text:
    Bernard MONTGOMERY, Petitioner, v. STATE of Florida, Respondent.
    No. 4D14-3522.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2014.
    Antony P. Ryan,. Regional Counsel Office of Criminal Conflict and Civil Regional Counsel, Fourth District, and Melanie L. Casper, Assistant Regional Counsel, West Palm Beach, for petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Monique Rolla, Assistant Attorney General, for respondent.
   PER CURIAM.

The defendant petitions for a writ of prohibition following the circuit judge’s denial of the defendant’s motion to disqualify the judge. Based on our review of the petition and motion, we issued an order to the state to show cause why we should not grant the petition. The state candidly has responded that it can find no such cause. We conclude the petition has merit and grant the petition. See Gore v. State, 96.4 So.2d 1257, 1268 (Fla.2007) (“The standard for determining the legal sufficiency of a motion to disqualify is whether the facts alleged, which must be assumed to be true, would cause the movant to have a well-founded fear that he or she will not receive a fair trial at the hands of that judge.”). The defendant’s cases shall be re-assigned to another circuit judge.

Petition granted.

TAYLOR, GERBER and FORST, JJ., concur.


source: Caselaw Access Project

author: WELLS, Judge.

license: Public Domain

text:
    U.S. BANK NATIONAL ASSOCIATION, as Trustee for CSF Heat 2006-6, Appellant, v. Patrick WHYTE, et al., Appellees.
    No. 3D11-2586.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2014.

      Marinosci Law Group, and Bart Heifer-nan, Fort Lauderdale, for appellant.
    Peter Kneski, Plantation, for appellees.
    Before WELLS and SUAREZ, JJ., and LEVY, Senior Judge.
   WELLS, Judge.

In this mortgage foreclosure action, U.S. Bank National Association, as Trustee for CSFB Heat 2006-6 (“U.S.Bank”), the plaintiff below, appeals from an order striking its pleadings and dismissing this case with prejudice for failure to comply with a discovery order. For the following reasons, we reverse.

Patrick Whyte allegedly defaulted on his home mortgage in May 2010 and has not made a payment thereon since. On September 1, 2010, as the holder of the original note and mortgage, U.S. Bank filed this foreclosure action against him seeking the $109,472.79 in principal then due and owing on the loan. Defense counsel moved to dismiss the complaint and propounded discovery on the Bank, including a request for production. In May of 2011, when the Bank, then represented by the Law Offices of David J. Stern, P.A., did not respond to the discovery requests, defense counsel filed a motion to compel.

On June 9, 2011, the trial court entered an order granting the motion to compel, ordering the Bank to serve and file a formal response to the request for production within ten days and to produce all documents requested. The trial court also awarded defense counsel $500 in attorney’s fees as a sanction to be paid by the Bank. At some point after the June 9, 2011 order was entered, the Bank retained new counsel, the Marinosci Law Group, P.C., to replace the Law Offices of David J. Stern.

On June 23, 2011, Whyte filed his first Motion to Strike Pleadings, for Sanctions and for Entry of Judgment in Favor of Defendant for failure to comply with the June 9, 2011 order. Several days later, the Bank’s new counsel responded to WTiyte’s document request. The hearing on the motion to strike and for sanctions was cancelled with the trial court entering an agreed order on August 7, 2011, giving the Bank until August 15th to pay the $500 sanction previously ordered.

When the $500 was not paid by August 15th, Whyte renewed his motion to strike,for sanctions, and for entry of judgment. The motion was noticed for hearing on September 1st. However, before the hearing could take place, on August 22nd, an associate lawyer for the Marinosci Law Group overnighted a $500 check to defense counsel and also sent correspondence requesting that the motion to strike be can-celled.

Although the $500 check was received on August 23rd thereby satisfying the sanction order, albeit a few days late, and well before the September 1st hearing set on the motion to compel compliance, Whyte neither cancelled the hearing as requested nor notified counsel for the Bank that he was moving forward on his sanction request.

Believing that the sanction had been satisfied and that no hearing would take place, no one from the Marinosci Law Group appeared at the September 1st hearing at which an order striking the Bank’s pleadings and entering judgment in Whyte’s favor was entered “for [the Bank’s] failure to comply with court order.”

As this court has stated on more than one occasion, dismissal of an action as a sanction for failure to comply with discovery orders must be reserved for only the most extreme circumstances.. See Ledo v. Seavie Resources, LLC, 149 So.3d 707 (Fla. 3d DCA 2014) (confirming that while the imposition of sanctions is discretionary, dismissal of an action for failure to comply with orders compelling discovery should be reserved for only the most extreme circumstances); Toll v. Korge, 127 So.3d 883, 887 (Fla. 3d DCA 2013) (“Dismissing an action for failure to comply with discovery orders is ‘the most severe of all sanctions which should be employed only in extreme circumstances’” (quoting Ham v. Dunmire, 891 So.2d 492, 495 (Fla. 2004))).

In this case, the trial court dismissed the Bank’s action for an eight day delay in complying with an order requiring payment of a $500 fine imposed for a discovery violation. Where a court sanctions a party for its own failure to comply with court orders, the court must expressly determine and find willful or deliberate disregard of its authority:

The dismissal of an action based on the violation of a discovery order will constitute an abuse of discretion where the trial court fails to make express written findings of fact supporting the' conclusion that the failure to obey the court order demonstrated willful or deliberate disregard. See Commonwealth Fed. Savings & Loan Ass’n v. Tubero, 569 So.2d 1271 (Fla.1990). Express findings are required to ensure that the trial judge has consciously determined that the failure was more than a mistake, neglect, or inadvertence, and to assist the reviewing court to the extent the record is susceptible to more than one interpretation. See id. at 1273.

Ham, 891 So.2d at 495, 496 (Fla.2004). Here, the failure is neither an extreme circumstance nor conduct which rises to the level of willful, deliberate, contumacious behavior that would justify imposition of such a sanction. See Aurora Loan Seros., LLC v. Ramirez, 120 So.3d 1260, 1260 (Fla. 3d DCA 2013) (reversing sanction for a discovery violation in part because the record did not “support a conclusion that the discovery violation was a willful and deliberate one as required by law”). For this reason alone, we must reverse.

Moreover, to the extent the Bank’s attorneys were responsible for the failure to comply with the discovery orders, neither the record nor the order on appeal demonstrate that the trial court considered the factors mandated by Kozel v. Ostendorf, D.P.M., 629 So.2d 817, 818 (Fla.1994), before what that Court described as the “ultimate sanction” reserved for “those aggravating circumstances in which a lesser sanction would fail to achieve a just result,” might be imposed:

1) whether the attorney’s disobedience was willful, deliberate, or contumacious, rather than an act of neglect or inexperience; 2) whether the attorney has been previously sanctioned; 3) whether the client was personally involved in the act of disobedience; 4) whether the' delay prejudiced the opposing party through undue expense, loss of evidence, or in some other fashion; 5) whether the attorney offered reasonable justification for noncompliance; and 6) whether the delay created significant problems of judicial administration. Upon consideration of these factors, if a sanction less severe than dismissal with prejudice appears to be a viable alternative, the trial court should employ such an alternative.

Failure to address the Kozel factors when sanctioning a party for the misconduct of its attorney mandates reversal. See Deutsche Bank Nat’l Trust Co. v. Parada, 139 So.3d 406, 406 (Fla. 3d DCA 2014) (finding the trial court erred in dismissing a foreclosure action as a sanction for discovery violations “because the trial court failed to make the express factual findings required under Kozel” and because “the factors of willfulness, responsibility and prejudice” were not considered); Portofino Prof'l Ctr. v. Prime Homes at Portofino, 133 So.3d 1112, 1114 (Fla. 3d DCA 2014) (concluding that “a court must first consider each of the Kozel factors before it may dismiss a cause as a sanction,” and then should “include in its written order findings of fact with respect to each factor”); Arkiteknic, Inc. v. United Glass Laminating, Inc., 53 So.3d 366, 367 (Fla. 3d DCA 2011) (reversing final default judgment and order striking pleadings where the court failed to consider and apply all six Kozel factors).

Finally, and again as the Florida Supreme Court has made clear, “dismissal is far too extreme as a sanction in those cases where discovery violations have absolutely no prejudice to the opposing party.” Ham, 891 So.2d at 499. In this case, neither the Bank’s failure to timely respond to discovery nor its failure to timely pay the monetary fine imposed because of that failure prejudiced Whyte in any manner. Whyte got the money; Whyte has never answered the complaint; Whyte is' living “rent free” in a home financed by the Bank and for which it has allegedly received no payments since at least September 2010; and Whyte has not claimed, nor did the court below find, that Whyte could not respond to the Bank’s complaint because the Bank either failed to timely respond to discovery or failed to pay the $500 fine.

Accordingly, the order on appeal is reversed.

      . The record does not reflect whether the trial court ever ruled on the motion to dismiss. However, it is clear that Whyte never filed an answer to the complaint in this matter.

      . David J. Stem has since been disbarred by the Florida Bar.

      . Because the Bank did not receive the dismissal order until after the time for filing a Florida Rule of Civil Procedure 1.530 motion had expired, it filed a Florida Rule of Civil Procedure 1.540 motion seeking relief from the order of dismissal. In that motion, the Marinosci Law Group advised the trial court that "due to a mistake and/or excusable neglect counsel missed the hearing on this matter.” More particularly, affidavits from two attorneys at the Marinosci Law Group confirmed that because of miscommunication, the partner tasked with attending the September 1st hearing believed that it .had been can-celled upon payment of the $500 sanction. On September 30, 2011, the Bank appealed from the order of dismissal. The Rule 1.540 motion remains pending. See Kennedy v. Alberto, 649 So.2d 286, 287 (Fla. 4th DCA 1995) (confirming that an appeal from a final order abandons only pending motions that toll rendition).


author: SHEPHERD, C.J.

text:
    Ramiro NIEVES, M.D., Petitioner, v. Jose VIERA, etc., Respondent.
    No. 3D13-1137.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2014.
    Billbrough & Marks, and Geoffrey B. Marks, Coral Gables, and Kristy Ochipinti, for petitioner.
    Alan Goldfarb and Liah C. Catanese, Miami, for respondent.
    Before SHEPHERD, C.J., and WELLS and SUAREZ, JJ.
   SHEPHERD, C.J.

