text:
    Jordan K. MARCUM; Artistic Pools of Florida Inc.; and Allstate Insurance Company, Appellants, v. Angela HAYWARD, Appellee.
    No. 2D12-4658.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2014.
    Rehearing Denied April 7, 2014.

      Mark D. Tinker and Charles W. Hall of Banker Lopez Gassier P.A., St. Peters-burg, for Appellants.
    Erin E. Pogue and Roy D. Wasson of Wasson & Associates, Chartered, Miami; and Paul J. Puzzanghera and Crystal L. Turner of Paul Puzzanghera, P.A., Clear-water, for Appellee.
   BLACK, Judge.

Jordan Marcum, her vicariously-liable employer, Artistic Pools of Florida Inc. (“Artistic Pools”), and her liability insurer, Allstate Insurance Company (“Allstate”), appeal an adverse judgment resulting from an automobile accident allegedly causing personal injuries to Angela Hayward. Three issues were raised on appeal; we find the first issue to be dispositive, and as a result, we do not reach the other two. Because it is undisputed that Ms. Marcum lost consciousness while driving due to a seizure, resulting in the accident, and because Ms. Marcum’s loss of consciousness was unforeseeable, the trial court should have directed a verdict for the defense. Therefore, we reverse.

I. Background

On the day of the accident, Ms. Marcum, assistant manager of Artistic Pools, was driving a company vehicle within the course and scope of her employment. Her coworker, Charles Heninger, was riding in the passenger seat. Ms. Marcum testified that she felt as though she momentarily blacked out, woke up briefly, and then blacked out again. Her next recollection was after the accident when the paramedics were present. According to Mr. Hen-inger, Ms. Marcum stated that she felt as though she had blacked out, stated that she did not feel well, asked where they were going, and then she suddenly lost consciousness. Mr. Heninger testified that he tried to stop the vehicle by depressing the brake pedal with his hand, but he was unable to reach it because of his seatbelt restraint. He testified that he was down on the floorboard when he felt an impact. Mr. Heninger estimated that at most fifteen seconds elapsed between the time Ms. Marcum indicated that she may have blacked out and the time of impact.

Ms. Hayward testified that she was stopped at a red light and saw the Artistic Pools vehicle in her rearview mirror. When she realized that the vehicle was not going to stop, she braced for impact, and the vehicle struck her car from behind. Ms. Hayward testified that after she was struck, she exited her car and walked toward the Artistic Pools vehicle, at which time she observed Ms. Marcum having a seizure. Ms. Hayward retrieved a blanket from her car and helped reposition Ms. Marcum so that she would not swallow her tongue.

Doctor Denise Griffin, a board certified neurologist, testified that Ms. Marcum could not have anticipated the seizure.

[Counsel:] Is there any way that Jordan Marcum should have anticipated that this type of event was going to occur?
[Dr. Griffin:] No, sir, not to my knowledge.
[Counsel:] And if there was some sort of warning sign, is that something you would expect a lay person to recognize as an oncoming seizure?
[Dr. Griffin:] No, sir, I couldn’t — I couldn’t tell if I were going to have a seizure, and I see seizure [sic] every day, because sometimes there is no warning, and if there is a warning, it can be just be as — as vague as a weird feeling, a funny taste in your mouth. It’s just very nonspecific and it doesn’t even need to be there.
[Counsel:] And is it fair to describe your opinion related to the seizure as it was one of [a] sudden and unexpected nature?
[Dr. Griffin:] Yes, sir.

Dr. GrifSn defined the seizure as “crypto-genic,” which by definition has no known cause.

Ms. Hayward did not offer opposing expert testimony regarding the seizure. Her only expert witness was an orthopedic surgeon who provided testimony about her injuries. In response to Ms. Marcum’s defense, Ms. Hayward argued that the episode was neither sudden nor unexpected. Ms. Hayward argued that when Ms. Mar-cum described a “funny feeling” prior to blacking out, she was experiencing what is known in neurologic terms as an “aura” which should have alerted her to pull over. Dr. Griffin explained that “[i]f a person feels an aura that they recognize is their epileptic aura ... they can, you know, sit down in a safe place.” However, Ms. Mar-cum testified that she had never experienced a seizure prior to the one that resulted in the accident.

Ms. Marcum argued that she experienced a sudden and unexpected seizure and that there was insufficient time between the onset of the seizure and the collision for her to take preventative action. Accordingly, she moved for a directed verdict. After hearing argument, the trial court denied Ms. Marcum’s motion, ruling that factual questions remained for jury determination as to whether Ms. Mar-cum could have avoided the impact.

II. Discussion

The standard of review on appeal of a trial court’s ruling on a motion for directed verdict is de novo. Fell v. Carlin, 6 So.3d 119, 120 (Fla. 2d DCA 2009). Here, we must determine if there is sufficient record evidence when viewed in the light most favorable to Ms. Hayward to permit the jury to decide if Ms. Marcum was negligent or if Ms. Marcum’s sudden loss of consciousness defense required the verdict to be directed in her favor. See id. (quoting Sims v. Cristinzio, 898 So.2d 1004, 1005 (Fla. 2d DCA 2005)).

“It is well settled that negligence is not chargeable against the operator of a motor vehicle who, while driving, suffers a sudden loss of consciousness from an unforeseen cause.” Tropical Exterminators, Inc. v. Murray, 171 So.2d 432, 433 (Fla. 2d DCA 1965); see also Bridges v. Speer, 79 So.2d 679, 681 (Fla.1955) (“It is not even simple negligence if one has a sudden attack, loses control of his car and causes an accident if he had no premonition or warning.”); Feagle v. Purvis, 891 So.2d 1096, 1098-99 (Fla. 5th DCA 2004) (“As a general rule, the operator of an automobile, vessel or other mode of transportation who unexpectedly loses consciousness or becomes incapacitated is not chargeable with negligence as a result of his or her loss of control.”). To establish this defense, a defendant is required to prove the following:

1. The defendant suffered a loss of consciousness or capacity. See, e.g., Bridges v. Speer, 79 So.2d 679, 681 (Fla. 1955); Wilson v. The Krystal Co., 844 So.2d 827[, 828] (Fla. 5th DCA 2003).
2. The loss of consciousness or capacity occurred before the defendant’s purportedly negligent conduct. See Malcolm v. Patrick, 147 So.2d 188, 193 (Fla. 2d DCA 1962).
3. The loss of consciousness was sudden. See, e.g., Baker v. Hausman, 68 So.2d 572, 573 (Fla.1953); Malcolm [, 147 So.2d at 193].
4. The loss of consciousness or capacity was neither foreseen, nor foreseeable. See, e.g., Baker [, 68 So.2d at 573]; Wilson [, 844 So.2d at 828]; Wingate [v. United Servs. Auto. Ass’n, 480 So.2d 665, 666 (Fla. 5th DCA 1985) ]; Malcolm [, 147 So.2d at 193].

Feagle, 891 So.2d at 1099.

Ms. Marcum successfully established her defense. It is undisputed that Ms. Marcum lost consciousness while driving as a result of a cryptogenic seizure. Her testimony, along with that of Mr. Heninger, established that she lost consciousness before the impact occurred. Further, she had never experienced a seizure before this incident, and there was no evidence that she had notice of being at risk for a seizure. Dr. Griffin testified that Ms. Marcum would have had no way to anticipate the onset of the cryptogenic seizure. Finally, the testimony of Ms. Marcum and Mr. Heninger established that there was insufficient time between the onset of the seizure and the impact with Ms. Hayward’s vehicle for her to take any evasive maneuvers.

“[F]oreseeability is the foundation for establishing the incapacity or loss of consciousness of a defendant .... ” Feagle, 891 So.2d at 1099. The fact that Ms. Marcum indicated to Mr. Heninger that she did not feel well, a sensation she later described as a “funny feeling,” shortly before losing consciousness, resulting in the accident, did not show that the impending seizure was foreseen. See Baker, 68 So.2d at 573 (holding that a showing that the driver was not feeling well shortly before the accident did not demonstrate a premonition of a stroke); Wingate, 480 So.2d at 666 (holding that driver’s statement made shortly before the accident that he was not feeling well did not demonstrate a premonition of a heart attack).

