text:
    Ethel METSKER, Appellant, v. CAREFREE/SCOTT FETZER COMPANY, d/b/a Carefree of Colorado, Appellee.
    No. 2D10-5867.
    District Court of Appeal of Florida, Second District.
    June 27, 2012.

      Kimberly C. Morris of Greenfelder, Mander, Murphy, Dwyer & Morris, Dade City, for Appellant.
    Daniel J. Fleming and Philip C. Mokris of Melkus, Fleming & Gutierrez, P.L., Tampa, for Appellee.
   WALLACE, Judge.

In a premises liability action brought by Ethel Metsker, the circuit court entered a final summary judgment in favor of Carefree/Scott Fetzer Company, d/b/a Carefree of Colorado (Carefree). Ms. Metsker appeals. The circuit court ruled that Carefree did not owe a duty of care to Ms. Metsker because the undisputed facts established that Carefree’s sales representative, an independent contractor, operated the premises where Ms. Metsker was injured. Because Carefree failed to establish the absence of a genuine issue of material fact concerning its control of the subject premises, we reverse. We also hold that genuine issues of material fact remain concerning whether Carefree’s sales representative was in fact an independent contractor or Carefree’s agent or employee.

I. THE FACTS

Ms. Metsker was injured on January 20, 2008, during her visit to the 2008 Florida RV SuperShow (the RV SuperShow), which was held at the Florida State Fairgrounds in Tampa. The RV SuperShow is an annual event that is open to the public. The RV SuperShow features displays of recreational vehicles and related accessories and services, together with entertainment, food, seminars, and general information about recreational vehicles and related products and services. Patrons must pay a fee for parking and an admission fee to gain entrance to the RV Super-Show grounds.

The RV SuperShow is organized, sponsored, and managed by the Florida RV Trade Association, Inc. (the FRVTA). Carefree manufactures and sells RV awning and accessory products. In May 2007, Carefree contracted with the FRVTA for three display booths at the 2008 RV Su-perShow. The “Booth Exhibitor/Vendor Space Contract” (the Booth Contract) was signed by David Jones, an employee of Dealer Resources Group (DRG), on behalf of Carefree. DRG is the company that Carefree contends was an independent contractor and not an employee or agent of Carefree.

In pertinent part, the Booth Contract prohibited Carefree from assigning or subletting its assigned booths to others. The Booth Contract also required Carefree to protect and indemnify the FRVTA against any and all losses and claims arising out of or related to any accident or other occurrence in connection with Carefree’s participation in the show. Together with the indemnity provision, the Booth Contract required Carefree to provide the FRVTA with a certificate of comprehensive general liability and automobile insurance with a limit not less than one million dollars, naming the FRVTA as an additional insured. Finally, the Booth Contract required Carefree “to keep [its] exhibits open and fully manned with proper representatives during scheduled hours on public days.”

Carefree contracted with others to provide sales services for its products. One of the entities with which Carefree contracted for sales services was DRG. In 2007, Carefree and DRG had executed a “Sales Representative Agreement” (the Sales Rep Agreement) in which Carefree appointed DRG as its sales representative for certain territories, including Florida. The Sales Rep Agreement expressly provided that DRG was an independent contractor and not an agent or employee of Carefree.

Carefree arranged for DRG to set up and staff its booth at the RV SuperShow. However, DRG was not Carefree’s only representative present at the RV Super-Show. Carefree had at least two other representatives — Wally Ford and Jerry Burhans — in the booth on its behalf at the RV SuperShow. Neither Mr. Ford nor Mr. Burhans was associated with DRG. Carefree claimed that Mr. Ford and Mr. Burhans were also independent contractors.

A metal pole fell and struck Ms. Metsker while she was seated in a booth next to the Carefree booth. Details are sketchy concerning the chain of events leading to the fall of the pole on Ms. Metsker. Carefree suggested in its motion for summary judgment “that the metal pole was an isolated center arm rafter [that was] placed upon a back wall grid” display by David Jones. Later, a person or persons unknown moved the center arm rafter from the back wall and placed it upright in the booth. Next, the same person or another person dislodged the center arm rafter from its precarious position in the booth, causing it to fall and hit Ms. Metsker on the head. She sustained serious injuries as a result of the unexpected blow. Later, DRG claimed that Wally Ford was in control of the booth when the incident occurred.

II. THE PROCEDURAL BACKGROUND

Ms. Metsker filed an action against Carefree and the FRVTA for negligence. In her complaint, Ms. Metsker alleged that “[e]mployees, agents or persons holding themselves out as the apparent agents of Carefree of Colorado constructed, operated and maintained a display booth on behalf of Carefree of Colorado at the 2008 Florida RV SuperShow” and that Carefree was “vicariously responsible for the actions of its employees, agents or apparent agents.”

In Carefree’s answer to the complaint, it admitted that it had contracted with the FRVTA for a booth in the exhibition hall of the RV SuperShow for the display of its products, but it denied any negligence and raised various affirmative defenses. Carefree also filed a third-party complaint against DRG for indemnity and contribution. In its third-party complaint, Carefree alleged that “DRG breached its duty of reasonable care by failing to properly and safely secure a metal display pole in the Carefree of Colorado exhibit booth which fell causing [Ms. Metsker’s] alleged injuries.”

After the parties had conducted discovery, Carefree moved for summary judgment. In its motion, Carefree admitted that it had rented the booth for the display of its products but asserted that it “did not construct, control, or operate the Carefree of Colorado display booth.” Instead, Carefree claimed that “DRG was acting as an independent contractor and not [as] an employee or agent” in operating the booth and that Carefree “cannot be held liable under the [d]octrine of [a]pparent [a]gen-cy” for the negligence of its independent contractor. The tidal court agreed, ruling that DRG was an independent contractor and that Carefree owed no duty of care to Ms. Metsker. Accordingly, the trial court entered a summary final judgment in favor of Carefree. This appeal followed.

III. THE STANDARD OF REVIEW

The standard of review for an order granting a motion for summary judgment is de novo and requires a two-pronged analysis. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment is proper only if (1) no genuine issue of material fact exists, viewing every possible inference in favor of the party against whom summary judgment has been entered, Huntington Nat’l Bank v. Merrill Lynch Credit Carp., 779 So.2d 396, 398 (Fla. 2d DCA 2000), and (2) the moving party is entitled to a judgment as a matter of law, Aberdeen at Ormond. Beach, 760 So.2d at 130. “If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Holland v. Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991).

IV. WHO CONTROLLED THE BOOTH: CAREFREE, DRG, OR BOTH OF THEM?

A. The Applicable Law.

At the hearing on the motion for summary judgment, Ms. Metsker argued, as she does on appeal, that Carefree owed her a nondelegable duty to keep its booth in a reasonably safe condition because it maintained control over the premises. In response to this argument, the circuit court commented, “It was Carefree’s booth but they weren’t property owners, they were squatters. They were renters like the others.” Here, the circuit court fell into error.

In a premises liability case, the issue of whether a party has a duty of care does not depend on ownership or title to the premises. Instead, the appropriate inquiry is whether the party has the ability to exercise control over the premises. The First District has summarized the applicable rule as follows:

The liability of an occupant of real property for injuries caused by an alleged dangerous defective condition on the premises depends generally upon his control of the property, regardless of whether he has title thereto, or whether he has a superior right to possession of property which is in the possession and control of another. Thus, anyone who assumes control over the premises in question, no matter under what guise, assumes also the duty to keep them in repair, and the fact that others are under a duty which they fail to perform is no defense to one who has assumed control, thereby bringing others within the sphere of danger.

Arias v. State Farm Fire & Cas. Co., 426 So.2d 1136, 1138 (Fla. 1st DCA 1983) (citation omitted); see also Lukancich v. City of Tampa, 583 So.2d 1070, 1073 (Fla. 2d DCA 1991) (“Even if the City does not own the property, if it assumed control over the property, it also assumed the responsibility to exercise the requisite degree of care toward the various classes of persons who are on the premises.” (citing Arias, 426 So.2d 1136)).