Dr. Ramiro Nieves seeks certiorari relief from a circuit court order denying his motion to dismiss a medical malpractice complaint, brought against him by Jose Viera in his capacity as personal representative of the estate of his deceased wife, Yoandry Viera, made on the ground that Mr. Viera failed to satisfy the pre-suit notice requirements of section 766.203(2), Florida Statutes (2011). Because the pre-suit requirements of Chapter 766 are at issue, we have jurisdiction. See Williams v. Oken, 62 So.3d 1129, 1132-33 (Fla.2011); Rell v. McCulla, 101 So.3d 878, 881 (Fla. 2d DCA 2012). However, for the reasons stated below, we deny the petition.

FACTS

On November 8, 2009, Dr. Nieves, a board-certified orthopedic surgeon, performed surgery on the decedent’s fractured femur at Kendall Regional Medical Center. All agree the surgery was uneventful and successful, and the decedent was noted as doing well in the post-anesthesia care unit. Several hours later, after being administered pain medication by hospital nursing staff, she suffered respiratory arrest. Four days after that, she was dead. During those four days, hospital staff never called Dr. Nieves, and Dr. Nieves never called upon the decedent. He claims he had no duty or obligation to the patient beyond checking on her in the post-anesthesia care unit, and thereafter the patient’s care lay with hospital nursing staff and staff doctors, most of the latter of whom are co-defendants alongside Dr. Nieves in this lawsuit.

On April 25, 2011, Mr. Viera sent Dr. Nieves a notice of intent to initiate a medical malpractice action against him pursuant to section 766.106, Florida Statutes (2011). Included was the verified written medical expert opinion by Dr. Peggy Simon, a medical doctor specializing in the practice of internal medicine and pulmo-nology. Dr. Nieves moved to dismiss the complaint subsequently filed against him, on the ground that Dr. Simon does not “specialize in the same [or] similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim and have prior experience treating similar patients,” as required by section 766.102(5)(a)l, Florida Statutes (2011).

The central issue in the medical malpractice case as it pertains to Dr. Nieves— albeit not the issue before us — appears to be whether Dr. Nieves, who was not a hospital staff member, had a duty to follow the decedent’s medical progress and care after she was transferred out of the post-anesthesia care unit, and, if so, whether his failure to follow her care thereafter was a proximate cause of her death. Counsel for the personal representative argued that Dr. Simon was a perfectly appropriate expert on this issue because the claim against Dr. Nieves was not based upon his orthopedic skills, but only his alleged postoperative negligence. Counsel for Dr. Nieves argued with equal force that only an orthopedic surgeon could satisfy the statutory “same or similar” requirement necessary to testify concerning the postoperative obligations of an orthopedic surgeon, like Dr. Nieves, who was not on hospital staff, but rather performed his craft at myriad hospitals in the region.

The gravamen of Dr. Nieves’ petition is that the trial court failed to conduct an evidentiary hearing on his motion to dismiss. However, counsel for Dr. Nieves never asked for an evidentiary hearing. Rather, counsel repeatedly argued Dr. Simon’s affidavit did not meet the requirements of section 766.203(2) “on its face.” Opposing counsel likewise cast his argument in absolute terms, stating, as he closed, “To me, there is no question that we met the burden as required and that their motion should be denied.” We find it is not, ipso facto, as Dr. Nieves would have us believe, a departure from the essential requirements of law for a trial court to fail to hold an evidentiary hearing on a motion to dismiss a medical malpractice complaint on the ground the pre-suit conditions of filing have not been satisfied when an evi-dentiary hearing has not been requested.

ANALYSIS

1) Certiorari Review

Certiorari relief from the denial of a motion to dismiss is appropriate only if the petitioner establishes the following three elements: “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on post-judgment appeal.” Williams, 62 So.3d at 1132 (Fla.2011) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812 822 (Fla.2004)). The Supreme Court of Florida has explained that “the last two elements are jurisdictional and must be analyzed before the court may even consider the- first element.” Id. The last two elements are met in this case. See id. at 1133 (“Florida courts have created an exception ... and permit certiorari review when the presuit requirements of a medical malpractice statute are at issue.”) (citing Martin Mem’l Med. Ctr., Inc. v. Herber, 984 So.2d 661, 662 (Fla. 4th DCA 2008); Lakeland Regí Med. Ctr. v. Allen, 944 So.2d 541, 543 (Fla. 2d DCA 2006)); see also St. Mary’s Hosp. v. Bell, 785 So.2d 1261, 1262 (Fla. 4th DCA 2001); Okaloosa Cnty. v. Custer, 697 So.2d 1297 (Fla. 1st DCA 1997). Thus, the only question before us is whether the trial court departed from the essential requirements of law when it denied the motion to dismiss in this case without calling, sua sponte, for an evidentiary hearing.

2) Departure from the Essential Requirements of the Law

A departure from the essential requirements of law is a high standard, as explained by the Supreme Court:

In granting writs of common-law certio-rari, the district courts of appeal should not be as concerned with the mere existence of legal error as much as with the seriousness of the error. Since it is impossible to list all possible legal errors serious enough to constitute a departure from the essential requirements of law, the district courts must be allowed a large degree of discretion so that they may judge each case individually. The district courts should exercise this discretion only when there has been a violation of clearly established principle of law resulting in a miscarriage of justice.

Williams, 62 So.3d at 1133 (emphasis added) (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 527 (Fla.1995)). In so doing, we do not review the sufficiency of Dr. Simon’s pre-suit affidavit. See id. at 1135. Nor do we consider whether Dr. Nieves would have been entitled to an evidentiary hearing had he asked for one. Rather, the narrow but dispositive certio-rari issue before us is whether the trial judge had an obligation to conduct an evidentiary hearing before she ruled. There is no clearly established statutory or case law mandating such a requirement.

In the first place, there is no automatic requirement that there be an evidentiary hearing on pre-suit motions to dismiss. Some cases are quite clear an evidentiary hearing is not necessary. Edwards v. Sunrise Ophthalmology Asc, LLC, 134 So.3d 1056, 1059 (Fla. 4th DCA 2013) (holding, without remanding for an eviden-tiary hearing, that an infectious disease doctor does not specialize in the same or similar specialty as an ophthalmologist); Yocom v. Wuesthoff Health Sys., Inc., 880 So.2d 787, 790 (Fla. 5th DCA 2004) (finding the trial court was correct in suggesting that a doctor of chiropractic medicine could not provide a qualifying affidavit against a urologist). In other cases, the trial court has been told to conduct an evidentiary hearing when requested to do so. See Wood v. Virgo, 3 So.3d 430, 431 (Fla. 2d DCA 2009) (Wallace, J., concurring); Martin Mem’l Med. Ctr., 984 So.2d at 664; Paranzino v. Berger, 755 So.2d 655, 657 (Fla. 4th DCA 1998). In still others, a trial judge has raised sua sponte the issue of an evidentiary hearing and been faulted for not having followed through. See e.g., Berg v. Fahel, 88 So.3d 236 (Fla. 3d DCA 2011).

Dr. Nieves cites three cases which he says stand for the proposition that the trial judge has the obligation to initiate the evidentiary hearing in a medical malpractice pre-suit setting: Williams v. Oken, Holden v. Bober, and our more recent case, Berg v. Fahel. We find Williams to be unpersuasive. The Florida Supreme Court in Williams did not rest its decision on whether an evidentiary hearing was required before the trial court could decide the pre-suit issue, but rather on the ground that the District Court of Appeal had exceeded its authority in granting a writ of certiorari to review the sufficiency of an expert’s qualifications under Chapter 766. 62 So.3d at 1136. Indeed, the Court found the trial judge’s determination, without an evidentiary hearing, that an emergency room physician was qualified as an expert in a suit against a cardiologist “does not amount to a violation of a clearly established principle of law resulting in a miscarriage of justice.” Id. at 1137. The acknowledgement at the end of the opinion that “the First District should have ... dismissed the petition and remanded the case to the trial court for an evidentiary hearing” was not a sua sponte call for an evidentiary hearing, but rather a recognition, based upon the debate on the subject by the judges of the District Court of Appeal, that a proper disposition of the case should have been resolved in favor of an evidentiary hearing.

Nor does our case, Berg, provide any assistance to the petitioner. In Berg, we noted the trial court, without objection, initially ordered an evidentiary hearing, but failed to conduct one. 88 So.3d at 237-38. Coming to us in a different procedural posture — an appeal from a final judgment of dismissal of the action, not a certiorari proceeding as we have before us today— we held on de novo review that the trial judge should have held an evidentiary hearing. Id. at 238. Perhaps even more significantly, our decision on the point was not made sua sponte, but rather with the knowledge that the question had been raised below.

Holden, the final case cited by the petitioner makes our point. Citing a passel of cases where an evidentiary hearing was, in fact, held on a motion to dismiss a medical malpractice case based upon pre-suit deficiencies, the Second District Court of Appeal could go no further than state, that “often” the pre-suit compliance “inquiry is accomplished by conducting an evidentiary hearing.” Holden, 39 So.3d at 402.

This, of course, is not the stuff of which a certiorari case is made. In order to prevail on certiorari review, Dr. Nieves must demonstrate the trial court departed from the essential requirements of law. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003) (“Clearly established law can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law.”). The case law falls far short of the establishment of an unremitting principle that an evidentiary hearing must always be conducted or called for sua sponte by a trial judge before ruling upon a motion to dismiss a medical malpractice action based upon the plaintiffs failure to meet pre-suit requirements. On this narrow but decisive ground, we deny the petition for certiorari in this case.

Petition denied.

      . The legislature deleted the “similar specialty” alternative from section 766.102(5)(a)l effective July 1, 2013. See Ch. 2013-108, § 2, Laws of Fla.


author: SALTER, J.

text:
    The STATE of Florida, Appellant, v. Darrell GIBSON, Appellee.
    No. 3D13-2286.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2014.
    Pamela Jo Bondi, Attorney General and Michael W. Mervine, Assistant Attorney General, for appellant.
    Herbert Erving Walker III, for appel-lee.
    Karen M. Gottlieb, Coconut Grove; Wetherington, Klein & Hubbart; Green-berg Traurig and Elliot H. Scherker, Miami; Sonya Rudenstine for the Florida Association of Criminal Defense Lawyers and the Miami Chapter of the Florida Association of Criminal Defense Lawyers, Gaines-ville, as amicus curiae.
    Before SHEPHERD, C.J., and SALTER and FERNANDEZ, JJ.
   SALTER, J.

The State of Florida appeals an order granting a motion by defendant Darrell Gibson to suppress deoxyribonucleic acid (DNA) evidence obtained, analyzed, and placed in a law enforcement database with Gibson’s uncoerced written consent. We reverse.

