text:
    Helen REARICK, as Personal Representative of the Estate of Lana Parzyszek, Deceased, Appellant, v. R.J. REYNOLDS TOBACCO COMPANY and Philip Morris USA, Inc., Appellees.
    Nos. 3D10-439, 3D10-2317.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2011.
    Rehearing Denied Sept. 22, 2011.

      Gary, Williams, Finney, Lewis, Watson & Sperando and Paul D. Mark Lucas, Stuart and Marwan E. Porter; Hunter, Williams & Lynch, Stuart, and Steven K. Hunter, and Christopher J. Lynch, Miami, for appellant.
    Jones Day and Stephanie E. Parker and John F. Yarber; Carlton Fields and Gary L. Sasso, Tampa and Joseph Hagedorn Lang, Jr. and Leah A. Sevi, Tallahassee, for appellees.
    Before RAMIREZ and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   RAMIREZ, J.

Helen Rearick, etc., appeals the trial court’s award of final summary judgment in favor of the appellees, R.J. Reynolds Tobacco Company and Philip Morris USA, Inc., and the court’s denial of her motion for relief from judgment in this wrongful death action brought on behalf of the survivors of her daughter Lana Parzyszek.

The case was filed under Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006). Engle defined the class as “[a]ll Florida citizens and residents, and their survivors, who have suffered, presently suffer and who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.” Id. at 1274. The qualification for membership in the Engle class requires plaintiff to show that the decedent was a resident of the state of Florida at the time of a “medical diagnosis” of a smoking-related disease or at the time evidence of the causal relationship of the cause of action had [otherwise] manifested itself. Id. We affirm because there is no record evidence that Parzyszek’s disease manifested itself during her Florida residency so as to satisfy the criteria for membership into the Engle class.

Parzyszek was born in Illinois in 1948. She lived in Florida from approximately late in 1987 or early 1988 until she moved to Illinois to live with her mother in approximately late 1991 or early 1992. In August of 1993, she was diagnosed in Illinois with lung cancer. She received treatment there until her death in 1993.

Rearick filed the underlying wrongful death action on January 11, 2008. The defendants moved for summary judgment on the grounds that Rearick’s claim was time-barred because Parzyszek was not an Engle class member and as a result, the wrongful death action filed in 2008, fifteen years after her death, was untimely. In essence, the defendants argued that undisputed evidence showed that Parzyszek was not an Engle class member because she was not a Florida citizen or resident when she was diagnosed with lung cancer in 1993.

Rearick argued that the claim was timely since it was filed within one year of the Engle mandate. Because Parzyszek suffered from a smoking-related disease while a resident of Florida, she qualified as a member of the Engle class. Rearick relied upon affidavits and deposition testimony which showed that Parzyszek exhibited smoking-related symptoms, such as breathing problems and a severe cough, and was suffering from bronchitis, a form of COPD, as well as lung cancer, both smoking related diseases, during the term of her Florida residency.

Defendants counter that Rearick’s contention that Parzyszek first manifested the disease during her Florida residency could not prevent the entry of summary judgment because it was based on two expert affidavits that used the term “manifested” in a manner that is contrary to the legal definition of the term, which the defendants asserted, was required by Engle. Furthermore, even if Parzyszek’s disease had “manifested” itself as early as 1988, Rearick’s claim would still be time-barred by Florida’s four-year statute of limitations, section 95.11(3)(a), Florida Statutes (2011), which would have run in 1992, two years prior to the filing of the original Engle complaint.

The court entered summary judgment in favor of the defendants on the ground that record evidence shows that Parzyszek’s disease did not first manifest itself during her Florida residency. The court reasoned that Parzyszek’s arguments and expert affidavits submitted in opposition to summary judgment used the term “manifestation” in a manner not in accordance with Florida law, and that, even if Parzysz-ek’s claims manifested as early as 1988, to the extent that Rearick’s claims arose more than four years prior to the filing of the Engle class action in 1994, they would be time-barred as a result of Florida’s four-year statute of limitations.

Subsequently, Rearick filed a motion for relief from the final summary judgment. She asserted that newly discovered evidence in the form of the identification of a treating Florida physician, Dr. Ronald Chassner, an orthopedic surgeon, indicated that Parzyszek’s treatment with him in Florida supported Rearick’s contention that Parzyszek was an Engle class member.

The court denied the motion, concluding that there was no evidence that counsel exercised due diligence in locating and speaking with Dr. Chassner, and that, in any event, Dr. Chassner’s affidavit did not provide any evidence that Parzyszek’s alleged smoking-related injury manifested while she was a resident of Florida.

We conclude that Rearick’s claim is untimely, and thus Parzyszek does not qualify as an Engle class member. Parzyszek is a long-time Illinois resident who now attempts to prosecute an untimely claim with the Florida-only class of Engle. In Engle, the Florida Supreme Court required “manifestation” of a smoking-related disease or medical condition in Florida. The record before us does not reflect that Parzyszek suffered from a smoking-related disease or medical condition while she was a resident of the State of Florida, even if we include the newly-discovered testimony of Dr. Chassner. Parzyszek’s smoking-related condition would have manifested itself as early as 1987 or 1988, the time during which Parzyszek moved to Florida. Rearick filed her lawsuit in 2008. This is more than four years after the statute of limitations period for Engle class membership. Rearick’s lawsuit was thus time-barred. Therefore, we affirm.

AFFIRMED.


source: Caselaw Access Project

author: SUAREZ, J.

license: Public Domain

text:
    Daryl BERNARD, Appellant, v. Donald S. ROSE, Appellee.
    No. 3D10-1048.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2011.

      Daryl Bernard, in proper person.
    Donald S. Rose, in proper person.
    Before WELLS, C.J., and SHEPHERD and SUAREZ, JJ.
   SUAREZ, J.

Daryl Bernard seeks to reverse a final order denying his motion to reopen his suit against Donald Rose. We affirm.

Mr. Bernard initially filed suit against his former attorney, Mr. Rose, on July 29, 2004. On October 28, 2004, defendant filed a motion for extension of time to file a response. This motion was the only record activity until November 16, 2005, when Mr. Bernard filed a “non-military affidavit.” On January 4, 2006, the trial court sua sponte filed a motion that required Bernard to show good cause, in writing, at least five days before the scheduled hearing, as to why the case should not be dismissed for failure to prosecute, pursuant to Florida Rule of Civil Procedure 1.420. The hearing was set for January 27, 2006. Although Mr. Bernard claims to have attended this hearing, there is no record that the hearing occurred. Because Mr. Bernard untimely filed his response to show good cause, the case was dismissed on February 27, 2006, “without further order of the court.” Mr. Bernard, however, continued to file amended complaints on this case for the next two years, on the anniversary dates of the order. Then, on February 27, 2009, Bernard filed a motion to reopen the case and noticed the hearing for 9:00 a.m. on March 18, 2009. Mr. Bernard then failed to appear at the hearing. The lower court denied the motion on March 18, 2009, citing Mr. Bernard’s failure to appear. On March 24, 2010, the trial court held another hearing to consider reopening the case; the court denied the motion because the court did “not have jurisdiction.”

Mr. Bernard argues on appeal that the final judgment dismissing his suit for lack of record activity is void because the dismissal order was signed with a signature stamp, rather than by the judge’s actual pen-and-ink signature. This argument is without merit. According to Haire v. Florida Department of Agriculture & Consumer Services, 870 So.2d 774, 789 (Fla.2004), the general rule that, “in the absence of a statute or rule prescribing the method of a signature, a signature may be validly affixed by a number of different means,” is applicable here. The fact that the judge stamped, but did not personally sign, the order that dismissed the case is of little consequence to the validity of the order in question. Moreover, the dismissal order does not contain the type of defect necessary to render a judgment void pursuant to Rule 1.540(b)(4), Florida Rules of Civil Procedure.

Because the judgment was not void, the appellant’s only remaining hope might have been to reinstate his claim pursuant to Florida Rule of Civil Procedure 1.420. However, this route fails as well. The Author’s Comment to the rule explicitly notes the requirement that a motion for reinstatement “must be served within one month after the order of dismissal.” Fla. R. Civ. P. 1.420, Author’s Comment ¶ 9 (original emphasis); see also Larybar, Inc. v. City of Miami Beach, 208 So.2d 129, 130 (Fla. 3d DCA 1968). A trial court lacks subject matter jurisdiction over a cause where the motion to reinstate the cause was not filed within one month of the dismissal. See Wilds v. Permenter, 228 So.2d 408, 409 (Fla. 4th DCA 1969) (holding that when a cause of action is dismissed for lack of prosecution and where a motion to reinstate the cause is not made within one month thereafter, the order of dismissal becomes final and the jurisdiction of the trial court over the subject matter and the cause is finally ended). Because Mr. Bernard filed his motion to reinstate more than one month from the date of rendition of the trial court’s order dismissing his case for lack of prosecution, the trial court no longer had subject matter jurisdiction to reinstate the action.

