source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Benjamin LaFLOWER, Petitioner, v. Bob INZER, as Clerk of Courts, Second Judicial Circuit, Respondent.
    No. 1D10-3543.
    District Court of Appeal of Florida, First District.
    Oct. 5, 2010.
    Benjamin LaFlower, pro se, Petitioner. No appearance for Respondent.
   PER CURIAM.

DENIED. See Baldwin v. Crosby, 905 So.2d 250 (Fla. 1st DCA 2005).

WEBSTER, DAVIS, and VAN NORTWICK, JJ„ concur.


author: DAVIS, Judge.

text:
    STATE of Florida, Appellant, v. Rocky Lee SHUKITIS, Appellee.
    No. 2D09-1651.
    District Court of Appeal of Florida, Second District.
    Nov. 5, 2010.
    Rehearing Denied May 6, 2011.

      Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellant.
    James Marion Moorman, Public Defender, and Matthew D. Bernstein, Assistant Public Defender, Bartow, for Appellee.
   DAVIS, Judge.

The State challenges the trial court’s order granting Rocky Lee Shukitis’ motion to suppress evidence at his trial on several drug offenses, including three counts of obtaining drugs from a physician by withholding evidence, as well as trafficking and possession charges. Because the trial court applied the wrong statute below, we reverse for further proceedings.

The charges against Shukitis arose after an undercover officer purchased Oxyco-done and Xanax pills from Shukitis. Officers then obtained, without subpoenas or search warrants, Shukitis’ patient profiles from two area pharmacies. From those profiles, law enforcement learned that Shukitis had been seeing two local doctors, each of whom worked out of a different clinic. According to Shukitis’ motion to suppress, officers then contacted the doctors, who provided them with “information regarding the defendant’s medical treatment, such as his lists of medication and ... the fact that the defendant allegedly had a medical appointment” at one of the clinics on a certain day. This information again was obtained without the use of a subpoena or a search warrant. On the day of Shukitis’ scheduled appointment, the investigating officer followed Shukitis from the clinic to a pharmacy, where Shukitis filled a prescription. The officer placed Shukitis under arrest and, upon searching him, found marijuana and Oxycodone on his person.

Prior to trial, Shukitis filed a motion to suppress, arguing that the medical information obtained from the pharmacies and the doctors — as well as the drugs found on him and his subsequent confession — should be excluded because the evidence was obtained without subpoenas or search warrants. To support this contention, Shuki-tis relied on sections 456.057(7)(a)(3) and 395.3025(4)(d), Florida Statutes (2008). In his motion to suppress, Shukitis cited section 456.057(7)(a)(3) and argued that “a physician may not disclose the medical records nor discuss the medical condition of a patient except upon the written authorization of the patient [or] upon issuance of a subpoena from a court of competent jurisdiction and with proper notice to the patient.” Relying on section 395.3025, Shuki-tis further argued in his motion that

patient records are confidential and must not be disclosed without the consent of the person to whom they pertain, but appropriate disclosure may be made without such consent 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.

The State, however, argued below that the instant records were obtained pursuant to section 893.07(4), Florida Statutes (2008), which provides as follows:

Every inventory or record required" by this chapter, including prescription records, shall be maintained:
(a) Separately from all other records of the registrant, or
(b) Alternatively, in the ease of Schedule III, IV, or V controlled substances, in such form that information required by this chapter is readily retrievable from the ordinary business records of the registrant.
In either case, records shall be kept and made available for a period of at least 2 years for inspection and copying by law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances.

It is the State’s position that this statute allows law enforcement to obtain copies of pharmacy records of prescriptions for controlled substances, like Oxycodone, without a subpoena or a warrant.

In its suppression order, the trial court concluded that the issues here were governed by chapter 395 and that Shukitis’ records were obtained illegally because law enforcement had neither obtained his consent nor used subpoenas. As such, the court granted the motion to suppress the lists of Shukitis’ prescribed medications and information about his treatment, the date and time of his clinic appointment, the marijuana and Oxycodone found on him at the time of his arrest, and his confession subsequent to arrest.

Initially, we note that this court already has concluded that section 395.3025 does not apply to pharmacies but rather “applies to ‘licensed facilities],’ which are defined as ‘hospital[s], ambulatory surgical center[s], or mobile surgical facilities]’ ” in section 395.002(16). See State v. Tamulonis, 39 So.3d 524, 527 (Fla. 2d DCA 2010) (alteration in original). As such, the trial court here erred in applying section 395.3025 to Shukitis’ records that were obtained from the pharmacies.

In Tamulonis, this court also concluded that section 893.07(4) allows for controlled substance records to be obtained by “law enforcement officers whose duty it is to enforce the laws of this state relating to controlled substances” without a search warrant, a subpoena, or patient consent. Tamulonis, 39 So.3d at 527. In so concluding, this court adopted the following reasoning of the First District in State v. Carter, 23 So.3d 798, 800 (Fla. 1st DCA 2009):

The statute does not require a subpoena, warrant, or prior notice to the patient. ...
... If the [legislature intended to require pharmacies to notify patients in connection with section 893.07, the legislature would have included this requirement in the statute, as it did in statutes governing disclosure by other health care entities. See § 395.3025, Fla. Stat. (hospitals); §§ 400.0077 & 400.022(l)(m), Fla. Stat. (nursing homes); and § 456.057(7), Fla. Stat. (physicians).

Accordingly, it was error for the trial court to grant the suppression of Shukitis’ pharmacy records based on its application of section 395.3025.

The trial court also erred in applying section 395.3025 to the information obtained from Shukitis’ physicians. Again, the clinics where these physicians worked are not “hospitals], ambulatory surgical center[s], or mobile surgical faeility[ies].” See § 395.002(16).

However, in his motion to suppress, Shukitis challenged the inclusion of the physician information pursuant to section 456.057(7)(a)(3). That section provides as follows:

(7)(a) 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:
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.

(Emphasis added.)

Section 456.057(6) defines “such records” as “reports and records relating to ... examination or treatment [of the patient], including x-rays and insurance information.” Section 456.057(1) explains that this statute applies to “health care practitioners],” and section 456.057(2)(b) specifically exempts “[p]harmaeists and pharmacies” from the term “health care practitioner.” Although section 456.057 seems to be a valid basis to suppress some or all of the information obtained from Shukitis’ physicians, the trial court failed to address this statute in its order. This was error.

As such, we reverse the trial court’s order with regard to both the pharmacy records and the physician information because the trial court applied the wrong statute when determining that the information should be suppressed. We remand with instructions to deny the motion to suppress as to the pharmacy records, to reconsider the suppression of the physician information applying section 456.057(7)(a), and to make specific findings as to which portions of the physician information amounted to “reports and records relating to [the] ... examination and treatment” of Shukitis. See § 456.057(6). It will also be necessary for the trial court to reconsider its suppression of the drugs found on Shukitis at the time of his arrest and his subsequent confession.

Reversed and remanded.

NORTHCUTT and LaROSE, JJ., Concur.


text:
    C.D.M., Mother of K.N.M., a minor child, Appellant, v. K. and N.R., Jr., Appellee.
    No. 1D10-2919.
    District Court of Appeal of Florida, First District.
    Jan. 18, 2011.
    Crystal McBee Frusciante of the Crystal McBee Law Firm, P.A., Jupiter, and Susan Barber, Assistant Regional Conflict Counsel, Office of Criminal Conflict and Civil Regional Counsel, Region One, Tallahassee, for Appellant.
    Michael Massey of Massey & Duffy, LLC, Gainesville, for Appellee.
   PER CURIAM.

Appellant, C.D.M., appeals from an order terminating her parental rights. It appears that sufficient proof was presented to support a determination that the parental rights of Appellant should be terminated. However, we cannot conduct an appropriate appellate review because the

statutory factors enumerated in section 39.810, Florida Statutes, are not addressed in the written order and the trial court did not make any oral findings as to these factors at the hearing. The order on appeal is also silent as to whether termination of Appellant’s parental rights was the least restrictive means of protecting the child from future harm. We therefore reverse the order terminating parental rights and remand for entry of an order containing the necessary findings of fact pursuant to section 39.810 and for reconsideration of any less restrictive alternatives before any final determination is reached with respect to termination. J.S. v. Fla. Dep’t of Children & Families, 18 So.3d 1170, 1178 (Fla. 1st DCA 2009); T.O. v. L.S., 954 So.2d 737 (Fla. 1st DCA 2007); S.S. v. D.L., 944 So.2d 553, 557 (Fla. 4th DCA 2007).

REVERSED and REMANDED.

BENTON, C.J., DAVIS and THOMAS, JJ., concur.


text:
    Delvin JONES, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D09-1431, 4D09-1432, 4D09-1433, 4D09-1434.
    District Court of Appeal of Florida, Fourth District.
    Feb. 9, 2011.
    Rehearing Denied June 2, 2011.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Porter v. State, 765 So.2d 76 (Fla. 4th DCA 2000).

GROSS, C.J., STEVENSON and GERBER, JJ., concur.


author: BLACK, Judge. SILBERMAN, Judge,

text:
    A. Curtis MORRISON, Appellant/Cross-Appellee, v. Susan M. MORRISON, n/k/a Susan M. Shepard, Appellee/Cross-Appellant.
    No. 2D08-5350.
    District Court of Appeal of Florida, Second District.
    Feb. 11, 2011.
    Rehearing Denied May 17, 2011.

      Lawrence A. Jacobs, Bradenton, for Appellant/Cross-Appellee.

      Melton H. Little of Kallins, Little & Delgado, P.A., Palmetto, and Susan J. Sil-verman, Sarasota, for Appellee/Cross-Ap-pellant.
   BLACK, Judge.