I. The Record and Proceedings Below

In May 2012, Gibson approached a Miami-Dade police officer on the street near the scene of a homicide-arson investigation in progress. After Gibson indicated that he lived on the same block and might have •information about the incident, he was brought to a detective investigating the crime scene. Gibson spoke freely with the detective for about a half-hour.

The detective asked Gibson if he would sign a “Consent to Provide DNA Specimen for Laboratory Analysis” and provide DNA, apparently to rule out Gibson as a suspect in the investigation. Gibson asked no questions about the form before signing it. The form provides:

I, DARREL T. GIBSON, HEREBY FREELY AND VOLUNTARILY CONSENT TO PROVIDE MDPD POLICE OFFICERS WITH A MOUTH SWAB SPECIMEN FOR INVESTIGATIVE PURPOSES. I HAVE BEEN FULLY INFORMED THAT THIS SPECIMEN WILL BE ENTERED INTO A DNA DATABASE AFTER ANALYSIS.
I 'HAVE BEEN FULLY INFORMED THAT THE INFORMATION MAY BE AVAILABLE TO MY PHYSICIAN UPON MY REQUEST, AND IT WILL REMAIN CONFIDENTIAL AND BE USED FOR NO PURPOSES OTHER THAN INVESTIGATION, WHICH MAY LEAD TO CRIMINAL PROSECUTION.
I FULLY UNDERSTAND THAT I HAVE A RIGHT TO REFUSE TO GIVE THIS SPECIMEN. I HAVE READ AND UNDERSTAND THE ABOVE STATEMENT AND I CONSENT TO PROVIDE THIS SPECIMEN OF MY OWN FREE WILL WITHOUT ANY THREATS OR PROMISES HAVING BEEN MADE TO ME.
ADDITIONALLY, IN THE EVENT I CANNOT PROVIDE PROPER IDENTIFICATION, I VOLUNTARILY AGREE TO PROVIDE MY THUMBPRINTS AT THE TIME OF THE SWAB COLLECTION TO MDPD POLICE OFFICERS. ‘

The form did not include a case number or any reference to the 2012 homicide-arson investigation. The detective then took four swabs of cells from Gibson’s cheek and turned them over to the crime laboratory for DNA analysis. The analysis produced a DNA profile that was placed in the Combined DNA Index System (CODIS), a law enforcement database and software system facilitating computer-based comparison analysis in much the same way fingerprints are digitized, stored, and compared by law enforcement software and analysts.

Although Gibson’s DNA profile did not produce a potential match to any 2012 homicide-arson evidence, it did produce a match with DNA samples obtained in connection with an open 2008 case involving the sexual assault and attempted murder of a 53-year-old woman in Miami. After further investigation, Gibson was arrested and charged with two counts of sexual battery and one count of attempted murder in the 2008 case.

Gibson moved to suppress the DNA sample and comparison evidence on the basis that the scope of the uncoerced, knowing, voluntary, and written consent form signed by him did not authorize law enforcement use of his DNA for any purpose other than the 2012 homicide-arson investigation. The trial court granted the motion, and this appeal by the State followed.

II. Analysis

The trial court’s order ignores a substantial, consistent body of state and federal law that analogizes DNA specimens, profiles, and databases to an older system of biometric identification — fingerprints. See, e.g., Anderson v. Commonwealth, 274 Va. 469, 650 S.E.2d 702, 705 (2007), (citing, among other cases, Jones v. Murray, 962 F.2d 302 (4th Cir.1992) and United States v. Sczubelek, 402 F.3d 175 (3d Cir.2005), cert, denied, 548 U.S. 919, 126 S.Ct. 2930, 165 L.Ed.2d 977 (2006)). We have cited and followed Anderson on that issue. Myles v. State, 54 So.3d 509, 512 (Fla. 3d DCA 2010).

It is also well settled in federal opinions that have addressed the issue, and in the Florida state courts as well, that law enforcement’s “matching of a lawfully-obtained identification record against other records in its lawful possession does not infringe on an individual’s legitimate expectation of privacy.” Boroian v. Mueller, 616 F.3d 60, 67 (1st Cir.2010). See also Johnson v. Quander, 440 F.3d 489, 499 (D.C.Cir.2006). In Washington v. State, 653 So.2d 362, 364 (Fla.1994), Anthony Washington “freely and voluntarily” provided hair and blood samples after being told the samples could prove or disprove his guilt in a sexual battery case unrelated to an earlier sexual battery and murder case in which law enforcement already suspected Washington was the perpetrator. The hair and blood samples, together with DNA analysis obtained from the victim’s body and Washington’s blood, were part of the evidence at the trial of the earlier-crime. Washington was found guilty of the earlier sexual battery and murder, and he was sentenced to death.

In rejecting Washington’s claim that his hair and blood samples could not be used to inculpate him in the.earlier sexual battery and murder case and should have been suppressed, the Florida Supreme Court found that “once the samples were validly obtained, albeit in an unrelated case, the police were not restrained from using the samples as evidence in the murder case.” Id. at 364. The Court reaffirmed that holding in Wyche v. State, 987 So.2d 23, 27 (Fla.2008):

We further held in Washington that once the samples were validly obtained, they could be used in the unrelated murder prosecution. Thus, Washington established that when a defendant validly consents to the giving of the bodily substance, whether saliva, hair, or blood, for use in a criminal investigation, the characteristics of the substance can be used in investigations unrelated to the one for which the defendant was told the sample was collected. This holding is logical because the DNA profile derived from a bodily substance like saliva, hair, or blood is a constant identifying fact that does not change or disappear.

The trial court’s order would blaze new juridical trails by requiring, retrospectively, a more detailed disclosure in order to obtain consent to a buccal swab, DNA analysis, and inclusion of the resulting profile in the CODIS database. Because of the trial court’s concern regarding “the encroachment of advancing technology,” and that court’s view that Gibson was giving his “unique genetic code to governments and government functionaries around the world, to use when they like as-often as they like, for whatever purposes they like,” the trial court held that the scope of Gibson’s consent should be confined to limit the use of his DNA to the homicide-arson investigation for which it was originally sought. The trial court’s analysis of the written, signed consent form was based on an explicit predicate that “the case at bar cannot be adjudicated without addressing the extent to which the lay public is conversant with forensic DNA technology” and “the extent to which that technology is taken into account by an ordinary member of the public in fashioning a voluntary consent.”

Our analysis and conclusions are otherwise, based on three sources of authority: (a) the language of the consent form and the absence of any verbal representation that the detective’s use of Gibson’s DNA profile would be limited to the 2012 homicide-arson investigation; (b) the holdings in federal courts and fourteen other states that have considered this issue; and (c) federal and Florida legislative initiatives that continue to address the potential for the misuse of our citizens’ private genetic information.

A. The Consent Form

The trial court rejected the unambiguous form of consent set forth at the outset of this opinion because it did not reveal a purportedly-unlimited scope — that Gibson had inadvertently “consented to having his DNA tested in connection with every unsolved crime as to which biological or genetic evidence exists or will ever exist — not just in Miami, not just in Florida, but throughout the United States and in dozens of foreign countries.” Of course, the same objection could be asserted with respect to fingerprints, but that objection has also been rejected by the federal and Florida courts.

The determinative phrases of the consent, and thus the scope of the use of the specimen, are: (1)' that the mouth swab specimen would be used for “investigative purposes,” with “purposes” in the plural and no limitation specified; and (2) “that this specimen will be entered into a DNA database after analysis,” disclosing that the specimen would be analyzed and that it would go into a collection of other DNA analyses used for those “investigative purposes.”

Applying the objective reasonableness test of Illinois v. Rodriguez, 497 U.S. 177, 110 S.Ct. 2793, 111 L.Ed.2d 148 (1990), a reasonable person in Gibson’s position would have understood that he was relinquishing the physical possession of cells swabbed from his cheek for analysis by law enforcement authorities and entry into a DNA database. Once taken from him with his consent, those cells are not significantly different than a blood or hair sample — they cannot be restored to their former location in Gibson’s body, and there is no reason to do so. Gibson did not question or challenge law enforcement’s right to possess and use — for investigative purposes — that cell sample and the DNA within it.

In Florida v. Jimeno, 500 U.S. 248, 251, 111 S.Ct. 1801, 114 L.Ed.2d 297 (1991), it was held to be objectively reasonable for a law enforcement officer, after validly obtaining consent to search an automobile, to open a closed paper bag on the automobile’s floor — because, among other reasons, the suspect “did not place any explicit limitation on the scope of the search.” In the present case, Gibson also placed no explicit limitation on the scope of his consent to the analysis and use of his DNA for investigative purposes.

The trial court concluded, and Gibson argues, that CODIS is not just a database, but rather a complex software infrastructure requiring additional disclosure in the consent form. As detailed previously and below, however, controlling federal and state precedent are otherwise. The CO-DIS database, or “databank” as it is sometimes identified, meets the dictionary definition of “database” as that term was used in the consent form: “a usually large collection of data organized especially for rapid search and retrieval (as by a computer).” The United States Courts of Appeals for the Second and Ninth Circuits have also referred to CODIS as a database. Amerson, 483 F.3d at 76 (stating that CODIS is “a national database”); United States v. Kincade, 379 F.3d 813, 819 (9th Cir.2004) (identifying CODIS as “a massive centrally-managed database linking DNA profiles culled from federal, state, and territorial DNA collection programs, as well as profiles drawn from crime-scene evidence, unidentified remains, and genetic samples voluntarily provided by relatives of missing persons.”).

