author: PER CURIAM. WARNER, J.,

text:
    C.S. and A.S., children, D.S., the Father, and E.S., the Mother, Appellants, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    Nos. 4D13-713, 4D13-714, 4D13-774.
    District Court of Appeal of Florida, Fourth District.
    Oct. 30, 2013.

      Kathleen K. Peña, Plantation, for appellants C.S. and A.S.
    Lori D. Shelby, Fort Lauderdale, for appellant father.
    Antony P. Ryan, Regional Counsel, and Sue-Ellen Kenny, Special Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant mother.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Carolyn Schwarz, Assistant Attorney General, Fort Lauderdale, for appellee.
   PER CURIAM.

We affirm the final judgment terminating the parental rights of both the father and mother to their children, C.S. and A.S. While both parents contend that the court erred in entering a consent to the judgment pursuant to section 39.801(3)(d), Florida Statutes (2012), we disagree. The court gave the parents adequate notice of the date and time of the third day of the adjudicatory hearing. When the parents failed to appear on the assigned date, the trial court had authority to enter the consent. Id. See, e.g., J.M. v. Dep’t of Children & Families, 9 So.3d 34, 36 (Fla. 4th DCA 2009) (termination proceedings); A.J. v. Dep’t of Children & Families, 845 So.2d 973, 975-76 (Fla. 4th DCA 2003) (holding that the parents’ failure to appear at continued adjudicatory hearing constituted a consent to dependency adjudication). Moreover, although the court entered the consent, in the final judgment it did not rely exclusively on the consent but evaluated the testimony and evidence presented and made detailed findings of fact and conclusions to support both the grounds for termination; that termination was the least restrictive means of protecting the children; and that it was in their manifest best interest that the parents’ rights be terminated. We disagree with the dissent, which concludes that there was no competent substantial evidence to support these findings. To find otherwise would simply substitute our judgment for that of the trial court.

We also affirm the trial court’s denial of the mother’s motion to vacate the consent, which was filed after the final judgment. The trial court found the mother’s excuse for nonappearance not to be credible, and the court’s decision was unquestionably supported by competent substantial evidence.

Affirmed.

CIKLIN and GERBER, JJ., concur.

WARNER, J., dissents with opinion.

WARNER, J.,

dissenting.

I dissent. I would adopt the reasoning of O.R. v. Department of Children and Family Services, 979 So.2d 1105, 1106-1107 (Fla. 3d DCA 2008), which interpreted identical language in the dependency statute regarding the trial court’s authority to enter a consent. The Third District held that the similar dependency statute, section 39.506(3), Florida Statutes (2008), does not authorize the trial court to enter a consent when the parents appear for the first day of trial but are not present on a continuation of the trial.

Section 39.801(3)(d), Florida Statutes (2012), provides:

If a parent appears for the advisory hearing and the court orders that parent to personally appear at the adjudicatory hearing for the petition for termination of parental rights, stating the date, time, and location of said hearing, then failure of that parent to personally appear at the adjudicatory hearing shall constitute consent for termination of parental rights.

Identical language is contained in section 39.506(3), construed by the Third District in O.R. In that case, the parents appeared on the first two days of the adjudicatory hearing and failed to appear on the third day scheduled three months later, the same circumstances as in this case. The trial court entered a consent, and the appellate court reversed, concluding that the statute did not allow for a consent to be entered when the trial was proceeding:

Florida’s long standing public policy favors adjudication of disputes on the merits, ... and we decline the Department’s invitation to extend the statute beyond its plain words. The statute says nothing about imposing a consent where a parent appears for the initial trial day and then fails to appear on a subsequent day. As this court stated in Nickerson [v. Department of Children and Families, 718 So.2d 373, 374 (Fla. 3d DCA 1998) ], “In the absence of any statute or rule allowing for the entry of defaults in these types of proceedings, we conclude that the trial court had no authority to enter a default judgment. ...” Id.
* * *
While the defense attorneys in this case moved for a continuance, they were unable to articulate any good cause for delaying the trial. The motion for continuance was properly denied. The Department should have proceeded with the presentation of its case, rather than seeking a default.

Id. at 1107-08 (citations omitted).

I would apply this reasoning to section 39.801(3)(d). It appears to be quite normal in termination proceedings for adjudicatory hearings to be extended over multiple days spread over weeks, if not months. The Department should not be relieved of its burden to prove the essential facts of such an important proceeding where the parents miss one day of an extended hearing.

J.M. v. Department of Children and Families, 9 So.3d 34, 36 (Fla. 4th DCA 2009), is distinguishable, because the issue was not raised in that case. The mother attacked the consent entered after several days of trial, because she was not given proper notice. We concluded in that case that the trial court erred, but that it was harmless. In addition, I would recede from A.J. v. Department of Children and Families, 845 So.2d 973, 975-76 (Fla. 4th DCA 2003), which rejected a similar argument as presented in O.R.

Termination cases are frequently referred to as the civil death penalty for families. If a criminal defendant were unavailable for trial, the state could not simply default the defendant. It must prove its case to a jury. Similarly, because of the final nature of termination of parental rights cases, these cases are simply too important to children and families to let them be decided by default.

I also cannot conclude that the Department otherwise proved its case against the mother. The parents and children have been in and out of dependency proceedings for almost ten years, mostly due to both parents’ continued drug use. The mother used Xanax. It had been prescribed to her when she was a teen, and as she testified during the TPR trial, it made her feel “normal.” She relapsed into illegal use of the drug when trying to cope with injuries her daughter suffered when she was accidentally shot in the hand by her brother. The drug use has caused the children to be removed at least twice each from the mother’s care prior to their present removal. In each of the other removals, the mother successfully completed her tasks and regained custody of the children.

Although at various times over the years the Department had received recommendations from providers of services indicating that the mother needed a psychiatric evaluation and treatment, those services were never offered to her. When the guardian ad litem was appointed in the termination proceedings, she moved for a continuance so that the mother could be evaluated for underlying psychological/psychiatric issues. The court continued the proceedings to allow the mother to have the evaluation and any recommended treatment. The examination was conducted, and the psychologist made recommendations for treatment for an underlying depressive disorder. Despite these recom-niendations, the trial court disregarded them, believing that the mother had not timely obtained the evaluation and thus was essentially doing “too little too late.” This ignored the testimony of the child advocate that the mother was not responsible for the delay in getting the evaluation, as DCF was changing service providers for such evaluations at the time.

Substance abuse alone is an insufficient ground to establish termination of parental rights. See M.H. v. Dep’t of Children & Families, 866 So.2d 220, 222 (Fla. 1st DCA 2004); B.C. v. Dep’t of Children & Families, 846 So.2d 1273, 1275 (Fla. 4th DCA 2003) (in dependency proceeding, although there was evidence of parent’s drug and alcohol abuse, there was no evidence that parent had failed to meet child’s needs while child was in his care). The state must connect the drug abuse to specific harm to the child.

Even if the state proves a ground for termination, before a parent’s right to her child can .be terminated, the state must show that termination is the least restrictive means of protecting the child from serious harm. Padgett v. Dep’t of Health & Rehab. Servs., 577 So.2d 565, 571 (Fla.1991). This requires that DCF show that it has made a good faith effort to rehabilitate the parent through a case plan. Id.

As explained in M.H., this requires that the state prove three elements:

First, the trial court must find the children’s life, safety, or health would be threatened by continued interaction with the parent, regardless of the provision of services. See In re C.W.W., 788 So.2d 1020, 1023 (Fla. 2d DCA 2001). “In essence, the trial court must find that any provision of services would be futile or that the child[ren] would be threatened with harm despite any services provided to the parent.” Id.; see also N.L. v. Dep’t of Children & Family Servs., 843 So.2d 996, 1002 (Fla. 1st DCA 2003).
Second, if the court finds the children would be threatened with harm, despite the provision of services, DCF must then prove there is no reasonable basis to believe the parent will improve. See F.L. v. Dep’t of Children & Families, 849 So.2d 1114 (Fla. 4th DCA 2003); see also L.B. v. Dep’t of Children & Families, 835 So.2d 1189, 1195 (Fla. 1st DCA 2002) (noting prospective neglect or abuse may be found if a parent is so afflicted that no reasonable basis exists for improvement). Where the record demonstrates a reasonable basis exists to find the parent’s problems could be improved, parental rights cannot be terminated. See L.B., 835 So.2d at 1195.
Finally, DCF must show termination is the least restrictive means of protecting the children from serious harm. See id. at 1195. The least restrictive means test in the context of termination of parental rights requires those measures short of termination be utilized if such measures will permit the safe reestablishment of the parent-child bond. See id. at 1196 (holding termination of mother’s parental rights not least restrictive means where father working on case plan, and no evidence mother’s visits were harmful); Gaines v. Dep’t of Children & Families, 711 So.2d 190 (Fla. 5th DCA 1998) (holding termination of parental rights not least restrictive means, in part, where court did not consider relative placement before terminating parental rights).

866 So.2d at 222-23 (emphasis supplied).

Because the Department knew of the recommendations for psychological evaluation and never provided the mother with the recommended psychological or psychiatric services, I think the court could not find that termination was the least restrictive means until the Department provided the mother with the opportunity through a new case plan to address these issues which underlay her behavior and substance abuse. Although the mother had been given many opportunities to address her substance abuse, these can’t be sufficient if they do not address. the issues causing the substance abuse, known by the Department but ignored.

The trial court’s finding that termination was in the manifest best interest of the children is also not only unsupported by competent substantial evidence, it is against the manifest weight of the evidence. The children are adamant that they want to be with their mother, and the trial court’s determination that the children could not express a preference because they were not “age appropriate to verbalize their preferences” is completely unfounded. The children are ten and seven, and C.S. has been very vocal that he wants to be with his mother. All of the time that the children have been in and out of the custody of the parents, they have been with them grandparents, not foster parents. Thus, they have remained with family, and there is no evidence that they have suffered, other than being apart from their mother. They are apparently not in need, psychologically or physically. While the maternal grandparents have said they would adopt the children, the guardian ad litem also testified that the grandmother preferred that her daughter shape up and take the children. Despite her drug issues, the mother is very appropriate in her interactions with her children, and the children are very bonded to her.

The court, however, never heard from the grandmother or the children. Instead, it relied on a TPR advocate who appears to be an employee of DCF or of the Attorney General, who had never spoken to the children or their therapist, and the child advocate who admitted that the mother had not been given the opportunity to address her underlying psychiatric conditions.

