith Law: Protecting Businesses and You, 85 Fla. Bar J. 9 (Mar. 2011) (citing Cardenas v. Geico Cas. Co., 760 F.Supp.2d 1305 (M.D.Fla.2011); Boateng v. Geico Gen. Ins. Co., No. 10-CIV-60147, 2010 WL 4822601 (S.D.Fla. Nov. 22, 2010); Contreras v. U.S. Sec. Ins. Co., 927 So.2d 16 (Fla. 4th DCA 2006) (where the claimant would only agree to release one of two insured in return for payment of policy limits, no bad faith as a matter of law in insurer’s favor to accept that offer)).

As deeply sympathetic as this case is and as in need of a deep pocket as it is, I simply cannot agree that the facts support a bad faith claim. I would reverse on this ground alone.

      . § 624.155, Fla. Stat. (2002).

      . For example, the Estate was to indemnify and hold harmless UAIC, "its heirs, assessors [sic] and assigns” from and against an assortment of other claims or liens, including "any and all other Insurer's claims or subrogated liens.” The release included a recital that the personal representative of the estate was "of lawful age” and that the release was to bind “any heirs, executors, administrators, successors and assigned [sic]” as against UAIC, "their agents, servants, successors, heirs, executors, administrators and all other persons, firms, corporations, association [sic] or partnerships of and from any and all claims, actions, causes of action, demands, rights damages [sic], costs, loss of service, expenses and compensation whatsoever” including any "known and unknown, foreseen and/or unforeseen” injuries and damage resulting or to result from "the accident, casually [sic] or event” identified by date and location.

      . Boston Old Colony Ins. Co. v. Gutierrez, 386 So.2d 783, 785 (Fla.1980), makes this explicit — "For when the insured has surrendered to the insurer all control over the handling of the claim, including all decisions with regard to litigation and settlement, then the insurer must assume a duty to exercise such control and make such decisions in good faith and with due regard for the interests of the in-sured_” Id. at 785 (emphasis supplied).

      . Also, threshold authentication of a bilateral contract such as the assignment can be accomplished by either party to the document. The personal representative’s testimony, as one of two signators, was “evidence sufficient to support a finding that the matter in question is what its proponent claims.” § 90.901, Fla. Stat. (2009). "Before a writing with claimed juridical effect may be received, some showing of the authorship, and the authority to execute the instrument will be required. But courts have increasingly adopted a very practical approach, particularly where there is no indication that the records at issue are not what they purport to be.” Ramirez, Florida Evidence Manual, Second Ed., § 90.901.1 [b] at 9-9 (citing Mims v. Old Line Life Ins. Co. of Am., 46 F.Supp.2d 1251, 1260 (M.D.Fla.1999)) (emphasis provided).

      . "I cannot join in the majority's approval of what I conclude is a created — rather than a real — bad faith claim.” Berges, 896 So.2d at 685 (Wells, J., dissenting).

      . The two sides of the debate have been argued in two recent articles. See Gwynne A. Young and Johanna W. Clark, The Good Faith, Bad Faith, and Ugly Set-up of Insurance Claims Settlement, 85 Fla. Bar J. 8 (Feb. 2011), and Rutledge R. Liles, Florida Insurance Bad Faith Law: Protecting Businesses and You, 85 Fla. Bar J. 8 (Mar. 2011).

      .Although the statement attached to the check indicated that it was for "all claims” the cover letter clearly stated that the check was for "the bodily injury portion of our policy.”

      . In fact, although the car that Levine was driving was titled in his name, it was insured by USAA under a policy held by his wife, Tracy Howard, who made a claim with USAA and was paid $17,500. USAA subsequently sought and received subrogation from United on this claim.

      . Rutledge R. Liles, Insurance Bad Faith: The "Setup Myth,” 77 Fla. BJ. 18, 22 (2003) ("Rutledge R. Liles received his B.A. (1964) from Florida State University and his J.D. (1966) from the University of Florida College of Law. He is a board certified civil trial lawyer with more than 36 years of experience. He has served as president of both the Jacksonville Bar Association and The Florida Bar and is a fellow in the American College of Trial Lawyers and the American Bar Foundation.").


source: Caselaw Access Project

author: LaROSE, Judge.

license: Public Domain

text:
    McDONALD’S RESTAURANTS OF FLORIDA, INC., Petitioner, v. Jane DOE; J & I Management Company, Inc.; Constance Molnar; Michele Salerno; Juan Vazquez; and J.V. & Sons, Inc., Respondents. McDonald’s Corporation, Petitioner, v. Jane Doe; J & I Management Company, Inc.; Constance Molnar; Michele Salerno; Juan Vazquez; and J.V. & Sons, Inc., Respondents.
    Nos. 2D11-619, 2D11-620.
    District Court of Appeal of Florida, Second District.
    March 9, 2012.
    Rehearing Denied April 12, 2012.

      Anthony J. Russo and Ezequiel Lugo of Butler Pappas Weihmuller Katz Craig, LLP, Tampa; and F. Bryant Blevins and Gilda G. Romano of Butler Pappas Weih-muller Katz Craig, LLP, Miami, for Petitioners McDonald’s Restaurants of Florida, Inc., and McDonald’s Corporation.
    Jeffrey E. Appel of Appel Law Group, Lakeland, for Respondent Jane Doe.
    No appearance for Respondents J & I Management Company, Inc., Constance Molnar, Michele Salerno, Juan Vazquez, and J.V. & Sons, Inc.
   LaROSE, Judge.

McDonald’s Restaurants of Florida, Inc., and McDonald’s Corporation each petition for a writ of certiorari. They seek review of nonfinal orders compelling production of documents and other discovery. We have jurisdiction. See Fla. R.App. P. 9.030(b)(2)(A). McDonald’s alleges that the sought-after discovery is protected as trade secrets, see § 90.506, Fla. Stat. (2010) (privilege with respect to trade secrets), or is not relevant or necessary to the litigation. We grant the petitions.

This is a premises liability case. Jane Doe was an employee of J & I Management Company, Inc., a management company for a McDonald’s franchisee, J.V. & Sons, Inc. Ms. Doe alleges that J & I and McDonald’s are liable for an assault on Ms. Doe by another J & I employee. At its crux, Ms. Doe’s theory is that McDonald’s, as franchisor, had some duty to prevent the assault.

The alleged assault occurred at a McDonald’s restaurant in Largo. McDonald’s Restaurants of Florida owns the property on which the restaurant is located. In its answer to the complaint, it denied that it was a franchisor. It denied further that it had any contract with or control over the franchisee, J.V. & Sons, Inc.

McDonald’s Corporation is the franchisor of the restaurant and has a franchise contract with J.V. & Sons, Inc. McDonald’s Corporation denied any involvement in the hiring, retention, or evaluation of J & I employees.

Ms. Doe seeks damages from McDonald’s on theories of actual agency, apparent agency, and negligence. During discovery, she sought production of various manuals, including the operation and training manual referenced in the franchise agreement between McDonald’s and J.V. & Sons, Inc., to prove that McDonald’s controlled its franchisees.