B. Persuasive Analysis from, Federal and State Courts

The federal cases previously cited have upheld the use of DNA profiles obtained lawfully with comparison-testing and use in an unrelated criminal investigation. The Maryland Court of Special Appeals recently surveyed state law cases on this issue and summarized them in Varriale v. State of Maryland, 218 Md.App. 47, 96 A.3d 793, 797 n. 3 (2014):

Many other states have also held that the Fourth Amendment does not bar the police from using lawfully-obtained DNA samples in unrelated criminal investigations. See Washington v. State, 653 So.2d 362, 364 (Fla.1994); Pace v. State, 271 Ga. 829, 524 S.E.2d 490, 498 (Ga. 1999); State v. Hauge, 103 Hawai’i 38, 79 P.3d 131, 145 (Haw.2003); Smith v. State, 744 N.E.2d 437, 439 (Ind.2001); Commonwealth v. Gaynor, 443 Mass. 245, 820 N.E.2d 233, 243 (Mass.2005); State v. Bowman, 337 S.W.3d 679, 685 (Mo.2011); State v. Notti, 2003 MT 170, 316 Mont. 345, 71 P.3d 1233,1238 (Mont. 2003); Herman v. State, 122 Nev. 199, 128 P.3d 469, 473 (Nev.2006), overruled in part on other grounds, Nunnery v. State, 263 P.3d 235 (Nev.2011); People v. Baylor, 97 Cal.App.4th 504, 118 Cal. Rptr.2d 518, 521 (Cal.Ct.App.2002); People v. Collins, 250 P.3d 668, 674 (Colo.Ct.App.2010); State v. Barkley, 144 N.C.App. 514, 551 S.E.2d 131, 135 (N.C.Ct.App.2001); People v. King, 232 A.D.2d 111, 117, 663 N.Y.S.2d 610 (N.Y.App.Div.1997); State v. McCord, 349 S.C. 477, 562 S.E.2d 689, 693 (S.C.Ct.App.2002); Pharr v. Commonwealth, 50 Va.App. 89, 646 S.E.2d 453, 458 (Va.Ct.App.2007).

Our research has disclosed no federal or state authority suppressing the use of DNA profile evidence on facts similar to those in the record here, including the failure by a law enforcement officer to explain in detail “forensic DNA technology” or the longevity and reach of a profile entered in the CODIS database.

C. Legislation Addresses Permissible and Prohibited Uses

The trial court’s concerns regarding the private personal information that might be gleaned from DNA — even from the “junk DNA” profiles created as unique identifiers in the CODIS system — have been considered by Congress and the Florida legislature. There is an obvious need to balance the importance of DNA profiles as a benefit to law enforcement and wrongfully-convicted persons alike with the privacy concerns expressed by the trial court.

The federal legislation, principally 42 U.S.C. § 14131 et seq., provides authority for, and limitations on, the collection and use of DNA samples. These statutes have been amended as DNA technology has evolved. 42 U.S.C. § 14132(d) “mandates expungement of DNA samples upon an arrestee’s showing of discharge or acquittal or a convict’s showing that the conviction was overturned.”

In Florida, section 943.325, Florida Statutes (2012), titled “DNA database,” begins, “The Legislature finds that DNA databases are important tools in criminal investigations, in the exclusion of individuals who are the subject of criminal investigations or prosecutions and in detecting recidivist acts.” Subparagraph (16) of that statute provides the circumstances under which a person may compel the removal of his or her DNA sample and analysis from the statewide DNA database.

A separate statute, section 760.40, Florida Statutes (2012), the “DNA Database Act,” regulates the performance and use of DNA analysis, but does not apply to “criminal prosecution,” determinations of paternity, or DNA analysis conducted under section 943.325. The balancing of the competing law enforcement and privacy interests is, in short, a matter of continuing legislative attention.

III. Conclusion

Federal and Florida courts, as well as those of other states, have not interpreted the Fourth Amendment to require a more detailed disclosure and consent requirement of the kind demanded by the trial court. To the contrary, DNA samples, profiles, and databases have been assessed in substantially the same way as other biometric identifiers, particularly fingerprints. The trial court’s order is a substantial and unsupported departure from controlling precedent.

The suppression order is reversed and the case remanded for further proceedings.

      . The consent form included spaces for the name, race, sex, date of birth, address, Social Security number, and I.D. number (Florida driver’s license), above the printed consent provisions. These spaces all were completed to identify the appropriate details relating to Gibson. Below the printed consent provisions, lines were provided for the signature of "CONSENTING INDIVIDUAL,” and two witnesses, as well as lines for the date and time. Gibson and two witnesses signed the form and entered the date and time.

      . Fingerprints are now also digitized, added to the Integrated Automated Fingerprint Identification System (IAFIS), and compared by the Federal Bureau of Investigation and other law enforcement authorities.

      . U.S. Circuit Judge Calabresi observed in United States v. Amerson, 483 F.3d 73, 85 (2d Cir.2007), that "The so-called ‘junk-DNA’ sequences stored in CODIS are not currently associated with any known physical or medical characteristics. Moreover, the [DNA] Act severely limits the circumstances and purposes for which the DNA profiles can be released and provides' significant penalties for any misuse of the DNA samples or profiles.” (internal footnote and citation omitted).

      . That may be an overstatement; the order was presaged by United States Court of Appeals Judge Alex Kozinski’s dissent in United States v. Kincade, 379 F.3d 813, 871 (9th Cir.2004), including a concern regarding “this power of technology to shrink the realm of guaranteed privacy.” (quoting Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001)). In Kincade, however, the Ninth Circuit debated the circum- ■ stances under which DNA profiling may be compelled, not those in which consent has been obtained (as in the present case).

      ."Order on Defendant’s Motion to Suppress,” August 29, 2013, State v. Gibson, Case No. F12-16646 (Fla. 11th Jud. Cir.), p. 17 and n. 3.

      . Id. at p. 3.

      . Id. at p. 6.

      . "DNA Databanking: Selected Fourth Amendment Issues and Analysis," Congressional Research Service Report R41847, June 6, 2011 (available atwww.crs.gov) (hereafter, "DNA Databanking”).

      . www.merriam-webster.com/dictionary/ database (site last visited Oct. 29, 2014).

      .“Modern DNA testing can provide powerful new evidence unlike anything before. Since its first use in criminal investigations in the mid-1980s, there have been several major advances in DNA technology, culminating in STR [short tandem repeat] technology. It is now often possible to determine whether a biological tissue matches a suspect with near certainty." Dist. Attorney’s Office for Third fold. Dist. v. Osborne, 557 U.S. 52, 62, 129 S.Ct. 2308, 174 L.Ed.2d 38 (2009).

      . B. Garrett, Convicting the Innocent, p. 217 and passim, Harvard Univ. Press (2011). As Professor Garrett observes, DNA evidence has not only sustained claims of actual innocence; in many cases it has also resulted in the conviction of the actual perpetrator. Id. at pp. 231-34.

      . “DNA Databanking,” at p. 7. The report also describes, at footnote 62, some of the complaints about the expungement provisions.


author: PER CURIAM.

text:
    Edwin ESTEVEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2787.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2014.
    Martin J. Beguiristain, for appellant.
    Pamela Jo Bondi, Attorney General, and Shayne R. Burnham, Assistant Attorney General, for appellee.
    Before SUAREZ, ROTHENBERG and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See State v. Hankerson, 65 So.3d 502 (Fla.2011); Revels v. State, 666 So.2d 213 (Fla. 2d DCA 1995).


author: SCALES, J.

text:
    Luz H. SUAREZ, et al., Appellants, v. SPACE COAST CREDIT UNION, Appellee.
    No. 3D14-565.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2014.
    Advocate Law Groups of Florida, P.A., and Monique Sadarangani, for appellants.
    Blaxberg, Grayson & Kukoff, P.A., and Gaspar Forteza, Miami, for appellee.
    Before SHEPHERD, C.J., and LAGOA and SCALES, JJ.
   SCALES, J.

Luz H. Suarez, the Appellant and defendant below, appeals from a final summary judgment of foreclosure. Upon Ap-pellee Space Coast Credit Union’s confession of error, we reverse. The Appellee’s affidavit in support of its motion for summary judgment was untimely and, therefore, should not have been considered by the trial court.

On January 20, 2014, the Appellee filed its amended motion for final summary judgment of foreclosure. Appellee filed a supporting affidavit on February 6, 2014. The trial court heard the summary judgment motion on February 14, 2014, just eight days after the Appellee filed its affidavit.

All summary judgment evidence must be filed and served no later than twenty days before the hearing on the motion. Fla. R. Civ. P. 1.510(c). A summary judgment based on untimely summary judgment evidence upon which the movant relies is subject to reversal. See, e.g., Coastal Caribbean Corp. v. Rawlings, 361 So.2d 719 (Fla. 4th DCA 1978).

We reverse the summary judgment and remand to the trial court for proceedings consistent with this opinion.

Reversed and remanded.


text:
    BARNSDALE HOLDINGS LLC, Appellant, v. DEUTSCHE BANK NATIONAL TRUST COMPANY, Appellee.
    No. 3D14-656.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2014.
    Ice Appellate, and Thomas Erskine Ice, for appellant.
    Morris, Laing, Evans, Brock & Kennedy, Chtd., and Khari E. Taustin, Jeremy W. Harris, Masimba M. Mutamba, and Angela Barbosa Wilborn, for appellee.
    Before WELLS and SUAREZ, JJ., and LEVY, Senior Judge.
   PER CURIAM.

Affirmed without prejudice to Barnsdale Holdings LLC having the right to raise the issue of insufficiency of service in its answer.


text:
    RACETRAC PETROLEUM, INC., Petitioner, v. Elizabeth SEWELL, etc., Respondent.
    No. 3D14-974.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2014.

      Luks, Santaniello, Petrillo & Jones, and Daniel J. Santaniello and Doreen E. Lasch, Fort Lauderdale, for petitioner.
    Schlesinger Law Offices, P.A., and Sheldon J. Schlesinger and Crane A. John-stone, Fort Lauderdale; Burlington & Rockenbach, P.A., and Philip M. Burlington and Nichole J. Segal, West Palm Beach, for respondent.
    Before ROTHENBERG, LOGUE, and SCALES, JJ.
   SCALES, J.

Petitioner, RaceTrac Petroleum, Inc. (RaceTrac), defendant below, seeks a writ of certiorari quashing the trial court’s order denying RaceTrac’s motion for protective order and granting plaintiffs motion to compel. Because the standard for cer-tiorari relief has not been met, RaceTrac’s petition is denied.

I. Facts

In 1997, RaceTrac entered into a contract to purchase real property on Northeast 8th Street/Campbell Drive (Campbell Drive) in Homestead, Florida for the purpose of operating a gas station/convenience store.

The purchase and sale contract between RaceTrac (as purchaser) and the property’s seller conditioned the sale upon the purchaser obtaining approval from all necessary governmental agencies to construct a median cut on Campbell Drive to align with the existing curb cut on the southern property line of the subject property.

The median cut would allow for direct ingress and egress between the property and the eastbound lanes of Campbell Drive without requiring eastbound drivers to make a U-turn to access the gas station. In 1999, RaceTrac obtained the necessary approvals and closed on the property (the subject gas station).