Accordingly, we reverse the final judgment and remand with instructions that judgment be entered in favor of Ms. Mar-cum, Artistic Pools, and Allstate.

Reversed and remanded with instructions.

KELLY and WALLACE, JJ„ Concur.

      . On August 23, 2012, the trial court rendered an order granting Ms. Hayward’s motion to join Allstate as a party defendant to the final judgment pursuant to section 627.4136(4), Florida Statutes (2012).


source: Caselaw Access Project

author: MORRIS, Judge.

license: Public Domain

text:
    GENERAL ELECTRIC CAPITAL CORPORATION, Appellant, v. BIO-MASS TECH, INC., Appellee.
    No. 2D13-1657.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2014.

      Leo Benitez of Benitez & Associates, Coral Gables, for Appellant.
    Jack D. Hoogewind, Dade City, for Ap-pellee.
   MORRIS, Judge.

General Electric Capital Corporation appeals an order staying the trial court action below and compelling arbitration on General Electric’s complaint for replevin and breach of note and security agreement filed against Bio-Mass Tech, Inc. General Electric claims that Bio-Mass waived any right to arbitration when it actively and substantively engaged in litigation before the trial court. We agree and reverse the trial court’s order.

I. Facts

On January 24, 2011, General Electric filed a complaint against Bio-Mass, alleging a count for replevin and a count for breach of note and security agreement. General Electric alleged that Bio-Mass executed the note and security agreement with a Finn Hydro-Seeder as the collateral and that Bio-Mass failed to make the required monthly payments under the note and security agreement. General Electric sought possession of the collateral property-

A prejudgment writ of replevin was entered on February 2, 2011, and Bio-Mass moved to dissolve the writ of replevin on March 17, 2011. The parties stipulated that the writ of replevin should be dissolved, and the trial court entered an order to that effect on April 1, 2011. The parties entered into a modification agreement on April 24, 2011, restructuring BioMass’s required payments but also incorporating the provisions of the original note and security agreement.

When Bio-Mass again failed to make the required payments, General Electric sought another prejudgment writ of re-plevin. Bio-Mass initially objected in a November 21, 2011, letter to the trial court and demanded a hearing. Bio-Mass later informed the trial court in a letter dated March 23, 2012, that it did not oppose the writ of replevin. The trial court entered an order granting a writ of replevin on March 26, 2012.

Unable to obtain possession of the collateral property, General Electric filed a motion to show cause on March 30, 2012. Bio-Mass filed a motion to strike General Electric’s motion to show cause on April 4, 2012, claiming that under the language of the order granting writ of replevin, BioMass was not required to inform General Electric of the location of the property or to assist General Electric in obtaining the property. Both parties appeared for a hearing on the issue, and the trial court issued an order denying General Electric’s motion to show cause on April 27, 2012.

On May 7, 2012, General Electric filed a motion to compel Bio-Mass to turn over the collateral property, and Bio-Mass filed a motion to strike on May 11, 2012, claiming that General Electric’s motion failed to state a cause of action and that the court was not authorized under the replevin statute to order Bio-Mass to surrender the property. The trial court entered an order granting a pluries prejudgment writ of replevin on July 30, 2012.

Again unable to obtain the property, General Electric filed a motion for rule to show cause on October 30, 2012. The parties appeared for a hearing, and the trial court denied General Electric’s motion on December 14, 2012.

In the meantime, General Electric had filed a motion for summary judgment on October 26, 2012. On January 23, 2013, the day before the hearing was scheduled to be held on General Electric’s motion for summary judgment, Bio-Mass filed a motion to compel arbitration and to stay action. Bio-Mass cited the arbitration provision in the note and security agreement, which provides in relevant part:

15. BINDING ARBITRATION AND EXPENSES. Any controversy or claim arising out of or relating to this Note and Security Agreement or the relationship resulting in or from this Loan Agreement (“Disputes”) will be settled by binding arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association .... Any award rendered by the arbitrator(s) may be entered as a judgment or order and confirmed or enforced by either party in any state or federal court having competent jurisdiction thereof. If either party brings or appeals any judicial action to vacate or modify any award rendered pursuant to arbitration or opposes the confirmation of such award and the party bringing or appealing such action or opposing confirmation of such award does not prevail, such party will pay all of the costs and expenses (including without limitation, court costs, arbitrators’ fees and expenses and reasonable attorneys’ fees) incurred by the other party in defending such action. Additionally, if either party brings any action for judicial relief in the first instance without pursuing arbitration prior thereto, the party bringing such action for judicial relief will be liable for and will immediately pay to the other party all of the other party’s costs and expenses (including without limitation, courts costs and attorneys’ fees) to stay or dismiss such judicial action and/or remove it to arbitration. The failure of either party to exercise any rights granted hereunder will not operate as a waiver of those rights.

After the hearing on the motions, the trial court requested memorandums of law from both parties. On March 4, 2013, the trial court granted Bio-Mass’s motion for arbitration and stayed the court case.

II. Analysis

On appeal, General Electric argues that Bio-Mass actively and substantively engaged in the court litigation for a period of two years by filing pleadings and motions seeking affirmative relief, by appearing before the trial court on numerous occasions, and by defending against General Electric’s claim for replevin. General Electric contends that Bio-Mass therefore waived its right to arbitration.

The facts in this case are undisputed; thus, the case turns on the trial court’s construction of the arbitration provision and the application of the relevant law to the undisputed facts. Accordingly, this court conducts a de novo review of the trial court’s ruling. See Green Tree Servicing, LLC v. McLeod, 15 So.3d 682, 686-87 (Fla. 2d DCA 2009) (en banc). In determining whether a dispute is subject to arbitration, a court should consider whether a valid agreement to arbitrate exists, whether an arbitrable issue exists, and whether the right to arbitration was waived. Id. at 686. Regarding waiver, “ ‘[t]he essential question is whether, under the totality of the circumstances, the defaulting party has acted inconsistently with the arbitration right.’” Id. at 687 (quoting Nat’l Found, for Cancer Research v. A.G. Edwards & Sons, Inc., 821 F.2d 772, 774 (D.C.Cir.1987)). Relevant to the facts of this case, a party acts inconsistently with the right to arbitration when the party actively participates in the lawsuit by either prosecuting or defending issues that are subject to arbitration. See id.

This court must decide whether the replevin issue is subject to arbitration under the parties’ agreement and, if so, whether Bio-Mass’s actions on the replev-in issue constituted active participation. Florida courts have held that injunctive or equitable relief is subject to arbitration unless the arbitration provision at issue expressly provides an exception for such claims. See Rath v. Network Mktg., L.C., 790 So.2d 461, 462, 466 (Fla. 4th DCA 2001) (holding that party who sought emergency injunctive relief in court pending “determination in arbitration of the issues” waived right to arbitration because “parties’ agreement in the instant case did not contemplate the issuance of interim relief by the circuit court pending the outcome of arbitration”); Romar Transports, Ltd. v. Iron & Steel Co. of Trinidad & Tobago, Ltd., 386 So.2d 572, 573-74 (Fla. 4th DCA 1980) (holding that claim for replevin was subject to arbitration because it was a controversy “touching or arising ... out of the[ ] contract” and that by filing counterclaim for replevin and obtaining such affirmative relief, party waived right to arbitration); see also Boston Bank of Commerce v. Morejon, 786 So.2d 1245, 1247 (Fla. 3d DCA 2001) (suggesting that claims for conversion and replevin were claims for equitable relief that would have been exempt from arbitration provision stating that “[n]othing in this [a]greement shall preclude any party from seeking equitable relief from a court of competent jurisdiction”).

In Ram Electronics Corp. v. Westley, 534 So.2d 936, 937-38 (Fla. 2d DCA 1988), this court held that the defendant’s counterclaim for replevin was subject to arbitration because the counterclaim arose from the purchase agreement, which provided for arbitration of “[a]ll disputes concerning or arising from this agreement.” The arbitration provision at issue in this case provides that “[a]ny controversy or claim arising out of or relating to this Note and Security Agreement or the relationship resulting in or from this Loan Agreement (‘Disputes’) will be settled by binding arbitration.” General Electric’s claim for replevin constitutes a “controversy or claim arising out of or relating to” the note and security agreement “or the relationship resulting ... from” the agreement, see id., and the agreement does not provide any exception allowing the parties to seek equitable relief from a court. Therefore, General Electric’s claim for replevin is subject to arbitration.