We affirm the trial court’s order denying Mr. Bernard’s motion to reopen the case.

Affirmed.

      . January 27, 2006, fell on a Friday. For Bernard to have timely complied with the order of the court to show good cause, in writing, five days before the hearing, he was required to file his memorandum by Friday, January 20, 2006, pursuant to Florida Rule of Civil Procedure 1.090(a). He filed the memorandum on January 23, 2006, and was not timely.

      . See also, section 668.004, Florida Statutes (2003), the "Electronic Signature Act of 1996,” which specifically provides that "[u]n-less otherwise prohibited by law, an electronic signature may be used to sign a writing and shall have the same force and effect as a written signature.”; Amends, to the Rules of Judicial Administration — R. 2.090, 681 So.2d 698, 700 (Fla. 1996) (the Court stating its intention to "cooperate with the Secretary of State in implementing any electronic signature processes and procedures in the court system”).

      . "Examples of defects rendering judgments void are: (1) lack of proper due process notice (e.g., a judgment entered by default for relief exceeding or different from that sought in the complaint); (2) ineffective service resulting in a lack of personal jurisdiction; (3) lack of subject matter jurisdiction; failure to grant a necessary party's motion to intervene; failure of the complaint to state a cause of action; and (4) a judgment entered by agreement of counsel, but without a client’s consent.” 4 Fla. Prac., Civil Procedure R. 1.540, ¶ 540.5(l)(d), (2010-2011 ed.) (citations omitted).


author: RAMIREZ, J.

text:
    Dania ACEVEDO and Ricardo Acevedo, Petitioners, v. DOCTORS HOSPITAL, INC., et al., Respondents.
    No. 3D10-2257.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2011.
    Rehearing Denied Sept. 21, 2011.

      Donna B. Michelson and James Blecke, Coral Gables, for petitioners.
    Falk, Waas, Hernandez, Cortiña, Solomon & Bonner and Norman M. Waas, Coral Gables, and Scott L. Mendlestein, for respondents.
    Before RAMIREZ, SUAREZ, and ROTHENBERG, JJ.
   RAMIREZ, J.

Dania and Ricardo Acevedo petition this Court for a writ of certiorari quashing the trial court’s July 2010 order on two grounds. First, petitioners request this Court quash paragraph 4 of the order instructing that all “opinions, comments, recommendations or findings, no matter by whom made” be redacted from the documents requested by petitioner pursuant to article X, section 25(a) of the Florida Constitution (Amendment 7) (emphasis added). Additionally, petitioners request this Court order production of all hospital documents related to specific adverse medical incidents per petitioners’ Requests for Production 9, 10 and 11. We find the trial court departed from the essential requirements of the law in concluding that all opinions, comments, recommendations or findings contained in the requested reports should be redacted as opinion work product. Additionally, we find the trial court abridged petitioners’ Amendment 7 rights in protecting certain documents related to events the court deemed adverse medical incidents. Accordingly, we grant the petition, quash paragraph 4 of the circuit court’s order, and require Doctors Hospital to produce all records of adverse medical incidents pursuant to petitioners’ Requests for Production 9,10 and 11.

I.

This litigation commenced with the Acevedos’ claims for medical malpractice and negligent hiring/retention pursuant to section 766.101, Florida Statutes (2007). The counts pertinent to this petition allege that defendant Dr. Solomon performed unnecessary or excessive surgery; that he did so negligently; and that respondent Doctors Hospital was negligent pursuant to section 766.101, with respect to its hiring and retention of Dr. Solomon. The Acevedos set forth the following three requests for production that are the subject of this petition:

9. Any and all records relating to any adverse medical incident involving the plaintiff, Diana Acevedo.
10. Any and all records relating to any adverse medical incident involving Emery M. Salom, M.D. while providing physician care at Defendant’s hospital, redacting the identifying information of any patients, other than the plaintiff, from the records being provided.
11. Any and all records relating to any adverse medical incident involving Luis E. Mendez, M.D. while providing physician care at Defendant’s hospital, redacting the identifying information of any patients, other than the plaintiff, from the records being provided.

Doctors Hospital filed a memorandum of law objecting to the Acevedos’ request. Following this Court’s decision in Lower Keys Medical Center v. Windisch, 29 So.3d 351 (Fla. 3d DCA 2010), petitioners moved for an order overruling Doctors Hospital’s objections. Doctors Hospital subsequently agreed to provide all incident reports and “Code 15” reports pursuant to Request 9, and filed a privilege log for the remaining Amendment 7 documents. In response, petitioners filed a “Motion for Order Compelling Defendant to Provide All Amendment 7 Records.”

After a hearing in May 2010, the trial court granted petitioners’ motion to the extent it required Doctors Hospital to provide petitioners with copies of incident reports and “Code 15” reports responsive to Requests 10 and 11. The trial court additionally allowed Doctors Hospital to file a privilege log for all adverse incident records responsive to Requests 9, 10 and 11 that had not been previously provided and to which Doctors Hospital claimed privilege. Accordingly, Doctors Hospital filed a privilege log asserting the documents were opinion work product. The court conducted an in camera review of the privilege log and after a second hearing issued an order. Paragraph four of the order reads as follows:

The portions of the documents and attachments, if any, reviewed in camera that contain opinions, comments, recommendations or findings, no matter by whom made, are held outside the scope of fact work product and are held to be opinion work product. Those portions of the documents and attachments, if any, identifying “reasons” are not, however, opinion work product. Defendant shall redact said opinions, comments, recommendations and findings from the documents ordered to be produced herein.

(emphasis added). Without explanation, the trial court also withheld several risk management worksheets and one incident report relating to events which the court deemed adverse medical incidents. Petitioners now seek a writ of certiorari quashing the paragraph above and instructing Doctors Hospital to produce all adverse medical incident records.

II.

Certiorari is rarely granted where the lower court denies discovery of certain information because the harm can generally be rectified on appeal. See Ruiz v. Steiner, 599 So.2d 196, 197 (Fla. 3d DCA 1992). Nevertheless, certiorari is appropriate where, as here, petitioner demonstrates irreparable harm by showing information critical to the case would not be known or available to the appellate court for review without an order compelling discovery. Id. (granting petition where the trial court denied petitioner’s motion to compel after erroneously concluding autopsy reports were privileged); Office of Att’y Gen. v. Millennium Commc’ns & Fulfillment, Inc., 800 So.2d 255, 257 (Fla. 3d DCA 2001) (granting certiorari and quashing protective order preventing petitioner from obtaining discovery where inability to determine post-judgment what the testimony would be or how it would affect the result created irreparable injury); Riano v. Heritage Corp. of S. Fla., 665 So.2d 1142 (Fla. 3d DCA 1996).

Issuing a writ of certiorari in the instant case is necessary as the order under review is a departure from the essential requirements of the law resulting in material injury for the remainder of the case that cannot be corrected on post-judgment appeal. See Royal Caribbean Cruises, Ltd. v. Cox, 974 So.2d 462, 468 (Fla. 3d DCA 2008). The information petitioners seek is material and goes to the heart of their case such that no other documents can be substituted for those remaining in respondent’s custody. See Baldwin v. Shands Teaching Hosp. & Clinics, Inc., 45 So.3d 118, 123-26 (Fla. 1st DCA 2010) (granting certiorari where trial court denied petitioner’s motion to compel non-party to produce all adverse incident reports, including risk management and peer review records).

Moreover, certiorari is appropriate here because the redaction of comments and opinions from the adverse medical incident reports presents an unwarranted interference with petitioners’ constitutional right under Amendment 7. See Williams v. Spears, 719 So.2d 1236, 1239 (Fla. 1st DCA 1998) (explaining, “certiorari is an appropriate remedy where constitutional rights are deprived or delayed during the pen-dency of a legal proceeding”). Denying petitioners access to the redacted portions of the Amendment 7 reports and remaining risk management and incident reports would cause petitioners harm irreparable on appeal. Accordingly, we find this Court has jurisdiction to grant petitioner’s writ for certiorari.

HI.

Regarding the asserted privilege, Doctors Hospital argues the redacted portions of the Amendment 7 reports are tantamount to the comments, opinions, conclusions and impressions of respondent’s authorized representatives. As such, Doctors Hospital contends that the redacted portions are protected by the opinion work product privilege, notwithstanding Amendment 7.

