author: VAN NORTWICK. MARSTILLER, J.,

text:
    Dr. Raymond FAILER, Petitioner, v. STATE of Florida, DEPARTMENT OF HEALTH, Respondent.
    No. 1D13-5603.
    District Court of Appeal of Florida, First District.
    April 22, 2014.
    Rehearing Denied June 4, 2014.

      Stephen Marc Slepin, Tallahassee, for Petitioner.
    Therese A. Savona, Chief Appellate Counsel, Florida Department of Health, Tallahassee, for Respondent.
   VAN NORTWICK.

Pursuant to section 120.68, Florida Statutes (2013), Dr. Raymond Failer, D.O., petitions for judicial review of the emergency suspension order (ESO) entered by the Department of Health (the Department), suspending Dr. Failer’s license to practice osteopathic medicine. Petitioner argues that the Department has failed to rule on his request for a formal hearing. For the reasons explained herein, we grant the petition, order the Department to rule on the petitioner’s request for a formal hearing, continue the stay now in effect, and remand for further proceedings.

The ESO alleged that Dr. Failer practiced osteopathic medicine in a pain management clinic in Florida; that he treated multiple patients with very high doses of controlled substance medications with insufficient medical justification; that the Department retained an independent medical expert who reviewed the records for several of Dr. Failer’s patients; and that the expert determined Dr. Failer did not meet the relevant standards of care for the prescription of controlled substances. According to the ESO, the Department conducted a routine inspection of the facility, which included an inspection of patient records. The ESO contained particular findings regarding Dr. Failer’s care and treatment of five patients identified as VR, NJ, CJ, JS, and SY. The ESO noted the varieties of scheduled medications that Dr. Failer prescribed, as well as Dr. Failer’s failure to adequately monitor his patients’ use of the medications in accordance with accepted standards.

As alleged in the ESO, among the medications Dr. Failer prescribed were roxico-done/oxycodone (Schedule II), oxycontin (a delayed release form of oxycodone), dia-zepam/valium (Schedule IV), and endo-cet/percocet (Schedule II). Specifically, the records for NJ and CJ, who are brothers, reveal that, while under Dr. Failer’s care, NJ tested positive for elevated levels of amphetamine and CJ tested positive for cocaine, amphetamine, and ecstasy. In the ESO, the Department asserts that Dr. Failer never reduced the scheduled medications he was prescribing them, never checked with the Prescription Drug Monitoring Program to determine if they were potentially diverting their medications, and never referred NJ or CJ to substance abuse services.

The ESO included the Department’s expert’s opinion that the types and amounts of medications prescribed, combined with a lack of inquiry into the patients’ medical histories or what medications they could have been taking as prescribed by their other physicians, placed each patient at an elevated risk of overdose. Additionally, the ESO alleges that SYs records stated that Dr. Failer noted SY was exhibiting withdrawal symptoms and should be prescribed suboxone instead of oxycodone. The records indicate, however, that Dr. Failer continued to prescribe oxycodone for SY.

The ESO further alleged that there was no record of Dr. Failer performing a physical examination on these patients upon their initial visits or at any of their follow up visits. The ESO found that Dr. Failer never prescribed alternative treatments, such as physical therapy, for the patients’ conditions, choosing instead to rely solely on high doses of opioids.

Based on the individualized findings of fact as to each patient, the ESO found that Dr. Failer’s failure to perform basic functions required of all physicians evidences a pattern and propensity to practice below the minimum acceptable standard of care, which puts all of his current and future patients at risk of harm; consequently, restricting his ability to prescribe scheduled controlled substances would not adequately protect the public health, safety, or welfare. The ESO concluded that the facts demonstrated Dr. Failer’s conduct violated various portions of sections 459.015(1)(t), (x), (pp), Florida Statutes (2013), and Rule 64B15-14.005, Florida Administrative Code. Under section 120.60(6), Florida Statutes (2018), Dr. Fail-er’s license was immediately suspended and a proceeding seeking formal discipline against Dr. Failer’s license was pledged to be promptly instituted.

On November 27, 2013, the Department filed an administrative complaint against Dr. Failer, based on the asserted violations originally submitted in the ESO. On December 11, 2013, Dr. Failer disputed the allegations of fact contained in the administrative complaint and petitioned for a formal hearing before an administrative law judge pursuant to sections 120.569(2)(a) and 120.57(1).

Dr. Failer filed the instant petition for review, and contemporaneously filed a motion for stay of the ESO, subject to the suspension of his ability to prescribe controlled substances pending a formal hearing and final order. The Department filed a response to the motion for stay, arguing that the danger posed by Dr. Failer’s continued practice went beyond the over-prescription of scheduled controlled substances because Dr. Failer violated the standard of care in several important respects that had nothing to do with the prescription of medications. A separate panel of this court granted the motion for stay pending further action of the court or final disposition of Dr. Failer’s petition, subject to the Department’s reasonable restrictions on Dr. Failer’s ability to prescribe controlled substances.

The Department may issue an emergency suspension of a party’s license if the agency determines such action is required due to an “immediate serious danger to the public health, safety, or welfare,” if, in taking emergency action, the Department employs a procedure that:

(a) ... provides at least the same procedural protection as is given by other statutes, the State Constitution, or the United States Constitution;
(b) The agency takes only that action necessary to protect the public interest under the emergency procedure; and
(c) The agency states in writing at the time of, or prior to, its action the specific facts and reasons for finding an immediate danger to the public health, safety, or welfare and its reasons for concluding that the procedure used is fair under the circumstances. The agency’s findings of immediate danger, necessity, and procedural fairness are judicially renewable. Summary suspension, restriction, or limitation may be ordered, but a suspension or revocation proceeding pursuant to ss. 120.569 and 120.57 shall also be promptly instituted and acted upon.

§ 120.60(6), Fla. Stat. (2013). Additionally, the factual allegations in an emergency suspension order must demonstrate that “(1) the complained of conduct is likely to continue; (2) the order is necessary to stop the emergency; and (3) the order is sufficiently narrowly tailored to be fair.” Nath v. State Dept. of Health, 100 So.3d 1273, 1276 (Fla. 1st DCA 2012) (quoting Kaplan v. Dep’t. of Health, 45 So.3d 19, 21 (Fla. 1st DCA 2010)). Furthermore, “[w]hen evaluating the sufficiency of an ESO, an appellate court is limited to examining the face of the order itself to determine if the elements were alleged with sufficient detail.” Id.