Several years later, in 2010, Respondent, Elizabeth Sewell (Sewell), as legal guardian of her daughter Crystal Sewell (Crystal), brought suit against RaceTrac to recover damages suffered by Crystal in a car accident. The accident occurred in 2007, near the subject gas station.

Sewell alleged that Crystal was traveling east in the left lane of Campbell Drive when a vehicle rapidly exited the subject gas station, crossed the two westbound traffic lanes of Campbell Drive, and passed through the break in the median into Crystal’s eastbound lane. As -a result, according to Sewell’s allegations, Crystal lost control of her car, collided with a palm tree, and was seriously injured.

Sewell alleged that RaceTrac was negligent for a host of reasons primarily regarding posting of signage at the subject gas station (e.g., failing to safely direct and control the vehicles leaving the subject gas station; failing to post appropriate stop signs at the exit to the subject gas station, or at the median; failing to post signage at the subject gas station’s exit or on the median facing its exit, advising or alerting vehicle operators not to cross the westbound traffic lanes on Campbell Drive; failing to erect signage at the subject gas station’s exit or on the median instructing motorists that they could only turn left from the subject driveway; maintaining the driveway markings and arrows that allowed, directed, and encouraged motorists exiting the subject gas station to cross the westbound lanes of Campbell Drive; etc.).

Pursuant to Florida Rule of Civil Procedure Rule 1.310(b)(6) Sewell noticed RaceTrac seeking to depose: (1) the corporate representative with the most knowledge of selecting locations for RaceTrac gas stations; and (2) the corporate representative with the most knowledge of selecting the location for the subject gas station.

In response to Sewell’s rule 1.310(b)(6) notice, RaceTrac identified Lesliegh Batchelor, director of real estate, as the appropriate corporate representative.

Batchelor began working for RaceTrac in 1994 as a real estate representative. Batchelor was promoted to a vice president of real estate in approximately 1997. Batchelor ceased employment with Race-Trac in 2000, and returned to work at RaeeTrac in 2005 as the manager of real estate.

Sewell took ■ Batchelor’s deposition at RaceTrac’s corporate offices in Atlanta. During her deposition, Batchelor testified that several potential sites for the subject gas station, including the subject site, were selected in 1994, prior to her employment with RaeeTrac. Batchelor testified that Mark Hunter, who was another vice president of real estate until he left the company in 1998, was the person initially tasked with selecting potential sites for the subject gas station. Batchelor also testified that Max Lenker, president of RaeeTrac, was involved in the site selection process of the subject site.

According to Batchelor’s testimony, after Hunter narrowed down potential locations for the subject gas station, Lenker would visit potential sites and evaluate the sites based on certain criteria, such as proximity to a limited access road, traffic count, and visibility.

Batchelor further testified that Carl Bolch, Jr., who was another vice president of real estate during the relevant time, was also involved in the site selection and approval process for the subject gas station.

Currently, Hunter is no longer employed by RaeeTrac; Lenker is still Race-Trac’s president, and Bolch is now Race-Trac’s CEO.

Ostensibly, because Batchelor testified that Hunter, Lenker, and Bolch were involved in the selection of the subject gas station’s location, Sewell’s counsel deemed it necessary to take the depositions of these three high-level current and former RaeeTrac officers.

RaeeTrac resisted Sewell’s attempts to take these depositions, resulting in Race-Trac filing a motion for protective order and Sewell filing a motion to compel.

RaeeTrac argued that rule 1.310(b)(6) provides the mechanism for a corporate entity to identify the person with knowledge of the relevant matters, and, because Batchelor provided the information requested (as identified in Sewell’s rule 1.810(b)(6) deposition notice), Sewell could not compel the depositions of additional corporate representatives.

Essentially, RaeeTrac argued that, unless the rule 1.310(b)(6) designee fails to give the information requested, a plaintiff may not compel the deposition of any other corporate representatives, even if such other corporate representatives were identified by the rule 1.310(b)(6) designee as having knowledge of the same subject matter. •

A general magistrate held a hearing on Sewell’s motion to compel and RaeeTrac’s motion for protective order. The magistrate issued a report and recommendation granting Sewell’s motion to compel and denying RaceTrac’s motion for protective order.

RaeeTrac filed exceptions to the general magistrate’s order, and, on April 3, 2014, the trial court overruled RaceTrac’s exceptions and adopted the general magistrate’s report and recommendations. Pursuant to Florida Rule of Civil Procedure 1.280(c)(2), however, the trial court limited the depositions of Hunter, Lenker, and Bolch to one hour each.

RaceTrac now petitions this Court to enter a writ of certiorari quashing the trial court’s order.

II. Standard for Certiorari Review of Discovery Orders

A party petitioning for certiorari review of a discovery order must demonstrate that the contested order: (1) departs from the essential requirements of the law; (2) results in a material injury for the remainder of the case; (3) cannot be corrected on postjudgment appeal. Bd. of Trustees of the Internal Improvement Trust Fund v. Am. Educ. Enters. LLC, 99 So.Sd 450, 454 (Fla.2012).

Trial courts are accorded broad discretion in the treatment of discovery problems, and such orders reviewed pursuant to a petition for writ of certiorari will not be overturned absent departure from the essential requirements of law. See Nestor v. Posner-Gerstenhaber, 857 So.2d 958, 955 (Fla. 3d DCA 2003) (“Because the trial court has broad discretion in discovery matters ... and there has been no clear departure from the essential requirements of law which results in a miscarriage of justice, we deny certiorari review.”) (citation omitted).

III. Analysis

As framed by RaceTrac, the issue on certiorari review is whether rule 1.310(b)(6) prevents a party from deposing officers not identified by the corporation in response to a rule 1.310(b)(6) notice when the rule 1.310(b)(6) designee testifies that other officers in the company have the same or similar knowledge.,

RaceTrac argues that its production of witnesses who had personal knowledge of the subjects designated in Sewell’s rule 1.310(b)(6) notices fully complied with the requisites of the rule, and the trial court departed from the essential requirements of law by allowing Sewell to depose other RaceTrac officers who may also have personal knowledge of those subjects. We disagree.

In 1972, rule 1.310(b)(6) was amended to conform with Federal Rule of Civil Procedure 30(b)(6) (as amended in 1970). The rule now permits the deposition of a legal entity through a representative knowledgeable as to specifically identified issues. After receiving the rule 1.310(b)(6) notice, the entity must designate the appropriate person or persons to be deposed on the issues identified in the notice. In re Florida Bar: Rules of Civil Procedure, 265 So.2d 21, 30 (Fla.1972) (Committee Note to 1972 amendment); Plantation-Simon Inc. v. Bahloul, 596 So.2d 1159, 1160 (Fla. 4th DCA 1992).

Importantly, rule 1.310(b)(6) expressly provides that the outlined procedure is not exclusive: “This subdivision does not preclude taking a deposition by any other procedure authorized in these rules.” Fla. R. Civ. P. 1.310(b)(6). Thus, the rule appears to contemplate the ability of a party to take additional depositions of corporate representatives, albeit subject to all general discovery provisions of rule 1.280.

If a witness identified by an entity pursuant to a rule 1.310(b)(6) notice is deposed, and identifies another person associated with the entity who may also have knowledge of the same subject matter identified in the rule 1.310(b)(6) notice, the trial court is almost always in a better position than the appellate court to determine whether the deposing party is entitled to depose the identified person. Cf Plantation-Simon, 596 So.2d at 1161 (“[T]he trial judge is given discretion to determine whether either party is misusing this discovery device [simple notice to the corporate party].... [I]f the trial judge finds that seriatim depositions of corporate officers has [sic] created a burden on the corporate party, the court is empowered to alleviate that burden in a proper case by, e.g., limiting the examining party to the designation procedure.”).

In such circumstances, rule 1.280(c), governing protective orders, gives the trial court significant discretion in determining whether such potentially cumulative depositions should occur, and, if so, what restrictions should be imposed. See Waite v. Wellington Boats, Inc., 459 So.2d 425, 426 (Fla. 1st DCA 1984) (“Trial courts must be accorded broad discretion in the treatment of discovery problems through the employment of the protective provisions contemplated by Rule 1.280”).

In this case, while the trial court allowed the potentially cumulative depositions, the trial court restricted each deposition to no longer than an hour to mollify the alleged disruption of RaceTrac’s corporate operations and limit the potentially redundant or irrelevant testimony.

Hence, while we are not unsympathetic to RaceTrac’s position, on this record, we cannot conclude that the trial court departed from the essential requirements of law.

IY. Conclusion

Because RaceTrac has not established that the trial court departed from the essential requirements of law, its petition for certiorari is denied.

Petition denied.

      . Florida Rule of Civil Procedure 1.310(b)(6) reads as follows:
      (b) Notice; method of Taking; Production at Deposition.
      (6) In the notice a party may name as the deponent a public or private corporation, a partnership or association, or a governmental agency, and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to do so, to testify on its behalf and may state the matters on which each person designated will testify. The persons so designated shall testify about matters known or reasonably available to the organization. This subdivision does not preclude taking a deposition by any other procedure authorized in these rules.

      . It appears from the record that Sewell served subpoenas on RaceTrac seeking to depose corporate representatives with the "most knowledge” on the specified topics. First, we note that "[r]ule 1.310(b)(6) does not require — or for that matter even contemplate— that the corporation produce the witness with the 'most knowledge’ on the specified topic(s) .... ” Carriage Hills Condo., Inc. v. JBH Roofing & Constructors, Inc., 109 So.3d 329, 334 (Fla. 4th DCA 2013). Second, we note that although Sewell subpoenaed RaceTrac seeking to depose corporate representatives with knowledge on the specified topics, both parties characterize such subpoenas as notices of deposition pursuant to rule 1.310(b)(6). For ease of reference, throughout this opinion, we will refer to such subpoenas as rule 1.310(b)(6) notices. See Logitech Cargo, U.S.A., Corp. v. JW Perry, Inc., 817 So.2d 1033 (Fla. 3d DCA 2002) (quashing trial court's order that required defendant to subpoena, rather than simply notice, under rule 1.310(b)(6), corporate representatives of plaintiff).

      . Sewell also noticed RaceTrac seeking to depose the corporate representative with the most knowledge of designing RaceTrac gas stations. RaceTrac identified Max McBrayer, who was vice president of engineering when RaceTrac purchased the property, as the appropriate corporate representative. Sewell deposed McBrayer.

      . In approximately 1997, Batchelor was promoted to a vice president of real estate to replace Mark Hunter, who was then a vice president of real estate. Hunter ceased employment with RaeeTrac in approximately 1998. Batchelor was promoted prior to Hunter’s departure.

