author: PADOVANO, J. SCHWARTZ, ALAN R., Senior Judge,

text:
    Kaynan FITCHNER, as Personal Representative of the Estate of Chase Fitchner, Deceased, Appellant, v. LIFESOUTH COMMUNITY BLOOD CENTERS, INC., a Florida corporation, Appellee.
    No. 1D10-2019.
    District Court of Appeal of Florida, First District.
    April 13, 2012.
    Rehearing Denied May 30, 2012.

      M. Stephen Turner, David K. Miller, and Ramona H. Thomas of Broad and Cassel, Tallahassee; Dean R. LeBoeuf and Rhonda S. Bennett of Brooks, LeBoeuf, Bennett, Foster & Gwartney, P.A., Tallahassee, for Appellant.
    Robert E. Biasotti of Carlton Fields, P.A., St. Petersburg, and Christine Davis Graves of Carlton Fields, P.A., Tallahassee, for Appellee.
   PADOVANO, J.

This is a wrongful death case. The jury returned a verdict in favor of the plaintiff, but this court reversed the judgment entered on the verdict in a previous appeal by the defendant. The proceeding on remand was concluded in the trial court by an order dismissing the plaintiffs complaint. The basis for the dismissal was that the plaintiff had failed to serve notice of the suit under the medical malpractice statute. The case is now back before the court on the plaintiffs appeal.

The question in this appeal is whether a statutory amendment including blood banks within the class of health care providers that are protected by the presuit screening requirements can be applied retroactively. We hold that it cannot. The amendment alters the substantive rights of the parties in that it adds a condition that can operate to bar a cause of action entirely. Because the amendment was not lawfully applicable in this case, we reverse the order dismissing the complaint and remand the case for a trial on the merits of the plaintiffs claim of negligence.

On September 22, 2002, while a patient at the Shands Hospital in Gainesville, then seven-year-old Chase Fitchner received blood provided to the hospital by Life-South Community Blood Centers. Chase became sick and several weeks later he was diagnosed as having West Nile Virus Encephalitis. The Centers for Disease Control investigated the matter with Life-South’s cooperation and, as a result of the investigation, the infection was traced to the blood the hospital had acquired from LifeSouth.

Chase’s parents, Ross and Kaynan Fitchner, retained a lawyer. On March 2, 2004, the lawyer sent a certified letter informing LifeSouth that he was representing the Fitchners in connection with the injury Chase had sustained when he contracted the virus from the blood Life-South had provided. In this letter, the lawyer requested copies of LifeSouth’s policies and procedures for screening blood donors, documents supplied to the Centers for Disease Control in the investigation, and documents relating to the infected donor.

LifeSouth provided written acknowledgment of receipt of the letter and furnished copies of its investigation report and its procedures for screening blood donors. However, LifeSouth did not reveal critical information about its donor, whose identity is confidential by law, or about its screening of that donor. LifeSouth did not disclose that the donor did not understand English or that the LifeSouth screener did not speak the donor’s language.

The Fitchners filed suit against Life-South on April 23, 2004. They sought damages for the injuries Chase had sustained as a result of LifeSouth’s negligence in failing to ensure the safety of the blood he had received. LifeSouth moved to dismiss the complaint on the ground that the Fitchners had not sent a presuit notice of intent to initiate litigation for medical negligence. In support of its motion, Life-South relied on the 2003 amendment to section 766.202(4) Florida Statutes, which added blood banks to the class of potential defendants who are entitled to the procedural safeguards afforded by the statute.

The Fitchners opposed the motion to dismiss. They argued that LifeSouth had merely provided blood to the hospital and that the act of supplying the blood was not the equivalent of medical care or treatment. Thus, according to the Fitchners, the medical malpractice statute did not apply, and the failure to comply with statutory presuit notice requirements in the statute was not a proper basis for dismissal.

The trial court agreed with the Fitch-ners. The court ruled that LifeSouth is a health care provider, as defined in section 766.202(4), but it denied LifeSouth’s motion to dismiss the complaint, concluding that a blood recipient’s claim against a blood bank was not considered a claim for medical malpractice under section 766.102(1) Florida Statutes (2008).

Chase died on July 8, 2004, and his mother, Kaynan, was appointed as the personal representative of his estate. The complaint was amended to reflect that Kaynan was serving as the plaintiff in her representative capacity and to assert a cause of action for wrongful death. The allegations of negligence were the same as those in the original complaint.

The case was tried before a jury in June 2006, and the jury found LifeSouth liable to the estate for its negligence in failing to properly screen the blood. After hearing post-trial motions, the trial court entered a final judgment on the verdict in the amount of $8,029,425.00. LifeSouth then filed the first appeal to this court.

The issue presented in the appeal was whether a blood bank was a health care provider and, if so, whether the act of supplying blood constituted a medical service under the statute as amended in 2008. The court answered these questions in the affirmative and therefore concluded that the trial judge had erred in denying Life-South’s motion to dismiss the complaint for noncompliance with presuit notice requirements. See LifeSouth Community Blood Centers, Inc. v. Fitchner, 970 So.2d 379, 381-84 (Fla. 1st DCA 2007). The court reversed the judgment for the Fitchners and remanded the case with instructions to grant the motion to dismiss. However, the opinion did not expressly direct the trial court to dismiss the action with prejudice or to enter judgment for LifeSouth. See LifeSouth, 970 So.2d at 384.

The Fitchners moved for clarification as to whether this court’s decision intended the dismissal to be with or without prejudice and for certification of a question of great public importance to the Florida Supreme Court. The motion for clarification was denied, but the court certified the question it had decided in the appeal as a question of great public importance. See LifeSouth at 385. The Florida Supreme Court initially accepted jurisdiction but later declined to hear the case. Fitchner v. Lifesouth Community Blood Centers, Inc., 1 So.3d 172 (Fla.2009).

A dispute arose in the trial court regarding the permissible scope of the proceeding on remand. The closing line of the opinion in the prior appeal states that the order was reversed and that the case was remanded “for the trial court to enter an order granting appellant’s motion to dismiss.” LifeSouth, 970 So.2d at 384. Life-South contended that this direction left nothing for the trial court to do but enter a judgment in its favor. In contrast, the Fitchners maintained that the effect of the reversal was to return the case to the posture it would have assumed had the trial court properly granted the motion to dismiss the complaint. They argued that if the complaint had been dismissed, they would have been afforded an opportunity to amend and that the situation was not different merely because the appellate court ordered the dismissal.

The trial court correctly interpreted the mandate to allow further proceedings on the Fitchners’ claim. The Fitchners then attempted to serve a notice that would comply with the statutory requirements, but LifeSouth argued that the notice was untimely. Additionally, the Fitchners argued in the alternative that the notice should be excused, because the confidentiality rules in place at LifeSouth prevented them from obtaining the necessary information about the donor, and that the original letter their lawyer sent to Life-South on March 2, 2004, contains enough information to qualify as a notice of suit under the medical malpractice statute.

These arguments were resolved against the Fitchners. The trial court acknowledged that it would have been difficult or impossible for the Fitchners to discover the facts on which liability was based, given the confidentiality of blood donor records. The court recognized the equitable argument they had raised on this point but concluded, nonetheless, that it could find no authority to excuse the presuit notice requirements on a finding of impossibility of performance of a reasonable presuit investigation. Accordingly, the trial court dismissed the complaint with prejudice.

The Fitchners, who had by then obtained new counsel, moved for rehearing. Among other points made in the motion for rehearing, they argued that the 2003 amendment to the medical malpractice statute could not be applied to a cause of action accruing before the effective date of the statute. Because the cause of action in this case arose in the fall of 2002, they argued, the action could proceed as an ordinary negligence claim without the need for a notice under the medical malpractice statute. LifeSouth opposed the motion. The trial court held a hearing and considered oral arguments on the points raised in the motion for rehearing and response. Following the hearing, the court entered an order denying the motion. In the order, the judge stated that the only issue meriting consideration was whether the presuit notice requirement of the medical malpractice statute is unconstitutional as applied to the Fitchners. However, the court explained that this was not a proper basis for rehearing because it had not been raised before, and it was not a matter that the court had “overlooked or misapprehended.” The plaintiff then filed a timely appeal from the final order dismissing the complaint. Several issues have been raised and argued in the appeal, but only one merits consideration: whether the 2003 amendment to the medical malpractice statute can be applied retroactively. If the statute applies to the Fitchners’ cause of action, they were required to give a timely presuit notice of the action, and the trial court was correct in dismissing their complaint for failure to comply with the notice requirement. On the other hand, if the statute cannot be applied retroactively, the order dismissing the complaint must be reversed, and the case may proceed to trial as an ordinary negligence case.

LifeSouth contends that the dispute over the application of the statute is not properly before the court, and it advances several arguments in support of this contention. One of these arguments is that the potential application of the statute was resolved by the previous decision of the court and that it is now barred by the doctrine of the law of the case. Another is that the Fitch-ners had no right to raise the issue in the trial court, because it is improper to allow an amendment to a complaint on remand from a decision of an appellate court. The final argument is that the trial court correctly declined to consider the merits of the issue, because it was raised for the first time in a motion for rehearing. These arguments do not persuade us that it is no longer appropriate to decide whether the statute can be applied retroactively.