A. Curtis Morrison (the Former Husband) appeals the final judgment on Susan M. Morrison’s (the Former Wife) supplemental petition for modification of the final judgment of dissolution of marriage in which the trial court increased the Former Wife’s permanent alimony award from $900 per month to $3250 per month. The Former Wife cross-appeals asserting that the trial court abused its discretion in ordering the parties to be responsible for their own attorney’s fees and costs. Because the trial court abused its discretion in modifying the Former’s Wife’s permanent alimony, we reverse and remand both the trial court’s decision granting the modification and the retroactive lump sum alimony award based on the modification. Since we reverse the modification award, we also reverse the attorney’s fees award for recalculation.

I. Background

On August 15, 2005, the Former Husband filed a petition for dissolution. Prior to the dissolution, the parties negotiated a marital settlement agreement (MSA). On April 10, 2006, the trial court entered a final judgment of dissolution of marriage that approved and incorporated the parties’ MSA. Paragraph four of the MSA provided that the Former Husband pay the Former Wife $900 per month in permanent alimony. Although the parties also submitted financial affidavits as a part of the mandatory disclosures, the trial court made no findings regarding the parties’ actual expenses or their ability to pay at the time of dissolution because of the negotiated settlement.

On January 81, 2007, only nine and one-half months after the final judgment of dissolution, the Former Wife filed a supplemental petition for modification alleging a substantial change in circumstances based on both her need for alimony and an increase in the Former Husband’s ability to pay. In the petition, the Former Wife did not specify her change of circumstances; however, at the modification proceedings, she testified that “just utilities have gone up.” The basis for the increase in the Former Husband’s income came from a trust his aunt created for him and his family members. The Former Husband began receiving payments from the trust around June 2006. He received both annual lump sum payments and monthly payments of approximately $900 per month. At the modification proceedings in 2008, the Former Husband testified that the trust payments were for a specified period of time. He stated that there were only six more annual distributions from the trust, which results in the payments ending in 2014. It is important to note that this trust income was neither permanent nor unanticipated, as discussed below in greater detail.

Following the modification proceedings, the trial court found that both the Former Wife’s and the Former Husband’s circumstances had changed substantially. Specifically, the trial court found that the Former Wife’s monthly deficit in 2005 was $1834 per month. The trial court found that in 2008 her deficit was $2359 per month. Therefore, the trial court found her deficit increased by only $525 per month. As to the Former Husband’s increased ability to pay, the trial court found that the Former Husband’s monthly income increased from $2426 per month in 2005 to $5119 per month in 2008. The trial court found that the Former Husband’s monthly needs in 2008 were $3800 per month, leaving the Former Husband with a surplus of $1319 per month. Based on the numbers above, the trial court modified the Former Husband’s alimony payment to $8250 per month for as long as the trust fund benefits continued. We note that the original alimony award was $900 per month, and the trial court’s modification to $3250 per month increased the original award by $2350 per month.

II. Standard of Review

A trial court’s modification of an alimony award is reviewed under an abuse of discretion standard. Wabeke v. Wabeke, 31 So.3d 793, 795 (Fla. 2d DCA 2009). “An award must be reversed ‘where the record does not contain competent, substantial evidence to support the trial court’s findings regarding the amount of alimony awarded.’ ” Id. (quoting Farley v. Farley, 858 So.2d 1170, 1172 (Fla. 2d DCA 2003)), In an alimony modification proceeding, the burden is on the petitioner to show there was “a substantial change in circumstances that was not contemplated at the time of the final judgment and that is sufficient, material, permanent, and involuntary.” Chambliss v. Chambliss, 921 So.2d 822, 824 (Fla. 2d DCA 2006) (citing Yangco v. Yangco, 901 So.2d 217, 219 (Fla. 2d DCA 2005)). If the alimony award is fixed by agreement, the party seeking to modify that award carries an exceptionally heavy burden. Id. (citing Johnson v. Johnson, 386 So.2d 14, 16 (Fla. 5th DCA 1980)); see also Pimm v. Pimm, 601 So.2d 534, 537 (Fla.1992).

III. Modification

Pursuant to section 61.14(l)(a), Florida Statutes (2006), “[when] the parties enter into an agreement for payments for ... alimony ... and the circumstances or the financial ability of either party changes ... either party may apply ... for an order decreasing or increasing the amount of ... alimony.” In order to justify a modification of alimony, the petitioner must establish: “ ‘(1) a substantial change in circumstances; (2) that the change was not contemplated at the final judgment of dissolution; and (3) that the change is sufficient, material, permanent, and involuntary.’” Antepenko v. Antepenko, 824 So.2d 214, 215 (Fla. 2d DCA 2002) (quoting Rahn v. Rahn, 768 So.2d 1102, 1105 (Fla. 2d DCA 2000)); see also Pimm, 601 So.2d at 536.

This court recently addressed alimony modification, where the original dissolution of marriage incorporated a negotiated settlement agreement and the modification was based on a substantial change in circumstances. See Eisemann v. Eisemann, 5 So.3d 760 (Fla. 2d DCA 2009). In Ei-semann, both spouses sought modification of alimony. Id. at 761. The Former Husband sought a reduction in alimony based on the Former Wife’s increase in annual income, and the Former Wife sought an increase in alimony based on the Former Husband’s increase in income. Id. The trial court found that Former Wife’s needs were not met in the original dissolution judgment, but because the Former Husband’s earnings had increased and the Former Wife’s needs continued to be unmet, the trial court concluded an upward modification was justified. Id. at 762.

The Eisemann court reiterated the Florida Supreme Court’s view that there are two avenues to pursue when proving the substantial change in circumstances prong of the alimony modification test: (1) a substantial change in one spouse’s needs, or (2) a substantial increase in the paying spouse’s ability to pay. Id. at 763; see Bedell v. Bedell, 583 So.2d 1005 (Fla.1991). It also recognized the Bedell exception which applies in

the relatively rare ease where the recipient spouse’s needs, as established by the standard of living maintained during the marriage, were not, and could not be initially met by the original final judgment of marriage dissolution due to the then-existing financial inability of the paying spouse to meet those needs, which needs continue to remain unmet at the time of modification.

Eisemann, 5 So.3d at 762-63 (quoting Be-dell, 583 So.2d at 1006-07).

For the Bedell exception to apply, the “recipient spouse must show that in the original judgment of dissolution, the trial court was legally required to award an amount of alimony that did not meet the needs of the recipient spouse, based on the marital standard of living, because the paying spouse was financially unable to meet those needs.” Id. at 764 (citation omitted). In applying the criteria for the exception, the Eisemann court reasoned that since “the original award of alimony was based upon a contract — their settlement agreement — and not after a trial where the court made the requisite findings of one’s needs and the other’s demonstrated inability to pay the legally required amount,” the case did not fall within the exception. Id. The trial court’s order was reversed because the Bedell exception was used as the basis for modification. Id. The Eisemann court held that only the “current needs that fulfill the criteria of [a] substantial change that was not contemplated at the time of dissolution [and] that are material, permanent, and involuntary” may be considered by the trial court. Id.; see Bedell, 583 So.2d at 1007 (finding that “a substantial increase in the financial ability of the paying spouse, standing alone, may justify but does not require an order of increased alimony [and] the final decision rests with the circuit court.” (emphasis added)).

Here, the trial court abused its discretion in modifying the Former Wife’s alimony award to $3250 per month. The evidence presented does not support a substantial change in circumstances based on the Former Wife’s needs. In addition to the Former Wife’s testimony that “just the utilities had gone up,” the Former Wife acknowledged that her deficit at the time of modification was less than it was at the time of the final judgment. Although it appears that the trial court based its findings on the parties’ financial affidavits, even those do not provide a basis for a substantial change. The trial court found that the Former Wife’s monthly deficit at the time she contracted for a $900 per month alimony payment was $1834 a month, and at the time of modification, it had increased to $2359 per month, a difference of only $525 per month. The evidence of a $525 increase added to the $900 per month alimony payment would justify a modification in alimony up to $1425; however, the trial court’s modification increased the amount to $3250 per month, and the evidence does not support this amount.

While the evidence did support a substantial increase in the Former Husband’s ability to pay, the trial court abused its discretion in granting a modification of the permanent alimony award based on trust payments that were not permanent. The Former Husband testified that the trust payments were for a specified amount of time. The supreme court’s Bedell opinion contemplates that a substantial increase in the paying spouse’s ability to pay may in and of itself justify an increase in alimony; however, that substantial increase is still subject to the three-part test for alimony modification. See Eisemcmn, 5 So.3d at 764 (applying the three-part test after finding that the Bedell exception did not apply). The three-part test is a conjunctive test and a temporary change in circumstances cannot justify a permanent modification of alimony. Since the Former Husband’s trust payments were not permanent, the trial court abused its discretion in permanently modifying the alimony award based on those payments.

This case also does not meet the Bedell exception. Similar to Eisemcmn, the Mor-risons entered into an MSA, and the Former Wife negotiated and agreed to a $900 per month alimony payment when her monthly needs were $3400. Although she was operating at a deficit when the final judgment of dissolution was rendered, the trial court was not legally required to award an amount of alimony that did not meet her needs because the parties had contractually agreed to a monthly alimony amount. Florida courts respect agreements made by parties to a dissolution “ ‘[w]hen such agreements are fairly entered into and are not tainted by fraud, overreaching or concealment....’” Griffith v. Griffith, 860 So.2d 1069, 1072 (Fla. 1st DCA 2003) (quoting Sedell v. Sedell, 100 So.2d 639, 642 (Fla. 1st DCA 1958)). The Former Wife also had the opportunity to directly appeal or challenge the final judgment of dissolution by a motion to vacate; however, she chose to abide by the settlement agreement.

The Former Wife argues that the reason the exception did not apply in Ei-semcmn is because there was no evidence presented showing that the trial court was legally required to award an insufficient amount of alimony. The Former Wife asserts that in this case the parties’ financial affidavits from the time of the settlement agreement and from the time of modification provide sufficient evidence to form the basis for the exception. We do not agree. The trial court was not legally required to make the requisite findings of one spouse’s needs and the other’s inability to pay due to the parties’ negotiated settlement agreement. Since the parties fairly entered into the MSA at the time of dissolution, the trial court was not legally required to award an amount of alimony which did not meet the needs of the Former Wife. Thus, the trial court abused its discretion in using the Bedell exception as the basis for its finding that the Former Wife met the substantial change in eircum-stance prong of the alimony modification test.