The children in this case were stable in their placement with the maternal grandmother. They wanted to be with their mother. Over these many years in which the Department was involved with the mother, it never provided her with the evaluation and treatment that so many had recommended. The guardian ad litem literally pleaded with the court not to terminate the mother’s rights until the mother had the opportunity to complete psychiatric treatment and has appealed the termination of parental rights on behalf of the children.

It appears to me that termination was not in the best interests of the children. I would hold that the court erred as a matter of law in entering a consent to the termination for both parents. Further, the trial court abused its discretion in terminating the mother’s rights, both in determining that termination was the least restrictive means of protecting the children and that it was in their manifest best interest. I would reverse and remand to provide the mother an opportunity to complete tasks and treatment recommended by her examining psychiatrist.

      . I am not sure why she was allowed to testify, as she doesn’t appear to be an expert but, rather, appears to be an employee of the Department. She never talked to the children or their therapist. She only talked to the parents a few times at hearings and to the grandmother twice. Mainly, she reviewed the file. Her testimony is simply not competent substantial evidence to support termination, in my view.


source: Caselaw Access Project

author: TAYLOR, J.

license: Public Domain

text:
    Jeffrey PERELMAN, Appellant, v. ESTATE OF Ruth C. PERELMAN a/k/a Ruth Caplan Perelman a/k/a Ruth Perelman and Raymond Perelman, Appellees.
    No. 4D13-1370.
    District Court of Appeal of Florida, Fourth District.
    Oct. 30, 2013.

      Edward Downey and R. Lee McElroy of Downey & Downey, P.A., Palm Beach Gardens, and Morgan, Lewis & Bockius LLP, for appellant.
    Jack J. Aiello and George S. Lemieux of Gunster, Yoakley & Stewart, P.A., West Palm Beach, and James G. Pressley, Jr. of Pressly & Pressly, P.A., West Palm Beach, for appellees.
   TAYLOR, J.

Ruth Perelman, the late wife of appellee Raymond Perelman, died in Philadelphia, Pennsylvania on July 31, 2011, at the age of 90. In this appeal of a final Florida probate order, Ruth and Raymond’s son Jeffrey Perelman challenges: 1) the trial court’s refusal to stay the Florida probate proceeding in deference to a Pennsylvania probate proceeding; and 2) the trial court’s determination that Ruth was domiciled in Florida at the time of her death. Because we conclude that the trial court should have stayed the action under the principle of priority, we reverse.

Following Ruth’s death, Raymond filed an informal caveat in Pennsylvania on August 5, 2011. On August 11, 2011, Jeffrey delivered a petition for probate to the Pennsylvania Register of Wills, seeking to probate Ruth’s 2010 Will. On August 12, 2011, the Office of the Register of Wills sent Raymond’s counsel a letter via certified mail, notifying Raymond’s counsel of the petition and explaining that a formal caveat must be filed within ten days from the receipt of the letter or else the 2010 Will would be probated without further notice.

On August 24, 2011, Raymond filed a Petition for Administration in the probate court of Palm Beach County, Florida. In the Florida proceeding, the petition for administration was served by formal notice upon all respondents, including Jeffrey, between August 29 and August 31, 2011. Raymond’s Florida petition asserted that Ruth’s 2010 Will was invalid and sought to probate her 1991 Will.

On August 26, 2011, Raymond filed a formal caveat in the Pennsylvania proceeding. In the caveat, Raymond objected to the probate of Ruth’s 2010 Will, claiming that Ruth was domiciled in Florida and that Ruth’s 2010 Will was invalid for undue influence.

In September 2011, Jeffrey moved to dismiss or stay the Florida petition for administration. Jeffrey argued that the petition should be dismissed because Ruth was domiciled in Pennsylvania and there were no probate assets in Florida. In the alternative, he argued that the Florida proceedings should be stayed because probate was first sought with the Register of Wills in Pennsylvania.

In October 2011, after hearing argument from the parties regarding the status of the Pennsylvania proceeding and the law regarding comity and priority, the trial court denied Jeffrey’s motion to stay the action. During the proceedings, the trial court denied each of Jeffrey’s renewed motions to stay the case.

The trial court later entered an order determining Ruth’s domicile at the time of her death to be in Florida. However, the Pennsylvania Register of Wills had previously determined that Ruth was domiciled in Pennsylvania.

Following the trial court’s ruling on domicile, the case proceeded to trial on the will contest with respect to the 2010 Will. In February 2013, the trial court entered a final judgment on the will contest.

Jeffrey now appeals the final judgment in order to challenge the trial court’s refusal to stay the case and the court’s interlocutory ruling on domicile.

Rulings on motions for stay are governed by the abuse of discretion standard of review. U.S. Borax, Inc. v. Forster, 764 So.2d 24, 29 (Fla. 4th DCA 1999).

Under the “principle of priority,” where courts within one sovereignty have concurrent jurisdiction, the court which first exercises its jurisdiction acquires exclusive jurisdiction to proceed with that case. Siegel v. Siegel, 575 So.2d 1267, 1272 (Fla.1991). The principle of priority is, however, discretionary:

Admittedly, this principle is not applicable between sovereign jurisdictions as a matter of duty. As a matter of comity, however, a court of one state may, in its discretion, stay a proceeding pending before it on the grounds that a case involving the same subject matter and parties is pending in the court of another state.

Id. (quoting Bedingfield v. Bedingfield, 417 So.2d 1047, 1050 (Fla. 4th DCA 1982)).

Absent extraordinary circumstances, a trial court abuses its discretion when it fails to respect the principle of priority. Hirsch v. DiGaetano, 782 So.2d 1177, 1178 (Fla. 5th DCA 1999). However, “[t]his does not mean that a trial court must always stay proceedings when prior proceedings involving the same issues and parties are pending before a court in another state, but only that ordinarily this should be the result.” Siegel, 575 So.2d at 1272. “There may well be circumstances under which the denial of a stay could be justified upon a showing of the prospects for undue delay in the disposition of a prior action.” Schwartz v. DeLoach, 453 So.2d 454, 455 (Fla. 2d DCA 1984).

The Second District has noted that there do not appear to be any cases that “actually rule on the question of whether filing, as opposed to the exercise of jurisdiction, triggers priority.” In re Guardianship of Morrison, 972 So.2d 905, 908 (Fla. 2d DCA 2007). “Thus, there is no reasonable basis to conclude that the trigger for priority is anything but the exercise of jurisdiction as was stated by the supreme court in Sie-gel.” Id. In Morrison, the Second District held that a foreign court first exercised jurisdiction when it entered an order to show cause; by issuing an order to show cause, the foreign court indicated its intent to grant relief unless the opposing party could convince it otherwise. Id. at 909. “The ball is rolling, so to speak, and will not be stopped until the court issues an order or the plaintiff dismisses the lawsuit.” Id.

The threshold question in this case is whether Pennsylvania or Florida was the first state to exercise jurisdiction. In the context of two actions pending between the same parties in different circuits in Florida, the Florida Supreme Court has held that “jurisdiction lies in the circuit where service of process is first perfected.” Mabie v. Garden Street Mgmt. Corp., 397 So.2d 920 (Fla.1981). “[I]n case of conflict between courts of concurrent jurisdiction, the one first exercising jurisdiction acquires control to the exclusion of the other, and that jurisdiction attaches when the summons is served.” Suggs v. Cowart, 437 So.2d 238, 239 (Fla. 5th DCA 1983). However, these cases address priority as between two Florida courts with concurrent jurisdiction. We decline to extend their reasoning to priority contests between two states. Accordingly, we must look to Pennsylvania law to determine when Pennsylvania first exercised jurisdiction.

Under Pennsylvania law, the Register of Wills “shall have jurisdiction of the probate of wills, the grant of letters to a personal representative, and any other matter as provided by law.” 20 Pa.C.S.A. § 901 (2011). The Register of Wills is a judicial officer, and has sole jurisdiction of the probate of wills and testaments. In re Wulff's Estate, 24 Pa. D. 410 (Pa.Orph.1915). If a formal caveat is not filed within ten days after the filing of the petition for probate, the register proceeds to admit the will to probate. See 20 Pa. C.S.A. § 906. The probate of a will by the Register of Wills constitutes a judicial decree. Mangold v. Neuman, 371 Pa. 496, 501, 91 A.2d 904, 905 (1952). The Register’s decision on objections to the petition may be appealed to the Orphans’ Court, which conducts a de novo proceeding. 20 Pa.C.S.A. § 776 (2011). Where a jury trial is not granted, the Orphans’ Court “shall hear the testimony de novo unless all parties appearing in the proceeding agree that the case be heard on the testimony taken before the register.” Id.

Here, Pennsylvania was the first state to exercise jurisdiction. We conclude that Pennsylvania first exercised jurisdiction on August 12, 2011, when the Register of Wills issued a notice to Raymond’s counsel stating that Ruth’s 2010 Will would be probated “without further notice to you” unless Raymond -filed a formal caveat. The notice in this case clearly stated that relief would be granted unless Raymond filed a formal caveat. Therefore, following the Second District’s reasoning in Morrison, the Register’s notice indicated that “the ball [was] rolling” in Philadelphia, twelve days before Raymond filed his Florida petition on August 24, 2011.

Having concluded that Pennsylvania was the first state to exercise jurisdiction, we next consider whether the trial court abused its discretion in refusing to stay Raymond’s petition in Florida. The trial court’s order simply denied the motion to stay and did not make any finding of extraordinary circumstances that would justify refusing to apply the principle of priority as a matter of comity. Nor did Raymond make any showing that the Pennsylvania proceeding would cause undue delay.. All he offered in this regard was speculation. The mere fact that Pennsylvania allows for the possibility of a de novo proceeding in the Orphans’ Court does not, without more, establish undue delay.

While Raymond argues that this case is controlled by Parker v. Estate of Bealer, 890 So.2d 508, 512 (Fla. 4th DCA 2005), we find that Parker is distinguishable. There, although the Maryland proceeding was filed first, the Maryland probate court had never admitted the will to probate, no probate proceedings in Maryland had begun, estate administration had been ongoing for six months in Florida, and significant adverse tax consequences would have occurred if the will was probated in Maryland. The extraordinary circumstances in Parker simply are not present in this case.