The doctrine of the law of the case requires that questions of law decided in an appeal must govern the case through all subsequent stages of the proceeding. See Greene v. Massey, 384 So.2d 24, 28 (Fla.1980). When an appellate court decides a point of law, that point is no longer open for debate on remand to the trial court and, with limited exceptions, it is no longer open for debate in a subsequent appeal. See Strazzulla v. Hendrick, 177 So.2d 1, 3 (Fla.1965). It follows from these general statements of the rule that the doctrine of the law of the case can be applied only to a point of law that was actually decided on appeal. It does not bar consideration of a point merely because it could have been presented and decided.

As the supreme court stated in U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061, 1063 (Fla.1983), “[t]he doctrine of law of the case is limited to rulings on questions of law actually presented and considered on a former appeal.” The defendant in that case contested the amount of punitive damages in one appeal and then argued in a subsequent appeal that the trial court had incorrectly instructed the jury on the issue of liability for punitive damages. The plaintiff maintained that the jury instruction issue was barred by the doctrine of the law of the case because it could have been raised in the earlier appeal. However, the supreme court squarely rejected that argument and decided the issue on the merits. The court held that the doctrine of the law of the case did not preclude review of the jury instruction issue merely because the defendant had failed to challenge the instruction in the prior appeal. Id. at 1065.

More recently, in Florida Department of Transportation v. Juliano, 801 So.2d 101 (Fla.2001), the supreme court reaffirmed the principle that an issue is not foreclosed by the doctrine of the law of the case merely because it could have been presented in an earlier appeal. Citing its earlier decision in U.S. Concrete, the court in Ju-liano emphasized that the doctrine is limited to issues of law that were “actually presented and considered” in a previous appeal. Juliano, 801 So.2d at 106. The court also noted that a corollary of this principle is that “a lower court is not precluded from passing on issues that ‘have not necessarily been determined’ ” in an earlier appeal in the same case. Id. (quoting Greene, 384 So.2d at 27). Accord Delta Property Management v. Profile Investments, Inc., 2012 WL 739193 (Fla. March 8, 2012).

The doctrine of the law of the case does not foreclose consideration of the retroactive applicability issue that is now before the court, because that issue has not been presented or decided on appeal. The previous appeal to this court involved a different point of law: whether the act of providing blood amounts to a medical service under the 2003 version of the statute. As we explained in the opinion, this was a question of “statutory interpretation.” LifeSouth, 970 So.2d at 381. That was the issue presented on appeal and that was the issue this court decided. The court was not asked to decide whether the statute could be applied retroactively, and the court did not venture an opinion on that point.

We acknowledge that the decision of this court in the prior appeal would foreclose an argument that providing blood is not a medical service as defined in the 2003 amendment to the statute. But that does not resolve the broader issue of whether the Fitchners can assert a claim against the blood bank in this case. We concluded that the complaint should have been dismissed and we remanded the case to the trial court with instructions to dismiss. The logical effect of the remand was to open the case once again for the presentation of other claims and defenses.

From a procedural standpoint, this case is identical to the case the supreme court considered in Wells Fargo Armored Services Corp. v. Sunshine Security and Detective Agency, Inc., 575 So.2d 179 (Fla.1991). There, the district court of appeal had reversed a judgment for the plaintiff on the ground that the complaint failed to state a cause of action. On remand, the plaintiff sought to amend the complaint, but the amended complaint was dismissed. The district court held that the new issues the plaintiff attempted to raise in the amended complaint were barred by the doctrine of the law of the case. The supreme court reversed the district court on the ground that the law of the case did not bar consideration of the new theories asserted in the amended complaint. As the supreme court explained, “the law-of-the-case doctrine was meant to apply to matters litigated to finality, not to matters that remain essentially unresolved due to the erroneous ruling of a lower court.” Id. at 180.

In the present case, as in Wells Fargo, the effect of the previous appeal was not to decide the case, but rather to restore it to the pleading stage. The doctrine of the law of the case settles the issue of whether providing blood is a medical service under the 2003 amendment to the statute, but the parties are otherwise free to amend their pleadings to assert new claims and defenses.

When an appellate court holds that the trial court should have dismissed the complaint, the effect is precisely the same as it would have been had the trial court dismissed the complaint in the first instance. It would be illogical to hold that, if the trial judge dismisses a complaint for failure to state a cause of action, the plaintiff can amend to state new theories, but future amendments are barred by the doctrine of the law of the case if an appellate court directs the trial court to dismiss the complaint. The effect of the dismissal is the same in either case.

We are aware of the general rule prohibiting a party from amending a complaint on remand, but that rule was designed to prevent further litigation in a case that has been finally decided. It does not apply if the appellate court has reversed a decision made at an interlocutory stage of the trial court proceeding at a time when the losing party would have been entitled to amend. The distinction is aptly illustrated by the opinion in Dober v. Worrell, 401 So.2d 1322 (Fla.1981). In that case, the trial court granted summary judgment for the defendant on the ground that the statute of limitations had expired. The district court affirmed but remanded the case to the trial court to allow the defendant to assert a new theory that concealment of the negligence effectively tolled the running of the statute. The supreme court concluded that the plaintiff should not have been allowed to amend the complaint on remand and it reversed that aspect of the district court’s decision. Id. at 1323-24.

We would agree that the principle expressed by the court in Dober would apply here if the trial court had initially granted LifeSouth’s motion to dismiss the complaint, if the Fitchners had then declined an opportunity to amend, if the trial court had then entered a final judgment for Life-south, and if this court had affirmed the judgment on appeal. But the rule has no application here, because the Fitchners were the prevailing party in the trial court. The trial court denied LifeSouth’s motion to dismiss the complaint. That decision has now been reversed, but the effect of the decision is to hold that the complaint does not state a cause of action, and the effect of the remand is to restore the case to the position it would have assumed had it been dismissed in the trial court.

The Wells Fargo decision is instructive on this point, as well. The court not only rejected the defendant’s “law of the case” argument, as we stated, but also expressly held that the plaintiff had a right to amend the complaint on remand. The court in Wells Fargo emphasized that the right to amend a complaint should be freely allowed whether the complaint is dismissed initially by the trial court or it is dismissed later at the direction of an appellate court. The right to amend is the same in either case. As the court explained, the effect of the appellate decision directing the trial court to dismiss the complaint for failure to state a cause of action “was to return this proceeding to the lower court as though the erroneous ruling never had been made, [citation omitted] In other words, the trial court was obliged to treat this case as though, without regard to the intervening appeal, a complaint had been filed that failed to state a cause of action.” Wells Fargo, 575 So.2d at 180.

We have no doubt that the right to amend a complaint on remand from a decision by an appellate court is a right that can be waived. However, the common feature of the cases that turn on the issue of waiver is that they involve an action that was construed as a knowing and intentional relinquishment of the right to assert the claim. For example, in Arky, Freed, Steams, Watson, Greer, Weaver & Harris, P.A. v. Bowmar Instrument Corp., 537 So.2d 561 (Fla.1988), the trial court directed a verdict for the defendants on a claim of legal malpractice but then permitted the plaintiff to amend the complaint to assert a different theory of malpractice. The supreme court held that it was error to allow the amendment, because the plaintiff was well aware of the defendant’s contention that the evidence of malpractice was beyond the scope of the original pleading yet the plaintiff elected to proceed to trial. Id. at 563.

The court denied an opportunity to amend in Nguyen v. Roth Realty, Inc., 550 So.2d 490 (Fla. 5th DCA 1989), for similar reasons. The plaintiff in that case prevailed in the trial court but ignored repeated warnings that there may have been a fundamental defect in the complaint. Id. at 491-92. In Nguyen, as in Arky Freed, the plaintiff made a conscious election to continue with litigation without addressing a dispositive issue raised and presented in the trial court by the opposing party prior to the judgment.

This case is in a very different posture. The Fitchners did not rely on a ruling of the trial court on a debated issue with the idea that they could revisit the issue should they lose on appeal. Unlike the plaintiffs in Arky Freed and Nguyen, they did not make an affirmative decision to stand pat in the face of a dispositive argument. The Fitchners had no reason to make a claim that the statute could not be applied retroactively, because the trial judge had determined that it did not apply to them in any event. To hold that a plaintiff in their situation must make every conceivable argument as a form of reversal insurance would promote a form of shotgun advocacy. This is not required under the law, nor is it a policy the courts should encourage.

Finally, we do not agree that the retroactivity argument is barred from further consideration because it was raised for the first time in a motion for rehearing. We agree that the trial judge has discretion to decline to consider a new argument on rehearing, but the trial judge in this case evidently believed that the court also lacked authority to consider the issue. In the order denying rehearing, the trial court stated that although the argument was “meritorious,” it could not be considered because it was not an argument the court had “overlooked” or “misapprehended.”

This is the standard that applies to a motion for rehearing of an appellate decision. Rule 9.330(a) of the Florida Rules of Appellate Procedure states in material part that the motion must “state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding.” This rule expressly limits the issues to those already presented, but no such limitation appears in the rule that applies in trial courts. Rule 1.530(a) of the Florida Rules of Civil Procedure provides that “[o]n a motion for rehearing of matters heard without a jury, including summary judgments, the court may open the judgment if one has been entered, take additional testimony, and enter a new judgment.”