Unlike the cases cited above, BioMass defended, rather than pursued, a claim for replevin. Nonetheless, BioMass’s actions in defending against General Electric’s claim for replevin serve as a waiver of Bio-Mass’s right to arbitration. See Green Tree, 15 So.3d at 687 (“ ‘[T]he prosecution or defense of a lawsuit on issues subject to arbitration may constitute a waiver.’ ”) (emphasis added) (quoting Seville Condo. # 1, Inc. v. Clearwater Dev. Corp., 340 So.2d 1243, 1245 (Fla. 2d DCA 1976)). Courts have held that the filing of an answer on the merits without demanding arbitration operates to waive the right to arbitration. See Bared & Co. v. Spec. Maint. & Constr. Inc., 610 So.2d 1, 3 (Fla. 2d DCA 1992) (“It was not the substance of the initial answer that resulted in the waiver but the fact that SMIC and National Fire answered rather than demanding arbitration.”); O’Flarity v. Trend Star Dev., Inc., 689 So.2d 1297, 1297 (Fla. 4th DCA 1997) (“The filing of an answer is an act inconsistent with a subsequent demand to arbitrate.”). The situation in this case is analogous. By responding to and defending the replevin issue on numerous different occasions, Bio-Mass attacked the merits of General Electric’s claim for re-plevin — a claim subject to arbitration — and such conduct constituted a waiver of the right to arbitration. See Miller & Solomon Gen. Contractors, Inc. v. Brennan’s Glass Co., 824 So.2d 288, 290 (Fla. 4th DCA 2002) (“Courts have found active participation in cases in which the party seeking arbitration has defended by attacking the merits of the case as opposed to initially challenging the plaintiffs right to judicial remedy in the first place.”).

Bio-Mass argues that under the last sentence of the arbitration provision, Bio-Mass’s conduct, i.e., its failure to exercise its right to arbitration, could not operate to waive that right to arbitration. The last sentence of the arbitration provision states that “[t]he failure of either party to exercise any rights granted hereunder will not operate as a waiver of those rights.” But this antiwaiver or “no waiver” provision is not itself determinative and does not operate as a complete bar to finding a waiver of the right to arbitration. See ASC Utah, Inc. v. Wolf Mountain Resorts, L.C., 245 P.3d 184, 195-96 (Utah 2010) (citing Living Scriptures, Inc. v. Kudlik, 890 P.2d 7, 10 n. 5 (Utah Ct.App.1995)); see also Home Gas Corp. of Mass., Inc. v. Walter’s of Hadley, Inc., 403 Mass. 772, 582 N.E.2d 681, 684-85 (1989) (rejecting argument that antiwaiver clause in contract “precludes waiver” where party asserting right to arbitration had extensively participated in judicial proceedings). Rather, this provision should be considered as one factor in the larger waiver analysis. An antiwaiver clause itself can be waived. See Williston on Contracts § 39:36 (4th ed. 2000) (“The general view is that a party to a written contract can waive a provision of that contract by conduct despite the existence of a so-called antiwaiver or failure to enforce clause in the contract.... This general rule, that a party to a written contract may waive a provision despite the existence of an anti-waiver or failure to enforce clause, is based on the view that the nonwaiver provision itself, like any other term in the contract, is subject to waiver by agreement or conduct during performance.” (footnotes omitted)); ASC Utah, Inc., 245 P.3d at 196. We conclude that Bio-Mass’s conduct in defending against General Electric’s claim for replevin in the judicial proceedings operated to waive both the right to arbitration and the antiwaiver clause as it relates to the right to arbitration between the parties in this instance.

Accordingly, we reverse the order staying the trial court action below and compelling arbitration and remand for further proceedings.

Reversed and remanded.

SILBERMAN and VILLANTI, JJ., Concur.

      . It is not clear from the parties' appendices when General Electric sought this prejudgment writ of replevin.

      . Bio-Mass filed a notice of supplemental authority, citing to section 682.031, Florida Statutes (2013), which was adopted in 2013 and became effective July 1, 2013. Even if section 682.031 were to apply to this case, subsection (2)(a) confirms that an arbitrator may provide equitable relief and subsection (2)(b) allows for a court to provide equitable relief when the arbitrator cannot adequately or timely do so, in which case the right to arbitration would not be waived by seeking such relief from a court. Bio-Mass never argued in this case that an arbitrator could not have adequately or timely ruled on the replevin issue, and the law is clear that re-plevin is an arbitrable issue unless excluded from arbitration under the language of the arbitration agreement.

      . Other courts and authorities have interpreted anti waiver clauses as "intended to permit parties to seek provisional remedies or other judicial proceedings that would not function to displace arbitration on the underlying dispute.” S & R Co. of Kingston v. Latona Trucking, Inc., 159 F.3d 80, 85 (2d Cir.1998) (citing cases). This approach is not applicable in this case because the antiwaiver provision language is broad and thus cannot be read to allow the parties to seek limited judicial relief on nonarbitrable issues and, as discussed above, replevin is an arbitrable issue in this case based on the broad language of the arbitration provision.


author: WALLACE, Judge.

text:
    Philip HORNFISCHER, Appellant, v. MANATEE COUNTY SHERIFF’S OFFICE, Appellee.
    No. 2D13-374.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2014.
    Rehearing Denied April 8, 2014.

      Bill McCabe, Longwood, and Keith A. Mann, Sarasota, for Appellant.

      Robert Wayne Evans and Matthew Ste-fany of Allen, Norton & Blue, P.A., Tallahassee, for Appellee.
   WALLACE, Judge.

Philip Hornfíscher challenges a final summary judgment entered in favor of his former employer, the Manatee County Sheriffs Office (the MCSO), on Mr. Horn-fischer’s claim for retaliatory discharge under section 440.205, Florida Statutes (2006). Because the MCSO failed to establish the nonexistence of a genuine issue of material fact concerning whether its discharge of Mr. Hornfischer and his filing of workers’ compensation claims were causally related, we reverse the final summary judgment and remand for further proceedings.

I. THE FACTS AND PROCEDURAL HISTORY

In 2000, Mr. Hornfischer was employed by the MCSO as a meat cutter. On November 13, 2006, Mr. Hornfischer was involved in a compensable accident when he accidentally stabbed himself in the abdomen with a knife. A “First Report of Injury or Illness” was timely filed for this accident.

The report lists the employer name as “Manatee County Government, D.B.A.-OÍ-fice of the County Attorney.” The MCSO was self-insured for workers’ compensation purposes. The MCSO participated in a pool of funds for workers’ compensation cases run by Manatee County. A third-party administrator, Unisource Administrators, Inc., administered the pool.

After Mr. Hornfischer underwent testing following the stabbing incident, physicians determined that he had medical problems with his hands and arms unrelated to the stabbing. The workers’ compensation liaison in the MCSO’s human resources department told Mr. Hornfischer to file another claim for the hand and arm problems, and he did. A second “First Report of Injury or Illness” was filed on November 30, 2006, with a date of accident listed as November 28, 2006. The MCSO paid medical expenses and other benefits based on Mr. Hornfiseher’s claims.

The course of Mr. Hornfischer’s treatment and recovery was extended and marked by various difficulties. Ultimately, he was unable to return to work as a meat cutter. The MCSO offered him a different position as a control room operator in the jail. Mr. Hornfischer reported for work in the new position, but, for reasons discussed later in this opinion, he did not assume his new duties. After an administrative hearing, the MCSO notified Mr. Hornfischer that his employment was terminated on May 24, 2007.

In October 2010, Mr. Hornfischer filed an action against the MCSO for retaliatory discharge under section 440.205. The MCSO answered the complaint and alleged that “[Mr. Hornfiseher’s] termination would have occurred in any event, regardless of his request for workers’ compensation benefits.” After the parties had conducted discovery, the MCSO moved for summary judgment on the ground that “[t]here is no genuine issue of material fact to support a causal connection between [the] protected activity and the adverse employment action concerning [Mr. Horn-fischer’s] termination.” The circuit court granted the motion and entered a final judgment in favor of the MCSO. This appeal followed.