This Court first addressed the distinction between fact and opinion work product in State v. Rabin, 495 So.2d 257, 262 (Fla. 3d DCA 1986). This distinction was later recognized by the Florida Supreme Court in Southern Bell Telephone & Telegraph Co. v. Deason, 632 So.2d 1377, 1384 (Fla.1994), and codified in Florida Rules Civil Procedures 1.280(b)(3). Accordingly, fact work product traditionally protects information which relates to the case and is gathered in anticipation of litigation, while opinion work product consists primarily of the attorney’s mental impressions, conclusions, opinions and theories concerning litigation. See Deason, 632 So.2d at 1384; Rabin, 495 So.2d at 262.

Generally, fact work product is susceptible to disclosure based on considerations of need and relevance. See W. Bend Mut. Ins. Co. v. Higgins, 9 So.3d 655, 657-58 (Fla. 5th DCA 2009). Conversely, and because proper representation demands that counsel be able to assemble information and plan her strategy without undue interference, opinion work product is generally afforded absolute immunity. See Surf Drugs, Inc. v. Vermette, 236 So.2d 108 (Fla.1970); Rabin, 495 So.2d at 263 (noting an attorney has a significant privacy interest in non-disclosure of opinion work product); Ford Motor Co. v. Hall-Edwards, 997 So.2d 1148, 1152-53.

The plain language of Amendment 7 evinces intent to abrogate any fact work privilege that may have attached to adverse medical incident reports prior to its passage. See Fla. Eye Clinic, P.A. v. Gmach, 14 So.3d 1044, 1048 (Fla. 5th DCA 2009) (ordering disclosure of incident reports prepared by the clinic’s risk manager in accordance with Amendment 7); Fla. Hosp. Waterman, Inc. v. Buster, 984 So.2d 478, 489 (Fla.2008) (upholding the constitutionality of Amendment 7 and noting that it creates “a broader right to know about adverse medical incidents than currently exists”); Lakeland Reg’l Med. Ctr. v. Neely, 8 So.3d 1268, 1270 (Fla. 2d DCA 2009) (finding no basis to except work product materials from the reach of Amendment 7 as interpreted by Buster ). However, there is nothing in Amendment 7 to suggest the voters intended to create a chilling effect within legal profession by mandating disclosure of opinion work product. See Gmach, 14 So.3d at 1049-50 (finding reports did not contain any attorney’s mental impressions, conclusions, opinions, or theories concerning his client’s case). The only question that remains, therefore, is whether the redacted portions of respondent’s reports are privileged as opinion work product. We hold they are not.

In Neely, the district court dismissed a similar argument as the one posed by respondent here. Id. at 1270. There, petitioner noted that some of the adverse medical incident reports which it was ordered to provide likely contained statements, opinions, and other information, “provided by sources who reasonably believed that their identities would not be readily available in litigation except to the lawyers.” Id. While the Neely court agreed that records prepared in anticipation of litigation are prepared by clients, at least in part, to assist lawyers, it concluded this line of reasoning was insufficient to override the broad right of access to adverse medical incident reports guaranteed under Amendment 7. M

We have found no case extending opinion work product protections to the types of comments the circuit court ordered to be redacted here. Rather, case after case consistently construes opinion work product protection as extending to an attorney’s thoughts or mental impressions concerning the litigation at hand. See, e.g., Deason, 632 So.2d at 1386 (authorizing petitioner to redact any “notes, thoughts, or impressions of Southern Bell’s counsel that are printed directly on the materials”); Rabin, 495 So.2d at 262 (noting that “[c]ompelling disclosure of the attorney’s notes or memoranda of oral statements tends to reveal an attorney’s opinion work product”); Ford Motor Co., 997 So.2d at 1154 (protecting suspension orders where disclosure would reveal the mental impressions of counsel); Dodson v. Persell, 390 So.2d 704, 707 (Fla.1980) (explaining personal views of the attorney regarding various aspects of the litigation process and contained in personal notes and records come within the general category of work product protection”); Northup v. Acken, M.D., P.A., 865 So.2d 1267, 1272 (Fla.2004) (stating, “[t]he overriding touchstone in this area of civil discovery is that an attorney may not be compelled to disclose the mental impressions resulting from his or her investigations”); W. Bend Mut. Ins. Co. v. Higgins, 9 So.3d 655, 657-58 (Fla. 5th DCA 2009) (noting that work product is a device “designed to protect the work and mental impressions of counsel”).

Even in so far as, Florida Rule of Civil Procedure 1.280(b)(3) refers to the mental impressions, conclusions, opinions, or legal theories of an attorney or other representative of a party concerning the litigation, we decline to extend the privilege to the comments and findings of hospital personnel routinely contained in adverse medical incident reports. (Emphasis added) To hold otherwise would undermine the broad scope of Amendment 7 outlined in Buster. See Buster, 984 So.2d at 478.

IV.

We conclude that the trial court departed from the essential requirements of the law in ordering that the opinions and comments of Doctors Hospital’s staff should be redacted from the adverse medical reports requested by petitioner. Further, we conclude that the trial court departed from the essential requirements of the law in extending protection to risk management and incident reports related to events it identified as adverse medical incidents. For the foregoing reasons, this Court quashes paragraph 4 of the trial court’s July 2010 order. Additionally, we order respondent Doctor’s Hospital to provide all adverse medical incident reports pursuant to petitioners Requests 9,10, and 11.

Petition for Writ of Certiorari granted.

      . Amendment 7, which is titled "Patients’ right to know about adverse medical incidents,” provides, in its entirety, as follows:
      (a) In addition to any other similar rights provided herein or by general law, patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.
      (b) In providing such access, the identity of patients involved in the incidents shall not be disclosed, and any privacy restrictions imposed by federal law shall be maintained.
      (c) For purposes of this section, the following terms have the following meanings:
      (1) The phrases "health care facility” and "health care provider” have the meaning given in general law related to a patient’s rights and responsibilities.
      (2) The term "patient” means an individual who has sought, is seeking, is undergoing, or has undergone care or treatment in a health care facility or by a health care provider.
      (3) The phrase "adverse medical incident” means medical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient, including, but not limited to, those incidents that are required by state or federal law to be reported to any governmental agency or body, and incidents that are reported to or reviewed by any health care facility peer review, risk management, quality assurance, credentials, or similar committee, or any representative of any such committees.
      (4)The phrase "have access to any records” means, in addition to any other procedure for producing such records provided by general law, making the records available for inspection and copying upon formal or informal request by the patient or a representative of the patient, provided that current records which have been made publicly available by publication or on the Internet may be "provided” by reference to the location at which the records are publicly available.
      Art. X, § 25, Fla. Const.

      . Fla. R. Civ. P. 1.280(b)(3) states in pertinent part: "a party may obtain discovery of documents and tangible things otherwise discoverable under subdivision (b)(1) of this rule and prepared in anticipation of litigation or for trial by or for another party or by or for that party’s representative, including that party’s attorney, consultant, surety, indemnitor, insurer, or agent, only upon a showing that the party seeking discovery has need of the materials in preparation of the case and is unable without undue hardship to obtain the substantial equivalent of the materials by other means. In ordering discovery of the materials when the required showing has been made, the court shall protect against disclosure of the mental impressions, conclusions, opinions or legal theories of an attorney or other representative of a party concerning the litigation”, (emphasis added).

      . Prior to Amendment 7, Florida law restricted discovery of investigations, proceedings, and records of a health care provider’s review of its staff members and physicians in a civil or administrative proceeding. See §§ 395.0191(8), .0193(8); § 766.101(5), Fla. Stat. (2007).

      . In Neely, the court ultimately denied Lake-land Regional Medical Center’s petition and certified the following question; ”[d]oes the right of access granted pursuant to Amendment 7, codified as Article X, section 25, of the Florida Constitution, preempt the common law work product doctrine as it applies to existing reports of adverse medical incidents?” Id. at 1271.


author: EMAS, J.

text:
    Consuelo KELLEY, Appellant, v. BEVERLY HILLS CLUB APARTMENTS, et al., Appellee.
    No. 3D10-2368.
    District Court of Appeal of Florida, Third District.
    Aug. 17, 2011.

      The Kopelowitz Ostrow Firm, and Jonathan M. Streisfeld, Fort Lauderdale; Kimberly Lynn Boldt, for appellant.
    Lane, Reese, Summers, Ennis & Perdo-mo, and Kevin D. Franz, for appellee.
    Before SUAREZ, CORTIÑAS, and EMAS, JJ.
   EMAS, J.

Consuelo Kelley (“Kelley”) appeals an order granting final summary judgment in favor of Beverly Hills Club Apartments, LLC, a/k/a Aventura Harbor Apartments and Beverly Hills Club Apartments Management, Inc. (collectively, “Beverly Hills Club”). We affirm, holding the trial court was correct in concluding that, as a matter of law, Beverly Hills Club did not owe a duty to Kelley.