Two or more parties may share control over land or business premises. Under these circumstances, “the fact that there may be joint responsibility or control over premises does not relieve a party from responsibility. A duty, and therefore liability for breach of that duty, may rest upon more than one party[.]” Craig v. Gate Mar. Props., Inc., 631 So.2d 375, 378 (Fla. 1st DCA 1994). “In addition, the fact that more than one person is under a duty and one fails to perform is no defense to one who has assumed control.” Worth v. Eugene Gentile Builders, 697 So.2d 945, 947 (Fla. 4th DCA 1997). Thus a landowner and an independent contractor who are in charge of business premises jointly may each owe a duty to business invitees to keep the premises in a reasonably safe condition. See Improved Benevolent & Protected Order of Elks of the World, Inc. v. Delano, 308 So.2d 615, 618 (Fla. 3d DCA 1975).

The case law in Florida has required the owners or operators of business premises open to the public “to exercise reasonable care to maintain their premises in a safe condition.” Owens v. Publix Supermarkets, Inc., 802 So.2d 315, 320 (Fla.2001) (citing Everett v. Rest. & Catering Corp., 738 So.2d 1015, 1016 (Fla. 2d DCA 1999)), superseded on other grounds by § 768.0710, Fla. Stat. (2002). In 2002, the legislature codified the duty of care owed by the person or entity in control of business premises in section 768.0710. The statute provides, in pertinent part:

(1) The person or entity in possession or control of business premises owes a duty of reasonable care to maintain the premises in a reasonably safe condition for the safety of business invitees on the premises, which includes reasonable efforts to keep the premises free from transitory foreign objects or substances that might foreseeably give rise to loss, injury, or damage.

This duty of care is nondelegable. See Armiger v. Associated Outdoor Clubs, Inc., 48 So.3d 864, 876 (Fla. 2d DCA 2010); Food Lion, LLC v. Monument/Julington Assoc. Ltd. P’ship, 939 So.2d 1106, 1107-08 (Fla. 1st DCA 2006); Restatement (Second) of Torts § 344 (1965).

B. Discussion.

Here, we are called upon to decide whether Carefree established the nonexistence of any material fact concerning its possession or control of the premises where Ms. Metsker was injured. Upon a review of the record, we conclude that Carefree failed to make the required showing for summary judgment. Indeed, there are multiple facts in the record tending to establish that Carefree retained control of the booth. At the very least, these facts tend to establish that Carefree and DRG shared joint control of the booth.

First, Carefree — not DRG — rented the booth in its own name and paid the required booth rental fee. Second, the terms of the Booth Contract prohibited Carefree from assigning or subletting its booth to others. Third, the booth was identified to patrons of the RV SuperShow with a Carefree sign; there was no other name on the booth. Fourth, the only products on display in the booth belonged to Carefree; DRG did not use the booth to display any other vendor’s products. Fifth, in the Booth Contract, Carefree agreed to indemnify the FRVTA against loss and provided a certificate of insurance in a substantial amount naming the FRVTA as an additional insured. It is unlikely that Carefree would have agreed to indemnify and to provide the FRVTA with a certificate of insurance for premises over which Carefree retained no right of control. Finally, and contrary to Carefree’s argument, there is a factual dispute about whether Carefree retained control over the personnel in the booth. Carefree sent Wally Ford and Jerry Burhans — two other “independent contractors” not associated with DRG — to the RV SuperShow to assist in staffing the Carefree booth. DRG even claimed that Mr. Ford was in control of the booth when Ms. Metsker was injured. Carefree’s exercise of the right to direct the staffing of the booth tends to support an inference that it at least shared control of the booth with DRG. See Goss v. Human Servs. Assocs., Inc., 79 So.3d 127 (Fla. 5th DCA 2012) (holding that there was a genuine issue of material fact with regard to whether the operator of a group care facility or its subcontracted management/consultant company was in actual control of the facility at the time of a resident’s injury, precluding summary judgment in favor of the operator).

In light of the evidence in the record, Carefree failed to establish the absence of a genuine issue of material fact concerning its control of its booth at the RV Super-Show. And Carefree’s exclusive or joint control of the booth would give rise to a duty to keep the booth in a reasonably safe condition for the safety of business invitees such as Ms. Metsker. It follows that the circuit court erred in entering a final summary judgment in favor of Carefree.

V. DRG: INDEPENDENT CONTRACTOR, OR AGENT/EMPLOYEE?

We must still decide whether the circuit court erred in entering a summary judgment determining that DRG was an independent contractor for Carefree. In her complaint, Ms. Metsker alleged that the “[ejmployees, agents or persons holding themselves out as the apparent agents of Carefree of Colorado constructed, operated and maintained a display booth on behalf of Carefree of Colorado at the 2008 Florida RV SuperShow.” In addition, Ms. Metsker alleged that Carefree “is vicariously responsible for the actions of its employees, agents or apparent agents.” The primary thrust of Carefree’s motion for summary judgment was to take issue with Ms. Metsker’s characterization of DRG as Carefree’s employee or agent.

Ms. Metsker responded to the summary judgment motion with a memorandum in which she disputed Carefree’s position that DRG was an independent contractor, not an employee or agent. In support of her position, Ms. Metsker pointed to evidence in the record that — in her view — raised genuine issues of material fact concerning Carefree’s claim that DRG was an independent contractor. Before examining the evidence in the record, we will briefly review the law pertinent to a determination of independent contractor status.

In Cantor v. Cochran, 184 So.2d 173 (Fla.1966), the Supreme Court of Florida noted that it had previously adopted the factors discussed in the Restatement (Second) of Agency § 220 (1958) for determining whether a person acting for another is a servant or an independent contractor. The Restatement provides:

(1) A servant is a person employed to perform services in the affairs of another and who with respect to the physical conduct in the performance of the services is subject to the other’s control or right to control.
(2) In determining whether one acting for another is a servant or an independent contractor, the following matters of fact, among others, are considered:
(a) the extent of control which, by the agreement, the master may exercise over the details of the work;
(b) whether or not the one employed is engaged in a distinct occupation or business;
(c) the kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
(d) the skill required in the particular occupation;
(e) whether the employer or the workman supplies the instrumental!ties, tools, and the place of work for the person doing the work;
(f) the length of time for which the person is employed;
(g) the method of payment, whether by the time or by the job;
(h) whether or not the work is a part of the regular business of the employer;
(i) whether or not the parties believe they are creating the relation of master and servant; and
(j) whether the principal is or is not in business.

As noted in paragraph (2) of the Restatement, the list of factors to be considered is not an exclusive one. See also Harper ex rel. Daley v. Toler, 884 So.2d 1124, 1130 (Fla. 2d DCA 2004) (“The Restatement sets forth a nonexclusive list of factors that are relevant to making the judgment whether a particular relationship is an employment (servant) relationship or an independent contractor relationship^]” (emphasis added)). More important, the factors discussed in paragraph (2) are no more than examples of facts that may help to determine whether the standard stated in paragraph (1) has been met. In other words, the question of independent contractor status is not dependent on a laundry list of tests, but upon a determination of whether “a person employed to perform services in the affairs of another ... is subject to the other’s control or right to control.” Restatement (Second) of Agency § 220(1) (1958); see also T & T Commc’ns, Inc. v. State, Dep’t of Labor & Emp’t Sec., 460 So.2d 996, 998 (Fla. 2d DCA 1984) (“[I]n making a determination of employee or independent contractor status, the most important factor is the extent of control exercised by the employer.” (citation omitted)).