It is clear from a comparison of the text of these two rules that the standard to be applied in trial courts is much broader than the one that applies on appeal. Rule 1.530 is not limited to a mistake the court has made. To the contrary, rehearing may be granted in an appropriate case to prevent an injustice that would be caused by an error or omission by one of the lawyers. In Fernandes v. Boisvert, 659 So.2d 412, 413 (Fla. 2d DCA 1995), for example, the appellate court held that the trial court abused its discretion by declining to consider an affidavit presented for the first time on rehearing. The affidavit did not contain any information that would qualify as newly discovered evidence, but it would have been sufficient to defeat a summary judgment had it been filed on time. Likewise, in AC Holdings 2006, Inc. v. McCarty, 985 So.2d 1123, 1126 (Fla. 3d DCA 2008), the appellate court held that the trial court had abused its discretion by declining to consider an affidavit filed for the first time on rehearing. The defendant retained new counsel after the court had entered summary judgment for the plaintiff, and the affidavit the lawyer filed on rehearing would have defeated the summary judgment, had it been filed on time.

We do not suggest that trial judges are required to consider new issues presented for the first time on rehearing. Our point is simply that they have the authority to hear new issues. In the present case, the proper exercise of discretion would have been to allow the argument on rehearing. The trial judge recognized that the retroactivity argument was meritorious. It is true that responsibility for the failure to present the argument earlier lies with the Fitchners, not the trial court, but the error was one that could have been corrected easily and inexpensively. The proceeding on remand was still in the pleading stage. It would have been a simple matter to “open the judgment,” as provided in rule 1.530(a), and then to allow the parties to present their claims and defenses on the merits.

If we were to conclude that the motion for rehearing was properly denied on the ground that the retroactivity argument was raised too late in the game, the effect of our decision would be to foreclose a negligence claim via a statute that does not apply to the case. And our justification for doing this would be that it was not the trial judge’s fault that the action was foreclosed by the wrong statute. This would be an unnecessary triumph of procedure over substance.

This brings us to the question presented on the merits of the appeal: whether the statute can be applied retroactively. The Fitchners’ cause of action for negligence arose in the fall of 2002, when they learned that Chase had contracted West Nile Virus from the contaminated blood provided by LifeSouth. When Chase died in 2004, the Fitchners amended the complaint to seek damages for wrongful death, but this did not alter the accrual date of the underlying claim that LifeSouth had been negligent in screening the blood. The statute was amended in 2008 and, as we concluded in our earlier opinion, it now includes the act of providing blood within the services that qualify as medical services. Given this sequence of events, LifeSouth would be entitled to a notice of suit under the medical negligence statute only if the 2003 amendment including blood banks can be applied retroactively.

The courts presume that a statute will apply prospectively only and that it will not apply to conduct occurring before the statute was enacted. Attempts to apply statutes retroactively to pre-en-actment conduct are generally looked upon with disfavor in the law. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208, 109 S.Ct. 468, 102 L.Ed.2d 493 (1988). The retroactive application of legislation runs contrary to one of the most basic functions of a statute: to give notice of the conduct the government seeks to regulate. As the Supreme Court stated in Eastern Enterprises v. Apfel, 524 U.S. 498, 532, 118 S.Ct. 2131, 141 L.Ed.2d 451 (1998), summarizing the entire body of the law on this point, “Retrospective laws are, indeed, generally unjust.” (quoting 2 J. Story, Commentaries on the Constitution § 1398 (5th ed. 1891)).

Whether a statute can be applied retroactively is a question that has two parts. First, the court must determine whether the statute itself expresses an intent that it be applied retroactively. If the statute does express such an intent, the court must then decide whether a retroactive application would be constitutional. See Old Port Cove Holdings, Inc. v. Old Port Cove Condo. Ass’n One, Inc., 986 So.2d 1279, 1284 (Fla.2008). The statute must pass both parts of this test to be applied retroactively.

To satisfy the first part of the test, the Legislature must have expressed its intention to apply the law retroactively in language that is “too clear and explicit to admit of reasonable doubt.” See Trustees of Tufts College v. Triple R. Ranch, Inc., 275 So.2d 521, 524 (Fla.1973); see also Foley v. Morris, 339 So.2d 215, 216-17 (Fla.1976). The part of the legislation that addresses the intended application of the 2003 amendment to the medical malpractice statute reads as follows:

It is the intent of the Legislature to apply the provisions of this act to prior medical incidents, to the extent such application is not prohibited by the State Constitution or Federal Constitution, except that the changes to chapter 766, Florida Statutes, shall apply only to any medical incident for which a notice of intent to initiate litigation is mailed on or after the effective date of this act.
Except as otherwise expressly provided in this act, this act shall take effect September 15, 2003.

Ch. 2003-416, §§ 86 & 87, Laws of Fla. These sections reveal an expectation on the part of the Legislature that the 2003 amendments will be applied retroactively, at least with respect to conduct that can be defined as a “prior medical incident.” Some of the changes made in 2003 would meet this definition.

For example, one of the changes the Legislature made in 2003 was to limit the amount of noneconomic damages that could be recovered against a health care provider. See id. at § 54. This change did not enlarge the class of defendants that would fall within the protection of the act. A doctor who is sued for malpractice would continue to have the same protections that were afforded under the presuit screening procedures in the prior law. The only difference would be that the non-economic damages flowing from the medical incident giving rise to the claim of liability would now be subject to the monetary limit set by the 2003 amendment.

It is readily apparent from the text of the statute that the Legislature intended for this part of the 2003 amendment to apply retroactively. See Raphael v. Shecter, 18 So.3d 1152, 1156 (Fla. 4th DCA 2009). By its terms, the new limitation on damages applies to “prior medical incidents.” This phrase appears to refer to prior medical incidents that would have been subject to the presuit screening requirements of the earlier statute. The intended effect of the amendment is to make the prior incident subject to the new cap on noneconomic damages.

The problem we have in this case, however, is that the part of the statute that includes blood banks cannot be said to refer back to a prior medical incident. Before the amendment, the action of a blood bank in providing contaminated blood was not considered to be a medical incident at all. Rather, it was treated as an act of ordinary negligence that would be subject to redress under the law of torts. The general statement in the law regarding retroactive applicability is clear, but we conclude from the text of the statute that the Legislature did not intend this statement to apply to a prior act that would not have been defined as a medical incident under the prior law.

If the Legislature had used a more general term like “prior act” or “prior act of negligence,” we could say that it meant to apply the statute as amended to the act of providing contaminated blood, even though such an act was not regarded as medical negligence before the amendment. However, the use of the phrase “prior medical incidents” leads us to conclude that the Legislature intended to make specific provisions of the new statute, like the cap on noneconomic damages, applicable to a medical incident that would have been protected under the more general provisions of the previous law.

In any event, we cannot say that the Legislature has clearly manifested an intent to apply the part of the statutes that pertains to blood banks retroactively. To arrive at such a conclusion, we would have to accept the notion that the phrase “prior medical incidents” was meant to include prior acts of negligence that were not defined as medical incidents under the prior law. This we cannot do. The very point of adding blood banks to the class of protected defendants in 2003 appears to have been to define their work as a medical service and therefore to protect them by the presuit screening procedures in the statute.

The absence of a clear expression of legislative intent would be enough, standing alone, to support our holding that the part of the 2008 amendment that includes blood banks does not apply retroactively. But apart from the issue of legislative intent, this change in the law could not be applied retroactively without impairing the plaintiffs constitutional rights. The amendment adds blood banks to the list of health care providers and in so doing it creates an entire new class of defendants who are entitled to the benefits of the medical malpractice statute. Additionally, as we concluded in our prior opinion, the statute provides for the first time that the act of supplying blood is a medical service, the responsibility for which cannot be determined in court unless the injured plaintiff has complied with the presuit notice requirement. These changes are not merely procedural. They affect the very nature of the cause of action that previously existed between a blood bank and an injured plaintiff.

As we previously stated, the court in Raphael concluded that the Legislature had intended to apply the cap on noneco-nomic damages retroactively. The court ultimately held, however, that a retroactive application of this part of the 2003 amendment would impair the vested rights of the plaintiff. Raphael, 18 So.3d at 1156-58. On this point, the court reasoned that the right to assert a cause of action vests when the cause of action accrues. Because the plaintiffs claim for medical negligence had accrued before the 2003 amendment, the court concluded that a retroactive application of the new provision setting a cap on noneconomic damages would impair the plaintiffs vested rights. Id. at 1158.

For the same reason, the Fitchners’ common law negligence claim cannot be impaired by the part of the 2003 amendment that adds blood banks to the class of medical providers that are protected by the presuit screening requirements of the statute. The argument in this case is even stronger than the one asserted in Raphael, in that the point at issue here involves an entirely new class of protected defendants. Prior to the amendment in 2003, a claim against a blood bank for supplying contaminated blood was not burdened by any of the requirements the Legislature had seen fit to impose for suits against doctors and other health care providers.

LifeSouth argues that a retroactive application of this part of the 2003 amendment would not impair the Fitchners’ vested rights, because the presuit notice requirement is procedural. However, the Florida Supreme Court has concluded on several occasions that presuit notice requirements are substantive in nature. For example, in Williams v. Campagnulo, 588 So.2d 982, 983 (Fla.1991), the supreme court rejected an argument that the pre-suit notice requirement in a previous version of the medical malpractice statute was procedural and that it therefore violated the court’s rulemaking authority. The court stated that “[t]he statute was intended to address a legitimate legislative policy decision relating to medical malpractice and established a process intended to promote the settlement of meritorious claims at an early stage without the necessity of a full adversarial proceed-ing_ We find that the statute is primarily substantive.” Id. The .court was considering the issue of procedure versus substance for a different reason, but the conclusion the court reached is no less applicable here.