      . In 2013, Batchelor’s job title technically changed from manager of real estate to director of real estate, although her job duties did not change.

      . Florida Rule of Civil Procedure 1.280(c) reads, in its entirety, as follows:
      (c) Protective Orders. Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following: (1) that the discovery not be had; (2) that the discovery may be had only on specified terms and conditions, including a designation of the time or place; (3) that the discovery may be had only by a method of discovery other than that selected by the party seeking discovery; (4) that certain matters not be inquired into, or that the scopé of the discovery be limited to certain matters; (5) that discovery be conducted with no one present except persons designated by the court; (6) that a deposition after being sealed be opened only by order of the court; (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way; and (8) that the parties simultaneously file specified documents or information enclosed in sealed envelopes to be opened as directed by the court. If the motion for a protective order is denied in whole or in part, the court may, on such terms and conditions as are just, order that any party or person provide or permit discovery. The provisions of rule 1.380(a)(4) apply to the award of expenses incurred in relation to the motion.

      . Sewell disputes RaceTrac’s characterization of Hunter, Lenker, and Bolch as having the "same or similar" knowledge as Batchelor. According to Sewell, Hunter, Lenker, and Bolch have knowledge that is "unique” from Batchelor's knowledge.

      . The parties stipulate that Florida has not adopted the "apex doctrine,” which effectively shields upper level executives and corporate officers from depositions absent a showing that such top executives and officers have unique or special knowledge of the events in question and that the party seeking the deposition is unable to obtain the information from using a less intrusive means. See Gen. Star Idem. Co. v. Atl. Hospitality of Fla., LLC, 57 So.3d 238, 239 n. 3 (Fla. 3d DCA 2011) (noting that this Court "has not expressly adopted the 'apex doctrine.’ ”); Citigroup Inc. v. Holtsberg, 915 So.2d 1265, 1269 (Fla. 4th DCA 2005) (“[N]o reported Florida appellate court opinion has expressly adopted the [apex] doctrine .... ”).

      . Our conclusion is based exclusively on the elements we are required to consider in reviewing whether to grant a petition seeking a writ of certiorari challenging a discovery order. We offer no opinion as to the relevance of the testimony of the three corporate officers involved in the purchase of the property almost a decade before a car accident occurred off of the property; that issue is not before us.


text:
    Roy MORLA, Appellant, v. ARMANI INVESTMENTS LLC, et al., Appellees.
    No. 3D14-1016.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2014.
    Kevin S. Opolka, for appellant.
    Richard J. Diaz; Gustavo Rodriguez, for appellees.
    Before SHEPHERD, C.J., and SALTER and FERNANDEZ, JJ.
   SALTER, J.

Roy Moría appeals an order dismissing his case for lack of prosecution. Although this case is well past its sell-by date, we are constrained by Florida Rule of Civil Procedure 1.420(e) and our own precedent to vacate the order of dismissal and remand the case for further (and, hopefully, more active) prosecution.

A straightforward civil complaint was filed by Mr. Moría in November 2006 against the appellees. Mr. Moría alleged that he had been a lessee of certain commercial property, and that certain tools, parts, and equipment that he owned were wrongfully removed from the property in 2004 by a purchaser of the premises.

Following sporadic pretrial discovery, and after the filing of a “notice of unavailability/absence” six years into the case, a further 13 months of record inactivity followed. The docket indicates that a computer-generated “Notice of Lack of Prosecution” was generated on January 16, 2014, and set for a hearing on April 4, 2014. The only version of such a document in the actual record, however, bears the trial court’s signature and a stamp indicating that it was signed and served on February 5, 2014. This version also set the hearing on April 4, 2014, only 58 days after the stamped signature date on the notice.

The parties agree, and the record confirms, that Mr. Morla’s counsel filed a “Plaintiffs Response (Demonstrating Record and Non-Record Activity) and Good Cause to Notice of Lack of Prosecution,” on March 27, 2014, in addition to certain affidavits and a request for production. That flurry of activity occurred within the 60-day period measured from the date of the signature on the “Notice of Lack of Prosecution” and eight days before the scheduled hearing on the matter.

Counsel for Mr. Moría and for the defendants/appellees appeared at the hearing on April 4, 2014. After hearing argument, the trial court entered a computer-generated form order dismissing the case for lack of prosecution, checking the box stating:

THE COURT FINDS that no party opposing the motion to dismiss for lack of prosecution having appeared as ordered and demonstrated the existence of the requisite record activity or that action had been stayed nor having timely filed a showing of good cause in writing, if required, and therefore, in the absence of any evidence to the contrary, the Court finds that (1) notice prescribed by Rule 1.420(e) was timely served; (2) there was no record activity during the 10 months immediately preceding service of the foregoing notice; (3) there was no record activity during 60 days immediately following service of the foregoing notice; (4) no stay has been issued or approved by the Court; and (5) no party has shown good cause why this action should remain pending; THEREFORE, IT IS ORDERED that this action is dismissed for lack of prosecution.

Upon the record before us, however, Mr. Morla’s counsel did appear as ordered at the hearing, there was record activity during the 60-day period following service of the notice, and there was at least a timely attempt to show good cause why the case should remain pending. Under those circumstances, we are compelled to vacate the order of dismissal and remand the case for a resumption of prosecution. Deutsche Bank Nat’l Trust Co. v. Basanta, 88 So.3d 216 (Fla. 3d DCA 2011). We suspect and trust that, ten years after the alleged incidents giving rise to the case below, this case will proceed more expeditiously than it has to this point.

Order vacated, case remanded for further proceedings.


text:
    José CONDÉ, Appellant, v. MAIN STREET FUND III, LLC, Appellee.
    No. 3D14-2128.
    District Court of Appeal of Florida, Third District.
    Nov. 19, 2014.
    José Condé, in proper person.
    The Law Offices of Neale J. Poller, and Neale J. Poller (Fort Lauderdale), for ap-pellee.
    Before SALTER, FERNANDEZ and SCALES, JJ.
   Order Dismissing Appeal

PER CURIAM.

A final judgment of foreclosure was rendered by the trial court in this case on October 16, 2013. No appeal was taken from the final judgment.

On June 24, 2014, the trial court issued a certificate of sale for the subject property.

Pursuant to section 45.031(5), Florida Statutes (2013), objections to the sale are required to be filed within ten days after the filing of the certificate of sale.

According to the trial court docket, Appellant’s objections to the sale were filed on July 10, 2014 — sixteen days after the filing of the certificate of sale.

On August 14, 2014, the trial court held a hearing on Appellant’s objections to sale, and entered an order overruling Appellant’s objections.

Appellant filed this appeal of the trial court’s August 14, 2014 order on September 5, 2014.

On September 16, 2014, Appellee moved to dismiss the appeal, arguing that this Court lacked jurisdiction to hear the appeal of the challenged order.

On October 14, 2014, we entered an order denying Appellee’s motion to dismiss for lack of jurisdiction. In that same order, however, we ordered the Appellant to show cause as to why the appeal should not be dismissed because the trial court docket indicates that Appellant’s objections to sale were not filed within ten days after the filing of the certificate of sale as required by section 45.031(5).

On October 22, 2014, Appellant filed a motion seeking a ninety-day extension of time to file his initial brief. Appellant, however, did not respond to our October 14, 2014 show cause order and nothing in the record evidences that Appellant’s underlying objections to the foreclosure sale were timely filed.

Therefore, we dismiss the appeal. Appellant’s motion for extension of time to file his initial brief is denied as moot.

      . Oddly, on October 23, 2014, Appellee filed a submission to this Court captioned, "Appel-lee’s Opposition to Motion To Extend Time for Filing Response to Order To Show Cause.” Contrary to the caption of Appellee’s submission, however, Appellant never sought an extension of time to respond to this Court's show cause order; Appellant’s October 22, 2014 motion sought an extension of time to file his initial brief.
      While we are mindful that pro se litigants are afforded leniency in technical matters, pro se parties are nonetheless bound by the appellate rules and this Court’s direct orders. See Barrett v. City of Margate, 743 So.2d 1160, 1162 (Fla. 4th DCA 1999) ("In the history of jurisprudence, pro se litigants have frequently been granted leniency in technical matters .... Notwithstanding the fundamental principle of allowing pro se litigants procedural latitude, a practice effected to ensure access to the courts for all citizens,- pro se litigants are not immune from the rules of procedure.”) (citations omitted).


text:
    Sergio Alberto CASTILLO, Petitioner, v. Marlen CASTILLO, Respondent.
    No. 4D14-2522.
    District Court of Appeal of Florida, Fourth District.
    Nov. 19, 2014.
    Gary Kollin of Gary Kollin, P.A., Fort Lauderdale, for petitioner.
    Gregory F. Betancourt of Gregory F. Betancourt, P.A., Miami Lakes, for respondent.
   CORRECTED OPINION

PER CURIAM.

We grant petitioner’s petition for writ of prohibition, based on his sworn allegation that the trial court failed to allow him to present argument or additional evidence prior to ruling on respondent’s motion for temporary support in this post-dissolution proceeding. We find that this allegation is sufficient to place a reasonably prudent person in fear of not receiving a fair hearing on his legal claims. See Keating v. State, 110 So.3d 538, 539-40 (Fla. 4th DCA 2013); Wade v. Wade, 123 So.3d 697, 698 (Fla. 3d DCA 2013). We direct this case to be reassigned to a successor judge. Swida v. Raventos, 872 So.2d 413, 415 (Fla. 4th DCA 2004). We further vacate the trial court’s order granting respondent’s May 14, 2014 motion for temporary relief and attorney’s fees, as that order was entered subsequent to petitioner’s motion to disqualify the trial judge. Peterson v. Asklipious, 833 So.2d 262, 264 (Fla. 4th DCA 2002).

Petition for writ of prohibition granted.

DAMOORGIAN, C.J., CIKLIN and CONNER, JJ., concur.


author: WALLACE, Judge.

text:
    Melinda WHITE, Appellant, v. GUARDIANSHIP OF Gary L. LUBIN, Appellee.
    No. 2D13-5473.
    District Court of Appeal of Florida, Second District.
    Nov. 21, 2014.

      Keith D. Miller of Boswell & Dunlap LLP, Bartow, for Appellant.
    No appearance for Appellee.
   WALLACE, Judge.