II. THE STANDARD OF REVIEW

The standard of review for an order granting a motion for summary judgment is de novo and requires a two-pronged analysis. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment is proper only if (1) no genuine issue of material fact exists, viewing every possible inference in favor of the party against whom summary judgment has been entered, Huntington Nat’l Bank v. Merrill Lynch Credit Corp., 779 So.2d 396, 398 (Fla. 2d DCA 2000), and (2) the moving party is entitled to a judgment as a matter of law, Aberdeen at Ormond Beach, 760 So.2d at 130. “If the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Holland v. Verheul, 583 So.2d 788, 789 (Fla. 2d DCA 1991).

III. THE APPLICABLE LAW

Mr. Hornfischer’s claim against the MCSO is based on an alleged violation of section 440.205. The statute provides as follows:

No employer shall discharge, threaten to discharge, intimidate, or coerce any employee by reason of such employee’s valid claim for compensation or attempt to claim compensation under the Workers’ Compensation Law.

A claim under the statute has three elements: (1) the employee engaged in statutorily protected activity; (2) an adverse employment action occurred; and (3) the adverse action and the employee’s protected activity were causally related. Ortega v. Eng’g Sys. Tech., Inc., 30 So.3d 525, 528 (Fla. 3d DCA 2010) (citing Russell v. KSL

Hotel Corp., 887 So.2d 372, 379 (Fla. 3d DCA 2004)). In order to establish a claim under section 440.205, the employee’s pursuit of workers’ compensation need not be the only reason for a discharge. Allan v. SWF Gulf Coast, Inc., 535 So.2d 638, 639 (Fla. 1st DCA 1988). “The statute prohibits any discharge ‘by reason of an attempt to claim compensation even if there may also be other reasons for the discharge.” Id. In addition, proof of a discharge is not essential to a recovery under the statute. Section 440.205 creates a cause of action for intimidation or coercion even in the absence of a discharge. Chase v. Walgreen Co., 750 So.2d 93, 97-98 (Fla. 5th DCA 1999). Finally, the employee need not establish a specific retaliatory intent in order to prevail. Allan, 535 So.2d at 639.

In considering employee claims for retaliatory discharge under 440.205, courts use the following framework:

Once a plaintiff establishes a prima facie case by proving the protected activity and the negative employment action are not completely unrelated, the burden then shifts to the employer to proffer a legitimate reason for the adverse employment action. See Russell [v. KSL Hotel Corp.], 887 So.2d [372], 379-80 [Fla. 3d DCA 2004]....
A plaintiff withstands summary adjudication at this stage either by producing sufficient evidence to permit a reasonable finder of fact to conclude the employer’s proffered reasons were not what actually motivated its conduct, or that the proffered reasons are not worthy of belief. Corbitt v. Home Depot U.S.A., 589 F.3d 1136, 1162-63 (11th Cir.2009). A trial court should “evaluate whether the plaintiff has demonstrated such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence.” Id. (internal citations omitted).

Ortega, 30 So.3d at 529.

IV. THE TRIAL COURT’S ANALYSIS

In this case, the trial court summarized its reasons for granting final summary judgment in favor of the MCSO as follows:

V. In the case at bar[,] the Court finds Plaintiff has established elements one and two of a prima facie case. However, the Court also finds Plaintiff has been unable to present any record evidence as to a causal connection between his exercise of protected activity and the adverse employment action by Defendant. In fact, the undisputed evidence has established his workers’ compensation benefits were paid and the adverse job action/termination was remote temporally from same. Even assuming that the second filing on 28 November 2006 was the protected activity it too is approximately six months removed from the adverse job action/termination of 22 May 2007.
W. Even if it could be argued Plaintiff had established all three elements for a prima facie case shifting the burden to Defendant; Defendant has provided at least two legitimate, nondiscriminatory policy reasons for the 22 May 2007 termination. Those two legitimate, nondiscriminatory reasons were insubordination and neglect of job. As a result Plaintiff must establish via record evidence that both legitimate, nondiscriminatory reasons were merely a pretext for Defendant’s retaliatory conduct. The Court finds Plaintiff has fallen woefully short of establishing that even one of the reasons for termination was pre-textual, let alone both.

On this basis, the trial court concluded that the MCSO had established the nonexistence of a genuine issue of material fact and that it was entitled to a judgment as a matter of law.

V. DISCUSSION

A. Introduction

After a thorough review of the record, we disagree with the trial court’s analysis, The record contains evidence from which one might conclude that the MCSO’s stated reasons for discharging Mr. Horn-fischer will not withstand critical scrutiny and that the reasons are pretextual. This evidence in the record includes: (1) information indicating that the MCSO’s stated reasons for discharging Mr. Hornfischer are questionable; (2) e-mails and other documents circulated among the MCSO’s agents reflecting the negative attitude that they displayed toward Mr. Hornfischer and his claims; and (3) the affidavits that Mr. Hornfischer filed in opposition to the motion for summary judgment. We will discuss these three types of evidence separately below.

B. The Questionable Reasons Given for Mr. Hornfischer’s Discharge

The MCSO offered two reasons in support of its determination to discharge Mr. Hornfischer. Both of these reasons are subject to question.

The first reason the MCSO offered for Mr. Hornfischer’s discharge was his alleged failure to obtain a report from his authorized treating physician concerning his medical condition and fitness to return to work as a control room operator. According to the MCSO, Mr. Hornfischer’s alleged failure to obtain this report amounted to neglect of duty warranting his discharge. There are two problems with the neglect of duty charge.

The first problem with the neglect of duty charge stems from the legal conclusion that obtaining the physician’s report was the responsibility of the MCSO, not Mr. Hornfiseher. The workers’ compensation system is designed to be self-executing, and it is in “its day-to-day operations, fundamentally an employer/earrier-monitored system.” Gauthier v. Fla. Int'l Univ., 38 So.3d 221, 224 (Fla. 1st DCA 2010). In order to ensure that the system functions efficiently as intended, “[a]ny health care provider providing necessary remedial treatment, care, or attendance to any injured worker” is required to submit reports to the employer/carrier. § 440.13(4)(a), (c). For these reasons, the employer cannot pass off its responsibilities under the Workers’ Compensation Law to the injured worker and require him or her to act as its go-between to a health care provider. Here, the MCSO discharged Mr. Hornfiseher for allegedly failing to perform a function that it could not lawfully demand of him.

The second problem with the neglect of duty charge is that the record reflects a genuine issue of material fact about whether Mr. Hornfiseher actually complied with the MCSO’s unauthorized demand. There is evidence in the record that Mr. Horn-fiseher obtained the requested report from his doctor and faxed it to his attorney. In turn, Mr. Hornfischer’s attorney evidently faxed a copy of the report to Unisource, the third-party administrator, before the deadline imposed by the MCSO for the receipt of the report. Thus evidence in the record tends to demonstrate that the requested report was actually in the hands of the claims administrator, the MCSO’s agent, within the time allotted for that purpose. In the absence of contrary evidence, the MCSO could not reasonably contend that it was not in receipt of the report that was delivered to the agent it had authorized to handle the claim.

The second reason the MCSO gave for discharging Mr. Hornfiseher was that he was absent from work without leave. Nevertheless, the evidence in the record raises a genuine issue of material fact about the reason or reasons for Mr. Horn-fischer’s absence from work. There is evidence in the record that when Mr. Horn-fiseher reported for work, he notified his supervisor that he was taking prescribed analgesics. Upon hearing this information, the supervisor instructed Mr. Horn-fiseher to leave work and to return home. Based on such evidence, a jury could reasonably conclude that Mr. Hornfiseher was not absent from work without leave.

