author:
ROWE, J.
      VAN NORTWICK, J.,

text:
    William G. GRANEY, P.E. and KTD Consulting Engineers, Inc., Appellants, v. CADUCEUS PROPERTIES, LLC, a Florida Limited Liability Company, and Tallahassee Neurological Clinic, P.A., a Florida Professional Association, Appellees.
    No. 1D11-2700.
    District Court of Appeal of Florida, First District.
    June 21, 2012.

      Patrick R. Delaney and Rouselle A. Sutton, III, Orlando, for Appellants.
    Martin B. Sipple and Robert N. Clarke, Jr., Ausley & McMullen, P.A., Tallahassee, for Appellees.
   ON MOTION FOR REHEARING AND REHEARING EN BANC

ROWE, J.

We deny the motion for rehearing and rehearing en banc filed by appellees Caduceus Properties, LLC, and Tallahassee Neurological Clinic, P.A. No further motions from the parties will be entertained. On our own motion, however, we withdraw our previous opinion and substitute the following opinion in its place.

The appellants, William A. Graney (“Graney”) and KTD Consulting Engineers (“KTD”), appeal a final order of judgment entered in favor of Caduceus Properties (“Caduceus”) and Tallahassee Neurological Clinic (“TNC”) for claims arising out of the design, construction, and installation of a heating, ventilation, and air conditioning (“HVAC”) system on property owned by Caduceus and leased by TNC. Graney and KTD raise eight issues on appeal. Because one of the issues is dispositive, we decline to reach the remaining issues. Graney and KTD assert that the claims brought by Caduceus and TNC against them were barred by the statute of limitations. We agree, and for the reasons that follow, we reverse the judgment of the trial court.

Facts and Procedural History

This appeal arises from a civil action brought by TNC and Caduceus against Graney, KTD, and Michael Lee Gordon (“Gordon”). Caduceus is a Florida limited liability company and the owner of the property which is the subject of the lawsuit. The property includes a single-story building occupied by TNC, a pain clinic and surgery center.

In 2003, TNC and Gordon (a professional architect) entered into a contract for design of improvements to the building for the pain clinic and surgery center. Gordon subcontracted with KTD (an engineering design consulting firm) and Graney (a professional engineer and principal of KTD) to design the HVAC system for the TNC clinic. TNC separately contracted with Kelly Brothers Sheet Metal to perform the installation of the HVAC system.

The certificate of occupancy for the building was issued in August 2005, and almost immediately, the HVAC system began to fail. TNC contacted Gordon, KTD, and Kelly Brothers with complaints concerning the system. Over the next ten months, the parties sought to ascertain the reasons for the failure of the HVAC system and made several efforts to remedy the problems. After those efforts proved unsuccessful, TNC entered into a contract with another contractor to design, procure, and install a replacement HVAC system.

On July 24, 2006, Caduceus filed suit against Gordon, seeking to recover damages for the malfunctioning HVAC system. On March 7, '2007, Gordon filed a third-party complaint against Graney and KTD.

On June 3, 2010, Caduceus and TNC initiated a direct action against third-party defendants Graney and KTD. In their answer and affirmative defenses to the direct action, Graney and KTD raised the statute of limitations as an affirmative defense. At trial, Graney and KTD moved for involuntary dismissal based upon the statute of limitations defense. The trial court denied the motion, and ultimately entered judgment in favor of Caduceus and TNC. This appeal followed.

Analysis

Because the statute of limitations issue raised by Graney and KTD is a question of law dependent on the construction of the applicable statutes, our standard of review is de novo. See Bryson v. State, 42 So.3d 852, 853-54 (Fla. 1st DCA 2010).

The claims asserted against Gra-ney and KTD are “founded on the design, planning or construction of an improvement to real property” and are, therefore, governed by section 95.11(3)(c), Florida Statutes, which provides a four-year limitations period. Pursuant to section 95.11(3)(c), for actions involving completed construction projects, the limitations period begins to run “from the date of actual possession by the owner, the date of issuance of the certificate of occupancy ... or the date of completion or termination of the contract between the professional engineer, registered architect, or licensed contractor ... whichever is latest.” Id. If, however, the action involves a latent defect, the time runs from the time the de-feet is discovered or should have been discovered with the exercise of due diligence.” Id.

In this case, the certifícate of occupancy was issued on August 5, 2005. The record reflects that Caduceus and TNC were aware of problems associated with the HVAC system by September 2005; therefore, the four-year statute of limitations for the claims against Graney and KTD ran no later than September 2009. Caduceus and TNC initiated their direct action against KTD and Graney on June 3, 2010, almost nine months after the statute of limitations had expired. The issue is then whether the direct action complaint relates back to the filing date of the original complaint brought by Caduceus and TNC against Gordon.

Florida Rule of Civil Procedure 1.190(c) provides that an amendment relates back to the date of the original pleading “[w]hen the claim or defense asserted in the amended pleading arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original pleading.” There is no dispute here that the claims asserted against KTD and Gra-ney in the direct action complaint “arose out of the conduct, transaction or occurrence set forth or attempted to be set forth in the original pleading.” The question presented in this case is whether an amendment relates back to the original complaint where a third-party defendant is made a primary defendant after the statute of limitations has run.

“Generally, the addition of a new party will not relate back to the original complaint.” Schwartz v. Wilt Chamberlain’s of Boca Raton, 725 So.2d 451, 453 (Fla. 4th DCA 1999). Where the purpose of the amendment is to bring a new party into the suit, the relation-back doctrine does not apply, and dismissal on time-barred grounds is proper. Anderson v. Emro Mktg. Co., 550 So.2d 531, 532 (Fla. 1st DCA 1989). In Cabot v. Clearwater Construction, 89 So.2d 662 (Fla.1956), the Florida Supreme Court explained the relation-back doctrine as follows:

The general rule appears to be that whether an amendment of process or pleading changing the description of a party from a corporation to an individual or vice versa after the statute of limitations has run introduces a new party or new cause of action depends upon whether the misdescription is interpreted merely as a misnomer or defect in the characterization of the party or whether it is deemed an entire change of parties. If the former, the amendment relates back to the commencement of the action. If the latter, the amendment amounts to the institution of an entirely new action.

Id. at 668-64 (citations omitted).

Thus, an amendment will relate back where the defendant “knew or should have known that the plaintiff ... was guilty of a misnomer as concerns the correct identity of the defendant.” Kozich v. Shahady, 702 So.2d 1289, 1291 (Fla. 4th DCA 1997) (citations omitted); accord Rayner v. Aircraft Spruce-Advantage, Inc., 38 So.3d 817 (Fla. 5th DCA 2010); Schwartz v. Metro Limo, Inc., 683 So.2d 201 (Fla. 3d DCA 1996); Anderson v. Emro Mktg. Co., 550 So.2d 531, 532 (Fla. 1st DCA 1989) (“If ... this complaint merely corrected a misnomer, then application of the relation-back theory would have precluded dismissal on the ground that the suit was barred by the statute of limitations.”); Gray v. Executive Drywall, Inc., 520 So.2d 619, 620 (Fla. 2d DCA 1988) (barring amendment by plaintiff to add new defendant Executive Drywall where plaintiff originally sued Executive Plastering because Executive Plastering was not “a misnomer of the real owner of [Executive] Drywall’s business”); Francese v. Tamarac Hosp. Corp., 504 So.2d 546 (Fla. 4th DCA 1987) (amendment permitted where plaintiff first named as defendant “University Community Hospital” at a specific address, and later named “Ta-marac Hospital Corporation d/b/a University Community Hospital” at the same address).

Similarly, an amendment to add a new party will relate back “where the originally named defendant is related to the proper defendant and, through its participation in the proceedings or otherwise, has led the plaintiff to believe the correct defendant was sued.” Schwartz, 683 So.2d at 203 (quoting Hohl v. Croom Motorcross, Inc., 358 So.2d 241 (Fla. 2d DCA 1978); accord Rayner, 38 So.3d at 820).

Here, Caduceus and TNC can advance no argument that their failure to timely add Graney and KTD as defendants in the original action was the result of a misnomer or mistake as to the identities of the potential defendants. Caduceus and TNC were well aware of the identities of Graney and KTD and their roles in the design and approval of the HVAC system from the time the system began to fail in August or September 2005. Further, it is undisputed that Caduceus and TNC were aware of the potential liability of KTD and Graney when Gordon filed the third-party complaint, just over eight months after the original lawsuit was filed and at least two years before the statute of limitations ran.

Nor is this a case where the defendant misled the plaintiff into believing that the correct defendant was sued. Despite the absence of misnomer or mistake, however, Caduceus and TNC urge the court to hold that their direct action complaint against KTD and Graney related back to the original complaint filed against Gordon and invite the court to adopt the Fifth District’s reasoning set forth in Gatins v. Sebastian Inlet Tax Dist., 453 So.2d 871 (Fla. 5th DCA 1984). For the reasons that follow, we decline the invitation to follow Gatins.

In Gatins, the plaintiff timely brought a wrongful death action against Sebastian Inlet Tax District. The plaintiff brought the action on behalf of his daughter, who was killed when she fell through an opening in the guardrail on a pier owned and operated by the Tax District. One day before the statute of limitations ran on the wrongful death claim, the Tax District filed a third-party complaint against Beindorf and Associates, an engineering and construction firm that constructed the pier. Thereafter, following the expiration of the statute of limitations, the plaintiff, with leave of court, amended his complaint to assert a direct cause of action against the third-party defendant Beindorf.

In considering whether the amendment to add the third-party defendant related back to the filing of the complaint against the original defendant, the Fifth District addressed the issue as one of first impression and considered authority from other jurisdictions. The court began its analysis acknowledging that the majority of courts considering the issue had determined that such amendments did not relate back. Id. at 873 (“Of the jurisdictions that have considered the issue, most have held that such claim is barred despite the fact that the party sought to be added was impleaded as a third party defendant within the limitation period.”) (citations omitted). However, the Fifth District went on to adopt the minority view, reasoning that such amendments “merely adjust the status of an existing party.” Id. The court concluded that permitting such amendments was not inconsistent with the purpose underlying the statute of limitations, i.e., protecting against unusually long delays in filing of lawsuits and preventing unexpected enforcement of stale claims:

If a third party complaint is filed within the applicable limitation period and the third party defendant is made aware that it may be held liable for the plaintiffs damages, these purposes are satisfied and the fact that the plaintiff is permitted to amend outside the limitation period to formally make the third party defendant a party defendant is not inconsistent with these purposes, at least where, as here, the plaintiffs claim concerns the same issues as are raised in the third party complaint.

