author: GERBER, J. STEVENSON, J.,

text:
    Peter MILANESE, as Personal Representative of the Estate of Christopher Milanese, Appellant, v. CITY OF BOCA RATON, Florida, Appellee.
    No. 4D09-5247.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 2012.
    Rehearing Denied April 18, 2012.

      James K. Green of James K. Green, P.A., West Palm Beach, for appellant.
    Matthew H. Mandel, Jamie A. Cole and Laura K. Wendell of Weiss Serota Helf-man Pastoriza Cole & Boniske, P.L., Fort Lauderdale, for appellee.
   GERBER, J.

We grant the appellee’s motion for rehearing en banc. We withdraw our opinion issued July 20, 2011, and substitute the following opinion.

The issue in this appeal is whether the police, upon legally releasing an impaired person from custody at a police station or jail, thereafter owe a duty of care to that person when the police have not created any risk which that person may face upon release. We hold that the police do not owe a duty of care under those circumstances. Therefore, we affirm the circuit court’s dismissal of the third amended complaint in this case.

The third amended complaint alleges that Christopher Milanese, after a night of heavy drinking, got in his truck and began driving erratically. His cousin, who was following him in her car, called 911.

At 3:14 a.m., a City of Boca Raton police officer pulled Milanese over. Milanese appeared impaired. The officer took Milanese into custody, told his cousin to leave, and arranged for his truck to be towed. The officer then transported Milanese to the police station.

Between 3:27 and 3:41 a.m., the officer issued Milanese five traffic citations, none of which were for driving under the influence.

At 4:27 a.m., the officer called a cab for Milanese. At 4:29 a.m., the cab arrived at the station. At 4:30 a.m., the officer escorted Milanese to the front door of the station and released him. Milanese still was impaired. The cab driver did not see Milanese and left at 4:33 a.m.

At 5:20 a.m., Milanese was laying next to nearby railroad tracks when a train approached. The engineer blew the train’s horn. Milanese did not move. The train struck and killed Milanese. At the time of Milanese’s death, his blood alcohol level was .199.

Milanese’s estate sued the City'for negligence. The estate alleged:

14.... The [City] had created a “special relationship” with [Milanese] when he was arrested and taken into custody. This “special relationship” included, among other things, [the duty] to insure the proper safety of [Milanese].
15. [The City] had an affirmative obligation to protect [Milanese] from harm while in [its] custody, and [was] responsible for his safety in releasing [Milanese] in a safe and reasonable manner. [The City was] negligent in releasing [Milanese], who was impaired, from the Boca Raton Police Department at 4:30 a.m. into the night without providing for his safety.
16. [The City was] negligent in not insuring that [Milanese] had transportation to go home. [The City was] negligent in allowing [Milanese] to wander through the night in a strange neighborhood while [Milanese] was impaired....
17. [The City was] negligent in having called a Yellow Cab for [Milanese] and not determining if the Yellow Cab ever arrived; in not escorting [Milanese] to the Yellow Cab; [and] in not having placed [Milanese] in the [Yellow Cab] — a presumably safe environment knowing that [Milanese] lived in another county.
18. [The City was] negligent in releasing [Milanese] to wander the streets of Boca Raton in an impaired and intoxicated condition. [The City] knew, or should have known, that by the releasing of [Milanese] at the time and place [it] did and in the condition he was in, it was foreseeable that [Milanese] would be placed in harm’s way — especially in light of the fact that an active railroad was located less than 50 feet from the rear of the police station.

The City moved to dismiss. The motion argued that the City owed no duty of care to Milanese for two reasons: (1) Milanese was not in custody at the time the train killed him; and (2) the City did not create a foreseeable zone of risk. The circuit court granted the motion. This appeal followed.

Our review is de novo. See Wallace v. Dean, 3 So.3d 1035, 1045 (Fla.2009) (“Appellate courts review decisions resolving motions to dismiss under a de novo standard where those motions are based on a claim that no legal cause of action exists as alleged in the complaint.”) (citations omitted). We must decide whether the police owed Milanese a duty of care under the facts alleged. See id. at 1046 (the duty of care requirement “poses a question of law that the court must answer before permitting a negligence claim to proceed before the trier of fact”) (citations omitted).

In deciding this issue, we must assume the complaint’s allegations as true and allow all reasonable inferences arising therefrom in the estate’s favor. See id. at 1042-43. We also must consider that, in the law enforcement context, a duty of care exists “when law enforcement officers become directly involved in circumstances which place people within a ‘zone of risk’ (1) by creating or permitting dangers to exist, (2) by taking persons into police custody, (3) detaining them, or (4) otherwise subjecting them to danger.” Id. at 1048 (emphasis, footnotes, citation, and other internal quotations omitted).

Here, accepting the estate’s allegations as true, we conclude that a duty of care did not exist upon Milanese’s release because the police: (1) did not create or permit dangers to Milanese to exist; (2) were no longer holding Milanese in custody; (3) were no longer detaining Milanese; and (4) did not otherwise subject Milanese to danger.

We base our conclusion upon our precedent in Lindquist v. Woronka, 706 So.2d 358 (Fla. 4th DCA 1998), which involves very similar facts. There, two police officers arrested the plaintiff for disorderly conduct. At the time of the arrest, the plaintiff was “intoxicated, disoriented, confused, unaware of his surroundings, and otherwise incapacitated.” Id. at 359. The officers took the plaintiff to the police station. The officers later released the plaintiff with a notice to appear at a future court date. After being released, the plaintiff was crossing a highway near the police station when a vehicle struck and injured him. The plaintiff sued the officers for a civil rights violation, claiming that the police “should have kept him in custody for his own protection because he was obviously inebriated.” Id. Alternatively, the plaintiff alleged, “the police officers should have driven him home.” Id. According to the plaintiff, the police “knowingly released him from [the station], ‘an area more dangerous than the area where [he] was arrested,’ thus exposing him to increased danger.” Id. The circuit court dismissed the plaintiffs civil rights claim “on the basis that the [officers’] action, or inaction, did not rise to the level of a constitutional violation, pursuant to 42 U.S.C. § 1983.” Id. at 360.

We affirmed on two grounds. First, we concluded that the plaintiffs theory of liability based on being taken into custody did not apply. We reasoned that “[the] plaintiff was not in custody at the time of the accident, nor was his liberty otherwise restrained.” Id. at 361. The same reasoning eliminates the second and third grounds for which “zone of risk” liability may be considered in this case. Wallace, 3 So.3d at 1048.

Second, we concluded in Lindquist that the plaintiffs “state-created danger” theory of liability did not apply either. That theory derives from the following statement in DeShaney v. Winnebago County Department of Social Services, 489 U.S. 189, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989):

While the State may have been aware of the dangers that [the plaintiff] faced in the free world, it played no part in their creation, nor did it do anything to render him any more vulnerable to them. That the State once took temporary custody of [the plaintiff! does not alter the analysis, for when it [released him], it placed him in no worse position than that in which he would have been had it not acted at all; the State does not become the permanent guarantor of an individual’s safety by having once offered him shelter.

Lindquist, 706 So.2d at 361 (quoting DeShaney, 489 U.S. at 201, 109 S.Ct. 998) (emphasis partially added in Lindquist and partially added here). After considering the “state-created danger” theory of liability, we concluded that the plaintiffs allegations in Lindquist were insufficient to satisfy that theory, reasoning:

Although plaintiff alleges that defendants placed him in a more dangerous position by his arrest and release, the release of plaintiff at the ... police station which happens to be located near an intersection, is insufficient ... to impose civil rights liability on defendants. No court has yet found a violation of an individual’s due process rights under similar facts.

Lindquist, 706 So.2d at 362 (footnote omitted).

The “state-created danger” theory which we discussed in Lindquist is very similar, if not identical, to the first and fourth grounds for “zone of risk” liability which the estate seeks to apply here. Wallace, 3 So.3d at 1048. However, those “zone of risk” grounds do not apply here either. The release of Milanese at the police station, which happens to be located near railroad tracks, is insufficient to impose a duty of care upon the police. The police did not create Milanese’s impaired condition or the surroundings into which he was released. See McCain v. Fla. Power Corp., 593 So.2d 500, 502 (Fla.1992) (“The duty element of negligence focuses on whether the defendant’s conduct foresee-ably created a broader ‘zone of risk’ that poses a general threat of harm to others.”) (emphasis added; citations omitted). The police simply did what they were obligated to do after issuing Milanese’s traffic citations — they released him from custody at the police station. While the police may have been aware of the dangers which Milanese faced upon his release, the police played no part in creating those dangers, nor did the police do anything to render Milanese more vulnerable to those dangers.

In sum, the police placed Milanese in no worse position than if they had not acted at all. Thus, contrary to the dicta which the estate and the dissent quote from Henderson v. Bowden, 787 So.2d 532 (Fla.1999), the police did not “eject [Milanese] into the danger of a street or railroad yard.” Id. at 537 (citation omitted). Rather, the police attempted to place Milanese in a better position by calling him a cab when they had no duty to do so. The fact that Milanese for some reason did not enter the cab should not expose the police to liability.

The cases upon which the estate relies to support its arguments are distinguishable. Unlike this case and Lindquist, none of those cases involve a situation in which a person is simply released from custody at a police station. See Wallace, 3 So.3d at 1040 (deputies undertaking a safety check on an unresponsive woman placed her in a “zone of risk” by rebuffing her neighbors’ suggestion that she was in a diabetic coma and by assuring neighbors that she was simply asleep and did not need an ambulance or medical attention); Henderson, 737 So.2d at 536 (deputies, after conducting a traffic stop of a vehicle, more likely than not created a “zone of risk” for the vehicle’s passengers by directing the vehicle’s intoxicated driver to drive to a nearby store); Kaisner v. Kolb, 543 So.2d 732, 734 (Fla.1989) (police officer created a “zone of risk” for the plaintiff by directing him to stand between his vehicle and a police cruiser during a traffic stop, thus depriving him of his ability to protect himself from oncoming traffic); Walston v. Fla. Highway Patrol, 429 So.2d 1322, 1324 (Fla. 5th DCA 1983) (jury issue was presented regarding whether troopers caused an increased risk to an intoxicated person by allowing him to stand between cars during a traffic stop without warning him of any danger).