C. A Negative Attitude

The evidence in the record before the circuit court included a series of e-mails exchanged among the MCSO’s agents— the Manatee County attorney’s office and Unisource. A jury reading these e-mails might conclude that the MCSO’s agents consistently displayed a negative attitude toward Mr. Hornfiseher and his workers’ compensation claims. An adjuster in the Manatee County attorney’s office arranged for and obtained surveillance reports on Mr. Hornfiseher. When Mr. Hornfischer’s deposition in the workers’ compensation claims was scheduled for May 10, 2007, the same adjuster arranged for an off-duty law enforcement officer to be present at the deposition. Ultimately, Mr. Hornfischer’s case was referred to the Florida Department of Financial Services for the investigation of alleged insurance fraud. The apparent animus displayed by the MCSO’s agents against Mr. Hornfischer and his claims constitutes evidence from which— depending upon all of the facts — it might be appropriate for a jury to draw an inference that the MCSO’s stated reasons for discharging Mr. Hornfischer were pretex-tual in nature.

D. The Opposing Affidavits

Mr. Hornfischer filed his own affidavit and the affidavit of his attorney in opposition to the motion for summary judgment. In his affidavit, Mr. Hornfischer stated, in pertinent part, as follows:

9. This was not my first workers’ compensation claim. I sustained other, earlier on-the-job injuries during my employment with the Sheriffs Office who handled those claims in accordance with the workers’ compensation law. My employer handled this claim differently. My employer knew this claim was more expensive than the others, and sought to limit the exposure it presented. In doing so, my employer ordered surveillance of my activities, accused me of insurance fraud, referred to my MRSA [Multi-Resistant Staphylococcus Aureus] infection as bug bites, repeatedly insisted that I singularly produce a report from the doctor it authorized to treat my compensable injuries, refused to communicate with my attorney or give my attorney a copy of the medical report form to enable my attorney to assist me, and discharged me after telling me that I failed to meet the deadline for producing the report. My employer required me to return to work in a temporary assignment as a control room operator on April 27, 2007, which I did, and sent me home because I was taking medications; and on that date my employer suspended my compensation benefits and did not resume the payments until I was able to see Dr. Greene.
10. Although my employer had received the medical information it demanded from me, my employer told me that it had not received the information directly from me, calling it “insubordination” and “neglect of duty”. I was not insubordinate nor did I neglect my duties. On the contrary, my employer disregarded its obligations under the workers’ compensation law and unlawfully discharged me. My employer’s unlawful actions occurred only because of my valid workers’ compensation claim and my attempt to obtain compensation under the workers’ compensation law.

Mr. Hornfischer’s attorney’s affidavit described the circumstances concerning the actions taken by him and.Mr. Hornfischer to obtain the doctor’s report and to deliver it to Unisource before the deadline imposed by the MCSO. These affidavits constitute additional evidence in the record from which a jury might conclude that the MCSO’s stated reasons for discharging Mr. Hornfischer were both unfounded and pretextual.

E. The MCSO’s Responses

The MCSO offers two responses to the evidence in the record summarized above. First, the MCSO argues that the lapse of approximately six months between Mr. Hornfischer’s claims and his discharge conclusively establishes the absence of a causal connection between the protected activity and the adverse employment action. In light of the matters outlined above concerning the questionable nature of the reasons offered for Mr. Hornfischer’s discharge, together with the e-mails reflecting a negative attitude by the MCSO’s agents toward Mr. Hornflscher and his claims, we find this argument unconvincing.

Second, the MCSO asserts that Manatee County, which ran the self-insurance pool, and Unisource, the third-party administrator of the pool, “are distinct and separate entities” from the MCSO. According to the MCSO, Mr. Hornflscher improperly attempts to “attribute the actions” of these separate entities to it. We take a different view of the matter.

In light of the other evidence he presented in opposition to the motion for summary judgment, we conclude that Mr. Hornflscher was entitled to attempt to establish at a trial that the MCSO’s managers responsible for his firing were aware of the thinking and the actions of the MCSO’s agents charged with handling Mr. Hornfischer’s workers’ compensation claims. Cf. Barlow v. C.R. England, Inc., 703 F.3d 497, 502, 508 (10th Cir.2012) (noting that the employer’s site manager, who was responsible for discharging a workers’ compensation claimant in what was alleged to be a retaliatory discharge, was aware of a third-party claims adjuster’s decision to place the claimant under surveillance and was also asked for help in responding to the adjuster’s queries concerning the claim when the site manager made the decision to discharge the claimant). A jury would be entitled to draw negative inferences about the MCSO’s motives for discharging Mr. Hornflscher from such evidence. For this reason, we find the MCSO’s argument that the acts of its agents cannot be considered in determining the propriety of summary judgment to be unpersuasive.

VI. CONCLUSION

Generally speaking, an employer does not announce or state in writing that it is discharging an employee because he or she has filed a workers’ compensation claim. It is not difficult for an employer wishing to discharge an employee for engaging in protected activity to find another plausible reason or reasons to justify its decision. Thus a determination of whether an adverse employment action was causally related to the employee’s protected activity will frequently depend on a consideration of all the pertinent facts, a searching assessment of the actions, statements, and credibility of the participants, and the drawing of appropriate inferences informed by one’s life experience and understanding of human nature. For this reason, employee actions for a retaliatory discharge under section 440.205 are often ill suited to final disposition on a motion for summary judgment. This is such a case. Here, the MCSO failed to establish the nonexistence of a material fact concerning whether its discharge of Mr. Hornflscher was causally related to the filing of his worker’s compensation claims. A review of the record reveals evidence from which a jury could find that the MCSO’s stated reasons for discharging Mr. Hornflscher were pretextual. Accordingly, we reverse the final summary judgment in favor of the MCSO and remand for further proceedings.

Reversed and remanded.

DAVIS, C.J., and ALTENBERND, J„ Concur.

      . The facts — which are drawn from the pleadings; the depositions on file; the affidavits; and the e-mails, correspondence, and other documents in the record — are reviewed in the light most favorable to Mr. Hornfischer as the nonmoving party against whom the summary judgment was entered. See Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256, 258-59 (Fla.2002).

      . It would unduly lengthen this opinion to detail the content of all of these e-mails here. One exchange will suffice to give their tenor. On May 1, 2007, a claims adjuster in the Manatee County attorney's office sent an email to an adjuster at Unisource who had just been assigned to handle Mr. Hornfischer’s claims. The e-mail said: "You are going to get sick of this file. I received a letter from [Mr. Hornfischer’s attorney] which I am forwarding to you and attorney Dan DeMay.” The Unisource adjuster responded: "I just reviewed the file, and you are right. This man has no intentions on ever[] actually returning to work.”

      . See, e.g., Rivera v. Saffold, 606 So.2d 1249, 1249 (Fla. 2d DCA 1992); Ortega, 30 So.3d at 529; Eads v. Traffic Control Devices, Inc., 19 So.3d 1142, 1143 (Fla. 1st DCA 2009); Hubbard v. City of Boca Raton, 839 So.2d 747, 748 (Fla. 4th DCA 2003), Posada v. James Cello, Inc., 135 Fed.Appx. 250, 252-53 (11th Cir.2005); Davis v. Jim Quinlan Ford, Lincoln-Mercury, Inc., 932 F.Supp. 1389, 1392-93 (M.D.Fla.1996). But see, e.g., Pericich v. Climatrol, Inc., 523 So.2d 684, 685-86 (Fla. 3d DCA 1988), Edwards v. Niles Sales & Serv., Inc., 439 F.Supp.2d 1202, 1228-37 (S.D.Fla. 2006); Humphrey v. Sears, Roebuck, & Co., 192 F.Supp.2d 1371, 1374-75 (S.D.Fla.2002).


text:
    STATE FARM FLORIDA INSURANCE COMPANY, Petitioner, v. Robert COBURN and Marta Coburn, Respondents.
    No. 2D13-2920.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2014.
    Lee Craig, Matthew J. Lavisky, and Ez-equiel Lugo of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Petitioner.
    George A. Vaka and Nancy A. Lauten of Vaka Law Group, Tampa, for Respondents.
   MORRIS, Judge.

State Farm Florida Insurance Company petitions for a writ of certiorari directed at the circuit court’s order denying State Farm’s motion for protective order. The underlying action is a first-party bad faith action brought by State Farm’s insureds, Robert and Marta Coburn. State Farm sought a protective order after the Co-burns served various discovery requests on State Farm. Because we do not believe that State Farm has demonstrated irreparable harm under the facts of this case, we deny the petition. However, as explained below, we do so without prejudice to State Farm’s having the opportunity to file a privilege log with the circuit court before producing the requested discovery.