When the agency action for which a party petitions the court for judicial review involves the suspension of a license, “su-persedeas shall be granted as a matter of right upon such conditions as are reasonable, unless the court, upon petition of the agency, determines that a supersedeas would constitute a probable danger to the health, safety, or welfare of the state.” § 120.68(3), Fla. Stat. (2013). Section 120.57(1) controls proceedings involving a disputed issue of material fact, unless all parties waive application of section 120.57(1). § 120.569(1), Fla. Stat. (2013).

If an agency receives a request for hearing, it must grant or deny the request within 15 days of receiving the request. § 120.569(2)(a), Fla. Stat. (2013); see also Simmons v. State, Agency for Health Care Admin., 950 So.2d 431, 432 (Fla. 1st DCA 2007) (“An agency is not entitled to ignore a properly filed request for hearing, and if it determines that the petitioner is not entitled to a hearing, it is obligated to issue an order to that effect.”); Salam v. Bd. of Prof'l Eng’rs, 946 So.2d 48, 49 (Fla. 1st DCA 2006) (granting petition for writ of mandamus and instructing agency to rule on Salam’s petition for formal hearing within 15 days). After reviewing an agency’s action, this court may order the agency to perform an action required by law or remand a matter for additional agency proceedings. § 120.68(6)(a)1., Fla. Stat. (2013).

In his petition for judicial review, Dr. Failer requests two forms of relief. First, he requests that this court order the Department to follow the pertinent statutory procedures so that he receives a hearing on the action taken against his medical license. Dr. Failer is clearly entitled to a section 120.569 or 120.57 hearing on the Department’s suspension of his license, pursuant to the plain language of section 120.60(6)(c). Moreover, the record reflects that Dr. Failer timely filed a request for a formal hearing in regards to the administrative complaint the Department filed against him. By statute and case law, the Department was required to either grant or deny Dr. Failer’s request within 15 days of receipt, which would have been December 26, 2013. See Fla. R. Jud. Admin. 2.514(a)(1). The record does not indicate that the Department has taken any action on Dr. Failer’s request for formal hearing within the time in which it was obligated to act. The Department shall promptly rule on Dr. Failer’s request for a formal hearing.

Second, Dr. Failer requests this court to continue the stay of the ESO, subject to a reasonable restriction on his ability to prescribe controlled substance medications. While the Department offers particularized facts in support of its contention that Dr. Failer fell below the minimum standard of care in treating his patients in several respects, assuming the factual allegations contained in the ESO are true, the danger to the public from Dr. Failer’s continued practice is related to his right to prescribe scheduled medications.. For example, Dr. Failer’s neglect in obtaining prior medical records or coordinating with the patients’ other prescribers is dangerous because the drugs Dr. Failer prescribed may have negatively interacted with the patients’ other medications or treatments. Likewise, the patients’ heightened risk of overdose, Dr. Failer’s failure to properly monitor that the patients were taking the medications he prescribed as ordered and not diverting the medicine, his failure to prescribe other treatment modalities, and his treatment of vaguely diagnosed maladies with high-powered controlled substances are possible only so long as Dr. Failer has the ability to prescribe those types of medications.

Removing Dr. Failer’s authority to prescribe scheduled medications would remove the danger to the public health, safety, and welfare. Compare Nath, 100 So.3d at 1276 (quashing in part the Department’s emergency suspension order where order failed to sufficiently explain why restricting petitioner’s license would not adequately address the harm alleged); cf. Cocores v. State, Dep’t of Health, 111 So.3d 971, 972 (Fla. 1st DCA 2013) (denying petitioner’s motion for stay of order suspending his medical license on an emergency basis where he prescribed controlled substance medications to an undercover officer posing as a patient without performing a physical examination, drug screen, or reviewing prior medical records, and made several statements to the undercover officer evincing a disregard for the legal requirements attendant to prescribing such medications). While Dr. Failer may be deficient in other, non-medication related aspects of his practice, the Department has not explained why removing Dr. Fail-er’s right to prescribe the medications in question would not sufficiently protect current and potential patients from the primary harm posed by Dr. Failer pending the resolution of disciplinary proceedings. See Nath, 100 So.3d at 1276 (“Although we do not disagree that such behavior evinces defective judgment and disregard for the laws governing the practice of acupuncture, the Department does not explain why emergency license suspension is the only way to protect Nath’s current and potential patients pending the outcome of the disciplinary proceedings.”). In light of the presumption that supersedeas will be granted as of right in these circumstances, we continue the existing stay, subject to the Department placing reasonable restrictions on Dr. Failer’s ability to prescribe scheduled controlled substances pending a formal hearing and final order. See § 120.68(3).

Accordingly, we grant the relief requested, order the Department to rule on the request for a formal hearing within 15 days from the date of the issuance of the mandate in this proceeding, and continue the existing stay in effect.

WOLF, J., concurs, and MARSTILLER, J., concurs specially with opinion.

MARSTILLER, J.,

concurring specially.

I concur fully in the court’s decision; but I write to address what I consider to be the fundamental problem with Department’s delay in granting Dr. Failer’s request for an administrative hearing.

When an agency takes emergency action against a license, as the Department did here, “a suspension or revocation proceeding pursuant to ss. 120.569 and 120.57 shall also be promptly instituted and acted upon.” § 120.60(6)(c), Fla. Stat. (2012) (emphasis added). This, and the other requirements set forth in section 120.60(6), protect a licensee’s right to due process where he or she suffers deprivation of a property interest prior to having the opportunity to respond to the agency’s charges. “Absent these procedures, emergency action taken by an agency prior to providing an opportunity for the affected person(s) to be heard would run afoul of well-established constitutional guarantees of procedural due process.” Allied Educ. Corp. v. State, Dep’t of Educ., 573 So.2d 959, 961 (Fla. 1st DCA 1991).

Here, the Department issued the ESO against Dr. Failer’s medical license on November 13, 2013, and subsequently served him with an administrative complaint based on the allegations in the ESO on November 27, 2013. On December 11, 2013, Dr. Failer filed with the Department a petition for a formal (evidentiary) hearing before an administrative law judge so that he may challenge the complaint. More than ninety days later, the Department still has not given Dr. Failer his constitutionally-guaranteed hearing.