Melinda White, a professional guardian, challenges the circuit court’s order granting her petition for fees and costs in part and denying it in part. Because the circuit court’s order denied Ms. White any compensation for certain services that she was required to perform on behalf of her ward, we reverse the circuit court’s order in part.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

Ms. White is a professional guardian. The ward, Gary L. Lubin, is an incapacitated adult. On January 3, 2011, the circuit court appointed Ms. White as the emergency temporary guardian of the person and property of Mr. Lubin. The circuit court appointed Ms. White as the plenary guardian of the person and property of Mr. Lubin on March 7, 2011.

After Ms. White’s appointment, she learned that Mr. Lubin had only minimal assets. He qualified for Medicaid, and his monthly income was barely sufficient to pay his expenses. As a result, Ms. White served as Mr. Lubin’s guardian without compensation for approximately three years.

In 2013, Ms. White received on behalf of Mr. Lubin a check for approximately $22,000. The receipt of the $22,000 was apparently unexpected. The funds represented the proceeds of the settlement of Mr. Lubin’s claim that had been pending for many years.

In September 2013, Ms. White filed a petition for her fees and costs covering the period from November 30, 2010, through August 21, 2013. She petitioned the court for the payment of fees of $16,032, representing 267.2 hours of her time billed at her regular rate of $60 per hour and $894.12 in expenses for mileage, copies, and faxes. Ms. White tentatively planned to use the balance of the $22,000 to pay for the services of her attorney and to set aside sufficient funds for Mr. Lubin’s burial. See Fla. Admin. Code r. 65A-1.712(2)(d) (2013) (excluding amounts designated for burial funds from an individual’s available resources for Medicaid qualification purposes).

Ms. White testified at a hearing on her petition and was questioned by the court. No one objected to the amount of the fees and costs requested by Ms. White. Mr. Lubin’s sister consented to the entry of an order authorizing the payment of the fees and costs requested. After the hearing, the circuit court granted Ms. White’s petition but disallowed 31.9 hours of her charges for time spent “reviewing and paying invoices,” resulting in a reduction of her requested compensation in the amount of $1914. The circuit court also reduced the amount claimed for costs in the amount of $134.40 based on its determination that Ms. White’s charges for copying and faxes were excessive.

II. FRAMING THE ISSUE

On appeal, Ms. White does not challenge the reduction in her claimed expenses, but she does challenge the circuit court’s refusal to award her any compensation for her time devoted to reviewing and paying Mr. Lubin’s bills. Our review of the record supports Ms. White’s claim that the circuit court appears to have disallowed all of her time entries for this particular activity. Thus the issue presented is whether the circuit court erred in denying Ms. White any compensation for the time she devoted to reviewing and paying the ward’s bills.

III. DISCUSSION

“The amount of guardian’s fees to be awarded as compensation for services rendered is in the discretion of the trial court, and its determination will not be disturbed unless there is a lack of competent, substantial evidence to support the award.” In re Guardianship of Sapp, 868 So.2d 687, 693 (Fla. 2d DCA 2004). A guardian is entitled to a reasonable fee for services rendered. § 744.108(1), Fla. Stat. (2013).

In seeking such fees, the guardian has the burden to establish through appropriate proof that the services claimed were actually performed and that the fees claimed for those services are reasonable. Based on that proof, the probate court has the discretion to determine the amount of the fees to which the guardian is reasonably entitled. This discretion includes the ability to rely on common sense and experience to adjust the time claimed for common or routine tasks. It also includes the discretion to deduct time claimed by a guardian for noncore, delegable tasks that are better performed by others and to deduct excess time claimed due to the guardian’s own inefficiency because such time is not expended for the benefit of the ward.

In re Guardianship of Shell, 978 So.2d 885, 889 (Fla. 2d DCA 2008) (citations omitted).

Obviously, as plenary guardian of the property, Ms. White was required to examine, approve, and pay Mr. Lubin’s bills. Some portion of her time must be properly chargeable for this task. A guardian is required by statute to account for and keep records of all disbursements made on behalf of the ward. § 744.3678(2), (3). In addition to the duty of paying the bills, the guardian has record-keeping responsibilities regarding that function:

The guardian must obtain a receipt, canceled check, or other proof of payment for all expenditures and disbursements made on behalf of the ward. The guardian must preserve all evidence of payment, along with other substantiating papers, for a period of 3 years after his or her discharge.

§ 744.3678(3). The guardian’s duties and responsibilities in this regard are substantial; they cannot be disregarded as trivial busy-work. Examining invoices, approving their payment, making the payment, and retaining the required records is part of the job of the guardian of the property. The guardian must be paid something for the work that he or she was appointed to perform and is required by law to perform.

Accordingly, the circuit court abused its discretion by arbitrarily reducing Ms. White’s charges by the entire amount charged over nearly a three-year period for review and payment of the ward’s invoices. We do not hold that the entire amount disallowed must be awarded, but some compensation is due to Ms. White for the work that the court appointed her to do and that she is required by law to do. See Thorpe v. Myers, 67 So.3d 338, 343-44 (Fla. 2d DCA 2011) (“To the extent that the services of a guardian are unnecessary or unproductive, the circuit court may reduce the requested compensation based on the factors listed in section 744.108(2) but may not deny compensation altogether.”).

IV. CONCLUSION

For the foregoing reasons, we affirm the circuit court’s order to the extent that it awarded Ms. White compensation of $16,032 and expenses of $894.12. We reverse the order to the extent that it denied her any compensation for her time devoted to reviewing and paying Mr. Lubin’s invoices. On remand, the circuit court shall reconsider the petition and award Ms. White reasonable compensation for these services. We also affirm the circuit court’s order designating Mr. Lubin’s sister as an interested person in the guardianship proceedings.

In closing, we note that Ms. White, to her credit, expended her time and resources on behalf of Mr. Lubin for almost three years without the expectation of receiving any compensation. The guardian’s receipt of the $22,000 on behalf of Mr. Lubin was a windfall. Ms. White is apparently committed to serving as Mr. Lubin’s guardian until the guardianship terminates as a result of his death. It is unlikely that she will receive any compensation for these additional services or that she will be reimbursed for the additional expenses that she incurs on Mr. Lubin’s behalf. We think that the circuit court should take all of the factors surrounding Ms. White’s service into account when it reconsiders her petition for compensation on remand. See § 744.108(2).

Affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

DAVIS, C.J., and SLEET, J. Concur.

      . Ms. White also argues that the circuit court erred in entering a separate order declaring the ward's sister to be an interested party in the guardianship proceedings. This argument is without merit and does not warrant further discussion.


author: WALLIS, J.

text:
    Gabriela ARQUETTE, Appellant, v. Derrik RUTTER, Appellee.
    No. 5D14-496.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2014.

      J. Brian Phillips, of J. Brian Phillips, P.A., Orlando, for Appellant.
    No Appearance for Appellee.
   WALLIS, J.

Appellant, Gabriela Arquette (“Mother”), appeals the denial of her motion to vacate the trial court’s order, which domesticated and modified a California child support order. Mother argues that the trial court lacked subject matter jurisdiction to modify the child support order because neither she nor the child reside in Florida. We agree and reverse.

Mother and her former husband, Derrik Rutter (“Father”), married in Florida, where one child was born on September 4, 2000. Shortly thereafter, the parties relocated to California with the child. On October 8, 2005, Mother obtained a final judgment of divorce — which included the child support order — from a California court. In 2005, Father returned to Florida, where he continues to reside. Mother and the child relocated to Georgia in 2007, where both currently reside.

On April 1, 2008, Father filed a petition to domesticate the California judgment and modify the child support order. On March 23, 2009, the trial court granted Father’s petition, domesticated the California judgment, and modified the child support order. On May 30, 2012, Mother filed a motion to vacate the trial- court’s order, contending that the trial court lacked both personal and subject matter jurisdiction under the federal Full Faith and Credit for Child Support Orders Act (“FFCCSOA”), 28 U.S.C. § 1738B (2012), and Florida’s Uniform Interstate Family Support Act (“UIFSA”), section 88.6111, Florida Statutes (2012). After a hearing, the trial court denied Mother’s motion to vacate. This appeal followed.

This court recently explained the circumstances, under the UIFSA, in which a Florida court may modify a child support order issued in another state:

[A]s is the case here, when not all of the parties reside in Florida, a Florida court may only modify the order under one of the following circumstances:
1. After notice and hearing the tribunal finds that
a. the child, individual obligee, and ob-ligor do not reside in the issuing state;
b. the petitioner seeks modification and is not a Florida resident; and
c. the Florida tribunal has personal jurisdiction over the respondent.
2. The tribunal finds that it has personal jurisdiction over an individual party or the child and that all of the individual parties have filed a consent in the issuing tribunal to the Florida tribunal’s modifying the support order and assuming continuing exclusive jurisdiction over it.

Trissler v. Trissler, 987 So.2d 209, 211-12 (Fla. 5th DCA 2008) (citing § 88.6111(1), Fla. Stat.). “The FFCCSOA is virtually identical to the UIFSA.” Id. at 210.

Here, neither the parents nor the child live in California. California has, therefore, lost continuing, exclusive jurisdiction under the FFCCSOA. See Pulkkinen v. Pulkkinen, 127 So.3d 738, 743 (Fla. 1st DCA 2013). “[California’s] loss of continuing, exclusive jurisdiction, however, does not automatically confer jurisdiction on a Florida court to modify [California’s] child support order.” Id. at 743^44 (citing Bowman v. Bowman, 82 A.D.3d 144, 917 N.Y.S.2d 379 (N.Y.App.Div.2011)). Father is a resident of Florida and, therefore, may not petition to modify the child support order under section 88.6111. Trissler, 987 So.2d at 211. The record contains no evidence that Florida ever exerted personal jurisdiction over the child. See § 48.193, Fla. Stat. (2012). Furthermore, personal jurisdiction gained under section 48.193 “does not confer subject matter jurisdiction to modify a child support order previously established by a foreign court of competent jurisdiction.” Jesse v. Dep’t of Rev. ex rel. Robinson, 711 So.2d 1179,1181 (Fla. 2d DCA 1998). Nothing in the record indicates that either party filed a consent in the California court to allow the Florida court to modify the child support order. Consequently, the trial court never had subject matter jurisdiction to modify the California child support order. Pulkkinen, 127 So.3d at 746; Trissler, 987 So.2d at 212.

“A judgment entered by a court which lacks subject matter jurisdiction is void and subject to collateral attack under rule 1.540 at any time.” McGhee v. Biggs, 974 So.2d 524, 526 (Fla. 4th DCA 2008) (citing Strommen v. Strommen, 927 So.2d 176 (Fla. 2d DCA 2006)); see also Mannino v. Mannino, 980 So.2d 575, 577 (Fla. 2d DCA 2008); Fla. R. Civ. P. 1.540(b)(4). Accordingly, we reverse and remand for the trial court to vacate the order modifying the California child support order.