The estate also argues that section 316.193(9), Florida Statutes (2007), applies to this case. We disagree. Section 316.193(9) provides that the police may not release a person whom they arrest for driving under the influence until: (a) the person was no longer under the influence; (b) the person’s blood-alcohol level or breath-alcohol level was less than 0.05; or (c) until eight hours elapsed from the time of the arrest. § 316.193(9), Fla. Stat. (2007). Here, however, the police, for whatever reason, did not arrest Milanese for driving under the influence. The police cannot be held liable for that discretionary judgment. See Everton v. Willard, 468 So.2d 936, 938 (Fla.1985) (“There has never been a common law duty of care owed to an individual with respect to the discretionary judgmental power granted a police officer to make an arrest and to enforce the law.”).

The dissent argues that the “undertaker’s doctrine,” as most recently articulated in Wallace, applies to this case. We disagree based on the manner in which the estate pled the third amended complaint. In Wallace, the complaint alleged that two deputies responded to a 911 call requesting a safety check for an unresponsive woman. When the deputies arrived, they found the woman breathing but unresponsive to their efforts to awaken her. The deputies assured the woman’s concerned neighbors that the woman was merely sleeping and that it was unnecessary to call an ambulance. The deputies then left. The neighbors relayed this information to the woman’s out-of-state daughter, who also relied on the deputies’ assurances that her mother needed no further assistance. The next day, the neighbors checked on the woman again and found her in the same position. This time, the neighbors called an ambulance which transported the woman to a hospital. Ultimately, it was determined that the woman had been in a diabetic coma and she died several days later without having regained consciousness. Based on those allegations, our supreme court concluded that the deputies owed a duty of care to the woman pursuant to the “undertaker’s doctrine”:

As alleged in the complaint, the conduct of these deputies placed [the woman] in a readily recognizable zone of risk. [The deputies] responded to the scene, entered a home, engaged the unconscious resident, provided an assessment of her safety, and, further, assured concerned third parties that she was simply asleep and did not need medical attention. This alleged behavior satisfies the requirements of the undertaker’s doctrine because the deputies, in a position of authority, increased the risk of harm that the decedent faced by inducing third parties — who would have otherwise rendered further aid (and actually requested that the deputies provide additional assistance, but were rebuffed)— to forebear from doing so.

3 So.3d at 1052 (emphasis added; citations omitted).

The highlighted reasoning does not apply to this case. Although the third amended complaint alleged that the police did not escort Milanese to the cab or place him in the cab, the estate does not explain how such inaction increased the risk of harm which Milanese faced. To overcome that omission, the dissent speculates that the police, by calling a cab for Milanese, may have dissuaded him from arranging for responsible transportation of his own choosing, such as his cousin whom the police ordered to leave at the roadside. However, the third amended complaint did not allege these possible facts as a basis to establish the duty of care. See Third Amended Complaint at ¶¶ 14-18. We must view the complaint as it is pled, not how it could have been pled. See Edwards v. Landsman, 51 So.3d 1208, 1213 (Fla. 4th DCA 2011) (“In reviewing an order granting a motion to dismiss, this court’s gaze is limited to the four corners of the complaint.”) (citation and internal quotations omitted). We also are prohibited from granting the estate leave to file a fourth amended complaint when it did not request the circuit court’s leave to do so. See Stander v. Dispoz-O-Prods., Inc., 973 So.2d 603, 605 (Fla. 4th DCA 2008) (“[A] party who does not seek to amend in the trial court cannot raise the issue of amendment for the first time on appeal.”).

For the above reasons, the complaint has not met the minimal threshold legal requirement to survive dismissal. See Wallace, 3 So.3d at 1046 (“A duty of care is a minimal threshold legal requirement for opening the courthouse doors.”) (citation and internal quotations omitted). We affirm.

Affirmed.

MAY, C.J., GROSS, DAMOORGIAN, CIKLIN and CONNER, JJ„ concur.

STEVENSON, J., dissents with opinion in which WARNER, POLEN, TAYLOR and LEVINE, JJ., concur.

HAZOURI, J., recused.

STEVENSON, J.,

dissenting.

I respectfully dissent. I would reverse the final judgment of dismissal and allow the case to proceed. The gravamen of the estate’s claim is that the police placed Milanese in a zone of risk by taking him into custody and then releasing him in a manner which created an unreasonable and foreseeable risk of harm considering Milanese’s physical condition (“impaired, drunk and inebriated”), the time of day (the dark hours of early morning), and the location of his release (near active railroad tracks). Thus, the estate claims that a duty of care arose under Florida tort law. A duty of care is “a minimal threshold legal requirement for opening the courthouse doors.” McCain v. Fla. Power Corp., 593 So.2d 500, 502 (Fla.1992) (footnote omitted). Here, the estate’s complaint met the minimum threshold and should not have been dismissed for failure to establish a duty of care on the part of the police.

The two leading cases in Florida explaining duty of care are Kaisner v. Kolb, 543 So.2d 732 (Fla.1989), and McCain v. Florida Power Corp., 593 So.2d 500 (Fla.1992). In Kaisner, the supreme court stated:

Where a defendant’s conduct creates a foreseeable zone of risk, the law generally will recognize a duty placed upon [the] defendant either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses....
We see no reason why the same analysis should not obtain in a case in which the zone of risk is created by the police.

543 So.2d at 735-36 (citations omitted). In McCain, the court further expounded on the concept of “zone of risk” as it relates to the duty of care:

The duty element of negligence focuses on whether the defendant’s conduct foreseeably created a broader “zone of risk” that poses a general threat of harm to others. See Kaisner, 543 So.2d at 735 (citing Stevens v. Jefferson, 436 So.2d 33, 35 (Fla.1983))....
... Foreseeability clearly is crucial in defining the scope of the general duty placed on every person to avoid negligent acts or omissions. Florida, like other jurisdictions, recognizes that a legal duty will arise whenever a human endeavor creates a generalized and foreseeable risk of harming others....
The statute books' and case law, in other words, are not required to catalog and expressly proscribe every conceivable risk in order for it to give rise to a duty of care. Rather, each defendant who creates a risk is required to exercise prudent foresight whenever others may be injured as a result. This requirement of reasonable, general foresight is the core of the duty element. For these same reasons, duty exists as a matter of law and is not a factual question for the jury to decide: Duty is the standard of conduct given to the jury for gauging the defendant’s factual conduct. As a corollary, the trial and appellate courts cannot find a lack of duty if a foreseeable zone of risk more likely than not was created by the defendant.

593 So.2d at 502-03 (citations and footnotes omitted; emphasis added).

Factually, this is a case of first impression in the reported cases in Florida. In regard to the police, “[a] special tort duty ... arise[s] when law enforcement officers become directly involved in circumstances which place people within a ‘zone of risk ’ [1] by creating or 'permitting dangers to exist, [2] by taking persons into police custody, [3] detaining them, or [4] otherwise subjecting them to danger.” Wallace v. Dean, 3 So.3d 1035, 1048 (Fla.2009) (footnotes omitted). These factors have been determined to establish the special relationship between the police and the injured party necessary to defeat the so-called “public-duty doctrine.” Id. Under the public-duty doctrine, no duty extends to the public generally for the governmental activities of enforcement of laws and the protection of public safety. Id. (citing Trianon Park Condo. Ass’n v. City of Hialeah, 468 So.2d 912, 919-21 (Fla.1985)). By alleging a special relationship, the plaintiff is allowed to plead an exception to the public-duty doctrine.

Relying on the various factors discussed in Wallace and the authorities cited therein, several other cases have found police liability for ordinary negligence in a variety of factual contexts where there has been a “special relationship” between the police and the victim, a zone of risk has been created and a duty of care has arisen. See Wallace, 3 So.3d at 1040 (deputies undertaking a safety check on an unresponsive woman placed her in a “zone of risk” by rebuffing her neighbors’ suggestion that she was in a diabetic coma and by assuring neighbors that she was simply asleep and did not need an ambulance or medical attention); Henderson v. Bowden, 737 So.2d 532, 536 (Fla.1999) (deputies, after conducting a traffic stop of a vehicle, more likely than not created a “zone of risk” for the vehicle’s passengers by directing the vehicle’s intoxicated driver to drive to a nearby store); Kaisner v. Kolb, 543 So.2d 732, 734 (Fla.1989) (police officer created a “zone of risk” for the plaintiff by directing him to stand between his vehicle and a police cruiser during a traffic stop, thus depriving him of his ability to protect himself from oncoming traffic); Walston v. Fla. Highway Patrol, 429 So.2d 1322, 1324 (Fla. 5th DCA 1983) (jury issue was presented regarding whether troopers caused an increased risk to an intoxicated person by allowing him to stand between cars during a traffic stop without warning him of any danger). This case differs from the preceding cases because the negligence here is focused on the special relationship which arose when Milanese was taken into police custody and the zone of risk created by the alleged negligent manner in which plaintiff was released from that custody.

Lindquist v. Woronka, 706 So.2d 358 (Fla. 4th DCA 1998), the case which the majority cites as “precedent,” has somewhat similar facts to the instant case but presents a different legal issue. Lindquist was based on a civil rights claim pursuant to 42 U.S.C. § 1983, and the plaintiff had sought to impose civil liability on the officers individually. “To state a cause of action for violation of § 1983, the plaintiff must allege that a person, acting under color of state law, deprived him of rights protected under the federal constitution, or federal laws.” Id. at 360. Liability under the Due Process Clause is narrow and not meant as a substitute for tort law. See, e.g., DeShaney v. Winneba go Cnty. Dep’t of Social Servs., 489 U.S. 189, 202, 109 S.Ct. 998, 103 L.Ed.2d 249 (1989) (noting that “the Due Process Clause ... does not transform every tort committed by a state actor into a constitutional violation”). Thus, Lindquist simply did not address the negligence issue presented by the instant case. Florida tort law, rather than federal constitutional law, is instructive. Further diluting the persuasiveness of Lindquist, our court records indicate that, in Lindquist, counts against the City of Riviera Beach for negligence based on state tort law remained pending below and were not involved in the appeal.