Accordingly, we reverse the final judgment and the order on domicile, and remand for the trial court to issue a stay pending the resolution of the Pennsylvania probate proceeding.

Reversed and Remanded.

DAMOORGIAN, C.J., and KLINGENSMITH, J., concur.

      . This disposition makes it unnecessary to address whether the trial court’s domicile determination was supported by competent substantial evidence.


author: KLINGENSMITH, J.

text:
    Carmen HERNANDEZ and Carmen Feliz, Appellants, v. Alexis GONZALEZ, driver, and Linda Gonzalez, owner, Appellees.
    No. 4D12-1810.
    District Court of Appeal of Florida, Fourth District.
    Oct. 30, 2013.

      Shelly J.' Stirrat of Fox, Wackeen, Dun-gey, Beard, Bush, Goldman, Kilbride & McCluskey, LLP, Stuart, for appellants.
    Shelley Senecal of Law Office of Shelley Senecal, Fort Lauderdale, for appellees.
   KLINGENSMITH, J.

Appellants, Carmen Hernandez and Carmen Feliz, were plaintiffs in a lawsuit resulting from an automobile, accident. In that accident, their car was rear-ended by defendant Alexis Gonzalez who was driving a car owned by co-defendant Linda Gonzalez. Both Hernandez and Feliz were taken to the hospital from the scene of the accident by ambulance for evaluation. In the months thereafter, both sought medical treatment for physical problems they claimed were a result of the accident. At the conclusion of trial, the jury returned a zero damages verdict against both Hernandez and Feliz. These appellants now appeal from the denial of their respective motions for new trial on the grounds that the verdict was against the manifest weight of the evidence. For the reasons set forth below, we affirm the trial court’s denial of these motions.

“The appropriate standard of review applied to a trial court’s denial of a motion for a new trial is whether the trial court abused its discretion.” Izquierdo v. Gyroscope, Inc., 946 So.2d 115, 117 (Fla. 4th DCA 2007); see also Smith v. Brown, 525 So.2d 868, 870 (Fla.1988) (claim that verdict is against the manifest weight of the evidence is reviewable under the abuse of discretion standard). Appellants assert that the trial court abused its discretion in denying their motions for new trial, citing the jury’s failure to find that the accident caused damage, and failure to award them the cost of medical treatment at the accident scene and emergency room.

At trial, the appellees admitted negligence but disputed both causation and damages. In them defense, appellees presented evidence to support their claim that Hernandez had a history of significant preexisting injuries that was the cause of all of the medical treatment and expenses she subsequently incurred. Appellees also presented evidence during trial suggesting Feliz was not injured at all in the accident, including one witness who testified Feliz was seen laughing and giggling at the hospital soon thereafter. Both appellants denied these allegations and presented evidence to refute those claims. Appellees never disputed the reasonableness of the cost of medical treatment provided to appellants at the scene of the accident or at the hospital immediately afterwards. It was also undisputed that these expenses were incurred as a direct result of the accident. However, at the close of evidence during trial, neither Hernandez nor Feliz moved for directed verdict on their entitlement to these costs.

All parties agreed to the verdict form submitted to the jury for deliberation. On that form, the following question was asked:

Was the negligence on the part of the [sic] Alexis Gonzalez, who was the driver of the vehicle owned by Linda Gonzalez, a legal cause of loss, injury, or damage to the Plaintiff [Hernandez or Feliz]?

This verdict form question was referenced in the closing arguments presented by both sides. Each attorney argued that if the jury found the appellants were not injured from the accident, they should check “no” as to that question on the verdict form. In fact, the appellants’ counsel made the following argument during his closing:

Number one on both of [the verdict forms]: Was the negligence on the part of Alexis Gonzalez, who was the driver of the vehicle owned by Linda Gonzalez, a legal cause of loss, injury or damage to the plaintiff, Carmen Hernandez and the other one says Carmen Feliz. They’ve already admitted that they were negligent, okay, did their negligence cause damage? Of course it did, okay, the extent of the damage is something that I think you all are really going to have to talk to each other about, but of course, the answer to number one is yes. You have the option to check no, and if you think that there’s some kind of thing, if you think that Carmen Hernandez or Carmen Feliz weren’t injured at all, suffered nothing because they got rear ended, then check no, and we’re done, but if you think that they had an injury of whatever extent, the answer to number one is yes on both.

(Emphasis added). The jury returned its verdict, finding that the defendants’ negligence was not the legal cause of loss, injury or damage to the plaintiffs.

We find no error in the trial court’s denial of both motions for a new trial on whether the appellants’ claimed injuries were caused by the accident. Although the appellees admitted negligence, causation was a disputed issue on which both plaintiffs bore the burden of proof at trial. See Sparks-Book v. Sports Auth., Inc., 699 So.2d 767, 768 n. 1 (Fla. 3d DCA 1997) (“ ‘[E]ven with causation not at issue, plaintiff was still obligated to prove some connexity between the damages claimed and the [defendant’s tortious conduct].’” (quoting Rucker v. Garlock, Inc., 672 So.2d 100, 102 (Fla. 3d DCA 1996))). Where there is a dispute as to whether a plaintiffs injuries resulted from the subject accident, a verdict awarding the plaintiff only a portion of his or her damages, or perhaps none at all, does not require a new trial as a matter of law. Beauvais v. Edell, 760 So.2d 262, 264 (Fla. 4th DCA 2000).

Hernandez presented expert testimony at trial to support her claim for causation and damages. To counter this evidence, an expert for the defense opined Hernandez suffered from a pre-existing condition, and stated that the accident did not cause or contribute to her medical condition. Therefore, the jury’s conclusion that she was not damaged as a result of the accident was not against the manifest weight of the evidence. See Wald v. Grainger, 64 So.3d 1201, 1205-06 (Fla.2011) (when a medical expert’s opinion is predicated on an incomplete or inaccurate medical history, the jury is free to reject the expert medical testimony); Easkold v. Rhodes, 614 So.2d 495, 498 (Fla.1993) (where the plaintiff gave a materially untruthful medical history to the doctors, the jury was justified in disregarding the opinion testimony of plaintiffs medical expert); Katz v. Ghodsi, 682 So.2d 586, 588 (Fla. 3d DCA 1996) (plaintiffs motion for a new trial properly denied because “it was solely for the jury to resolve these conflicts and consider the weight of the disputed testimony”). As such, the trial court did not abuse its discretion in denying Hernandez’s motion for new trial.

Likewise, the trial court’s denial of the motion for new trial filed by Feliz was not an abuse of discretion. Although Feliz presented evidence that she suffered an injury to her neck from the accident, the defense countered that testimony with evidence casting doubt on her claims. A jury may reject medical testimony, even on un-controverted issues, provided it has a reasonable basis to do so, such as where there is conflicting lay testimony. See Weygant v. Ft. Myers Lincoln Mercury, Inc., 640 So.2d 1092, 1094 (Fla.1994); Easkold, 614 So.2d at 498; Fell v. Carlin, 6 So.3d 119, 121 (Fla. 2d DCA 2009) (“[I]f the jury had a reasonable basis to conclude Fell was not candid with his doctors, it also had a basis to reject their opinions about whether he was injured as a result of the accident.”). The law is also well-settled that a jury is entitled to reject evidence of past medical expenses in rendering its verdict. Frei v. Alger, 655 So.2d 1215, 1216 (Fla. 4th DCA 1995). Here, the jury could accept or reject the evidence presented by Feliz, but decided by its verdict she did not suffer any loss, injury or damage from the accident.

It is generally true that even when a jury finds the plaintiff was not injured as a result of the subject accident, the plaintiff is nonetheless entitled to recover any expenses incurred for medical examinations and diagnostic testing reasonably necessary to determine whether the subject accident caused the injuries. See Sparks-Book, 699 So.2d at 768; Blanford v. Polk Cnty., 410 So.2d 667, 669 (Fla. 2d DCA 1982); Peek v. Stevens, 395 So.2d 617, 617-18 (Fla. 5th DCA 1981); Ridenour v. Sharek, 388 So.2d 222, 224 (Fla. 5th DCA 1980). As such, appellants suggest that this court’s recent decision in Pack v. Geico General Insurance Co., 119 So.3d 1284 (Fla. 4th DCA 2013), supports their request for a new trial. In Pack, we reaffirmed the general rule that a plaintiff may recover the cost of medical expenses for diagnostic testing which were reasonably necessary to determine whether the accident caused injuries, regardless of whether or not the jury ultimately finds the accident to be the legal cause of those claimed injuries.

However, this court also noted in Pack that there are exceptions to this general rule that could allow a jury to award a zero verdict, regardless of the medical expenses incurred. For example, an exception can apply when sufficient evidence is presented at trial regarding certain factors, including but not limited to pre-exist-ing injuries with extensive treatments, lack of candor with treating physicians, videotapes that show actual physical capabilities, and expert medical opinions which conflict as to causation. See State, Dep’t of Transp. v. Rosario, 782 So.2d 927, 928 (Fla. 2d DCA 2001) (affirming a zero jury verdict where the evidence supported the jury’s conclusion that the plaintiff suffered no damages as a result of the accident). The evidence presented at trial regarding the appellants’ claims was sufficient to support the existence of one or more of these factors; thus, an exception to the above-stated general rule applies here as well.

Further, entitlement to certain elements of damages as a matter of law can also be waived. Here, appellants could have moved for a directed verdict on the issue of recovery for the cost of medical treatment at both the accident scene and emergency room. See Sparks-Book, 699 So.2d at 768; Ridenour, 388 So.2d at 223. Instead, they elected to leave this decision to the jury by asking them to return a verdict in this case on an “all-or-nothing” basis. This is analogous to the case of Martin v. Chapman, 780 So.2d 929 (Fla. 5th DCA 2001), where the defendant admitted liability but vigorously contested damages at trial. The jury in Martin returned a zero verdict finding that defendant’s negligence was not a legal cause of damage to plaintiff. The trial court ordered a new trial due to concerns that the jury failed to award any damages, “despite unrefuted evidence” of an emergency room bill incurred due to the accident. In reversing the order granting a new trial, the Fifth District noted that when a plaintiff fails to move for directed verdict on entitlement to these damages, they are electing to leave this issue up to the decision of the jury. As in the case at bar, trial counsel in Martin also expressly invited the jury in closing to return a verdict on an “all-or-nothing” basis, arguing to the jury that “if you think that [Chapman] was faking when he was on this witness stand, just say he’s not hurt and we’ll all go home.” Id. at 930 n. 1. The Fifth District found that by utilizing this argument, plaintiff had waived any objection to the fact that the jury accepted this invitation and came back with nothing.