In an analogous case, Menendez v. Progressive Express Insurance, 35 So.3d 873 (Fla.2010), the Florida Supreme Court held that the presuit notice requirement in the personal injury protection statute was substantive and not procedural. The court summarized its decision this way: “Because we conclude that the 2001 amendment creating the statutory presuit notice provisions constitutes a substantive change to the statute, we hold that it cannot be retroactively applied to insurance policies issued before the effective date of the amendment....” Id. at 875. This reasoning applies here, as well. Whether the presuit notice requirement is substantive or procedural does not turn on the subject matter of the statute. The nature of the requirement is the same for an insurance statute as it is for a medical negligence statute.

For these reasons we conclude that the Fitchners’ claim that the 2003 statute cannot be applied retroactively is not barred by the doctrine of the law of the case, that it was not waived merely because it had not been presented before, and that this court is not precluded from considering it. On the merits of the issue, we hold that the part of the 2003 amendment that includes blood banks within the protections of the medical malpractice statute cannot be applied retroactively to a cause of action accruing before the effective date of the amendment. Accordingly, we reverse the order of dismissal and remand the case for a trial on the merits of the claim of negligence.

Reversed and remanded.

CLARK, J., concurs.

SCHWARTZ, ALAN R., Senior Judge, Dissents.

SCHWARTZ, ALAN R., Senior Judge,

dissenting.

In LifeSouth Community Blood Centers, Inc. v. Fitchner, 970 So.2d 379 (Fla. 1st DCA 2007), review granted, 982 So.2d 1178 (Fla.2008), appeal dismissed, 1 So.3d 172 (Fla.2009) (Fitchner I), this Court squarely held that this plaintiff could not maintain this action because the estate had not given the pre-suit notice which was found to be statutorily required. Notwithstanding a certified question of great public importance, the Supreme Court eventually dismissed the appeal. Nonetheless, the majority now says that, upon a second appeal which involves the same operative facts, the dismissal entered below pursuant to that decision must now be reversed for consideration of a contention — first raised at the thirteenth hour — -that the statutory provision which required the pre-suit notice was retroactively applied contrary to the constitution. I do not accept this conclusion because it is directly contrary to numerous principles of law which do no more than reflect and rationalize the intuitive reaction that no such result can be possible.

1. Foremost is the application of the doctrine of “law of the case” of Fitchner I that a pre-suit notice was indispensable to the maintenance of this claim. See Strazzulla v. Hendrick, 177 So.2d 1 (Fla.1965); Pelican Real Estate & Dev. Co. v. Boone, Case 60 So.3d 502 (Fla. 1st DCA Apr.21, 2011); Parker Family Trust I v. City of Jacksonville, 804 So.2d 493 (Fla. 1st DCA 2001), review denied, 828 So.2d 385 (Fla. 2002). Contrary to the majority view, the “law of the case” doctrine is not inapplicable because a new, previously unconsidered “issue” has now been presented. See Fla. Dep’t of Transp. v. Juliano, 801 So.2d 101 (Fla.2001). Properly analyzed, the contention of unconstitutional application is not an appropriate “issue” at all, let alone a new one. The “issue” before us then and now is whether pre-suit notice is required. The claim that the previous result was incorrect so that it is not required because the statute which required it has been unconstitutionally applied to the appellant is just and only that: a newly created argument, theory or contention made to achieve what was rejected below. But an essential part of the “law of the case” doctrine is that its effect may not be disturbed by newly created or belatedly asserted arguments that the Court was wrong in the first place. See Eventys Mktg. & Prods., Inc. v. Comcast Spotlight, Inc., 28 So.3d 959, 962 (Fla. 3d DCA 2010) (“Under the ‘law of the case’ doctrine a court adheres to its own decision at an earlier stage of the litigation unless there are cogent or compelling reasons not to ....”) (quoting Goldberg v. Merrill Lynch, Pierce, Fenner & Smith, Inc., No. 97 CIV 8779, 1998 WL 321446 *8 (S.D.N.Y. June 18,1998)).

Putting the same principle in a somewhat different legal way, it is obvious that a holding that the statutory requirement of a pre-suit notice is not unconstitutional is a necessary prerequisite or, as the cases say, implicit or inherent in the holding that notice is necessary under the law. Contentions like this one, which are implicit or subsumed in a prior holding, are likewise encompassed in the effect of the “law of the case.” See Sax Enters. Inc. v. David & Dash, Inc., 107 So.2d 612, 613 (Fla.1958) (“if ... a particular holding is implicit in the decision rendered, then it is no longer open for discussion or consideration [e.s.].”); S/D Enters., Inc. v. Chase Manhattan Bank, N.A., 375 So.2d 1109, 1111 (Fla. 3d DCA 1979) (“A prior judgment of reversal is not necessarily an adjudication by the appellate court of any points other than the questions in terms discussed and decided, but if, however, a particular holding is implicit in the decision rendered, it is no longer open for consideration [e.s.].”); see also City of Hollywood v. Witt, 939 So.2d 315, 318 (Fla. 4th DCA 2006) (“the law of the case doctrine may foreclose subsequent consideration of issues implicitly addressed or necessarily considered by the appellate court’s decision [e.s.].” (quoting Juliano, 801 So.2d at 105-06)); Silva v. U.S. Sec. Ins. Co., 734 So.2d 429, 430-31 (Fla. 3d DCA 1999) (“ ‘[Questions necessarily involved in the decision on a former appeal will be regarded as the law of the case on a subsequent appeal, even though the questions are not expressly treated in the opinion of the court, since there is a presumption that all the facts in the case bearing on the points decided have received due consideration whether all or none of them are mentioned in the opinion.’); Id. (the law of the case doctrine applies ‘to questions actually or impliedly presented to and decided by the reviewing court.’) (emphasis added).”) (quoting 3 Fla. Jur. 2d Appellate Review § 445); see Smith v. Frank Griffin Volkswagen, Inc., 645 So.2d 585, 586-587 (Fla. 1st DCA 1994) (citing S/D Enters., Inc., 375 So.2d at 1111).

2. The order of the Court and the consequent mandate of Fitchner I required simply that the trial judge “enter an order granting appellant’s motion to dismiss.” Id. at 384. It is an established principle that the trial court has no authority or power to depart in any way — by addition or subtraction — from the terms of an appellate mandate. See Blackhawk Heating & Plumbing Co. v. Data Lease Fin. Corp., 328 So.2d 825, 827 (Fla.1975); Pelican Real Estate & Dev. Co. v. Boone, 60 So.3d 502 (Fla. 1st DCA Apr.21, 2011); Haughey v. Royal Caribbean Cruises, Ltd., 55 So.3d 697, 698 (Fla. 3d DCA 2011) (holding that trial court properly denied appellant’s motion to amend complaint and recognized that “it was not authorized to deviate from the terms of this Court’s mandate” to dismiss the action); Hearns v. State, 54 So.3d 500, 502 (Fla. 3d DCA 2010) (“A trial court’s role upon the issuance of a mandate from an appellate court becomes purely ministerial, and its function is limited to obeying the appellate court’s order or decree. A trial court does not have discretionary power to alter or modify the mandate of an appellate court in any way, shape or form.”) (quoting Torres v. Jones, 652 So.2d 893, 894 (Fla. 3d DCA 1995) (citations omitted)); Huffman v. Moore, 834 So.2d 300, 301 (Fla. 1st DCA 2002). In the judgment now on appeal, the trial judge (although after a series of what I believe to be unnecessary steps below) followed this rule. But, with respect, the majority has ordered its violation, and in essence reversed the lower court for not doing what it surely would have been reversed if it had done.

3. In common with all appellate contentions, a claim relating to unconstitutionality is waived unless it is timely and appropriately advanced and preserved below. See Bush v. Holmes, 886 So.2d 340, 365 (Fla. 1st DCA 2004) (“Whether the application of a statute ... is constitutional must be raised first at the trial level.”); Alexander v. State, 450 So.2d 1212, 1216 (Fla. 4th DCA 1984) (“It should be noted that a distinction is drawn between facial unconstitutionality of the statute and unconstitutionality of the application of the statute to the facts of the particular case. The former may be raised for the first time on appeal; the latter must first have been raised at the trial level. The logic is that a facially unconstitutional statute creates no subject matter jurisdiction pursuant to which a court may convict the accused, whereas, one infers, a statute alleged to be applied unconstitutionally in the case has no such infirmity. Thus application of an unconstitutional statute constitutes fundamental error, whereas unconstitutional application of an otherwise constitutional statute does not.”); 10 Fla. Jur. 2d Constitutional Law § 105 (Westlaw Database updated January 2011); see, e.g., Florida Dept. of Financial Services v. Freeman 921 So.2d 598, 602 (Fla.2006) (“Tassone [attorney seeking fees] argues that the statutory scheme for the payment of attorney’s fees is unconstitutional as applied to him. This argument was never raised below and cannot be raised for the first time on appeal.”). (The “fundamental error” exception to this rule, which might arise in this context when a defendant is convicted of a violating a facially invalid criminal statute, see Trushin v. State, 384 So.2d 668 (Fla. 3d DCA 1980), approved, 425 So.2d 1126 (Fla.1982), obviously has no application to this case). The doctrine exists to prevent just the kind of endless litigation which the majority now requires. It need not be reiterated that it is violated in the extreme by the majority view.