The operation and training manual includes chapters on food safety and preparation, human resources, and security. The chapters potentially relevant to Ms. Doe’s case, those on human resources and security, apply only to restaurants operated by McDonald’s Corporation. Franchisees may develop and implement their own human resource and security policies. The franchise agreement specifically provides that franchisees are not authorized to act as McDonald’s Corporation agents for any purpose. The franchisee retains control over the restaurant’s day-to-day operations.

McDonald’s Corporation produced portions of the operation and training manual. The trial court denied Ms. Doe’s motion for sanctions because McDonald’s Corporation did not produce the entire manual. The trial court did find that the sought-after discovery contained trade secrets; however, it also ruled that the items were relevant to Ms. Doe’s ability to prove negligence and apparent agency. The trial court denied McDonald’s emergency motion for a protective order and directed that the sought-after discovery be made available, directing the parties to “enter into a confidentiality agreement.”

McDonald’s argues that Ms. Doe’s request for production should focus on issues of hiring and security. The order compelling production of all “subjects, items[,] and tools” is overbroad. As McDonald’s aptly notes in their briefs, “Doe cannot show [that McDonald’s was] responsible for a[n] ... assault just because it requires the [franchisee to follow uniform procedures for troubleshooting the milkshake machine or preparing a hamburger.”

Ms. Doe argued that “each and every detail of control over the franchise through the operations and training manual and all of the subjects], items[,] and tools contained therein are relevant and should be produced.” But, Ms. Doe’s counsel conceded below that “[a] lot of the things are not necessary but I would want them for the trial to parade in front of the jury.”

“Certiorari review of a discovery order is appropriate ‘when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.’ ” Diaz-Verson v. Walbridge Aldinger Co., 54 So.3d 1007, 1009 (Fla. 2d DCA 2010) (quoting Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995)). Disclosure of information, including material protected by privilege, trade secrets, or work product, can result in irreparable harm. Diaz-Varson, 54 So.3d at 1009. Relevance, however, is always the polestar. Id. Compelled disclosure through discovery must be limited to items necessary for a court to determine contested issues. Id.

We already observed that McDonald’s Restaurants of Florida is the property owner and has no franchise agreement with J.V. & Sons, Inc. Nothing suggests that McDonald’s Restaurants of Florida directs the franchisee or its management company on issues regarding hiring and security. Ms. Doe shows no relevance as to this petitioner; the order is a departure from the essential requirements of law as to this petitioner. See id.

As to McDonald’s Corporation, the trial court ordered production of potential trade secrets information without conducting an in camera review of all the items which included DVDs and various other manuals. Apparently, the franchisee does not even possess some of these items. They, too, may not be relevant.

To the extent that the trial court ordered production of trade secrets documents that it failed to review in camera, the order compelling production departs from the essential requirements of law. See Summitbridge Nat’l Invs. LLC v. 1221 Palm Harbor, L.L.C., 67 So.3d 448, 450 (Fla. 2d DCA 2011). There, we concluded that

the circuit court departed from the essential requirements of law by ordering disclosure of the information without conducting an in camera review to determine whether the information is a trade secret and, if so, whether the borrowers have shown a reasonable necessity for the information and whether safeguards are required to prevent its unnecessary dissemination. The jurisdictional threshold for certiorari review is satisfied because “the disclosure of trade secrets creates the potential for irreparable harm.” Ameritrust Ins. Corp.[ v. O’Donnell Landscapes, Inc.], 899 So.2d [1205,] 1207 [ (Fla. 2d DCA 2005) ].

Id. at 450-51. “An order requiring disclosure of trade secrets may cause irreparable injury that cannot be corrected on appeal; the disclosure lets the ‘cat out of the bag.’” Capital One, N.A. v. Forbes, 34 So.3d 209, 212 (Fla. 2d DCA 2010) (citing Am. Home Assurance Co. v. Vreeland, 973 So.2d 668, 671 (Fla. 2d DCA 2008)). Indeed, Ms. Doe’s concession that many of the items were show pieces for trial suggests a fishing expedition. See Grooms v. Distinctive Cabinet Designs, Inc., 846 So.2d 652, 655 (Fla. 2d DCA 2003) (reiterating “that rule allowing party to request production is not designed to afford [an] avenue to pry into adversary’s business or to go on fishing expedition to uncover business methods, confidential relations, or other facts pertaining to business” (citing Inrecon v. Vill. Homes at Country Walk, 644 So.2d 103, 105 (Fla. 3d DCA 1994))).

We recognize that discovery of irrelevant materials does not necessarily cause irreparable harm. See Vreeland, 973 So.2d at 671. Here, however, the orders are overbroad, void of solicitude for trade secrets, and lack a showing of need by Ms. Doe. Our concern is heightened by Ms. Doe’s apparent theory that a franchisor is a guarantor or insurer of every act of a franchisee or its management company. See Mobil Oil Corp. v. Bransford, 648 So.2d 119, 120 (Fla.1995) (explaining that franchisor creates “an agency relationship with a franchisee if, by contract or action or representation, the franchisor has directly or apparently participated in some substantial way in directing or managing acts of the franchisee”); Madison v. Hollywood Subs, Inc., 997 So.2d 1270, 1271 (Fla. 4th DCA 2009) (holding that where day-to-day operations were within sole control of the franchisee no agency relationship existed with franchisor). “[I]t is the right of control, not actual control or descriptive labels employed by the parties, that determines an agency relationship.” Hickman v. Barclay’s Int’l Realty, Inc., 5 So.3d 804, 806 (Fla. 4th DCA 2009) (citing Parker v. Domino’s Pizza, Inc., 629 So.2d 1026, 1027 (Fla. 4th DCA 1993)).

Ms. Doe relies on Parker in arguing that an agency relationship made the discovery documents relevant. But, Parker was decided based on a franchise agreement containing a “veritable bible” for overseeing the restaurant’s operation. Id. at 1029. We are not persuaded that the facts in Parker are similar to those here. We are thus guided by the Mobil Oil and Madison holdings, particularly where discovery, relevancy, and the trade secrets privilege are at stake. Here, the franchisee may develop and implement its own human resource and security policies. The franchise agreement prohibits the franchisee from acting as McDonald’s Corporation agents for any purpose, and it provides that the franchisee retains control over its day-today operations.

Finally, the trial court’s discovery order was deficient in that it failed to specify findings to support its determination that Ms. Doe demonstrated reasonable necessity for production despite the existence of trade secrets. See KPMG LLP v. State Dep’t of Ins., 833 So.2d 285, 286 (Fla. 1st DCA 2002).

Petitions granted; orders quashed.

CASANUEVA and DAVIS, JJ„ Concur.

      . Unless the context demands otherwise, for convenience, we will refer to the petitioners collectively as McDonald’s.

      . J.V. & Sons, Inc., produced the franchise agreement and relevant portions of the operation and training manual.


author: FERNANDEZ, J.

text:
    The STATE of Florida, Appellant, v. D.H., a juvenile, Appellee.
    No. 3D10-3157.
    District Court of Appeal of Florida, Third District.
    March 14, 2012.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Assistant Public Defender, for appellee.
    Before WELLS, C.J., and SHEPHERD and FERNANDEZ, JJ.
   FERNANDEZ, J.

The State of Florida appeals the trial court’s dismissal on speedy trial grounds of its delinquency petition filed against appellee D.H. We reverse because the trial court prematurely dismissed the petition and did not afford the State an opportunity to bring D.H. to trial within the fifteen-day recapture period following the filing of D.H.’s motion for discharge.