Appellants’ failure to object to the verdict form and jury instructions also prevents us from revisiting the jury verdict. In Plana v. Sainz, 990 So.2d 554 (Fla. 3d DCA 2008), an adverse final judgment was entered against a plaintiff following the jury’s zero verdict in a personal injury action. Plaintiff alleged on appeal that the trial court erred by denying the plaintiffs motion for new trial, where the jury failed to award expenses incurred for diagnostic testing to determine whether plaintiffs complained-of injuries were a result of the subject accident. The Third District held that because the plaintiff failed to object to the verdict form and the trial court’s instructions, they waived any objection to the zero damage award. In Plana, counsel for the plaintiff agreed to the wording of the verdict form, which instructed the jury that if it found the subject accident was not the legal cause of plaintiffs injury, it should proceed no further except to sign the verdict form. By consenting to the wording used on the verdict form, the plaintiff was precluded from asserting on appeal that the zero damage award entered by the jury was error.

Both Martin and Plana stand for the proposition that granting a new trial under the circumstances presented here is unwarranted, because “the jury cannot be faulted for doing exactly what it was instructed to do.” Plana, 990 So.2d at 557; see also Beverly Health & Rehab. Servs., Inc. v. Freeman, 709 So.2d 549, 551 (Fla. 2d DCA 1998) (plaintiff “waived the issue of nominal damages by agreeing to the verdict form that instructed the jury to skip the damages issue if its answer to the causation question was ‘no’ ”); Papcun v. Piggy Bag Disc. Souvenirs, Food & Gas Corp., 472 So.2d 880, 881 (Fla. 5th DCA 1985) (citing to well-established Florida law that “failure to object to a verdict form regarding defects not of a constitutional or fundamental character constitutes a waiver of such defects”).

Appellants’ counsel expressly asked the jury in his closing argument to return a verdict against his clients as to all of their damages should they find that the evidence failed to support their claims. This type of argument, employed by both the attorney in Martin and by appellants’ counsel, is intended to enhance counsel’s credibility and trust with the jury. However, this strategy also has the concomitant risk that the jury will indeed accept the proffered invitation, and deliver to counsel an adverse result for his client. Counsel took this calculated risk when he submitted the appellants’ damages claims to the jury in toto. That this strategy failed neither requires nor permits this court to grant a new trial. See, e.g., E.I. Du Pont De Nemours & Co. v. Native Hammock Nursery, Inc., 698 So.2d 267, 273 (Fla. 3d DCA 1997); Saxon v. Chacon, 539 So.2d 11, 12 (Fla. 3d DCA 1989); Diaz v. Rodriguez, 384 So.2d 906 (Fla. 3d DCA 1980). As stated in Saxon:

Obviously, counsel for plaintiff [who had refused to move for a mistrial] wanted to take his chances with the jury on the state of the evidence adduced below; having gambled and lost when the jury returned an adverse verdict, he cannot now be heard to ask belatedly for a new trial ....

Saxon, 539 So.2d at 12.

A party cannot successfully complain about an error for which he or she is responsible or of rulings that he or she has invited the trial court to make. Gupton v. Village Key & Saw Shop, 656 So.2d 475, 478 (Fla.1995). Appellants’ inability to recover certain elements of damages in this case was a foreseeable potential outcome of counsel’s trial strategy and not a result of any error by the trial court. Taylor v. Bateman, 927 So.2d 1024 (Fla. 4th DCA 2006); Fuller v. Palm Auto Plaza, Inc., 683 So.2d 654 (Fla. 4th DCA 1996). By seeking to have the jury decide the issue of appellees’ liability for all damages rather than moving for directed verdict on any or all of those damages, appellants cannot now successfully claim error simply because the jury returned a zero verdict. See Gupton, 656 So.2d at 478; see also Sheffield v. Superior Ins. Co., 800 So.2d 197, 202 (Fla.2001) (quoting Goodwin v. State, 751 So.2d 537, 544 n. 8 (Fla.1999)) (Under the rule of invited error, “ ‘a party may not make or invite error at trial and then take advantage of the error on appeal.’ ”).

Affirmed.

TAYLOR and LEVINE, JJ., concur.


author: PER CURIAM.

text:
    Karl RENTEL, Appellant, v. Sun RENTEL, Appellee.
    No. 4D12-2444.
    District Court of Appeal of Florida, Fourth District.
    Oct. 30, 2013.

      Melody Ridgley Fortunato of Fortunato & Associates, P.A., Fort Lauderdale, for appellant.
    Terrence P. O’Connor of Morgan, Car-ratt and O’Connor, P.A., Fort Lauderdale, for appellee.
   PER CURIAM.

The appellant, Karl Rentel (“husband”), appeals the final judgment of dissolution of marriage to the appellee, Sun Rentel (“wife”). He raises five issues on appeal, all of which revolve around the alimony awarded to the wife. One of the five issues has merit and requires discussion. The husband argues that the trial court erred by not making findings regarding net income. We agree.

Net income rather than gross income is relevant when calculating support awards, including alimony. Kingsbury v. Kingsbury, 116 So.3d 473, 474-75 (Fla. 1st DCA 2013); Vega v. Vega, 877 So.2d 882, 883 (Fla. 3d DCA 2004); Shrove v. Shrove, 724 So.2d 679, 682 (Fla. 4th DCA 1999). Because it is not apparent that the trial court based its alimony calculations on net income, we reverse and remand to make the required findings and to modify the award if necessary. See Kingsbury, 116 So.3d at 475. The court may hold an evidentiary hearing if it needs additional evidence to make the required findings. See Warren v. Warren, 629 So.2d 1079, 1080 (Fla. 3d DCA 1994).

Reversed and remanded for further proceedings in accordance with this opinion.

WARNER, CIKLIN and GERBER, JJ., concur.


text:
    Orion Christian BARNES, Appellant, v. Lacey M. Morrison BARNES, Appellee.
    No. 4D12-2441.
    District Court of Appeal of Florida, Fourth District.
    Oct. 30, 2013.

      Stuart N. House of Stuart N. House, P.A., Coral Springs, for appellant.
    Bernard R. Appleman of the Law Office of Bernard R. Appleman, Fort Lauderdale, for appellee.
   PER CURIAM.

The issue presented is whether the trial court erred in finding Colorado to be the home state of the parties’ minor children under Florida’s Uniform Child Custody Jurisdiction Enforcement Act (“UC-CJEA”). We find that the trial court erred in failing to correctly apply the UC-CJEA to the facts of this case, because the home state of the minor children was Florida, not Colorado. Accordingly, we reverse and remand.

The mother and father moved from Colorado to Florida in October of 2010 with their two minor children. On August 24, 2011, the mother moved back to Colorado with the children. A third child was born in Colorado in 2012.

On December 8, 2011, the father filed a verified petition for establishment of parenting plan, child support, and determination of parental responsibility and time-sharing. The mother’s answer asserted that she had filed a petition for divorce in Colorado but failed to contest the alleged duration of time the minor children lived in Florida.

At a May 2012 hearing on the father’s second urgent motion for a child pick-up order and temporary parenting plan, the mother testified that she and the children had been Florida residents for “ten months.”

The trial court'stated on the record:

Having considered the testimony of the two witnesses, the Court is going to deny [the father’s] motion for a pick-up order. The Court is finding that the State of Colorado is the home state under the UCCJ[E]A for jurisdiction purposes.
In terms of factual findings, the Court finds that there is no court order determining the rights of custody that has been entered by any Court of competent jurisdiction. The Court finds that the mother had relocated to the State of Colorado on August 24th or August 25, 2011. The Court finds that the children had maintained continuous residency in the State of Colorado since that time.
But for UCCJ[E]A, for jurisdiction purposes, the Court will find that the mother had established a residency in [ex]cess of six months in Colorado, that there are current legal proceedings pending in Colorado and that Colorado is the appropriate place that these matters should now be litigated.

The trial court’s written order found Colorado “to be the home state for purposes of UCCJEA jurisdictional purposes.” The court later denied the father’s motion for rehearing. This appeal by the father follows.

We review de novo the trial court’s ruling that it lacked subject matter jurisdiction under the UCCJEA. Schaffer v. Ling, 76 So.3d 940, 941 (Fla. 4th DCA 2011).

“Under the UCCJEA, jurisdictional priority lies in the child’s home state.” Karam v. Karam, 6 So.3d 87, 90 (Fla. 3d DCA 2009). The Florida circuit court has jurisdiction to make an initial child custody determination only if Florida is the child’s home state on the date of the commencement of the custody proceeding or was the child’s home state within six months before commencement of the proceeding and a parent or person acting as a parent continues to live in the state. § 61.514(l)(a), Fla. Stat. (2011); see also Lande v. Lande, 2 So.3d 378, 381 (Fla. 4th DCA 2008). The statute defines “home state” as “the state in which a child lived with a parent or a person acting as a parent for at least 6 consecutive months immediately before the commencement of a child custody proceeding.” § 61.503(7), Fla. Stat. (2011).

This court has concluded that “section 61.514(l)(a) permits the exercise of home state jurisdiction if, at any time during the six months preceding the filing of the custody proceeding, Florida qualified as the child’s home state.” Sarpel v. Eflanli, 65 So.3d 1080, 1084 (Fla. 4th DCA 2011).

The case of M.A.C. v. 88 So.3d 1050 (Fla. 2d DCA 2012), is instructive. In M.A.C., the mother and child lived in Florida from January to September 2010 when she and the child moved to North Carolina. The father filed his petition for relief on December 9, 2010. On appeal from the trial court’s ruling that Florida was not the home state of the child, the appellate court found:

Here, the trial court failed to look back to June 9, .2010, six months prior to the filing of the father’s petition, to determine if Florida qualified as the home state at any time between June 9, 2010, and December 9, 2010, the date he filed his petition.... Based on the parties’ agreement on these dates, the mother lived in Florida with [the child] from January 3, 2010, until September 7, 2010, a total of eight consecutive months. September 7, 2010, is within the six-month period prior to the father’s filing of his petition. Thus, Florida qualifies as the home state under the UCCJEA and the South County court had jurisdiction to make the initial time-sharing determination.