State Farm objected to the Coburns’ discovery requests on the basis of over-breadth and burdensomeness (i.e., the scope of discovery), as well as on the basis of attorney-client privilege and the work product doctrine. State Farm argued in its petition that the circuit court departed from the essential requirements of law by failing to conduct an in-camera review to address its objections, but in their response, the Coburns argue that State Farm waived this issue by failing to file a privilege log or ask for an in-camera review below.

We do not believe that the facts of this case establish a waiver by State Farm. “ ‘[A] party is required to file a [privilege] log only if the information is otherwise discoverable,’ ” Morton Plant Hosp. Ass’n, Inc. v. Shahbas, 960 So.2d 820, 826 (Fla. 2d DCA 2007) (quoting Gosman v. Luzinski, 937 So.2d 293, 295 (Fla. 4th DCA 2006)), and until a circuit court rules on the scope of discovery objection, “the party responding to the discovery does not know what will fall into the category of discoverable documents,” Gosman, 937 So.2d at 296. Thus, prior to a ruling on a scope of discovery objection, “the obligation to file a privilege log does not arise.” Gosman, 937 So.2d at 296.

The circuit court’s order denying State Farm’s motion for protective order did not specifically address State Farm’s scope of discovery objections nor did the circuit court find that State Farm had waived any of its assertions of privilege or protection. We conclude that the general denial of State Farm’s motion was equivalent to a determination that all of the documents were “otherwise discoverable.” At that point, State Farm’s claims of privilege and protection under the work product doctrine became mature. See Allstate Indem. Co. v. Oser, 893 So.2d 675, 677-78 (Fla. 1st DCA 2005). Because Florida Rule of Civil Procedure 1.280 “does not provide a time limit for filing the [privilege] log,” Oser, 893 So.2d at 677, State Farm now has the ability to file a privilege log pointing to specific documents which it claims are protected by attorney-client privilege and/or the work product doctrine. Accordingly, our denial of the petition for writ of certio-rari is without prejudice to State Farm’s right to file a privilege log before producing the requested discovery.

Denied.

WALLACE and KHOUZAM, JJ, Concur.

      . Further, nothing has been presented to this court indicating that the Coburns ever sought to compel production of the requested discovery on the basis that State Farm waived its assertions of privilege and protection.


author: PER CURIAM.

text:
    Lafayette Latrell RICHARDSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-5282.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2014.
    Lafayette Latrell Richardson, pro se.
   PER CURIAM.

Lafayette Richardson appeals the post-conviction court order denying his motion filed under Florida Rule of Criminal Procedure 3.801; we reverse.

In his motion, Richardson argued that although the court properly awarded ten days of credit for the time he spent in the Polk County Jail in case numbers 12^4479 and 12-4480, the court failed to apply 357 days of jail credit to which he is entitled for the time he was held in the Polk County Jail from July 19, 2012, to July 11, 2013, awaiting sentencing in case number 12-6456.

In its order denying relief, the postcon-viction court only considered Richardson’s jail credit from case numbers 12^4479 and 12-4480, apparently because Richardson listed only those case numbers at the top of his rule 3.801 motion. However, Richardson clearly referenced case number 12-6456 in the body of the motion, provided the dates and location of incarceration, and identified the total credit that was not properly awarded.

Section 921.161(1), Florida Statutes (2013), states that “[a] sentence of imprisonment shall not begin to run before the date it is imposed, but the court imposing a sentence shall allow a defendant credit for all of the time she or he spent in the county jail before sentence.” “ ‘[W]hen, pursuant to section 921.161(1), a defendant receives pre-sentence jail-time credit on a sentence that is to run concurrently with other sentences, those sentences must also reflect the credit for time served.’ ” Ran sone v. State, 48 So.3d 692, 694 (Fla.2010) (quoting Daniels v. State, 491 So.2d 543, 545 (Fla.1986)).

Richardson alleged in his motion that he was arrested in case number 12-6456 on July 19, 2012, at which time the court revoked his bond in case numbers 12-4479 and 12-4480, and held him without bond in the Polk County Jail until he pleaded no contest in all three cases on July 11, 2013. Richardson’s sentences in case numbers 12-4479, 12-4480, and 12-6456, were ordered to run concurrently; therefore we reverse and remand for the postconviction court to determine the amount of jail credit that should be applied to Richardson’s sentence from case number 12-6456.

Reversed and remanded.

CASANUEVA, LaROSE, and CRENSHAW, JJ., Concur.


author: LaROSE, Judge.

text:
    Q.G.W.M., Appellant, v. STATE of Florida, Appellee.
    Nos. 2D13-992, 2D13-994.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2014.
    Howard L. Dimmig, II, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Gillian N. Leytham, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

Q.G.W.M. appeals the trial court’s order modifying his probation. We affirm in part and reverse in part.

Q.G.W.M. pleaded no contest to burglary of a conveyance and criminal mischief in case 09-CJ-4994 and to grand theft of a motor vehicle in case 10-CJ-4362. The trial court adjudicated him delinquent and committed him to a Department of Juvenile Justice moderate risk program, followed by postcommitment probation. Subsequently, the State charged Q.G.W.M. with violating his probation by violating his curfew, failing to attend school without disciplinary issues by being expelled from school, and by testing positive for an illegal drug, THC. The trial court found him guilty of violating his probation and placed him on probation again, with additional terms. Q.G.W.M. raises three issues on appeal.

Curfew

Q.G.W.M. contends that the “6 p.m.” curfew specified in the probation orders was vague because it did not state whether 6 p.m. was the beginning or end of the curfew period. He failed to preserve the issue for review because he did not raise this argument in the trial court. He wants us to find his trial counsel ineffective on the face of the record. The vagueness argument is unconvincing; we decline to find that his counsel was ineffective on the record before us. We affirm the trial court’s finding that Q.G.W.M. violated his curfew.

Positive THC Test

Q.G.W.M. argues that the evidence was insufficient to sustain revocation for a positive drug test because the probation officer was not an expert chemist qualified to perform or interpret the urinalysis. See Bray v. State, 75 So.3d 749, 750 (Fla. 1st DCA 2011) (holding probation officer’s testimony about drug test without qualifying officer as expert was inadmissible hearsay). Q.G.W.M. failed to preserve this issue in the trial court; he argued only that the test results were unreliable because the results were not verified by an independent lab and that the probation officer failed to investigate whether Q.G.W.M.’s use of Tylenol could have interfered with the results. See Moore v. State, 788 So.2d 385, 386 (Fla. 5th DCA 2001) (holding appellant failed to preserve issue of admissibility of officer’s testimony). Therefore, we affirm the trial court’s finding that Q.G.W.M. violated his probation by using illegal drugs.

Expulsion

Q.G.W.M. argues that the hearsay evidence that Q.G.W.M. was expelled from school is insufficient to violate his probation for attending school without disciplinary issues. The State concedes error but argues that the trial court would have found Q.G.W.M. in violation of his probation on the other two grounds. We agree. See Gaddy v. State, 23 So.3d 1258, 1259 (Fla. 2d DCA 2009) (holding that revocation of probation and sentence need not be reconsidered where one condition was not established but where competent, substantial evidence supported the trial court’s findings of violations of other conditions); Green v. State, 19 So.3d 449 (Fla. 2d DCA 2009) (citing multiple cases in support of affirming where remaining findings of violation are sufficient to support trial court’s ruling).

We affirm the trial court’s order on the violation of probation but remand for the trial court to strike from the orders in cases 09-CJ-4994 and 10-CJ-4362 the findings that Q.G.W.M. violated the probation condition of attending school without disciplinary issues.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and MORRIS, JJ., Concur.


author: VILLANTI, Judge.

text:
    DR. EMANUEL KONTOS, D.M.D., P.A., Appellant, v. Victoria MENZ, Appellee.
    No. 2D12-4390.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 2014.

      Ramiro C. Areces of Ramiro C. Areces, P.A., Coral Gables, for Appellant.
    Matthew W. Fenton of Wenzel Fenton Cabassa, P.A., Tampa, for Appellee.
   VILLANTI, Judge.