The State arrested D.H. on August 4, 2010. It is undisputed that the ninety-day speedy trial period expired on November 2, 2010. At a hearing held on October 20, the State raised the speedy trial date. In response to a question from the court, the State responded that the speedy trial deadline was November 2. The court set the case for trial on November 17, 2010, sua sponte adding a fifteen-day recapture period to the speedy trial deadline.

On November 8, 2010, D.H. filed a Motion to Discharge. The court held a hearing on the motion on November 16, 2010. The State did not object to the lateness of the hearing, but the State argued that Florida Rule of Juvenile Procedure 8.090 affords the State and the court ten days from the date of hearing — i.e. until November 26 — to bring the case to trial. The court set the trial for the next day.

The next morning, the State was not ready to proceed. It moved for an extension of the speedy trial period and reconsideration of an earlier ruling in which the court charged a continuance to the State for its failure to produce a report. The court denied the State’s motion for extension of the speedy trial rule, and granted the motion for discharge.

The State argues on appeal that the court erred when it dismissed the petition before the State had the opportunity to proceed to trial within the ten-day recapture period provided for in rule 8.090(m)(3). We agree.

Florida Rule of Juvenile Procedure 8.090 governs speedy trials in juvenile cases. Subsection (b) of rule 8.090 provides that if an adjudicatory hearing has not commenced within ninety days of the date a juvenile is taken into custody, the respondent shall be entitled to the appropriate remedy as set forth in subsection (m). Subsection (m)(3) provides that “unless the court finds that one of the reasons set forth in subdivision (d) exists, [the court] shall order that the respondent be brought to trial within 10 days.”

In this case, D.H. filed his motion to discharge on November 8, 2010. The court was required to bring the respondent to trial no later than November 23, 2010. See State v. J.G., 807 So.2d 748, 749 (Fla. 4th DCA 2002) (stating that the State has one fifteen-day period to bring a juvenile to trial). D.H. was brought to trial on November 17-nine days after the filing of the motion for discharge. This is well within the fifteen-day period from the filing of the motion for discharge.

Consequently, we vacate the order of dismissal and remand the case for further proceedings. On remand, the State has ninety days from the date of the issuance of this Court’s mandate to bring D.H. to trial. See Fla. R. Juv. P. 8.090(j).

Reversed and remanded with directions.

      . Florida Rule of Juvenile Procedure 8.090(m) requires that a motion for discharge in a juvenile case must be heard within five days of filing. The failure of a court to hold a hearing on the motion is harmless if the respondent is brought to trial within fifteen days from the filing of the motion for discharge. State v. D.O., 56 So.3d 114, 115 (Fla. 3d DCA 2011).

      . This Court’s holding on the motion for discharge renders moot the denial of the State’s motion for extension of the speedy trial period, which we believe the State meritoriously argued on the day of trial and the court denied.


author: KHOUZAM, Judge.

text:
    Michel ESCARMENT, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-3241.
    District Court of Appeal of Florida, Second District.
    April 11, 2012.
   KHOUZAM, Judge.

Michel Escarment appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The postconviction court denied Esearment’s motion as untimely. We affirm. See Barrios-Cruz v. State, 63 So.3d 868 (Fla. 2d DCA 2011). As in Barrios-Cruz, 63 So.3d at 870, we hold that Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), does not apply retroactively in post-conviction proceedings, and we certify to the Florida Supreme Court the following question of great public importance pursuant to Florida Rule of Appellate Procedure 9.030(a)(2)(A)(v):

SHOULD THE RULING IN Padilla v. Kentucky, — U.S. -, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010), BE APPLIED RETROACTIVELY IN POSTCONVICTION PROCEEDINGS?

Affirmed.

DAVIS and KELLY, JJ., Concur.


author: DAVIS, Judge.

text:
    Kimberly MARTIN, Appellant, v. Darrell L. BRUBAKER, Appellee.
    No. 2D11-572.
    District Court of Appeal of Florida, Second District.
    April 20, 2012.
    Rehearing Denied May 22, 2012.

      Nicholas A. Shannin of Page, Eichen-blatt, Bernbaum & Bennett, P.A., Orlando, and Gregory P. Abaray of Law Offices of Allen & Abaray, P.A., Lakeland, for Appellant.
    Robert H. Oxendine of Oxendine & Ox-endine, P.A., Tampa, for Appellee.
   DAVIS, Judge.

Kimberly Martin challenges the final judgment entered in favor of Darrell L. Brubaker in her personal injury suit and the subsequent denials of her motions for new trial and additur. Martin, the passenger in a vehicle that was struck by Brubaker’s vehicle, complained of injuries resulting from the accident. Brubaker admitted liability, and the issues of causation and damages were presented to a jury. The jury found that Brubaker’s negligence was not the legal cause of Martin’s injuries, and no damages were awarded. We affirm the jury findings as they relate to causation, but we reverse as to the finding on damages because the medical evaluations sought by Martin immediately after the accident require the award of at least some amount of damages.

At trial, Martin’s considerable expert testimony as to the nature and extent of her injuries was contradicted by Brubaker’s evidence suggesting that her problems were the result of a preexisting condition and not the result of the accident. The jury resolved this conflict in the evidence by rejecting Martin’s evidence and finding in Brubaker’s favor on the causation issue. Although Martin challenges certain evi-dentiary rulings of the trial court as they relate to the jury’s findings on causation, we find no error in these rulings and affirm the causation determination without further comment.

However, Martin also claims that the trial court erred by denying her motions for additur and new trial on damages. She maintains that Brubaker’s stipulation that it was his negligence that caused the accident combined with his failure to raise the issue of comparative negligence entitles her to past medical damages. We agree.

“Once liability is admitted in a case where the plaintiff made a reasonable trip to the emergency room, the jury must return a verdict awarding at least the minimal damages that undisputedly are not barred by the no-fault threshold.” Koletzke v. Small, 900 So.2d 752, 754 (Fla. 2d DCA 2005). It is undisputed that Martin went to Lakeland Regional Medical Center for pain in her neck and back -within a few hours after the accident. Similar to the facts in Koletzke, it is undisputed here that these initial diagnostic tests and treatments were reasonable or necessary after the accident. See id. Even with the jury’s finding in Brubaker’s favor on causation, the failure to award at least the costs of the initial medical evaluations as damages was against the manifest weight of the evidence, and the motion for new trial should have been granted. See id. at 754.

Accordingly, we reverse the final judgment as it relates to the failure to award damages and remand for a new trial in accordance with Koletzke. Because we affirm that portion of the final judgment as it relates to the jury’s finding of no causation and the trial court’s evidentiary rulings related to that issue, the new trial should be limited to the issue of damages.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and CASANUEVA, JJ., Concur.


author: VAN NORTWICK, J.

text:
    Wilson GARRETT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5357.
    District Court of Appeal of Florida, First District.
    April 27, 2012.

      Richard A. Greenberg of Rumberger, Kirk & Caldwell, P.A., Tallahassee; Michael Ufferman of the Michael Ufferman Law Firm, P.A., Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Samuel A. Perrone, Assistant Attorney General, Tallahassee, for Respondent.
   VAN NORTWICK, J.