Id. at 1054-55.

In the present case, following M.A.C., we look back to six months prior to the date of the father’s petition, or June 8, 2011, and determine whether Florida qualified as the home state of the minor children at any time between then and December 8, 2011. On June 8, 2011 the parties’ two minor children had been living in Florida with both parents for approximately eight months. The mother left Florida after living here with the two children for approximately ten months and within the six-month period prior to the father’s filing of the petition, thereby making Florida the home state of the two minor children at the time of the petition. Thus, the trial court erred in declining to exercise jurisdiction on the grounds that the home state of the minor children was Colorado under the UCCJEA.

The mother’s argument that the trial court properly refused jurisdiction pursuant to section 61.520, Florida Statutes (2011), is not supported by the record and does not merit further discussion. See M.A.C., 88 So.3d at 1055.

In conclusion, because the trial court erred in finding the home state of the two minor children to be Colorado under the UCCJEA, we are required to reverse.

Reversed and remanded for further proceedings.

TAYLOR, LEVINE and KLINGENSMITH, JJ., concur.


text:
    Christopher DEAN, Petitioner, v. STATE of Florida, Respondent.
    No. 4D13-2470.
    District Court of Appeal of Florida, Fourth District.
    Oct. 30, 2013.
    Christopher Dean, Sneads, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for respondent.
   PER CURIAM.

Christopher Dean has filed a petition alleging that he received ineffective assistance of appellate counsel in his direct appeal in Dean v. State, 82 So.3d 851 (Fla. 4th DCA 2011), review denied, 81 So.3d 413 (Fla.2012). In Dean, this court affirmed his convictions and sentences for second degree felony murder and burglary. We grant the petition and remand for a new trial or plea negotiations.

The facts are discussed in this court’s opinion on direct appeal. The victim of the murder was Dean’s accomplice in the burglary who was struck and killed by a vehicle driven by the owner of the burglarized home who gave chase after the burglary. Dean claims that his appellate counsel was ineffective in failing to argue fundamental error in the jury instruction for burglary. The jury was instructed that to commit the offense of burglary, defendant was required to have a “fully formed, conscious intent to commit the offense of burglary in that structure.” It is well settled that the giving of this circular instruction is fundamental error. Viveros v. State, 699 So.2d 822, 825 (Fla. 4th DCA 1997); Puskac v. State, 735 So.2d 522, 523 (Fla. 4th DCA 1999). Unlike Freeman v. State, 787 So.2d 152, 153 (Fla. 4th DCA 2001), the court did not instruct the jury properly elsewhere in the instruction for burglary. The written instruction contains the same error.

The State concedes that the petition filed in this case is well taken and that this court has granted ineffective appellate counsel petitions which raised counsel’s failure to have argued this issue as fundamental error on direct appeal. See Guerra v. State, 10 So.3d 1164, 1165 (Fla. 4th DCA 2009); Bruce v. State, 879 So.2d 686, 688 (Fla. 4th DCA 2004); see also Lee v. State, 958 So.2d 521 (Fla. 2d DCA 2007).

As in Guerra, Bruce, and Lee, we determine that granting a new appeal would be redundant. The felony murder conviction in this case is also fundamentally flawed as the jury was required to find that defendant committed or attempted to commit a burglary in order to convict. The jury was never properly instructed as to the elements of burglary, and as a result, the felony murder conviction is also fundamentally flawed. Accordingly, we grant the petition and remand for a new trial or plea negotiations.

Petition granted and remanded for further proceedings.

STEVENSON, TAYLOR and CIKLIN, JJ., concur.


author: FORST, J. WARNER, J,

text:
    Judith McCLURE, Petitioner, v. PUBLIX SUPER MARKETS, INC., Respondent.
    No. 4D13-1220.
    District Court of Appeal of Florida, Fourth District.
    Nov. 6, 2013.
    R. Timothy Vannatta of R. Timothy Vannatta, P.A., Fort Lauderdale, for petitioner.
    Edward G. Guedes of Weiss Serota Helfman Pastoriza Cole & Boniske, P.L., Coral Gables, for respondent.
   FORST, J.

Petitioner, Judith McClure, a plaintiff in a slip and fall negligence case, seeks cer-tiorari review of an order compelling her deposition prior to the production of a store security video of the slip and fall. She contends that the court’s order departs from the essential requirements of law based upon Target Corp. v. Vogel, 41 So.3d 962 (Fla. 4th DCA 2010). As set forth below, we deny the writ, finding that the trial court’s order was not an abuse of judicial discretion and, as such, not contrary to our Target opinion.

Subsequent to filing suit against the Publix grocery store, McClure filed a request for production of store security video. When Publix failed to respond to this request, McClure filed a motion to compel. Publix responded that it would produce the requested video following its deposition of McClure. The trial court denied McClure’s motion, permitting Publix to delay production of the video until it had completed a deposition of McClure. McClure’s petition to this court followed.

To obtain certiorari relief from a non-final order, the petitioner must establish: “(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 v. Oken, 62 So.3d 1129, 1132 (Fla.2011) (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004)). “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.” Id. at 1133.

In Target, this court denied the petition for writ of certiorari (as we are doing in the instant case), noting “the circuit court’s broad discretion in overseeing discovery.” Target, 41 So.3d at 963. To that extent, Target is consistent with the Florida Supreme Court’s decision in Dodson v. Persell, 390 So.2d 704 (Fla.1980), which held, with respect to discovery requests for surveillance movies and photographs, it is “within the trial court’s discretion,” to determine that “the surveilling party has the right to depose the party or witness filmed before being required to produce the contents of the surveillance information for inspection.” Id. at 705 (emphasis added). It is also consistent with language from decisions of federal courts in Florida, including Schulte v. NCL (Bahamas) Ltd., which is referenced in Judge Warner’s dissenting opinion. See, e.g., Schulte v. NCL (Bah.) Ltd., No. 10-23265-CIV, 2011 WL 256542, at *4 (S.D.Fla. Jan. 25, 2011) (“The undersigned recognizes that even though the tapes at issue are not work product, the Court retains the discretion to control the timing of discovery. Thus, under appropriate circumstances, the Court would not require production of a videotape prior to a plaintiffs deposition.”).

The dissenting opinion, while maintaining reliance on Target, would actually contravene that decision, limiting “the circuit court’s broad discretion” with respect to the timing of discovery and instead imposing the district court’s judgment upon the circuit court absent evidence that failing to do so would cause irreparable harm or that compelling the production of the video pri- or to the petitioner’s deposition is “a departure from the essential requirements of the law.” Williams, 62 So.3d at 1132. The petitioner has not shown that if she answers questions at a deposition, prior to production of the security store video showing the fall, that any harm will occur or that the video will somehow conflict with her statements at the deposition. Moreover, petitioner has not shown the trial court’s order shall, in any meaningful sense, delay McClure’s discovery.

Consistent with both Dodson and Target, we do not believe that the trial court abused its discretion in this matter. Accordingly, we deny certiorari review of the trial court’s order.

CIKLIN, J., concurs.

WARNER, J., dissents with opinion.

WARNER, J,

dissenting.

I would grant the petition, as I conclude that the harm alleged is not remediable on appeal, and therefore irreparable, and departs from the essential requirements of law. ■ The trial court did not follow Target Corporation v. Vogel, 41 So.3d 962 (Fla. 4th DCA 2010); or exercise judicial discretion in this case but entered the order as a matter of policy based upon prior similar rulings the court had made in other cases and not on the record in this case.

McClure slipped and fell in a Publix grocery store. Store security cameras recorded the fall. After filing suit for her injuries, McClure filed a request for production of the video. Publix did not respond to the request, and McClure filed a motion to compel. At the hearing on the motion to compel, Publix contended that it was entitled to take McClure’s deposition prior to her being able to see the video so that Publix could obtain McClure’s version of the incident unaided by her review of the actual video of it. McClure relied on Target, while Publix relied on Dodson v. Persell, 890 So.2d 704 (Fla.1980). No facts involving this case were elicited at the hearing. The trial court determined that it. would rule consistent with its ruling in other cases that the video did not have to be produced until after the deposition. McClure now petitions for review of this order.

As noted by McClure, she will be deprived of relief by way of direct appeal, because an appeal cannot undo her deposition answers if the deposition is taken prior to viewing the store security video. These answers can be used to attack her credibility at trial thus creating harm at trial of this matter. This harm cannot be corrected by way of an appeal at the end of the proceeding. See Bared & Co., Inc. v. McGuire, 670 So.2d 153, 156-57 (Fla. 4th DCA 1996). The court in Boucher v. Pure Oil Co., 101 So.2d 408 (Fla. 1st DCA 1957), explained such harm in connection with an order compelling a plaintiff to answer interrogatories:

“If plaintiff is wrongfully required to answer defendant’s interrogatories, she is beyond relief. We conceive no means by which on appeal this court could extract such knowledge, once gained, from the mind of the defendant, for truly ‘the moving finger having writ moves on nor any appeal shall lure it back to cancel half a line.’ ”

101 So.2d at 410. Although Boucher involved divulging privileged material, the principle is the same with respect to the irreparable nature of an order which requires the party to answer deposition questions prior to viewing the video, which is the substantive, objective evidence of what occurred during the incident. I suppose that McClure could simply answer questions regarding the incident by deferring to the video as to what occurred, and she well might do so with good reason depending upon her condition and extent of her injuries at the time of the accident. But that would have the same effect as not having her testify as to the facts of the incident until after the production of the video. Those answers would be used against her at trial to attack her credibility and veracity.

In any event, the issue is not remediable on appeal. With the proliferation of security video across this country, this presents an issue which will continually recur and should be addressed in an orderly fashion instead of allowing each trial court to render a ruling in accordance with its “policy” and not on the particular facts of any case. Thus, the issue is capable of repetition many times, yet evading review.

The main issue presented in this case is whether the trial court’s order requiring the plaintiffs deposition prior to the production of the video is a departure from the essential requirements of law. Florida Rule of Civil Procedure 1.280(e) provides for the sequence and timing of discovery:

unless the court upon motion for the convenience of parties and witnesses and in the interest of justice orders otherwise, methods of discovery may be used in any sequence, and the fact that a party is conducting discovery, whether by deposition or otherwise, shall not delay any other party’s discovery.