Id. at 875 (citations and footnote omitted).

Although cited by two of the other Districts, no Florida court has expressly adopted the reasoning in Gatins or applied the court’s holding to similar facts. Kaye v. Steiner, 460 So.2d 568, 568 (Fla. 3d DCA 1984) (Pearson, J. concurring) (“The introductory signal to the cases cited in this per curiam affirmance should not be construed as our approval of Gatins ....”); BMAB E. Tower, Inc. v. Testwell Craig Lab. & Consultants, Inc., 835 So.2d 1211 (Fla. 3d DCA 2003) (no discussion of facts); McKee v. Fort Lauderdale Produce Co., Inc., 503 So.2d 412 (Fla. 4th DCA 1987) (Stone, J. dissenting) (“Although I concur in the result reached in Gatins, in my view it is not applicable here.”).

This court’s analysis of decisions in other jurisdictions reveals that a split of authority persists as to whether a direct action against a third-party defendant relates back to the filing of the original complaint against the original defendant. A number of courts favor the interpretation of the relation-back doctrine approved by the Fifth District in Gatins, concluding that “relation back” in the context of third-party practice does nothing more than adjust the status of existing parties. See, e.g., Lawlor v. Cloverleaf Mem’l Park, 56 N.J. 326, 266 A.2d 569 (1970); Duffy v. Horton Mem’l Hosp., 66 N.Y.2d 473, 497 N.Y.S.2d 890, 488 N.E.2d 820, 823 (1985); Rakes v. Fairmont Mobile Homes, Inc., 178 W.Va. 152, 358 S.E.2d 236, 239 (1987). The logic underlying this line of authority is grounded in the notion that the filing of a third-party complaint automatically informs the third-party defendant that the plaintiff may ultimately seek to bring a direct action against the defendant, and therefore, the defendant is not prejudiced by the plaintiffs delay in filing the direct action.

However, other jurisdictions have concluded that an equally plausible inference is that the third-party defendant had no reason to know, before the filing of the motion for leave to amend the complaint, that the plaintiff would assert a direct claim against them. See Lundy v. Adamar of New Jersey, Inc., 34 F.3d 1173, 1183 (3d Cir.1994) (“Where there is a basis for the plaintiff to assert liability against the party or parties named in a complaint and there is no reason for another party to believe that the plaintiff did anything other than make a deliberate choice between potential defendants, courts have consistently held that the third requirement of Rule 15(c)(3) [Federal Rule of Civil Procedure governing relation back of amendments] is not met.”); State ex rel. Hilker v. Sweeney, 877 S.W.2d 624, 628 (Mo.1994) (barring direct action against third-party defendant on grounds that “ ‘relation back’ is triggered only by a mistake in identifying a party defendant and not by a mistake in failing to add a party defendant.”); Laliberte v. Providence Redev. Agency, 109 R.I. 565, 288 A.2d 502 (1972) (holding that plaintiffs could not assert direct action against third-party defendants after the statute of limitations had run); J.G. Boyd’s Good Housekeeping Shops, Inc. v. Gen. Sec. Serv., Inc., 483 S.W.2d 826 (Tex.Civ. App.1972) (holding that plaintiffs claim against third-party defendant was barred by the statute of limitations). Under such circumstances,' the plaintiffs failure to assert direct claims against the third-party defendant may be regarded as a matter of tactical choice, rather than mistake or error. See Lavin v. Silver, No. Civ.A. 01C06033 WLW, 2003 WL 21481006, at *3 (Del.Super.Ct. June 10, 2003) (unpublished decision) (holding that plaintiffs direct action against third-party defendant was barred by statute of limitations because plaintiffs decision not to timely sue the third-party defendant was “a matter of choice, not mistake”); Mathai v. Catholic Health Initiatives, Inc., No. Civ.A. 00-656, 2000 WL 1716747, at *3 (E.D.Pa. Nov.16, 2000) (unpublished decision) (holding that federal rule allowing relation back “was not intended to assist a plaintiff who ignores or fails to respond in a reasonable fashion to notice of a potential party”); Higginbotham v. Fearer Leasing, Inc., 32 Mich.App. 664, 189 N.W.2d 125, 131 (1971) (holding that plaintiffs, by their failure to file a direct action against third-party defendant within limitations period, “elected to forego their right to name him as a principal defendant”).

We find that the latter line of authority represents the more reasonable interpretation of the relation-back doctrine and is also consistent with the underlying purpose of the statute of limitations. As recognized by all five Florida District Courts of Appeal and the Florida Supreme Court, the law distinguishes between the substitution of parties (as a result of mistake or misnomer) and the addition of parties. Cabot v. Clearwater Construction, 89 So.2d 662 (Fla.1956); Rayner v. Aircraft Spruce-Advantage, Inc., 88 So.3d 817 (Fla. 5th DCA 2010); Kozich v. Shahady, 702 So.2d 1289 (Fla. 4th DCA 1997); Anderson v. Emro Mktg. Co., 550 So.2d 531 (Fla. 1st DCA 1989); Schwartz v. Metro Limo, Inc., 683 So.2d 201 (Fla. 3d DCA 1996); Gray v. Executive Drywall, Inc., 520 So.2d 619 (Fla. 2d DCA 1988). Relation back should only be permitted where there is a mistake or misnomer in identifying a party defendant, not a mistake in failing to add a party defendant. The fact that a defendant who is proposed to be added has participated in the lawsuit as a third-party defendant does not relieve the plaintiff of the burden of demonstrating mistake or misnomer. To hold otherwise would amount to interpreting rule 1.190(c) to mean that the filing of a third-party complaint tolls the running of the statute of limitations on a cause of action between the plaintiff and a third-party defendant. Nothing in the text of the rule compels such an expansive interpretation.

Further, permitting a plaintiff to amend the originál complaint to add a new defendant in circumstances where the plaintiff is fully aware of the identity of the defendant and the defendant’s potential liability thwarts the primary purpose of-the statute of limitations, i.e., “to protect defendants from unfair surprise and stale claims.” Major League Baseball v. Morsani, 790 So.2d 1071, 1075-76 (Fla.2001); Nardone v. Reynolds, 333 So.2d 25, 36 (Fla.1976) (purpose of statute of limitations is to prevent defendants from being called upon to defend old claims with' nothing more than “tattered or faded memories, misplaced or discarded records, and missing or deceased witnesses”). Here, while Graney and KTD were indisputably on notice of the complaint against Gordon brought by Caduceus and TNC, and were aware of the need to prepare a defense in the third-party action brought by Gordon, they lacked notice that the plaintiffs intended to file a direct action against them, an action which included different claims, requiring different elements of proof. This is precisely the type of harm that statutes of limitation are designed to prevent.

Caduceus and TNC made an intentional or tactical decision not to timely bring claims against parties they knew to be potentially liable. Caduceus and TNC were aware of the identities of KTD and Graney since the time that the HVAC system first began to fail in August 2005. TNC and Caduceus deliberately chose to sue another defendant with full knowledge of the existence and identity of other potential defendants. Under such circumstances, there has been no mistake or misnomer and the plaintiffs should not be given a second opportunity to add a new claim against entirely new defendants after the limitations period has expired.

For these reasons, we conclude that the direct action filed by Caduceus and TNC against Graney and KTD did not relate back to the filing of the original complaint; thus, the action was barred by the statute of limitations. We, therefore, reverse the judgment of the trial court.

Based on our holding, we certify express and direct conflict with the Fifth District in Gatins v. Sebastian Inlet Tax Dist., 453 So.2d 871 (Fla. 5th DCA 1984).

REVERSED; CONFLICT CERTIFIED

THOMAS, J., concurring; VAN NORTWICK, J., dissenting.

VAN NORTWICK, J.,

dissenting.

With respect to the application of the statute of limitations, I would adopt the rationale of the Fifth District in Gatins v. Sebastian Inlet Tax District, 453 So.2d 871 (Fla. 5th DCA 1984), and affirm the ruling of the trial court. Accordingly, I respectfully dissent.

On July 24, 2006, Caduceus Properties, LLC, filed its action against Michael Lee Gordon, the project architect, asserting claims relating to an allegedly malfunctioning HVAC system. In December 2006, an amended complaint was filed against Gordon alleging numerous additional claims, including professional negligence; breach of contract; and breach of the implied covenant of good faith, fair dealing, and commercial reasonableness. In March 2007, Gordon filed a third-party complaint against William G. Graney, a professional engineer and a project manager, and KTD Consulting Engineers, Inc., the consulting HVAC engineering firm, alleging professional negligence in the design of the HVAC system. In September 2010, Caduceus and Tallahassee Neurological Clinic, P.A. filed an Amended Direct Action Complaint against Graney, KTD and Gordon alleging that the HVAC system was improperly designed.

The certificate of occupancy to the subject property here was issued on August 5, 2005; thus, the statute began to run on that date. See Wambles v. Amrep Se., Inc., 568 So.2d 125, 126 (Fla. 5th DCA 1990). The four-year statute of limitations of section 95.11(3)(c), Florida Statutes (2006), governs actions on the design and construction of improvements to real property, rather than the five-year limitations period under section 95.11(2)(b) for actions on contracts. Suntrust Banks of Florida, Inc. v. Don Wood, Inc., 693 So.2d 99, 101 (Fla. 5th DCA 1997). KTD and Graney pleaded the statute of limitations as an affirmative defense in their answer to the Second Amended Direction Action Complaint and they moved for dismissal based upon the four-year statute of limitations.

Below and on appeal, KTD and Graney argue that the four-year statute of limitations expired before Caduceus and TNC filed their June 2010 direct action complaint against them. Caduceus and TNC argue that under Gatins v. Sebastian Inlet Tax District, the direct action complaint relates back to the third-party complaint.

In Gatins, the Fifth District held that a plaintiff can assert an otherwise time-barred direct action against a third-party defendant if the third-party defendant was brought into the suit within the limitations period. 453 So.2d at 875. The Gatins court noted that the purpose of statutes of limitation is to protect a party from unexpected enforcement of stale claims. Id. The court reasoned that this purpose is not implicated where the third party is timely brought into the action:

[i]f a third party complaint is filed within the .applicable limitation period and the third party defendant is made aware that it may be held liable for the plaintiffs damages, these purposes are satisfied and the fact that the plaintiff is permitted to amend outside the limitation period to formally make the third party defendant a party defendant is not inconsistent with these purposes, at least where, as here, the plaintiffs claim concerns the same issues as are raised in the third party complaint.