For the above stated reasons, we conclude the trial court abused its discretion in modifying the alimony award to $3250 per month. We reverse the trial court’s modification order and remand for reconsideration in light of the Former Wife’s current unmet needs and the Former Husband’s permanent ability to pay. The trial court should not consider the Former Wife’s unmet needs at the time of dissolution but must consider only those needs that meet the criteria of a substantial change that was not contemplated at the time of dissolution and that is sufficient, material, permanent, and involuntary. Likewise, the trial court must also consider only a permanent, substantial change in the Former Husband’s ability to pay that was not contemplated at the time of dissolution and that is sufficient, material, and involuntary. Since the retroactive lump sum was based upon the award of $3250 per month, we also remand this award for findings consistent with this opinion.

IV. Attorney’s Fees

Pursuant to section 61.16, Florida Statutes (2007), a trial court may award attorney’s fees. In addressing attorney’s fees, the trial court’s inquiry should be “whether one spouse has a need for fees and the other spouse has the ability to pay them.” Von Baillou v. Von Baillou, 959 So.2d 821, 823 (Fla. 4th DCA 2007). A financial need is defined as “ ‘the necessity for some financial assistance to engage an attorney and pay attorney fees.’” Id. (quoting Satter v. Satter, 709 So.2d 617, 619 (Fla. 4th DCA 1998)). Because we reverse the trial court’s modification of the alimony award, we must also reverse as to attorney’s fees. The trial court should reconsider attorney’s fees in light of the parties’ needs and ability to pay, setting forth findings supporting such a determination.

Reversed and remanded.

WHATLEY, J., Concurs.

SILBERMAN, J., Concurs specially with opinion.

SILBERMAN, Judge,

Concurring specially.

I concur in the result reached by the majority because I am bound by this court’s precedent in Eisemann v. Eisemann, 5 So.3d 760 (Fla. 2d DCA 2009). The Eisemann court concluded that a trial court may not modify an alimony award that was based on a marital settlement agreement (MSA) rather than “after a trial where the court made the requisite findings of one’s needs and the other’s demonstrated inability to pay the legally required amount.” Id. at 764.

The Former Wife argues that’ the trial court correctly granted modification, including for her previously unmet needs, notwithstanding the fact that she was seeking modification of the alimony amount provided for in the MSA. She asserts the evidence established that the alimony provided for in the MSA was based on the parties’ then financial circumstances. The Former Husband was unable to pay more than the agreed amount, which left her with significant unmet financial needs. Postdissolution, the Former Husband had a substantial increase in his ability to pay, based on his current employment income and the annual inheritance distributions that he would receive over the course of ten years. The Former Wife had a substantial increase in her financial need, considering her minimal income, based on increased mortgage and utility payments. She submits that the evidence showed the parties’ financial circumstances at the time of the MSA, changes that had occurred, and their current financial situations. Based on that evidence, she argues that the trial court properly determined that modification was warranted.

Although I agree that the evidence was sufficient to support the Former’s Wife’s petition for modification of alimony, Ei-semann requires a different result than that reached by the trial court as to previously unmet needs. This necessitates reversal of the trial court’s order granting modification. However, in my view, Ei-semann interprets the law on modification too narrowly.

Florida law specifically provides that when the parties enter into an agreement for alimony payments and either party’s circumstances or financial ability changes, a party may petition the circuit court for an order to decrease or increase the amount of alimony. § 61.14(l)(a), Fla. Stat. (2006); Bedell v. Bedell, 583 So.2d 1005, 1007 (Fla.1991). But “the court is not required to grant an increase in alimony simply upon proof of a substantial increase in the financial ability of the paying spouse if equity does not dictate that such a change should be ordered.” Bedell, 583 So.2d at 1007. The supreme court added that “a substantial increase in the financial ability of the paying spouse, standing alone, may justify but does not require an order of increased alimony” and, subject to the abuse of discretion standard, “the final decision rests with the circuit court.” Id. Modification is not restricted to situations where the trial court awarded alimony after a trial.

In Eisemann, this court relied heavily on the Third District’s decision in Bedell v. Bedell, 561 So.2d 1179 (Fla. 3d DCA 1989), approved in part, quashed in part, 583 So.2d 1005 (Fla.1991). Eisemann focused on the Third District’s statement in Bedell that to obtain an upward modification of alimony based on a substantial postdissolution increase in the recipient spouse’s needs, “it must be established that a ‘trial court was legally required to award an amount of alimony which did not meet the needs of the recipient spouse.’ ” Eisemann, 5 So.3d at 763 (quoting Bedell, 561 So.2d at 1184). Eisemann relied on that language to reverse modification when the original alimony award was based on the parties’ settlement agreement and not a trial after which a court made the requisite factual findings. Id. at 764.

Eisemann acknowledged that the supreme court’s decision in Bedell did not address the portion of the Third District’s decision on which the Eisemann court relied. Id. at 763 n. 2. But Eisemann expressed a belief that the supreme court’s holding would encompass that portion of the Third District’s decision. Id. I am not convinced that the supreme court, sub si-lentio, adopted that portion of the Third District’s analysis, as now interpreted by this court. Rather, based on the language contained in section 61.14(l)(a) and the supreme court’s analysis in Bedell, I do not believe that parties who enter into an MSA are precluded from seeking modification of alimony to address unmet needs where there have been changes in need or financial ability to pay.

I agree with the majority that a more detailed settlement agreement, addressing future modification of the alimony amount, might have avoided the problem presented in this case. But the result that we reach today seems likely to chill the willingness that parties may have to enter into settlement agreements in eases where their financial circumstances result in unmet needs. Based on the decision here and in Eisemann, a party will be precluded from seeking modification, notwithstanding section 61.14(l)(a) and the language in the supreme court’s decision in Bedell, unless the alimony award was entered following a trial, rather than through a settlement agreement. Proceeding to trial, rather than settling, would be necessary so that future modification would remain available. The majority suggests that the parties could obtain a legal finding of unmet needs at the time they enter into the MSA. But the statute provides for the remedy of modification without the additional stumbling block of petitioning for a finding on needs when the parties are attempting to reach a settlement.

In summary, the situation here reflects changed circumstances as contemplated by section 61.14(l)(a), which grants the trial court “jurisdiction to make orders as equity requires, with due regard to the changed circumstances or the financial ability of the parties.” The Former Wife, who is disabled, has unmet and substantially increased needs and has had to rely on charities and other family members for food, clothing, and shelter. The Former Husband has also had significant changes — changes that reflect a substantial increase in his ability to pay alimony. Absent the Eisemann decision, I would conclude that the trial court had the ability to modify the alimony amount.

      . It should be noted here that the $525 difference includes an increase in the Former Wife's mortgage payment. In addition to the Former Wife’s statement that "just utilities have gone up,” the financial affidavits showed an increase in her mortgage payment from $809 per month in 2005 to $1,184.24 per month in 2008 — a difference of $375.24 per month.

      . We note that there is evidence in the record which indicates the Former Wife was aware at the time of dissolution that the Former Husband would receive an inheritance. At the modification proceedings the Former Wife agreed that at the time of the aunt's death in 2004, she knew there was an anticipation of a $3.5 million dollar inheritance for the Former Husband. Although that amount was highly inflated, the Former Wife had knowledge of a substantial inheritance, and the parties could have included a provision in the MSA reserving the right to revisit alimony award upon receipt of the contemplated inheritance.

      . It is important to note here that the Bedell exception’s legal finding requirement should not be interpreted as encouraging parties to litigate. Florida has a longstanding policy of encouraging mediation and settlement of family law disputes. Griffith, 860 So.2d at 1073. We do not depart from that policy in this opinion. Instead, we encourage parties with unmet needs at the time of dissolution to include contractual provisions in the MSA which protect their interests. In addition, parties who enter into an MSA could petition the court to make a legal finding of unmet needs based on the parties’ financial affidavits.

      . I note that there is some uncertainty regarding the information the parties had at the time they entered into the MSA regarding the trust, which is the source of the distributions, and the respective interests of the now-deceased primary beneficiary and the Former Husband. The primary beneficiary was alive at the time the parties entered into the MSA. Thus, it was uncertain when the Former Husband would realize any benefits and how much he could expect to receive. And as the majority points out, the Former Husband has received monthly income of $900 per month from the trust in addition to annual lump-sum payments. Those lump-sum payments have been approximately $60,000 each.


author: PER CURIAM. SHEPHERD, J.,

text:
    ROYAL CARIBBEAN CRUISES, LTD., Appellant, v. Byron COX, Appellee.
    No. 3D08-2704.
    District Court of Appeal of Florida, Third District.
    Feb. 23, 2011.
    Rodriguez, Aronson, Essington & Ross and Domingo C. Rodriguez; Hicks, Porter, Ebenfeld & Stein, Dinah S. Stein, Miami, and Erik P. Bartenhagen, for appellant.
    Luis A. Perez; William F. Fabra, Miami; and Russo Appellate Firm, Elizabeth K. Russo, Miami, and James H. Wyman, Ft. Lauderdale, for appellee.
    Before GERSTEN, SHEPHERD, and LAGOA, JJ.
   PER CURIAM.

Affirmed. See Binger v. King Pest Control, 401 So.2d 1310, 1313 n. 7 (Fla.1981).

SHEPHERD, J.,

concurring in part, and dissenting in part.