In Aurora Enterprises, Inc. v. State, Department of Business Regulation, 395 So.2d 604, 606-7 (Fla. 3d DCA 1981), the Third District quashed an ESO under similar factual circumstances.

The emergency under review was entered on January 29, 1981. The present petition [for review of the ESO] was heard on the merits before us on March 10, 1981. At that time we were informed by both sides that, although a formal revocation proceeding had been commenced [by the filing of an administrative complaint] within twenty days ... no hearing (let alone a disposition) has yet taken place or even been scheduled, although one had been immediately requested by the licensee. In no sense can it be said that a period of this length involving a fifty day minimum and an open-ended maximum between the emergency suspension and a hearing and determination of the merits involves either the prompt action the statute requires or the conclusion “without appreciable delay” the constitution demands.

Id. at 606 (citing Barry v. Barchi, 443 U.S. 55, 66, 99 S.Ct. 2642, 61 L.Ed.2d 365 (1979)) (footnotes omitted).

A post-ESO suspension or revocation proceeding must be promptly instituted and acted upon. Simply serving the administrative complaint simultaneously with or shortly after issuing the ESO is not, in my view, sufficient by itself to satisfy section 120.60(6), cf. Stock v. Dep’t of Banking & Fin., 584 So.2d 112, 114 (Fla. 5th DCA 1991), or constitutional due process requirements. Although I disagree with the Third District that the statutory directive mandates expedited administrative proceedings, see Aurora Enterprises, 395 So.2d at 607 n. 6, I submit that at the very least the agency must promptly respond to the licensee’s request for a hearing. A more-than-90-day delay in ruling on such a request is decidedly not prompt, especially in view of the 15-day requirement in section 120.569. Arguably, the Department’s inaction here runs afoul of section 120.60(6) and “well-established constitutional guarantees of procedural due process.” See Allied Educ. Corp.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    AL RUSHAID PETROLEUM INVESTMENT COMPANY, Appellant, v. WAYNE BLACK & ASSOCIATES, INC., Appellees.
    No. 3D13-822.
    District Court of Appeal of Florida, Third District.
    April 23, 2014.
    Rehearing Denied June 12, 2014.

      Christopher G. Lyons, P.A., and Christopher G. Lyons for appellant; Kramer Levin Naftalis & Frankel, LLP, and Jeremy A. Cohen, Pro Hac Vice.
    Hunter, Williams & Lynch, P.A., and Christopher J. Lynch, for appellees.
    Before ROTHENBERG, SALTER and LOGUE, JJ.
   PER CURIAM.

Affirmed. See Andrew H. Boros, P.A. v. Arnold P. Carter, M.D., P.A., 537 So.2d 1134, 1135 (Fla. 3d DCA 1989) (“Generally, an attorney serves as agent for his client; the attorney’s acts are the acts of the principal, the client.”).


author: PALMER, J.

text:
    STATE of Florida, Appellant, v. Eduardo FIGUEROA, Appellee.
    No. 5D13-2429.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2014.
    Rehearing Denied May 28, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Appellant.
    Sean M. Wagner, of Wagner & Wagner, P.A., Melbourne, for Appellee.
   PALMER, J.

The State of Florida appeals the final order entered by the trial court granting Eduardo Figueroa’s (defendant) motion to suppress admissions he made while being questioned by law enforcement in his home. Concluding that the defendant was not in custody at the time he made the admissions, we reverse.

The defendant was charged with multiple counts of sexual battery and lewd or lascivious molestation; the victims were his biological daughters. The defendant filed a pre-trial motion seeking suppression of admissions that he made while being questioned by law enforcement in his home.

At the suppression hearing, James Grayson, a child protective investigator with the Department of Children and Families, testified that, on the day in question, at approximately 6:45 in the morning, he was dispatched to meet Detective Coulter, of the Palm Bay Police Department, at the defendant’s home. He was asked to assist in the investigation of the defendant’s alleged crimes. Once they arrived at the defendant’s home, the defendant’s wife invited Grayson and Coulter to come inside and to sit at the dining room table. Grayson and Coulter then conducted interviews of the defendant’s wife and children, including the alleged victims. Grayson testified that “[t]he dining room had separate entryways to the kitchen and living room which did not have doors.”

After completing their interviews with the defendant’s wife and children, Grayson and Coulter asked the defendant’s wife if she would ask the defendant to come and speak with them. The defendant then voluntarily came out of his bedroom to meet them. As the interview with the defendant began, Officer Smith, a uniformed police officer, arrived at the home.

Smith testified that she stood in the doorway between the kitchen area and the dining room while Coulter and Grayson interviewed the defendant while seated at the dining room table. Smith also testified that, although a person wanting to leave the dining room area would have to walk past her, a person could freely leave the room without bumping into her. Smith testified that, during the interview, she stood a couple of feet away from the defendant.

Coulter testified next and he stated that he and Grayson went to the defendant’s home to conduct an investigation pursuant to allegations of abuse made by the defendant’s daughters. Coulter said that, after he finished questioning the family members, the defendant came out of his bedroom. Coulter asked the defendant if he and Grayson could talk to him, and the defendant directed them to sit at the dining room table. Coulter testified that the defendant could have left the dining room area at any time during his interview as his egress was not blocked and he was not in handcuffs or under arrest. Coulter did not tell the defendant that he was free to leave and he did not read the defendant his Miranda rights. During the interview, the defendant made incriminating statements.

The defendant’s wife’s testimony corroborated much of Coulter’s and Grayson’s testimony. When asked about the manner in which Coulter and Grayson requested her to get the defendant from the bedroom, the defendant’s wife responded that the request was not aggressive or worded as a command.

Upon review of the evidence, the trial court granted the defendant’s suppression motion, ruling:

The Defendant was confronted in his own home by [Detective Coulter], a plainclothes officer with a badge and a gun, and by [the investigator]. They were later joined by [Officer Smith], an armed and uniformed PBPD officer, who stood within a few feet of the Defendant during his interview. The detective had the specific intent to question the Defendant regarding the allegations made by [his daughter] against the Defendant. There was no testimony by any witness that the Defendant was ever advised that he was free to leave the area, and it is undisputed that the Defendant was not read his Miranda rights. The Court finds in those circumstances a reasonable person in the Defendant’s position would not reasonably expect to be able to leave the area, to stop questioning, or to decline to continue the questioning.
Defendant’s statements were not the result of coercion or threat. The law enforcement officers did not raise their voices or intimidate the Defendant. They did not offer promises upon which [the] Defendant could rely. They did not overcome his will by inappropriate appeals to his religion or sympathy.