Carefree points to the Sales Rep Agreement between it and DRG as evidence of the latter’s independent contractor status. However, the provision in the Sales Rep Agreement stating that DRG was an independent contractor and not an agent or employee of Carefree does not end the inquiry. “[A] statement in an agreement between parties that one is an independent contractor ... is not disposi-tive of that issue. A jury may infer the existence of an agency even when both the principal and the agent deny it.” Singer v. Star, 510 So.2d 637, 640 (Fla. 4th DCA 1987) (citation omitted). Instead, “[t]he standard for determining whether an agent is an independent contractor is the degree of control exercised by the employer or owner over the agent.” Id. (quoting Nazworth v. Swire Fla., Inc., 486 So.2d 637, 638 (Fla. 1st DCA 1986)).

We agree with Ms. Metsker that evidence in the record raises genuine issues of material fact about the extent of Carefree’s control over DRG in the performance of its services. The first item is the Booth Contract between Carefree and the FRVTA. Carefree concedes that it, not DRG, was the contracting party with the FRVTA. But the Booth Contract was signed by David Jones, a DRG employee, on Carefree’s behalf. Carefree does not contend that Mr. Jones’ signature was unauthorized. The fact of Mr. Jones’ execution of the Booth Contract on Carefree’s behalf raises an inference that DRG — or Mr. Jones in his individual capacity — -was acting as an agent for Carefree instead of as an independent contractor.

Second, Ms. Metsker observes that Carefree provided the FRVTA with a certificate of liability insurance naming it as an additional insured. Carefree also agreed to indemnify the FRVTA against losses or claims arising from Carefree’s participation in the RV SuperShow. In Barnett v. Butler, 112 So.2d 907 (Fla. 2d DCA 1959), this court held that proof of insurance coverage for particular claims is admissible in evidence where such proof is necessary for the resolution of a disputed issue. In Barnett, the disputed issue was the ownership of a vehicle. Id. at 908. 'The Barnett court cited Biggins v. Wagner, 60 S.D. 581, 245 N.W. 385 (1932), in support of its holding. In Biggins, the Supreme Court of South Dakota held that the procurement by Fantle Brothers, Inc., of a policy of insurance covering Wagner, a truck driver, was material to the question of whether Wagner was an independent contractor or a servant of Fantle Brothers, Inc.:

Fantle Bros., Inc., are now taking the position that Wagner was an independent contractor for whose acts it was in no way responsible. The inquiry at once arises: Why, if not responsible for the acts of Wagner, should the company be interested in being protected by liability insurance? Is it not at least evidence in the nature of admission that the company was liable for the negligent acts of Wagner?

Id. at 387. In the case before us, one might paraphrase the South Dakota court’s inquiry as follows: Why, if not responsible for the acts of DRG, should Carefree be interested in providing a cer-tifícate of liability insurance to the RV Supershow’s sponsor and in agreeing to indemnify the sponsor for DRG’s actions? We conclude that these facts would tend to support a finding that DRG was Carefree’s agent or employee, not an independent contractor.

We also note that the facts in this case correspond with several of the factors suggested in section 220 of the Restatement for determining whether a person is acting as a servant or independent contractor. For example, a Carefree executive testified by deposition that he decided who would operate the booth and that he chose DRG to staff the booth. This executive was also responsible for shipping Carefree products directly to the venue for use in Carefree’s display. In addition, there was evidence that Carefree made the decisions about which Carefree products would be displayed at the RV SuperShow — and, in particular — the awning display of which the falling rafter formed a part. In other words, Carefree’s sponsorship, funding, and direction were essential to DRG’s attendance at the RV SuperShow. And, as noted above, there was evidence that Carefree sent at least two individuals not associated with DRG to help staff the booth, one of whom was in the booth at the time of Ms. Metsker’s injury. Thus there are genuine issues of material fact concerning who made the decisions regarding how the trade show would be staffed, who actually controlled the operation of the booth at the time of the accident, and who supplied the materials. These facts implicate considerations (2)(a), (e), and (f) of section 220. In addition, both parties are in essentially the same business — the sale of RV accessories — implicating considerations (2)(b), (h), and (j) of section 220.

After reviewing the evidence in the record, we conclude that the circuit court erred in concluding that DRG “was a true [independent [Contractor beyond any reasonable doubt.” There were multiple genuine issues of material fact bearing on whether DRG was an independent contractor or an agent. These genuine issues of material fact precluded the entry of summary judgment on this question. See Alexander v. Morton, 595 So.2d 1015, 1016-18 (Fla. 2d DCA 1992) (reversing a final summary judgment predicated on a finding that an air-conditioning installer was an independent contractor where several of the Restatement factors raised a fact question about the existence of an employer-employee relationship); Pate v. Gilmore, 647 So.2d 235, 236 (Fla. 1st DCA 1994) (reversing a final summary judgment based on a finding that a part-time stable hand was an independent contractor where several of the Restatement factors were more consistent with the status of an employee than an independent contractor); cf. Kane Furniture Corp. v. Miranda, 506 So.2d 1061, 1064-66 (Fla. 2d DCA 1987) (holding that carpet installers were independent contractors as a matter of law where only one of the Restatement factors favored the conclusion that the carpet installers were employees).

VI. CONCLUSION

The issues of responsibility for control of the booth and DRG’s status as an independent contractor remain for submission to a jury. Accordingly, we reverse the summary final judgment in favor of Carefree and remand for further proceedings.

Reversed and remanded.

KELLY and KHOUZAM, JJ„ Concur.

       The facts — which are drawn from the pleadings, the depositions on file, and the affidavits in the record — are reviewed in the light most favorable to Ms. Metsker as the nonmoving party against whom the summary judgment was entered. See Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256, 258-59 (Fla. 2002).

      . Carefree's three booths were adjacent to each other. For convenience, we will refer to Carefree’s three booths in the singular.

      . The record suggests that Mr. Burhans' wife, who is not further identified, was also present in the booth.

      . Section 768.0710 became effective May 30, 2002. Ch. 2002-285, §§ 1-2, at 2125-26, Laws of Fla. Section 768.0710 was repealed effective July 1, 2010. Ch. 2010-8, §§ 2-3, at 182-83, Laws of Fla. The legislature replaced section 768.0710 with a new section 768.0755. Ch. 2010-8, § 1, at 182, Laws of Fla.

      . We recognize that Ms. Metsker was injured while she was seated in a booth next to the Carefree booth, not in the Carefree booth itself. However, under these circumstances, Carefree may still have owed a duty of due care to Ms. Metsker. See Short v. Lakeside Cmty. Church, 700 So.2d 772, 773 (Fla. 2d DCA 1997); Johnson v. Howard Mark Prods., Inc., 608 So.2d 937, 938 (Fla. 2d DCA 1992).


source: Caselaw Access Project

author: HAZOURI, J.

license: Public Domain

text:
    Jason F. BROWN, Douglas Brown and Jacqueline F. Brown, Petitioners, v. Nya Yanitza MONTANEZ and Eduardo Gonzalez, as Co-Personal Representatives of the Estate of Yanely Gonzalez, deceased, Nya Yanitza Montanez and Eduardo Gonzalez, individually and as parents and natural guardians of Eduardo Gonzalez, Jr., Nya Yanitza Montanez and Eduardo Gonzalez, individually, Respondents.
    No. 4D12-920.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2012.

      Victoria L. Olds of Olds, Stephens & Harper, P.A., West Palm Beach, for petitioners.
    Susan L. Palmatier of Josephs Jack, Miami, for respondents.
   HAZOURI, J.

Petitioners Jason F. Brown (Jason), Douglas Brown, and Jacqueline F. Brown, the defendants in a wrongful death and personal injury action pending below, seek review of a nonfinal order of the circuit court which overruled their objection to the production of records of Jason’s post-accident substance abuse treatment, as to which he claimed the psychotherapist-patient privilege. Concluding that the trial court departed from the essential requirements of law, we grant the petition.