Thus, although the timing of discovery is within the trial court’s discretion, that discretion must be exercised for the convenience of the parties or the interests of justice. Otherwise, a party may not delay discovery simply because it is engaging in discovery itself. But even in “the interests of justice” the trial court exercises judicial discretion.

Judicial discretion is not an unleashed power by which a judge may set at naught the rights of parties to a cause and define them as suits his will or the will of others who may seek to influence his judgment. Judicial discretion is a discretion guarded by the legal and moral conventions that mold the acceptable concept of right and justice. If this is not true, then judicial discretion, like equity, will depend on the length of the judge’s foot, the state of his temper, the intensity of his prejudice, or perhaps his zeal to reward or punish a litigant. It takes more than a woolsack and a judicial robe to dehumanize human characteristics that are rehumanized each biennium.

Albert v. Miami Transit Co,, 154 Fla. 186, 17 So.2d 89, 90 (1944). A trial court must exercise that discretion by considering the individual facts and circumstances of each case. See Matire v. State, 232 So.2d 209, 211 (Fla. 4th DCA 1970). To the extent that the trial court had discretion regarding the timing of the discovery and production of the video to the plaintiff, the court did not exercise discretion based upon the record but rather repeated a policy the court had adopted in other cases. Because that discretion was not exercised based upon the facts and circumstances of this case, it was a departure from the essential requirements of law.

The court’s order departs from the holding of Target Corporation v. Vogel, 41 So.3d 962 (Fla. 4th DCA 2010). In Target, we held that a security video was not work product. Therefore, it was discoverable under the rules of procedure, which are designed “to prevent the use of surprise, trickery, bluff and legal gymnastics.” Surf Drugs, Inc. v. Vermette, 236 So.2d 108, 111 (Fla.1970). We denied Target’s petition for certiorari review, upholding the trial court’s order allowing discovery of the video by the plaintiff prior to her deposition being taken.

Target distinguished Dodson v. Persell, 390 So.2d 704 (Fla.1980), on which Publix relies, noting that Dodson dealt with a surveillance video made after the accident and during litigation- between the parties, thus clearly constituting work product. Dodson required the production of surveillance films made of a plaintiff after an accident but permitted the defendant to take the- deposition of the plaintiff prior to production of the film, in the discretion of the trial court, so as to divulge any inconsistency between the plaintiffs claims of injury and what the surveillance film revealed as -to plaintiffs physical capabilities. Thus, Dodson dealt with work product and its use for impeachment of the plaintiff on damage issues. Target, on the other hand, properly treated the security camera issue as involving ordinary discovery requests and not any protected work product.

The Target view has been adopted by other courts across the country. In Herrick v. Wilson, 429 N.J.Super. 402, 59 A.3d 604 (2011), the court held that a security video had to be produced in the normal course of discovery and could not await the deposition of the plaintiff. It found that there was a fundamental difference between a surveillance video taken of the plaintiff after litigation had commenced and a security video. It explained why a requirement that the plaintiffs deposition precede the discovery of a security video would lead to increased discovery battles and be counterproductive to the rules of procedure:

The Court Rules do not allow parties to unilaterally pick and choose which discovery they will produce and in what order. A contrary interpretation would allow parties to manipulate the discovery process by withholding certain discovery' in an effort to obtain a strategic advantage in the litigation.... To allow defendant to withhold this discovery would fundamentally change how pretrial discovery is conducted and allow parties to delay production of certain discovery to gain an upper hand in the litigation. There is simply no sound reason to treat the video surveillance at issue differently from other routine discovery such as prior statements or admissions made by a party. If defendant is permitted to withhold the video surveillance, it would open the floodgates of motion practice. Parties would begin to routinely refuse to.produce all evidence that would be more beneficial to produce after depositions are conducted.
Defendant has expressed concerns that if the video surveillance in question is produced prior to plaintiffs’ deposition, then plaintiffs’ unfettered, independent recollection will “be forever tainted.” This argument is not without merit. Nevertheless, the same argument could be advanced with respect to a practically limitless list of frequently produced discovery, including, but not limited to, police reports, witness statements, party admissions, emails, and photographs.... Allowing defendant to withhold the video surveillance until after plaintiffs’ depositions would lead to a slippery slope where, potentially, all discovery could be withheld out of concern that the information/material may influence or alter a party’s deposition testimony.

Id. at 606-07. See also Race v. Wal-Mart Stores, Inc., 2012 WL 6743576 (Conn.Super.Ct. Nov. 29, 2012); Dehart v. Wah-Mart Stores, E., L.P., 2006 WL 83405 (W.D.Va. Jan. 6, 2006).

This issue has been litigated in various circuit and federal courts in Florida. In Parks v. NCL (Bahamas) Ltd., 285 F.R.D. 674 (S.D.Fla.2012), a federal magistrate ruled that the defendants did not have to produce security video surveillance until after taking the plaintiffs deposition, so as to have plaintiff testify to her unrefreshed version of the incident. But in Schulte v. NCL (Bahamas) Ltd., 2011 WL 256542 (S.D.Fla.2011), the court rejected such a requirement, because it found nothing in the record to suggest that the plaintiff would tailor her testimony as a result of viewing the videotape prior to her deposition.

In Muzaffarr v. Ross Dress for Less, Inc., 941 F.Supp.2d 1373, (S.D.Fla. Apr. 25, 2013), the court sided with the analysis in Schulte in requiring production of the video prior to the plaintiffs deposition. It catalogued a considerable number of Florida circuit court cases which rejected delaying the production of security surveillance until after the plaintiffs deposition. It appears that in Florida the vast weight of authority rejects the withholding of security video until after the plaintiffs deposition is taken, unless specific factual circumstances in a particular case provide for a contrary result.

The video reflects the actual occurrence of the accident. Viewing the video prior to the plaintiffs deposition may not only promote truth-seeking but foster settlement in cases of disputed liability. On the other hand, to withhold the video, as with withholding of any other witness statement or photographs, would only result in the type of surprise and trickery that the rules of civil procedure were designed to eliminate. See Surf Drugs, 236 So.2d at 111.

In this case, even though presented with Target, the trial court did not follow it but ruled as it had in prior cases to allow the deposition to precede the delivery of the security video. The trial court did not exercise its discretion with respect to the facts and circumstances of this case. No evidence in the record supports the contention that McClure would present fraudulent testimony were she allowed to view the security video prior to her deposition. Thus, the trial court did not properly exercise its discretion in this case and departed from the essential requirements of law. I would grant the petition for certiorari.

      . The Supreme Court appears to have been paraphrasing stanza 71 of the Rubaiyat of Omar Khayyam, written in the 12th century and translated by Edward FitzGerald in 1859. The Norton Anthology of English Literature 1509, 1516 (3rd Ed. 1974).

        . This issue does not involve the claim of a privilege as to work product. The store security tape in this case is not work product. Work product involves materials prepared in anticipation of litigation. Fla. R. Civ. P. 1.280(b)(4); Publix Supermarkets, Inc. v. Johnson, 959 So.2d 1274, 1274 (Fla. 4th DCA 2007). Publix did not argue that the store security video was work product, nor did they file a privilege log to assert any work product privilege. Fla. R. Civ. P. 1.280(b)(6).

      . "The Plaintiff cites a string of Florida Circuit court rulings compelling the production of surveillance video in advance of a Plaintiff's deposition. Mimms-Baker v. Publix Supermarkets, Inc., No. 2011-CA-4826-11-W (Fla. 18th Cir. Sept. 20, 2012) (Because video is not work product, no reason to withhold production until after the deposition of Plaintiff if when a proper request to produce was made); Keene v. Winn Dixie Stores, Inc., No. 16-2011-CA-1673 (Fla. 4th Cir. May 13, 2011) (Video footage of accident is not protected by any privilege and is discoverable prior to the Plaintiff's deposition). The court acknowledged the potential for a litigant to tailor their deposition testimony so that it is more consistent with the evidence gathered through discovery, but found that the interests of justice are better served by early disclosure of relevant evidence. Taking the Plaintiff's deposition before or after disclosure will not change the content of the videotape, which will either demonstrate that a Plaintiff's claim is fraudulent or will not. The court also distinguished between in-store video surveillance and post-suit surveillance of a Plaintiff); Clarke v. Winn Dixie Stores, Inc., 11-41678-CA-20 (Fla. 11th Cir. June 20, 2012); Howard v. Publix Supermarkets, Inc., 10-027941-09 (Fla. 17th Cir. Oct. 25, 2010); Rex v. Publix Supermarkets, Inc., 56-2010-CA-000161 (Fla. 19th Cir. February 4, 2011); Smith v. Publix Supermarkets, 31-2010-CA-075421 (Fla. 19th Cir. April 29, 2011); Hendricks v. Winn Dixie Stores, Inc., 2012-CA-002447 (Fla. 4th Cir. July 9, 2012) (granting Plaintiff's motion to compel, but without prejudice, and pending further discovery so that Defendant could move for reconsideration at a later date if it could show that disclosure of the video would lead Plaintiff to improperly tailor or fabricate her testimony); Tucker v. Winn Dixie Stores, 12-006369-05 (Fla. 17th Cir. June 28, 2012); Murray v. Publix Supermarkets, 12-02143-05 (Fla. 17th Cir. June 18, 2012); Falkowitz v. Publix Supermarkets, Inc., 11-800637-25 (Fla. 17th Cir. April 10, 2012); Hetherington v. Publix Supermarkets, Inc., 09-019796-CI-021 (Fla. 6th Cir. July 20, 2010); Hudnall v. Food Lion, LLC, 11-CA-10328 (Fla. 4th Cir. Mar. 30, 2012); Puentes v. Denny’s, 2011-31613-CA-01(32) (Fla. 11th Cir. Jan. 19, 2012); George v. Publix Supermarkets, Inc., 16-2010-CA-8910 (Fla. 4th Cir. Oct. 11, 2010) (distinguishing between surveillance video which captures an incident at the time it occurs from a surveillance video capturing a Plaintiff when he or she is actively pursuing a claim for monetary damages resulting from an incident that has already taken place); Williams v. Publix Supermarkets, Inc., 2010-CA027757 (Fla. 15th Cir. Jan. 25, 2011). In the case of Karabachi v. Winn Dixie Stores, Inc., 2010 CA 015902 AF (Fla. 15th Cir. Dec. 12, 2012), the court reversed an order permitting the Defendant to take the Plaintiff's direct testimony in deposition prior to producing the video surveillance after it was disclosed that the Defendant’s employees had viewed the video before testifying.” Muzaffarr, 2013 WL 1776656 at *1.


text:
    INTERNATIONAL HOUSE OF PANCAKES (IHOP), et al. and Ronald Neilly, Petitioners, v. N. ROBINSON and M. Robinson, her husband, and A. Robinson, their minor daughter, by and through her parents and best friends, Respondents.
    No. 4D13-1697.
    District Court of Appeal of Florida, Fourth District.
    Nov. 6, 2013.