This is an appeal by Royal Caribbean Cruises, Ltd. (Royal Caribbean) from a final judgment in the sum of $1,403,791.90 in favor of Byron Cox, who slipped and fell while performing his job as a galley utility pot washer on Royal Caribbean’s Majesty of the Seas on January 12, 2004. Royal Caribbean challenges two adverse decisions made by the trial court during the course of trial: (1) failure to charge the jury on an affirmative defense that exists in the law of admiralty known as the “primary duty doctrine”; and (2) allowing plaintiffs vocational rehabilitation expert to testify concerning new reports and opinions created after the discovery deadline.

I agree with the majority that the trial court did not err in denying Royal Caribbean’s request to instruct the jury on the primary duty doctrine.

In order to be entitled to a special jury instruction, the defendant must prove: (1) the special instruction was supported by the evidence; (2) the standard instruction does not adequately cover the defendant’s theory of the case; and (3) the proposed instruction accurately states the law and would not confuse or mislead the jury.

Billie v. State, 963 So.2d 837, 839 (Fla. 3d DCA 2007) (emphasis added). Royal Caribbean argued below, and continues to maintain here, that the jury should have been instructed that Cox’s claim was barred altogether if the elements of the primary duty doctrine were found to exist. The actual instruction requested, however, directed the jury to consider only whether Plaintiffs recovery should be reduced if the elements of the primary duty doctrine were met. The proposed instruction stated:

An issue raised for your determination is whether the Plaintiff was himself negligent for failing to keep his work area reasonably clean and safe. If you find that the Plaintiff did not have such duty, or if you find that Plaintiff did not breach this duty, then you shall not consider this defense.
However, if you find that the Plaintiff had a duty to keep his work area reasonably clean and safe, and that Plaintiffs injuries were caused in whole by his failure to keep his work area reasonably clean and safe and his failure to follow defendant’s procedures for lifting items weighing greater than 50 pounds, then you shall consider this in your determination of whether Plaintiffs injuries were caused solely by Plaintiffs negligence.
Or, if you find that Defendant was negligent or that the vessel was un-seaworthy, you shall consider Plaintiffs failure to keep his work area reasonably clean and safe and/or failure to follow Defendant’s procedures for lifting items weighing greater than 50 pounds in your determination of Plaintiffs degree or percentage of comparative negligence on the verdict form which I will explain to you shortly.

In addition, the proposed instruction was inconsistent with the corresponding question proposed for the verdict form. That question read as follows:

Do you find by a greater weight of the evidence that Plaintiff had a duty to keep his work area reasonably clean and safe, and that Plaintiffs injuries were caused in whole by his failure to keep his work area reasonably clean and safe and failure to follow Defendant’s procedures for lifting items weighing greater than 50 pounds?

I find no error in this point on appeal.

As to the second issue, I find the trial court reversibly erred by permitting the plaintiffs vocational rehabilitation expert, Pedro Roman, to amend, four days before trial, his life care plan for Cox to include future medical care costs. Roman estimated future medical care, if performed in Nicaragua, at approximately $5000 and $241,398.20, if provided in the United States. Royal Caribbean’s vocational rehabilitation expert earlier had estimated Cox’s future medical care only in Nicaragua, where Cox was born and has lived for almost all of his forty-nine years. The jury awarded Cox future medical costs in the amount of $241,501 — almost exactly the amount contained in Roman’s amended life plan for medical care in the United States. It is quite apparent Roman could have generated this category of future care costs two years earlier when he prepared all other elements of the life plan. Royal Caribbean should not have been obligated during the midst of trial to prepare rebuttal to this new opinion regarding future care costs in the United States; thus, it was prejudiced by its inability to do so. See Binger v. King Pest Control, 401 So.2d 1310, 1314 (Fla.1981) (“Requiring reasonable compliance with a pretrial order directing witnesses’ disclosure will help to eliminate surprise and avoid trial by ‘ambush.’”); Dep’t of Health & Rehab. Servs. v. J.B., 675 So.2d 241, 243 (Fla. 4th DCA 1996) (“The purpose of a discovery cut-off date was to avoid surprise to either side.”); Grau v. Branham, 626 So.2d 1059, 1062 (Fla. 4th DCA 1993) (“[I]f prejudice can be cured efficiently, then it should. But the plaintiff takes his own risk in adopting an ambush strategy and should not profit from his own wrongdoing.”).

Based upon the foregoing analysis, I would vacate the award for future medical costs and remand for entry of the verdict with that reduction.

      . In fairness to the parties, I note that the doctrine, first articulated by Judge Learned Hand in Walker v. Lykes Bros. S.S. Co., 193 F.2d 772, 773 (2d Cir.1952), appears to have fragmented into several divergent versions. See Shaul Serban, Evolution of a Defense in Maritime Law: A Survey of the Primary Duty Rule, 18 U.S.F. Mar. L.J. 253, 282-283 (2006). Some courts in the Second Circuit— where Judge Hand sat for more than ten years — have questioned its continuing viability. See, e.g., Borges v. Seabulk Int'l, Inc., 456 F.Supp.2d 387, 393 (D.Conn.2006); Lombas v. Moran Towing & Transp. Co., 899 F.Supp. 1089, 1096 (S.D.N.Y.1995); see also Dunbar v. DuBois Sons Co., 275 F.2d 304, 306 (2d Cir.1960). Happily, I need not question Judge Hand for purposes of this opinion.


author: PER CURIAM. BENTON, C.J.,

text:
    Edward George JONES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5844.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2011.
    Rehearing Denied April 28, 2011.
    Edward George Jones, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

This petition for writ of habeas corpus challenges the opinion in Jones v. State, 36 So.3d 659 (Fla. 1st DCA 2010) (table), which affirmed the denial of a postconviction motion filed in Hamilton County Circuit Court case number 06-175-CA. The petition for writ of habeas corpus is dismissed. See Baker v. State, 878 So.2d 1236 (Fla.2004) (reiterating that habeas corpus cannot be used to litigate issues that could have been or were raised on direct appeal or in postconviction motions).

Additionally, due to petitioner’s abuse of the legal process, petitioner was directed to show cause why sanctions should not be imposed against him, including a finding that this proceeding is frivolous and referring the case to the Department of Corrections for sanctions pursuant to section 944.279, Florida Statutes (2010), and a prohibition against any future appeals or petitions challenging the judgment and sentence. See State v. Spencer, 751 So.2d 47, 48 (Fla.1999). Petitioner’s response to the show cause order does not provide a legal basis to prohibit the imposition of sanctions.

As such, petitioner is hereby barred from future pro se filings in this court concerning Hamilton County Circuit Court case number 06-175-CA. The Clerk of the Court is directed not to accept any future filings concerning this case unless they are signed by a member in good standing of The Florida Bar.

In addition, this court finds that this proceeding is frivolous and this case is hereby referred to the Department of Corrections for sanctions pursuant to section 944.279, Florida Statutes (2010) (providing that a prisoner who is found by a court to have brought a frivolous suit, action, claim, proceeding or appeal is subject to disciplinary procedures pursuant to the rules of the Department of Corrections).

KAHN and WETHERELL, JJ„ concur; BENTON, C.J., concurs in part and dissents in part.

BENTON, C.J.,

concurring in part and dissenting in part.

I concur in the judgment except insofar as it bars “future pro se filings in this court concerning Hamilton County Circuit Court case number 06-175-CA.”


author: PER CURIAM. ■

text:
    LOWE’S HOME CENTERS, INC., Appellant, v. DEPARTMENT OF COMMUNITY AFFAIRS, Appellee.
    No. 1D09-4383.
    District Court of Appeal of Florida, First District.
    Feb. 28, 2011.
    Rehearing Denied April 25, 2011.
    Martha Harrell Chumbler, Thomas E. Warner, and Dean A. Morande, Carlton Fields P.A., West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, and Rob Johnson, Assistant Attorney General, Office of the Attorney General, and David L. Jordan, Assistant General Counsel, Florida Department of Community Affairs, Tallahassee, for appellee Department of Community Affairs.
    Robert Hartsell and Richard Grosso, Everglades Law Center, Inc., Fort Laud-erdale, for appellees/intervenors below National Parks Conservation Assoc. & 1000 Friends of Florida.
   PER CURIAM. ■

Affirmed. See Miami-Dade County v. Dep’t Cmty. Affairs, 54 So.3d 638 (Fla. 1st DCA2011).

KAHN, PADOVANO, and CLARK, JJ., concur.


text:
    Anthony WHITEHURST, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-5712.
    District Court of Appeal of Florida, First District.
    March 2, 2011.
    Rehearing Denied April 27, 2011.
    Anthony Whitehurst, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Mark Allen BIR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D10-6806.
    District Court of Appeal of Florida, First District.
    March 2, 2011.
    Rehearing Denied April 25, 2011.
    Mark Allen Bir, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Morales v. State, 973 So.2d 679 (Fla. 2d DCA 2008) (oral denial of rule 3.170(f) motion reviewable in the appeal from judgment and sentence).

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


text:
    Tony L. HOBBS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-0626.
    District Court of Appeal of Florida, First District.
    March 2, 2011.
    Rehearing Denied April 25, 2011.

      Tony L. Hobbs, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

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


text:
    Charles MILTON, Petitioner, v. F.P.P.C./F.D.O.C., Respondents.
    No. 1D11-0676.
    District Court of Appeal of Florida, First District.
    March 2, 2011.
    Rehearing Denied April 25, 2011.
    Charles Milton, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. Pacha v. Salfi, 381 So.2d 373 (Fla. 5th DCA 1980).

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


author: VAN NORTWICK, J.

text:
    Susan Caroline GLOVACZ, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-1204.
    District Court of Appeal of Florida, First District.
    March 2, 2011.
    Rehearing Denied April 26, 2011.
    Nancy A. Daniels, Public Defender, and Kathleen Stover, Assistant Public Defender, Tallahassee, for Appellant.

      Bill McCollum, Attorney General, and Sonya Roebuck Horbelt, Assistant Attorney General, Tampa, for Appellee.
   VAN NORTWICK, J.