According to the complaint, on January 30, 2010, Jason was driving a 2010 Honda Accord owned by Douglas B. Brown and Jacqueline F. Brown, with their consent, when he negligently caused it to collide with the Honda Odyssey minivan being driven by Nya Yanitza Montanez, causing the death of Montanez’s infant daughter, Yanely Gonzalez; personal injury to Mon-tanez’s son, Eduardo Gonzalez, Jr.; and personal injury to Montanez herself.

The accident resulted in the filing of criminal charges against Jason. While those charges were pending, in March 2010 he was released on bond on the condition that he be transported directly to the Delray Recovery Center (the Center) and remain there, following all recommended treatment, until further order of the court. In July 2010, pursuant to another agreed order modifying bond, Jason was allowed to leave the Center and to reside with his parents in Delaware. In August 2010, he pleaded guilty and was adjudicated guilty of DUI manslaughter, DUI causing serious bodily injury, and DUI causing injury to person or property.

In April 2010, Montanez and her husband, Eduardo Gonzalez, individually, in their capacity as personal representatives of Yanely’s estate, and in their capacity as parents and natural guardians of Eduardo Jr. (collectively, Plaintiffs), filed a civil action against Jason and his parents (collectively, Defendants). The amended complaint alleged that Jason was on a crack cocaine binge at the time of the accident, and his parents knew that he had had a severe problem with substance abuse and had a very poor driving record. Count I was against Jason for Yanely’s wrongful death; counts II and III were against Jason’s father and mother, respectively, for vicarious liability for Yanely’s wrongful death; count IV was against Jason for Eduardo, Jr.’s personal injuries; counts V and VI were against Jason’s father and mother, respectively, for vicarious liability for Eduardo, Jr.’s personal injuries; count VII was against Jason for Montanez’s personal injuries; counts VIII and IX were against Jason’s father and mother, respectively, for vicarious liability for Montanez’s personal injuries; count X was against Jason for Eduardo’s loss of consortium with respect to his wife, Montanez; counts XI and XII were against Jason’s father and mother, respectively, for Eduardo’s loss of consortium with respect to his wife; count XIII was against Jason for the plaintiff couple’s loss of consortium as to Eduardo, Jr.; counts XIV and XV were against Jason’s father and mother, respectively, for the plaintiff couple’s loss of consortium as to Eduardo, Jr.; count XVI was against Jason for punitive damages; and count XVII was against Jason’s father Douglas for negligent entrustment of motor vehicle to Jason.

In September 2011, Plaintiffs served a notice of production from nonparty and subpoena duces tecum without deposition addressed to the records custodian of four institutions, one of which was the Center. With respect to the Center, they requested its complete file on Jason. Defendants objected based on relevance and privilege. In response, Plaintiffs noted that Jason had testified that he was ordered to undergo treatment there as a condition of his bond. They cited section 90.503(4)(c), Florida Statutes, which provides as follows:

(4) There is no privilege under this section:
* * *
(c) For communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or defense or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of the party’s claim or defense.

(Emphasis added.)

They also argued that a deferred prosecution agreement in which a criminal defendant seeks drug treatment can place the defendant’s mental health at issue and waive the privilege, citing Saenz v. Alexander, 584 So.2d 1061 (Fla. 1st DCA 1991) (holding that, by entering into deferred prosecution agreement consenting to disclosure of his communications with psychotherapist to his probation officer, defendant waived psychotherapist-patient privilege).

Finally, they also relied on David J. Burton, D.M.D., P.A. v. Becker, 516 So.2d 283 (Fla. 2d DCA 1987) (holding that medical records of the physician’s treatment for drug abuse were subject to disclosure in medical malpractice case, because section 397.053(2), Florida Statutes (1985), permits court to order disclosure of drug treatment records when good cause is shown).

In November 2011, Defendants served their reply to Plaintiffs’ response to objections to Plaintiffs’ notice of production to non-parties. With respect to the Center, they argued that section 90.503(4)(c) did not apply because Jason was not relying on his mental or emotional condition as an element of his defense; Jason never waived his psychotherapist-patient privilege by consenting to disclosure in writing, as was the case in Saenz; and Plaintiffs had the burden of demonstrating good cause but had failed to do so.

At the hearing on Defendants’ objections, Plaintiffs pointed out that there was a punitive damage claim against Jason, and a negligent entrustment claim against the parents. They requested the records in question in order to see if they might lead to any other relevant evidence because Jason’s mother had testified on deposition that her son did not remember anything about the accident because he suffered a concussion, and Jason had claimed he did not remember anything.

The trial court overruled Defendants’ objections citing Archbishop Coleman F. Carroll High School, Inc. v. Maynoldi, 30 So.3d 533 (Fla. 3d DCA), rev. denied, 47 So.3d 1289 (Fla.2010), and Defendants sought certiorari relief.

A discovery order that requires the production of information and records that are protected by the statutory psychotherapist-patient privilege is reviewable by cer-tiorari. Smith v. Smith, 64 So.3d 169, 170 (Fla. 4th DCA 2011).

The psychotherapist-patient privilege, described in section 90.503, Florida Statutes, protects the confidential communications between the patient and the psychotherapist and the. records of mental health treatment from disclosure to third parties. The statute specifically applies to communications and records “including alcoholism and other drug addiction, between the patient and the psychotherapist, or persons who are participating in the diagnosis or treatment under the direction of the psychotherapist.” § 90.503(2), Fla. Stat. (2011) (emphasis added).

Included within the definition of “psychotherapist,” for purposes of the privilege, are

Treatment personnel of facilities licensed by the state pursuant to chapter 394, chapter 395, or chapter 397, of facilities designated by the Department of Children and Family Services pursuant to chapter 394 as treatment facilities, or of facilities defined as community mental health centers pursuant to s. 394.907(1), who are engaged primarily in the diagnosis or treatment of a mental or emotional condition, including alcoholism and other drug addiction[.]

§ 90.503(l)(a)4, Fla. Stat. (2011) (emphasis added). In this case, the Center is licensed under chapter 397. According to the petitioners, confidential and privileged communications were made between Jason and his psychotherapists for the diagnosis and treatment of his drug addiction, falling within the privilege provided by the statute.

The statute provides for three exceptions, but we agree with the petitioners that none of them applies to Jason:

(4) There is no privilege under this section:

(a) For communications relevant to an issue in proceedings to compel hospitalization of a patient for mental illness, if the psychotherapist in the course of diagnosis or treatment has reasonable cause to believe the patient is in need of hospitalization.
(b) For communications made in the course of a court-ordered examination of the mental or emotional condition of the patient.
(c) For communications relevant to an issue of the mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of his or her claim or defense or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of the party’s claim or defense.

§ 90.503(4)(a)-(c), Fla. Stat. (2011).

The party seeking the privileged documents has the burden of proving that an exception to the privilege applies. E.g., Cruz-Govin v. Torres, 29 So.3d 393 (Fla. 3d DCA 2010). Here, Plaintiffs’ position is based on subsection 90.503(4)(c), which provides an exception to the privilege when a party “relies upon the condition as an element of the party’s claim or defense,” in that Jason’s mother and Jason both testified that Jason had no recollection of the accident. But this testimony does not fall within the exception; additionally, Jason’s mother’s testimony would not waive Jason’s privilege because it is the patient who must rely on the condition for a claim or defense. Subsections (4)(a) and (4)(b) clearly do not apply.

As for the treatment being a condition of Jason’s bond, Defendants point out that in Viveiros v. Cooper, 832 So.2d 868, 869 (Fla. 4th DCA 2002), this court held the fact that the petitioner’s treatment was pursuant to a plea agreement did not make the treatment a court-ordered examination pursuant to subsection 90.503(4)(b).

Neither can the party seeking discovery pierce the privilege by filing a claim that makes an issue of the opposing party’s mental health. Id.; Cruz-Govin v. Torres, 29 So.3d at 396 (“The statutory exception applies when the patient, not the opposing party who seeks the privileged information, places his mental health at issue.”).