4. Most importantly, even if, notwithstanding all of this, the claim of unconstitutionally retroactive statutory application may be considered, it has no substantive merit whatever. Such an argument may be upheld only if a later-enacted statute has irremediably deprived a party of a vested and valuable property or other right. See DaimlerChrysler Corp. v. Hurst, 949 So.2d 279, 285-86 (Fla. 3d DCA 2007). In this case, as far as the plaintiff is concerned, the only thing affected in any way by the new statute, is the pre-suit notice. It is impossible to imagine that there is a cognizable right not to file a piece of paper before filing suit. Passing over the extreme doubts that there is such a “right,” that it “vested” prior to suit, but see Clausell v. Hobart Corp., 515 So.2d 1275 (Fla.1987); Pullum v. Cincinnati, Inc., 476 So.2d 657 (Fla.1985), or that it has any “value” whatsoever, plaintiff was not “deprived” of anything at all by the change of law. This is so because when it took effect there was still ample time before the statute of limitations ran for the plaintiff simply to file the allegedly newly required notice., In identical situations, it has been held that the plaintiff has sustained no legally, cognizable let alone constitutional harm. See Ten Mile Invs., LLC v. Sherman, 306 Wis.2d 799, 743 N.W.2d 442, 446 (2007) (“[T]he burdens [defendant] contends she will suffer if the statute is retroactively applied were avoidable by simply complying with the procedural requirements of § 802.05. She should have been aware of the new statute and had ample opportunity to comply with it. See Mosing v. Hagen, 33 Wis.2d 636, 642, 148 N.W.2d 93 (1967).”); see also Calamari v. Drammis, 286 Ill.App.3d 420, 221 IlLDec. 760, 676 N.E.2d 281, 287 (1997) (“[P]laintiff had four months after the effective date of the amendment to section 2-622 to comply with its requirements. Unlike Harraz, [v. Snyder, 283 Ill.App.3d 254, 218 Ill.Dec. 590, 669 N.E.2d 911 (1996) ] there was no unfairness in requiring plaintiff to comply with this change in the law.”). I would hold the same thing here.

In the last analysis, the acceptance of the position endorsed by the majority would render the entire prior appellate history of this case an exercise in futility. Such a conclusion is contrary to the most basic principles which require — in the absence of a weighty countervailing consideration, which is not present here — that, at an appropriate point, which passed a long time ago in this case, litigation must come to an end.

I would affirm the judgment now on review both on the authority, and because of the binding legal effect of LifeSouth Community Blood Centers, Inc. v. Fitchner, 970 So.2d 379 (Fla. 1st DCA 2007), review granted, 982 So.2d 1178 (Fla.2008), appeal dismissed, 1 So.3d 172 (Fla.2009).

      . The Arky Freed case also differs in the respect that the earlier decision against the party seeking to amend was a decision on the sufficiency of the evidence. Had the trial judge directed a verdict for LifeSouth on the ground that the evidence presented by the Fitchners in the original complaint was insufficient, the Fitchners would not have had a right to amend. But in this case, as in Wells Fargo, the previous appellate decision leading to the remand was not a decision on the merits of the case, but rather a decision on the viability of the claim asserted in the complaint.

      . The trial court also concluded that it lacked authority to consider the issue, because it had been presented for the first time in the Fitch-ners’ reply to LifeSouth’s response to the motion for rehearing. On this point, the trial judge was mistaken. The argument was presented in the motion for rehearing.

      . The Third District reached the opposite conclusion in Weingrad v. Miles, 29 So.3d 406, 416 (Fla. 3d DCA 2010). To the extent that the decision in the case before this court turns on the existence of a vested right to assert the cause of action, we agree with the decision of the Fourth District in Raphael and Judge Cope’s dissenting opinion in Weingrad, 29 So.3d at 416-17.

      . It is likely that every one of us has had the unhappy experience of thinking on the way to the parking lot after oral argument — in other words, too late — of a winning contention that could and should have been made, but was not. Pressing the analogy on a little, the constitutional claim here was made only after a highly imaginative lawyer thought of it after three solo voyages around the world and one trip in the Enterprise to the moon and back.

      . The majority relies on Wells Fargo Armored Services Corp. v. Sunshine Security & Detective Agency, Inc., 575 So.2d 179, 179-80 (Fla.1991), as "[fjrom a procedural standpoint ... identical,” I see it as anything but. Wells Fargo explains:
      On December 13, 1983, employees of Wells Fargo Armored Services Corporation were robbed while making a pickup at the Fiialeah branch of the Intercontinental Bank. The next day an employee of Sunshi-neSecurity and Detective Agency, which provided guard services at the bank, confessed to participation in the robbery. After covering Intercontinental's losses, plus interest, Wells Fargo received an assignment of the right to proceed against Sunshine Security.
      On April 13, 1984, Wells Fargo filed suit against Sunshine Security. The complaint essentially alleged that Sunshine Security was liable for the guard’s actions under the doctrine of respondeat superior. A default judgment was entered against Sunshine Security on October 30, 1984, after Sunshine Security failed to serve or file any paper in the cause. Later, Sunshine Security alleged that it had never received proper service of process prior to entry of the default judgment.

        Id. at 179-80. The case goes on to state:
      [on remand] plaintiff did file an amended complaint in which it added new counts embodying the theories of bailment and negligent employment against the defendant Sunshine Security and Detective Agency. The amended complaint also added a count against Jacinto Alfonso and Margaret Alfonso as surviving trustees of Sunshine Security and sought punitive damages against the above named defendants. Finally, the amended complaint alleged that Sunshine Security and Jacinto and Margaret Alfonso fraudulently conveyed assets of Sunshine Security to Sunrise Security Polygraph and Detective Bureau Corporation. The defendants appropriately tested the sufficiency of the new counts by a motion to dismiss.

        Id. at 180-81.
      The Court concluded:
      The law-of-the-case doctrine was meant to apply to matters litigated to finality, not to matters that remain essentially unresolved due to the erroneous ruling of a lower court. Normandy Beach Properties Corp. v. Adams, 126 Fla. 844, 171 So. 796 (1937). Here, the default judgment was held to be erroneous on grounds the original complaint failed to state a cause of action. Wells Fargo, 496 So.2d at 246. The effect was to return this proceeding to the lower court as though the erroneous ruling never had been made.

        Id. at 180.
      I believe that, far from controlling, Wells Fargo has no application to a case such as the instant one. Here, implicit in this Court’s ruling was that the pre-suit notice requirements applied; the new claim here does no more than argue they do not apply, but for a reason different from those originally presented.
      The majority also relies on U.S. Concrete Pipe Co. v. Bould, 437 So.2d 1061, 1063 (Fla.1983) ("Bould IV”), concluding:
      The defendant in that case contested the amount of punitive damages in one appeal and then argued in a subsequent appeal that the trial court had incorrectly instructed the jury on the issue of liability for punitive damages. The plaintiff maintained that the jury instruction issue was barred by the doctrine of the law of the case because it could have been raised in the earlier appeal. However, the supreme court squarely rejected that argument and decided the issue on the merits. The court held that the doctrine of the law of the case did not preclude review of the jury instruction issue merely because the defendant had failed to challenge the instruction in the prior appeal.
      A review of the history of that case demonstrates, however, why the analysis in Bould IV is inapplicable. In Touchette v. Bould, 324 So.2d 707 (Fla. 4th DCA 1975) (Bould I), the Fourth District reversed and remanded defendants’ wrongful death and survivorship actions for a new trial on punitive damages, concluding the damages awarded were excessive. In Bould v. Touchette, 349 So.2d 1181, 1187 (Fla.1977) (Bould II), the Supreme Court quashed and remanded that decision to the Fourth District with specific instructions “to entertain the interlocutory appeals from the post-judgment motions of the trial court.” One of those appeals, was exactly the issue raised in Hartford Acc. & Indem. Co. v. U.S. Concrete Pipe Co., 369 So.2d 451, 452 (Fla. 4th DCA 1979) (Bould III), which explained "[t]his court reversed those judgments as being excessive and the Supreme Court quashed this court’s opinion, mandating the reinstatement of the judgments and directing this court to entertain the interlocutory appeals from post-judgment orders of the trial court. Those two interlocutory appeals are what we presently consider.” (Footnotes omitted). Bould IV, was the supreme court’s consideration of Bould III — consideration of the insurer’s argument that punitive damages had to be based on vicarious liability in order for coverage to apply. Of course, if an appellate court instructs that on remand certain matters should be considered — consideration of those matters is not precluded by the doctrine of the law of the case. Bould IV represents an application of the law of the case doctrine, not an example of its inapplicability to facts like those presented herein.

      . Of course, the reason that no notice was filed was that the plaintiff successfully in that instance insisted in the trial court upon the totally inconsistent argument that the amendment to the statute did not apply to blood banks like the defendant. Thus, the rule which precludes the successful maintenance of totally inconsistent positions in the same litigation may also be implicated in this case. See Palm Beach Co. v. Palm Beach Estates, 110 Fla. 77, 89, 148 So. 544, 548-49 (1933); LaCoste v. LaCoste, 58 So.3d 404, (Fla. 1st DCA 2011) ("The trial court agreed with the former wife that the land became a marital asset when the former husband conveyed it to the parties jointly. Thus estoppel principles would preclude the former wife seeking reversal of the judgment on a legal basis wholly opposite to the one she advanced — and prevailed on — below. See Batie v. Batie, 31 So.3d 939, 940 (Fla. 1st DCA 2010), and cases cited therein.”).