The State contends that the trial court erred in granting the defendant’s suppression motion because the evidence does not establish that the defendant was in custody while being questioned inside his home. We agree.

“Because the trial court’s custody determination is a mixed question of law and fact, [appellate courts] defer to its findings of historical facts, as long as they are supported by substantial, competent evidence,” but review de novo the legal determination that the suspect was in custody. State v. Perez, 58 So.3d 309, 311 (Fla. 5th DCA 2011); see also Connor v. State, 803 So.2d 598 (Fla.2001); Snead v. State, 913 So.2d 724 (Fla. 5th DCA 2005); Duddles v. State, 845 So.2d 939 (Fla. 5th DCA 2003).

When addressing the issue of whether a suspect is in custody, courts must determine whether, under the totality of the circumstances, a reasonable person in the suspect’s position would feel a restraint of his or her freedom of movement in that one would not feel free to leave or terminate an encounter with the police. Duddles, 845 So.2d at 941. Four factors are considered in determining whether an interrogation is custodial: (1) the manner in which police summon the suspect for questioning; (2) the purpose, place, and manner of the interrogation; (3) the extent to which the suspect is confronted with evidence of his or her guilt; and (4)whether the suspect is informed that he or she is free to leave the place of questioning. Hewitt v. State, 920 So.2d 802, 804-05 (Fla. 5th DCA 2006) (citing to Ramirez v. State, 739 So.2d 568 (Fla.1999)). In making the evaluation, no single factor may “be considered in isolation”; rather, “[t]he whole context must be considered.” State v. Pitts, 936 So.2d 1111, 1124 (Fla. 2d DCA 2006).

Here, there are no issues regarding the manner in which the defendant was summoned for questioning. The trial court found that Coulter and Grayson did not coerce, threaten, raise their voices, or intimidate the defendant. Instead, the defendant willingly came out of his bedroom to speak with Coulter and Grayson and then motioned for Coulter and Grayson to sit at the dining room table with him.

The location of the interview — the defendant’s dining room — does not support the trial court’s conclusion that the defendant was in custody. An interview with a suspect in his own home is not ordinarily regarded as a custodial interrogation. See, e.g., Evans v. State, 911 So.2d 796 (Fla. 1st DCA 2005); Duddles, 845 So.2d at 941. “A suspect who is questioned in his own home is not likely to have a sense that he is being detained, as might be the case if the suspect had been stopped on a highway or taken to an interrogation room at the police station.” Evans, 911 So.2d at 800. The record reflects that the show of authority at the defendant’s home was not overwhelming, and it supports the trial court’s conclusion that law enforcement did not coerce or intimidate the defendant into complying with their request for an interview.

Next, although the defendant was confronted with the allegations of his sexual abuse, the defendant was not confronted with evidence so indicative of guilt that a suspect in the defendant’s position would feel that he was going to be arrested. Coulter only had the initial allegations against the defendant made by his daughters. Confronting a suspect with only some evidence of guilt does not turn a consensual encounter into a custodial interrogation. See Schoenwetter v. State, 931 So.2d 857, 867 (Fla.2006) (holding that confronting a suspect with some evidence of guilt does not necessarily mean that the defendant was in custody). We have held that “questioning [a defendant] about criminal conduct or activity alone” or confronting a defendant “with evidence strongly inferring [a defendant’s] guilt” does not establish that a custodial interrogation was conducted. See State v. Scott, 786 So.2d 606, 610-11 (Fla. 5th DCA 2001); see generally Florida v. Bostick, 501 U.S. 429, 437, 111 S.Ct. 2382, 115 L.Ed.2d 389 (1991) (holding that asking potentially incriminating questions does not convert a consensual encounter into a seizure); State v. Poole, 730 So.2d 340, 342 (Fla. 3d DCA 1999) (holding that “in the absence of any indicia of coercion or intimidating circumstances, police questioning about criminal conduct or activity alone, does not convert an otherwise consensual encounter into a unlawful seizure or detention”).

Lastly, although the trial court found that the defendant was not advised by law enforcement that he was free to leave, the absence of such advice does not transform a consensual encounter into a custodial interrogation. See Scott, 786 So.2d at 610 (“Although [the police] did not inform [the defendant] that she was free to leave, there was nothing to suggest that her freedom of movement was curtailed in any manner.... [Police] questioning about criminal conduct or activity alone, does not convert an otherwise consensual encounter into a custodial interrogation.”). The record reflects that the defendant was not placed in handcuffs, nor was he ordered to sit at the dining room table. Rather, the defendant invited Coulter and Grayson to sit at the dining room table with him.

Considering the totality of the circumstances, we conclude that the trial court erred in concluding that the defendant was in custody at the time of his interview. Accordingly, the trial court’s suppression order is reversed.

REVERSED and REMANDED.

ORFINGER and LAWSON, JJ„ concur.

      . Jurisdiction is proper pursuant to rule 9.030(b)(1)(A) of the Florida Rules of Appellate Procedure.

      . See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


text:
    Keith SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-2912.
    District Court of Appeal of Florida, Fifth District.
    April 25, 2014.
    Rehearing and Rehearing En Banc Denied June 6, 2014.
    David W. Collins, of Collins Law Firm, Monticello, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See McDonald v. State, 15 So.3d 695 (Fla. 5th DCA 2009) (holding defendant who entered an open plea to lewd or lascivious molestation was not entitled to be sentenced under most lenient version of section 800.04, Florida Statutes, in effect during multi-year period alleged in information where there was ample evidence that defendant molested child victim when amended version of section 800.04, classifying the offense as a first-degree felony, was in effect; where defendant was fully aware of nature and consequences of his plea; and where defendant understood he was pleading to a first-degree felony); Greene v. State, 714 So.2d 554, 557 (Fla. 2d DCA 1998) (“As to his second issue, Mr. Greene argues that the trial court lacked a valid reason to depart from the sentencing guidelines. In departing upward, the trial court [properly] relied upon the vulnerability of the victims due to age.”).