This petition for writ of prohibition challenges the denial of a motion for discharge based on a violation of the speedy trial rule. For the reasons that follow, we grant the petition.

Petitioner was arrested on March 18, 2011, for sexual assault. On September 16, 2011, more than 175 days after his arrest, petitioner filed a notice of expiration of time for speedy trial pursuant to rule 3.191(h), Florida Rules of Criminal Procedure, and a motion for discharge pursuant to rule 3.191(n). Later that same day, the State filed an information charging petitioner with sexual battery and lewd or lascivious battery. Before that date, the State had not filed any charges against petitioner.

At a hearing on the motion for discharge, the State argued that the delay in filing the criminal charges was attributable to the defendant. The State introduced a March 25, 2011, e-mail from defense counsel to the Assistant State Attorney (ASA) which stated, “I would like to meet with you to discuss the case before you make any charging decision or take other steps.” On April 26, 2011, defense counsel wrote to the ASA stating that he was waiting on an updated medical report and reiterating his “hope” that the ASA would “hold off on any filing decision until everything available has been reviewed.” The ASA agreed that before making a filing decision, she would wait for defense counsel to provide the updated medical report. At the hearing, the ASA testified that the April 26, 2011, letter was the last communication she received from defense counsel regarding the case; however, during cross examination, the ASA reviewed her case file and discovered a letter from defense counsel with the updated medical report. The letter contained a date stamp which confirmed that it had been received by the State Attorney’s office on May 4, 2011, four months before the speedy trial period expired.

The trial court expressly found that the defendant had not waived his right to speedy trial, but nevertheless denied the motion for discharge finding that the failure to file charges during the speedy trial time period was “somewhat attributable” to the defendant citing rule 3.191(j)(2). The trial court found that the speedy trial period expired on September 9, 2011, before the State filed charges on September 16, 2011; however, the trial court excluded from the speedy trial period the days between defense counsel’s March 25, 2011, email and the May 4, 2011, letter which attached the updated medical report. The trial court added those 39 days to the 175-day speedy trial period and ruled that the speedy trial period would expire on October 18, 2011.

Petitioner now seeks a writ of prohibition. Petitioner argues that when the State fails to file charges within the 175-day period, the State is not entitled to the recapture window set forth in rule 3.191(p)(3). State v. Latundra Williams, 791 So.2d 1088, 1091 (Fla.2001); Doctor v. State, 68 So.3d 335, 336 (Fla. 1st DCA 2011). Petitioner asserts that the State failed to establish that the defendant was the cause for the delay in filing the information, relying on Bulgin v. State, 912 So.2d 307 (Fla.2005), where several defendants agreed to provide assistance to law enforcement officials who agreed that no charges would be filed until the assistance was complete. The Bulgin defendants did not waive their speedy trial rights. When they were not brought to trial within the 175-day speedy trial period, the defendants moved for discharge, which was granted by the trial court. The Florida Supreme Court concluded that the State failed to establish that the delay in charging the defendants was attributable to the defendants. Bulgin, 912 So.2d at 310.

In response, the State asserts that the failure to file formal charges was due to a delay attributable to the defendant. Fla. R.Crim. P. 3.191(j)(2). The State cites to petitioner’s request that the State delay the filing of charges until defense counsel could provide information and discuss further the circumstances surrounding the offense with the ASA. Nothing in rule 3.191 provides that the State is entitled to the recapture period, automatically, where the State fails to file an information within the time limit. The passage of time alone does not warrant automatic dismissal. The State argues that, unlike Bulgin, the State received no benefit in waiting to file the information. Instead, in the case under review it was the defendant who was the beneficiary of any delay in the filing of the information. The State asserts that the trial court properly charged the defendant with a delay of 39 days based on the defendant’s request to provide information to the ASA before the filing of formal charges.

We find that petitioner is entitled to relief. Prohibition is the “appropriate remedy to prohibit trial court proceedings where an accused has been denied his right to a speedy trial and his motion for discharge has been denied.” Lowe v. Price, 437 So.2d 142, 143 (Fla.1983). When presented with a motion for discharge, the trial court has two options: either to grant or deny the motion. It was error for the trial court to add 39 days to the speedy trial period. There is no provision in rule 3.191 to allow for the tolling of the speedy trial period for a specific number of days. Such a process would be unworkable for many reasons. Post-arrest and pretrial negotiations are common between the State and the defendant. To allow the speedy trial time to be tolled for a limited period, multiple factual issues would arise including, for example, what kind of discussion would trigger a tolling period, what level of formality would be required, when would the tolling period end and whether the mailbox rule would apply. This would be unmanageable for the courts, the prosecutors and the defendants.

Rule 3.191(a), states that a person charged with a felony shall be brought to trial within 175 days of arrest. The Florida Supreme Court has consistently held that the speedy trial period begins upon a defendant’s initial arrest. See Weed v. State, 411 So.2d 863, 865 (Fla.1982) (“[T]he date of the original arrest is the focal point for speedy trial considerations, irrespective of changes made in charges. Only in specifically delineated circumstances can the time periods be adjusted.”); see also State v. Naveira, 873 So.2d 300, 305 (Fla.2004) (citing Genden v. Fuller, 648 So.2d 1183, 1184 (Fla.1994)) (“The speedy trial period begins when a defendant is first taken into custody, not when charges are first filed.”). “[T]he speedy trial time begins to run when an accused is taken into custody and continues to run even if the State does not act until after the expiration of that speedy trial period. The State may not file charges based on the same conduct after the speedy trial period has expired.” Latundra Williams, 791 So.2d at 1091. “The speedy trial time continues to run after arrest, even when the State takes no further action.” Doctor, 68 So.3d at 336. When the State fails to file charges within the speedy trial period, the State is not entitled to the recapture window set forth in rule 3.191(p)(3). Id. (“But the state loses the benefit of the recapture provision if it neglects to file charges until after expiration of the 175-day speedy trial period”).

The decision to charge and prosecute a defendant is an executive responsibility and the State Attorney has complete discretion in deciding whether and how to prosecute. State v. Bloom, 497 So.2d 2 (Fla.1986). Rule 3.191(j)(2) provides that if the trial of the accused does not commence within the period of time established by the rule, “a motion for discharge shall be granted by the court unless it is shown that ... the failure to hold trial is attributable to the accused.... ” Generally, cases attributing a delay to the defendant concern acts which delay the start of trial. However, here, the defendant had not been charged with a criminal offense when the 175-day speedy trial period lapsed.

Both Bulgin and Andrew Williams v. State, 757 So.2d 597 (Fla. 5th DCA 2000), involved situations where defendants were arrested, cooperated with the police, and were arrested a second time on the same charges, but at no time did the defendants waive their rights to a speedy trial. See Bulgin, 858 So.2d at 1096-97. In both cases, the State failed to bring the cases to trial within 175 days of the defendants’ initial arrests. Compare Bulgin, 858 So.2d at 1096-97, with Andrew Williams, 757 So.2d at 598-99. The Bulgin court considered the situation in the context of whether or not the delay was attributable to the defendants under rule 3.191(j)(2), whereas the Andrew Williams court considered the situation in the context of whether or not the defendant was “unavailable” under rule 3.191(j)(3). The Florida Supreme Court concluded that neither exception to the rule applied. As the Florida Supreme Court noted in Bulgin,

Under the speedy trial rule, the defendant, upon being arrested, has no obligation under the rule to further assert his right to be brought to trial unless he first waives his right. The [Andrew] Williams decision correctly points out that it is the State’s responsibility to bring those arrested to trial within the times provided in the speedy trial rule.