Id.

Here, Gordon initiated a third-party complaint against KTD and Graney on March 7, 2007, placing them on notice within the limitations period that they were being sued for defects in the HVAC system and that they could be liable for damages. The trial court relied on the reasoning in Gatins and ruled that the June 3, 2010, direct action complaint filed by Caduceus and TNC against KTD and Graney related back to the filing of the March 7, 2007, third-party complaint filed against Graney and KTD. Thus, the court ruled that the direct claims were not barred by the statute of limitations. I agree and would affirm.

      . Gordon filed bankruptcy during the trial of this case. Because the litigation against Gordon was automatically stayed, no judgment was entered against him and he was never party to this appeal.

      . The trial court granted Caduceus' motion for leave to amend the complaint to add TNC as a party plaintiff.

      . Although not raised in their answer brief, during oral argument of this appeal Caduceus and TNC argued an alternative basis for affirming the trial court’s ruling pursuant to the "tipsy coachman” doctrine. Caduceus and TNC assert that the statute of limitations was tolled because Graney and KTD concealed a latent defect. Upon careful review of the record, we conclude that the argument advanced by Caduceus and TNC fails as a matter of law and fact. First, it is well established that the plaintiff's lack of knowledge of the specific cause of a construction defect does not toll the statute of limitations. See Almand Construction Co., Inc. v. Evans, 547 So.2d 626, 628 (Fla. 1989). The record in this case is undisputed that TNC and Caduceus were aware of the failure of the HVAC system and deficiencies in its design by September 2005. Second, in support of their damages claim, Caduceus and TNC identified several defects in the HVAC system. Only one of those defects was asserted to be "latent,” namely the installation of the wrong type of cooling coils in the HVAC system. However, in September 2005, Caduceus and TNC were made aware of the alleged latent defect in an e-mail reporting that a type of cooling coil other than the type specified by Graney and KTD had been installed. For this reason, the argument that the statute of limitations was tolled on the basis of the late discovery of a latent defect is also refuted by the record.

      . In applying the exceptions based on misnomer or mistake, Florida courts have required that the newly-added and .original defendants have an identity or unity of interest. See, e.g. Ron’s Quality Towing, Inc. v. Se. Bank of Florida, 765 So.2d 134 (Fla. 1st DCA 2000). This requirement flows from the notion that the newly-added defendant is "united in interest” with the original defendant, and by virtue of that relationship can be charged with such notice of the institution of the action that the newly-added defendant will not be prejudiced in maintaining a defense on the merits. Id. at 136. Courts determine unity of interest by considering whether the newly-added and original defendants have common officers, principals, agents, or addresses. See, e.g., Schwartz v. Wilt Chamberlain’s of Boca Raton, 725 So.2d 451 (Fla. 4th DCA 1999) (finding unity of interest where original defendants and new defendants had common officers, the same registered agent, and were represented by the same attorneys); Kozich v. Shahady, 702 So.2d 1289 (Fla. 4th DCA 1997) (finding unity of interest where defendants operated out of a single office, had overlapping officers and directors, shared consolidated financial statements and registration statements, shared the same attorney and received service of process through the same agent at the samé location).


source: Caselaw Access Project

author: PER CURIAM. TORPY, J.,

license: Public Domain

text:
    Vida BAPTISTA, for Herself, etc., Appellant, v. PNC BANK, NATIONAL ASSOCIATION, Appellee.
    No. 5D10-2422.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2012.
    Rehearing Denied July 16, 2012.
    Samuel A. Walker, Tee Persad, and Alberto E. Lugo-Janer of CPLS, P.A., Orlando, for Appellant.
    Virginia B. Townes and Brandon W. Banks of Akerman Senterfitt, Orlando, for Appellee.
   PER CURIAM.

Appellant challenges a summary judgment that ended her class action lawsuit against Appellee. She claims that Appel-lee’s policy of charging a $5 service fee to cash a check drawn on one of its accounts violates section 655.85, Florida Statutes (2009). That statutory provision requires banks to settle all checks at par value, which means face value. The trial court ruled that section 655.85 did not apply to the transaction here. Alternatively, the trial court concluded that, even if the statute did apply to this transaction, it was preempted by federal law allowing banks to charge such fees. We reverse.

F. Joseph Desreux issued a $1,700 check to Appellant, drawn on Desreux’s checking account at Appellee, a North Carolina state-chartered bank. Appellant presented the check for cashing at one of Appel-lee’s Florida branches. Because Appellant did not have an account with Appellee, it charged her a $5 check-cashing fee as a condition to cashing the check. Appellant filed a class action lawsuit against Appel-lee, alleging that it had violated section 655.85 by settling her check for less than par value. Upon Appellee’s motion, the trial court granted summary judgment, concluding that: (i) section 655.85 only applies to bank-to-bank transactions, and (ii) even if section 655.85 applies to transactions with individuals, it is preempted by federal law that allows national banks to charge such fees, and that such preemption extends equally to out-of-state state banks pursuant to 12 U.S.C. § 1831a(j)(l). Although not a basis for the trial court’s ruling, Appellee also argued below and on appeal that the requirement to settle all checks at par value contained in section 655.85 does not apply because of an express exception for checks presented by the “payee in person.”

We first address the arguments concerning the applicability of the statute. Our conclusion of which is governed by the unambiguous text of the statute. Section 655.85, entitled “Settlement of Checks,” states in pertinent part:

Whenever any check is forwarded or presented to an institution for payment, except when presented by the payee in person, the paying institution or remitting institution may pay or remit the same, at its option, either in money or in exchange drawn on its reserve agent or agents in the City of New York or in any reserve city within the Sixth Federal Reserve District; however, an institution may not settle any check drawn on it otherwise than at par.

(Emphasis added). The statute is composed of two clauses. The first clause authorizes a bank to use an exchange system for payment, rather than a payment in money. Understandably, it excepts from this option a check that is presented “by the payee in person.” Thus, when a check is presented to the drawee bank by the payee, it must be paid in money. The second clause addresses whether a bank may “settle”- (pay) a check for less than par value. It does not except anyone or any check from its application. Irrespective of how the check is settled, the plain language of the second clause requires that the check be settled for no less than par.

Appellee urges that the second clause should be construed to incorporate the same exception expressed in the first clause. In other words, Appellee seeks a construction that construes the phrase “any check” to mean “any check, except one that is presented by the payee.” Both parties argue about the grammatical significance of the use of a semicolon to separate the two clauses, each contending that the use of the semicolon compels their proffered construction. No matter which grammatical convention is applied, we conclude that the statute plainly contains two distinct clauses that address two distinct issues. The prohibition against paying less than par clearly applies to “any check,” without exception.

Appellee’s alternative argument is that section 655.85 only applies in bank-to-bank transactions. In support of this contention, Appellee traces the historical development of the check-clearing exchange system. It highlights the struggle between states and the Federal Reserve Board regarding exchange fees charged by banks for clearing checks. According to commentary Appellee cites, the states that had initially resisted the Federal Reserve Board’s prohibition against such exchange fees eventually capitulated. Appellee contends that section 655.85 is the end result, and it should be interpreted in light of this historical backdrop. Appellant counters that we need not and should not consider any extrinsic evidence of what was intended because the statute is clear. Alternatively, she urges that the history cited by Appellee is not “legislative history,” meaning that it is not the product of the Florida Legislature, thus is too attenuated to be a reliable source for legislative intent. We need not address Appellee’s alternative argument because we conclude that the statute is unambiguous. See, e.g., Aetna Cas. & Sur. Co. v. Huntington Nat’l Bank, 609 So.2d 1315, 1317 (Fla.1992) (“The legislative history of a statute,is irrelevant where the wording of a statute is clear.”). Accordingly, we construe the statute literally-

The next issue we must consider is the applicability of 12 U.S.C. § 1831a(j)(l), which provides, in pertinent part:

(j) Activities of branches of out-of-state banks
(1) Application of host state law
The laws of a host State, including laws regarding community reinvestment, consumer protection, fair lending, and establishment of intrastate branches, shall apply to any branch in the host State of an out-of-State State bank to the same extent as such State laws apply to a branch in the host State of an out-of-State national bank. To the extent host State law is inapplicable to a branch of an out-of-State State bank in such host State pursuant to the preceding sentence, home State law shall apply to such branch.

(Italics emphasis added). Appellee argues that this statute essentially confers upon it the same status as a national bank. It argues that, because section 655.85 is not applicable to national banks, it cannot be enforced against Appellee, an out-of-state state bank. The fallacy in this argument is that it contorts the express language of the statute. This statute simply prohibits states from discriminating against out-of-state state banks. It requires that laws of the host state apply to out-of-state state banks to the same extent that they apply to national banks. This statute has no applicability here because section 655.85 applies by its terms to all banks. It does not differentiate between national banks and out-of-state state banks. The only reason that section 655.85 does not apply to national banks is because a different federal statute permits national banks to charge a fee and that statute preempts the state law. See Britt v. Bank of Am,., N.A., 52 So.3d 809, 810 (Fla. 5th DCA 2011). REVERSED AND REMANDED.

SAWAYA, J., and MAHL, J., Associate Judge, concur.

TORPY, J., concurs and concurs specially with opinion.

TORPY, J.,

concurring and concurring specially.

Appellee argues that the prohibition against settlement-below-par does not apply here for various reasons. I agree with our conclusion concerning the meaning and applicability of section 655.85, Florida Statutes. Furthermore, even if section 655.85 does not establish an express prohibition to the fee charged here, it is not tantamount to an authorization to exact a charge as a precondition to fulfilling the legal obligation to pay a negotiable instrument when it is properly presented. That obligation is established by chapter 673, Florida Statutes, which addresses negotiable instruments.