Plaintiffs’ reliance on the Saenz case is misplaced; there, the criminal defendant waived his privilege in writing, but Jason has not done so. Nor was he sent to the Center as part of a plea agreement or a deferred prosecution agreement; nor was he advised that his communications with psychotherapists at the Center might be disseminated to any third party. He was sent there as a condition of his bond.

Finally, we find the Archbishop Coleman F. Carroll case is not on point. In that case, the parents recovered a verdict against a parochial school and the diocese after their seventeen-year-old son was injured driving into a tree after consuming alcohol at an end-of-school-year party at a private residence. One of the issues in the appeal by the school and the diocese was that the trial court had abused its discretion in excluding records and testimony of the student’s significant and recent treatment for alcohol abuse, and the court concluded that it had: “The prior treatment and Gabriel’s admissions regarding his abuse of alcohol were directly relevant to, and probative of, the specific knowledge of the parents, their level of supervision of Gabriel, his access to a motor vehicle, and the jury’s allocation of comparative fault.” 30 So.3d at 545 (emphasis added).

That case is distinguishable because there, the plaintiff parents had the ability to waive their son’s privilege on his behalf by relying on their child’s mental state of intoxication at the time of the incident as an element of their claim. It is also distinguishable in that the case involved the production of prior treatment records, which were relevant to prove the parents’ knowledge of their child’s substance abuse problem, while here the treatment occurred after the motor vehicle accident at issue.

Post-accident treatment records were at issue in Cruz-Govin v. Torres, a case which is very similar to the instant one. Following an automobile accident in which Torres was injured and his wife was killed, Torres sued Cruz-Govin, the driver of the other vehicle, and Cruz-Govin’s father, the owner of that vehicle. Later Torres learned that, after the accident, Gruz-Go-vin was admitted to a drug rehabilitation facility; Torres requested the post-accident treatment records. Cruz-Govin and his father objected, but the trial court overruled their objections. 29 So.3d at 394-95.

Torres, who had the burden of establishing an exception to the psychotherapist-patient privilege, argued that the 90.503(4)(c) exception applied because of the allegations of his amended complaint, stating that Cruz-Govin was under the influence of drugs, alcohol, prescription medication and/or over-the-counter medication at the time of the accident, impairing his ability to drive in a safe manner; the defendants’ denial of this allegation in their answer; and other discovery supporting an inference that Cruz-Govin was under the influence of illegal substances at the time of the accident. Id. at 395.

But the Third District found the allegations and the inference did not abrogate the privilege because the patient — Cruz-Govin — did not place his mental condition at issue merely by denying Torres’s allegations, or by his own defenses, such as comparative negligence, unforeseeability, failure to use a seat belt, and third-party negligence. Because Torres did not meet his burden, the court granted the petition and quashed the challenged discovery orders. Id. at 396.

We likewise quash the order on review, insofar as it pertains to nonparty Delray Recovery Center.

In the event the petition was granted, Plaintiffs have asked this court to provide for the trial court to conduct an in camera inspection of the records sought to be produced. While Defendants argue that the Center’s records are unequivocally privileged by section 90.503, and their production cannot be compelled unless one of the statutory exceptions applies, citing State v. Roberson, 884 So.2d 976 (Fla. 5th DCA 2004), rev. denied, 895 So.2d 406 (Fla.2005), we recognize there is authority that substance abuse treatment records may be the subject of an in camera inspection. Viveiros v. Cooper, 882 So.2d 868, 870 (Fla. 4th DCA 2002); Appel v. Quilantang, 629 So.2d 1004 (Fla. 4th DCA 1993).

However, we decline to provide for in camera inspection in this case because Plaintiffs have not demonstrated any likelihood that the records will be relevant to any issue in the case. See generally Katlein v. State, 731 So.2d 87, 90 (Fla. 4th DCA 1999) (explaining that, in determining whether there was good cause to disclose Baker Act records — which also are subject to in camera inspection and disclosure when good cause is shown, § 394.4615, Fla. Stat. — the party seeking the records first had to make a threshold showing that the privileged records were likely to contain relevant evidence, a “good faith factual basis,” not mere grasping and not a fishing expedition) (citing People v. Gissendanner, 48 N.Y.2d 543, 423 N.Y.S.2d 893, 399 N.E.2d 924 (1979)).

Petition Granted.

MAY, C.J., and TAYLOR, J., concur.

      . Section 397.053 was repealed by chapter 93-39, section 49, Laws of Florida, effective Oct. 1, 1993. However, the 2011 version of the statutes contains section 397.501, which provides for the rights of clients receiving substance abuse services. Subsection 397.501(7)(a), Florida Statutes (2011) (emphasis added), provides for the confidentiality of records, with the following exceptions:
      Such records may not be disclosed without the written consent of the individual to whom they pertain except that appropriate disclosure may be made without such consent:

        1. To medical personnel in a medical emergency.
      2. To service provider personnel if such personnel need to know the information in order to carry out duties relating to the provision of services to an individual.
      3. To the secretary of the department or the secretary’s designee, for purposes of scientific research, in accordance with federal confidentiality regulations, but only upon agreement in writing that the individual's name and other identifying information will not be disclosed.
      4. In the course of review of service provider records by persons who are performing an audit or evaluation on behalf of any federal, state, or local government agency, or third-party payor providing financial assistance or reimbursement to the service provider; however, reports produced as a result of such audit or evaluation may not disclose names or other identifying information and must be in accordance with federal confidentiality regulations.
      5.Upon court order based on application showing good cause for disclosure. In determining whether there is good cause for disclosure, the court shall examine whether the public interest and the need for disclosure outweigh the potential injury to the individual, to the service provider and the individual, and to the service provider itself.

      . After the instant petition was filed, the trial court granted Plaintiffs’ motion for partial summary judgment as to Jason's liability, providing he is estopped from asserting any liability defenses. His parents are still entitled to raise affirmative defenses.


author: BLACK, Judge.

text:
    Eduardo Molina BRACERO, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-4967.
    District Court of Appeal of Florida, Second District.
    June 27, 2012.
    Eduardo M. Bracero, pro se.
   BLACK, Judge.

Eduardo Molina Bracero appeals the summary denial of his motion for postcon-viction relief filed May 18, 2011. The Florida Supreme Court transferred the motion to the Tenth Judicial Circuit Court in and for Polk County for consideration as a motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. The postconviction court denied the motion as untimely. We reverse.

After his direct appeal, this court remanded the case and ordered that Bracero be resentenced. See Bracero v. State, 10 So.3d 664, 665 (Fla. 2d DCA 2009). In his motion, Bracero alleged that the court re-sentenced him on October 1, 2009. Based on this date, his judgment and sentence became final on October 31, 2009, and the two-year window for filing a rule 3.850 motion expired on October 31, 2011. Assuming his allegations are true, the motion filed on May 18, 2011, was timely. See Franqui v. State, 59 So.3d 82, 95 (Fla. 2011) (holding that the court must accept the movant’s factual allegations as true in a rule 3.850 motion to the extent they are not refuted by the record). The postcon-viction court has not attached portions of the record supporting its determination that Bracero’s motion was untimely filed. Accordingly, we remand for further proceedings and if it becomes apparent on remand that the motion was timely filed then the court shall consider the merits of the motion.

Reversed and remanded.

NORTHCUTT and KHOUZAM, JJ., Concur.


author: PER CURIAM.

text:
    Mark D. HOLLINGSWORTH, Jr., Appellant, v. Judy C. HOLLINGSWORTH, Appellee.
    No. 4D11-2615.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2012.
    Elizabeth McHugh of Rooney & Rooney, P.A., Vero Beach, for appellant.
    No appearance for appellee.
   PER CURIAM.

Appellant, Mark Hollingsworth, Jr., challenges a final judgment of dissolution. Appellant argues that the trial court erred in imputing income, in awarding permanent periodic alimony to former wife, in ■determining that the former wife’s Morgan Stanley account was a non-marital asset, and in awarding the alimony retroactive and failing to apply all credits owed to appellant. We affirm in all respects except the trial court’s failure to apply credits to appellant as against the retroactive alimony awarded.