TORPY, C.J., SAWAYA and LAWSON, JJ., concur.


text:
    The STATE of Florida, Appellant, v. Jeff JEAN-GUILLES, Appellee.
    No. 3D13-1265.
    District Court of Appeal of Florida, Third District.
    April 30, 2014.
    Rehearing Denied May 29, 2014.
    Pamela Jo Bondi, Attorney General, and Nicholas A. Merlin, Assistant Attorney General, for appellant.
    Rasco Klock Perez Nieto, and Hilton Napoleon, II, and Joseph P. Klock, Jr., for appellee.
    Before SHEPHERD, C.J., and WELLS and LOGUE, JJ.
   PER CURIAM.

We affirm. See Cotto v. State, 89 So.3d 1025, 1029 (Fla. 3d DCA 2012) (holding that appellate courts defer to the circuit court’s factual findings that are supported by competent, substantial evidence in reviewing an ineffective assistance of counsel claim).


text:
    Anthony DURM, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2658.
    District Court of Appeal of Florida, Third District.
    April 30, 2014.
    Rehearing Denied June 18, 2014.
    .Anthony Durm, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, EMAS and SCALES, JJ.
   PER CURIAM.

Anthony Durm appeals the trial court’s order summarily denying his motion, filed pursuant to Florida Rule of Criminal Procedure 3.800(a), to correct an illegal sentence. Although Appellant’s motion is couched in part as an attack upon his sentence, in reality it seeks to vacate his conviction as barred by double jeopardy. A double jeopardy challenge to a conviction must be brought pursuant to rule 3.850, rather than rule 3.800(a). Lopez v. State, 2 So.3d 1057 (Fla. 3d DCA 2009); White v. State, 644 So.2d 174 (Fla. 3d DCA 1994); Plowman v. State, 586 So.2d 454 (Fla. 2d DCA 1991); Ferenc v. Sate, 563 So.2d 707 (Fla. 1st DCA 1990). While we therefore affirm the lower court’s order, which was right for the wrong reason, see Irving v. State, 627 So.2d 92 (Fla. 3d DCA 1993), we do so without prejudice to Durm filing a proper motion under rule 3.850.

Affirmed.

      . The court suspended entry of the sentence for the conviction, which is the subject of Durm’s motion.


text:
    Cynthia MORELLI, Appellant, v. CHASE HOME FINANCE, LLC, Appellee.
    No. 1D13-2435.
    District Court of Appeal of Florida, First District.
    April 30, 2014.
    Rehearing Denied June 10, 2014.
    Cynthia Morelli, pro se, Appellant.
    William David Newman, Jr. and Karene Lynn Tygenhof of Choice Legal Group, P.A., Fort Lauderdale, for Appellee.
   PER CURIAM.

We affirm the order denying appellant’s motion to disqualify the trial judge. Ap-pellee’s motion to relinquish jurisdiction is treated by this court as a confession of error. Upon consideration thereof, the final judgment of foreclosure is reversed, and this case is remanded for further proceedings. See Bennett v. Cont’l Chems., Inc., 492 So.2d 724 (Fla. 1st DCA 1986).

WOLF, CLARK, and SWANSON, JJ., concur.


author: EMAS, J.

text:
    Richard Anthony WALKER, Petitioner, v. The STATE of Florida, Respondent.
    No. 3D14-810.
    District Court of Appeal of Florida, Third District.
    May 7, 2014.

      Richard Anthony Walker, in proper person.
    Pamela Jo Bondi, Attorney General, for respondent.
    Before WELLS, EMAS and SCALES, JJ.
   EMAS, J.

Richard Anthony Walker has filed an original petition with this Court, entitled:

Petition to Revisit, Reconsider and Correct a Tragic Miscarriage of Justice; With a Non-Negotiable Agreement Between the Parties By Voluntary Understanding and Intentions With Supporting Affidavit of Truth Under Oath in Special Negative Averment to Dismiss or Vacate the Unconstitutionally Obtained Arrest, Multiple Scoring of Victim Injury Points and Multiple Sentences Resulted From the Same Conduct, and to Expunge the Record With Just Compensation

This is at least the fifteenth time Walker has sought relief unsuccessfully in this Court, stemming from his 1984 convictions and sentences. The petition is nineteen pages long, and the first six pages are largely boilerplate in nature. To the extent Walker articulates the errors which he asserts occurred below, these claims are alleged to have occurred at sentencing thirty years ago, have previously been raised on direct and collateral appeal, and have been decided on the merits adversely to Walker.

Ordinarily, we would dismiss without further discussion this non-meritorious petition. However, the remaining allegations contained within Walker’s petition warrant further action by this Court, as Walker’s self-styled demands are not merely frivolous, but constitute an abuse of the judicial process.

As the style of the petition indicates, Walker asserts he is entitled to more than simple relief from the sentences imposed. Indeed, Walker appears to unilaterally convert his petition into an independent civil action seeking affirmative relief from the State of Florida. In this portion of the petition, Walker refers to himself as “Plaintiff’ and to the State as “Defendant,” and places the Defendant “on notice” that Walker is “constitutionally mandated to receive $25,000 for every (28) minutes for his unconstitutional arrest and detention].” Walker then avers:

This “Non-Negotiable Agreement” shall go into effect upon Defendant’s silence or failure to respond or defend their cause within (30) days from the date this Petition and non-negotiable agreement with supporting affidavit of truth under oath in special negative averment.

In the event that the State remains uncertain of the exact terms of this “NonNegotiable Agreement,” Walker sets forth with specificity the exact “just compensation” which he claims must be paid to him by the State under the terms of this effectuated-by-silence Agreement:

1. $100 thousand dollars must be place[d] in Plaintiffs Fla. D.O.C. account before this agreement goes into effect.
2. $750 million dollars in (4) checks (1) check for $600 million, (1) check for $80 million and (1) check for $20 million, (and)
3. $300 million in Gold Bars, tax included.

Walker’s petition does not merely seek to litigate issues that are time-barred, sue-cessive or without merit. Instead, this petition is so patently frivolous and representative of a pattern of abuse by Walker that this Court is compelled to take action.