FACTS AND PROCEDURAL BACKGROUND

Beverly Hills Club owns and operates a rental apartment community in Miami-Dade County. Extended Care Treatment, Inc. (“Transitions”) provides addiction and mental health treatment to clients at its corporate facility. In 2004, Beverly Hills Club entered into a rental agreement with Transitions. Through that agreement, Transitions rented several units and placed some of its residential clients, including Kelley, in the Beverly Hills Club apartments.

Two Transitions staff employees reside at Beverly Hills Club and are responsible for supervising the clients who live there. The staff maintains contact with the clients throughout the day and conducts rounds during the night to check on them. The staff also deals with any day-to-day maintenance issues, including repairs that are needed for the rented apartments. Transitions does not provide Beverly Hills Club with a list of clients residing in the complex. Although Beverly Hills Club is generally aware of the treatment provided by Transitions, it is not given specific medical information about any of the Transitions clients who reside at the complex. The clients do not wear a uniform or any distinctive clothing that would identify them as Transitions’ clients. Transitions does not notify Beverly Hills Club of any clients with suicidal tendencies because to do so would violate doctor-patient confidentiality. Beverly Hills Club therefore does not know which residents are clients of Transitions, nor does it know the type of treatment provided to each Transitions client.

In January 2005, Kelley voluntarily admitted herself to Transitions for treatment. Transitions assigned her to Apartment 416 of the Beverly Hills Club complex. According to Kelley, on March 11, 2005, she walked up one flight of stairs from her fourth-floor apartment to the fifth floor, and jumped out of a window, in an unsuccessful attempt to commit suicide. Prior to this incident, there had never been a suicide attempt at the Beverly Hills Club complex.

Kelley filed suit against Beverly Hills Club, alleging it was negligent for failing to provide a “reasonably safe living environment free of hazardous conditions in light of its knowledge that there were clients, such as [Kelley], suffering from severe mental illness residing at the Premises.” Specifically, Kelley alleged that Beverly Hills Club had a duty to:

(1) Inspect the premises prior to Kelley’s residency to discover conditions that presented a danger to persons with psychiatric illness;
(2) Seal or lock the common area windows to prevent them from being opened;
(3) Install bars or wire mesh over the windows in the common areas and in Kelley’s unit;
(4) Designate first floor units for Transitions patients;
(5) Secure the stairwell and any other means of accessing upper floors to prevent Transitions patients from accessing upper floors;
(6) Inquire with Transitions about special needs or precautions that needed to be taken for its patients after learning of her jumping history; and
(7) Maintain the premises in a reasonably safe condition for residents with knowledge of their suicidal tendencies or “jump history.”

Kelley alleged that Beverly Hills Club breached these duties, and as a proximate cause of Beverly Hills Club’s negligence, Kelley was permanently injured when she jumped out the window. Beverly Hills Club moved for summary judgment, arguing that, as a matter of law, it did not owe a duty to Kelley, whose suicide attempt was an independent, intervening act. Beverly Hills Club asserted that Kelley failed to establish Beverly Hills Club had any knowledge of Kelley’s mental status or suicidal tendencies; that Beverly Hills Club had any control over Kelley; or that it was foreseeable Kelley would attempt suicide by jumping out of a window.

The trial court granted Beverly Hills Club’s motion for summary judgment and this appeal followed. Kelley argues that Beverly Hills Club owed her a duty to undertake proper preventive or safety measures because it knew, or should have known, the possible tendencies of Transitions residents who were receiving addiction and mental health treatment.

ANALYSIS AND DISCUSSION

The issue in this case is not whether Kelley’s attempted suicide and her resulting injuries were proximately caused by the conduct of Beverly Hills Club, but whether Beverly Hills Club owed a legal duty to Kelley. This threshold question requires the trial court to determine whether the conduct of Beverly Hills Club “create[d] a foreseeable zone of risk,” thereby placing upon Beverly Hills Club the duty “either to lessen the risk or see that sufficient precautions are taken to protect others from the harm that the risk poses.” McCain v. Fla. Power Corp., 593 So.2d 500, 503 (Fla.1992).

As a general rule, “there is no liability for the suicide of another [or for injuries sustained in a suicide attempt] in the absence of a specific duty of care.” Paddock v. Chacho, 522 So.2d 410, 416 (Fla. 5th DCA 1988). A duty of care has been found to exist “where a patient has surrendered himself to the custody, care and treatment of a psychiatric hospital and its staff’ and the hospital has failed “to take protective measures to prevent the patient from injuring himself.” Garcia v. Lifemark Hosps. of Fla., 754 So.2d 48, 49 (Fla. 3d DCA 1999). This specific “duty is based solely on the fact of the patient’s confinement in the hospital, and the hospital’s ability to supervise, monitor and restrain the patient.” Paddock, 522 So.2d at 416. See also Lawlor v. Orlando, 795 So.2d 147 (Fla. 1st DCA 2001) (recognizing that, while Florida law imposes a duty on a psychotherapist for failure to safeguard a patient from harming himself in a custodial setting, a psychotherapist owes no legal duty to prevent a suicide by a patient who was being treated in an outpatient setting and had showed no indication of suicidal tendencies).

In essence, Kelley asserts that the Beverly Hills Club apartments served as the equivalent of a custodial setting and, when combined with its general knowledge that Transitions provides clients with addiction and mental health treatment, created a duty upon Beverly Hills club to take reasonable measures to prevent Kelley from attempting suicide. We disagree.

The material undisputed facts are:

1. Beverly Hills Club had no particularized knowledge about Kelley or about any specific treatment she (or any other client) received from Transitions.
2. Beverly Hills Club had no knowledge as to whether Kelley had any suicidal tendencies.
3. Beverly Hills Club had no control over Kelley and her movements within the complex, nor did Beverly Hills Club have any direct dealings with Kelley.
4. Beverly Hills Club leased the apartments to Transitions, who then assigned Kelley to a fourth-floor apartment. Kelley did not enter into a lease or other agreement with Beverly Hills Club.

In Rafferman v. Carnival Cruise Lines, Inc., 659 So.2d 1271 (Fla. 3d DCA 1995), this court examined the liability of a ship owner for its failure to prevent the suicide of a crewman. We held that the ship owner had no duty to protect a crewman from himself unless there is evidence the crewman “had taken ‘actions which indicate that [he] may do harm to others or to himself.’ ” Id. at 1272. This Court noted that in the absence of such evidence, a defendant will not be liable “even in the extreme situation which occurs when a patient of a mental hospital — who by definition is suffering from psychiatric difficulties of some kind — has given no previous indication that his mental illness might lead to suicide.” Id. at 1273.

This Court has thus recognized that it is the suicidal tendencies of a specific person — not an undifferentiated knowledge about a group of individuals who may be receiving some type of drug, alcohol or mental health treatment — which is determinative of the existence of a duty owed to that person. Kelley’s assertion that Beverly Hills Club owed a duty to each of Transitions’ clients is, therefore, incorrect. See, e.g., Timson v. Juvenile & Jail Facility Mgmt. Servs., Inc., 355 Fed.Appx. 283 (11th Cir.2009) (holding absent evidence of a prisoner’s suicidal tendencies, it was not reasonably foreseeable that he would commit suicide, and prison management company was not liable as a matter of law).

CONCLUSION

Because the material undisputed facts establish that Beverly Hills Club had no custody or control over Kelley, and had no knowledge regarding Kelley’s condition, treatment, or suicidal tendencies, Beverly Hills Club’s conduct in leasing apartment units to Transitions did not “create[] a foreseeable zone of risk.” McCain, 593 So.2d at 503. Accordingly, Beverly Hills Club owed no legal duty to Kelley to take precautions to protect Kelley from her attempted suicide. Summary judgment was properly granted.

Affirmed.

      . The rental agreement was signed by a representative of Transitions. None of the Transitions clients signed a rental agreement with Beverly Hills Club.

      . Beverly Hills Club asserts that Transitions never requested any windows or doors to be locked or barred.

      . There was no evidence that Kelley had a "jumping history” or that Beverly Hills Club knew or was made aware of such a history or of any suicidal tendencies of Kelley.

      . In McCain, the Supreme Court observed that the duty element ordinarily emanates from four potential sources: "(1) legislative enactments or administration regulations; (2) judicial interpretations of such enactments or regulations; (3) other judicial precedent; and (4) a duty arising from the general facts of the case.” Id. at 503 n. 2 (citing Restatement (Second) of Torts § 285 (1965)). The Court explained that, in making the threshold legal determination of the existence of a duty, the trial court "must make some inquiry into the factual allegations. The objective, however, is not to resolve the issues of comparative negligence or other specific factual matters relevant to proximate causation, but to determine whether a foreseeable, general zone of risk was created by the defendant’s conduct.” Id. at 502 n. 1.


author: LEVINE, J.

text:
    Deanna M. SIMPSON, Appellant, v. Gregory B. SIMPSON, Appellee.
    Nos. 4D10-459, 4D10-2823.
    District Court of Appeal of Florida, Fourth District.
    Aug. 24, 2011.