The trial court awarded former wife retroactive alimony of $1,100 per month for an eleven-month period which totaled $12,100. The trial court also found that appellant should receive a credit of $1,353 against his alimony obligation for funds already paid to former wife during the retroactive period. Nevertheless, the final judgment required appellant to pay $12,100, the total sum of the retroactive alimony, and made no allowance for the $1,353 credit. On remand, the trial court shall amend the final order and reduce appellant’s obligation to pay retroactive alimony by the amount of the $1,353 credit.

Affirmed, but remanded for correction.

STEVENSON, TAYLOR and CIKLIN, JJ., concur.


text:
    STATE of Florida, Appellant, v. Gregory ROUNDTREE, Appellee.
    Nos. 4D11-980, 4D11-981, 4D11-982, 4D11-983, 4D11-984, 4D11-1098, 4D11-1121.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard Valuntas, Assistant Attorney General, West Palm Beach, for appellant.
    Howard Finkelstein, Public Defender, and Diane M. Cuddihy, Executive Chief Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Yancy v. State, 88 So.3d 1040 (Fla. 4th DCA 2012).

POLEN, GERBER and LEVINE, JJ., concur.


text:
    Michelle VANALSTINE and Matthew Vanalstine, as Co-Personal Representatives of the Estate of Charles Vanalstine, Appellants, v. PALMS WEST HOSPITAL, L.P., Alberto Marante, M.D., Sudhira Kulatunga, M.D., and Florida Pediatric Critical Care, P.A., Appellees.
    No. 4D10-4850.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2012.
    Philip M. Burlington and Nichole J. Se-gal of Burlington & Rockenbach, P.A., West Palm Beach; Barry Carothers of Scott, Harris, Bryan, Barra & Jorgensen, P.A., Palm Beach Gardens; and Helen Stratigakos of Law Office of Helen Strati-gakos, Tampa, for appellants.
    Donna M. Krusbe of Billing, Cochran, Lyles, Mauro & Ramsey, P.A., West Palm Beach, for appellee Palms West Hospital.
    Mark Hicks, Dinah Stein and Shannon Kain of Hicks, Porter, Ebenfeld <& Stein, P.A., Miami; and Fann & Petruccelli, P.A., Fort Lauderdale, for appellees Alberto Marante, M.D., Sudhira Kulatunga, M.D., and Florida Pediatric Critical Care, P.A.
   PER CURIAM.

This case arises from the death of a child. The parents sued a pharmacist and pharmacy for negligence in formulating and dispensing a prescription; they also sued various medical providers for malpractice in their treatment of the child for the condition caused by his ingestion of the prescription drugs. The parents settled with the pharmacist and the pharmacy and executed releases. The trial court granted the medical providers’ motions for summary judgment based on the wording of the releases.

We reverse. Read as a whole, the releases “expressly reserved” the right to pursue causes of action against the medical providers for the damages resulting from their negligence when they settled with the pharmacy and pharmacist. Cf. Broz v. Rodriguez, 891 So.2d 1205, 1208 (Fla. 4th DCA 2005) (holding that where release against initial tortfeasor failed “to expressly reserve any rights against the subsequent tortfeasor physician,” the plaintiff was barred from further pursuing her claim against the subsequent tortfeasor); see Baudo v. Bon Secours Hospital/Villa Maria Nursing Center, 684 So.2d 211 (Fla. 3d DCA 1996).

POLEN, GROSS, JJ., and BLOOM, BETH F., Associate Judge, concur.


text:
    Marvin JONES, Appellant, v. Alexsandra JONES, Appellee.
    No. 4D11-4006.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2012.
    Adam B. Swickle and Joseph A. Costello of Kelley, Kronenberg, Gilmartin, Fichtel, Wander, Bamdas, Eskaylo & Dunbrack, P.A., Fort Lauderdale, for appellant.
    Howard S. Friedman and Lisa K. Bennett of Fischler & Friedman, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

Marvin Jones appeals the trial court’s order denying his exceptions to a magistrate’s report, a non-final, non-appealable order. We therefore do not have appellate jurisdiction to review this order under direct appeal. See Murison v. Coral Park Props., Inc., 64 So.3d 1288, 1289 (Fla. 4th DCA 2011) (“An order denying exceptions to a magistrate’s report is a non-final order and not directly appealable.”). We also conclude that the appellant is not entitled to relief were we to treat his appeal as a petition for writ of certiorari. See Fla. R.App. P. 9.040(c).

Dismissed.

STEVENSON, TAYLOR and CIKLIN, JJ., concur.


text:
    R.B., the Mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D12-567.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2012.
    Antony P. Ryan, Regional Counsel and Crystal K. MeBee, Assistant Regional Counsel of Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Hillary S. Kambour, Taveras, for appel-lee, Guardian Ad Litem Program, and Jeffrey Dana Gillen, West Palm Beach, for appellee, Department of Children and Families.
   PER CURIAM.

The mother appeals an order terminating her parental rights to her three older children. She argues the trial court’s findings that termination of her parental rights was in the manifest best interest of the children, as well as the least restrictive means to protect the children, are not supported by competent, substantial evidence. She also argues the trial court erred in basing the termination on her failure to comply with the case plan. We disagree with all three arguments and affirm.

Section 39.806(l)(e)2, Florida Statutes (2010), provides for the termination of parental rights when the children have been adjudicated dependent and “[t]he parent or parents have materially breached the case plan .... ” § 39.806(l)(e)2, Fla. Stat. (2010). Under section 39.806(l)(e)l, failure to “substantially comply with the case plan ... constitutes evidence of continuing abuse, neglect, or abandonment.” § 39.806(l)(e)l, Fla. Stat. (2010). Here, the trial court concluded that the Department of Children and Families had met the burden of establishing by clear and convincing evidence that the mother “continues to abuse, abandon and neglect her children due to her failure to substantially comply with the case plan for a period of 29 months,” and the respective fathers had abandoned the children. We have reviewed the record; the trial court’s factual findings and conclusions are supported by competent, substantial evidence. T.C. v. Dep’t of Children & Families, 961 So.2d 1060, 1061 (Fla. 4th DCA 2007).

The trial court further found that termination of the mother’s parental rights was the least restrictive means of protecting the children, and having weighed the relevant options, was in the children’s best interest. We also find these conclusions supported by the record and the trial court’s factual findings. We have previously affirmed the termination of her parental rights to her youngest child. R.B. v. Dep’t of Children & Families, 80 So.3d 1078, 1079 (Fla. 4th DCA 2012). We now affirm this termination order.

Affirmed.

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


text:
    STATE of Florida, Appellant, v. George T. HOLD, Appellee.
    No. 4D11-2101.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellant.
    No brief filed for appellee.
   PER CURIAM.

Affirmed. See Knipp v. State, 67 So.3d 376 (Fla. 4th DCA 2011).

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


text:
    Curtis Dewayne ANDERSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3322.
    District Court of Appeal of Florida, Third District.
    June 27, 2012.

      Curtis Dewayne Anderson, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, EMAS, and FERNANDEZ, JJ.
   PER CURIAM.

Curtis Anderson appeals the trial court’s order denying his petition for post-conviction relief. Because Anderson filed a properly sworn and timely petition, we reverse and remand.

Anderson had previously appealed the trial court’s order denying his petition to file a belated motion for post-conviction relief because it was unsworn. This Court vacated the trial court’s order and remanded for the trial court to dismiss the motion with leave for Anderson to re-file a legally sufficient motion with the proper oath within sixty days from the date the opinion became final. The opinion became final on September 12, 2011 when this Court issued its mandate. Anderson filed his petition with the proper oath on October 11, 2011. On November 22, 2011, the trial court entered an order denying Anderson’s motion for post-conviction relief. This was error because Anderson re-filed the proper petition well within the sixty days afforded by this Court’s previous opinion. Accordingly, we reverse and remand to the trial court to consider the motion for post-conviction relief. We express no opinion on the merits.