Although some might reject Walker’s petition out of hand with little more than a chuckle at his presumed irreverence, courts of review enjoy no such luxury. A reviewing court considers earnestly and thoughtfully every document submitted, and claim advanced, by a party, and often the meritorious nature (or the absence of merit) can be discerned only after a full and considered reading of the document, relevant portions of the record or appendices, and responses by the opposing party. Due consideration of even a frivolous petition requires an expenditure of time, resulting in delay for those parties in unrelated cases who in good faith seek this Court’s expeditious review of their claims. Walker’s meritless filings over the course of more than 25 years have caused this Court to expend precious and finite judicial resources which could otherwise be devoted to those other legitimate cases and claims. Hedrick v. State, 6 So.3d 688, 691 (Fla. 4th DCA 2009) (noting “[a] legitimate claim that may merit relief is more likely to be overlooked if buried within a forest of frivolous claims.”)

Walker has, by his conduct, exhibited a disregard for, and an abuse of, the judicial process, and we cannot simply accept it as the actions of an ill-advised or misguided pro se litigant. While we acknowledge that pro se parties must be afforded a genuine and adequate opportunity to exercise their constitutional right of access to the courts, that right is not unfettered. Although termination of the right to proceed pro se will undoubtedly impose a burden on a litigant who may be unable to afford counsel, the courts must strike a balance between the pro se litigant’s right to participate in the judicial process and the courts’ authority to protect the judicial process from abuse. The right to proceed pro se may be forfeited where it is determined, after proper notice and an opportunity to be heard, that the party has abused the judicial process by the continued filing of successive or merit-less collateral claims in a criminal proceeding. State v. Spencer, 751 So.2d 47 (Fla.1999). As our sister court aptly described it, there comes a point when “enough is enough.” Isley v. State, 652 So.2d 409, 410 (Fla. 5th DCA 1995).

The Petitioner, Richard Anthony Walker, is hereby directed to show cause, within thirty days from the date of this opinion, why he should not be prohibited from filing any further pro se appeals, pleadings, motions, or petitions relating to his convictions, judgments and sentences in circuit court case number 84-7644. Absent a showing of good cause, we intend to direct the Clerk of the Third District Court of Appeal to refuse to accept any such papers relating to this circuit court case number unless it has been reviewed and signed by an attorney who is a duly licensed member of The Florida Bar in good standing.

Additionally, and absent a showing of good cause, any such further and unauthorized pro se filings by this defendant will subject him to appropriate sanctions, including the issuance of written findings forwarded to the Florida Department of Corrections for its consideration of disciplinary action, including the forfeiture of gain time. See § 944.279(1), Fla. Stat. (2012).

Petition dismissed. Order to show cause issued.

      . See Walker v. State, 103 So.3d 169 (Fla. 3d DCA 2012) (raising same claims as the instant petition); Walker v. State, 65 So.3d 527 (Fla. 3d DCA 2011); Walker v. State, 23 So.3d 728 (Fla. 3d DCA 2009); Walker v. State, 15 So.3d 594 (Fla. 3d DCA 2009), Walker v. State, 998 So.2d 620 (Fla. 3d DCA 2008); Walker v. State, 995 So.2d 975 (Fla. 3d DCA 2008); Walker v. State, 980 So.2d 508 (Fla. 3d DCA 2008); Walker v. State, 871 So.2d 239 (Fla. 3d DCA 2004) (raising same claims); Walker v. State, 826 So.2d 311 (Fla. 3d DCA 2002); Walker v. State, 808 So.2d 224 (Fla. 3d DCA 2002); Walker v. State, 783 So.2d 267 (Fla. 3d DCA 2001) (raising same claims); Walker v. State, 703 So.2d 482 (Fla. 3d DCA 1997); Walker v. State, 687 So.2d 949 (Fla. 3d DCA 1997); Walker v. State, 498 So.2d 688 (Fla. 3d DCA 1986) (raising same claims).


text:
    Chaimas PRIDGEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-6429.
    District Court of Appeal of Florida, Second District.
    May 9, 2014.
    Howard L. Dimmig, II, Public Defender, and John C. Fisher, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Affirmed. See Murphy v. State, 898 So.2d 1031 (Fla. 5th DCA 2005).

KELLY, WALLACE, and CRENSHAW, JJ., Concur.


text:
    Geoffrey C.F. MAY, Appellant, v. James D. SALTER, as Former Trustee of the Jack C. May Trust, and Charles W. Littell, as Trustee of the Jack C. May Trust, Appellees.
    No. 1D12-5519.
    District Court of Appeal of Florida, First District.
    May 12, 2014.
    Rehearing Denied June 11, 2014.
    Steven M. Chamberlain, Ocala, for Appellant.
    Shannon M. Miller and Stan Cushman, Gainesville, and Jennifer Cates Lester of Dean Mead & Bovay, P.A., Gainesville, for Appellee.
   PER CURIAM.

This appeal challenges an order dismissing the complaint of a trust beneficiary who challenges, among other things, a former trustee’s Final Accounting of the trust. The trial court dismissed Mr. May’s complaint on res judicata grounds. For the following reasons, we affirm in part and reverse in part.

“To rule on a motion to dismiss, a court’s gaze is limited to the four corners of the complaint, including the attachments incorporated in it, and all well pleaded allegations are taken as true.” U.S. Project Mgmt., Inc. v. Parc Royale E. Dev., Inc., 861 So.2d 74, 76 (Fla. 4th DCA 2003). Typically affirmative defenses, like res ju-dicata in this case, cannot be properly considered on a motion to dismiss. See, e.g., Calder Race Course, Inc. v. Dep’t of Bus. & Prof'l Regulation, 838 So.2d 1241 (Fla. 1st DCA 2003) (reversing because “the affirmative defense of res judicata [was not] conclusively demonstrated within the four corners of the complaint”). There is an exception, however, when the face of the complaint and attachments demonstrate a defense’s unquestionable merit. See, e.g., Duncan v. Prudential Ins. Co., 690 So.2d 687, 688 (Fla. 1st DCA 1997).