      Dana E. Quigley and Andrew Merlo of Merlo & Quigley Law Group, P.A., Palm Beach Gardens, for appellant.
    Charles Wender of Charles Wender Attorney-at-Law, Chartered, Boca Raton, for appellee.
   LEVINE, J.

Appellant, Deanna Simpson, appeals the trial court’s order granting a modification of the alimony obligations of appellee, Gregory Simpson. Appellant also appeals the trial court’s denial of a motion for civil contempt. Although we affirm the trial court’s denial of appellant’s motion for civil contempt, we reverse the trial court’s granting of modification of appellee’s alimony obligations.

In 2007, the parties entered into a separation and property settlement agreement. As part of this agreement, appellee agreed to pay appellant $4,000 per month as permanent periodic alimony. This permanent periodic alimony would be abated if the appellee was “involuntarily laid off, involuntarily [lost] his job or otherwise involuntarily [lost] his ability to work for a consecutive period of ninety (90) days.” Appellee further agreed to “transfer to the Wife $125,000 of his 401-K pension savings” and to pay off appellant’s automobile loan.

Subsequently, appellant filed a motion for contempt stating that appellee failed to pay the full amount of alimony from December 2008 to April 2009, and appellee transferred only $97,000 from his retirement account to her. Finally, appellant’s car was repossessed due to appellee’s failure to make payments on the vehicle. Ap-pellee, in response, filed a petition to modify his alimony obligation, based on the fact that he had been unemployed for several months and eventually secured a new position, but at a reduced salary.

The trial court received evidence from appellee, detailing e-mails in which appellant agreed to a reduction in alimony from $4,000 to $8,000 a month due to appellant’s reduced salary in the new job. Appellee agreed to increase alimony in the future based on the percentage of any salary increase he might receive. Appellant stated that “it looks okay ... for now.”

Appellant responded at the hearing that her agreement to the reduction in alimony was coerced and that she did not know what salary appellee was being paid by his new employer. In fact, appellee did not include any bonus income from his new employer in his financial affidavit. Nevertheless, appellee claimed, even factoring in the bonuses, that he was earning about 25% less in the new job as compared to his prior job.

As to the 401(k) account, appellee claimed that he transferred the full value of the account, which had decreased in value to $97,000 due to market fluctuations. At the hearing, appellee conceded that he was supposed to make appellant’s car payment but had not, in fact, made a single payment on the car.

The trial court entered an order denying appellant’s motion for contempt, finding that she had agreed to the modification of alimony. The trial court determined that appellee’s obligation to pay alimony was abated during his time of unemployment, and appellee was not responsible for the reduction in value of the 401 (k) account. The trial court further granted appellee’s motion to modify alimony “retroactive to the date of the parties’ agreement” by email. This consolidated appeal of both orders ensues.

As to the trial court’s determination that appellee could not be held in contempt for failing to pay appellant’s car loan, we find the trial court committed no error. The contempt power of the trial court cannot be used to settle disputes in rights to property. Pineiro v. Pineiro, 988 So.2d 686, 687 (Fla. 4th DCA 2008). Contempt can be used to enforce alimony, support, or maintenance awards alone since “[e]nforcement through contempt of debts not involving support violates Article I, section 11 of the Florida Constitution, which prohibits imprisonment for debt.” Id. In this case, appellee’s agreement to pay appellant’s car loan was part of the equitable division of property and not part of the support award. Accordingly, appel-lee’s failure to pay the car loan could not be remedied by a contempt order

As to the issue of abatement, we find the trial court erred in finding that appellee’s alimony was abated retroactively to his first day of unemployment. The marital agreement states that “[i]f the Husband is involuntarily laid off, involuntarily loses his job or otherwise involuntarily loses his ability to work for a consecutive period of ninety (90) days, the Wife’s alimony will abate (temporarily stop) until such time as the Husband resumes employment.” The determination of whether a settlement agreement is unambiguous and the interpretation of an unambiguous agreement are questions of law subject to de novo review on appeal. Ospina-Baraya v. Heiligers, 909 So.2d 465, 472 (Fla. 4th DCA 2005). The plain language of this contract is controlling, as unambiguous contract language “must be afforded its plain meaning.” Lazzaro v. Miller & Solomon Gen. Contractors, Inc., 48 So.3d 974, 975 (Fla. 4th DCA 2010). A plain reading of the provision states that the alimony obligation abates after appellee has been involuntarily out of work for ninety consecutive days. Thus, appellee’s obligation did not abate until the ninety days had run, and therefore, appellee was responsible to pay appellant alimony for the first ninety days that he was unemployed.

As to the issue of appellant’s agreement to the modification of alimony, we also find that the trial court erred. Trial court orders modifying awards of alimony are reviewed for abuse of discretion. Woolf v. Woolf, 901 So.2d 905, 911 (Fla. 4th DCA 2005). A party seeking a permanent modification must demonstrate a substantial change in circumstances, that the change in circumstances was not contemplated at the time of the final judgment, and that the change is sufficient, material, involuntary and permanent. Pimm v. Pimm, 601 So.2d 534, 536 (Fla.1992). If a permanent modification is not warranted, a court may temporarily relieve the moving party from his alimony obligations under the “good faith test.” Dervishi v. Dervishi, 905 So.2d 932, 934 (Fla. 4th DCA 2005). Temporary modification is appropriate when the court determines that the moving party “has suffered a reduction in income without deliberately seeking to avoid paying alimony and is acting in good faith to return his income to its previous level.” McIntosh v. McIntosh, 915 So.2d 742, 743 (Fla. 5th DCA 2005). In either type of modification, where the original alimony or support award was set by agreement of the parties, the moving party carries a heavier-than-normal burden. Pimm, 601 So.2d at 537.

In the present case, the modification by the trial court was not specifically delineated as being permanent or temporary. In any event, we find the trial court erred since appellee did not meet his heavier-than-normal burden. The evidence of ap-pellee’s “substantial change” in income, and the trial court’s reliance on appellant’s e-mail acquiescence to the modification, is tenuous at best.

The record demonstrates that appellee’s salary, including bonuses, ranged from roughly $15,000 a month in 2007 to $16,500 in 2008, to roughly $14,200 a month (inclusive of bonuses) under the new employer. This record does not substantiate appel-lee’s claim of a 25% reduction. Finally, the record indicates that appellant was not aware of appellee’s various bonuses each month. We find the trial court erred in relying on appellant’s acquiescence to the modification by e-mail, as she did not have full information regarding appellee’s income, and we find that appellee did not meet his burden of demonstrating a “substantial change” in income.

Additionally, we find the trial court erred in finding appellee not liable for making up the difference between the $97,000 tendered from the 401 (k) account and the $125,000 originally agreed to as part of the settlement agreement. The trial court determined that when the agreement stated that the “Husband shall transfer to the Wife $125,000 of his 401-K pension savings,” the intent of this statement was to transfer the contents of this particular 401 (k) account. However, the plain language of this statement could also indicate that the parties intended the $125,000 to be derived only from the 401 (k) account. The parties did not anticipate that this account would fluctuate in value due to market conditions.

We find that the settlement agreement contains a latent ambiguity as to what the parties intended to transfer as part of the settlement agreement, either a total sum of $125,000 or the present value of the 401 (k) account. “A latent ambiguity arises when a contract on its face appears clear and unambiguous, but fails to specify the rights or duties of the parties in certain situations.” Jenkins v. Eckerd Corp., 913 So.2d 43, 52-53 (Fla. 1st DCA 2005). Thus, the trial court must determine the intent of the parties through parol evidence. Crespo v. Crespo, 28 So.3d 125, 128 (Fla. 4th DCA 2010). The trial court did not take any parol evidence or make findings of fact. Thus, the trial court’s conclusion that the tendering of the value of the account of $97,000 was sufficient to satisfy that provision of the settlement agreement is not supported by competent, substantial evidence.

Finally, we find the other issue regarding an alleged violation of Perlow v. Berg-Perlow, 875 So.2d 383 (Fla.2004), to be without merit. We affirm the trial court’s orders on this ground without further discussion.

For all the reasons stated above, we affirm in part, reverse in part, and remand this case for further proceedings consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

WARNER and POLEN, JJ., concur.


author: PER CURIAM.

text:
    Vibert COLLINS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1776.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 2011.
    Vibert Collins, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, LAGOA, and EMAS, JJ.
   PER CURIAM.