      Carol M. Rooney of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for petitioners.
    Freeman A. Mark of Mei & Mark LLP, Boca Raton, for respondents.
   PER CURIAM.

Petitioners, International House of Pancakes (“IHOP”) and Ronald Neilly, bring this petition for writ of certiorari seeking interlocutory review of two separate orders of the trial court. We determine that we lack jurisdiction to review the first of the orders and that it was improper for petitioners to seek review of these two distinct and wholly unrelated orders in this single proceeding. The second order is subject to certiorari review, and we grant the relief requested and quash the order compelling discovery of protected work product.

Respondents brought this action against petitioners based on, among other theories, negligence. According to the amended- complaint filed below, respondent M. Robinson found a severed fingertip in a salad served at an IHOP restaurant. The fingertip was identified as having belonged to Neilly, a prep cook at this IHOP. As a consequence of Neilly’s failure to respond to the respondents’ amended complaint and discovery demands, the court granted respondents’ motion for sanctions against Neilly and entered a default against him. The trial court later denied petitioners’ joint request to set aside the default. Petitioners seek certiorari relief from this order.

In a separate and unrelated order, the trial court ordered ÍHOP to produce a statement taken from Neilly by an investigator for IHOP’s insurer a few weeks after the incident from which this lawsuit arose. Petitioners objected based on Florida Rule of Civil Procedure 1.280(b)(4), contending that the statement was taken “in anticipation of litigation” and, therefore, was privileged from disclosure as work product. Respondents argue that the statement was taken in the “normal course of business,” not “in anticipation of litigation.” Respondents also contend that they demonstrated “need” for the statement under Rule 1.280(b)(4) due to Neilly allegedly making multiple prior inconsistent statements as to the “central issue” of the litigation, the extent of injury to his finger. Petitioners seek certiorari relief from the trial court’s order requiring disclosure of the statement.

“To be entitled to [issuance of] a writ of certiorari, a party must demonstrate both irreparable harm, further defined as a material injury that cannot be remedied on [direct appeal], and a departure from the essential requirements of law.” Allstate Ins. Co. v. Total Rehab. & Med. Ctrs., Inc., 128 So.3d 1162 (Fla. 4th DCA Mar. 13, 2013) (citing Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So.3d 712, 721 (Fla.2012)). Trial court orders compelling discovery of materials potentially protected as work product are subject to certiorari review under this standard, as the harm of disclosure cannot be remedied on plenary appeal. Id. (citing 1620 Health Partners, L.C. v. Fluitt, 830 So.2d 935, 937 (Fla. 4th DCA 2002)). Thus, the order requiring discovery of alleged work product material is properly before this court.

However, the order denying the motion to vacate the simple default— where no final judgment has been entered — is not appealable, nor subject to certiorari review. Lehner v. Durso, 816 So.2d 1171, 1173 (Fla. 4th DCA 2002) (citing Bruno v. A.E. Handy & Assocs., Inc., 787 So.2d 251, 252 (Fla. 5th DCA 2001)); BMW Fin. Servs. NA, LLC v. Alger, 834 So.2d 408, 409 (Fla. 5th DCA 2003); Dawkins, Inc. v. Huff, 836 So.2d 1062, 1065 (Fla. 5th DCA 2003); Fascetti v. Fascetti, 795 So.2d 1094, 1095 (Fla. 4th DCA 2001); see also Shell v. Foulkes, 19 So.3d 438, 440 (Fla. 4th DCA 2009) (“Courts do not have any general jurisdiction under the appellate rules to review non-final orders-such as the entry of a default without a final judgment.”); United Auto. Ins. Co. v. Buchalter, 14 So.3d 1100, 1101 (Fla. 4th DCA 2009) (“[Tjhere is no authority for a non-final appeal from an order striking a defendant’s pleadings and entering a default. ...”).

Further, it was improper for petitioner to seek review of two distinct and separate non-final orders in this single cer-tiorari petition. Had a separate petition been filed as to this first order, we would dismiss. In future cases, this court may very well strike a petition that improperly seeks review of distinct and unrelated orders.

We turn now to the question of whether Neill/s statement was subject to disclosure under Florida Rule of Civil Procedure 1.280(b)(4). Protected work product prepared in anticipation of litigation may include information “compiled in response to some event which foreseeably could be made the basis of a [legal] claim.” Anchor Nat’l Fin. Servs., Inc. v. Smeltz, 546 So.2d 760, 761 (Fla. 2d DCA 1989). In Neighborhood Health Partnership, Inc. v. Peter F. Merkle, M.D., P.A., 8 So.3d 1180, 1183 (Fla. 4th DCA 2009), we relied on the test found in Hickman v. Taylor, 329 U.S. 495, 504, 67 S.Ct. 385, 91 L.Ed. 451 (1947), which extended the work product protection to “[information that] arose after the claim had already accrued,” even if the material was prepared “before suit was filed.” Merkle, 8 So.3d at 1183 (emphasis in original).

Merkle explained this result as follows: When a claim has already accrued, it may be objectively reasonable to anticipate litigation even though suit has not yet been filed. In that circumstance, a party could reasonably claim materials were prepared “in anticipation of litigation” ... in connection with an occurrence or circumstance reasonably indicating prospective litigation over a specific matter.

Id. at 1184 (emphasis supplied).

In this case, the amended complaint alleges negligence, which accrues “at the time the injury is first inflicted.” Ra phael v. Shecter, 18 So.3d 1152, 1157 (Fla. 4th DCA 2009) (quoting Dep’t of Transp. v. Soldovere, 519 So.2d 616, 617 (Fla.1988)), appeal dismissed and rev. denied, 75 So.3d 1246 (Fla.2011). Here, the “injury was inflicted” on November 23, 2008, when M. Robinson allegedly consumed a salad at IHOP containing some portion of Neilly’s severed fingertip. The statement that Neilly gave IHOP’s insurer on January 2, 2009 was “in anticipation of litigation” that was “reasonably foreseeable.” Fla. R. Civ. P. 1.280(b)(4); Publix Super Mkts., Inc. v. Anderson, 92 So.3d 922, 923 (Fla. 4th DCA 2012).

Experience has shown ... that people [injured on a business premises] try to be compensated for their injuries[;][e]x-perience has also shown ... that bogus or frivolous or exaggerated claims might be made.... Our system ... mandates that each side should be able to ... investigate] without fear of having to disclose it all to its opponents.

Id. (quoting Winn-Dixie Stores, Inc. v. Nakutis, 435 So.2d 307, 308 (Fla. 5th DCA 1983)).

The applicability of the work product exception is not changed by petitioners’ failure to file a privilege log at the time of the hearing below. DLJ Mortg. Capital, Inc. v. Fox, 112 So.3d 644, 646 (Fla. 4th DCA 2013) (finding that failure to file a privilege log is not fatal to an otherwise viable work product claim where the trial court had not yet ruled on other grounds for nondisclosure at the time of the hearing). Furthermore, with respect to respondents’ claim that Neilly made multiple prior inconsistent statements about the extent of his finger injury, this would not justify invading the work product protection. Reviewing courts have uniformly rejected the notion that a party is entitled to the other’s work product merely because of the possibility of generating multiple contradictory' statements for use as impeachment at a subsequent trial. See, e.g., Nat’l Car Rental Sys., Inc. v. Kosakowski, 659 So.2d 455, 456-57 (Fla. 4th DCA 1995); Winn-Dixie Stores, Inc. v. Gonyea, 455 So.2d 1342, 1344 (Fla. 2d DCA 1984).

Accordingly, we grant the petition and quash the trial court’s order directing disclosure of protected work product.

Granted in part.

GROSS, TAYLOR and FORST, JJ., concur.


author: MAY, J.

text:
    Marc RIPPS, Sherry Lieberman and Arthur Lieberman, Petitioners, v. CITY OF COCONUT CREEK, by and through its City Commission, a Florida Municipality, and Seminole Tribe of Florida, Seminole Properties II, Inc. and S.T.O.F. Holdings, Ltd., Respondents.
    No. 4D12-3223.
    District Court of Appeal of Florida, Fourth District.
    Nov. 6, 2013.

      Gary C. Rosen, Alan B. Koslow and Daniel L. Wallach of Becker & Poliakoff, P.A., Fort Lauderdale, for petitioner.
    John H. Pelzer and Glen N. Smith of Greenspoon Marder, P.A., Fort Lauder-dale, for respondent City of Coconut Creek.
    Andrew J. Baumann, Tara W. Duhy and Kenneth G. Spillias of Lewis, Longman & Walker, P.A., West Palm Beach, for respondents Seminole Tribe of Florida, Seminole Properties II, Inc. and S.T.O.F. Holdings, Ltd.
   MAY, J.

Issues of standing, land use planning and zoning, statutes, ordinances, a casino, and three residents are the ingredients of this petition for second tier certiorari from an appellate decision of the circuit court. The circuit court denied the residents’ challenges to the City’s zoning ordinances relating to the construction of a hotel and parking garages servicing the Seminole Casino Coconut Creek. The residents argue that the circuit court applied the incorrect law in denying their challenges to various zoning and planning ordinances enacted by the City of Coconut Creek. The City and the Seminole Tribe [Tribe] respond that the residents lack standing. We chose the simplest legal recipe and hold that the recent statutory change in section 380.06, Florida Statutes (2012), eliminates the possibility of a miscarriage of justice under the facts of this case. We therefore deny the petition.

Through its ordinances, the City approved the Tribe’s application to rezone 45 acres within a development to permit a 1,000 room hotel, two parking garages with more than 4,000 parking spaces, and a site plan for a seven-story parking garage with more than 2,800 spaces. Three City residents opposed the expansion. They maintain the City could not approve substantial changes within the development without complying with the mandatory requirements of section 380.06(19), Florida Statutes (2010), the development of regional impact [DRI] statute.