Susan Caroline Glovacz challenges her conviction for trafficking in hydrocodone raising multiple claims of error. Because the jury instructions given at trial constitute fundamental error, we reverse her conviction and vacate her sentence. Given this disposition, it is unnecessary for us to consider the other issues raised.

By amended information, appellant was charged with trafficking in Lortab in an amount greater than 14 grams but less than 28 grams. At the ensuing trial, the prosecution offered evidence that the controlled substance had been purchased from appellant by an undercover officer. Police had learned of appellant through a confidential informant. The officer posing as a woman in chronic pain contacted appellant in order to purchase hydrocodone. The undercover officer, according to the State’s evidence, came to appellant’s residence and purchased some thirty tablets. Appellant did not deny possessing the medication, but claimed to have a valid prescription for it; the State did not refute that claim. Further, appellant did not deny giving the undercover officer some of her medication, but claimed that she did not receive money therefor and instead expected the officer to give her back the same amount in a week or so when she obtained her own prescription. Besides claiming possession of a valid prescription, appellant raised an entrapment defense. Appellant was convicted of trafficking as charged and sentenced to a minimum mandatory sentence of fifteen years.

Appellant did not request that the jury be instructed that the possession of a prescription may be a valid defense to the charge of possession of a controlled substance. The knowing possession of a certain amount of a controlled substance may constitute the offense of trafficking. Here, the verdict included possession as a lesser offense. The jury was instructed in pertinent part:

To prove the crime of Trafficking in Illegal Drugs, the State must prove the following four elements beyond a reasonable doubt:
1. SUSAN CAROLINE GLOVACZ knowingly sold, delivered or possessed a certain substance.
2. The substance was hydrocodone or a mixture containing hydrocodone.
3. The quantity of the substance involved as 14 grams or more.
4. SUSAN CAROLINE GLOVACZ knew that the substance was hydroco-done or a mixture containing hydroco-done.
To “possess” means to have personal charge of or exercise the right of ownership, management or control over the thing possessed.

In closing argument, the prosecutor, in arguing for a guilty verdict as to the charged offense, suggested the jury begin its deliberations by considering the lesser offenses listed on the verdict, which included possession of a controlled substance. Said the prosecutor:

And the way it works is when you go back to deliberate, there’s the main charge, which is the first one listed: Guilty of trafficking in hydrocodone, 14 grams or more but less than 28 grams, as charged in the information. Then there’s three lesser-included charges there.
And if you sort of look at it — you can start at the very bottom — and you say, okay, well, not guilty. What did the State prove? Well, if you go up one, and you sort of say, guilty of possession of hydrocodone, a lesser-included offense — meaning it’s included in the main offense. And we’re asserting to you, well, yeah, that was proved because the defendant possessed hydro-codone, gave it to the undercover narcotics officer.
What about the next one? Guilty of sale, or delivery, or possession with the intent to sell or deliver hydrocodone, a lesser-included offense. That would be applicable if we didn’t prove the amount in this case. That would be applicable if the weight of the hydrocodone, or the substance containing hydrocodone, was less than four grams. In this case, you received evidence from Don Rawls, at the Florida Department of Law Enforcement, stating that it was actually over 19 grams.

(Emphasis added).

A case recently decided by this court, McCoy v. State, 56 So.3d 37 (Fla. 1st DCA 2010), is instructive. In McCoy, the defendant sought reversal of her conviction for trafficking in hydrocodone on the ground inter alia that the jury instructions constituted fundamental error because the jury was not instructed on the “prescription defense.” The defendant did not deny that she possessed the drug, but she claimed that she was merely carrying the drug in her purse for her husband, who held a valid prescription. Besides the lack of an instruction that a possession of a prescription is a defense, the trial was also flawed, we held, as a result of the prosecutor’s erroneous closing wherein he argued:

They want you to say, so what, they’re her husband’s pills, of course she can have them, but you know what you won’t hear, when the Judge reads you the law, you won’t hear that she had a right to have them because, after all, Hydroco-done is a controlled substance.
You will not hear from the judge that it is a defense for this defendant to have the pills because her husband has a prescription. You will not hear that. If you do not hear that, then there is no defense in the law for this defendant to have the pills.

In holding that fundamental error occurred, this court explained:

We recognize that where the challenged error involves jury instructions dealing with an affirmative defense, the fundamental error doctrine “ ‘should be applied only in rare cases where a jurisdictional error appears or where the interests of justice present a compelling demand for its application.’ ” [Martinez v. State, 981 So.2d 449, 455 (Fla.2008) (quoting Smith v. State, 521 So.2d 106, 108 (Fla.1988)).] However, because the defense constituted appellant’s only defense to the charge and there was substantial, albeit conflicting, evidence concerning the defense along with the egregiously incorrect argument from the prosecutor regarding the defense, this is one of those rare cases in which fundamental error has occurred. Accordingly, we reverse and find no need to reach appellant’s third issue asserting ineffective assistance of counsel based on defense counsel’s failure to request the prescription defense instruction.

56 So.3d at 41.

The case before us is analogous. Here, Glovacz claimed at trial that she possessed a prescription for hydrocodone, and the State did not offer any evidence to the contrary. Also, the jury was not instructed that possession of a prescription is a valid defense. Although it is not clear from the instant record that such an instruction was requested, the lack of an ■instruction may be deemed fundamental error given the prosecutor’s suggestion here that possession could support a conviction for trafficking. That the State believed proof of possession was a sufficient basis to convict is evidenced by the lesser included offense of simple possession.

Accordingly, on the authority of McCoy, the conviction for trafficking in a controlled substance is REVERSED, and the corresponding sentence is VACATED.

KAHN, and THOMAS, JJ„ concur.


text:
    Cindy LANGEVIN, Appellant, v. FIRST UNION NATIONAL BANK and Ace/Esis, Appellees.
    No. 1D10-4308.
    District Court of Appeal of Florida, First District.
    March 3, 2011.
    Rehearing Denied April 27, 2011.
    Bill McCabe, Longwood, and Richard A. Lovesky, Bradenton, for Appellant.
    James M. Hess, Maitland, for Appellees.
   PER CURIAM.

In this workers’ compensation case, Claimant appeals from an order of the Judge of Compensation Claims (JCC) denying permanent total disability benefits. Although the JCC erred in finding the claim was barred by the doctrines of res judicata and law of the case, we nevertheless affirm the order on the merits because the JCC properly found Claimant failed to satisfy the five-step sequential inquiry used to establish catastrophic injury under section 440.15(l)(b), Florida Statutes. See, e.g., Butler v. City of Jacksonville, 980 So.2d 1250, 1252 (Fla. 1st DCA 2008).

AFFIRMED.

KAHN, THOMAS, and ROWE, JJ., concur.


text:
    DHL EXPRESS (USA), INC., DHL Worldwide Express, Inc., and DPWN Holdings (USA), Inc., Petitioners, v. STATE of Florida ex rel., Kevin GRUPP and Robert Moll, Respondents.
    No. 1D10-6436.
    District Court of Appeal of Florida, First District.
    March 10, 2011.
    Rehearing Denied April 26, 2011.

      Katherine E. Giddings and Thomas A. Range of Akerman Senterfitt, Tallahassee; J. Peter Coll, Jr., and Elyse D. Echtman of Orrick, Herrington & Sutcliffe LLP, New York, pro hac vice, for Petitioners.
    Robert W. Thielhelm, Jr., Jerry R. Lin-scott, and Jacob R. Stump of Baker & Hostetler LLP, Orlando, for Respondents.
   PER CURIAM.

DHL Express (USA), Inc., DHL Worldwide Express, Inc., and DPWN Holdings (USA), Inc. (hereinafter DHL) petition this court for a writ of prohibition. They contend that an action pending against them in the Circuit Court for Leon County is preempted by federal law. Finding petitioners’ arguments to be well-taken, we grant the petition.

Petitioners contracted to provide courier services to the State of Florida. The contract authorizes DHL to impose surcharges at fixed rates when the price of fuel rises above an established base price. New York residents Kevin Grupp and Robert Moll brought the circuit court suit in question under the Florida False Claims Act, sections 68.081 through 68.09, Florida Statutes. They contend DHL improperly billed a fuel surcharge for aviation fuel when packages did not travel by air. Further, according to the complaint, DHL charged a diesel fuel surcharge for ground deliveries despite the fact that DHL’s independent contractors incurred the increased cost of such fuel.

Copies of the complaint and supporting documents were served on the appropriate state officials in accordance with section 68.083(3), Florida Statutes. The State declined to intervene and the case below proceeded without its participation. DHL moved to dismiss the complaint, arguing the action is preempted by the Airline Deregulation Act, 49 U.S.C. § 41713(b)(l)(ADA) and the Federal Aviation Administration Authorization Act, 49 U.S.C. § 14501(c)(1) (FAAAA). When that motion was denied, the instant prohibition petition was filed.

First, we agree with petitioners that this court may grant a writ of prohibition in this circumstance, where there are no disputed issues of fact and the lower tribunal is poised to proceed without subject-matter jurisdiction. Am. Mar. Officers Union v. Merriken, 981 So.2d 544 (Fla. 4th DCA 2008); see also Boca Burger, Inc. v. Forum, 912 So.2d 561, 568 (Fla.2005) (“Florida courts ... have held that the issue of federal preemption is a question of subject matter jurisdiction.”). Thus, we have jurisdiction. Our standard of review on the question of law presented is de novo. Rittman v. Allstate Ins. Co., 727 So.2d 391 (Fla. 1st DCA 1999).

Both the ADA and the FAAAA provide that a state “may not enact or enforce a law, regulation, or other provision having the force and effect of law related to a price, route, or service of a ... carrier.” See 49 U.S.C. § 41713(b)(1) and 49 U.S.C. § 14501(c)(1). Respondents argue that their qui tarn suit in circuit court does not regulate DHL’s prices, routes, or service. Alternatively, they contend their suit, if it does so regulate, falls within the “market participant” exception to the federal pre-emptions. We disagree.