Bulgin, 912 So.2d at 312. After the Supreme Court announced its holding in Bul-gin, the State Attorneys are well-advised to obtain a waiver of speedy trial or a stipulated extension of the speedy trial period. As noted by Michael E. Allen in West’s Florida Criminal Practice,

Bulgin provides an important strategic reminder for prosecutors. When the prosecution or law enforcement enters into a substantial assistance/deferred prosecution or trial agreement with a person who has been arrested and might later be prosecuted or tried for crimes growing out of the circumstances leading to the arrest, the prosecution should either secure a waiver of speedy trial from the person or secure a rule 3.191(i)(l) stipulated extension of the speedy trial period.

Allen, Florida Criminal Practice, § 14:13 (2011 ed.)

Here, the defendant requested that the ASA wait to file charges until an updated medical report was provided. The State Attorney could have charged petitioner at any time, whether or not the medical report was provided. It is undisputed that the updated medical report was provided to the ASA on May 4, 2011, four months before the speedy trial period ran on September 7, 2011. Accordingly, any delay was not attributable to the defendant. The speedy trial period having run before criminal charges were filed, petitioner is entitled to discharge.

PETITION GRANTED.

DAVIS, J., CONCURS; ROWE, J., concurs in result only.

      . See, e.g., State v. Bowers, 1 So.3d 1120 (Fla. 1st DCA 2009) (defendant requested a continuance before trial); Malmsberry v. State, 819 So.2d 801 (Fla. 5th DCA 2001) (the defense delayed disclosure of witnesses until seventeen days before trial); Zyla v. Cohen, 686 So.2d 603 (Fla. 3d DCA 1996) (defense counsel waited until five days before the trial date to make a document request); and Ehn v. Smith, 426 So.2d 570 (Fla. 5th DCA 1982) (substitute counsel was appointed seven weeks prior to trial).


author: EMAS, J. SCHWARTZ, Senior Judge

text:
    UNIVERSITY OF MIAMI d/b/a University of Miami School of Medicine, Leslie Caroline McLeod, M.D., Nathalie Dauphin McKenzie, M.D., Marion Frederic Colas-Lacombe, M.D., Jerry M. Gilles, M.D., Public Health Trust of Miami-Dade County d/b/a Jackson Memorial Hospital, and Hugo Gonzalez-Quintero, M.D., Appellants, v. Yulexi EXPOSITO, on behalf of and as Parent and Natural Guardian of Stephanie GONZALEZ, a minor, Appellee.
    No. 3D11-1621.
    District Court of Appeal of Florida, Third District.
    April 27, 2012.

      Fowler White Burnett and Marc J. Schleier and James D. DeChurch; R.A. Cuevas, Jr., Acting Miami-Dade County Attorney, and Eric K. Gressman, Assistant County Attorney, for appellants.
    Frank, Weinberg & Black and David W. Black and Marc A. Silverman, Plantation; Diez-Arguelles & Tejedor and Maria Teje-dor, Orlando; Barbara Green, for appellee.

      Before RAMIREZ and EMAS, JJ., and SCHWARTZ, Senior Judge.
   EMAS, J.

Appellants seek review of a summary final order of dismissal entered by the State of Florida Division of Administrative Hearings (“DOAH”) on a claim for compensation under the Florida Birth-Related Neurological Injury Compensation Plan (“NICA Plan”). In dismissing the claim, the Administrative Law Judge (ALJ) determined that the claim was time-barred, because it was filed more than five years after the birth of the child. The ALJ also reached the issue of “compensability”, determining that the claim was not compen-sable under the NICA Plan. The summary final order of dismissal contained both of these determinations.

Appellants seek review of that portion of the order which determined the claim was not compensable, contending that the ALJ exceeded her jurisdiction by reaching the compensability issue once she determined that the claim was time-barred. For the reasons which follow, we affirm, holding that, despite the untimely nature of Expo-sito’s administrative claim for compensation, the ALJ was vested with exclusive jurisdiction to determine the issue of com-pensability under section 766.304, Florida Statutes (2010).

Background and the Underlying Lawsuit

On July 11, 2005, Yulexi Expósito (“Ex-pósito”) gave birth to twin girls at Jackson Memorial Hospital. The twins were born prematurely, and one of them — baby Stephanie — weighed only 665 grams at birth.

On July 2, 2010, Expósito filed (on behalf of baby Stephanie) a medical malpractice action in circuit court against the University of Miami, the Miami-Dade County Public Health Trust (d/b/a Jackson Memorial Hospital) and several doctors involved in the birth of the twins, alleging their negligence had caused severe and permanent injuries to baby Stephanie.

Appellants moved to dismiss Exposito’s claims on the following grounds:

(1) Baby Stephanie’s “injuries may fall within the purview of the Florida Birth-Related Neurological Injury Compensation Plan (“the Plan”) as set forth in Section 766.301 et seq., Florida Statutes”;
(2) The “issue of whether a claim is compensable under the Plan must be determined exclusively by an administrative law judge in an administrative proceeding, not by a court of general jurisdiction”; and
(3) “If the administrative law judge ultimately determines that the claimant is entitled to compensation under the Plan, the claimant may not thereafter bring or continue a civil action, as such would violate the exclusiveness of remedy provisions of Section 766.303, Florida Statutes.”

On November 22, 2010, in response to the motion to dismiss, Expósito filed with DOAH a petition for benefits pursuant to section 766.301 et seq., Florida Statutes (2010), a statutory scheme known as the “NICA Plan.” In order to place into proper context the administrative petition for benefits and the subsequent administrative proceedings, we first explain the NICA Plan and the relevant statutory provisions.

The NICA Plan and Relevant Statutory Provisions

The NICA Plan was created in 1988 by the Florida Legislature in an effort to “alleviate the high costs of medical malpractice insurance for physicians practicing obstetrics.” Bennett v. St. Vincent’s Med. Ctr., 71 So.3d 828, 836 (Fla.2011). The first subsection of this statutory-scheme expresses the legislative intent:

Section 766.301. Legislative findings and intent
(1) The Legislature makes the following findings:
(a) Physicians practicing obstetrics are high-risk medical specialists for whom malpractice insurance premiums are very costly, and recent increases in such premiums have been greater for such physicians than for other physicians.
(b) Any birth other than a normal birth frequently leads to a claim against the attending physician; consequently, such physicians are among the physicians most severely affected by current medical malpractice problems.
(c) Because obstetric services are essential, it is incumbent upon the Legislature to provide a plan designed to result in the stabilization and reduction of malpractice insurance premiums for providers of such services in Florida.
(d) The costs of birth-related neurological injury claims are particularly high and warrant the establishment of a limited system of compensation irrespective of fault. The issue of whether such claim,s are covered by this act must be determined exclusively in an administrative proceeding.
(2) It is the intent of the Legislature to provide compensation, on a no-fault basis, for a limited class of catastrophic injuries that result in unusually high costs for custodial care and rehabilitation. This plan shall apply only to birth-related neurological injuries.