When questioned about this at oral argument, Appellee’s counsel initially conceded that Appellee, as drawee, has the legal obligation to pay the par value of the check, a negotiable instrument, when it is properly “presented” for payment. Counsel initially represented that the fee charged to Appellee was for the privilege of an immediate payment, something it was not legally obligated to do if the check was presented after an established cutoff hour. See § 673.5011(2)(d), Fla. Stat. (2009) (authorizing drawee bank to “treat presentment as occurring on the following business day” if check is presented after established cutoff time (not earlier than 2 p.m.)). Later in counsel’s argument, however, he equivocated, taking the position that a bank may charge such a fee even when the check is presented for payment before the cutoff hour or when payment is sought the day following presentment. I think counsel’s initial concession was correct. A drawee bank must pay the full amount of a check when it is properly presented before the cutoff hour by the payee, unless the check is legally dishonored. Given our conclusion that settlement for less than par is proscribed by section 655.85, whether a bank may charge a fee in exchange for waiving its right to treat presentment as occurring on the next business day is academic.

      . To accept Appellee's argument, we would have to conclude that no part of section 655.85 applies to individuals. In other words, the entire statute was intended to only address exchanges between banks through the check-clearing system. One obvious problem with this argument is that the exception contained within the first clause for payees who appear at the bank in person to cash a check would be surplusage. If the statute was only intended to address check clearing between banks, the exception is not needed. We are not supposed to reach a construction that reduces language in a statute to mere surplus-age. See Mendenhall v. State, 48 So.3d 740, 749 (Fla.2010) (court must give effect to every word in statute and avoid construction that renders words mere surplusage).

      . We note parenthetically that were we to accept the interpretation advocated by Appel-lee, the result would be that a state bank may receive more favorable treatment than its home state affords simply by establishing branches across the borders of another state. Nothing in the language of this statute manifests that intent.


author: EVANDER, J.

text:
    Gary C. RICHARDS, Appellant, v. HSBC BANK USA as Trustee for PHH 2007-2, Appellee.
    No. 5D10-3895.
    District Court of Appeal of Florida, Fifth District.
    June 22, 2012.

      Gary C. Richards, Gainesville, pro se.
    Jeffrey M. Gano, of Florida Default Law Group, P.L., Tampa, for Appellee.
   EVANDER, J.

Richards appeals the entry of a final summary judgment of mortgage foreclosure. Because a material disputed issue of fact remained as to whether HSBC was the holder of the note, we reverse.

The proper party with standing to foreclose a note and mortgage is the holder of the note and mortgage or the holder’s representative. See Gee v. U.S. Bank Nat’l Ass’n, 72 So.3d 211, 213 (Fla. 5th DCA 2011). Thus, the party seeking foreclosure must present evidence that it holds the note and mortgage in question in order to proceed with its foreclosure action. Id. A plaintiff must tender the original promissory note to the trial court or seek to reestablish the note under section 673.3091, Florida Statutes (2010). Id. If the note does not name the plaintiff as the payee, the note must bear an endorsement in favor of the plaintiff or a blank endorsement. Id. Alternatively, the plaintiff may submit evidence of an assignment from the payee to the plaintiff or an affidavit of ownership to prove its status as a holder of the note. Id.

This court reviews an order granting summary judgment de novo. Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment is appropriate where there is no genuine issue of material fact and the movant is entitled to a judgment as a matter of law. Id. When reviewing a final summary judgment, an appellate court must examine the record in the light most favorable to the non-moving party. Gee, 72 So.3d at 213.

In the instant case, HSBC filed an unverified complaint alleging that it owned and held the note and mortgage. However, the copy of the note and mortgage attached to the complaint reflected that Richards had executed the note and mortgage in favor of Century 21 Mortgage. Throughout the proceedings below, Richards challenged the right of HSBC to bring its foreclosure action.

Ultimately, in support of its motion for summary judgment, HSBC filed the original note, an assignment of mortgage, and affidavits setting forth “amounts due and owing.” However, these documents failed to establish, as a matter of law, that HSBC was the holder of the note.

While the assignment reflected that the mortgage had been assigned from Century 21 to HSBC, the allonge to the note reflected that Bishops Gate Residential Mortgage Trust was to be the note’s payee. Specifically, the undated allonge set forth the following language:

Without Recourse
Pay to the order of: * Bishops Gate Residential
Mortgage Trust

Thus, the allonge was inconsistent with the assignment and contradicted the allegation in the complaint that HSBC was the holder of the note. See Khan v. Bank of America, N.A., 58 So.3d 927, 928 (Fla. 5th DCA 2011) (“Because the exhibit to Bank of America’s amended complaint conflicts with its allegations concerning standing, Bank of America did not establish that it had standing to foreclose the mortgage as a matter of law.”)

Furthermore, the affidavits filed by HSBC did not explain the relationship between HSBC and Bishops Gate Residential Mortgage Trust, nor otherwise aver facts conclusively showing that HSBC was the holder of the note.

REVERSED and REMANDED.

SAWAYA and LAWSON, JJ., concur.


author: CRENSHAW, Judge.

text:
    BAC HOME LOAN SERVICING, L.P. f/k/a Countrywide Home Loans Servicing, L.P., Appellant, v. Bill R. STENTZ a/k/a William R. Stentz, Jacklyn L. Stentz, Bank of America, N.A., and Tierra Del Sol Homeowners Association, Inc., Appellees.
    No. 2D11-4643.
    District Court of Appeal of Florida, Second District.
    June 22, 2012.

      Nancy M. Wallace, Katherine E. Gid-dings and Kristen M. Fiore of Akerman Senterfitt, Tallahassee; William P. Heller of Akerman Senterfitt, Fort Lauderdale; and Hallie S. Evans and Germaine M. Seider of Akerman Senterfitt, Tampa, for Appellant.
    Thomas E. Ice of Ice Legal, P.A., Royal Palm Beach; and Gregory D. Clark of Gregory D. Clark, P.A., Clearwater, for Appellees William R. Stentz and Jaeklyn L. Stentz.
    No appearance for remaining Appellees.
   CRENSHAW, Judge.

BAC Homes Loan Servicing, L.P. (BAC), appeals a trial court order dismissing with prejudice its residential foreclosure complaint against homeowners Bill R. Stentz and Jaeklyn L. Stentz. The trial court determined that BAC did not properly verify its complaint in accordance with section 92.525, Florida Statutes (2010). We conclude that the trial court erred by requiring BAC to provide verification that was not required under the plain language of the recently amended Florida Rule of Civil Procedure 1.110(b), and therefore we reverse.

The trial court dismissed BAC’s original complaint due to what it believed was BAC’s failure to sufficiently allege standing and its failure to verify the complaint. BAC filed an amended complaint and attached a verification attested to by a BAC employee stating that the facts alleged in the complaint “are true and correct to the best of my knowledge and belief.” However, the trial court dismissed BAC’s complaint with prejudice upon finding that BAC’s usage of the terms “to the best of my knowledge and belief’ did not sufficiently verify the complaint pursuant to section 92.525. The trial court also noted that the verification was improper because it was attached to the amended complaint instead of being incorporated within it.

This court recently determined in Trucap Grantor Trust 2010-1 v. Pelt, 84 So.3d 369, 372 (Fla. 2d DCA 2012), that “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.” Thus, rule 1.110(b) applies, and like in Trucap, we conclude that BAC properly used the verification language contained in the rule. Id. at 373. Further, there is no requirement in rule 1.110(b) that the verification be contained within the complaint, and “[njothing in the rule prohibits the verification from starting on a separate page.” Becker v. Deutsche Bank Nat’l Trust Co., 88 So.3d 361, 362 (Fla. 4th DCA 2012). Like the Fourth District, “[w]e will not read more into [rule 1.110(b) ] than its plain language dictates.” Id.

Accordingly, we adopt the reasoning in Trucap and Becker and hold that the trial court erred by dismissing BAC’s amended complaint with prejudice. On remand, the trial court is directed to reinstate BAC’s amended complaint against the Stentzes.

Reversed and remanded for further proceedings.

NORTHCUTT and MORRIS, JJ., Concur.

      . See In re Amendments to the Fla. Rules of Civil Procedure, 44 So.3d 555, 556, 559 (Fla.2010) (amending rule 1.110(b) by adding a verification requirement for residential mortgage foreclosure complaints).

      . BAC had requested that the trial court dismiss its complaint with prejudice so this court could consider the issue of verification on appeal. The trial court’s dismissal order specifically notes that the complaint was dismissed solely for that purpose.


author: SCHWARTZ, Senior Judge.

text:
    The CITY OF MIAMI BEACH, Appellant, v. The BOARD OF TRUSTEES OF the CITY PENSION FUND FOR FIREFIGHTERS AND POLICE OFFICERS IN the CITY OF MIAMI BEACH, Appellee.
    No. 3D11-2974.
    District Court of Appeal of Florida, Third District.
    June 27, 2012.
    Bryant Miller Olive and James C. Cros-land and David C. Miller; Jose Smith, City Attorney, and Donald M. Papy, Chief Deputy City Attorney, for appellant.
    Stearns Weaver Miller Weissler Alha-deff & Sitterson and Murray A. Green-berg, Rene F. Ruiz, Abigail G. Corbett and Gerald E. Greenberg; Cypen & Cypen and Stephen H. Cypen, for appellee.
    Richard A. Sicking, for Florida Professional Firefighters, Inc., International Association of Firefighters, AFL-CIO, as amicus curiae.
    Before CORTIÑAS and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SCHWARTZ, Senior Judge.