Nevertheless, on the surface, the principle of zone of risk under Florida negligence law and the state-created danger test under federal law are somewhat similar. But, using the state-created danger test in its most narrow and literal sense has led the majority to erroneously conclude that, under state tort law, the police could not have created a zone of risk in this case because they did not create the railroad tracks or the proximity of the station to those tracks or the train or the darkness of night or Milanese’s intoxicated condition. In that respect, strict application of the state-created danger test may work in the ease of a due process claim for a constitutional violation, but it fails with regard to negligent conduct predicated on Florida tort law, which ‘“is categorically beneath the threshold of constitutional due process.’ ” Sitzes v. City of W. Memphis Ark., 606 F.3d 461, 466 (8th Cir.) (quoting Cnty. of Sacramento v. Lewis, 523 U.S. 833, 849, 118 S.Ct. 1708, 140 L.Ed.2d 1043 (1998)), cert. denied, _ U.S. _, 131 S.Ct. 828, 178 L.Ed.2d 557 (2010). Rather, the application of state negligence principles would acknowledge the reasonableness and logic in the estate’s argument that the foreseeable danger Milanese faced was in fact created by the police due to the manner in which he was released from police custody in view of all of the circumstances. But for his release in that manner, Milanese would not have faced those dangers at that time and at that place.

So it is with the directives of McCain and other Florida tort law authority that we begin our analysis of this case. Moreover, we start by pointing out that the issue in this case is not whether the police should have arrested Milanese for driving under the influence or kept Milanese in police custody, since those are clearly discretionary acts for which sovereign immunity would bar a cause of action. See Everton v. Willard, 468 So.2d 936, 939 (Fla.1985). The question here is whether there were foreseeable risks created by the manner in which Milanese was released from police custody and whether the police effectuated the release in a reasonable manner in light of those risks because “as the risk grows greater, so does the duty, because the risk to be perceived defines the duty that must be undertaken.” Henderson, 737 So.2d at 535 (citing J.G. Christopher Co. v. Russell, 63 Fla. 191, 58 So. 45 (1912)).

Having been removed from his car in the wee hours of the morning, ostensibly because he was too drunk to continue driving, Milanese was taken into police custody and his vehicle was towed. Milanese’s cousin, who was following close by, was told to leave. Milanese was taken to a police station and was written a series of traffic tickets. After the tickets were written, the police called a taxi cab for the intoxicated Milanese and escorted him to the front door of the police station. It was still in the dark hours of early morning. The cab arrived, but the driver didn’t see Milanese anywhere. Milanese wandered off and was struck by a train and killed. The police station was just a short distance from an active railroad track. The estate makes the legitimate argument that it is reasonably foreseeable that an “impaired, drunk and inebriated” person would be unable to locate a taxi cab in the dark and at an unfamiliar location without some assistance. That the same intoxicated person without a sure and safe method of transportation might wander off in an unfamiliar area with active railroad tracks nearby and be injured in some manner (here by a train) is also far from unforeseeable.

The majority opinion’s statement that “the police placed Milanese in no worse position than if they had not acted at all” is mainly speculation, or at best, an improper factual inference least favorable to sustaining the estate’s cause of action. Because the intoxicated Milanese could have been injured at some other time, in some other place, and by some other means is mostly irrelevant. And, as the estate states in its initial brief, there is at least the possible inference as well “that had [Milanese] not been arrested he might have been injured in a lesser manner while continuing to drive” or that his “blood alcohol level continued to rise ..., and that it was higher when he was released than at the time he was arrested.” The estate’s argument is simply that but for the release of the intoxicated Milanese in the alleged manner, time and place, he would not have been exposed to the actual risks which caused his death.

There is also the high probability and reasonable inference that if Milanese had not been stopped by the arresting officers for the stated “traffic violations,” he would have been stopped by some other police officers for driving under the influence. Milanese’s cousin reported his erratic driving and extremely intoxicated condition by calling 911. Because the arresting officers stopped Milanese before his cousin had even completed speaking with the 911 dispatcher, it is unlikely that the stop was based on that call. Had Milanese been stopped by some other officers and charged with DUI, he would have received the benefit of the protections of section 316.193(9), Florida Statutes (2007), which provides that a person who is arrested for a DUI may not be released from custody until (1) that person is no longer under the influence of intoxicating substances and affected to the extent that his or her normal faculties are impaired; (2) the person’s blood-alcohol level or breath-alcohol level is less than 0.05; or (3) 8 hours have elapsed from the time the person was arrested. Under this scenario, which is reasonable to infer from the facts stated in the complaint, it could not be said that the arresting officers “placed Milanese in no worse position than if they had not acted at all” as the majority claims. Thus, whether Milanese would have been injured to a lesser degree, or not at all, if the police had not acted should be a matter for the fact-finder to determine.

The majority also concludes that there was no zone of risk created by the police, and thus no duty of care, because the injury occurred after Milanese was released from custody. On this point, the trial judge correctly recognized in her final order that “whether or not the Decedent was in police custody at the time of his death is not dispositive in a ‘zone of risk’ analysis.” In Wallace, the court reminded that “as we clarified years ago, custody is but one means through which the police may create a special duty of care with regard to an individual.” 3 So.3d at 1048 n. 22. By taking Milanese into custody, the police exercised a degree of control over his circumstances at the scene for better, or as alleged in the complaint, for worse. Having altered the status quo of Milanese’s situation as to time and place, the police owed a duty of care in their handling of his release from that custody as well. As the complaint alleges, the police called a taxi cab for the “impaired, drunk and inebriated” Milanese but never even determined if the cab had ever arrived. The intoxicated Milanese was merely escorted to the front door of the station to find the cab if he could. Thus, the theory of liability here is based on both the second [taking persons into custody ] and fourth [otherwise subjecting them to danger] grounds of relief discussed in Wallace, and related cases.

The “Undertaker’s Doctrine”

The estate also relied upon the “undertaker’s doctrine” as a basis for relief. In Wallace, our supreme court held that a duty of care may arise against the police pursuant to the traditional common law tort principle referred to as “the undertaker’s doctrine.” 3 So.3d at 1040. There, two Marion County Sheriffs deputies responded to a 911 call requesting a safety check for an unresponsive woman. When the deputies arrived, they found the woman breathing but unresponsive to their efforts to awaken her. The deputies assured the woman’s concerned neighbors that the woman was merely sleeping and that it was unnecessary to call an ambulance, and then they left. The neighbors relayed this information to the woman’s out-of-state daughter, who also relied on the deputies’ assurances that her mother needed no further assistance. The next day, the neighbors checked on the woman again and found her in the same position. This time, an ambulance was called to the scene and the woman was transported to a hospital. Ultimately, it was determined that the woman had been in a diabetic coma and she died several days later without having ever regained consciousness. The court found that the deputies owed a duty of care to the then-unconscious woman pursuant to the common law tort principle called “the undertaker’s doctrine.”

The Wallace court reasoned:

Here, the Sheriffs deputies did not attempt to enforce any law and certainly were not engaged in the protection of the general public; instead they affirmatively sought to provide a service (a 911 safety cheek) to a specific individual, Brenda Wallace (the decedent).... Therefore, the public-duty doctrine associated with category II of Trianon, and any exceptions thereto, are inapposite to the case at bar. We thus consider whether the Sheriff owed the decedent a common-law duty of care pursuant to traditional principles of tort law without having to engage in any inquiry concerning the public-duty doctrine or whether a “special duty” or “special relationship” existed between the Sheriff and the decedent. ...
This Court has long adhered to the common-law doctrine that
“[i]n every situation where a man undertakes to act, or to pursue a particular course, he is under an implied legal obligation or duty to act with reasonable care, to the end that the person or property of others may not be injured by any force which he sets in operation, or by any agent for which he is responsible. If he fails to exercise the degree of caution which the law requires in a particular situation, he is held liable for any damage that results to another, just as if he had bound himself by an obligatory promise to exercise the required degree of care.... [E]ven ‘where a man interferes gratuitously, he is bound to act in a reasonable and prudent manner according to the circumstances and opportunities of the case.’ ”
Banfield v. Addington, 104 Fla. 661, 140 So. 893, 896 (1932) (citations omitted) (emphasis supplied) (citing 1 Thomas A. Street, Foundations of Legal Liability 92 (1906)) (quoting Flint & Walling Mfg. Co. v. Beckett, 167 Ind. 491, 79 N.E. 503, 506 (1906)). We have continued to apply this doctrine throughout the years.

3 So.3d at 1049-50.

Applying these principles, the Wallace court went on to conclude:

As alleged in the complaint, the conduct of these deputies placed [the deceased] in a readily recognizable zone of risk. These agents of the Sheriff responded to the scene, entered a home, engaged the unconscious resident, provided an assessment of her safety, and, further, assured concerned third parties that she was simply asleep and did not need medical attention. This alleged behavior satisfies the requirements of the undertaker’s doctrine because the deputies, in a position of authority, increased the risk of harm that the decedent faced by inducing third parties — who would have otherwise rendered further aid (and actually requested that the deputies provide additional assistance, but were rebuffed) — to forebear from doing so. See Restatement (Second) of Torts §§ 323-324A; see also Keeton, supra, § 56, at 378 (“If there is no duty to go to the assistance of a person in difficulty or peril, there is at least a duty to avoid any affirmative acts which make his situation worse.... [I]f the defendant does attempt to aid him, and takes charge and control of the situation, he is regarded as entering voluntarily into a relation which is attended with responsibility.”).