Dr. Emanuel Kontos, D.M.D., P.A., seeks review of the final judgment of the circuit court that purports to enforce an administrative final order entered in a retaliatory discharge case. We affirm but write to address a legal issue underlying the provisions of the Pinellas County Code that were applied in this case.

Menz brought a retaliatory discharge action against Kontos, her former employer, under section 70-54 of the Pinellas County Code. This code provision, which generally prohibits an employer from retaliating against an employee because that employee has filed a discrimination complaint or opposed a discriminatory practice, essentially tracks the language of section 760.10(7), Florida Statutes (2009). After an evidentiary hearing before an administrative law judge (ALJ) appointed by the Department of Administrative Hearings, the ALJ entered a proposed order finding in favor of Menz. Neither party filed exceptions to the ALJ’s proposed order, and a final order in favor of Menz was rendered on June 1, 2011. Kontos did not appeal.

When Kontos failed to pay the award made in the final order, Menz filed a “petition for enforcement” in the Sixth Judicial Circuit Court. The petition stated that it was being filed pursuant to section 70-78(b) of the Pinellas County Code, which provides:

Upon failure of any party to comply with an order of the administrative law judge to pay damages, a “petition for enforcement” may be filed by the board of county commissioners, or the complainant, in a court of competent jurisdiction. A court reviewing a petition for enforcement shall require the responding party to show cause, based upon the record established below, why such order should not be enforced, and shall enforce the order unless there is a showing by the responding party that, based upon the record, there is no competent substantial evidence to support the order and/or the order did comply with the essential requirements of law.

The circuit court accepted jurisdiction over the petition based solely on this section of the Pinellas County Code, and it ordered Kontos to show cause why the ALJ’s final order should not be enforced. Kontos responded by challenging the factual findings of the ALJ. The circuit court rejected these challenges and entered an order enforcing the petition, which Kontos now appeals.

While neither party raised the issue of whether the circuit court had jurisdiction to consider Menz’s petition for enforcement, this court sua sponte questioned whether Pinellas County could confer jurisdiction on the circuit court to hear petitions for enforcement pursuant to section 70-78(b) of the Pinellas County Code. While we conclude that it could not do so, we also conclude that its attempt to do so was harmless.

The jurisdiction of the circuit courts is set forth in article V, section 5, of the Florida Constitution. This section provides that “circuit courts shall have original jurisdiction not vested in the county courts” and “the power of direct review of administrative action prescribed by general law.” Art. V, § 5(b), Fla. Const. We have previously stated that section 5(b) “is a constitutional limit on the authority of any body other than the legislature to confer jurisdiction on the state’s circuit courts.” Pleasures II Adult Video, Inc. v. City of Sarasota, 833 So.2d 185, 189 (Fla. 2d DCA 2002) (emphasis added). Moreover, because the legislature may create jurisdiction in the circuit courts only by “general law,” a “special” or local law cannot confer such jurisdiction. Id.; see also Cherokee Crushed Stone, Inc. v. City of Miramar, 421 So.2d 684, 685 (Fla. 4th DCA 1982) (noting that a municipal ordinance “may not confer jurisdiction on the circuit court where none otherwise exists”).

The circuit courts’ jurisdictional scope is codified in section 26.012, Florida Statutes (2009), which contains an exclusive list of the types of cases that fall within the original and review jurisdiction of the circuit courts. Nothing in either article V of the Florida Constitution or section 26.012 permits a city, county, or other municipal body to confer jurisdiction on a circuit court by enacting local laws or codes. However, courts have held that when a local law or code “confers no more power of jurisdiction upon that court than it already had without such provision,” the local law does not violate the constitution. Milton v. City of Marianna, 107 Fla. 251, 144 So. 400, 402 (1932). Thus, a jurisdictional deficiency arises only when the local law or code serves as the sole source of the circuit court’s jurisdiction.

Here, we have determined that the “grant” of jurisdiction set forth in section 70-78(b) of the Pinellas County Code does not violate the constitution because jurisdiction was already granted to the circuit court, and hence “otherwise exists,” under general law, i.e., section 120.69, Florida Statutes (2009). This section, which deals with the enforcement of agency action, permits either the agency or a “substantially interested person” to file a “petition for enforcement” in the circuit court where the subject matter of the enforcement is located. Id. While we recognize that Menz did not reference section 120.69 in her petition, we view this error as a pleading deficiency that did not divest the circuit court of jurisdiction to entertain the petition. Cf. Carbajal v. State, 75 So.3d 258, 262 (Fla.2011) (noting that alleged defect in a criminal information relating to the statewide prosecutor’s authority to prosecute defendant did not divest the circuit court of jurisdiction, which it indubitably had under general law); Hosp. Corp. of Am. v. Lindberg, 571 So.2d 446, 448 (Fla.1990) (holding that while pleading deficiencies in a complaint may fail to properly invoke the jurisdiction of the circuit court, such deficiencies do not deprive the court of subject matter jurisdiction and may be corrected if proper objections are made); Martinez v. Abraham Chevrolet-Tampa, Inc., 891 So.2d 579, 581 (Fla. 2d DCA 2004) (holding that alleged defect in the verification of plaintiffs administrative complaint was not jurisdictional and thus was waived when the defendant failed to object). Hence, we find no constitutional jurisdictional infirmity in the entry of the final judgment on appeal.

More troubling, however, are the provisions of section 70-78(b) which purport to tell the circuit court what procedures it must follow when it receives a petition for enforcement and what standard of review it must use when considering the petition. “Generally, the Legislature has the power to enact substantive law, while the Court has the power to enact procedural law.” Allen v. Butterworth, 756 So.2d 52, 59 (Fla.2000); see art. V, § 2(a), Fla. Const. And under the separation of powers doctrine, “[n]o person belonging to one branch [of government] shall exercise any powers appertaining to either of the other branches unless expressly provided herein.” Art. II, § 3, Fla. Const.

To the extent that section 70-78(b) purports to delineate the scope of review by the circuit court and the procedures to be used during that review, it encroaches on the powers of the legislature and the supreme court to enact substantive and procedural law. Hence, in our view, those portions of section 70-78(b) that set forth procedures for the circuit court to follow and the standard of review the court is to apply violate the separation of powers doctrine. However, because the circuit court’s reliance on these procedures did not result in harm to either party in this case, we affirm despite any constitutional procedural infirmity.

Affirmed.

NORTHCUTT and CRENSHAW, JJ., Concur.


author: SILBERMAN, Judge.

text:
    Frederick L. WAGNER, Appellant, v. Sherry R. WAGNER, Appellee.
    No. 2D12-5404.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 2014.
    Jane H. Grossman, St. Petersburg, for Appellant.
    Philip A. McLeod, St. Petersburg, for Appellee.
   SILBERMAN, Judge.

Frederick L. Wagner (the Husband) appeals the amended final judgment of dissolution of marriage with respect to the alimony award to Sherry R. Wagner (the Wife) and the determination of marital debt. We affirm without discussion the award of $300 per month in permanent alimony. As to the debt issue, the Husband contends that the trial court erred in determining that a credit card debt for an adult child’s college expenses incurred just before the Wife filed her petition for dissolution was not a marital debt and was the Husband’s responsibility. We reverse and remand regarding this issue.

The parties were married for twenty-seven years. The Wife filed her petition for dissolution on June 27, 2011. The Wife had made the Husband aware by at least June 21, 2011, that she planned to serve him with the petition. On June 22, 2011, the Husband charged $6757.75 on a Discover Card and on June 23, 2011, again charged $6757.75 on the Discover Card for a total of $13,515.50. These charges were to pay an adult daughter’s expenses at Davidson College.

The Wife testified that the Husband did not discuss these charges with her and that she had never agreed to pay $13,500 in June 2011 for their daughter’s college expenses. The Wife’s agreement with her daughter was that she would have to get a loan if she wanted to attend Davidson.

The Husband testified that the parties had discussed with their daughter that they would make every effort to help her but what they could not help her with she would have to cover with loans. However, the daughter missed her financial aid application deadline. The Husband testified that they had received “the bill saying there was a whole bunch of money that was going to be due right away or she wasn’t going to be able to attend, which is what prompted” him to charge it on the Discover Card.