The issue presented in this case is exactly the same as the one decided by then circuit judge, later Fifth District Court of Appeal Judge David Monaco in International Brotherhood of Teamsters, Local 385 v. City of Daytona Beach, 162 LRRM 2428 (Fla. 7th Jud.Cir.Ct. Aug. 10, 1999). His opinion comprehensively and ably discusses the arguments presented by each side in this case. The appellant, the City of Miami Beach, argues that the declaratory decision below incorrectly required a referendum by the voters approving or disapproving a collective bargaining agreement between the city and one of its employee unions. The appellee, the city pension board, contends to the contrary. We could not improve on Judge Monaco’s decision and we adopt it as our own in its entirety:

There are three statutory and constitutional provisions that directly impact the issues presented by this case. The first is, which states in pertinent part: However, nothing in this act shall be construed to permit any changes in a special law or municipal charter which affect ... any rights of municipal employees, without approval by referendum of the electors as provided in s. 166.081. Apparently, as the plaintiffs point out, this statute was adopted at a time when public employees were not typically grouped into collective bargaining units, and were instead protected primarily by civil service boards. The intent of the statute seems to be to protect public employees from losing valuable employment rights based on political changes of administration. If so, then the purpose of the statute in the current context is superfluous, as the employees represented by the Bargaining Agents can now act for their own protection through collective bargaining, and have little need for the referendum backstop. As to the non-represented public employees, however, the statute is still a very valuable asset.
In any event, based on this statute the City has taken the position that it is required to submit the bargained for amendments to the pension plan — and, hence, its municipal charter — to the electors of the City. The pension plan, it is argued, is part of the municipal charter and involves the rights of municipal employees. According to the City, therefore, the amendments must be ratified by referendum by the City’s electors before they can become effective.
The Bargaining Agents however, point to ... in support of their position that submission of the issue to a referendum is improper, reads, as follows:
The rights of persons to work shall not be denied or abridged on account of membership or non-membership in any labor union or labor organization. The right of employees, by and through a labor organization, to bargain collectively shall not be denied or abridged. Public employees shall not have the right to strike.
Section 447.309(3), Florida Statutes, says:
If any provision of a collective bargaining agreement is in conflict with any law, ordinance rule or regulation over which the chief executive officer has no amendatory power, the chief executive officer shall submit to the appropriate government body having amendatory power a proposed amendment to such law, ordinance, rule or regulation. Unless and until such amendment is enacted or adopted and becomes effective, the conflicting provisions of the collective bargaining agreement shall not become effective.
The Bargaining Agents argue that as there is no mention of a referendum required to implement collective bargaining agreements in Chapter 447, Florida Statutes, the requirement for submission of the Pension Agreement to a referendum is violative of Article I, Section of the constitution of the State. The present controversy has been considered by both the Attorney General’s Office and by the Public Employees Relations Commission (“PERC”). Those bodies came to opposite conclusions regarding whether the subject pension changes have to be submitted to a referendum.
The PERC opinion in the case entitled Petition for Declaratory Statement of the Teamsters Local 385, Case No. DS-99-002 (Order No. 99DS-152, June 10, 1999), relied on an earlier PERC opinion in the case of In Re City of Miami Beach, 23 FPER ¶ 28230 (1997), and held that a referendum is not necessary when changes to a pension plan have been collectively bargained for and the pension plan is part of the city code. The holding in both the Daytona Beach and the Miami Beach PERC decisions was essentially that the electors of the public employer cannot abrogate a collective bargaining agreement negotiated by the legislative body. Under the PERC view, the state collective bargaining statute (Chapter 447, Part I, Florida Statutes), preempts any requirement of Section 166.021(4), Florida Statutes, that the city submit the negotiated pension plan changes for approval by referendum.
On the other hand, the Attorney General’s opinion (AGO 98-56, dated September 16, 1998), which concluded that a referendum was required, [relied] heavily on the case of Hillsborough County Governmental Employees Assn. v. Hillsborough County Aviation Auth., 522 So.2d 358 (Fla.1988). In that case the Supreme Court considered whether the refusal of a civil service board to amend its rules in order to comply with a collective bargaining agreement would violate, because the refusal would abridge the right of the employees to bargain collectively. The Court held that Section 447.309(3), Florida Statutes, would be unconstitutional if the statute was interpreted to allow a civil service board to veto the provision of a collective bargaining agreement that had been negotiated by a public employer and a certified employee organization. In doing so, however, the Court said, as well (at page 362):
We must note at this point that our holding does not apply to conflicts arising between collective bargaining agreements and statutes or ordinances. Rather, we object to the unbridled discretion of civil service boards to strike down collective bargaining agreements through their rule making and amendatory powers. Thus, section 447.309(3) stands as it applies to conflicts between statutes or ordinances and agreements reached between public employers and employees through the art of collective bargaining.
The Attorney General reviewed this quoted language and determined that since there are no cases that alter this position, his office is bound by the high court’s commentary. The Attorney General concluded, therefore, that any amendment to the provisions of the City’s charter that affect the rights of public employees, including the collectively bargained for Pension Agreement, must be approved by referendum.
The Florida Constitution guarantees public employees the right of effective collective bargaining. Collective bargaining is embedded in our state constitution’s Declaration of Rights, and is deemed by our Supreme Court to be a fundamental right. Chiles v. State Employees Attorneys Guild, 734 So.2d 1030 (Fla.1999); Hillsborough County Aviation Auth., 522 So.2d at 362; see also, State Employees Attorneys Guild v. State, 653 So.2d 487, 488 (Fla. 1st DCA 1995); City of Miami v. F.O.P., Miami Lodge 20, 571 So.2d 1309, 1316 (Fla. 3d DCA 1991). Thus, the initial issue for determination by the court is whether the statutory scheme abridges the fundamental right of collective bargaining where the collectively bargained Pension Agreement between the City and the Bargaining Agents for public employees, although unanimously approved by the City Commission, as the appropriate legislative body, must still be approved by the electors before it becomes effective. I think the answer is, yes.
Collective bargaining, according to the statutes, is “the performance of the mutual obligations of the public employer and the bargaining agent of the employee organization to meet at reasonable times, to negotiate in good faith, and to execute a written contract with respect to agreements reached concerning the terms and conditions of employment.” Under Chapter 447, the chief executive officer of the governmental unit and the bargaining agent are to meet and bargain in good faith. The chief executive officer of the governmental unit is also required to “consult with, and attempt to represent the views of the legislative body of the public employer.”
It is obvious that the chief executive officer of a public employer cannot possibly meet with the thousands of electors who would vote in a referendum. Thus, collective bargaining can only be meaningful and effective if the bargaining official for the public employer represents the view of the legislative body. The present facts are illustrative of the problem. Here, the city manager and the Bargaining Agents for the City’s police and firefighters began the process of modifying the pension plan about two years ago. The City Commission unanimously approved the Pension Agreement, and the affected city employees likewise voted their approval. If the voters were to fail to ratify the Pension Agreement, two years will have been wasted in this process, and it will likely take two more years to submit another agreement. Thus, to compel the plan now to be voted on by the electors, who by sheer numbers could not be a part of the collective bargaining process beyond the election of members of the City Commission, and who could not possibly have been consulted by the bargaining representative for the City, is'unquestionably an “abridgement” of the right of collective bargaining.
The inquiry, however, does not end there. The Supreme Court has stated that the right to bargain collectively, as a fundamental right, may only be abridged upon the showing of a “compelling state interest.” Chiles, 734 So.2d at 1030; Hillsborough County Aviation Auth., 522 So.2d at 362. Thus, the next question for determination is whether the City has demonstrated a compelling state interest in requiring a referendum.
In response to a request from the court each party briefed the issue of whether there was a compelling state interest in requiring the referendum. In the Hillsborough County case the Florida Supreme Court said that the standard for showing a compelling state interest was “difficult to meet under any circumstances.” Hillsborough County Aviation Auth., 522 So.2d at 362. Furthermore, to demonstrate a compelling state interest there must be an important societal need that would be met, and the governmental unit is required to use the least intrusive means to achieve the goal. Chiles, 734 So.2d at 1030; Florida Board of Bar Examiners Re: Applicant 63161, 443 So.2d 71, 74 (Fla.1983). The City, thus, has a heavy burden to meet. The City asserts only that the right to vote is the compelling state interest that here authorizes the referendum. The right to vote is indeed a fundamental right of the highest order and is guaranteed by both the state and federal constitutions. But does this really answer the question? I think not. The right to vote is vindicated by the election of members of the City Commission, who are then tasked with the consideration of the collective bargaining agreement. Moreover, it is clear that not all of the terms and conditions of employment between the city and the Bargaining Agents require a referendum. Wages, salaries and hours, for example, as important as they are, are not subject to referendum simply because they are not part of the City charter. It is only the pension plan that is included in the charter, and accordingly it is only the pension plan that can be the subject of referendum approval. Surely pension plans are not more deserving of voter approval than wages, hours, and other conditions of employment.
Furthermore, as the Bargaining Agents have pointed out, not all cities have employee pension plans embedded in their charters. In fact, the Bargaining Agents suggest that most Florida cities do not have their pension plans in their organic document. If the right to vote on public employee pension plans is a compelling state interest, then surely the state would requiré all cities to submit pension plan votes to a referendum. The state does not do so, and the implication is obvious. The City, therefore, has failed to demonstrate that there is a compelling state interest in requiring a referendum, given the abridgement of the right to bargain collectively.
It thus appears to the court that the referendum requirement of Section 166.021(4), Florida Statutes, as the City seeks to apply it to the collectively bargained Pension Agreement, is violative of Article I, Section 6 of the Florida Constitution. Having arrived at this conclusion, it is now appropriate to consider the Supreme Court’s language in the Hillsborough County case quoted earlier that caused the Attorney General to opine that the referendum was required.
In concise terms, Section 447.309(3), Florida Statutes, says that if there is a conflict between a collective bargaining agreement and any law, ordinance, rule or regulation, the chief executive of the governmental entity must, if he or she has no amendatory power, submit the matter to the governmental body that can make the amendment. The statute then says that the agreement does not go into effect until the amendment is made. That is to say, the statute gives the applicable legislative or regulatory body the final say so on the collective bargaining agreement. There is no mention of a referendum.
The issue before the Supreme Court that was the subject of the opinion in the Hillsborough County case was certified by the district court, as follows:
When provisions of a collective bargaining agreement which has been entered into by a public employer conflict with civil service rules and regulations and the governmental body having amendatory power over the civil service rules and regulations refuses to amend those rules and regulations in such a manner as to eliminate the conflict, does section 447.309(3) apply to civil service rules and regulations and therefore govern the effectiveness of the collective bargaining agreement? Hillsborough County, supra, 522 So.2d at 359.
Simply put, could the civil service board, which had not participated in the collective bargaining in question, veto the collective bargaining agreement. The Supreme Court said no, and required the public employer to implement the collective bargaining agreement despite its conflict with the civil service rules. Immediately before the questioned language the high court held essentially that if Section 447.309(3), Florida Statutes, were interpreted to allow a civil service board to veto a collective bargaining agreement, then the statute had to be unconstitutional as applied. In the language that is troubling this court, the Supreme Court then notes that its holding does not apply to conflicts between collective bargaining agreements and statutes and ordinances, and that Section 447.309(3) still governs those conflicts.
It is clear that the Supreme Court in rendering the Hillsborough County decision did not have under consideration any potential conflict between a collective bargaining agreement and Section 166.021(4), requiring a referendum to make charter changes affecting employee rights. It also seems likely that the Supreme Court did not mean that there could never be any statute that could be unconstitutionally applied when it conflicted with a collective bargaining agreement. The Supreme Court surely did not intend forever to foreclose any ■consideration of the [constitutionality] of any conflicting pieces of legislation or regulatory matters dealing with collective bargaining agreements. Finally, and most importantly, the real conflict in the present case is not between the collective bargaining agreement and any statute or ordinance, it is between two unintentionally conflicting statutes: Section 166.021(4) and Section 447.309(3). Thus, the specific questioned language is not directly applicable to the present case.
The Public Employees Relations Commission in Petition for Declaratory Statement of the City of Miami Beach, 23 FPER ¶ 28230 (1997), in considering the identical issue presented to this court, had the following observations about the quoted language from the Supreme Court in the Hillsborough County case:
Under the scheme adopted in Chapter 447, Part II, it is the public employer’s legislative body, acting in the public interest and on behalf of the electorate which selected it as their representative, which is the ultimate authority to decide the terms and conditions of employment of its employees through collective bargaining. The electors cannot abrogate a collective bargaining agreement negotiated by the legislative body. To the same effect, the Court in Hillsborough County Aviation Authority held that a civil service board cannot overrule an agreement fully negotiated by a public employer and ratified by its legislative body. [Citations omitted].
ORDERED, DECLARED AND ADJUDGED that the referendum requirement of Section 166.021(4), Florida Statutes, with respect to the collective bargained Pension Agreement in this case is violative of Article-1, Section 6 of the Florida Constitution, and that in accordance with Section 447.309(3), Florida Statutes, no referendum is nee-essary for the City to ratify the subject pension agreement.