3 So.3d at 1052.

Based on the reasoning in Wallace, the “undertaker’s doctrine” could be applicable to this case as well. Like the deputies in Wallace, the police in the instant case were not attempting to enforce any law and were not engaged in the protection of the general public when they affirmatively sought to provide a specific service (arranging for transportation) for a specific individual (Milanese). Here, the complaint alleged that the police undertook to call a taxi cab and arrange for the intoxicated Milanese’s transportation. The “impaired, drunk and inebriated” Milanese was released in a strange location with active railroad tracks less than fifty feet away and escorted to the front door of the police station to go into the darkness of early morning and find the taxi cab which the police had called. Whether Milanese was given the opportunity to arrange for responsible transportation of his own choosing, such as his cousin who was ordered to leave, is not clear from the complaint; any inference in that regard at this early stage of the proceedings would have to be drawn in favor of sustaining the cause of action. Having made the decision to take responsibility for the transportation needs of the “impaired, drunk and inebriated” Milanese, the police were required to act with reasonable care.

“There may be no duty to take care of a man who is ill or intoxicated, and unable to look out for himself; but it is another thing entirely to eject him into the danger of a street or railroad yard; and if he is injured there will be liability. But further, if the defendant does attempt to aid him, and takes charge and control of the situation, he is regarded as entering voluntarily into a relation which is attended with responsibility.”

Henderson, 737 So.2d at 537 (quoting with approval, W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 53, at 378 (5th ed. 1984)).

This court should conclude that, more likely than not, the police created a foreseeable zone of risk that Milanese might be injured if their duty of care attendant to his release from custody was not discharged in a reasonable manner. Whether the police acted with ordinary care in the manner in which Milanese was released, considering all of the circumstances that may be developed after the case proceeds further, should be left to a fact-finder. The instant case, at this early stage of the proceedings, should be allowed to continue.

WARNER, POLEN, TAYLOR and LEVINE, JJ., concur.

      . Lindquist differs factually in several ways. The plaintiff in Lindquist was arrested as a pedestrian in the area of Blue Heron Boulevard, a multiple-lane highway, and was released as a pedestrian about two miles away at the City of Riviera Beach Police Department headquarters, which is also on Blue Heron Boulevard. 706 So.2d at 359. Further, Lindquist claimed that the police "should have kept him in custody” or alternatively "should have driven him home." Id. No such claims are made by the estate in the instant case.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    C.P., a Child, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1113.
    District Court of Appeal of Florida, Fourth District.
    Feb. 22, 2012.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant:
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See K.O. v. State, 673 So.2d 47 (Fla. 4th DCA 1995).

GROSS, CIKLIN and LEVINE, JJ., concur.


author: PERKINS, T.R., Associate Judge.

text:
    PAIN CARE FIRST OF ORLANDO, LLC, etc., Appellant, v. Donald C. EDWARDS, M.D. HRGS, Inc., etc., et al., Appellees.
    No. 5D10-3166.
    District Court of Appeal of Florida, Fifth District.
    Feb. 24, 2012.
    Rehearing and Rehearing En Banc Denied April 9, 2012.

      Christopher V. Carlyle and Shannon McLin Carlyle, of The Carlyle Appellate Law Firm, The Villages, for Appellant.
    A. Anthony Giovanoli of A. Anthony Giovanoli, P.A., Winter Park, and John W. Zielinski of NeJame, LaFay, Jancha, Barker & Joshi, P.A., for Appellee Donald C. Edwards, M.D.
    No Appearance for other Appellees.
   PERKINS, T.R., Associate Judge.

This appeal follows a non-jury trial awarding damages and granting replevin of medical records to Appellee, Dr. Donald C. Edwards, M.D., and against Appellant, Pain Care First of Orlando, LLC. (“Pain Care”). Although we affirm the trial court’s determination that Dr. Edwards owned the medical records that make up the substance of this case, we reverse the award of damages.

From 2004 to December 2007, Dr. Edwards worked as the sole physician for Pain Care. In October 2004, the parties entered into their written “Independent Professional Physician’s Agreement,” under which Dr. Edwards accepted appointment as the clinic’s Medical Director and became the owner of the medical records. In 2006, this written contract was terminated by mutual agreement but Dr. Edwards continued to work as the clinic’s sole physician. In addition, Dr. Edwards continued to be listed as the clinic’s medical director on the clinic’s letterhead and continued to sign documents on behalf of the clinic.

In December 2007, Dr. Edwards accepted a position at a rival pain clinic and stopped working at Pain Care. At that time, he requested that Pain Care provide him with the medical records for all patients that he had seen while at Pain Care. Pain Care promptly declined but did offer to provide him with copies of his notes.

Dr. Edwards then sued Pain Care in replevin to recover approximately 800 patient medical records, and for damages related to the clinic’s wrongful detention of those records. In his second amended complaint, he alleged that the records were of “nominal value” on the open market but were nevertheless “irreplaceable” to him. While this case was still pending, Pain Care sold the clinic, including all of the medical records, for $1,315,644.15.

At trial, Dr. Edwards testified that he owned the medical records as the medical director and producer of the records and was entitled to possession of the original records when he left Pain Care. In addition, he claims he continued to serve as the medical director even after the written contract was terminated by working as the clinic’s only physician and by signing documents as medical director. Dr. Edwards further claimed that the medical records were the most valuable assets of the business, entitling him to most of the sale proceeds.

Dr. Edwards presented the testimony of Paul Bauman, an expert on business valuation. Mr. Bauman opined that pain clinic patients are notoriously loyal and that 90% of those patients would typically follow Dr. Edwards to a new clinic as long as he could continue to provide them with pain medication. In order to prescribe pain medication, however, Dr. Edwards needed the medical records. Mr. Bauman estimated that Dr. Edwards lost approximately $470,000 in income at the new clinic because he did not get the patients’ medical records when he moved and, as a consequence, was not able to treat those patients.

One of the owners of Pain Care, Ken Lester, Jr., testified that Pain Care owned the medical records. He testified that Dr. Edwards was an independent contractor paid on an hourly basis and had no ownership interest in the clinic or its medical records. Thus, Appellant argues, even if Dr. Edwards may have become the technical owner of the medical records while medical director, the records reverted back to Pain Care when the written agreement was mutually terminated. Yet, Pain Care never entered into another employment agreement with Dr. Edwards in which the clinic was specifically designated as the owner of the medical records. In fact, when Mr. Lester was specifically asked about this point he said: “Never specifically referenced the patient records, no, I did not.”

Mr. Lester also explained that the purchase price for Pain Care included: (i) office equipment and miscellaneous items totaling not more than $50,000; (ii) Mr. Lester’s knowledge and understanding of the business; and (iii) the medical records. Mr. Lester acknowledged that patient ree-ords are “integral” to the business but not the business’ only asset of value. He agreed that Dr. Edwards was entitled to copies of his work product but not the actual medical records containing patient contact information. Mr. Lester contended that Dr. Edwards really only wanted the contact information in order to solicit his former patients.

The trial court found that Dr. Edwards owned the patient records, and that because the records had been sold, Dr. Edwards was entitled to damages for their wrongful conversion by Pain Care. The court estimated the value of the records by taking the purchase price of the clinic ($1,315,644.15) and subtracting the value of the physical assets ($20,000) and the services provided by Mr. Lester ($41,600) for a net value due Dr. Edwards for loss of the records of $1,254,044.15. The court also awarded Dr. Edwards interest from the date he asked for the records and held that Dr. Edwards was entitled to a writ of replevin for any records that remained in the custody of the Appellant. This appeal timely followed.

Section 456.057, Florida Statutes (2010), governs the ownership of medical records and provides:

(1) As used in this section, the term “records owner” means any health care practitioner who generates medical records after making a physical or mental examination of ... any person; ... or any health care practitioner’s employer ... provided the employment contract or agreement between the employer and the health care practitioner designates the employer as the records owner.

(Emphasis added).

The statute recognizes that a health care practitioner who “generates a medical record after making a physical or mental examination ...” is the presumptive owner of that record. Although the employer of that health care practitioner is permitted to own the medical records, that only occurs if an agreement between the employer and the health care practitioner specifically designates the employer as the records owner.

Here, Dr. Edwards became the owner of the medical records under the express provisions of a written agreement. Although the parties agreed to terminate that written contract, they had no discussion or agreement regarding ownership of the medical records. More importantly, the parties did not specifically designate Pain Care as the new owner of the medical records. Without such designation, we conclude, as did the trial court, that Dr. Edwards remained the owner of the medical records.

As owner of the medical records, Dr. Edwards was entitled to immediate possession of the originals. However, Pain Care made that impossible when they sold the business, including the records, to a third party in January 2009. When the transfer occurred, Dr. Edwards’ cause of action became one for conversion. See Pearson v. Ford Motor Co., 694 So.2d 61 (Fla. 1st DCA 1997) (“ ‘Conversion’ occurs when a person who has a right to possession of property demands its return and the demand is not or cannot be met.”). When personal property is converted and not recovered by the owner, the owner may be entitled to money damages in an amount equal to the fair market value of the property at the time of its conversion. Foresight Enters., Inc. v. Leisure Time Props., Inc., 466 So.2d 283, 288 (Fla. 5th DCA 1985) (Cowart, J., dissenting); see Exxon Corp. v. Ward, 438 So.2d 1059, 1060 (Fla. 4th DCA 1983) (“It is well settled in Florida and other jurisdictions that the measure of damages in an action for conversion is the fair market value of the property at the time of the conversion plus legal interest to the date of the verdict.”) (quoting Gillette v. Stapleton, 336 So.2d 1226, 1227 (Fla. 2d DCA 1976)). However, Dr. Edwards failed to amend his claim for damages and failed to specifically plead the unique value of the records as an item of special damage.

More importantly, Dr. Edwards failed to prove the fair market value of the medical records at the time of the sale. The parties agree that the fair market value of the entire business at the time of its sale was $1,315,644.15. But no evidence was offered by either party on the value of the medical records alone. The records were a crucial asset of that business to be sure, but only one of many assets that made up the ongoing business. Often the most valuable asset of an ongoing business, for example, is goodwill related to years of trusted business dealings. Yet, Dr. Edwards failed to offer evidence to the trial court of the special value of the medical records separate and apart from the value of the entire business.