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


author: WELLS, C.J.

text:
    Maxo BELIZAIRE, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-210.
    District Court of Appeal of Florida, Third District.
    Aug. 24, 2011.
    Rehearing Denied Sept. 30, 2011.
    Maxo Belizaire, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and RAMIREZ, J., and SCHWARTZ, Senior Judge.
   WELLS, C.J.

Maxo Belizaire appeals from an order denying a petition for writ of habeas corpus filed below in which he claimed error in the jury instructions given at his trial. Because Belizaire’s petition raises only issues that should have been raised on direct appeal and because he does not claim that trial or appellate counsel was in any manner ineffective, we affirm the order denying relief. See Fla.R.Crim.P. 3.850(c)(6) (“This rule does not authorize relief based on grounds that could have or should have been raised at trial and if, properly preserved, on direct appeal of the judgment and sentence.”); Wright v. State, 857 So.2d 861, 874 (Fla.2003) (“Habeas corpus should not be used as a vehicle for presenting issues which should have been raised at trial and on appeal or in post-conviction proceedings.”); see also Wyatt v. State, 71 So.3d 86, 97 n. 12 (Fla. 2011) (confirming that claims regarding the adequacy or constitutionality of jury instructions should be raised on direct appeal not via a Rule 3.850 post-conviction motion).

Affirmed.


author: ALTENBERND, Judge.

text:
    Joy A. BROWN, Appellant, v. Dennis BROWN, Appellee.
    No. 2D10-5109.
    District Court of Appeal of Florida, Second District.
    Aug. 26, 2011.
    Merritt A. Gardner of Gardner Law Firm, Tampa, for Appellant.
    Steve Bartlett of The Law Office of Steve Bartlett, Trinity, for Appellee.
   ALTENBERND, Judge.

Joy A. Brown appeals a postdissolution order concerning child support payments. The order does not reduce the amount of child support owed by Dennis Brown, but it permits him to avoid contempt or other enforcement action so long as he pays a reduced amount of child support while the remaining amount accumulates for later payment. We conclude that the trial court had the authority to enter this order. It could enter such an order based on the evidence justifying this solution even though that proof would have been insufficient to authorize a permanent reduction in child support. Accordingly, we affirm.

The Browns divorced in 2005. They have one child. In a marital settlement agreement, Mr. Brown agreed to pay his wife $1000 per month in child support. His agreement to pay this amount, while admirable, was quite unrealistic. At the time he made this agreement, he had little or no income and had monthly expenses in excess of $5000. His net assets were quite modest. Thus, although he agreed to pay this child support amount, he had no actual ability to perform on his agreement.

About five months after the entry of the judgment of dissolution, Mr. Brown filed his first supplemental petition seeking to modify his child support. When he filed this petition, his financial condition had actually improved. He was earning about $1500 per month. Even with this improvement in his income, he could not realistically pay the full amount of child support. However, he was making little or no effort to pay support, and the trial court denied this petition.

Mr. Brown subsequently filed another supplemental petition seeking to modify his child support. He was still earning about $1500 per month, and his assets had been expended. A child support hearing officer conducted a hearing in this case in November 2009. The hearing officer issued his findings of fact and concluded that Mr. Brown had not proven the type of permanent change in circumstances that would justify a reduction in the amount of the child support to which he had agreed in the marital settlement agreement. The hearing officer found that, if the child support guidelines applied, the parties would jointly owe about $560 in child support and that Mr. Brown’s share would be $422. However, in light of the marital settlement agreement, Mr. Brown had no right to a reduction merely because the guidelines calculated a lower amount. The hearing officer further found that Mr. Brown owed $41,896.32 in child support arrearages.

The hearing officer recommended and the trial court ordered that Mr. Brown pay weekly child support of $116.43, including $19 per week in arrearage. This amount is comparable to the amount that Mr. Brown would pay under the guidelines. The court further ordered that the difference between these payments and the $1000 per month that Mr. Brown had agreed to pay would continue to accrue as arrears. Although the order does not expressly so state, it set an amount that must be paid by Mr. Brown to avoid contempt or other enforcement procedures, but it left the total amount of child support owing under the marital settlement agreement unchanged. Ms. Brown appeals this order.

On appeal, Ms. Brown argues that the trial court could not enter this order without proof of the type of permanent change in circumstances that authorizes an actual reduction in child support. We disagree. Section 61.14(l)(a), Florida Statutes (2009), gives the trial court broad authority to enter orders enforcing child support. The trial court has “jurisdiction to make orders as equity requires.” The order entered is compatible with the law of contempt, which requires the trial court to set purge amounts consistent with the obligor’s ability to pay, and allows the court to enter orders of relief short of contempt when the failure to pay is not willful. See Fla. Fam. L.R.P. 12.615(g). The trial court clearly anticipated a time when Mr. Brown’s financial circumstances would improve and he would be required to pay a higher amount of child support.

We conclude that the hearing officer received competent, substantial evidence that supported this order and that the trial court did not abuse its discretion in entering it.

Affirmed.

VILLANTI and CRENSHAW, JJ., Concur.

      . Items contained in the appendix record provided to this court indicate that this supplemental petition was filed either in July 2008 or July 2009.


author: WOLF, J.

text:
    Alan D. MENDELSOHN, M.D., Petitioner, v. STATE of Florida, DEPARTMENT OF HEALTH, Respondent.
    No. 1D11-3278.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2011.

      William M. Furlow of Grossman, Furlow and Bayo, Tallahassee, for Petitioner.
    Mark Graham Hanson, Prosecution Services Unit, Department of Health, Tallahassee, for Respondent.
   WOLF, J.

Petitioner seeks review of an emergency order of the Florida Department of Health (DOH) which suspended his license to practice medicine in this state. We have jurisdiction in accordance with section 120.68(1), Florida Statutes.

According to the emergency suspension order (the ESO), petitioner is licensed to practice medicine in Florida pursuant to the provisions of chapter 458, Florida Statutes. On December 9, 2010, he entered a plea of nolo contendere in federal court to a charge of conspiracy to commit fraud upon the United States in violation of 18 U.S.C. § 371. As a result of his conviction, DOH immediately suspended petitioner’s medical license without a hearing pursuant to section 456.074(1), Florida Statutes (2010), which provides in pertinent part:

(1) The department shall issue an emergency order suspending the license of any person licensed under chapter 458 ... who pleads guilty to, is convicted or found guilty of, or who enters a plea of nolo contendere to, regardless of adjudication, to:
(b) A misdemeanor or felony under 18 U.S.C. s. 669, ss. 285-287, s. 371, s. 1001, s. 1035, s. 1341, s. 1343, s. 1347, s. 1349, or s. 1518 or 42 U.S.C. ss. 1320a-7b, relating to the Medicaid program.

Petitioner contends his federal conspiracy conviction was not related to the Medicaid program, and thus, DOH could not issue an ESO without further findings establishing his actions posed an immediate danger to public safety. We agree.

Florida law requires that an order directing the immediate suspension of a practitioner’s license contain “every element necessary to its validity ... on the face of the order.” Witmer v. Dep’t of Bus. and Prof'l Regulation, 631 So.2d 338, 341 (Fla. 4th DCA 1994). The general rule is that an ESO will not be upheld unless the order on its face sets out “the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and [DOH’s] reasons for concluding that the procedure used is fair under the circumstances.” § 120.60(6)(c), Fla. Stat. (2010); see also Kaplan v. State, Dep’t of Health, 45 So.3d 19, 20 (Fla. 1st DCA 2010) (citing Crudele v. Nelson, 698 So.2d 879, 880 (Fla. 1st DCA 1997)).

Section 456.074(1), Florida Statutes, however, requires DOH issue an emergency order suspending a medical license in certain circumstances without regard to specific proof that a petitioner is acting in a way that poses an immediate danger to public safety. In Bethencourt-Miranda v. State, Department of Health, 910 So.2d 927 (Fla. 1st DCA 2005), this court addressed a petitioner’s contention that section 456.074(1) pardoned DOH’s obligation under section 120.60(6) to provide proof in the ESO that the need for suspension was based on public safety and that the practitioner’s actions posed an immediate danger to public safety. In doing so, this court concluded DOH was required by the Legislature to suspend licenses immediately for circumstances listed in the section, and thus, “no other findings are necessary to support the agency action.” Bethencourt-Miranda, 910 So.2d at 928.