REVERSED and REMANDED with instructions.

ORFINGER and LAMBERT, JJ., concur.

      . 28 U.S.C. § 1738B (2012), provides, in relevant part: .
      (e) Authority To Modify Orders. — A court of a State may modify a child support order issued by a court of another State if—
      (1) the court has jurisdiction to make such a child support order pursuant to subsection (i); and
      (2)(A) the court of the other State no longer has continuing, exclusive jurisdiction of the child support order because that State no longer is the child’s State or the residence of any individual contestant; or
      (B) each individual contestant has filed written consent with the State of continuing, exclusive jurisdiction for a court of another State to modify the order and assume continuing, exclusive jurisdiction over the order.

      . Section 88.6111, Florida Statutes (2012), provides:
      Modification of child support order of another state.—
      (1) After a child support order issued in another state has been registered in this state, the responding tribunal of this state may modify that order only if s. 88.6131 does not apply and after notice and hearing it finds that:
      (a) The following requirements are met:
      1. The child, the individual obligee, and the obligor do not reside in the issuing state;
      2. A petitioner who is a nonresident of this state seeks modification; and
      3. The respondent is subject to the personal jurisdiction of the tribunal of this state; or
      (b) The child, or a party who is an individual, is subject' to the personal jurisdiction of the tribunal of this state and all of the parties who are individuals have filed written-consents in the issuing tribunal for a tribunal of this state to modify the support order and assume continuing exclusive jurisdiction over the order. However, if the issuing state is a foreign jurisdiction that has not enacted a law or established procedures substantially similar to the procedures under this act, the consent otherwise required of an individual residing in this state is not required for the tribunal to assume jurisdiction to modify the child support order.


author: ORFINGER, J.

text:
    Sylvia HANCOCK as personal, etc., Appellant, v. NORTHPORT HEALTH SERVICES OF FLORIDA, LLC, etc., Appellee.
    No. 5D13-3516.
    District Court of Appeal of Florida, Fifth District.
    Nov. 21, 2014.
    Michael J. Carter, of Morgan & Morgan, P.A., Orlando, for Appellant.
    Dale R. Sisco and Kenneth M. Skinner, of Sisco-Law, Tampa, for Appellee.
   ORFINGER, J.

Sylvia Hancock, the personal representative of the Estate of Frank D. Hancock, appeals the trial court’s non-final order compelling arbitration of the Estate’s dispute with Northport Health Services of Florida, LLC, operator of the Ocala Health and Rehabilitation Center (the “Center”). We affirm in part and reverse in part.

The Estate filed suit against Northport regarding Mr. Hancock’s care, asserting claims of negligence and violations of Chapter 400, Florida Statutes, commonly known as the Nursing Home Residents’ Rights Act. In response, Northport moved to compel arbitration pursuant to the arbitration provision contained in the admission agreement (the “Agreement”). Following a hearing, the trial court found that an arbitrable issue existed and that the arbitration provision was not unconscionable. The trial court granted North-port’s motion to compel arbitration, but required the parties to utilize the substantive law of Alabama and the Florida Rules of Civil Procedure in the arbitration proceedings.

We review the trial court’s order compelling arbitration de novo. See Laizure v. Avante at Leesburg, Inc., 44 So.3d 1254, 1256 (Fla. 5th DCA 2010). “A trial court’s decision regarding whether an arbitration agreement or provision is void as against public policy presents ‘a pure question of law, subject to de novo review.’ ” Fi-Evergreen Woods, LLC v. Estate of Vrastil, 118 So.3d 859, 862 (Fla. 5th DCA 2013) (quoting Shotts v. OP Winter Haven, Inc., 86 So.3d 456, 471 (Fla.2011)).

Relying on Shotts, the Estate argues that the arbitration provision violates Florida public policy and is unenforceable. We rejected that argument concerning a substantially similar arbitration provision in Fi-Evergreen. 118 So.3d at 863. We did so because, unlike the agreement in Shotts, the arbitration provision in Fi-Evergreen, which is similar to the arbitration provision here, did not limit the plaintiffs available remedies.

We do agree, however, that the trial court erred when it ordered the parties to apply Alabama substantive law and Florida procedural rules. Paragraph I of the Agreement provides that it “shall be interpreted, construed and enforced pursuant to and in accordance with the laws of the State of Florida.” Further, the Arbitration Procedure provisions of the Agreement requires the arbitrator to “apply the substantive law (and the law of remedies, if applicable) of the state in which the Facility is located, or federal law, or both, as may be applicable to the Dispute,” and that “[e]ach party shall have the right to engage in discovery consistent with the Alabama Rules of Civil Procedure....” Northport concedes that Florida substantive law applies. The Estate makes no convincing argument as to why the application of Alabama procedural rules is problematic.

For these reasons, we affirm the trial court’s order insofar as it ordered the parties to arbitrate their dispute. We reverse that part of the order requiring the application of Alabama substantive law and Florida procedural rules. On remand, the trial court shall direct the parties to arbitrate their dispute, applying Florida substantive law and the Alabama Rules of Civil Procedure to the extent authorized by paragraph 8.C. of the Agreement.

AFFIRMED in part; REVERSED in part; REMANDED.

LAWSON and WALLIS, JJ., concur.

APPENDIX

8. Dispute Resolution Program, Arbitration Agreement, and WAIVER OF JURY TRIAL.

(Read Carefully)

A. The Program.

This Agreement creates a dispute resolution program (the “Program”) which shall govern the resolution of any and all claims or disputes that would constitute a cause of action in a court of law that Facility may have now or in the future against you or any of your representatives, or that you or any of your representatives may have now or in the future against Facility ... (hereinafter referred to as “Disputes”).... The Disputes whose resolution is governed by the Program shall include, but not be limited to, claims for breach of contract or promise (express or implied); tort claims; and claims for violation of any federal, state, local, or other governmental law, statute, regulation, common law, or ordinance. Notwithstanding the foregoing, the Program shall not govern (i) any grievance brought either formally or informally under the Facility’s grievance policy or with an appropriate state or federal 'agency (ii) an appeal to the appropriate state or federal entity regarding an involuntary transfer or discharge (iii) any complaint with an appropriate state or federal agency concerning the Facility’s compliance with applicable regulations governing care, facility services, or residents’ rights (iv) any complaint with an appropriate state or federal agency concerning resident abuse, neglect, misappropriation of resident property or non-compliance with advance directive requirements or (v) any claim or dispute involving solely a monetary claim in an amount less than $25,000, and any such claim or dispute shall not be deemed a Dispute hereunder.

B. Arbitration.

All Disputes covered under the Program between you and the Facility shall be resolved by binding arbitration. Arbitration is a procedure in which the parties submit a Dispute to one or more mutually selected, impartial persons for a final and binding decision. The parties expressly agree to settle all Disputes by binding arbitration rather than by a judge, jury, or administrative agency-
Arbitration is a complete substitute for a trial by a judge or a jury. The parties specifically waive their rights to a jury trial. Only Disputes that would constitute a legally cognizable cause of action in a court of law may be arbitrated.
THE PARTIES ACKNOWLEDGE THAT BY ENTERING INTO THIS ARBITRATION AGREEMENT, THEY ARE GIVING UP THEIR RIGHT TO HAVE ANY SUCH DISPUTE DECIDED IN A COURT OF LAW BEFORE A JUDGE OR JURY, AND INSTEAD ARE ACCEPTING THE USE OF ARBITRATION.
Subject to the terms and provisions of this Agreement, any arbitration conducted pursuant to this Agreement shall be conducted by JAMS, an independent and impartial entity regularly engaged in providing arbitration services selected by the company, in accordance with the JAMS Comprehensive Arbitration Rules and Procedures (the “Rules”). In the event of any material, adverse inconsistency between the terms of this Agreement and the Rules, the arbitrator shall apply the terms of this Agreement. The parties acknowledge that this provision alters the Rules. A copy of the Rules can be obtained from the Facility or from JAMS’ website, http://www. jamsadr.com. The Rules are hereby incorporated by reference into this Agreement verbatim, except to the extent they are modified by this Agreement.

C. Arbitration Procedure

The arbitrator(s) shall be impartial and independent and shall apply the substantive law (and the law of remedies, if applicable) of the state in which the Facility is located, or federal law, or both, as may be applicable to the Dispute ....
Each party shall have the right to engage in discovery consistent with the Alabama Rules of Civil Procedure, subject to any restrictions contained in applicable statutes, rules,, and regulations, including, but not limited to, the Alabama Medical Liability Act, Alabama Code § 6-5-540 et seq. and Alabama Code § 22-21-8 et seq. The admissibility of evidence at the arbitration hearing shall be determined in accordance -with the Alabama Rules of Evidence, subject to any restrictions contained in applicable statutes, rules, and regulations, in-eluding, but not limited to, the Alabama Medical Liability Act, Alabama Code § 6-5-540 et seq. and Alabama Code § 22-21-8 et seq.

G. General

The invalidity of a portion of this Program shall not affect the validity of any other portion or provision. If any portion or provision of this Program is found to be invalid or unenforceable in any respect, the remainder of the Program will remain in full force and effect.
15. Miscellaneous

H. Severability

In the event any provision of this Agreement is held to be unenforceable for any reason, such unenforceability shall not affect the remainder of this Agreement, which shall remain in full force and effect and be enforceable in accordance with its terms.

I. Governing Law

This Agreement shall be interpreted, construed and enforced pursuant to and in accordance with the laws of the State of Florida. Marion County, Florida shall be the sole and exclusive venue for any Dispute, special proceeding, or any other proceeding between the parties that may arise out of, in connection with, or by reason of this Agreement.

      . The arbitration and selection of law provisions of the Agreement can be found in the Appendix to this opinion.


text:
    Leon MADDEN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-5248.
    District Court of Appeal of Florida, First District.
    Nov. 21, 2014.
    Nancy A. Daniels, Public Defender, and Megan Long, Assistant Public Defender, Tallahassee.
    Pamela Jo Bondi, Attorney General, and Samuel B. Steinberg and Jay Kubica, Assistant Attorneys General, Tallahassee.
   PER CURIAM.

AFFIRMED. See Williams v. State, 143 So.3d 423, 424 (Fla. 1st DCA 2014).

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