§ 766.301, Fla. Stat. (2010) (emphasis added).

Relevant to our discussion, the statutory scheme includes the following definitions:

“Birth-related neurological injury” means injury to the brain or spinal cord of a live infant weighing at least 2,500 grams for a single gestation or, in the case of a multiple gestation, a live infant weighing at least 2,000 grams at birth caused by oxygen deprivation or mechanical injury occurring in the course of labor, delivery, or resuscitation in the immediate postdelivery period in a hospital, which renders the infant permanently and substantially mentally and physically impaired.

§ 766.302(2), Fla. Stat. (2010) (emphasis added).

“Claimant” means any person who files a claim pursuant to s. 766.305 for compensation for a birth-related neurological injury to an infant. Such a claim may be filed by any legal representative on behalf of an injured infant; and, in the case of a deceased infant, the claim may be filed by an administrator, personal representative, or other legal representative thereof.

§ 766.302(3), Fla. Stat. (2010) (emphasis added).

The NICA plan also provides that if a claim qualifies as a “birth-related neurological injury,” the claimant’s exclusive remedy for compensation is through the NICA administrative process and the claimant is prohibited from seeking any other remedy, including an action in circuit court:

[T]he rights and remedies granted by this plan on account of a birth-related neurological injury shall exclude all other rights and remedies of such infant, her or his personal representative, parents, ... at common law or otherwise, against any person or entity directly involved with the labor, delivery, or immediate postdelivery resuscitation during which such injury occurs.... ”

Section 766.303(2), Fla. Stat. (2010) (emphasis added).

The statutory scheme establishes the nature and extent of the ALJ’s authority over these claims:

The administrative law judge shall hear and determine all claims filed pursuant to ss. 766.301-766.316 and shall exercise the full power and authority granted to her or him in chapter 120, as necessary, to carry out the purposes of such sections.
The administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensa-ble. No civil action may be brought until the determinations under s. 766.309 have been made by the administrative law judge.
If the administrative law judge determines that the claimant is entitled to compensation from the association, or if the claimant accepts an award issued under s. 766.31, no civil action may be brought or continued in violation of the exclusiveness of remedy provisions of s. 766.303.
If it is determined that a claim filed under this act is not compensable, neither the doctrine of collateral estoppel nor res judicata shall prohibit the claimant from pursuing any and all civil remedies available under common law and statutory law.

§ 766.304, Fla. Stat. (2010) (emphasis added).

The Legislature also imposed a time limitation for the filing of an administrative claim for compensation under the NICA Plan:

Any claim for compensation under ss. 766.301-766-316 that is filed more than 5 years after the birth of an infant alleged to have a biHh-related neurological injury shall be barred.

§ 766.313, Fla. Stat. (2010) (emphasis added).

In summary, and for our purposes, the NICA Plan provides that:

1. The ALJ has exclusive jurisdiction to determine the compensability or non-compensability of a claim;
2. No civil action may be brought in court until the ALJ makes a com-pensability determination under the NICA Plan;
3. In order for a claim to be “compen-sable” it must be a “birth-related neurological injury”;
4. In order for a claim to be a “birth-related neurological injury,” the infant (in a multiple birth) must weigh at least 2000 grams at birth;
5. If the ALJ determines that the claim is “compensable,” the administrative NICA Plan serves as the exclusive remedy for a claimant seeking compensation, and a claimant may not seek any remedy through a cause of action in court;
6. If the ALJ determines that the claim is “not compensable” under NICA, the claimant may pursue any and all other civil remedies; and
7. A claim for compensation, which alleges that an infant has a “brain-related neurological injury,” is barred if it is filed more than five years of the birth of the infant.

The Petition and the Administrative Proceedings

Although it was clear that a claim under the NICA Plan would not qualify as “com-pensable” (given baby Stephanie’s low birth weight), Expósito filed a petition for benefits pursuant to the statute and in response to appellants’ motion to dismiss which, as discussed earlier, raised the provisions of the NICA Plan and the exclusive jurisdiction of the ALJ to make the statutorily-required determination of compensa-bility.

In her petition for benefits, Expósito expressly acknowledged that baby Stephanie “weighed only 665 grams at the time of her birth so she does not meet the NICA requirement of 2,000 grams for a twin gestation.” Appellants sought to intervene in the DOAH case, asserting they had “a substantial interest in the outcome of the pending Petition” because “if the Administrative Law Judge determines that NICA applies to [Exposito’s] claims ”, appellants “would be entitled to statutory immunity fivm any and all civil claims brought by the Petitioner” and as such, “the civil action against [the defendants] would be dismissed.” The motions for leave to intervene were granted.

Expósito moved the DOAH to enter a summary final order of dismissal, asserting that the ALJ should find her claim was not compensable under section 766.309, because (as Expósito candidly conceded in her petition for benefits) baby Stephanie weighed less than 2,000 grams at birth and thus could not qualify for compensation under the NICA Plan.

The Florida Birth-Related Neurological Injury Compensation Association (“Association”) also moved for a summary final order and asserted Exposito’s claim was not compensable on two grounds: (1) the petition was untimely, as it had been filed more than five years after baby Stephanie’s birth, and therefore, barred by the statute of limitations set forth in the statute; and (2) baby Stephanie weighed less than the 2,000 gram minimum threshold for coverage under the statute.

The University of Miami also filed a motion with the DOAH for a summary final order. It asserted Exposito’s petition was time-barred because it was filed more than five years after baby Stephanie’s birth. However, the University specifically requested that the ALJ not make a determination of the claim’s compensability, because none of the defendants would be “raising any defense as to compensability” in the underlying litigation. Expósito responded that the determination of the claim’s compensability was a threshold issue which should be made before DOAH decided whether the petition was timely filed. More importantly, and as discussed previously, the ALJ’s determination of compensability (or more accurately, a determination of non-compensability) was a condition precedent to Exposito’s ability to maintain her cause of action in circuit court.

The DOAH entered an order determining that although the claim for compensation was untimely and barred by the statute of limitations under section 766.313, because immunity would be a defense to the civil action, the ALJ was required to make a finding as to the claim’s compensa-bility.

The case proceeded at the DOAH level and Expósito filed a renewed motion for summary final order and provided the deposition testimony of Jackson Memorial’s records custodian, who authenticated the newborn admission summary previously attached to Exposito’s motion.

On May 20, 2011, the ALJ issued a summary final order of dismissal. It found that, “as a threshold jurisdictional issue,” Exposito’s claim was indeed barred by the statute of limitations; the ALJ further found that she was nonetheless required to determine whether the claim was otherwise compensable because “Plan immunity may be a viable defense to a civil suit and the ALJ has exclusive jurisdiction to resolve whether the claim is compensa-ble.” The ALJ noted that “there is no dispute that [baby Stephanie] ... never met the threshold statutory weight requirement for either a single or multiple gestation in order to qualify for compensa-bility, and thus, recovery from NICA.” Thus, the ALJ found, the claim was not compensable.

This appeal followed.