The United States Supreme Court has found a sweeping reach in the preemption clauses of the ADA and the FAAAA. In Morales v. Trans World Airlines, Inc., 504 U.S. 374, 112 S.Ct. 2031, 119 L.Ed.2d 157 (1992), the attorneys general of several states sought to enforce their states’ deceptive practices laws against airlines’ advertising concerning fares. The Court found that in light of the express breadth of the statute’s “relating to” phrase, state enforcement actions were preempted in that they had a connection or reference to the rates, routes, or services of the affected carriers. Applying that standard, the Court found the necessary connection or reference and upheld an injunction imposed by the United States District Court against the enforcement actions. A similar outcome was reached in American Airlines, Inc. v. Wolens, 513 U.S. 219, 115 S.Ct. 817, 130 L.Ed.2d 715 (1995), a case which we find particularly instructive. Members of the airline’s frequent flyer program sued for breach of contract and violation of their state’s fraud and deceptive business practices act, attacking a retroactive change to the program. Applying the test announced in Morales, the Court found the fraud and deceptive practices claims were preempted by the ADA but the breach of contract claims were not.

Applying these cases, we have no trouble concluding that respondents’ qui tam suit is preempted by the ADA and FAAAA. The suit clearly “relates to” DHL’s rates, routes, or services as it is directed at the aviation and diesel fuel surcharges billed by DHL. Additionally, the suit is more akin to the consumer fraud enforcement actions the Court found preempted in Morales and Wolens than to the breach of contract action allowed to proceed in Wolens. Unlike a simple breach of contract action, which is confined to “the parties’ bargain with no enlargement or enhancement based on state laws or policies external to the agreement,” see Wolens, 513 U.S. at 283, 115 S.Ct. 817, respondents’ qui tarn suit is based on a state law whose purpose is to “deter persons from knowingly causing ... state government to pay claims that are false or fraudulent.” § 68.081(2), Fla. Stat.; see also § 68.082(2), Fla. Stat. (authorizing imposition of civil fines and treble damages in qui tam suits). Moreover, as observed by the Court in Vermont Agency of Natural Resources v. U.S. ex rel. Stevens, 529 U.S. 765, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000), “the very idea of treble damages [in the Federal False Claims Act] reveals an intent to punish past, and to deter future, unlawful conduct, not to ameliorate the liability of the wrongdoers.” Id. at 786, 120 S.Ct. 1858 (quoting Texas Indus., Inc. v. Radcliff Materials, Inc., 451 U.S. 630, 639,101 S.Ct. 2061, 68 L.Ed.2d 500 (1981)).

The distinction in Wolens between simple breach of contract actions and those brought pursuant to an anti-fraud statute also refutes respondents’ “market participant exception” argument. Although the State of Florida was a market participant when it contracted with DHL, it acts as a regulator in authorizing suits under the False Claims Act which, as noted above, serve to deter future behaviors on the part of the defendants. See § 68.081(2), Fla. Stat. In the latter role, the state (and respondents’ on the state’s behalf) is not a market participant.

We grant the petition and issue the writ. The circuit court is directed to withdraw its earlier order denying DHL’s motion to dismiss. An amended order consistent with this opinion shall be entered.

PETITION GRANTED.

WOLF, HAWKES, and WETHERELL, JJ., concur.


author: THOMAS, J. WOLF, J.,

text:
    Gerald A. SMITH, Appellant, v. NEW HAMPSHIRE INDEMNITY COMPANY, a foreign insurance corporation, Kristi Leigh Devens, State Farm Mutual Automobile Insurance Company, an Illinois corporation, a/s/o Kelly Harnage and Richard Provencher, and Kelly Harnage, individually, Appellees.
    No. 1D10-3423.
    District Court of Appeal of Florida, First District.
    March 16, 2011.
    Rehearing Denied April 28, 2011.

      Ty Tyler of Tyler & Hamilton, P.A., Jacksonville, for Appellant.
    Jane Anderson and Kansas R. Gooden of Boyd & Jenerette, PA, Jacksonville, for Appellee New Hampshire Indemnity Company.
   THOMAS, J.

Appellant appeals the trial court’s entry of a summary judgment stemming from his complaint for declaratory action and breach of contract. Appellant contends the trial court erred by finding that section 627.7282, Florida Statutes, does not invalidate the cancellation of his automobile insurance policy with Appellee New Hampshire Indemnity Company (NHIC). For the reasons explained below, we affirm.

Factual Background

Appellant’s father gave his son a Ford F-150 truck and in August 2007 set up an automobile insurance policy in his son’s name. The six-month premium on the policy at that time was $926.14. In January 2008, the father informed the agent at the local insurance office that his son’s residence had changed from Gainesville to Jacksonville. The father testified that the agent confirmed the change of address, effective January 28, 2008, and told him to wait until the premium’s due date to return to the office to pay the full premium, in the event the premium changed as a result of the new address. The father returned to the office on February 6, 2008, and, upon being told the premium amount had not changed, paid the six-month premium of $926.14.

Appellant’s change of address resulted in a $321.18 premium increase, and an amended declaration page was sent to Appellant at his new address on the samé day. A bill for this additional amount was mailed to Appellant on February 7, 2008. This bill went unpaid and was followed by two more bills in March and April 2008. In May 2008, a notice of cancellation was sent to Appellant informing him that he had until June 13, 2008, to pay the amount owed or the policy would be cancelled. The bill remained unpaid, and the policy was cancelled on that date. Appellant testified he recalled receiving mail from the insurance company at his Jacksonville address, but he did not open it because he assumed his father had paid the premium and everything was in order.

Two days after the policy cancellation, Appellant was involved in an automobile accident with another vehicle, resulting in injury to Appellant and damage to the Ford. NHIC denied coverage for the accident, and Appellant filed the instant action. In his complaint, Appellant acknowledged the June 13, 2008, cancellation, but alleged the cancellation is void because it violates section 627.7282, Florida Statutes. NHIC’s affirmative defenses included: (1) section 627.7282 does not apply to the subject policy; (2) Appellant waived his right to dispute the policy cancellation by failing to respond to several cancellation notices; and (3) NHIC complied with all of Florida’s statutes regarding cancellation.

At the hearing on NHIC’s motion for summary judgment, NHIC argued that section 627.7282, which requires certain notification procedures in the event an insurer charges an incorrect premium, does not apply because the increased premium was not “incorrect.” In addition, it asserted the statute only applies to incorrectly calculated premiums based on an insurance application when a policy is initiated, not to policy renewals.

In response, Appellant conceded that pursuant to Florida law, all required cancellation notices had been sent and that the premium did not violate the rate filing with the Office of Insurance Regulation. Appellant alleged, however, that when his father went into the independent agent’s office, the agent looked up the premium on her computer and stated that the premium was $926, not the increased premium later requested. Appellant asserted the incorrectly charged premium required NHIC to send a “three option letter” pursuant to section 627.7282(1), and that its failure to do so rendered the cancellation ineffective.

The trial court entered an order granting summary judgment in favor of Appel-lees, finding section 627.7282 did not invalidate the cancellation notice because the increased premium for the change of address occurred during the prior policy period; thus, the trial court opined that because an amended declaration page was sent to Appellant on January 28, 2008, prior to the renewal policy period beginning, the premium charged was not “incorrect” under the statute.

Analysis

Our review of the trial court’s summary judgment is de novo. See Futch v. Wal-Mart Stores, Inc., 988 So.2d 687, 690 (Fla. 1st DCA 2008) (“In reviewing an order granting final summary judgment by the trial court, this court applies the de novo standard of review to determine whether there are genuine issues of material fact and whether the trial court properly applied the correct rule of law.” (citing Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000)).

This case requires us to determine whether section 627.7282, Florida Statutes, applies only to situations involving incorrectly charged premiums pursuant to an application for insurance, or whether it also applies to incorrectly charged premiums when a policy is renewed. This statute provides, in pertinent part:

(1) Upon a determination by an insurer that, in accordance with its rate filings and the applicable laws of this state relating to private passenger motor vehicle insurance, a policyholder has been charged a premium that is incorrect for the coverage set forth in the insurance application, the insurer shall immediately provide notice to the policyholder of the amount of additional premium due to the insurer and that the policyholder has the following options:
(a) The policyholder has a period of 10 days, or a longer period if specified by the insurer, from receipt of the notice within which to pay the additional amount of premium due and thereby maintain the policy in full force under its original terms.
(b) The policyholder has a period of 10 days, or a longer period if specified by the insurer, from receipt of the notice within which to cancel the policy and demand a refund of any unearned premiums.
(c) If the policyholder fails to timely respond to the notice, the insurer shall cancel the policy and return any unearned premium to the insured. The date on which the policy will be canceled shall be stated in the notice and shall in no case be less than 14 days after the date of the notice.
(4) This section shall not be construed to limit insurers’ rights to cancel in accordance with applicable provisions of the insurance code.

§ 627.7282, Fla. Stat. (emphasis added).

As he did in the proceedings below, Appellant concedes that if this statute does not apply to the renewal of his policy, NHIC is entitled to summary judgment. Appellant also concedes that NHIC did not fail in its obligations pursuant to section 627.728 relating to notices of cancellation; rather, he argues that NHIC failed to provide the “three option letter” required by section 627.7282(1)(a)-(c) when an insured has been charged an improper premium pursuant to the insurer’s rate filings and Florida law. In so arguing, Appellant relies on Sotomayor v. Seminole Casualty Insurance Company, 650 So.2d 663, 664 (Fla. 5th DCA 1995), in which the court held that an insurer’s right to cancel a policy does not void its obligation to comply with the notice provision in section 627.7282(2).

To determine whether section 627.7282 applies to insurance policy renewals or amendments, and not just applications for coverage, “[t]he plain meaning of the statute is ... the starting point.” GTC, Inc. v. Edgar, 967 So.2d 781, 785 (Fla.2007). “Thus, if the meaning of the statute is clear then this Court’s task goes no further than applying the plain language of the statute.” Id.