The City and Tribe respond by asserting: (1) the residents do not have standing; and (2) section 880.06 does not apply to the subject ordinances, which concerned local rezoning and site plan approvals. The Tribe points out that, even if the circuit court applied the wrong law, there is no miscarriage of justice because section 880.06 has since been amended. We agree with the last , argument and find it determinative.

Section 380.06(19)(a), Florida Statutes (2010), provides in part:

Any proposed change to a previously approved development which creates a reasonable likelihood of additional regional impact, or any type of regional impact created by the change not previously reviewed by the regional planning agency, shall constitute a substantial deviation and shall cause the proposed change to be subject to further development-of-regional-impact review.

The balance of section 380.06(19) provides examples of proposed changes to a DRI that necessarily constitute a “substantial deviation” requiring further DRI impact review.

The City originally approved the Commerce Center of Coconut Creek Development of Regional Impact in 1987 by adopting Ordinance No. 116-87, the formal development order for the DRI. By its express terms, the ordinance was adopted pursuant to section 380.06. The development order has been amended a number of times since then. . The Tribe owns 45 of the 101 acres within the DRI, which is near the Tribe’s Coconut Creek casino. The casino is not part of the DRI, but is on land held by the federal government in trust for the Tribe.

A 2001 DRI amendment deleted prior restrictions to the particular usage and square footage and allowed development of any mix of commercial, office, and industrial use as long as the cumulative development did not generate more than 2,107 peak hour trips. A 2007 amendment to the DRI development order added “hotel,” and removed “industrial,” as a permitted use. The Tribe’s Notice of Proposed Change to the development order did not include, a specific number of hotel rooms but estimated the total number of peak hour trips as 2,107 (the maximum permitted) based on an “assumed development level” of 1,000 hotel rooms.

In prior proceedings, two City residents, who are not the petitioners here, petitioned the circuit court for a writ of certio-rari challenging the 2007 amendment to the development order and filed a complaint for declaratory and injunctive relief. The circuit court denied the petition. The City, Tribe, and circuit court interpreted the 2001 amendment to mean that proposed changes to development within the DRI were permitted as long as the 2,107 peak hour trip threshold was not exceeded regardless of any other criteria in section 380.06(19).

On second tier review, the Tribe argued that a substantial deviation had not occurred because the number of hotel rooms would be decided later at the rezoning stage! The Tribe asserted that residents could challenge the size, height, or number of rooms at that time. We denied the petition agreeing that expanding the permitted use to include “hotel” was not a substantial deviation under the DRI statute. We agreed with the Tribe that DRI review was not required because the number of hotel rooms had not been decided at that time. Our unreported order provided that denial was “without prejudice to the petitioners’ rights under the statute at such time as the developer seeks additional approvals in connection with the number of hotel rooms and any impact on traffic.” Turcotte v. City of Coconut Creek, No. 4D07-4459 (Fla. 4th DCA August 26, 2008).

The circuit court then entered a summary judgment against the residents. On appeal, we held that our denial of the prior certiorari petition barred the subsequent appeal of the summary judgment because the eases involved the same issues. Turcotte v. City of Coconut Creek, 88 So.3d 296 (Fla. 4th DCA 2012).

In 2010, the Tribe filed an application to rezone approximately 45 acres - to a planned MainStreet Development District to allow “a multi-phase Resort Hotel and Entertainment facility” including a 275 foot tall, 1,000 room hotel and seven-story transportation center with 4,800 parking spaces. The application acknowledged the proposed project was within the Commerce Center DRI and the City’s Main-Street Project Area and was within the DRI peak trip threshold of 2,107. It did not mention any of the statutory thresholds in section 380.06(19)(b)l.-14. The current City residents contend that this was the first time the Tribe ever sought approval of 1,000 hotel rooms within the DRI.

At a public hearing, the Tribe’s attorney argued the Tribe had vested rights through the DRI that gave it 2,107 peak hour trips and the proposed project would not exceed that amount. The Tribe’s land-planning expert indicated the proposed rezoning was within the DRI threshold. Neither referred to section 380.06(19)(b). The Planning and Zoning Board unanimously recommended approval of the rezoning application and site plan.

The residents’ counsel appeared at the hearing and argued the proposed 1,000 room hotel constituted a “substantial deviation” from the previously approved DRI development order because it increased the number of hotel rooms beyond the 83-room threshold in section 380.06(19)(b)(9), Fla. Stat. (2010). The residents’ counsel argued the project had to undergo further development of regional impact review at the state, local, and regional level because the proposed multi-story parking garage constituted a substantial deviation under section 380.06(19)(b)l., Fla. Stat. (2010).

The City’s attorney told the City Commission: “We have already litigated this DRI stuff, and it’s been decided by the Court so I don’t think we need to discuss that anymore.” The City Commission conducted the first reading of the proposed Planned MainStreet Development District rezoning and the site plan for the parking garage. It approved the rezoning ordinances by a 5-0 vote. The second reading occurred two weeks later, and the City Commission again approved the ordinances by a 5-0 vote.

The three residents sought certiorari review of the ordinances in the circuit court. They argued: (1) the City failed to consider whether the proposed changes constituted a substantial deviation from the previously approved DRI order; (2) the proposed 275-foot tall, hotel more than doubled the height restrictions in the City’s MainStreet Design Standards; (3) the proposed hotel and seven-story transportation center were incompatible with the surrounding neighborhood and violated the City’s zoning code; and (4) the approved rezoning constituted an impermissible “special privilege” to the Tribe in violation of the City’s rezoning criteria.

The circuit court reviewed the petition and issued an order to show cause. In their response, the City and Tribe raised three main arguments. They first argued that the numeric thresholds in the DRI statute, section 380.06(19), did not apply because the rezoning application and site plan did not seek to amend the existing DRI development order. Second, they claimed that substantial deviation analysis had already been performed by the City when the DRI was amended in 2001 and 2007. And third, they argued that the peak hour trip threshold of 2,107 controlled.

The circuit court, sitting in its appellate capacity, found the City did not depart from the essential requirements of law because the DRI statute only applied to requests to amend a DRI development order, and not to rezoning or site plans within the DRI. It accepted the City’s argument that rezoning within the DRI only needed to stay within the 2,107 peak hour trip threshold and was not controlled by the substantial deviation thresholds in the DRI statute. The circuit court found competent substantial evidence to support the City’s determination that its Code and MainStreet Design Standards were met.

The residents now ask us for second tier certiorari review which is discretionary. We have limited review on a second tier certiorari petition. We are permitted to determine whether the circuit court failed to provide procedural due process or applied the incorrect law, thereby resulting in a miscarriage of justice. Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003); State v. Belvin, 986 So.2d 516, 525 (Fla.2008). We have been cautioned against liberally granting second-tier review. Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla.2010).

The residents continue to argue that the City failed to take the DRI statute’s substantial deviation criteria into account in approving the site plan and zoning of the hotel and parking spaces. The City and Tribe respond that the residents do not have standing under Renard v. Dade Cnty., 261 So.2d 832 (Fla.1972). The circuit court found that the residents had standing. We do not address standing because we find that recent legislative amendments to the DRI statute eliminate any potential miscarriage of justice that would merit extraordinary relief.

In Chapter 2011-139, § 54 at 158, Laws of Florida, the legislature removed any substantial deviation DRI criteria relating to the number of hotel rooms or percentage of parking spaces. In fact, Chapter 11-139, § 55 at 170, Laws of Florida, elim-mated hotel and motel development from DRI review altogether. The statewide guidelines and standards previously subjected proposed hotel or motel development that exceeded a certain number of units to DRI review. See § 380.0651(3)(f), Fla. Stat. (2010). The 2011 amendments to the DRI statute did away with these proscriptions. In addition, another recent amendment to the DRI statute provides that “[cjhanges that do not increase the number of external peak hour trips and do not reduce open space and conserved areas within the project except as otherwise permitted by sub-subparagraph j” do not constitute a substantial deviation. § 380.06(19)(e)2.k., Fla. Stat. (2012).

Even if there was error in the circuit court’s ruling, the Tribe’s proposed development of a hotel is not subject to DRI review under current law. The Tribe could therefore withdraw and resubmit its rezoning application without triggering a “substantial deviation” relating to the number of hotel rooms and parking spaces. There is no miscarriage of justice that warrants an extraordinary writ of certiora-ri in these circumstances.

In addition, we conclude that the residents’ claims regarding the City’s Main-Street Design Standards is beyond the scope of this court’s review. We therefore deny the petition.’

WARNER and CIKLIN, JJ., concur.

      . Section 380.06(1), Florida Statutes (2010), defines a DRI as “any development which, because of its character, magnitude, or location, would have a substantial effect upon the health, safety, or welfare of citizens of more than one county." The statute provides for adoption of statewide guidelines to determine whether particular developments must undergo development-of-regional-impact review. § 380.06(2), Fla. Stat. (2010).

      . The amended statute now exempts hotels and ■ motels -from DRI review. § 380.06(19)(e)2.k., Fla. Stat. (2012).

      . This subparagraph provides that an increase in the number of hotel rooms by 10 percent or 83 rooms, whichever is greater, constitutes a substantial deviation.

      . This subparagraph provides in part that increasing the number of parking spaces at an attraction or recreational facility by ten percent or 330 spaces, whichever is greater, constitutes a substantial deviation. A hotel, however, is treated separately from “attractions and recreation facilities” under the DRI statute. Compare § 380.065 l(3)(b), Fla. Stat. (2010) ("Attractions and recreation facilities”), with § 380.0651(3)(f), Fla. Stat. (2010) ("Hotel and motel development”), and § 380.06( 19)(b) 1, Fla. Stat. (2010), with § 380.06(19)(b)9„ Fla. Stat. (2010). This sub-paragraph does not apply.

      .The residents maintain the City and Tribe misrepresented the effect of the 2007 DRI amendment causing us to deny the previous petition. The City and Tribe respond that the 2007 amendment approved a 1,000 room hotel. At a City Commission meeting in January, 2011, the mayor stated the 2007 amendment approved a hotel with 1,000 rooms. The mayor then received confirmation from the City’s Director for the Department of Sustainable Development that his statement was correct and that up to 1,000 rooms were also reviewed and accepted by the Florida Department of Transportation and the Department of Community Affairs.