      . As the majority recounts, on September 22, 2002, seven-year-old Chase Fitchner received blood provided to the hospital by LifeSouth Community. Several weeks later he was diagnosed as having West Nile Virus Encephalitis. The act took effect September 15, 2003. Ch. 2003-416, §§ 86 & 87, at 4122, Laws of Fla. The estate timely filed suit against Life-South Community on April 23, 2004 — seven months after the effective date of the act. Moreover the statute of limitations for compliance with the new statute would not have run until the beginning of October 2004, leaving almost a year from the act’s effective date for compliance with its provisions.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    David Charles SUSSMAN, Petitioner, v. Kenneth S. TUCKER, Secretary, Florida Department of Corrections, Respondent.
    No. 1D11-6939.
    District Court of Appeal of Florida, First District.
    April 13, 2012.
    Rehearing Denied May 29, 2012.
    David Charles Sussman, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Eric M. Neiberger, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Munn v. Florida Parole Commission, 807 So.2d 733 (Fla. 1st DCA 2002).

PADOVANO, THOMAS, and RAY, JJ., concur.


text:
    James FRAZIER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-1321.
    District Court of Appeal of Florida, First District.
    April 13, 2012.
    Rehearing Denied May 29, 2012.
    James Frazier, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

PADOVANO, THOMAS, and RAY, JJ., concur.


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

text:
    Christian FLEMING, Appellant, v. STATE of Florida, Appellee.
    No. 1D05-3411.
    District Court of Appeal of Florida, First District.
    April 17, 2012.
    Rehearing Denied June 5, 2012.

      Nancy A. Daniels, Public Defender, and P. Douglas Brinkmeyer, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Carolyn J. Mosley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

This case was remanded from the Florida Supreme Court in State v. Fleming, 61 So.3d 399 (Fla.2011), for a determination as to whether an Apprendi violation in connection with the appellant’s guidelines departure sentence was harmless error, where those reasons were not submitted for a jury finding. A review of the record indicates that there is no reasonable doubt that the jury would have found two of the stated departure reasons: permanent physical injury to the victim and an offense committed in order to prevent or avoid arrest. Therefore the Apprendi violation is harmless as to those two stated reasons and those reasons remain as permissible bases for the guidelines departure. Section 921.001(6), Florida Statutes, (Supp. 1994) requires that the appellant’s departure sentence be upheld.

Upon his conviction for aggravated battery, shooting within a building, and false imprisonment, the appellant was sentenced in 1997, well before the United States Supreme Court’s rulings in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). The appellant was later resentenced after the Ap-prendi and Blakely decisions, and in State v. Fleming, supra, the Florida Supreme Court established that the Apprendi and Blakely rulings should have been applied in the resentencing proceeding. However, as the Florida Supreme Court had previously established in Galindez v. State, 955 So.2d 517 (Fla.2007), a violation of the Apprendi requirement that sentencing enhancement factors be determined by a jury may be harmless, if it appears beyond a reasonable doubt that a rational jury would have found the stated factors. See also Washington v. Recuenco, 548 U.S. 212, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006). In State v. Fleming, supra, the Florida Supreme Court remanded the present case to this court, for application of a harmless error analysis in accordance with Galindez.

At the trial in this case it was established that the offenses were committed while the appellant was visiting at the victim’s home. The appellant shot the victim and the bullet passed through the victim’s ear, producing what was described as a “big gaping hole.” It was further established that the appellant prevented the victim from leaving to obtain medical care until the victim agreed to a contrived explanation which would not implicate the appellant in the shooting. When the victim was finally able to leave, she went to a hospital where surgery was performed. The victim suffered permanent scarring at the site of the wound and a partial loss of hearing.

The trial court provided several reasons for its departure from the guidelines recommendation on resentencing, including the fact that the victim suffered permanent physical injury, and that the appellant committed an offense to avoid arrest or to impede or prevent prosecution. Upon consideration of the evidence presented at trial, in connection with the appellant’s defense and the jury’s verdict as to the charged crimes, it is clear that if those departure reasons had been submitted for a jury finding, the jury would also have found those sentencing factors. Even though the resentencing court provided further departure reasons for which the Apprendi violation is not clearly harmless, the existence of any permissible departure reason requires that the departure sentence be upheld on appeal. See § 921.001(6), Fla. Stat. (Supp. 1994).

Accordingly, the trial court’s denial of the appellant’s Motion under Rule 3.800, Florida Rules of Criminal Procedure, in which the appellant raised the Apprendi-Blakely issue and sought another resen-tencing proceeding, is affirmed.

THOMAS and CLARK, JJ., concur; BENTON, C.J., dissents with opinion.

BENTON, C.J.,

dissenting.

The last time this case was before us— noting the state conceded error as to all four grounds cited for upward departure— we reversed and remanded for resentenc-ing, without considering any question of harmless error. See Fleming v. State, — So.3d —, 2006 WL 1041164 (Fla. 1st DCA 2006). In his initial brief, filed with this court on October 18, 2005, Mr. Fleming argued that the failure to submit for the jury’s determination any factual allegation pertinent to a sentencing factor required resentencing, and that errors of this kind were not subject to harmless error analysis. In its answer brief, filed on February 9, 2006, the state agreed that one reason the sentencing court gave for departure reflected a mistake of law and that the other three departure grounds were all based on facts found by the trial court and not the jury. The state did not argue that the failure to submit to the jury factual questions pertinent to sentencing factors was harmless error.

On June 26, 2006, the United States Supreme Court held that “[fjailure to submit a sentencing factor to the jury, like failure to submit an element to the jury, is not structural error” and is subject to harmless-error analysis. Washington v. Recuenco, 548 U.S. 212, 221-22, 126 S.Ct. 2546, 165 L.Ed.2d 466 (2006). Following suit, the Florida Supreme Court likewise held, in Galindez v. State, 955 So.2d 517, 521-22 (Fla.2007), that harmless error analysis was appropriate in such circumstances.

Our supreme court issued an order on February 11, 2009, specifically directing the parties in the present case not to address the issue of whether any sentencing factor allegedly found in violation of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), or Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), or both, was harmless beyond a reasonable doubt under Galindez. See State v. Fleming, 4 So.3d 677 (Fla.2009). The court later explained that it disallowed briefing on harmless error so that it would clearly have jurisdiction to resolve the conflict in the district courts on the question of whether Apprendi and Blakely apply to resentencing proceedings held after Ap-prendi issued where the resentencing was not final when Blakely issued. See State v. Fleming, 61 So.3d 399, 408-09 (Fla.2011).

Because the only briefs filed in this court antedate the decisions in Recuenco and Galindez, fundamental fairness and the Sixth Amendment dictate that Mr. Fleming should be afforded the opportunity to be heard through counsel on the question of whether the failure to apply Apprendi and Blakely was harmless. Accordingly, the court should issue an order granting Mr. Fleming leave to submit a supplemental brief addressing the question of harmless error before acting. On this procedural ground, I respectfully dissent from today’s decision.

      . The order read:
      In our order of January 9, 2008 (which the present order supersedes and replaces as to briefing), we specifically directed the parties to address the issue of whether any sentencing factor alleged to violate Appren-di and/or Blakely is harmless beyond a reasonable doubt under Galindez v. State, 955 So.2d 517 (Fla.2007). However, upon further consideration, the parties are specifically directed to not address this issue.

        State v. Fleming, 4 So.3d 677 (Fla.2009).


author: CORTINAS, J.

text:
    E & H CRUISES, LTD., a Cayman Islands Corporation, d/b/a “Pirates of the Caymans,” Appellant, v. Patricia BAKER, Appellee.
    No. 3D11-1260.
    District Court of Appeal of Florida, Third District.
    April 18, 2012.
    Rehearing Denied May 30, 2012.

      Hamilton, Miller & Birthisel and Jerry D. Hamilton, Michael J. Dono, and Evan Gutwein, Miami, for appellant.
    Michael D. Eriksen, West Palm Beach, for appellee.
    Before SUAREZ, CORTINAS, and SALTER, JJ.
   CORTINAS, J.

Plaintiff, Patricia Baker, was a passenger aboard the MV Mariner of the Seas, which was operated by Royal Caribbean Cruise Lines, Inc. (“RCCL”). As a passenger, she had purchased a ticket to participate in a mock pirate ship excursion tour in the Cayman Islands (“Excursion Tour”). The Excursion Tour was operated by E & H Cruises, Ltd. (“E & H”), a Cayman Islands corporation. While transferring to the mock pirate ship, the plaintiff was injured. The plaintiff sued RCCL and a subsidiary company as well as E & H under various theories of liability. In response to the third amended complaint, which forms the basis of this appeal, E & H moved to dismiss for lack of personal jurisdiction and forum non conveniens. The trial court denied the motion to dismiss, concluding that it had personal jurisdiction over E & H. We reverse.

We review the trial court’s denial of the motion to dismiss the third amended complaint de novo. See Ferguson v. Estate of Campana, 47 So.3d 838, 842 (Fla. 3d DCA 2010; Wendt v. Horowitz, 822 So.2d 1252 (Fla.2002). When determining whether personal jurisdiction exists over a non-resident defendant, the trial court conducts a two-step inquiry. Ferguson, 47 So.3d at 842. The trial court must first determine whether the plaintiff has alleged sufficient jurisdictional facts in the complaint such that the action is within the ambit of Florida’s long-arm statute, section 48.193, Florida Statutes. Id.; Wendt, 822 So.2d at 1257; Venetian Salami v. Parthenais, 554 So.2d 499, 502 (Fla.1989). When making this determination, the trial court “must strictly construe the statute in favor of the non-resident defendants.” Ferguson, 47 So.3d at 842 (citing Blumberg v. Steve Weiss & Co., 922 So.2d 361, 363 (Fla. 3d DCA 2006)). For the second step, the trial court must make a determination as to “whether ‘sufficient minimum contacts exist between Florida and the defendant to satisfy due process requirements.’ ” Ferguson, 47 So.3d at 842 (quoting Blumberg, 922 So.2d at 364); Venetian Salami, 554 So.2d at 502. In the third amended complaint, the plaintiff raises several bases for a finding of personal jurisdiction. We address each of them in turn.