Calculating the value of the medical records by simply subtracting the value of the furniture and consultation services from the selling price for the overall business oversimplifies a complex valuation analysis. Moreover, the value of the original records was certainly diminished when Dr. Edwards declined an offer by Appellant to provide him with copies of his patient notes. Accordingly, the award of damages to Dr. Edwards must be reversed. However, a new trial is not warranted. Having proceeded to judgment on legally insufficient proof, Appellee does not get a do-over. Van Der Noord v. Katz, 481 So.2d 1228, 1230 (Fla. 5th DCA 1985).

We have considered the other issues raised by the Appellant, but conclude that they need not be addressed in view of our disposition of this case. Accordingly, we affirm that part of the judgment determining ownership of the medical records but reverse that part of the judgment awarding damages.

AFFIRMED in part, REVERSED in part.

MONACO and TORPY, JJ., concur.

      . In addition to the agreement, Pain Care's Medical Records Policy and Procedure designates that the medical director "shall be the 'records owner’ as defined in 456.057, F.S.”


author: COHEN, J.

text:
    Carl D. BOND, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2654.
    District Court of Appeal of Florida, Fifth District.
    Feb. 24, 2012.
    Rehearing Denied April 4, 2012.
    Carl D. Bond, South Bay, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Carl Bond challenges by habeas petition his conviction for lewd and lascivious act in the presence of a child, a conviction that was obtained twenty years ago. He claims that the arresting officer, assistant state attorney, and trial judge did not comply with the filing of an oath of office as required by section 876.05, Florida Statutes (1991). Bond suggests there was no authority to arrest, charge, prosecute, try or sentence him.

We explained the proper procedure required to raise such a claim in Johnson v. Office of the State Attorney, 987 So.2d 206 (Fla. 5th DCA 2008). While Johnson addressed a similar challenge brought as a quo warranto action, its reasoning as to the untimeliness of Bond’s challenge is equally applicable.

AFFIRMED.

ORFINGER, C.J., and MONACO, J„ concur.


text:
    Donald Lamar GREEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5002.
    District Court of Appeal of Florida, First District.
    Feb. 27, 2012.
    Rehearing Denied April 11, 2012.
    Nancy A. Daniels, Public Defender and Phil Patterson, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General and Therese A. Savona, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges his convictions, after jury verdicts, for both aggravated battery with a deadly weapon, pursuant to section 784.045, Florida Statutes, and aggravated battery with a deadly weapon upon another detainee in a detention facility, pursuant to section 784.082, Florida Statutes. He asserts that the dual convictions violate the double jeopardy clause. Despite Appellant’s failure to raise a double jeopardy issue at the trial level, we review the matter for fundamental error. Pruett v. State, 731 So.2d 113 (Fla. 1st DCA 1999).

The evidence presented to the jury was uncontroverted that Appellant attacked another detainee in the Duval County Jail on April 15, 2010. The single encounter lasted only a few moments and resulted in a puncture wound and a cut or gash on the victim’s torso. The surveillance video of the incident showed an object in Appellant’s hand with which he made contact with the victim.

The jury instructions for count I, aggravated battery with a deadly weapon, consisted of two elements: “one, Donald Lamar Green intentionally touched or struck James Boyd against his will and, two, Donald Lamar Green, in committing the battery, used a deadly weapon.” The jury instructions for count II, aggravated battery upon another detainee in a detention facility, consisted of these same two elements, and added a third element: “three, Donald Lamar Green was detained in a facility.” These elements were consistently used in the instructions to the jury and argument of counsel.

The offenses are not “separate criminal offenses” for purposes of section 775.021(4)(a), Florida Statutes because count I did not require proof of an element in addition to the elements required to prove count II. We reject Appellee’s argument that the multiple stab wounds to the victim constitute separate offenses for each wound. In addition, section 784.082, Florida Statutes, provides for the “reclassification” of “the offense for which the person is charged” when the defendant committed the offense upon another detainee while both were detained in a detention facility. “Reclassification” does not create a new and separate offense, but changes the degree of the felony already charged.

Under the clear language of section 784.082, aggravated battery with a deadly weapon and aggravated battery with a deadly weapon by one detainee upon another are degree variants of the same offense, not separate offenses. See § 775.021(4)(b), Fla. Stat. (statutes describing degrees of same offense to be construed most favorably to accused). “Appellant cannot be convicted twice for the same offense arising from the same act.” Cook v. State, 813 So.2d 1010, 1012 (Fla. 1st DCA 2002); see also Hall v. State, 654 So.2d 253 (Fla. 1st DCA 1995) (reversing convictions for aggravated battery and aggravated battery on person 65 years of age or older, which arose from same facts).

Because the two convictions for aggravated battery are based on the same criminal episode, and because the element of the location of the aggravated battery in a detention facility reclassifies the offense but does not create a separate crime, the dual convictions constitute double jeopardy. Accordingly, the conviction and sentence for count I (aggravated battery) is reversed and this case remanded for the trial court to vacate the conviction and sentence for count I. The conviction for count II is affirmed and this case is remanded for resentencing on count II (aggravated battery in detention facility) under a revised criminal punishment code scoresheet.

AFFIRMED IN PART and REVERSED IN PART.

ROBERTS and CLARK, JJ., concur; THOMAS, J., concurs in result only.


author: MAY, C.J.

text:
    STATE of Florida, Appellant, v. Damon CORNER, Appellee.
    No. 4D11-2977.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 2012.
    Rehearing Denied April 18, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellee.
   MAY, C.J.

The scales of justice are put to task in reviewing an order granting the defendant’s motion for post-conviction relief and awarding him a new trial. The State appeals the order granting the defendant a new trial and argues the court erred in granting the post-conviction relief motion based upon newly discovered evidence. We disagree and affirm.

After a grand jury refused to return an indictment for first degree murder, the State charged the defendant by information with attempted first degree murder with a firearm of the surviving victim. It was not until its third amended information that it added a second count, charging the defendant with second degree murder with a firearm of the deceased victim. The charges stemmed from a drive-by shooting in which the surviving victim was shot in the leg. The deceased victim suffered a fatal gunshot wound. The only evidence connecting the defendant to the drive-by shootings was the surviving victim’s identification of the defendant as the shooter. A jury convicted the defendant of both offenses as charged. The trial court adjudicated him guilty, and sentenced him to concurrent terms of life in prison with a twenty-five year mandatory minimum term, pursuant to the 10-20-life statute.

Two and a half years later, the defendant moved for post-conviction relief, alleging his counsel rendered ineffective assistance by failing to call two alibi witnesses. A year and a half later, the State filed its response, agreeing the motion required an evidentiary hearing. Defense counsel filed an amended motion, alleging the existence of newly discovered evidence, and an affidavit from the surviving victim, casting doubt on his identification of the defendant as the shooter.

The affidavit contained the following attestations:

I was shot in a drive-by shooting that occurred on June 18, 2001 on Spruce Avenue, at the corner of 16th Street, West Palm Beach, Florida.
I told the police that it was a person known to me [by the defendant’s name] who shot me.
I testified at his trial and identified [the defendant] as the person who shot me. After the shooting people were telling me that it was him who shot Bobby and me.
I tried to solve the murder because it was my friend, Bobby, who died.
Before I testified at the trial, the prosecutor told me it was important to stick to my story that I had told the police and identify [the defendant] by saying that I looked him in the eyes. Aj
I felt like I might get in trouble if I changed my story, because I had to raise my hand in court.
At first I really did think it was [the defendant] who did the shooting, because that’s what everybody was saying, but now I think it wasn’t him.
I think I made a mistake in saying it was him, just because I heard it from the street.

(Emphasis added).

The court held an evidentiary hearing, at which the defendant, the defendant’s companion that night, two additional alibi witnesses, the chief investigator for the Public Defender’s Office, the surviving victim, the 911 caller, and a psychologist tes-tiffed. The trial court entered a written order, making very specific findings of fact, including:

After observing the witnesses at the evidentiary hearing, listening to their testimony, and weighing their credibility, this Court is convinced that [the surviving victim’s] statements in his affidavit that he identified [the defendant] based on what others told him rather than what he saw himself is true.... [T]he Court believes that [the surviving victim] admitted his belief that he made a mistake in his identification during a telephone call, he agreed to sign an affidavit, he asked others to prepare it since he has limited ability to read or write, the affidavit was read to him by defense counsel and thoroughly explained, and he raised his hand and swore that it was true before signing it.
... [T]he Court finds highly credible the evidence presented that [the defendant’s] burgundy Bonneville was parked and blocked in at the party ... from 6:30 or 7:[00] p.m. until well after 9:[00] p.m.... [The alibi witnesses] ... each remember the vehicle, even after all this time, because of the new sound system which [the defendant] was showing off. Each agreed that due to the number of people at the block party, all the parking nearby was full by 7 p.m., the street had become one-way due to the traffic and people, and moving the car would have garnered attention and notice.... The Court finds it highly unlikely that [the defendant] would have been in some other burgundy Bonneville doing a drive by shooting ... yet this is exactly what the Court would have to believe to reconcile [the surviving victim’s] claim at the evi-dentiary hearing that his original testimony rather than his affidavit is true.
... While [the surviving victim’s] testimony was that the shooter’s car was a burgundy Bonneville, [the 911 caller’s] testimony contradicts that claim. [The 911 caller], who was at the corner when the shooting occurred and was a friend of [the surviving victim and his brother], has consistently told everyone who asked from the beginning that the car she saw with the gunman still hanging out was a white car not a burgundy car.
... Clearly, as [the clinical psychologist] testified, studies show and exonera-tions demonstrate, witness confidence or certainty is unrelated to the accuracy of an eyewitness identification.
... Regarding [the surviving victim’s] claim that the shooter was in a burgundy Bonneville, [the clinical psychologist] questioned whether [the surviving victim] would have used the word “burgundy” to describe a color unless he heard that from someone else first. Further, [the clinical psychologist] testified that one of the several problems with eyewitness identification is what he described as “unconscious transference.” ... In this case [the surviving victim] saw [the defendant] earlier at the convenience store and, as explained by [the defendant’s companion], [the defendant’s] car was there as well.
... [The clinical psychologist’s] testimony, thus lends credibility to [the surviving victim’s] affidavit wherein he swore that he identified [the defendant] based on what others told him, including his brother Tavares.
The trial court concluded:
Clearly, [the surviving victim’s] statements in the affidavit that he did not actually see who shot him but was instead relying on hearsay in making his identification would be both material and relevant to the sole issue in trial, the identity of the shooter. The statements go to the very heart of the case since [the surviving victim’s] identification was the only evidence implicating [the defendant].
... This Court has made an explicit factual finding that [the surviving victim’s] recantation was credible and that his original trial testimony and his recantation of his recantation at the 8.850 evidentiary hearing [were] not credible. The Court was there. It heard the evidence. It believes strongly in this credibility determination.
... When determining if newly discovered evidence would probably produce an acquittal, this Court has considered whether the affidavit would have been admissible, weighed if the affidavit went to the merits of the case, looked for inconsistencies in the affidavit, questioned whether this was just impeachment evidence, asked if there was evidence admitted at trial similar to the affidavit, and sought to reconcile the affidavit with other record evidence.
The answers to the questions posed in the previous paragraph all lead to one inevitable conclusion. It is clear to this Court that the newly discovered affidavit, had it been known at trial, would probably produce an acquittal.