In this case, the trial court dismissed the complaint, finding that Mr. May’s claims were “res judicata on the face of the complaint.” On appeal, this court granted ap-pellees’ motion to take judicial notice of prior cases involving Mr. May, the trust, and the trustees, after no response to the motion was filed. See Lagarde v. Outdoor Resorts of Am,., Inc., 428 So.2d 669, 670 (Fla. 2d DCA 1982) (taking judicial notice of the record and affirming a res judicata-based dismissal).

Upon review of the record, we can find no basis for concluding that Mr. May has already litigated claims alleging “deficiencies” in the former trustee’s Final Accounting of the trust. See Compl. Count I, ¶¶ 12a-12f. In fact, the Final Accounting at issue here was not even completed until after the filing of the amended complaint in the previous litigation. For this reason, we reverse the trial court’s decision to dismiss all of Count I on the basis of res judicata.

We affirm, however, the trial court’s decision to dismiss allegations 12g, 12h, and 12i of Count I, and Count II of the Complaint. These claims allege “breaches” by the former trustee, Mr. Salter, which have already been litigated.

AFFIRMED IN PART, REVERSED IN PART, and REMANDED for proceedings consistent with this opinion.

CLARK, MAKAR, and OSTERHAUS, JJ., concur.

      . See May v. Salter, 114 So.3d 941 (Fla. 1st DCA 2013); May v. Salter, 103 So.3d 149 (Fla. 1st DCA 2012); May v. Salter, 29 So.3d 295 (Fla. 1st DCA 2010); Chamberlain v. May, 36 So.3d 87 (Fla. 1st DCA 2009); Chamberlain v. May, 22 So.3d 540 (Fla. 1st DCA 2009).


text:
    Samuiel K. MESSIHA, Appellant, v. FIRST FLORIDA CREDIT UNION, Appellee.
    No. 1D13-3608.
    District Court of Appeal of Florida, First District.
    May 12, 2014.
    Rehearing Denied June 11, 2014.

      Samuiel K. Messiha, pro se, Appellant.
    James E. Sorenson and John Blair Boyd, of Williams, Gautier, Gwynn, De-loach & Sorenson, P.A., Tallahassee, for Appellee.
   PER CURIAM.

Appellant, Samuiel K. Messiha, appeals the Summary Final Judgment of Foreclosure. We find no error in the trial court’s entry of summary judgment in favor of Appellee, First Florida Credit Union. However, given Appellee’s concession that the trial court’s award of interest in the amount of $16,513.79 resulted from a miscalculation, we reverse the judgment as to the interest award and remand the case with instructions to recalculate the interest owed to Appellee and enter an amended judgment. See Freedman v. Fraser Eng’g & Testing, Inc., 927 So.2d 949, 954 (Fla. 4th DCA 2006) (affirming the final judgment enforcing and foreclosing the charging lien but remanding with instructions to recalculate the amount due); B.K.T., Inc. v. S. Fla. Bank, 658 So.2d 1177, 1177 (Fla. 2d DCA 1995) (remanding the ease for correction of the monetary judgment award).

AFFIRMED in part; REVERSED in part; and REMANDED with instructions.

LEWIS, C.J., THOMAS and OSTERHAUS, JJ., concur.


author: LOGUE, J.

text:
    James THOMPSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-1979.
    District Court of Appeal of Florida, Third District.
    May 14, 2014.
    Rehearing Denied June 16, 2014.

      James Thompson, in proper person.
    Pamela Jo Bondi, Attorney General, and Robert Martinez Biswas, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and WELLS and LOGUE, JJ.
   LOGUE, J.

James Thompson raises several challenges to his convictions of possession of drug paraphernalia and child neglect not causing great bodily harm. We write to address the only issue that merits discussion—whether competent, substantial evidence supports his conviction of child neglect.

On November 21, 2011, a detective noticed Thompson standing on a sidewalk with a , two-year-old child in a location known for drug sales. Over the course of twenty to twenty-five minutes, the detective observed Thompson engage in six hand-to-hand narcotic sales with the child in his arms. A jury ultimately found Thompson guilty of child neglect not causing great bodily harm based on these facts. We affirm.

The State was not required to prove that the child suffered “great bodily harm, permanent disability, or permanent disfigurement,” but it was necessary to establish that Thompson “willfully or by culpable negligence” neglected the child. § 827.03(3)(c), Fla. Stat. (2011) (renumbered § 827.03(2)(d) (2012)). The definition of child neglect, as applied to this case, is “a caregiver’s failure or omission to provide a child with the care, supervision, and services necessary to maintain a child’s physical and mental health ... that a prudent person would consider essential for the well-being of the child.” § 827.03(3)(a)l, Fla. Stat. (2011) (renumbered § 827.03(1)(e)1 (2012)). Such a failure or omission “may be based on repeated conduct or on a single incident or omission that results in, or could reasonably be expected to result in, serious physical or mental injury, or a substantial risk of death, to a child.” § 827.03(3)(a)2, Fla. Stat. (2011) (renumbered § 827.03(1)(e)2 (2012)).

We find little difficulty in concluding that Thompson’s willful exposure of his two-year-old child to multiple drug transactions could reasonably be expected to result in serious physical injury or a substantial risk of death to the child. As this court has already recognized, “drug ripoffs” are “common place” in our community “and usually involve violence with a firearm resulting in death or injury.” Reyes v. State, 581 So.2d 932, 934 (Fla. 3d DCA 1991).

Several out-of-state jurisdictions have addressed similar circumstances and held that such conduct constitutes child neglect. See Cleasant v. State, 779 N.E.2d 1260, 1263 (Ind.App.2004) (holding that the knowing exposure of a child to a drug deal constituted child neglect); see also Jones v. Commonwealth, 272 Va. 692, 636 S.E.2d 403, 408 (2006) (upholding a conviction of child neglect based on the defendant’s actions in leaving a child unattended in the presence of illegal drugs and exposing the child to the illicit drug trade). In Cleas-ant, for example, the court upheld a conviction of child neglect based on a defendant’s knowing exposure of his one-year-old child to a drug deal. 779 N.E.2d at 1263. In doing so, the court reasoned that drug dealing involves inherent dangers. Id. at 1262-63. Likewise, in Jones, the court recognized that a defendant knew or should have known that routinely selling illegal drugs in the presence of her child “created a substantial risk of serious injury from the dangers inherent in the illicit drug trade.” 636 S.E.2d at 408. We agree.

Affirmed.