Here, section 627.7282(1) plainly and unambiguously states that it is applied when an insured has been charged an incorrect premium “that is incorrect for the coverage set forth in the insurance application .... ” § 627.7282(1), Fla. Stat. (emphasis added). We think the term “application” is unambiguous. An application in the context of insurance is, by definition, a request for coverage; although the terms of coverage may change, along with the premium, it does not negate this fact. Had the Legislature intended for this statute to also apply to policy renewals or amendments, it could easily have stated as much. Indeed, the Legislature has enacted two statutes that specifically address renewals. See § 627.7277; § 627.728 (defining “renewal” as “the issuance and delivery by an insurer of a policy superseding at the end of the policy period a policy previously issued and delivered by the same insurer, or the issuance and delivery of a certificate or notice extending the term of a policy beyond its policy period or term”). Thus, it is clear that there is no application process contemplated when a policy is renewed.

Further support for our analysis is found in Florida Administrative Code Rule 690-167.002, which provides guidelines for insurers with respect to sections 627.728 and 627.7281. Rule 690-167.002(1) provides, in pertinent part:

Pursuant to the provisions of Section 627.728, F.S., any insurer which issues a policy of private passenger motor vehicle insurance in this state shall be required to complete the underwriting of the policy and make a final determination of the correct premium for the coverage set forth in the insurance application within 60 days after the effectuation of coverage.

(Emphasis added.) Subsection (2) of the rule provides, in relevant part:

In the event that an insurer issues a policy of private passenger motor vehicle insurance and timely determines that the policyholder has been charged an incorrect premium, the insurer shall provide notice to the policyholder as provided in Section 627.7282, F.S.

It is clear from reading these provisions that section 627.7282 applies to situations when an insurer sets an incorrect premium at the time an insured applies for insurance coverage. It is at this time that an insurer is provided with all of the pertinent information it needs to make its premium calculation, whereas a renewal is little more than an extension of the original contract via payment of the premium. Furthermore, as illustrated in this case, an insured does not complete another application when amending the policy information to reflect, as here, a change of address. That the premium may rise or fall while the coverage is in effect due to changes in circumstances does not mean that there has been a new application for insurance.

Nor does Appellant’s reliance on Soto-mayor offer him any assistance. That case arose out of an insurer’s cancellation of a policy due to Sotomayor’s failure to pay an additional premium. Sotomayor, 650 So.2d at 664. The insurer moved for summary judgment, stating that it received Sotomayor’s premium payment from an independent agent but that, “[u]pon review of Sotomayor’s insurance application, [the insurer] found there had been a mistake in the calculation of the premium.” Id. (emphasis added). The issue was whether the insurer complied with the cancellation requirements set forth in section 627.7282. The insurer argued that the statute did not apply because it had “an absolute right to cancel the policy for any reason within sixty days after issuance pursuant to section 627.728(2)(c), Florida Statutes.” Id. The Fifth District disagreed, holding “Even if this unfettered right to cancel exists, it does not avoid the obligation on [the insurer’s] part to comply with the appropriate notice provision, which in this case is section 627.7282(1), and its own insurance contract.” Id. (citation omitted). Significantly, the situation in Sotomayor involved an initial application for insurance, not a policy renewal.

As noted, Appellant concedes, and we agree, that NHIC’s cancellation was otherwise effective, pursuant to section 627.728. Furthermore, subsection (4) of section 627.7282 provides that subsection (1) does not limit an insurer’s right to cancel a policy in accordance with other provisions of the insurance code. Thus, because we are constrained by the statute’s plain language, NHIC was entitled to summary judgment on the issue qf whether it properly and effectively cancelled the subject insurance policy.

We note that although the trial court did not use this rationale in granting summary judgment, this does not affect our decision. See D.R. Horton, Inc.-Jacksonville v. Peyton, 959 So.2d 390, 397-98 (Fla. 1st DCA 2007) (holding under “tipsy coachman” rule, when trial court reaches right result, but for wrong reasons, that decision will be upheld on appeal if there is any basis in the record which would support judgment).

Conclusion

For the foregoing reasons, we AFFIRM the trial court’s entry of summary judgment.

HAWKES, J., Concurs.

WOLF, J., Dissents with Written Opinion.

WOLF, J.,

Dissenting.

The trial court incorrectly entered a summary judgment in favor of appellee NHIC because (1) issues of genuine material fact exist concerning whether NHIC charged an incorrect premium, thereby requiring NHIC to follow the procedures outlined in section 627.7282, Florida Statutes (“the incorrect premium statute”); and (2) the “incorrect premium statute” is applicable in all situations where an incorrect premium is charged based on an amendment to material information in the original insurance application, thereby necessitating a premium be readjusted in accordance with the insurer’s rate filing.

Thus, it is unnecessary for this court to reach the broader issue determined by the majority to be dispositive: whether the “incorrect premium statute” applies to renewals. The vast majority of renewals do not require amending material information in the original insurance application.

The following excerpt of an affidavit of Gerald Allen Smith, appellant’s father, contains critical information pertinent to the issue before this court:

2. In or about August 2007, I obtained insurance on behalf of my son, Gerald Austin Smith, on a Ford F-150 truck. I obtained this insurance with New Hampshire Indemnity Company, through the A -I- American Casualty Insurance Company, Inc. agency.
4. The policy obtained in August 2007 was valid for six months. Prior to the expiration of that policy, I notified Holly Markey that the named insured, my son, Gerald Austin Smith, had moved to Jacksonville, Florida from Gainesville (where the policy had originally been written). I was advised by Ms. Markey that this might impact the premium for the new policy and that I should wait until the change took effect before paying the premium. I notified Ms. Mar-key of the address change on January 25, 2008. She confirmed the change January 28, 2008. Attached hereto as Exhibit A is a notice from New Hampshire indicating the change was effective January 29, 2008.
5. On February 6, 2008, I visited the offices of A-I- American Casualty Insurance, Inc., in Clermont, Florida and personally spoke with Holly P. Markey. Ms. Markey logged on to a computer system and verified the amount of premium, as well as the address change. The address change was in the computer and the premium due was indicated as $926.14. I paid the full amount of the premium based upon Ms. Markey’s representations that was the correct premium.
6. At all times during the life of this policy, I paid the premium and dealt with Ms. Markey.
7. I had no notice that there was purportedly additional premium due and, had I known of the substantial increase of the premium, I would have sought other insurance.
9. At all material times while I dealt with Holly Markey, it was my understanding that she was an authorized representative of New Hampshire Indemnity Company and/or its parent company, American Insurance Group, due to the fact that she had in her possession applications for insurance bearing the name of AIG and/or New Hampshire Indemnity; she bound coverage on the part of New Hampshire Indemnity and she collected premiums on behalf of New Hampshire Indemnity.

The above facts, if true, demonstrate that a representative of NHIC charged and accepted insufficient funds from appellant’s father as full payment of the premium for the coverage appellant was seeking. Thus, contrary to the trial court’s ruling, genuine issues of material fact exist as to whether “a policyholder has been charged a premium that is incorrect....” § 627.7282(1), Fla. Stat.

Instead of reaching the factual issues, the majority would affirm as a matter of law based on its determination that section 627.7282 only applies to situations in which an insurer initially sets an incorrect premium at the time an insured makes his initial application for insurance coverage, and thus, does not apply to renewals or amendments. This analysis is incorrect for several reasons.

First, the majority bases their opinion on a purported plain reading of the statute, yet they effectively rewrite the statute to bolster their conclusion that section 627.7282 does not apply. Specifically, they impliedly insert the word “initial” before the word “application,” assuming the statute reads, “charged a premium that is incorrect for the coverage set forth in the initial insurance application.” The statute itself does not contain the term, and its lack of the use of the term renders the statute ambiguous as to its application to requests for amended coverage beyond the initial period.

Second, the ambiguity of the statute requires this court to consider the legislative purpose behind its enactment, and that purpose is not furthered by the majority’s interpretation. See Samples v. Fla. Birth-Related, Neurological, 40 So.3d 18, 22 (Fla. 5th DCA 2010) (reiterating when a statute is ambiguous, a court should look to legislative intent). In enacting section 627.7282, the Legislature was attempting to protect consumers from a growing practice among insurance companies of misquoting a premium and later cancelling the policy after the premium was exhausted prior to the policy’s end date. Ch. 86-252, Laws of Fla. (1986). In cancelling this way, insurers were keeping all premiums paid and not offering consumers a refund or a chance to seek coverage from another insurer. Id. The Legislature was concerned consumers were agreeing to coverage based on misquoted premiums and were then left without the option to shop around in light of the new quote and seek return of the premium. As illustrated by the underlying case, the same evil sought to be remedied by the Legislature occurs in policy periods beyond the initial period. Here, appellant’s father was charged a premium, paid it and left the office believing his son was covered. When NHIC determined a mistake had occurred, it kept the entire premium paid but cancelled the policy prior to the agreed-upon end date. This situation is the exact evil sought to be remedied by the statute and it applies equally to all periods of coverage, not just the initial period. Thus, the majority’s implicit insertion of the word “initial” into the stattite defeats the clear legislative intent.

Third, contrary to the majority’s opinion, the' triggering event under the incorrect premium statute is not connected to whether the'policy is being renewed. Instead, the trigger for the requirement to send the incorrect premium letter is the quoting of an incorrect premium based on a change or amendment to the information provided in the original application.