The trial court granted the motion on that basis, but denied the motion on the basis that trial counsel’s failure to call the alibi witnesses constituted ineffective assistance of counsel. The trial court directed that the defendant be given a new trial. From this order, the State has appealed.

The State argues the trial court erred in granting the defendant’s motion for post-conviction relief based on the surviving victim’s affidavit because the affiant did not recant his trial testimony at the evi-dentiary hearing. The State further argues the affidavit alone cannot merit review where the newly discovered evidence is inadmissible hearsay. Lastly, the State argues that to grant a new trial, the trial court must be satisfied that the witness’s testimony at a re-trial will change the outcome of the original trial.

“Two requirements must be met in order for a conviction to be set aside on the basis of newly discovered evidence. First, in order to be considered newly discovered, the evidence ‘must have been unknown by the trial court, by the party, or by counsel at the time of trial, and it must appear that defendant or his counsel could not have known [of it] by the use of diligence.’ ” Jones v. State, 709 So.2d 512, 521 (Fla.1998) (quoting Torres-Arboleda v. Dugger, 636 So.2d 1321, 1324-25 (Fla.1994)). “Second, the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial.” Id. (citing Jones v. State, 591 So.2d 911, 911, 915 (Fla.1991)).

“As long as the trial court’s findings are supported by competent substantial evidence, ‘[we] will not substitute [our] judgment for that of the trial court on ... the credibility of the witnesses[,] ... [or] the weight to be given to the evidence by the trial court.’ ” Melendez v. State, 718 So.2d 746, 747-48 (Fla.1998) (quoting Blanco v. State, 702 So.2d 1250, 1251 (Fla.1997)). Here, the trial court explicitly found that the victim’s affidavit was credible and that his testimony at the evidentia-ry hearing was not. The affidavit disclosed that the surviving victim was no longer certain it was the defendant who shot him. This constituted newly discovered evidence because it was unknown at the time of trial, and the defendant or his counsel could not have known of it by the use of diligence.

Because the surviving victim’s identification was the “only evidence implicating [the defendant],” an admission that he did not actually see the shooter would be both highly material and relevant. Further, the testimony of the other witnesses corroborated the affidavit, not the surviving victim’s testimony. And the trial court explicitly found the affidavit more credible than his testimony. Along with other corroborating testimony, the court found the affidavit sufficient to weaken the case against the defendant and create reasonable doubt. Under the unique circumstances of this case, we affirm.

Affirmed.

STEVENSON and GROSS, JJ., concur.

      . The italicized portion was added at the request of the surviving victim, as indicated by the placement of his initials,

      . Two former prosecutors and the defense attorney also testified.

      . We find Wyatt v. State, 71 So.3d 86 (Fla.2011), distinguishable.


text:
    Naomi GONZALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2008.
    District Court of Appeal of Florida, Fourth District.
    Feb. 29, 2012.
    Rehearing Denied April 24, 2012.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Laura Fisher, Assistant Attorney General, West Palm Beach, for ap-pellee.
   PER CURIAM.

The Appellant, Naomi Gonzalez, was charged with one count of trafficking in oxycodone by possessing four grams or more but less than fourteen grams, and one count of withholding information from a practitioner. She filed a motion to dismiss the trafficking count based on the prescription defense. After her motion was denied, she pled no contest to both counts, reserving her right to appeal the dispositive order denying her motion. Because the state’s traverse disputed an interpretation of law rather than the factual issue of whether Gonzalez had a valid prescription, we reverse.

Gonzalez’s motion to dismiss alleged that she had valid prescriptions for the pills found in her possession. In its first traverse, the state denied that Gonzalez had valid prescriptions. The state then clarified in a second traverse that it disputed whether a prescription obtained fraudulently was valid.

At the hearing on the motion to dismiss, the state stipulated to the facts contained in Gonzalez’s motion, and argued that the second prescription was not valid because Gonzalez procured it by telling the doctor that she had not obtained a prescription for oxycodone within the prior thirty days.

We review the denial of the motion to dismiss de novo. Knipp v. State, 67 So.3d 376, 378 (Fla. 4th DCA 2011). “The function of a [Florida Rule of Criminal Procedure 3.190] ‘(c)(4)’ motion is to ascertain whether the undisputed facts which the state will rely on to prove its case, establish a prima facie case, as a matter of law, so as to permit a jury to determine the defendant guilty of the crime charged.” State v. Walthour, 876 So.2d 594, 595 (Fla. 5th DCA 2004) (citations omitted). The trial court must deny the motion if the state files a traverse that with specificity denies under oath the material facts alleged in the motion. Knipp, 67 So.3d. at 378.

Section 499.03(1), Florida Statutes (2009), provides in part:

A person may not possess, or possess with intent to sell, dispense, or deliver, any habit-forming, toxic, harmful, or new drug subject to s. 499.003(32), or prescription drug as defined in s. 499.003(42), unless the possession of the drug has been obtained by a valid prescription of a practitioner licensed by law to prescribe the drug.

The state argues that Gonzalez’s prescription wasn’t valid because she obtained it in violation of section 893.13(7)(a)8., Florida Statutes (2009), also known as the “doctor shopping statute.” This court has rejected that argument in cases involving various manners of violating the doctor shopping statute. Id. at 380 (defendants failed to advise doctor they had obtained a prescription for oxycodone within the previous thirty days); Wagner v. State, _ So.3d _, _, 2012 WL 75107 (Fla. 4th DCA 2012) (defendant signed a statement that he had not received any narcotic medication from another doctor).

Accordingly, we reverse and remand with directions to vacate the conviction for trafficking in oxycodone. Gonzalez does not challenge her conviction for doctor shopping.

POLEN, TAYLOR and HAZOURI, JJ„ concur.


text:
    Travius GAYLE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-3086.
    District Court of Appeal of Florida, Fifth District.
    March 2, 2012.
    Travius Gayle, Jasper, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, for Respondent.
   PER CURIAM.

Petitioner, Travius Gayle [“Gayle”], seeks a second appeal, alleging ineffective assistance of appellate counsel. An Anders brief was originally filed in 2009, and this court affirmed the judgment and sentence in 2009. See Gayle v. State, 17 So.3d 1240 (Fla. 5th DCA 2009).

Gayle has raised five claims of ineffective assistance of appellate counsel. There is merit in only one. This is another State v. Montgomery, 39 So.3d 252 (Fla.2010) fundamental error problem. The trial court gave the standard jury instruction for manslaughter by act, including the erroneous reference to “intent to kill.” Although the Supreme Court’s opinion in Montgomery had not been issued by the time Gayle’s appeal was final on October 7, 2009, the First District’s Montgomery decision finding fundamental error and certifying conflict with this Court’s decision in Barton v. State, 507 So.2d 638 (Fla. 5th DCA 1987) had been published in February 2009. We are bound to find that appellate counsel was ineffective in failing to raise the issue. Lopez v. State, 68 So.3d 332 (Fla. 5th DCA 2011). We accordingly grant the belated appeal, reverse the conviction of second-degree murder and remand for a new trial on that count alone.

REVERSED and REMANDED.

ORFINGER, C.J., GRIFFIN and SAWAYA, JJ., concur.

      . Montgomery v. State, 70 So.3d 603 (Fla. 1st DCA 2009).


text:
    Adiexney PORTALEZ, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-4384.
    District Court of Appeal of Florida, Fifth District.
    March 6, 2012.
    Rehearing Denied April 9, 2012.
    Jack A. Fleischman, of Fleischman & Fleischman, P. A., West Palm Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Nieminski v. State, 60 So.3d 521 (Fla. 2d DCA 2011).

ORFINGER, C.J., TORPY and LAWSON, JJ„ concur.


text:
    Kai Uwe THIER, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-4350.
    District Court of Appeal of Florida, Fourth District.
    March 7, 2012.
    Rehearing Denied April 18, 2012.
    Kai Uwe Thier, Daytona Beach, pro se.
    No appearance required for appellee.
   PER CURIAM.

We affirm the summary denial of appellant’s motion for postconviction relief.

As to claims of lack of jurisdiction because of lack of oaths of officials, see Calixte v. State, 53 So.3d 385 (Fla. 4th DCA 2011). As to claims regarding failure to argue the motion to quash the information, the pro se motion to quash was filed, adopted by counsel, and could have been raised as an issue on appeal. It was not, because it was entirely meritless. See Fla. R.Crim. P. 3.140(g) and State v. Weir, 488 So.2d 557, 558 (Fla. 5th DCA 1986). As to the failure to strike the juror for cause, not only did appellant affirmatively accept the jury without exhausting his peremptory challenges, but postconviction relief is unavailable as to this juror. See Carratelli v. State, 961 So.2d 312, 318-19 (Fla.2007).