Reversed and remanded.


text:
    Demetrius AKINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2622.
    District Court of Appeal of Florida, Third District.
    June 27, 2012.
    Carlos J. Martinez, Public Defender, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Richard L. Polin, Chief Assistant Attorney General, for appellee.
    Before SHEPHERD, CORTINAS, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. Little v. State, 77 So.3d 722 (Fla. 3d DCA 2011).


text:
    James ROBERTS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-3420.
    District Court of Appeal of Florida, Third District.
    June 27, 2012.

      Carlos J. Martinez, Public Defender, Eleventh Circuit, and Robert Kalter, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.
    Before LAGOA and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Mosley v. State, 616 So.2d 1129 (Fla. 3d DCA 1993); Hernandez v. State, 360 So.2d 39 (Fla. 3d DCA 1978), cert. denied, 368 So.2d 1367 (Fla. 1979).


text:
    Justin WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1335.
    District Court of Appeal of Florida, Third District.
    June 27, 2012.
    Justin Williams, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER and EMAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Adams v. State, 76 So.3d 367, 367 (Fla. 3d DCA 2011) (holding that section 893.13, as amended by 893.101, Florida Statutes (2002), is constitutional; rejecting Shelton v. Secretary, Department of Corrections, 802 F.Supp.2d 1289, 1308 (M.D.Fla.2011), in which the federal court held that section 893.101 violates due process and is unconstitutional on its face); Little v. State, 77 So.3d 722, 722-23 (Fla. 3d DCA 2011); Ortega v. State, 76 So.3d 346 (Fla. 3d DCA 2011); see also State v. Adkins, 71 So.3d 184 (Fla. 2d DCA 2011), review granted, 71 So.3d 117 (Fla.2011).


text:
    Ernesto Cebibanes FRYE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1190.
    District Court of Appeal of Florida, Third District.
    June 27, 2012.
    Mavel Ruiz, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD and CORTINAS, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

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


author: WELLS, Chief Judge.

text:
    Jude O. OSUJI, Appellant, v. DEPARTMENT OF REVENUE on behalf of Anthonia U. ANIUOH, Appellee.
    No. 3D11-1630.
    District Court of Appeal of Florida, Third District.
    June 27, 2012.
    Jude 0. Osuji, in proper person.
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Tallahassee, Senior Assistant Attorney General, Child Support Enforcement, for appellee.
    Before WELLS, C.J., and SHEPHERD and SUAREZ, JJ.
   ON CONFESSION OF ERROR

WELLS, Chief Judge.

Jude 0. Osuji appeals from a final administrative support order raising a number of issues with respect to determinations made regarding current and retroactive child support for his minor child. With all but one exception relating to the retroactive child support award, we affirm the order on review. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). On the Department’s confession of error as to the improper calculation of the retroactive support award, we reverse and remand for recalculation of retroactive support. See Finch v. Dep’t of Revenue ex rel. John-Jules, 65 So.3d 1150 (Fla. 3d DCA 2011).

Affirmed in part and reversed in part.


text:
    Tarrus Hakeem KELLY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2302.
    District Court of Appeal of Florida, First District.
    June 27, 2012.
    Tarrus Hakeem Kelly, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.141(c)(6)(C).

WOLF, LEWIS, and THOMAS, JJ., concur.


text:
    Patricia FAELLA, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-2089.
    District Court of Appeal of Florida, Fifth District.
    June 27, 2012.

      Kurt A. Russell, of Platt Hopwood & Associates LLC, Melbourne, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carmen F. Corrente, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Petitioner seeks a writ of habeas corpus challenging the trial court’s sua sponte modification of bond from $5,000 to $500,000 on Count I. We grant the petition.

A trial court is without authority to sua sponte increase bond. Montgomery v. Jenne, 744 So.2d 1148, 1149 (Fla. 4th DCA 1999). Florida Rule of Criminal Procedure 3.131(d) permits the State to seek modification of bond by showing good cause and with at least three hours’ notice to defendant’s counsel. “The State must prove ‘a change in circumstances or additional evidence’ since the bond was originally set.” Creech v. Ryan, 972 So.2d 1021, 1023 (Fla. 3d DCA 2008). The State has the burden to bring new information to the court’s attention and “[a]bsent such, the initial bond must be reinstated.” Santos v. Garrison, 691 So.2d 1172 (Fla. 4th DCA 1997). Here, the State did not move for modification of bond, and the modification was done without notice. Rather, the trial court sua sponte issued an arrest warrant, stating that the court did not have all the facts at Petitioner’s first appearance hearing and had “mistakenly set a bond inappropriate to the actual charges.” The court ordered Petitioner’s re-arrest and reset bond at $500,000.

The petition for habeas corpus is granted to the extent that we quash the order holding Petitioner on $500,000 bond and remand for the trial court to reinstate Petitioner’s $5,000 bond. Upon remand, the State may, if appropriate, move for modification of bond after providing proper notice to Petitioner’s counsel.

PETITION GRANTED; CAUSE REMANDED.

GRIFFIN, EVANDER, and JACOBUS, JJ., concur.


text:
    Craig B. DANIELS, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-1194.
    District Court of Appeal of Florida, First District.
    June 28, 2012.
    Craig B. Daniels, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. See Lawrence v. State, 987 So.2d 157, 158 (Fla. 2d DCA 2008) (holding that orders that deny some rule 3.850 claims but dismiss others with leave to amend are not final, appealable orders). The state’s contingent motion to dismiss, filed in this Court on June 6, 2012, is denied as moot.

VAN NORTWICK, ROBERTS, and MARSTILLER, JJ., concur.


text:
    L.V. JENKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5247.
    District Court of Appeal of Florida, First District.
    June 29, 2012.
    Nancy A. Daniels, Public Defender, and Danielle Jorden, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Donna A. Gerace and Angela R. Hensel, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

WOLF, ROWE, and SWANSON, JJ., concur.


author: WOLF, J.

text:
    Ronald Richard DESCAULT, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-3482.
    District Court of Appeal of Florida, First District.
    July 3, 2012.
    Nancy A. Daniels, Public Defender, and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for Appellee.
   WOLF, J.

Ronald Descault challenges on appeal his resentencing for aggravated battery with a deadly weapon and with great bodily injury. Appellant raises two points, one of which we find has merit. The trial court improperly reclassified appellant’s offense from a second-degree felony to a first-degree felony. We find this case indistinguishable from Cabral v. State, 944 So.2d 1026 (Fla. 1st DCA 2006), and Webb v. State, 997 So.2d 469 (Fla. 2d DCA 2008), and thus, are constrained to remand for resentencing. Absent these and other similar decisions, we would find the reasoning of Judge Altenbernd’s dissent in Webb to be persuasive.

Reversed and remanded for resentenc-ing in accordance with this opinion.

LEWIS and THOMAS, JJ., concur.


text:
    Lynette MANSPEAKER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1884.
    District Court of Appeal of Florida, First District.
    July 3, 2012.
    Michael Ufferman of Michael Ufferman Law Firm, P.A., Tallahassee, for Petitioner.
    Pamela Jo Bondi, Attorney General, and Therese A. Savona, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

In her petition for writ of certiorari, Petitioner, Lynette Manspeaker, challenges the trial court’s order denying her motion for reduction of sentence which she filed pursuant to Florida Rule of Criminal Procedure 3.800(c). As the State concedes, the trial court departed from the essential requirements of the law in denying Petitioner’s motion on the basis that sixty days had passed since receipt of this Court’s mandate from her direct appeal. As Petitioner contends, she timely filed her motion with the trial court within sixty days of the United States Supreme Court’s denial of her petition for writ of certiorari. See Fla. R.Crim. P. 3.800(c) (providing in part that a court may reduce or modify a legal sentence imposed by it within sixty days after the highest state or federal court to which a petition for certiorari has been timely filed under authority of law has entered an order denying certiorari); see also Shannon v. State, 765 So.2d 847, 848 (Fla. 4th DCA 2000) (granting the petitioner’s certiorari petition because the rule 3.800(c) motion, which was filed with the trial court within sixty days of the United States Supreme Court’s denial of the petitioner’s certiorari petition, was timely filed).