Discussion and Analysis

There is no dispute — and never was — that baby Stephanie could not qualify for compensation under the NICA Plan, because she did not suffer a “birth-related neurological injury,” as defined by the NICA statute. This is clear, plainly and simply, because baby Stephanie weighed only 665 grams at birth, less than one-third of the required birth weight to qualify for a claim under the NICA statute.

Nevertheless, the plain language of the statute requires an ALJ to make a determination of compensability (or non-compensability) before a cause of action may be maintained in circuit court. §§ 766.303-04, Fla. Stat. (2010). This necessarily flows from the fact that the Legislature made the NICA Plan the exclusive remedy for all compensable NICA claims. If the ALJ determines a claim is compen-sable, no action may be maintained in circuit court, and the only remedies which may be sought are those administrative remedies provided under the NICA Plan. If the ALJ determines the claim is not compensable, a cause of action may be maintained in circuit court. § 766.304, Fla. Stat. (2010).

Thus the legal issue presented is whether the ALJ was authorized to make a determination of compensability after determining that Exposito’s petition for benefits was untimely filed. We look to the statutes’ plain meaning in order to determine legislative intent. Brass & Singer, P.A. v. United Auto. Ins. Co., 944 So.2d 252, 254 (Fla.2006). Two provisions of the NICA Plan’s statutory scheme serve to guide us in this determination:

First, under section 766.313 “[a]ny claim for compensation under [the NICA statute] that is filed more than 5 years after the birth of an infant alleged to have a birth-related neurological injury shall be barred” (emphasis added). Although Ex-pósito filed a form petition requesting payment of expenses as set forth in section 766.31(a), Expósito never alleged that baby Stephanie had a birth-related neurological injury; in fact, she specifically stated in her petition that baby Stephanie “weighed only 665 grams at the time of her birth so she does not meet the NICA requirement of 2,000 grams for a twin gestation.” Ex-pósito, therefore, did not even meet the definition of a “claimant” under the statute. Expósito was not seeking a determination of compensability so she could pursue her administrative remedies under the NICA Plan; to the contrary, she was seeking a determination of non-compensability so that she could continue to prosecute her previously-filed civil cause of action.

Second, the ALJ is granted “exclusive jurisdiction to determine whether a claim filed under this act is compensable,” and “[n]o civil action may be brought until the [compensability] determinations under s. 766.309 have been made by the administrative law judge.” § 766.304 Fla. Stat. (2010). And “[i]f it is determined that a claim filed under this act is not compensa-ble, neither the doctrine of collateral estop-pel nor res judicata shall prohibit the claimant from pursuing any and all civil remedies available under common law and statutory law.” Id. Thus, Expósito was entitled to pursue or continue her civil cause of action, only if she sought and obtained an ALJ determination that her claim was not compensable.

The Florida Supreme Court provides further guidance in our construction of these statutory provisions:

Because the NICA Plan provides limited remedies as a statutory substitute for common law rights and liabilities, this Court has held that the NICA statute “should be strictly construed to include only those subjects clearly embraced within its terms.”

Bennett v. St. Vincent’s Med. Ctr., 71 So.3d 828, 836 (Fla.2011) (quoting Fla. Birth-Related Neuro. Injury Comp. Ass’n v. Fla. Div. of Admin. Hearings, 686 So.2d 1349, 1354 (Fla.1997)).

The plain language of the applicable statutes evidences that only an administrative law judge is authorized to determine whether a claim is compensable or not compensable. Further, the ALJ’s determination of compensability serves as a threshold issue for any person who wishes to pursue a NICA claim; likewise, the ALJ’s determination of non-compensability is a threshold issue for any person who wishes to pursue a civil action in circuit court.

A claimant who files an untimely NICA claim does so at her own risk. Once the ALJ determines the claim is filed beyond five-year limitations period, the claimant is barred from pursuing a remedy under the NICA Plan. However, the ALJ must nonetheless reach and determine the second issue of compensability in order for the claimant to know whether she may still pursue a civil cause of action.

If the ALJ determines that the claim, though untimely, is otherwise compensa-ble, the claimant is not only prohibited from pursuing the NICA claim (time bar) but would also be prohibited from pursuing a civil action (because a finding of compensability renders a NICA claim the exclusive remedy for the claimant).

However, if the ALJ determines that the claim, though untimely, is not compen-sable, the claimant — though prohibited from pursuing the NICA claim — is free to pursue all other available remedies, including a civil action.

It would require a tortured reading of the NICA Plan to suggest that an untimely claim divests the ALJ of the authority to reach the issue of compensability, because such a construction would deprive a claimant of a determination whether she has the ability to pursue her other civil remedies.

If appellants’ argument is correct, it would mean that Exposito’s failure to timely file a patently unsupportable petition bars her ability to seek relief in a timely-filed medical malpractice action. Such an argument would encourage the filing of futile and frivolous petitions under the NICA statute. More significantly, it would effectively shorten the statute of limitations for medical malpractice actions of this type and create a chilling effect on a plaintiffs right of access to the courts. The Florida Constitution expressly provides: “The courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay.” Fla. Const. Art. I, § 21. This constitutional provision guarantees to every person the right of free access to the courts on claims seeking redress of injury, free of unreasonable burdens and restrictions. G.B.B. Investments, Inc. v. Hinterkopf, 343 So.2d 899 (Fla. 3d DCA 1977). Any ambiguities in judicial construction of a statute must be resolved in favor of, and not in restriction of, access to the courts. Id. at 901; Swain v. Curry, 595 So.2d 168, 174 (Fla. 1st DCA 1992). We conclude that “the administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensable,” section 766.304, Fla. Stat. (2010), regardless of whether that claim was timely filed.

Affirmed.

RAMIREZ, J., concurs.

SCHWARTZ, Senior Judge

(specially

concurring).

As evidenced by the fact that we have, by separate orders, granted the appellee’s motions for assessment of attorney’s fees against appellants as a sanction under Section 57.105, Fla. Stat., and Rule 9.410, Fla. RApp. P., this case is wasteful and frivolous in the extreme. I believe that it deserves only a quiet interment in the form of a PCA.

      . 665 grams is approximately 1.466 pounds.

      . Although not applicable to the instant case, the statute does provide an exception to this exclusivity provision:
      [A] civil action shall not be foreclosed where there is clear and convincing evidence of bad faith or malicious purpose or willful and wanton disregard of human rights, safety, or property, provided that such suit is filed prior to and in lieu of payment of an award under ss. 766.301-766.316. Such suit shall be filed before the award of the division becomes conclusive and binding as provided for in s. 766.311.
      § 766.303, Fla. Stat. (2010).

      . The ALJ is required to make additional determinations (not relevant to our discussion) in order for a claim to be compensable under the NICA Plan. See § 766.309(l)(a)-(d), Fla. Stat. (2010).

      .Attached to Exposito's motion was Jackson Memorial Hospital’s newborn admission summary for baby Stephanie, which plainly stated that she weighed only 665 grams at birth. Although Appellants did not formally stipulate that baby Stephanie weighed only 665 grams at birth — less than one-third of the threshold weight necessary for this infant to qualify for compensation under a NICA claim — neither did Appellants dispute this fact, reflected in the business records of Jackson Memorial Hospital, one of the appellants in this case.