Appellant’s further claims of improper closing argument are conclusively refuted by the record, as the comments raised by appellant, when placed in context, are not error. Moreover, prejudice has not been shown pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). As to his claim that his sentence violated double jeopardy, he has already raised this issue in an appeal of a motion to correct an illegal sentence, and we affirmed his sentence. Because the two counts involved separate intended victims, double jeopardy does not prohibit consecutive sentences. See Mauldin v. State, 9 So.3d 25, 28 (Fla. 4th DCA 2009). The remaining claim that appellant argues in his brief (lack of jurisdiction because he is not a citizen of this country) is meritless.

Appellant has waived the challenge to all other claims by not specifically raising them in his brief. See, e.g., Boudreaux v. State, 45 So.3d 36, 37 (Fla. 1st DCA 2010). Nevertheless, we have reviewed them and find the remaining claims to be legally insufficient to warrant an evidentia-ry hearing, even after the court permitted him leave to amend pursuant to Spera v. State, 971 So.2d 754, 757 (Fla.2007).

Appellant’s claim that the judge showed bias by granting continuances to the state to give it more time to respond to his motion is also meritless,, as the mere granting of continuances properly sought is legally insufficient to show bias or prejudice toward the state.

Finally, appellant claims that the trial court’s order was legally insufficient because it adopted and attached the state’s response. The rules do not preclude a trial court from incorporating a response from the state into the trial court’s ruling, if the state has provided those portions of the record refuting the prisoner’s claims with particularity and has attached the pertinent portions of the record. See Evans v. State, 731 So.2d 766, 767 (Fla. 4th DCA 1999).

For all of the above reasons, the trial court’s order is affirmed.

WARNER, POLEN and LEVINE, JJ„ concur.


text:
    Samuel FULLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-0794.
    District Court of Appeal of Florida, First District.
    March 8, 2012.
    Rehearing Denied April 11, 2012.
    Samuel Fuller, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. RApp. P. 9.141(d)(5) (providing a two-year time limit for raising a claim of ineffective assistance of appellate counsel).

DAVIS, CLARK, and ROWE, JJ., concur.


text:
    Roland R. GALLIE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2228.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON MOTION FOR REHEARING

PER CURIAM.

Upon consideration of Roland Gallie’s motion for rehearing, we grant the motion, withdraw the opinion issued on January 10, 2012, and substitute this opinion in its place.

See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

AFFIRMED.

SAWAYA, PALMER and EVANDER, JJ., concur.


text:
    Cordell L. GRIFFIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-2635.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    James S. Purdy, Public Defender, and Kevin R. Holtz, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

ORFINGER, C.J., PALMER and EVANDER, JJ., concur.


text:
    Jimmie L. DENNIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-3876.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    Jimmie L. Dennis, Lompac, Ca., pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

GRIFFIN, PALMER and JACOBUS, JJ., concur.


text:
    Wendell E. SANDRIDGE, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1302.
    District Court of Appeal of Florida, Fifth District.
    March 9, 2012.
    James S. Purdy, Public Defender, and Allison A. Havens, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

EVANDER, COHEN and JACOBUS, JJ., concur.


author: SILBERMAN, Chief Judge.

text:
    TRUCAP GRANTOR TRUST 2010-1, Petitioner, v. Glenn W. PELT; Linda A. Pelt; Mortgage Electronic Registration Systems, Inc.; Min No. 1002370-9000063487-7; Beneficial Florida, Inc.; PNC Bank, N.A., Successor by Merger to National City Bank; and Lake Jovita Homeowners Association, Inc., Respondents.
    No. 2D11-2492.
    District Court of Appeal of Florida, Second District.
    March 14, 2012.

      Roy A. Diaz and Diana B. Matson of Smith, Hiatt & Diaz, P.A., Ft. Lauderdale, for Petitioner.
    No appearance for Respondents.
   SILBERMAN, Chief Judge.

Petitioner Trucap Grantor Trust 2010-1 seeks certiorari review of a nonfinal order that denies without prejudice Trucap’s motion to amend its complaint to add a count to reestablish a lost promissory note in Trucap’s mortgage foreclosure action against Respondents Glenn and Linda Pelt and other interested parties. The trial court denied Trucap’s motion to amend its complaint without prejudice based on the court’s interpretation of the verification requirement in Florida Rule of Civil Procedure 1.110(b). We grant the petition and quash the trial court’s order.

Trucap filed an action to foreclose real property and subsequently filed on March 29, 2011, a motion to amend the complaint to add a count to reestablish a lost promissory note. Trucap filed a copy of its proposed amended complaint with its motion. The trial court determined that Trucap’s verification of the amended complaint, now required by rule 1.110(b), was insufficient because it was based on “knowledge and belief.” The trial court determined that the verification in a foreclosure action “must allege that the facts in the complaint are ‘true and correct’ without any qualifying statements.” The trial court denied the motion to amend as to the proposed amended complaint, but the court allowed Trucap forty-five days to file an amended complaint that would include what the court believed to be the required verification language. The court stated that pursuant to section 92.525(2), Florida Statutes (2010), the amended complaint must contain a verification that states, “Under penalties of perjury, I declare that I have read the foregoing complaint and the facts stated in it are true.”

In its petition for writ of certiorari, Tru-cap asserts that the trial court departed from the essential requirements of the law by imposing a more stringent requirement than rule 1.110(b) provides for and that Trucap is unable to comply with the trial court’s ruling. Trucap contends that it is unable under penalty of perjury to verify that the alleged facts are true without the qualifying language “to the best of my knowledge and belief.” We note that the proposed amended complaint alleges Tru-cap’s “assignor(s) and predecessors(s) were in possession of the instrument and were entitled to enforce the note when the loss occurred.” Because Trucap cannot comply with the more stringent verification requirement, it asserts that it is unable to proceed with the foreclosure action.

To obtain certiorari relief on an interlocutory order, the petitioner must demonstrate “ ‘(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on postjudgment appeal.’ ” Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004) (quoting Bd. of Regents v. Snyder, 826 So.2d 382, 387 (Fla. 2d DCA 2002)); see also Fassy v. Crowley, 884 So.2d 359, 363 (Fla. 2d DCA 2004). The appellate court must initially consider the final two elements because they are jurisdictional. See Fassy, 884 So.2d at 363.

Ordinarily, an injury resulting from an order denying a motion to amend a complaint would be treated as one that could be remedied by an appeal from the final judgment and not subject to certiorari review. See, e.g., Skyrme v. R.J. Reynolds Tobacco Co., 75 So.3d 769, 771 (Fla. 2d DCA 2011); Harry Pepper & Assocs., Inc. v. City of Cape Coral, 369 So.2d 969, 970 (Fla. 2d DCA 1979); Majestic Sun Owners’ Ass’n, Inc. v. Fla. Condos I Ltd. P’ship, 895 So.2d 534, 534 (Fla. 1st DCA 2005). But see Surette v. Galiardo, 309 So.2d 253, 253 (Fla. 4th DCA 1975) (determining that, due to the “special circumstances” of the case and the inadequacy of the remedy by appeal, certiorari relief was warranted concerning an order denying a motion to amend a complaint to add defendants).

Although the trial court denied Trucap’s motion to amend its complaint without prejudice to refile within forty-five days, Trucap argues that the court’s order effectively left Trucap without the ability to amend because Trucap could not in good faith meet the more stringent verification requirement. Thus, while the erroneous denial of a motion to amend normally could be remedied on appeal from the final judgment, in this unusual circumstance Trucap cannot in good faith proceed with its foreclosure action and cannot obtain a final judgment. It appears that, at most, Tru-cap could seek a voluntary dismissal of its foreclosure action, which would not be ap-pealable. Therefore, because Trucap cannot proceed to obtain an appealable final judgment, it will suffer material injury that cannot be corrected on postjudgment appeal. Accordingly, we conclude that Trucap has met the jurisdictional hurdle to obtain certiorari review.

Trucap must next demonstrate a departure from the essential requirements of the law. A departure from the essential requirements of the law is more than simple legal error; rather, it is “a violation of a clearly established principle of law resulting in a miscarriage of justice.” Fassy, 884 So.2d at 364. In addition to case law, clearly established law can originate from statutes and procedural rules; thus* “ ‘an interpretation or application of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review.’ ” Id. (quoting Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003)).

The Florida Supreme Court amended rule 1.110(b), effective February 11, 2010, to add a verification requirement for residential mortgage foreclosure complaints. See In re Amendments to the Fla. Rules of Civil Procedure, 44 So.3d 555, 556, 559 (Fla.2010). The supreme court indicated that

[t]he primary purposes of this amendment are (1) to provide incentive for the plaintiff to appropriately investigate and verify its ownership of the note or right to enforce the note and ensure that the allegations in the complaint are accurate; (2) to conserve judicial resources that are currently being wasted on inappropriately pleaded “lost note” counts and inconsistent allegations; (3) to prevent the wasting of judicial resources and harm to defendants resulting from suits brought by plaintiffs not entitled to enforce the note; and (4) to give trial courts greater authority to sanction plaintiffs who make false allegations.

Id. at 556.

The rule now provides in pertinent part as follows:

When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement: “Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.”

Fla. R. Civ. P. 1.110(b). The plain language of rule 1.110(b) clearly requires residential mortgage foreclosure complaints to include verification language and allows the verification language set forth in that rule.

Section 92.525, upon which the trial court relied, provides that when a document must be verified, the verification may be accomplished by the following written, signed declaration: “Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true[.]” § 92.525(1), (2). Section 92.525(2) provides an exception “when a verification on information or belief is permitted by law, in which case the words ‘to the best of my knowledge and belief may be added.” Section 92.525(4)(b) defines “document” to include any “pleading[ ] or paper.” See also Muss v. Lennar Fla. Partners I, L.P., 673 So.2d 84, 85 (Fla. 4th DCA 1996) (“The term document includes pleadings.”). A complaint is a pleading, see Garcia v. Stewart, 906 So.2d 1117, 1123 (Fla. 4th DCA 2005), as well as a document.