Based on the foregoing, if section 456.074(1), Florida Statutes, applies to petitioner’s conviction, DOH is required to issue an ESO and no further facts need to be provided in the ESO establishing petitioner’s actions posed an immediate danger to the public. However, petitioner asserts DOH incorrectly found his conviction required an ESO under section 456.074(l)(b). Section 456.074(l)(b) requires DOH issue an ESO when a practitioner has been convicted of a “felony under 18 U.S.C. s. 669, ss. 285-287, s. 371, s. 1001, s. 1035, s. 1341, s. 1343, s. 1347, s. 1349, or s. 1518 or 42 U.S.C. ss. 1320a-7b, relating to the Medicaid program.” (Emphasis added). Petitioner concedes he was convicted of a felony in violation of § 18 U.S.C. 371, but contends his conviction was not related to the Medicaid program, and thus, does not support the issuance of an ESO without further proof that petitioner poses a threat to public safety. DOH does not argue that petitioner’s conviction was related to the Medicaid program but, instead, argues the modifier “relates to the Medicaid program” only modifies the last enumerated subsections, 1518 or 42 U.S.C. ss. 1320a-7b.

We agree with petitioner’s arguments for two reasons. First, the plain meaning of the statute evidences the modifying term “relating to the Medicaid program” relates to all of the listed offenses, not just the last listed offenses. See Fla. Dep’t of Highway Safety & Motor Vehicles v. Hernandez, — So.3d -, 2011 WL 2224791 (Fla.2011) (recognizing when a statute is clear and unambiguous, courts should give effect to the statute’s plain meaning). Based on the rules of grammatical construction, a qualifying phrase will be read as modifying all items listed in a series unless there is no comma between the last of the series and the qualifying phrase. See Kasischke v. State, 991 So.2d 803, 812-13 (Fla.2008) (citing 2A Norman J. Singer & J.D. Shambie Singer, Statutes and Statutory Construction § 47.33 (7th ed. 2007) for the proposition that “ ‘[evidence that a qualifying phrase is supposed to apply to all antecedents instead of only to the immediately preceding one may be found in the fact that it is separated from the antecedents by a comma’”); see also State ex. rel. Owens v. Pearson, 156 So.2d 4 (Fla.1963) (analyzing the comma usage in the constitutional language, “The supreme court may issue ... writs of prohibition to commissions established by law, to the district courts of appeal, and to the trial courts when questions are involved upon which a direct appeal to the supreme court is allowed as a matter of right” and determining the lack of a comma between “trial court” and “when questions” required the modifying phrase only apply to “trial courts”); Jacques v. Dep’t of Bus. & Prof. Reg., 15 So.3d 793, 795-96 (Fla. 1st DCA 2009) (citing Owens and stating under the doctrine of the last antecedent, qualifying phrases in a clause are limited to the words immediately preceding unless a comma is used to set off the phrase); Edgewater Beach Owners Ass’n, Inc. v. Walton County, 833 So.2d 215, 221 (Fla. 1st DCA 2002) (holding the same). Thus, in accordance with the plain meaning of the subsection’s language, the offenses listed in section 456.074(l)(b), which authorize an emergency suspension, must relate to Medicaid.

Second, while there has been no Florida case addressing whether “relating to the Medicaid program” in section 456.074(l)(b) modifies all of the enumerated offenses, or only the last offense, this particular subsection was added to Senate Bill 1986, which was originally entitled “A bill to be entitled An act relating to Medicaid.” See Fla. S. Health Reg. Comm., SB 1986 (2009) Bill Analysis (March 26, 2009). Further, the Legislative Bill Analysis evidences the Bill was enacted with the purpose of curtailing the growth of Medicaid fraud in Florida. See Fla. S. Health Reg. Comm., SB 1986 (2009) Bill Analysis (March 26, 2009). As such, it was clearly the Legislature’s intent in enacting section 456.074(l)(b) to authorize the issuance of an ESO only for those enumerated offenses which “relate” to Medicaid.

Giving weight to the statute’s plain meaning and the legislative intent, the underlying facts do not qualify as one of those instances where DOH may issue an ESO without providing specific reasons why the suspension is necessary to prevent immediate harm to the public. As such, we grant the petition and order the ESO be stricken.

LEWIS and RAY, JJ., concur.


author: CLARK, J. SWANSON, J.,

text:
    Preston SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-459.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2011.

      Nancy A. Daniels, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Ralph F. Guerra and Edward C. Hill Jr., Assistant Attorneys General, Tallahassee, for Appellee.
   CLARK, J.

The appellant challenges the revocation of his probation upon the trial court’s finding that the appellant’s brief delay in reporting to the jail to begin serving a term of incarceration violated a condition of his probation. Because the slight delay in appearing at the jail on the day he was to begin serving that term of incarceration was not shown to be a willful and substantial violation, the appellant’s probation should not have been revoked. See e.g. Garcia v. State, 670 So.2d 1104 (Fla. 2d DCA 1996). The revocation of the appellant’s probation is therefore reversed, and the sentence imposed upon that revocation is vacated. The case is remanded, with the appellant to be released from that prison sentence.

HAWKES, J., Concurs; and SWANSON, J., Concurs with Opinion.

SWANSON, J.,

concurring.

I concur in the majority’s decision to reverse the revocation of appellant’s probation and remand with instructions for his release from prison. I write only to express my opinion that the facts of this case serve to illustrate a clear abuse of a trial court’s discretion.

On September 14, 2010, pursuant to a negotiated agreement with the state, appellant entered a plea of no contest to a charge of the sale of a substance in lieu of cocaine, contrary to section 817.563, Florida Statutes (2009). The trial court imposed a term of probation of thirty months, with the special condition that appellant serve sixty days in jail. On October 6, 2010, the state filed an amended affidavit of violation of probation, alleging appellant violated Condition (5) of his probation by committing a new offense, and Condition (9) by failing to comply with his probation officer’s instruction to report to the Franklin County Jail by noon on September 21, 2010, to begin serving his sentence. At the evidentiary hearing, the state proceeded only with the technical failure to timely report to jail. The evidence presented showed appellant was approximately twenty minutes late in turning himself in to the county jail. The trial court found appellant violated his probation, revoked it, and sentenced appellant to eighteen months’ imprisonment in the Department of Corrections.

A trial court’s decision to revoke a defendant’s probation is reviewed for an abuse of discretion. See State v. Carter, 835 So.2d 259, 262 (Fla.2002). “That is, the appellate court must determine whether or not the trial court acted in an arbitrary, fanciful or unreasonable manner” in determining whether the defendant’s violation of probation was “both willful and substantial.” Id. As the majority correctly holds, under Florida law appellant’s “slight delay” in appearing at the jail to begin serving his sentence was not a willful and substantial violation of his probation. Indeed, analogous caselaw supports the view that the fact of appellant’s reporting to jail twenty minutes after the appointed time was little more than a de minimis violation. Cf. Navedo v. State, 847 So.2d 585, 586 (Fla. 3d DCA 2003) (holding the defendant’s voluntary appearance in court to begin serving his sentence less than six hours late was a “de minimis” deviation of several hours and, therefore, the trial court abused its discretion in failing to mitigate the defendant’s sentence as promised, provided he timely surrender following a brief furlough); Eulo v. State, 786 So.2d 43, 44 (Fla. 4th DCA 2001) (holding the defendant’s fifteen-minute delay in surrendering to the trial court following a furlough to be “de minimis”). Accordingly, in my opinion, under the circumstances of this case, the trial court’s decision to revoke appellant’s probation and sentence him to eighteen months’ imprisonment was both “arbitrary” and “unreasonable.” In Carter, the supreme court recognized that “[t]here may be circumstances where revocation is patently unfair.” 835 So.2d at 262. In my view, this case represents one of those circumstances.


text:
    Bonifacio SAEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1673.
    District Court of Appeal of Florida, Third District.
    Aug. 31, 2011.
    Bonifacio Saez, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, C.J., and SUAREZ and SALTER, JJ.
   PER CURIAM.

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


text:
    Roberto MOSQUERA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-1849.
    District Court of Appeal of Florida, Third District.
    Aug. 31, 2011.

      Roberto Mosquera, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before RAMIREZ, SUAREZ and SALTER, JJ.
   PER CURIAM.

Affirmed. Roberto Mosquera’s motion to correct illegal sentence was granted in part. On appeal, he has not provided us with a brief explaining where he is assigning error.


text:
    Andres PAVON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-2069.
    District Court of Appeal of Florida, Third District.
    Aug. 31, 2011.
    Rehearing Denied Sept. 21, 2011.
    Andres Pavón, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, LAGOA and EMAS, JJ.
   PER CURIAM.