Specifically, the statute requires notification to a consumer when an incorrect premium is charged “for the coverage set forth in the insurance application.” § 627.7282(1), Fla. Stat. Here, based on the policy in the record, appellant was under a continued duty to inform NHIC of any “material” changes to the information provided in the original application. Further, the policy specifically noted a change to an address constituted a material change that may affect premium costs. In fact, at oral argument, appellee acknowledged the change of address amounted to a change to the information contained in the original application which would necessitate an alteration in premium (effectively constituting a new or amended application for insurance coverage). Thus, in order for NHIC to enforce its continuing re-' quirement for material disclosure, NHIC relies on the consumer’s agreement to amend the information given in the original application when necessary. It seems unfair to place this continuing duty on the consumer to amend an application, yet forgive NHIC the continuing requirement to provide proper notice of changes to quoted premium based on those amendments.

Last, the term “renewal” has no bearing on the analysis of the statute. A renewal of an insurance policy is a contract based on the same conditions as were contained in the original policy. See U.S. Fire Ins. Co. v. S. Sec. Life Ins. Co., 710 So.2d 130, 132 (Fla. 5th DCA 1998) (holding a “nonre-newal” is a policy with material changes in terms and conditions from the prior policy, and the insurer’s decision to eliminate slander and libel coverage amounted to a nonrenewal) (citing Hartford Accident & Indemnity Co. v. Sheffield, 375 So.2d 598 (Fla. 3d DCA 1979)). Because this case involves an amendment to a contract which changes a material condition of the original policy, it does not involve a renewal. For the foregoing reasons, the summary judgment was entered in error and the case should be remanded to the trial court for further proceedings.

      . Appellees Devens, State Farm, and Harnage are not involved in this appeal.

      . The chapter law enacting section 627.7282 titled the statute as follows:
      An act relating to insurance; ..., providing for a procedure with respect to private passenger motor vehicle insurance policyholders who have been charged an incorrect premium relating to the assessment of additional premiums; providing an effective date.
      Ch. 86-252, Laws of Fla. In addition, the House of Representative and Senate Committee on Health Care and Insurance Staff Analysis and Economic Impact Statements provided as a purpose for the statute:
      A. Present Situation:
      As a result of insurers re-rating motor vehicle insurance policies and discovering inaccurate or incomplete information in an application for insurance, payment of additional premiums have been required by insurers for coverage for the period established in the insurance application. Currently, it is the practice of some insurers to shorten the policy period to correspond to the amount of the initial premium paid if the policyholder does not respond to a demand for additional premiums. This has created gaps in coverage for some policyholders who, for various reasons, were not aware of the request for addition[al] premiums.
      B. Effect of Proposed Changes:
      Senate Bill 768 requires that upon a determination by an insurer that a policyholder has been charged a premium that is inadequate for the coverage set forth in the insurance application, the insurer must immediately notify and inform the policyholder of the additional premium due to the insurer. The policyholder then has 10 days, or longer if specified by the insurer, in which to either pay the additional premium or cancel the policy and demand a refund of the unearned premium. If the policyholder fails to respond within the allotted time, the insurer must cancel the policy, effective no earlier than 14 days after the date of the notice, and return any unearned premium to the insured. The amount of the unearned premium shall be calculated on a pro rata basis. The bill thereby prohibits private passenger automobile insurers from unilaterally altering or modifying the expiration date of a policy due to non-payment of a demand for additional premium, except as provided above.


author: MARSTILLER, J. WOLF, J.,

text:
    Robert HEEKIN, Petitioner, v. Peter DEL COL, John M. Marchi, Individually, Center Avenue Partnership, a Florida General Partnership, and Roy B. Simpson, an Individual, Respondents.
    No. 1D10-4565.
    District Court of Appeal of Florida, First District.
    March 16, 2011.
    Rehearing Denied April 27, 2011.

      Brian J. Lee of Schuler & Lee, P.A., Jacksonville, for Petitioner.
    James W. Middleton of Rogers Towers, P.A., Jacksonville, for Respondents.
   MARSTILLER, J.

Robert Heekin seeks certiorari review of a discovery order requiring him to furnish Respondents certain personal financial information. Mr. Heekin was ordered to deposit $250,000 into the court registry after the court granted summary judgment to Respondents on their breach of fiduciary duty claim. The nonfinal order entered June 8, 2009, gave Mr. Heekin 30 days to make payment. He did not do so and, as a result, Respondents moved to enforce the order and sought discovery of information concerning Mr. Heekin’s finances. He objected to the discovery requests, and at the hearing on Respondents’ motion to compel production of financial information and answers to interrogatoriés, the court'advised Mr. Heekin that he may be held in contempt. Mr. Heekin, through counsel, claimed inability to pay the $250,000.

Certiorari review of an order compelling discovery is appropriate when the order departs from the essential requirements of law, causing irreparable harm that cannot be remedied on plenary appeal. See Commonwealth Land Title Ins. Co. v. Higgins, 975 So.2d 1169, 1176 (Fla. 1st DCA 2008). “[T]he reviewing court must first conduct a jurisdictional analysis to determine whether the petitioner has made a prima facie showing of the element of irreparable harm.” Id. See Taylor v. TGI Friday’s, Inc., 16 So.3d 312, 313 (Fla. 1st DCA 2009). We deny the petition for writ of certiorari because Mr. Heekin has shown no irreparable harm from the discovery order.

In support of his petition, Mr. Heekin asserts that disclosure of personal information ipso facto causes irreparable harm. Indeed, “ ‘disclosure of personal financial information may cause irreparable harm to a person forced to disclose it, in a case in which the information is not relevant.’” Friedman v. Heart Inst. of Port St. Lucie, Inc., 863 So.2d 189, 194 (Fla.2003) (emphasis added). (quoting Straub v. Matte, 805 So.2d 99, 100 (Fla. 4th DCA 2002). Here, Mr. Heekin’s financial information is relevant because he is under a court order to pay a substantial sum into the court registry, the court is considering holding him in contempt for disobeying the order, and he claims he is unable to pay the amount. Mr. Heekin’s ability to comply with the earlier order is squarely at issue, and the court needs information about his income, assets and liabilities to determine whether contempt is appropriate. Mr. Heekin argues his financial information is not relevant because Respondents have not yet obtained a money judgment against him (in which case he agrees the information would be relevant to enforce the judgment) and because the order granting summary judgment and directing him to deposit $250,000 into the court registry is “improper on its face.” But he cannot seek to invalidate that order in this appellate proceeding. Although final judgment is yet to be entered in the underlying breach of fiduciary duty action, the order granting summary judgment is still in force — an order with which Mr. Heekin has failed to comply, thereby making relevant his financial standing, and thus, his financial information.

An “order compelling production of relevant financial information cannot be the object of a writ of certiorari because there is no irreparable harm.” In re Estate of Sauey, 869 So.2d 664, 665 (Fla. 4th DCA 2004). Having failed to establish irreparable harm resulting from the discovery order, Mr. Heekin is not entitled to certiorari review of the order.

DENIED.

HAWKES, J„ concur.

WOLF, J., Concurs With Opinion.

WOLF, J.,

Concurring.

I concur in the decision to deny the petition for writ of certiorari because there has been no demonstration of a departure from the essential requirements of law.

A petitioner seeking certiorari relief from an order granting discovery is required to demonstrate two circumstances: 1) the order constituted a departure from the essential requirements of law, and 2) production of the material will cause irreparable harm or injury that cannot be remedied on appeal. Commonwealth Land Title Ins. Co. v. Higgins, 975 So.2d 1169 (Fla. 1st DCA 2008).

The element of departure from the essential requirements of law concerns an examination of whether a legal error has occurred and the seriousness of the error. Wolf Creek Land Dev., Inc. v. Masterpiece Homes, Inc., 942 So.2d 995 (Fla. 5th DCA 2006). Mere legal error is insufficient to constitute a departure from the essential requirements of law but the error must amount “to ‘a violation of a clearly established principle of law and resulting in a miscarriage of justice.’ ” Byrd v. S. Prestressed Concrete, Inc., 928 So.2d 455, 457 (Fla. 1st DCA 2006) (quoting Combs v. State, 436 So.2d 93, 96 (Fla.1983)). Examination of the trial court’s legal decision in the instant case regarding the relevancy of the information sought concerns this first prong. Because I find no error occurred, much less a departure from the essential requirements of law, I concur in the decision to deny the petition.

The second prong concerning irreparable harm has nothing to do with the correctness of the trial court’s legal determination but rather the nature of the harm caused by the alleged erroneous legal decision. In the context of certiorari review of an order granting discovery, one must look at the legal reason asserted for not providing the information as well as the exact nature of the information sought to be protected.

For instance, irreparable harm may be demonstrated where it is alleged that the order compelling discovery involves the piercing of an evidentiary privilege. See Fla. E. Coast Ry. L.L.C. v. Jones, 847 So.2d 1118 (Fla. 1st DCA 2003) (discussing work product privilege); Cruz-Govin v. Torres, 29 So.3d 393 (Fla. 3d DCA 2010) (discussing medical privilege).

In the instant case, the asserted legal reason for denying discovery is relevance. The legal assertion that material is irrelevant standing alone does not demonstrate irreparable harm. Allstate Ins. Co. v. Langston, 655 So.2d 91 (Fla.1995). As stated by the majority, however, an inappropriate determination of relevance may cause irreparable harm depending on the information sought. Thus, inappropriate disclosure of irrelevant personal financial information may cause irreparable harm. Friedman v. Heart Inst, of Port St. Lucie, Inc., 863 So.2d 189, 194 (Fla.2003).

In the instant case, Mr. Heekin sought to protect personal financial information. If there had been a demonstration of a departure of essential requirements of law, the prong of irreparable harm would have been met. See Spry v. Prof'l Employer Plans, 985 So.2d 1187 (Fla. 1st DCA 2008) (granting certiorari relief from disclosure of irrelevant financial information and recognizing the Florida constitutional protections from inappropriate release of such information). The majority’s focus on the correctness of the trial court’s ruling has nothing to do with the prong concerning irreparable harm.

       We previously dismissed as premature Mr. Heekin's appeal of that nonfinal order. See Heekin v. Del Col, 38 So.3d 157 (Fla. 1st DCA 2010).