      . The Florida Birth-Related Neurological Injury Compensation Association was created by the NICA statute and serves as the administrator of the NICA Plan. §§ 766.302(1), 766.303(1), and 766.315, Fla. Stat. (2010).

      . This assertion is disingenuous. First, the University had already raised the issue of compensability in the very motion to dismiss that prompted the filing of the NICA claim. More importantly, the "defense of compensa-bility” is a misnomer. Under the NICA statute, without the ALJ's determination of com-pensability, Expósito would be prohibited from proceeding with her civil cause of action. See § 766.304, Fla. Stat. (2010) ("The administrative law judge has exclusive jurisdiction to determine whether a claim filed under this act is compensable. No civil action may be brought until the determinations under s. 766.309 [which include the determination of compensability] have been made by the administrative law judge.'') (Emphasis added). By requesting the ALJ to determine only that the petition was untimely filed (and to not determine compensability), the University was in effect seeking to extinguish Exposito's ability to pursue her medical malpractice action.

      . After moving for rehearing, which was denied, appellants filed a petition for writ of mandamus with this court (Case No. 3D 11-878), seeking to compel the ALJ to dismiss Exposito’s claim or alternatively, a writ of prohibition to "prevent the ALJ from exceeding her jurisdiction by proceeding with the administrative claim and making further determinations notwithstanding the fact that Ex-posito’s claim is time-barred.” The defendants asserted that "the question of whether a claim is barred by Section 766.313 Florida Statutes is a threshold jurisdictional issue, [and thus,] the ALJ lacked the jurisdiction to make any determinations beyond that ruling and that any additional determination rendered would amount to an improper advisory opinion." This court denied appellants' requested relief.

      . This likely explains why Expósito did not file a petition for benefits under the NICA Plan before filing her malpractice claim in circuit court.

      . "Claimant” means “any person who files a claim pursuant to s. 766.305 for compensation for a birth-related neurological injury to an infant." § 766.302(3) Fla. Stat. (2010) (emphasis added).

      . Presumably, the parties in interest could enter into a stipulation that a claim is not compensable, thereby rendering unnecessary the futile act of filing an administrative petition for a claim that all parties recognize could never qualify as compensable under the NICA Plan.

      . The five-year statute of limitations under the NICA Plan is shorter than the statute of limitations for medical malpractice claims arising out of the birth or delivery of a child, which may be as long as eight years. § 95.1 l(4)(b), Fla. Stat. (2010). Furthermore, the Legislature expressly provided in § 95.1 l(4)(b) that the limitations period "shall not apply to actions for which ss. 766.301-766.316 provide the exclusive remedy.” By this language the Legislature made plain its intent to apply the five-year statute of limitations to compensable NICA claims (i.e., those claims for which NICA provides the exclusive remedy). As to those claims for which NICA is not the exclusive remedy (i.e., non-compensable claims such as Exposito's) the Legislature intended the limitations period of § 95.11 (4)(b) to apply. Appellants' argument, however, would result in application of a five-year limitations period to both com-pensable and non-compensable claims.


author: ALTENBERND, Judge.

text:
    Brent Andrew GREGG, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2351.
    District Court of Appeal of Florida, Second District.
    May 2, 2012.
    James Marion Moorman, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Ap-pellee.
   ALTENBERND, Judge.

Brent Andrew Gregg appeals the order entered in April 2011 revoking his community control and the resulting prison sentences. We affirm.

In two separate informations, Mr. Gregg was charged with several drug offenses committed in 2009. He pleaded guilty in 2010. The trial court entered judgments at that time and sentenced him to fully suspended, true split sentences that placed him on community control for two years. While on community control, Mr. Gregg violated the conditions of community control. When he admitted the violation, the trial court sentenced him to 74.85 months’ incarceration.

On appeal, the only issue Mr. Gregg raises is the constitutionality of the relevant drug statutes. This issue is pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 184 (Fla. 2d DCA), review granted, 71 So.3d 117 (Fla.2011). We conclude that Mr. Gregg was required to raise this issue in a direct appeal of his judgment when it was entered in 2010. He is not entitled to raise this issue for the first time in this appeal of the order entered on his violation of community control. In the event that the supreme court holds a relevant statute unconstitutional in Adkins, Mr. Gregg may be entitled to raise this issue in a timely filed motion for postconviction relief.

Affirmed.

KELLY and VILLANO!, JJ., Concur.


author: WHATLEY, Judge.

text:
    Anthony MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2234.
    District Court of Appeal of Florida, Second District.
    May 4, 2012.
    James Marion Moorman, Public Defender, and Julius J. Aulisio, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Diana K. Bock, Assistant Attorney General, Tampa, for Appellee.
   WHATLEY, Judge.

In this appeal of the order revoking his probation, Anthony Martin argues that the trial court erred in failing to provide written reasons for its finding that, as a violent felony offender of special concern, he poses a danger to the community. § 948.06(8)(e), Fla. Stat. (2010). However, the trial court orally pronounced a reason that is consistent with section 948.06(8)(e)(l)(c). “Written orders must conform to the oral pronouncements made in open court.” Lundy v. State, 740 So.2d 54, 54 (Fla. 2d DCA 1999).

Accordingly, we affirm the revocation of Martin’s probation but remand for correction of the written order to conform to the trial court’s oral pronouncement. See Kuczko v. State, 76 So.3d 357 (Fla. 2d DCA 2011).

Affirmed but remanded.

DAVIS and BLACK, JJ., Concur.


author: PER CURIAM.

text:
    Fred Antonio CLEVELAND, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3483.
    District Court of Appeal of Florida, First District.
    May 8, 2012.

      Nancy A. Daniels, Public Defender, and Kara Fenlon, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Dixie Daimwood, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges his convictions and sentences for felony battery and giving a false name or identification to a law enforcement officer, arguing, among other things, that the trial court denied his motion to represent himself without conducting an adequate Faretta inquiry. The State properly concedes error on this point. For this reason, we reverse. We decline to address the remaining issues, two of which are moot and two of which do not establish reversible error.

When a criminal defendant moves to discharge court-appointed counsel and represent himself, the court must inform the defendant of “the dangers and disadvantages of self-representation” and must also make an inquiry sufficient to determine whether the waiver of counsel is being made knowingly and intelligently. Faretta v. California, 422 U.S. 806, 835, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975); Brown v. State, 971 So.2d 270, 271 (Fla. 1st DCA 2008). The test governing a defendant’s motion for self-representation “is not whether the defendant is competent to represent himself adequately, but whether he is competent to make the decision to represent himself.” Brown, 971 So.2d at 271 (emphasis added). Although there is no exact formula required for a Faretta inquiry, the inquiry must be sufficient to determine whether the defendant is competent, able to understand the rights he is relinquishing, and making a free and informed decision. Neal v. State, 60 So.3d 1132, 1135 (Fla. 4th DCA 2011); see Fla. R.Crim. P. 3.111(d)(3). The failure to conduct an adequate Faretta inquiry is per se reversible error. Flowers v. State, 976 So.2d 665, 666 (Fla. 1st DCA 2008). Here, the trial court cursorily questioned Appellant’s competence to represent himself, and neglected to inquire into his competence to make the decision to do so. Consequently, we must reverse and remand for a new trial.

DAVIS, THOMAS, and RAY, JJ., concur.