Affirmed. See Minor v. State, 780 So.2d 326 (Fla. 3d DCA 1999).


text:
    Roderick C. TIMMONS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2018.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2011.
    Roderick C. Timmons, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., LEWIS, and ROBERTS, JJ., concur.


text:
    Artarus Manche JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3916.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2011.
    Artarus Manche Jackson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., LEWIS, and ROBERTS, JJ., concur.


text:
    Juan JENKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3918.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2011.
    Juan Jenkins, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Lambrix v. State, 698 So.2d 247 (Fla.1996); see also Fla. R.App. P. 9.141(b)(2)(C).

BENTON, C.J., LEWIS and ROBERTS, JJ., concur.


text:
    Kevin HIGGINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3937.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2011.
    Kevin Higgins, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., LEWIS, and ROBERTS, JJ., concur.


text:
    Harold Israel THOMAS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3945.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2011.
    Harold Israel Thomas, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., LEWIS, and ROBERTS, JJ., concur.


text:
    Terrance L. JACKSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3951.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2011.
    Terrance L. Jackson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., LEWIS, and ROBERTS, JJ., concur.


text:
    Howard Carl McLEES, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6510.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2011.
    Howard Carl McLees, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant seeks review of the trial court’s order summarily denying his motions and amended motions for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. He makes several arguments on appeal, only one of which has merit. He argues that the trial court erred in summarily denying his claim that defense counsel was ineffective for affirmatively misadvising him that he was not eligible for conditional release supervision without attaching portions of the record that conclusively refuted the claim. We agree and reverse and remand for record attachments that conclusively refute the claim or for an evidentiary hearing. See Colombo v. State, 972 So.2d 1101 (Fla. 1st DCA 2008).

AFFIRMED in part; REVERSED and REMANDED in part.

BENTON, C.J., ROBERTS, and RAY, JJ., concur.


text:
    Trenton WILSON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-1583.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2011.
    Trenton Wilson, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Willie N. Meggs, State Attorney, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on July 6, 2010, in Gadsden County Circuit Court case number 07-801-CF, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal shall appoint counsel to represent him in the belated appeal authorized by this opinion.

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


text:
    Sarah ADAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2466.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2011.
    Sarah Adams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on June 7, 2010, in Washington County circuit court case number 09-000348-CF-MA, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent her in the appeal authorized by this opinion.

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


text:
    Terry D. GRAHAM, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-2818.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2011.
    Terry D. Graham, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking belated appeal of the judgment and sentence rendered on February 22, 2011, in Okaloosa County Circuit Court case numbers 2009-CF-2403 and 2010-CF-918, is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the clerk of the lower tribunal for treatment as a notice of appeal. If petitioner qualifies for the appointment of counsel at public expense, the lower tribunal is directed to appoint counsel to represent him in the belated appeal authorized by this opinion.

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


text:
    Leondray KIRKLAND, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-3132.
    District Court of Appeal of Florida, First District.
    Aug. 31, 2011.
    Leondray Kirkland, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Brooke Poland, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition seeking a belated appeal of the judgment and sentence rendered on November 22, 2010, in Duval County Circuit Court case number 2009-CF-7708 is granted. Upon issuance of mandate, a copy of this opinion shall be furnished to the lower tribunal for treatment as a notice of appeal. The Court notes that the lower tribunal has already appointed the Office of the Public Defender, Fourth Judicial Circuit, to represent petitioner on appeal, and construes the order of appointment as extending to the belated appeal authorized by this opinion.

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


author: LAWSON, J.

text:
    STATE of Florida, Appellant, v. Jermaine S. LITTLES, Appellee.
    No. 5D10-3352.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 2011.

      Pamela Jo Bondi, Attorney General, Tallahassee, and L. Charlene Matthews, Assistant Attorney General, Daytona Beach, for Appellant.
    David R. Damore, of Damore, Delgado, Romanik & Rawlins, Daytona Beach, for Appellee.
   LAWSON, J.

The State of Florida appeals from an interlocutory order suppressing cocaine and other evidence seized incident to the arrest of Jermaine S. Littles on a charge of sale or delivery of cocaine within 1,000 feet of a public park. The trial judge ordered suppression of the evidence after finding that law enforcement lacked probable cause to arrest Littles. While we defer to all factual findings by the trial judge that are supported by competent, substantial evidence, we independently determine whether those facts amount to probable cause to believe that Littles committed the offense. Miranda v. State, 816 So.2d 132 (Fla. 4th DCA 2002). Applying the law to the facts as found by the trial judge, we conclude that law enforcement had probable cause to arrest Littles, and reverse the suppression order.

Acting on an anonymous tip that Littles was selling narcotics at a public park during his child’s football practice, law enforcement set up surveillance at the park. The officers watched Littles enter the park, exit his vehicle, and accompany his child toward a practice field. Officers then observed a white van pull into the park near Littles. Officers watched Littles talking with the van’s occupants, reenter his car, follow the van out of the park’s front gate, and pull to the side of the road beside the van. They then observed one of the van’s passengers give money to Littles, and watched as Littles deposited something into the passenger’s hand.

Law enforcement continued following the van as it proceeded away from the park, while at the same time gathering information on the van and its passengers. Upon learning that the State had suspended the driver’s license of the van’s owner, and after confirming that the driver matched the description of the owner, the officers decided to initiate a traffic stop on the van. Before they did so, however, the van made a quick turn into a parking lot, stopped abruptly, and the passenger leaned out of the van and began throwing up. Law enforcement pulled in behind the van, and turned on the police vehicle’s flashing lights to signal their intent to detain the van and its occupants. Police separated the van’s driver and passenger for questioning, and each waived his Miranda rights. Each independently admitted to purchasing cocaine from Littles outside of the front gate of the park, and to smoking it in the van. Both stated that the drug made the passenger sick, and police located a used crack pipe and an additional piece of suspected crack cocaine in the van. The crack pipe and the suspected crack both tested positive for cocaine in a field test administered by police.

Based upon all of this information, law enforcement arrested Littles.

“Probable cause to arrest exists when facts and circumstances within an officer’s knowledge and of which he had reasonably trustworthy information are sufficient to warrant a person of reasonable caution to believe that an offense has [been] or is being committed.” McCarter v. State, 463 So.2d 546, 548-49 (Fla. 5th DCA 1985). The trial judge’s error in this case was in failing to consider the “totality of the circumstances” known to the arresting officers. See, e.g., Mathis v. Coats, 24 So.3d 1284, 1288 (Fla. 2d DCA 2010) (“The existence of probable cause requires an examination of the totality of the circumstances.”). Instead, the trial judge focused narrowly on the reliability of the statements given by the van’s occupants, concluding that because the two were criminal informants with an incentive to implicate Littles to improve their standing with law enforcement, their statements lacked reliability. While this is certainly one factor to be considered, the trial judge failed to take into account that the statements were obtained independently from the witnesses, with each independently implicating Littles. More importantly, the trial court failed to appreciate that law enforcement had already corroborated these witnesses’ statements with their own observations — having witnessed the transaction themselves — and that all of the facts learned by police as a result of their surveillance were gathered in corroboration of an anonymous tip that Littles was selling drugs at the park during his child’s sports practices. Considering the totality of the information known to law enforcement, we find that Littles’ arrest was supported by probable cause.

Finally, we note that both below and on appeal, Littles mistakenly focuses on the hearsay nature of some of the information testified to during the suppression hearing. For example, every time that an officer would testify to information relayed to him by another officer during the surveillance, Littles would interpose a hearsay objection. And, on appeal, Littles argues that these facts should not be considered as part of the probable cause determination because the testimony should not have been admitted at the suppression hearing over his hearsay objections. The trial court correctly ruled that these statements were not hearsay because they were not being offered for the truth of the matter asserted. See § 90.801(l)(c), Fla. Stat. (2009) (Hearsay is “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.”). Instead, the statements were offered to show what information the arresting officer had when making his probable cause determination. See Mathis, 24 So.3d at 1288 (“The facts [bearing on a probable cause determination] are to be analyzed from the officer’s knowledge ....”) (citation omitted); see also Voorhees v. State, 699 So.2d 602, 609 (Fla.1997) (“The fellow officer rule allows an arresting officer to assume probable cause to arrest a suspect from information supplied by other officers.”). We also note that “hearsay evidence is admissible in suppression hearings.” J.D. v. State, 920 So.2d 117, 118 (Fla. 4th DCA 2006) (citing Lara v. State, 464 So.2d 1173, 1177 (Fla.1985); State v. Cortez, 705 So.2d 676, 679 (Fla. 3d DCA 1998)).

Finding that the trial court erred in suppressing the evidence seized incident to Littles’ arrest, we reverse the order on appeal and remand this matter to the trial court for further proceedings.

REVERSED AND REMANDED.

SAWAYA and COHEN, JJ„ concur.

      . A dog trained to detect narcotics alerted to the presence of drugs in the van before law enforcement searched the van.