The result of our adoption of the decision and opinion in the International Brotherhood of Teamsters, Local 385 case is the reversal of the declaratory judgment on appeal.

Reversed.

      . Judge Monaco’s recognition of the lawyers involved in that case applies equally to those in this one:
      Before concluding the court wishes to thank counsel for both parties for their professionalism, candor, promptness and well-drafted and well-articulated briefs and arguments. The questions presented were extremely difficult for this judge to decide because of the very important societal values that seem to collide here. The competence of counsel was of great benefit.


author: PER CURIAM.

text:
    L.E., the mother, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 4D12-864.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2012.
    Antony P. Ryan, Regional Counsel and Crystal K. McBee, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Fort Lauderdale, for appellee.
   PER CURIAM.

We affirm the final judgment terminating the mother’s parental rights as to her minor son, T.K. The final judgment was based on the mother’s constructive consent to the Petition for Termination of Parental Rights and Permanent Commitment of Minor Child filed by the Department of Children and Families. By her consent to the petition for termination of parental rights, the mother acknowledged that a case plan would be futile and thus implicitly agreed that termination is the least restrictive means of protecting the child from harm. See In re G.M., 36 So.3d 869, 872 (Fla. 2d DCA 2010).

In December 2011, the Department filed a petition for termination of the mother’s parental rights as to T.K., alleging that 1) the mother abandoned the child; 2) the mother engaged in conduct demonstrating that the continuing involvement of the parent in the parent-child relationship threatened the life and well-being of the children, irrespective of the provision of services; and 3) the mother failed to substantially comply with the reunification case plan.

When the trial court held an advisory hearing, the mother failed to appear. Pursuant to section 39.801(3)(d), Florida Statutes, the court entered a consent on the mother’s behalf to the petition for termination of parental rights. The court then proceeded to hear testimony as to whether the termination of parental rights was in the manifest best interests of the child.

Following the hearing, the court entered a final judgment of termination of parental rights, concluding that 1) the mother consented to the termination, 2) the termination was in the child’s manifest best interests, and 3) termination was the least restrictive means of protecting the child from harm. The mother appealed, raising two issues: (1) the trial court erred in failing to set forth specific findings of fact supporting its conclusion that termination was the least restrictive means of protecting the child from harm, and (2) the trial court’s finding that termination of parental rights was the least restrictive means of protecting the child from harm was not supported by the evidence.

When a parent fails to appear at a TPR advisory hearing after having been properly served, the parent’s failure to personally appear constitutes consent for termination of parental rights. See § 39.801(3)(d), Fla. Stat. (2011) (“If the person served with notice under this section fails to personally appear at the advisory hearing, the failure to personally appear shall constitute consent for termination of parental rights by the person given notice.”). “This provision is necessary to ensure that the object of the petition is not defeated by the parent’s neglect of the proceeding.” J.B. v. Fla. Dep’t of Children and Family Servs., 768 So.2d 1060, 1067 (Fla.2000).

In Florida Department of Children and Family Services v. P.E., 14 So.3d 228, 236 (Fla.2009), the Florida Supreme Court held that “where an order has been properly entered determining that a parent’s failure to appear constitutes consent pursuant to section 39.801(3)(d), the parent may not challenge the basis for the termination of parental rights.” The court reasoned:

Once the trial court has deemed the parent to have consented to the termination, there is no basis for the parent to complain that the trial court did not consider evidence establishing the existence of a ground for termination under section 89.806(1). The constructive consent provision of section 39.801(3)(d) can only be reasonably understood as providing a basis for termination which precludes a defaulting parent’s objection to the absence of proof of a ground for termination under section 39.806(1).

Id.

Following P.E., the Second District ruled that where a parent acknowledges through consent to the TPR petition that a case plan would be futile, the parent implicitly agrees that termination is the least restrictive means. See In re G.M., 36 So.3d 869, 872 (Fla. 2d DCA 2010). In that case, the Second District held that where the father consented to the termination of parental rights, the trial court erred in denying the petition for termination of parental rights on the ground that the Department failed to establish that termination was the least restrictive means of protecting the child from harm. Id. at 870-72. The appellate court reasoned that by entering his consent to the allegation that his continuing involvement in the parent-child relationship would threaten the life, safety, or well-being of the children irrespective of services, the father “agreed that his continued involvement would pose a threat to the children with or without a case plan.” Id. at 872. Furthermore, noting that the father had never contested the issue of least restrictive means below, the court explained that although “the trial court must determine whether termination is in the manifest best interest of the child regardless of whether the parents participate in the final hearing, no such requirement exists regarding the issue of least restrictive means.” Id. (citation omitted).

We agree with the Second District’s holding in G.M. In this case, by failing to appear at the advisory hearing, the mother gave constructive consent under section 39.801(3)(d) to the termination of her parental rights. The petition for termination of parental rights specifically alleged that the mother’s continuing involvement in the parent-child relationship threatened the life, safety, or well-being of the child irrespective of the provision for services. Accordingly, as in G.M., by acknowledging through her constructive consent that a case plan would be futile, the mother implicitly agreed that termination was the least restrictive means of protecting the child.

The mother suggests that consent constitutes only grounds for termination, but that the trial court must still perform an independent analysis as to whether termination is the least restrictive means of protecting the child. Even if such a requirement did exist, the trial court satisfied it. We conclude that the trial court’s finding that termination of the mother’s parental rights was the least restrictive means of protecting the child from harm was supported both by specific findings of fact and by competent substantial evidence. The record demonstrates that measures short of termination had already been taken in the form of a detailed case plan, but the mother failed to comply.

Affirmed.

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


author: PER CURIAM. MAY, C.J.

text:
    Edward COOPERSMITH, Petitioner, v. Elizabeth PERRINE, Respondent.
    No. 4D11-3215.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2012.
    Richard A. Sherman, Sr. of the Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, and Joshua Brankamp of the Law Offices of Maria C. Dantes Sanchez, Boca Raton, for petitioner.
    Peter S. Van Keuren of Hicks, Motto & Ehrlich, Palm Beach Gardens, for respondent.
   PER CURIAM.

Edward Coopersmith, the defendant below in a personal injury case, petitions for certiorari review of a non-final order granting plaintiff Elizabeth Perrine’s motion to overrule objections to interrogatories.

Coopersmith takes issue with a specific subsection of an interrogatory, which requires Coopersmith to furnish a “general summary of the opinions and basis of the opinions” offered by his medical experts in other cases. We grant the petition because the summaries will invade the privacy rights of non-parties, as protected by section 456.057(7)(a)(3), Florida Statutes (2010). See Graham v. Dacheikh, 991 So.2d 932 (Fla. 2d DCA 2008); Crowley v. Lamming, 66 So.3d 355 (Fla. 2d DCA 2011); USAA Cas. Ins. Co. v. Callery, 66 So.3d 315 (Fla. 2d DCA 2011). In reaching our decision, we align our court with the Second District, whose reasoning is consistent with our views of a predecessor statute. See Crandall v. Michaud, 603 So.2d 637 (Fla. 4th DCA 1992), disapproved on other grounds, Elkins v. Syken, 672 So.2d 517, 522 (Fla.1996).

Section 456.057(7)(a), Florida Statutes, prohibits a health care practitioner from discussing a patient’s medical records without the patient’s written authorization unless one of the three detailed exceptions applies. Graham considered section 456.057(7) and held that it prohibits the disclosure of non-party compulsory medical examination reports without prior notice to all of the affected nonparties. Graham rejected redaction as a substitute for the statutory notice to the nonparty patients, noting that there was no argument made that notification would not be possible, and in fact, compliance with other requests revealed that it was possible.

Graham considered that the purpose of the discovery was to demonstrate the expert’s bias and concluded that “the fundamental rights of the nonparties may require more restrictive protections, and thus less intrusive means.... ” 991 So.2d at 937. In reaching its decision, the Second District distinguished the medical malpractice case of Amente v. Newman, 653 So.2d 1030 (Fla.1995), which the trial court in Graham had relied upon. Graham detailed the following four reasons when it concluded that Amente was not controlling: “(1) Amente was a medical negligence case; (2) the affected doctor was a party; (3) the discovery sought related to substantive issues in the case; and (4) the supreme court concluded that compliance with the statute was impossible.” 991 So.2d at 935; see also Crowley, 66 So.3d at 355 (applying Graham and quashing an order that required an expert physician to bring to his deposition copies of the reports generated for all of the compulsory medical examinations he performed during the three years in question and to testify to limited portions of the reports).

Although Graham seemed to suggest that the doctor’s impressions or conclusions at the end of the compulsory examination report, absent patient identifying information, would be a less intrusive alternative, the Second District subsequently rejected a discovery order that was tailored accordingly. Callery, 66 So.3d at 315; see also Crandall, 603 So.2d at 639. Significantly, the court concluded that Mr. Callery did not demonstrate an inability to comply with the statute’s notice provisions. The same is true of respondent in this case.