The plaintiff argues that general jurisdiction exists pursuant to section 48.193(2), Florida Statutes, which specifically provides that:

A defendant who is engaged in substantial and not isolated activity within this state, whether such activity is wholly interstate, intrastate, or otherwise, is subject to the jurisdiction of the courts of this state, whether or not the claim arises from that activity.

§ 48.193(2), Fla. Stat. (2007) (emphasis added). Asserting general jurisdiction under section 48.193(2) requires a “showing of ‘continuous and systematic general business contacts’ ” with Florida. Gadea v. Star Cruises, Ltd., 949 So.2d 1143, 1145 (Fla. 3d DCA 2007) (quoting Carib-USA Ship Lines Bahamas, Ltd. v. Dorsett, 935 So.2d 1272, 1275 (Fla. 4th DCA 2006)). As we have previously stated, “[t]he requisite threshold of ‘continuous and systematic’ contacts ... does not require any connection between a plaintiffs claim and the defendant’s Florida activities.” Vos, B.V. v. Payen, 15 So.3d 734, 736 (Fla. 3d DCA 2009) (citing Trs. of Columbia Univ. v. Ocean World, S.A., 12 So.3d 788 (Fla. 4th DCA 2009)).

In support of her argument in favor of general jurisdiction, the plaintiff asserts that E & H has maintained a membership in the Florida-Caribbean Cruise Association (“FCCA”) for several years, has traveled to Florida for annual FCCA networking events, and had also maintained connections to Royal Marine Insurance Group and Total Bank. Although E & H’s principal admitted to traveling to Miami on more than one occasion for the purpose of attending an annual FCCA charity dinner, he specified that he had “attended that ... more on [his] personal behalf.” He acknowledged that he joined the FCCA in order to “build a relationship with the cruise lines,” and further testified that in addition to the charity dinner in Miami, he has also “been to a few of the FCCA conventions that they hold on the different islands every year.” Mere attendance at fundraisers that happen to be held in Miami, particularly where it is acknowledged that related events are held “on the different islands every year” does not meet the statutorily required threshold of “continuous and systematic contacts” with Florida. See Vos, B.V., 15 So.3d 734; Gadea, 949 So.2d 1143.

Furthermore, the fact that E & H utilized a Florida broker to obtain an insurance policy, which covered only potential claims arising out of its activities outside of the United States, is insufficient to establish personal jurisdiction. See La Reunion Francaise, S.A. v. La Costeña, 818 So.2d 657, 659 (Fla. 3d DCA 2002) (finding that an insurance broker’s maintenance of a Florida bank account which may be used for the collection of premiums in Florida was “too tenuous to support an assertion of jurisdiction.”). Similarly, the broker’s use of Total Bank in Florida to establish an account for the insurance installment payments is not sufficient to establish jurisdiction. Id.

At no time did E & H maintain any offices or employees in Florida, own any assets or real estate in Florida, or directly sell any of its services in Florida. E & H did not advertise in Florida. Accordingly, we do not find the requisite “systematic and continuous” contact with Florida necessary for general jurisdiction under section 48.193(2).

The plaintiff also argues that specific jurisdiction exists under section 48.193(l)(a), Florida Statutes, which provides in pertinent part:

48.193 Acts subjecting person to jurisdiction of courts of state.—
(1) any person, whether or not a citizen or resident of this state, who personally or through an agent does any of the •acts enumerated in this subsection thereby submits himself or herself and, if he or she is a natural person, his or her personal representative to the jurisdiction of the courts of this state for any cause of action arising from the doing of any of the following acts:
(a) Operating, conducting, engaging in, or carrying on a business or business venture in this state or having an office or agency in this state.

§ 48.193(l)(a), Fla. Stat. (2007) (emphasis added).

Plaintiff argues that RCCL and E & H entered into a Tour Operator Agreement in relation to the pirate excursions and that E & H thereby was conducting business in Florida through an agency or joint venture relationship with RCCL. “A joint venture ‘is created when two or more persons combine their property or time or a combination thereof in conducting come particular line of trade or for some particular business deal.’ ” Jackson-Shaw Co. v. Jacksonville Aviation Auth., 8 So.3d 1076, 1089 (Fla.2008) (quoting Kislak v. Kreedian, 95 So.2d 510, 514-15 (Fla.1957)). A joint venture only exists under a contract specifically providing: “(1) a community of interest in the performance of the common purpose, (2) joint control or right of control, (3) a joint proprietary interest in the subject matter, (4) a right to share in the profits and (5) a duty to share in any losses which may be sustained.” Jackson-Shaw Co., 8 So.3d at 1089 (quoting Kislak, 95 So.2d at 514-15). It is well-established that “[t]he absence of one of the elements precludes a finding of a joint venture.” Jackson-Shaw Co., 8 So.3d at 1089 (citing USA Independence Mobilehome Sales, Inc. v. City of Lake City, 908 So.2d 1151, 1158 (Fla. 1st DCA 2005)). Here, there is nothing in the record to substantiate that there was “joint control or right of control” between RCCL and E & H. The Tour Operator Agreement specifies that E & H “acknowledges that the control and responsibility of the Shore Excursion remains exclusively with E & H.” RCCL has no control over, nor say in, how the Excursion Tours are operated the plaintiff can point to no evidence to the contrary. Because we find that this necessary element is lacking, there can be no joint venture between E & H and RCCL for purposes of determining personal jurisdiction under section 48.193(l)(a).

The plaintiffs argument that E & H had an agency relationship with RCCL is also meritless. In order to show an agency relationship, the plaintiff “must show the existence of three elements: 1) acknowledgment by the principal that the agent will act for it; 2) the agent’s acceptance of the undertaking; and 3) control by the principal over the action of the agent.’ ” Banco Continental, S.A. v. Transcom Bank (Barbados), Ltd., 922 So.2d 395, 400 (Fla. 3d DCA 2006) (quoting Enic, PLC v. F.F. South & Co., Inc., 870 So.2d 888, 891 (Fla. 5th DCA 2004)). Here, the Tour Operator Agreement clearly specifies that E & H is an independent contractor and, again, the plaintiff simply cannot show that RCCL had any control over E & H’s actions with respect to how the Excursion Tours were operated, or vice-versa.

Unable to demonstrate either a principal/agent or joint venture relationship between RCCL and E & H, the plaintiffs argument for personal jurisdiction under section 48.193(l)(a) fails. We further note that the mere fact that tickets to E & H’s Excursion Tours are available for purchase in Florida through RCCL is also insufficient to constitute “[ojperating, conducting, engaging in, or carrying on a business or business venture” as required by section 48.193(l)(a). See Island Sea-Faris v. Haughey, 13 So.3d 1076 (Fla. 3d DCA 2008).

The plaintiff also alleges that personal jurisdiction may be found pursuant to section 48.193(l)(d), which also provides that a foreign defendant submits himself or herself to the jurisdiction of this state for causes of action arising from

(d) Contracting to insure any person, property, or risk located within this state at the time of contracting.

§ 48.193(l)(d), Fla. Stat. (2007) (emphasis added). Although here, unlike Haughey, E & H had its insurance policy in place prior to the plaintiffs injury, as in Hau-ghey, it is undisputed that “the person, property or risk was never located within this state, let alone at the time of contracting.” Haughey, 13 So.3d at 1079. The plaintiff was not a resident of Florida, the injury occurred in the territorial waters of the Cayman Islands, and there was no property involved in the plaintiffs injury that was located within Florida at the time of contracting.

The plaintiff further asserts that personal jurisdiction may be found pursuant to the indemnification provision found in the Tour Operator Agreement. The plaintiff, however, overlooks that she was not a party to that agreement, and that the Tour Operator Agreement specifies that “[o]ther than as expressly set forth [therein], this [Tour Operator] Agreement shall not be deemed to provide third parties with any remedy, claim, right or action or other right.” Because the plaintiff is neither suing, nor could sue, under the Tour Operator Agreement, she cannot use same as a basis for jurisdiction. See Haughey, 13 So.3d at 1078.

Based upon the foregoing, we reverse the trial court’s order denying E & H’s motion to dismiss the third amended complaint for lack of personal jurisdiction. Because we reverse on this basis, we need not address the issues of whether there were “sufficient minimum contacts,” or E & H’s forum non conveniens claims.

Reversed and remanded.

      . The plaintiff furthers this argument by asserting that because of the forum selection clause in the Tour Operator Agreement, jurisdiction exists pursuant to sections 685.101-102, Florida Statutes (2007). We again note that the plaintiff was not a party to, nor could she sue under, the Tour Operator Agreement, and therefore the forum selection clause cannot serve as a basis for personal jurisdiction with respect to a claim by a specifically excluded third party.


text:
    Barbara TURCOTTE and Melvin Turcotte, Appellants, v. CITY OF COCONUT CREEK and Seminole Properties II, Inc., Appellees.
    No. 4D10-4333.
    District Court of Appeal of Florida, Fourth District.
    April 18, 2012.
    Rehearing Denied June 11, 2012.