Accordingly, we GRANT the petition for writ of certiorari, QUASH the trial court’s order, and REMAND for consideration of the motion on the merits.

DAVIS, LEWIS, and MAKAR, JJ., concur.


text:
    Jonathan Earl CUSHON, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6464.
    District Court of Appeal of Florida, First District.
    July 3, 2012.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). See also State v. Adkins, 71 So.3d 184 (Fla. 2d DCA 2011), rev. granted 71 So.3d 117 (Fla.2011).

VAN NORTWICK, ROBERTS, and MARSTILLER, JJ., concur.


text:
    James David CHILDS, Petitioner, v. Theresa P. KOENIG, Respondent.
    No. 1D12-1996.
    District Court of Appeal of Florida, First District.
    July 3, 2012.
    James David Childs, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Smartt v. First Union National Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

PADOVANO, ROWE, and RAY, JJ., concur.


text:
    Ian Felix ESTRADA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2665.
    District Court of Appeal of Florida, First District.
    July 3, 2012.
    Ian Felix Estrada, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

PADOVANO, ROWE, and RAY, JJ., concur.


text:
    Immanuel WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3041.
    District Court of Appeal of Florida, First District.
    July 3, 2012.

      Immanuel Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

PADOVANO, ROWE, and RAY, JJ., concur.


text:
    Bobby Gene MAYS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-3015.
    District Court of Appeal of Florida, First District.
    July 3, 2012.
    Bobby Gene Mays, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Lambrix v. State, 698 So.2d 247 (Fla.1996).

PADOVANO, ROWE, and RAY, JJ., concur.


text:
    Earnest DIALS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-2934.
    District Court of Appeal of Florida, First District.
    July 3, 2012.
    Earnest Dials, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. RApp. P. 9.141(d)(5).

PADOVANO, ROWE, and RAY, JJ., concur.


text:
    Donnell Ishon BATTS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5746.
    District Court of Appeal of Florida, First District.
    July 5, 2012.
    Patrick L. Jackson of James L. Chase & Associates, PLC, Pensacola, for Appellant.
    Pamela Jo Bondi, Attorney General, and Christine Ann Guard, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. Mobley v. State, 407 So.2d 1037 (Fla. 1st DCA 1981).

WOLF, THOMAS, and ROWE, JJ., concur.


text:
    James CROSS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D10-2093.
    District Court of Appeal of Florida, Third District.
    July 5, 2012.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.
    Before SUAREZ, CORTIÑAS and EMAS, JJ.
   PER CURIAM.

Affirmed. See Sorey v. State, 419 So.2d 810, 813 (Fla. 3d DCA 1982) (holding that where fingerprints “are located in a place, on an object, or on a particular part of an object to which the general public does not have access, the hypothesis that the print was not placed on the object at the time of the crime is not one which the court must declare reasonable as a matter of law, and it remains for the jury to determine its reasonableness.... [S]uch proof, standing alone, is legally sufficient, and the jury may infer from it that the print was made at the time of the crime”); K.S. v. State, 814 So.2d 1190 (Fla. 5th DCA 2002) (holding evidence sufficient to support a conviction for burglary where juvenile’s fingerprint was found on a kitchen window located at the rear of the home, seven feet above ground level; the kitchen window was the point of entry, and the location of the print was consistent with someone trying to open the window rather than simply look through it); Walker v. State, 656 So.2d 950 (Fla. 5th DCA 1995) (holding evidence sufficient to support burglary conviction where defendant’s fingerprint was found on the sill of a backyard window, which served as the point of entry and the location of the print was consistent with someone trying to push the window up from the outside).


author: SHEPHERD, J.

text:
    The SCHOOL BOARD OF MIAMI-DADE COUNTY, FLORIDA, Appellant, v. RISE ACADEMY OF SOUTH DADE CHARTER SCHOOL, Appellee.
    No. 3D10-2900.
    District Court of Appeal of Florida, Third District.
    July 5, 2012.
    Weiss Serota Helfman Pastoriza Cole & Boniske, and Edward G. Guedes and Joseph H. Serota, Miami; Walter J. Harvey, School Board Attorney, and Melinda L. McNichols, Assistant School Board Attorney, for appellant.
    Glen J. Torcivia, West Palm Beach; Daniel Woodring, Tallahassee, for appel-lee.

      Before SHEPHERD and CORTIÑAS, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

This is an appeal by the Miami-Dade County School Board from a final order of the State of Florida Board of Education, reversing a decision to immediately terminate the Charter School Contract between the County School Board and Rise Academy of South Dade, pursuant to section 1002.33(8) of the Florida Statutes (2009).

There is considerable disagreement among the parties and scant guidance in the law concerning the rights and obligations of the parties in an immediate termination proceeding conducted pursuant to the 2009 version of Section 1002.33(8), which permits immediate termination of a charter school contract “if the sponsor [County School Board] determines that good cause has been shown or if the health, safety, or welfare of the students is threatened.” However, considering all the evidence in the record, including that which was unavailable at the time the hearing was held before the County School Board, we conclude that the State Board of Education erred under any standard of review that might be applied when it reversed the decision of the County School Board terminating the Rise Academy Charter. Compare Spiral Tech Elementary Charter Sch. v. Sch. Bd. of Miami-Dade Cnty., 994 So.2d 455 (Fla. 3d DCA 2008) (applying two-fold review-whether factual findings were supported by competent substantial evidence and whether agency erroneously interpreted the law) with Sch. Bd. of Osceola Cnty. v. UCP of Cent. Fla., 905 So.2d 909 (Fla. 5th DCA 2005) (determining State Board action to be supported by competent, substantial record evidence).

Accordingly, we reverse and remand with the direction that the State Board of Education deny Rise Academy’s appeal and affirm the decision of the Miami-Dade County School Board.

Reversed and remanded with instructions.

      . Since the initiation of the immediate termination proceeding in this case, the procedural quagmire in which the parties have found themselves ensconced in this case have been substantially ameliorated by the incorporation of Chapter 120 review procedures in these proceedings. See Ch. 2-11-2332 § 3, Laws of Fla.

      . Two weeks after the hearing, the State Department of Education released its annual school grading report, stating Rise Academy had moved from an F School to an A School in one year. Rise Academy unsuccessfully requested the County School Board to reconsider its decision based on this report.


text:
    K.N., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-3032.
    District Court of Appeal of Florida, Third District.
    July 11, 2012.
    Carlos J. Martinez, Public Defender, and Melissa C. Del Valle, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Magaly Rodriguez, Assistant Attorney General, for appellee.
    Before SHEPHERD, SALTER and EMAS, JJ.
   PER CURIAM.

ON CONFESSION OF ERROR

Upon the State’s proper confession of error, we reverse the restitution order entered by the trial court and remand this cause to the trial court for entry of a restitution order in the amount of $1500, representing the cost of repairs for the doors of the victim’s home.

Reversed and remanded.


author: PER CURIAM. EMAS, J.,

text:
    Hugo Sergio VALDERANA a/k/a Hugo Sergio Valderrama, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1299.
    District Court of Appeal of Florida, Third District.
    July 11, 2012.
    Rehearing Denied July 24, 2012.
    Jan P. Weiss, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, SALTER and EMAS, JJ.
   PER CURIAM.

Affirmed.

EMAS, J.,

specially concurring.

I concur in affirming, but I believe we should do so on the basis of, and expressly citing to, Hernandez v. State, 61 So.3d 1144 (Fla. 3d DCA 2011).