Moreover, Coopersmith’s responses to other interrogatories suggest that notification might be possible. See, e.g., Crowley, 66 So.3d at 359. We recognize that unlike Graham and Crowley, the discovery here is being requested from a party. Such was the case in Cattery. While Allstate v. Boecher, 733 So.2d 993 (Fla.1999), permits discovery from a party surrounding the party’s relationship with an expert, the summaries and opinions sought within the interrogatory at issue are beyond Boecher’s “financial” bias purview and involve medical information of people who are not parties to this lawsuit. See Graham, 991 So.2d at 937.

Consequently, to protect against any intrusion into the privacy rights of non-parties, we grant the petition for certiorari, quash that portion of the trial court’s order requiring petitioner to produce information concerning nonparty compulsory medical examinations, and remand for further proceedings.

TAYLOR and CIKLIN, JJ., concur.

MAY, C.J., concurs specially with opinion.

MAY, C.J.

(specially concurring).

I concur with the majority in its reasoning and result, but write to express my concern over recent discovery issues we have seen. We are increasingly reviewing orders on discovery requests that go above and beyond those relevant to the case. Attorneys are propounding interrogatories and making requests for production, which require physicians to divulge private, confidential information of other patients, and to “create” documents.

In an effort to discredit medical witnesses for the other side, attorneys for both plaintiffs and defendants are exceeding the bounds of the rules of civil procedure, confidentiality laws, and professionalism by engaging in irrelevant, immaterial, burdensome, and harassing discovery. Parameters have already been expanded to allow both sides to explore financial interests of medical witnesses and the volume of referrals to those witnesses. See Elkins v. Syken, 672 So.2d 517 (Fla.1996). And now, attempts to expand the scope of that discovery to treating physicians as well as retained experts are usurping the limited resources of our trial courts. This not only creates unnecessary burdens on our over-strained justice system, it further taints the public’s view of our profession.

      . Interrogatory 10 asks:
      Has the expert served and testified, through deposition and/or trial, as an expert witness in any other case in the past three years? If so, as to each case identify: a. The style of the case, the court in which it was filed, and the names and addresses of the attorneys involved, b. Whether he/she testified for the plaintiff or defendant, c. Whether he/she testified by deposition, at trial, or both. d. The area of field in which he/she was held out to be an expert, e. A general summary of the opinions and basis of the opinions to which the expert testified or was prepared to testify in that case.

        . See § 455.241, Fla. Stat. (1991).

      . Florida Statute section 456.057(7)(a) provides:
      Except as otherwise provided in this section and in s. 440.13(4)(c), such records may not be furnished to, and the medical condition of a patient may not be discussed with, any person other than the patient or the patient's legal representative or other health care practitioners and providers involved in the care or treatment of the patient, except upon written authorization of the patient. However, such records may be furnished without written authorization under the following circumstances:
      1. To any person, firm, or corporation that has procured or furnished such examination or treatment with the patient’s consent.
      2. When compulsory physical examination is made pursuant to Rule 1.360, Florida Rules of Civil Procedure, in which case copies of the medical records shall be furnished to both the defendant and the plaintiff.
      3. In any civil or criminal action, unless otherwise prohibited by law, upon the issuance of a subpoena from a court of competent jurisdiction and proper notice to the patient or the patient’s legal representative by the party seeking such records.


text:
    Victorio HUIPIO, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1157.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2012.
    Victorio Huipio, Clermont, pro se.
    No appearance required for appellee.
   PER CURIAM.

Victorio Huipio appeals the trial court’s summary denial of his motion for postcon-viction relief. He raised two grounds for relief in his motion: (1) the trial court could not impose an upward departure sentence on different grounds after his habitual offender sentence was stricken pursuant to Lamont v. State, 610 So.2d 435 (Fla.1992), and (2) it was error for a substitute judge to conduct resentencing. The first ground lacks merit. See Cook v. State, 866 So.2d 1291 (Fla. 4th DCA 2004). Regarding the second ground, the record reflects the substitute judge complied with Florida Rule of Criminal Procedure 3.700(c)(1).

Affirmed.

HAZOURI, CIKLIN and CONNER, JJ., concur.


text:
    Bruce Alan WILKEN, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-1446.
    District Court of Appeal of Florida, Fourth District.
    June 27, 2012.
    Bruce Alan Wilken, Crawfordville, pro se.
    No appearance required for appellee.
   PER CURIAM.

Affirmed without prejudice for appellant to raise the alleged exception to the time limitation in the trial court. Fla. R.Crim. P. 3.850(b)(3). See Steele v. Kehoe, 747 So.2d 931 (Fla.1999).

HAZOURI, DAMOORGIAN and GERBER, JJ., concur.


author: DAVIS, Judge.

text:
    CHARLOTTE COUNTY, a political subdivision of the State of Florida, Appellant, v. ROTONDA PROJECT, LLC, a Florida limited liability company, Appellee.
    District Court of Appeal of Florida, Second District.
    June 27, 2012.
    Philip Fairman, Assistant County Attorney, County Attorney’s Office, Port Charlotte, and Michael T. Burke and Tamara M. Scrudders of Johnson, Amselmo, Murdoch, Burke, Piper & Hoehman, P.A., Fort Lauderdale, for Appellant.
    Robert L. Donald of Law Office of Robert L. Donald, Fort Myers, and Thomas M. Dougherty of Geraghty Dougherty & Edwards, Fort Myers, for Appellee.
   DAVIS, Judge.

Charlotte County challenges the final judgment entered in favor of Rotunda Project, LLC, awarding damages for a taking in an inverse condemnation action. Rotunda alleged that Charlotte County, by its actions, inactions, and regulations, deprived Rotunda of the economic use of its property and denied Rotunda its reasonable “investment-backed expectations,” thereby causing an as-applied or partial taking as described in Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 124, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978).

Our review of the record indicates that there is little disagreement as to the facts of this case and that the issue on appeal is whether these facts support a finding of a compensable taking by the County. We agree with the trial court’s well-reasoned Order on Liability and affirm the finding “that Charlotte County by its regulations, actions and inaction has caused a substantial deprivation of the economic use of [Rotunda’s] property and denied [Rotunda’s] reasonable investment-backed expectations in violation of article X, section 6 of the Florida Constitution.” Because the County did not appeal the amount of the damages awarded, we affirm the final judgment without further comment.

Affirmed.

KELLY and MORRIS, JJ., Concur.


author: GRIFFIN, J.

text:
    Bernadette DOYLE, Appellant, v. Patrick Joseph DOYLE, Appellee.
    No. 5D10-2821.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2012.
    Nicholas A. Shannin, of Page, Eichen-blatt, and Lauren M. Ilvento, of Law Office of Lauren M. Ilvento, P.A., Orlando, for Appellant.
    Tatiana Leo, of Pratt & Morrison, P.A., Winter Park, for Appellee.
   GRIFFIN, J.

Bernadette Doyle [“Wife”] appeals a final judgment of dissolution of marriage, as well as orders concerning her efforts to voluntarily dismiss the case prior to the final hearing.

On May 14, 2009, Wife filed a petition for dissolution of marriage and other relief without dependent or minor children, and Husband filed an answer. Over the ensuing months, the parties engaged in vigorous pretrial motions and discovery in preparation for trial.

The trial court entered an order on February 5, 2010, granting Wife’s second motion for continuance, continuing the trial until further notice, and directing the parties to attend a pretrial conference on February 17, 2010. On February 11, 2010, Wife’s attorney filed a motion to withdraw as well as a notice of charging lien. The trial court entered an order on February 15, 2010, relieving Wife’s attorney of further representation and directing that Wife be served directly. At the February 17 conference, Wife moved for another continuance based on her counsel’s withdrawal, but the trial court denied the motion and set the trial for March 5, 2010. Wife thereafter went to the clerk’s office and filed a notice of voluntary dismissal.

Husband learned of the voluntary dismissal on March 1, 2010, and, on the same day, filed a motion entitled “Motion to Vacate Dismissal of Dissolution Action.” In it, Husband asserted that Wife should be denied the right to voluntarily dismiss the action because Husband had sought affirmative relief. He set a hearing for the date of the trial, March 5.

According to the certificates of service, Husband served Wife with notice of the motion by mail and served the notice of the March 5 hearing by fax. Wife contends that she did not get notice of the motion or the notice of hearing, and she did not appear on March 5. According to court minutes, the trial court took up the “Motion to Vacate Dismissal of Dissolution Action,” granted the motion and then conducted the trial.

By March 12, Wife had new counsel and several motions were filed seeking to undo the order vacating the dismissal and the final judgment. The parties and the trial court focused mainly on the question whether Husband’s answer and prayer for affirmative relief were sufficient to overcome the broad right to voluntary dismissal allowed for in Florida Rule of Civil Procedure 1.420(a)(1) and to limit the right of dismissal as set forth in rule 1.420(a)(2). The trial court ultimately decided that they were sufficient to qualify as a counterclaim under the rule, and we agree.

The trial court also found that Wife was “properly noticed” for the hearing, which, based on the certificate of service by facsimile, has evidentiary support, although the trial court did not make a finding that Wife actually received notice, or, if so, when. No finding was made concerning Wife’s receipt of the motion, which, according to the certificate, was mailed on March 1. Indeed, in his brief, Husband asserts that both the motion and notice were mailed to Wife. To add to the confusion, the motion was not docketed as filed until April 28, ostensibly because it had been returned by the Clerk of the Court for some reason. Under the best of circumstances, the most notice Wife could have had of the hearing was four days. Whether it was proper under these circumstances to hear and rule on the motion to vacate the dismissal on March 5, we conclude that it was error to conduct the trial on March 5.

In the post-judgment hearing before the trial judge, there was some discussion of the legal effect of the trial court’s order vacating the dismissal. The trial judge herself questioned whether it had been a mistake to vacate the Wife’s dismissal and what was the effect of that decision. Counsel for Husband argued to the trial court that the motion and order had no effect on Wife’s dismissal — that the dismissal that they were vacating was the “clerk’s” dismissal only, so there was no impediment to the trial court trying the case right then. When the trial court asked whether the trial would have any preclusive effect on Wife’s claims, however, Husband’s counsel asserted that it would.