      Daniel L. Wallach, Gary C. Rosen, Alan B. Koslow of Becker & Poliakoff, P.A., Fort Lauderdale, for appellants.
    John H. Pelzer and Robin F. Hazel of Greenspoon Marder, P.A., Fort Lauder-dale, for appellee City of Coconut Creek.
    Kenneth G. Spillias, Andrew J. Bau-mann and Keri-Ann C. Baker, of Lewis, Longman & Walker, P.A., West Palm Beach, for appellee Seminole Properties II, Inc.
   PER CURIAM.

Appellants appeal an order granting summary judgment in favor of appellees. Appellants sought to challenge the validity of an ordinance enacted by the City approving an amendment to a development of regional impact (DRI) development order. Appellants filed a complaint for declaratory judgment and injunctive relief. At the same time appellants filed their complaint, they also filed a petition for writ of certiorari, raising the same issues. The trial court denied the petition for writ of certiorari, as did our court. In our order of denial, we stated:

The circuit court correctly applied section 380.06(19)(b), Florida Statutes (2005), when it determined that the subject ordinance, which simply expanded the definition of a permitted use to include a hotel, did not constitute a substantial deviation under the statute.

We find that the issues raised in this appeal were previously raised and considered by this court in the prior certiorari proceeding. We thus conclude that res judicata bars this appeal, as our prior decision “clearly shows that the issue was considered by the court on the merits and relief was denied.” Topps v. State, 865 So.2d 1253, 1258 (Fla.2004). See also Seminole Entm’t, Inc. v. City of Casselberry, 866 So.2d 1242 (Fla. 5th DCA 2004) (holding that issues examined and rejected in a prior certiorari proceeding could not be raised again on appeal from an order granting summary judgment); Lake Rosa v. Bd. of Cnty. Comm’rs, 911 So.2d 206 (Fla. 5th DCA 2005) (affirming ruling that trial court’s findings in companion certio-rari case were res judicata and barred suit for injunctive and declaratory relief); Treister v. City of Miami, 575 So.2d 218 (Fla. 3d DCA 1991) (affirming entry of summary judgment for the city on the basis that the prior certiorari proceeding was res judicata of the issues raised in the original action); Rhyne v. City of Wilton Manors, 392 So.2d 992 (Fla. 4th DCA 1981) (holding that appellants could not maintain an action seeking simultaneous certiorari and equitable relief, nor could they seek equitable relief after maintaining a certiorari proceeding).

Affirmed.

POLEN, HAZOURI and LEVINE, JJ., concur.


author: CLARK, J.

text:
    Eugene ROSS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-6075.
    District Court of Appeal of Florida, First District.
    April 24, 2012.
    Rehearing Denied June 4, 2012.

      Nancy A. Daniels, Public Defender and Glen P. Gifford, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General and Edward C. Hill, Jr., Special Counsel, Office of Appeals, Tallahassee, for Appellee.
   CLARK, J.

Eugene Ross appeals his most recent sentence in State v. Ross, No.1983 CF 10711 (Fla. 4th Cir. Ct., Duval County), challenging the trial court’s upward departure based upon the court’s finding of an escalating pattern of criminal conduct. Because we find no error in the upward departure sentence as supported by the written reason articulated by the trial court, the sentence on appeal is affirmed.

After jury trial in 1984, Appellant was convicted as charged of kidnapping with use of a weapon (count 1), attempted sexual battery with use of a weapon (count 2), attempted murder in the first degree with use of a weapon (count 3), and attempted robbery with use of a weapon (count 4). The victim was Ross’ 12-yr.-old niece and the attack took place in her home as she was getting ready for school early on the morning of December 9,1983.

The original sentence was entered by the trial court with reference to the sentencing guidelines promulgated by the Florida Supreme Court in rule 3.701, Florida Rules of Criminal Procedure, which indicated a sentencing range of 22-27 years. The trial court elected to depart upward and on June 20, 1984 the trial court sentenced Appellant to the statutory maximum sentences of life for count 1; 30 years for count 2; life for count 3; and 15 years for count 4, all concurrent. The sentence was affirmed on direct appeal, though this court found two of the six reasons for the upward departure invalid. Ross v. State, 478 So.2d 480 (Fla. 1st DCA 1985). Subsequently, this court affirmed two denials of Appellant’s motions to correct illegal sentence under rule 3.800, each challenging the upward departure sentence on different grounds. Ross v. State, 795 So.2d 64 (Fla. 1st DCA 2001); Ross v. State, 951 So.2d 836 (Fla. 1st DCA 2007).

Appellant’s third motion under rule 3.800 to correct the upward departure sentence raised a new ground, that Appellant was entitled to resentencing pursuant to the opinion in Smith v. State, 537 So.2d 982 (Fla.1989). Ultimately, based on this rule 3.800 proceeding, the trial court re-sentenced Appellant on August 2, 2011, after a hearing where Appellant was represented by counsel. Appellant clearly and affirmatively elected, on the record, to be sentenced under the 1983 sentencing guidelines. The applicable scoresheet indicated a recommended sentence of 22-27 years. The court found that Appellant’s previous conviction for rape, to which Appellant stipulated and admitted at the hearing, considered with the convictions in this case, “indicate an escalating pattern of criminal conduct” justifying an upward departure. The court then resentenced Appellant to concurrent statutory maximum sentences: life for count 1; 30 years for count 2; life for count 3, and 15 years for count 4. In its written statement of reasons for departure from sentencing guidelines, the trial court referred to Barfield v. State, 594 So.2d 259 (Fla.1992), where the court held that one indicator of “increasingly serious criminal activity” is “when the current charge involves either an increase in the degree or crime or the sentence which may be imposed, when compared with the defendant’s previous offenses.”

The upward departure sentence on appeal did not violate Appellant’s 6th Amendment right to jury findings of fact to support the reason for upward departure, as described in Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). During the resen-tencing proceedings, Appellant stipulated and admitted to his prior conviction for rape and, despite his conviction and sentence in that case, described his conduct in the incident as that of a mere bystander among multiple defendants. He further stated that he had assisted the victim to leave the scene of that crime. In contrast, Appellant asserted no less-culpable behavior in connection with his subsequent conviction for the four felonies in this case, including the forcible attempted sex crime and attempted murder committed by repeatedly stabbing his young niece’s neck. He expressed remorse and explained that his actions were influenced by intoxicants, but he did not deny the actions for which he was convicted by the jury.

Because the trial court based its finding of an escalating pattern of criminal behavior on the fact of the prior conviction and the facts admitted by the defendant pertaining to both the previous conviction and the convictions in this case, the upward departure sentence on appeal comported with Blakely v. Washington and Appellant’s 6th Amendment rights. See State v. Fleming, 61 So.3d 399, 408 (Fla.2011) (“except for the fact of a prior conviction, a judge may impose sentence based solely on the facts reflected in a jury verdict or admitted by the defendant.” (emphasis added)). Even if there were any error, this court has ruled that “any potential error arising from the trial court’s failure to have a jury determine whether appellant’s convictions indicate an escalating pattern of criminal conduct is harmless” where “it is apparent that any reasonable jury would have found that appellant’s convictions indicate, beyond a reasonable doubt, a progression of increasingly violent crimes constituting an escalating pattern of criminal activity.” Isaac v. State, 989 So.2d 1217, 1219 (Fla. 1st DCA 2008), rev. dism., State v. Isaac, 66 So.3d 912 (Fla.2011), cert den., Florida v. Isaac, — U.S. —, 132 S.Ct. 1539, 182 L.Ed.2d 161 (2012).

We have considered Appellant’s other points on appeal and conclude that the arguments fail to establish reversible error in the upward departure sentence entered August 2, 2011.

Accordingly, the sentence on appeal is affirmed.

DAVIS and ROWE, JJ., concur.


text:
    Blake ROYER, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D11-4874.
    District Court of Appeal of Florida, First District.
    April 24, 2012.
    Rehearing Denied June 4, 2012.
    Glorimil R. Walker of Three Rivers Legal Services, Inc., Gainesville, for Appellant.
    Mike Palecki, General Counsel, and Melissa Dinwoodie, Agency for Persons with Disabilities, Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Blake Royer, seeks review of a final order of the Agency for Persons with Disabilities (“the Agency”) assigning him to Tier Three of the Medicaid Developmental Disabilities Home and Community Based Services Waiver Program. Because the Agency misinterpreted and misapplied Florida Administrative Code Rule 65G-4.0027(4) in determining Appellant’s tier assignment, we reverse.

The Agency assigned Appellant to Tier Three because he lived with his sister and he was authorized to receive personal care assistance. Appellant challenged this determination and argued that he should have been assigned to Tier One, which at that time did not have an expenditure cap, because he needed intensive adaptive services that exceeded the Tier Three expenditure cap. After a formal administrative hearing, the Agency found that Appellant had intensive adaptive needs, but it found that Tier Three was appropriate because the total costs of his personal care and waiver coordination support services fell within the expenditure cap of Tier Three.

In making its determination, the Agency considered only the cost of Appellant’s authorized personal care assistance because it was the one service in Appellant’s cost plan that was enumerated in rule 65G-4.0027(4). However, the plain language of the rule does not limit consideration of the client’s needs to only the services listed in the rule. Newsome v. Agency for Pers. with Disabilities, 76 So.3d 972, 974-75 (Fla. 1st DCA 2011). Because the Agency found that Appellant had intensive adaptive needs and the authorized services in Appellant’s cost plan exceeded the expenditure cap for Tier Three, the Agency erred in determining that Appellant’s service needs could be met in Tier Three. We reverse the final order and remand with directions that Appellant be assigned to Tier One.

REVERSED and REMANDED with directions.

DAVIS, THOMAS, and RAY, JJ., concur.