Thus, because rule 1.110(b) specifically provides for a verification based on knowledge and belief, the generally applicable declaration in section 92.525(2) that the facts “are true,” without limitation, does not control. However, the trial court found that the second new sentence of rule 1.110(b), regarding knowledge and belief, does not apply to a complaint because it refers to verification of a “document.” The trial court found “that a foreclosure complaint is a pleading and is not a document as appears to be contemplated by the second new sentence in the rule.” But, as discussed above, a complaint is a pleading, and a pleading is a document. Instead of applying the second new sentence of the rule, the trial court relied upon Muss to determine that the declaration provided for in section 92.525(2) that the facts “are true,” without qualification, controlled.

Muss was decided before the amendment to rule 1.110(b). Further, Muss involved an expedited foreclosure proceeding under section 702.10, Florida Statutes (1993). 673 So.2d at 85. Section 702.10(1), Florida Statutes (2010), requires, among other things, that the complaint be verified to allow the expedited procedure. Section 702.10 does not specify the language required for verification. But even if verification under that statute cannot be based on knowledge and belief, Trucap has not sought foreclosure under that statute. Thus, the trial court relied upon inapplicable case law in ordering Trucap to meet a more stringent verification standard.

Instead, rule 1.110(b) applies, and Tru-cap properly used the verification language contained in the rule. The trial court departed from the essential requirements of law in relying upon inapplicable case law and imposing a more stringent standard than the rule requires. Therefore, we grant the petition for writ of certiorari and quash the trial court’s order that denies Trucap’s motion to amend its complaint.

Petition granted.

CASANUEVA and DAVIS, JJ., Concur.


text:
    Jacquelyn BENNETT and Bobbi Sue Miller, Petitioners, v. Marie-Christine BERGES, Chrisitan Devocht and Jean-Luc Devocht, Respondents.
    No. 4D10-4874.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2012.
    Rehearing Denied April 26, 2012.
    Charles D. Franken of Charles D. Franken, P.A., Plantation, for petitioners.

      Nancy W. Gregoire of Kirschbaum, Birnbaum, Lippraan & Gregoire, PLLC, Fort Lauderdale, and Jody Leslie of Leslie & McLaughlin, LLP, Fort Lauderdale, for respondents.
   PER CURIAM.

Petitioners, Jacquelyn Bennett and Bobbi Sue Miller, seek certiorari review of an order directing their former attorney to produce certain documents, for an in camera review. For reasons discussed herein, the petition is denied. This is a probate case, the details of which are discussed in depth in two prior opinions from this Court. See Bennett v. Berges, 32 So.3d 771 (Fla. 4th DCA 2010) (hereinafter “Bennett I ”); Bennett v. Berges, 50 So.3d 1154 (Fla. 4th DCA 2010) (hereinafter “Bennett II”).

Relevant to this petition, a dispute arose as to the enforceability of a settlement agreement, which determined a 2005 will would be admitted to probate. Bennett I, 32 So.3d at 771. Because it was unclear whether the settlement agreement was enforceable, this Court reversed and remanded for an evidentiary hearing on that issue. Id. at 771-72. Pursuant to Bennett I, Respondents filed a motion to determine the validity of the settlement agreement and set the motion for a three-day eviden-tiary hearing.

In connection with the hearing, Respondents subpoenaed Petitioners’ former attorney to produce:

Any and all communications and/or documentation which set forth directions, affirmations, and/or acquiesces (sic) received from Jacquelyn Bennett and/or Bobbi Sue Miller authorizing the presentation to the court of the “agreed upon” Formal Settlement Agreement, Order Requiring the Distributions, Releases and Stipulations for Dismissal, and/or any and all other documents anticipated to be part of same which had been anticipated to be signed by Respondents Jacquelyn Bennett and/or Bobbi Sue Miller on or about May 29, 2008.

In response, Petitioners objected on the grounds that the documents subject to the subpoena were protected by the attorney-client privilege. Respondents then moved for an order compelling the attorney to produce the requested documents.

On November 11, 2010, prior to any hearing, the attorney provided the parties with a letter listing the documents responsive to the subpoena: (1) an April 30, 2008 email from Jacquelyn Bennett to his assistant; (2) a copy of the formal settlement agreement with notations and writing on it; (3) a May 1, 2008 email exchange between Jacquelyn Bennett and himself; (4) a second May 1, 2008 email between Jacquelyn Bennett and himself; (5) a May 8, 2008 email between Jacquelyn Bennett and himself; and (6) a May 13, 2008 email between Jacquelyn Bennett and himself. His letter indicated that he was preserving his privilege assertion.

On November 17, 2010, the trial court heard Respondents’ motion to compel, including the parties’ arguments with respect to whether or not the documents subpoenaed were protected by the attorney-client privilege. At the conclusion of the hearing, the trial court ordered the documents in the attorney’s privilege log to be produced for an in camera inspection within ten days. Petitioners seek certiora-ri review of that order.

For certiorari to lie, a petitioner must demonstrate that the trial court departed from the essential requirements of law resulting in material harm of an irreparable nature. S & I Invs. v. Payless Flea Market, Inc., 10 So.3d 699, 701 (Fla. 4th DCA 2009); see also Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). A trial court’s order erroneously compelling discovery of information protected from discovery by the attorney-client privilege is renewable by certiorari. S & I Invs., 10 So.3d at 701; see also Langston, 655 So.2d at 94. “The basis for allowing certiorari review of certain discovery orders is that discovery of protected material could result in letting the ‘cat out of the bag,’ and injury could result if such information was disclosed.” Cape Canaveral Hosp., Inc. v. Leal, 917 So.2d 336, 339 (Fla. 5th DCA 2005). When a party is required to turn over protected documents, they are beyond relief. See Langston, 655 So.2d at 94 n. 2.

If a party seeks to compel the disclosure of documents that the opposing party claims are protected by attorney-client privilege, the party claiming the privilege is entitled to an in camera review of the documents by the trial court prior to disclosure. See Old Holdings, Ltd. v. Taplin, Howard, Shaw & Miller, P.A., 584 So.2d 1128, 1128-29 (Fla. 4th DCA 1991) (finding that where documents may be protected by both the attorney-client privilege and the work-product doctrine, the petitioners are entitled to an in camera review of the documents by the trial court prior to disclosure); see also Nationwide Mut. Fire Ins. Co. v. Hess, 814 So.2d 1240, 1243 (Fla. 5th DCA 2002) (stating that the trial court should have conducted an in camera inspection of documents before compelling disclosure when a discovery request, on its face, required disclosure of attorney-client communications); Zanardi v. Zanardi, 647 So.2d 298, 298 (Fla. 3d DCA 1994) (stating that the petitioner is entitled to an in camera review for the trial court to determine whether the assertion of attorney-client privilege is valid).

Here, the trial court properly ordered an in camera review of the relevant documents claimed to be privileged. The order does not compel Petitioners to produce the documents to Respondents. After an in camera inspection, the trial court may determine that the documents are privileged and uphold Petitioners’ objection to the discovery request. Accordingly, because the order requires a party to submit allegedly protected materials only for an in camera inspection, and the trial court may never require disclosure of the documents to the opposing party, we hold that the petition is premature. See Cape Canaveral, 917 So.2d at 340 (holding cer-tiorari review was premature because no irreparable harm had been demonstrated where the order under review merely required documents to be produced for an in camera inspection and no discovery had yet been ordered); Gaton v. Health Coal., Inc., 774 So.2d 59 (Fla. 3d DCA 2000) (certiorari review of an order requiring submission of documents allegedly protected by the trade secret privilege to the courts for an in camera inspection was premature because no production had been ordered to the opposing party). But see Cebrian By & Through Cebrian v. Klein, 614 So.2d 1209 (Fla. 4th DCA 1993) (granting a writ of certiorari and quashing an order requiring in camera inspection of certain HRS investigation reports because the shield law found in section 415.52(2), Florida Statutes (1990), created a privilege for such reports; thus, an in camera inspection was not necessary to determine whether the material was or was not protected).

Whether the trial court has misapprehended the scope of the privilege is a question we need not decide because to date, no discovery has been ordered. Accordingly, the petition is denied.

Petition Denied.

WARNER, POLEN and DAMOORGIAN, JJ., concur.


text:
    Willard Nathaniel PAUL, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2955.
    District Court of Appeal of Florida, Fourth District.
    March 14, 2012.
    Rehearing Denied April 18, 2012.
    Willard Nathaniel Paul, Wewahitchka, pro se.
    No appearance required for appellee.
   PER CURIAM.

Willard Paul appeals the summary denial of an amended rule 3.850 motion. Although the final order did not specifically address each of Paul’s claims, the order dismissing his original 3.850 motion explained why each of the claims was insufficient, and Paul did not cure the deficiencies in his amended motion. Because his claims are facially insufficient and without merit, we affirm.

GROSS, HAZOURI and DAMOORGIAN, JJ., concur.


text:
    Luis R. VICENTE, Petitioner, v. STATE of Florida, Respondent.
    No. 5D12-634.
    District Court of Appeal of Florida, Fifth District.
    March 14, 2012.
    Rehearing Denied April 9, 2012.
    Robert Wesley, Public Defender, and Jared Adelman, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

We find that Petitioner’s verified Motion for Disqualification of the trial judge was legally sufficient. See Fla. R. Jud. Admin. 2.330(d). Accordingly, we quash the trial court’s order denying Petitioner’s motion. We withhold issuing the writ, as we assume that the trial court will act in conformance with this opinion.

ORDER QUASHED.

ORFINGER, C.J., MONACO and COHEN, JJ., concur.


text:
    Jerry Leon WASHINGTON, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3508.
    District Court of Appeal of Florida, Fifth District.
    March 16, 2012.
    Jerry L. Washington, Lake Butler, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ON MOTION FOR REHEARING

PER CURIAM.

We grant Jerry L. Washington’s motion for rehearing, withdraw our earlier per curiam affirmance, and substitute the following in its place.

We affirm and write only to address one issue. As to the Shelton issue, we affirm based on Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011). We certify that the same issue reviewed in this case is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandate will be withheld pending final disposition of Adkins.

AFFIRMED.

ORFINGER, C.J., GRIFFIN and MONACO, JJ., concur.

      . Shelton v. Sec’y, Dep’t of Corrs., 802 F.Supp.2d 1289 (M.D.Fla.2011).