The trial court made a written “interim finding” that the credit card debt incurred for the college expenses was a marital debt. In its written “supplemental findings of fact,” the trial court reconsidered the issue and found that it “does not have the authority to order a parent to pay for college expenses and given the timing of the incurrence of the debt with regard to the filing of this action the appearance is that the husband has sought to have the Court assign half of that cost to the wife.” The trial court found that the debt “is not an appropriate marital debt.” The court concluded, “The Court would anticipate/hope that both parenting partners would take part in the funding of the Davidson College expenses[;] however, the Court rules that the primary responsibility for the Davidson College expenses are [sic] with the father.”

The Husband contends that the trial court erred in failing to allocate the Discover Card debt of $13,515.50 as a marital debt. The determination of whether a debt is marital or nonmarital is a question of law subject to de novo review. Jones v. Jones, 51 So.3d 547, 549 (Fla. 1st DCA 2010).

Marital liabilities include “liabilities incurred during the marriage, individually by either spouse or jointly by them.” § 61.075(6)(a)(l)(a), Fla. Stat. (2011). Unless the parties have a valid separation agreement, the date of the filing of the petition for dissolution is the cut-off date for determining whether assets and liabilities are classified as marital. See § 61.075(7). “All assets acquired and liabilities incurred by either spouse subsequent to the date of the marriage and not specifically established as nonmarital assets or liabilities are presumed to be marital assets and liabilities.” § 61.075(8). To overcome the presumption, a party must show “that the assets and liabilities are nonmarital assets and liabilities.” Id. As to the valuation of marital assets and liabilities, the court has discretion to determine a date that is “just and equitable” for valuation purposes. § 61.075(7).

Because the parties did not enter into a marital settlement agreement, the pertinent date to determine whether assets and liabilities are marital or nonmarital is June 27, 2011, when the Wife filed the petition for dissolution. The Husband charged the college expenses on June 22 and 23, 2011, before the Wife filed the petition; thus, the credit card charges are presumed to be a marital debt. See § 61.075(7), (8). The Wife did not make a showing that the college charges were non-marital liabilities. See § 61.075(8).

The Wife contends that any obligation a parent has to fund the college education of an adult child is moral, not legal, and that the court cannot require a parent to pay those expenses unless the parties have contracted for them in a marital settlement agreement. See Madson v. Madson, 636 So.2d 759, 761 (Fla. 2d DCA 1994); Riera v. Riera, 86 So.3d 1163, 1167-68 (Fla. 3d DCA 2012). That is true for college expenses incurred after the petition for dissolution was filed and in the future. Here, the expenses were incurred during the marriage, albeit a few days before the petition was filed.

The trial court may consider a party’s intentional waste or depletion of marital assets to do equity and justice between the parties. Santiago v. Santiago, 51 So.3d 637, 638 (Fla. 2d DCA 2011); see also David v. David, 58 So.3d 336, 338 (Fla. 5th DCA 2011) (recognizing that intentional waste of marital assets can justify an unequal distribution). The trial court did not make a finding of waste of marital assets to justify an unequal distribution. See Rosenfeld v. Rosenfeld, 597 So.2d 835, 838 (Fla. 3d DCA 1992) (reversing determination that the husband wasted marital assets by assisting in the support of his parents). In fact, the trial court “hope[d] that both parenting partners would take part in funding the Davidson College expenses outside of Court.” Although the Wife did not favor paying the college expenses, under all the circumstances, we cannot conclude that the Husband’s actions constitute intentional waste.

Accordingly, we reverse the amended final judgment to the extent that the trial court found that the credit card charges for the Davidson expenses were not marital debt. On remand, the trial court should consider those credit card charges as marital debt and adjust its equitable distribution.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and MORRIS, JJ., Concur.


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    In the Interest of A.C. (1), A.C. (2), and T.C., children. A.C., Appellant, v. Department of Children & Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D13-4186.
    District Court of Appeal of Florida, Second District.
    Feb. 14, 2014.
    Ita M. Neymotin, Regional Counsel, and Joseph Thye Sexton, Assistant Regional Counsel, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, and Meredith Hall, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
    Jennifer S. Paullin, Sanford, for Appel-lee Guardian Ad Litem Program.
   WALLACE, Judge.

A.C., the Father, appeals an order placing three of his minor children into a permanent guardianship. Although we conclude that the trial court’s decision to place the children in a permanent guardianship is supported by competent, substantial evidence, the order on appeal fads to contain or to reference the detailed findings required by section 39.6221(2)(a), Florida Statutes (2012). See J.S. v. Dep’t of Children & Family Servs., 18 So.3d 712, 714 (Fla. 2d DCA 2009) (“[I]n its written order, the trial court was required to explain why reunification was not possible by either ‘referring to specific findings of fact made in its order adjudicating the ehild[ren] dependent or by making separate findings of fact[.])’ ” (quoting § 39.6221(2)(a), Fla. Stat. (2008)). As we stated in J.S., the trial court’s reference to “the circumstances from which the court previously based its findings that the children are dependent” is insufficient to comply with this requirement. Id. Accordingly, we reverse and remand for the entry of an amended order that meets the requirements of section 39.6221(2)(a). See C.C. v. Dep’t of Children & Families., 108 So.3d 699 (Fla. 5th DCA 2013).

Reversed and remanded.

ALTENBERND and NORTHCUTT, JJ., Concur.

      . We deny the Father’s motion to take judicial notice of the record in J.S. In fact, we returned the record in J.S. to the trial court several years ago. Of course, we have considered the published opinion in J.S. to the extent that the decision in that case serves as relevant precedent for this case.


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    Lonnie Robert MUNN, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-4358.
    District Court of Appeal of Florida, First District.
    Feb. 26, 2014.
    Rehearing Denied May 1, 2014.
    Nancy A. Daniels, Public Defender, Steven L. Seliger, Assistant Public Defender, and M.J. Lord, Assistant Public Defender, Office of the Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Anne C. Conley, Assistant Attorney General, Giselle D. Lylen, Assistant Attorney General, and Trisha Meggs Pate, Bureau Chief, Office of the Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the defendant’s convictions and sentences in all respects, save one. As the State concedes, his multiple convictions for home invasion robbery violate double jeopardy. See Williams v. State, 92 So.3d 322 (Fla. 1st DCA 2012). Therefore, as to those counts, we reverse and remand for the trial court to vacate two of the three convictions of home invasion robbery. In all other respects, the judgment and sentence are affirmed.

Affirmed in part, reversed in part, and remanded.

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


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    Alieh AMINAKSHARIEH and Bahrain Akbari, Appellant, v. WATERFORD LAKES, etc., et al., Appellee.
    No. 5D13-4539.
    District Court of Appeal of Florida, Fifth District.
    March 4, 2014.
    Alieh Aminaksharieh and Bahram Ak-bari, Orlando, pro se.
    David Kohs and Matt Firestone of Pohl & Short, P.A., Winter Park, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. RApp. P. 9.315(a).

SAWAYA, PALMER, and COHEN, J.J., concur.


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    Eduardo VALENZUELA, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4717.
    District Court of Appeal of Florida, First District.
    March 18, 2014.
    Rehearing Denied April 28, 2014.
    Eduardo Valenzuela, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Anne C. Conley, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

We affirm the trial court’s denial of the appellant’s claims that he was convicted of non-existent crimes, but remand the case for correction of a scrivener’s error in the judgment which states that the jury convicted the appellant in Count VI of false imprisonment. The record indicates that the jury found the appellant not guilty of this count.

AFFIRMED IN PART, REVERSED AND REMANDED IN PART, WITH DIRECTIONS.

ROBERTS, WETHERELL, and OSTERHAUS, JJ., concur.


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    Isaac J. MARTIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-0036.
    District Court of Appeal of Florida, First District.
    April 2, 2014.
    Isaac J. Martin, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Dismissed. See Cole v. State, 905 So.2d 905 (Fla. 1st DCA 2005) (“Because the motion for rehearing is not subject to appellate review, this Court is without appellate jurisdiction.”).

ROWE, MARSTILLER, and RAY, JJ., concur.