Although the trial court may have been frustrated with Wife for attempting to maneuver around the court’s denial of a continuance, it was error to go forward with the trial on March 5. Contrary to Husband’s counsel’s argument, the motion asked to have the voluntary dismissal vacated and the case reinstated for trial. The only dismissal referenced in the motion is the Wife’s. Vacating the Wife’s dismissal would necessarily have the effect of reinstating the entire case, not just Husband’s claims. The trial court should have rendered its order vacating dismissal with notice to Wife and rescheduled the case for trial of both parties’ claims. Given the unresolved issues of no notice, or late notice, to Wife, conducting the trial immediately after vacating the dismissal only served to deprive Wife of due process and multiply judicial labor.

REVERSED and REMANDED.

SAWAYA and MONACO, JJ„ concur.

      . The sum total of Husband’s affirmative relief appears in the "wherefore” clause of his answer:
      WHEREFORE, Respondent/Husband requests that the court enter an order dissolving the marriage, equitably distributing the parties' assets and liabilities, denying Wife’s alimony requests, restraining the Wife from harassing the Husband, awarding Husband attorney's fees if necessary and such further relief as deemed necessary and proper.

      . In her briefs, Wife insists that the notice of hearing was mailed, not faxed.

      . The docket does not show any dismissal by the clerk.


author: SAWAYA, J.

text:
    PAUL N. HOWARD COMPANY, Appellant, v. CAMP, DRESSER, & McKEE, INC., et al., Appellee.
    No. 5D10-3496.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2012.
    Rehearing Denied July 23, 2012.

      Michael M. Bell and Mary J. Walter, of Bell & Roper, P.A., Orlando, for Appellant.
    James D. Kisio, of James D. Kisio, P.A., Longwood, and William H. Selde, of Sodo-ro, Daly & Sodoro, P.C., Omaha, Nebraska, for Appellee.
   SAWAYA, J.

Paul N. Howard Company (Howard) timely appeals the Order rendered on its Motion to Tax Costs, which Order awarded some, but not all of the costs Howard sought to recoup in a case that, in various forms, has spanned several decades and encompassed two jury trials and numerous appeals. Howard argues that the trial court erred by failing to tax the costs it incurred in association with the 2001 trial and by denying it recovery for certain expenses associated with documents, experts, and witnesses. We affirm in part, reverse in part, and remand for further proceedings.

After all the trial proceedings were concluded, Howard filed its Motion to Tax Costs and Attorney’s Fees. As to the costs associated with the 2001 trial, the trial court denied costs based on its conclusion that the result of that trial was irrelevant. We disagree, reverse that part of the Order denying costs for the 2001 trial, and remand this case to the trial court to award appropriate costs for that proceeding.

Howard also argues that the trial court erred in disallowing costs associated with two expert witnesses, Mr. Zoilo and Mr. Wolford, in the 2008 trial simply because CDM represented at the hearing that neither man had testified. Howard points out that under the Uniform Guidelines for Taxation of Costs, it is immaterial whether the men actually testified — the test is whether the expert’s deposition or testimony was “reasonably necessary either to defend or prosecute the case at the time the action precipitating the cost was undertaken.” In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So.2d 612, 616; see also Otis Elevator Co. v. Bryan, 489 So.2d 1189, 1190 (Fla. 1st DCA 1986) (“The rule in Florida is to disallow taxation of costs for discovery depositions taken in preparation for trial. But where such depositions serve a ‘useful purpose’ at trial, they are taxable as costs.” (citation omitted)); Crane v. Stulz, 136 So.2d 238, 242 (Fla. 2d DCA 1962). Because the trial court used an incorrect standard by which to determine an award of costs as to Mr. Zoilo and Mr. Wolford, we reverse that part of the Order denying costs for these two expert witnesses and remand to the trial court to make an appropriate award of costs for those two witnesses. We also remand for reconsideration of the cost related to Land Tech Surveying & Mapping. As with the expert witness costs, an incorrect standard was applied in denying this cost, necessitating remand for a determination under the Uniform Guidelines’ standard of reasonable necessity. We otherwise affirm the remainder of the Order.

AFFIRMED in part, REVERSED in part, and REMANDED.

GRIFFIN and COHEN, JJ., concur.

      . Appellee Camp, Dresser, & McKee, Inc. (CDM) filed an Answer Brief in which it completely fails to address the issues raised by Howard and instead launches an attack on the constitutionality of the bifurcation of the underlying case. CDM has not filed a notice of cross appeal, nor has it styled its independent attack as such — it "merely” seeks a reversal of the entire underlying case, which it obviously cannot now do.


text:
    William Todd OVERCASH, Petitioner, v. Lori Ann OVERCASH, n/k/a Lori Ann Foultz, Respondent.
    No. 5D11-3689.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2012.
    Beth Gordon of The Gordon Law Firm, Williston, for Petitioner.
    Mark D. Shelnutt and Cheri A. Russell of Mark D. Shelnutt, P.A., Ocala, for Respondent.
   GRIFFIN, J.

Petitioner, William Todd Overcash [“Petitioner”], seeks a writ of prohibition from this Court to disqualify Senior Circuit Court Judge William T. Swigert from presiding over Marion County Case No. 2002-4655-DR-FJ, which involves a dispute with Petitioner’s former wife, Lori Ann Overcash, now known as Lori Ann Foultz [“Respondent”] over the parties’ shared parenting responsibilities of their daughter. Specifically, Petitioner argues that his motion should be deemed granted because the judge failed to issue its ruling within the thirty-day time limit pursuant to Florida Rule of Judicial Administration 2.330(j). We agree that because the trial court’s order was untimely, the petition should be granted.

Petitioner timely filed a motion to disqualify the trial judge on August 19, 2011. The motion claimed judicial bias based upon several comments and actions the trial judge made during a hearing held on August 9, 2011. The trial judge denied Petitioner’s motion to disqualify on October 3, 2011, more than forty-five days after it had been filed.

Florida Rule of Judicial Administration 2.330(j) provides that once a motion to disqualify has been filed, the judge shall make its ruling immediately, but no later than thirty days. Tableau Fine Art Group, Inc. v. Jacoboni, 853 So.2d 299, 302-03 (Fla.2003). As rule 2.330(j) indicates, it must be read in conjunction with subsection (c) of the same rule, which provides that: “In addition to filing with the clerk, the movant shall immediately serve a copy of the motion on the subject judge as set forth in Florida Rule of Civil Procedure 1.080.” Fla. R. Jud. Admin. 2.330(c). Respondent argues that because the certificate of service on Petitioner’s motion to disqualify does not show that the judge was served, the thirty-day window for the judge to rule was not triggered. We disagree. A certificate of service serves as prima facie evidence that service of pleadings is in compliance with the rules, but such evidence is neither conclusive nor exclusive. See e.g. Fla. R. Civ. P. 1.080(f).

According to the filed affidavit of the Petitioner’s process server, on August 19, the same day the motion was filed, Judge Swigert’s copy of the motion to disqualify was hand delivered to the security officer on the fourth floor of the Marion County courthouse. Due to heightened security measures at the courthouse, documents being delivered to the judges were to be left with the security officer.

Respondent also objects that Petitioner did not file the affidavit of delivery by the process server until after the judge had ruled on the motion to disqualify, but that fact is of no significance. Service is the issue, not proof of service. See Tobkin v. State, 889 So.2d 120, 122 (Fla. 4th DCA 2004) (reference to Florida Rule of Civil Procedure 1.080 in Rule 2.330(c) “requires service in a manner designed to notify the judge of the existence of the motion”); cf. Marquez v. State, 11 So.3d 975, 976 (Fla. 3d DCA 2009) (denying writ of prohibition where the motion’s certificate of service did not reflect service of the motion to the trial judge and there was no other proof of compliance with Florida Rule of Civil Procedure 1.080). Here, although the certificate of service does not show service upon the judge, there appears to be no genuine dispute that the judge was promptly served. No evidence suggests he was not served and, in addition to the affidavit, there is corroborating evidence.

The record indicates that the judge was aware of Petitioner’s motion soon after its filing because the disqualification motion was met with a motion to strike and reply, all of which were acknowledged in the judge’s order denying Respondent’s motion to strike on September 22, 2011. See Rosado v. State, 76 So.3d 1140 (Fla. 4th DCA 2012) (even if the trial judge had not received a copy of a motion to disqualify on the same date it had been filed, record evidence indicating that the judge had been aware of the motion during its pen-dency required that the motion to disqualify be deemed granted pursuant to rule 2.830(j)).

Thus, under rule 2.330(j), Petitioner’s motion to disqualify Judge Swigert was deemed to have been granted because it was not ruled on within 30 days. Petitioner’s writ for prohibition is granted.

PETITION GRANTED.

PALMER and TORPY, JJ., concur.

      . Florida Rule of Judicial Administration 2.330(j) provides:
      The judge shall rule on a motion to disqualify immediately, but no later than 30 days after the service of the motion as set forth in subdivision (c). If not ruled on within 30 days of service, the motion shall be deemed granted and the moving party may seek an order from the court directing the clerk to reassign the case.


text:
    Robert Clyde THOMAS, Jonathan David Stevens, Skeakita Lashea Abel, Charnelle Loren Hill, Kenta Sentrell Hill, Alan Blaine Grimm, James Flowers, II, Matthew White, Whitney Baker, Charles Hayes, Carson K. Wilhite, Christina Robertson, Appellants, v. STATE of Florida, Appellee.
    Nos. 5D11-4382, 5D11-4383, 5D11-4388, 5D11-4466, 5D11-4493, 5D11-4496, 5D12-112, 5D12-113, 5D12-114, 5D12-205, 5D12-279, 5D12-371.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2012.
    James S. Purdy, Public Defender, and Michael S. Becker, Assistant Public Defender, Daytona Beach, for Appellants.
    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 these cases is currently pending before the Florida Supreme Court in State v. Adkins, 71 So.3d 117 (Fla.2011). The mandates will be withheld pending final disposition of Adkins.

SAWAYA, MONACO and COHEN, JJ., concur.


text:
    Zachary Deion JENKINS, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D11-4214, 5D11-4215.
    District Court of Appeal of Florida, Fifth District.
    June 29, 2012.

      James S. Purdy, Public Defender, and Michael S. Becker, 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.

MONACO, TORPY and EVANDER, JJ., concur.