      . We are reviewing the denial of a motion for judgment of acquittal. "In moving for a judgment of acquittal, a defendant ‘admits not only the facts stated in the evidence adduced, but also admits every conclusion favorable to the adverse party that a jury might fairly and reasonably infer from the evidence.' " Beasley v. State, 774 So.2d 649, 657 (Fla.2000) (quoting Lynch v. State, 293 So.2d 44, 45 (Fla.1974)).


text:
    2700 NORTH OCEAN, LLC, et al., Appellants, v. Ophir STERNBERG and Allison Greenfield, Appellees.
    No. 3D13-2892.
    District Court of Appeal of Florida, Third District.
    May 14, 2014.
    Rehearing Denied June 16, 2014.
    Kula & Samson, LLP, and Elliot B. Kula, Daniel M. Samson, and W. Aaron Daniel, Miami; Akerman LLP, and Jason S. Oletsky and Ashley Sawyer Smith, Fort Lauderdale, for appellants.
    Michael L. Feinstein, P.A., and Michael L. Feinstein, Fort Lauderdale, for appel-lees.
    Before SUAREZ, LAGOA, and LOGUE, JJ.
   LOGUE, J.

This appeal arises out of post-judgment collection efforts by judgment creditors on a recorded judgment originally obtained in New York. Appellants, who are third-party witnesses in the underlying proceedings, were served with subpoenas for depositions duces tecum seeking broad categories of documents in aid of execution. Appellants seek review of a trial court order that denied their motions to shield themselves from all or part of the discovery. In their reply brief, Appellants explained: “this appeal does not seek review of a scope-of discovery ruling, but rather it seeks review of the trial court’s ability in the first instance to enter a discovery order directed to a non-party in a post-judgment pursuit of in-aid-of-execution discovery — and where formal proceedings supplementary had yet to be commenced.”

It is clear that “Rule 1.560 permits a judgment creditor to obtain discovery in aid of execution from any person in the manner provided in the Rules of Civil Procedure.” Albert v. Hartford Nat. Bank & Trust Co., 423 So.2d 1027, 1028 (Fla. 4th DCA 1982) (emphasis added); see also Fla. R. Civ. P. 1.560(a). We note that the parties have already entered into a confidentiality agreement and that “[tjrial courts have broad discretion in controlling discovery and in issuing protective orders.” Katzman v. Rediron Fabrication, Inc., 76 So.3d 1060, 1065 (Fla. 4th DCA 2011). Given the evidence presented, the trial judge could find that there was a sufficient relationship between Appellants and the judgment debtor to justify the records requested. It was therefore within the discretion of the trial judge to allow the discovery to go forward.

Affirmed.


text:
    Jerry CAMON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-629.
    District Court of Appeal of Florida, Third District.
    May 14, 2014.
    Jerry Camón, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, C.J., and ROTHENBERG and EMAS, JJ.
   PER CURIAM.

Affirmed. See State v. McBride, 848 So.2d 287 (Fla.2003).


author: LEWIS, C.J.

text:
    STATE of Florida, Office of the Attorney General, Department of Legal Affairs, Appellant, v. BEACH BLVD AUTOMOTIVE, INC., a Florida Corporation; Beach Blvd Auto Finance, Inc., a Florida Corporation; John O. King, Sr., individually, and as owner, officer and/or director of Beach Blvd Automotive, Inc., Beach Blvd Auto Finance, Inc., and Barbara King, individually and as an agent of Beach Blvd Automotive, Inc., Appellees.
    No. 1D13-1086.
    District Court of Appeal of Florida, First District.
    May 19, 2014.
    Rehearing Denied June 12, 2014.

      Pamela Jo Bondi, Attorney General, Johanna Nestor, Assistant Attorney General, Jacksonville, for Appellant.
    Scott A. Cole and Kathryn L. Smith of Cole, Scott & Kissane, P.A., Miami for Beach Blvd Automotive, Inc., a Florida Corporation; Beach Blvd Auto Finance, Inc., a Florida Corporation; John O. King, Sr., individually, and as owner, officer and/or director of Beach Blvd Automotive, Inc., Beach Blvd Auto Finance, Inc.; Paul M. Eakin of Eakin & Sneed, Atlantic Beach for Barbara King, individually and as an agent of Beach Blvd Automotive, Inc.
   LEWIS, C.J.

Appellant, the Department of Legal Affairs of the Office of the Attorney General, appeals the trial court’s order dismissing its amended complaint against Appellees, Beach Blvd. Automotive, Inc. (“BBA”), Beach Blvd. Auto Finance, Inc. (“BBAF”), John O. King, Sr., individually and as owner, officer, and/or director of the corporations, and Barbara King, individually and as an agent of BBA. For the reasons that follow, we affirm the trial court’s dismissal of Counts 1 and 8 along with the Florida Consumer Collection Practices Act (“FCCPA”) claim in Count 5, but reverse the dismissal of Counts 2, 3, 4, 6, 7, 9, and 10 along with the claim brought under the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) in Count 5.

In October 2011, Appellant filed its initial complaint containing eight counts against Appellees based upon their alleged fraudulent and unfair trade practices. Appellees filed a motion to dismiss, which the trial court granted. In its order, the trial court found that Appellant lacked standing as the enforcing authority under FDUTPA. In providing guidance to Appellant in the event that it filed an amended complaint, the trial court determined that Appellant’s claim that Appel-lees improperly required their customers to purchase credit life, credit disability, and GAP insurance did not constitute a violation of FDUTPA. With respect to Appellant’s claim that Appellees improperly installed GPS devices in the financed vehicles they sold, the trial court found that only installation of GPS tracking devices without notification to the purchaser would support an allegation that such a practice was unfair or deceptive. The court noted that, for all purposes, the liti-. gation commenced on October 7, 2011, the date the original complaint was filed.

In its amended complaint, Appellant sought injunctive and declaratory relief, restitution, civil penalties, damages, attorney’s fees, and any other available statutory relief pursuant to FDUTPA and FCCPA. Appellant alleged ten counts and claimed that it was the enforcing authority under FDUTPA. It attached as Exhibit A a “Notice of Deferral of Action” from the State Attorney of the Fourth Judicial Circuit wherein the State Attorney deferred the litigation against Appellees to Appellant pursuant to section 501.203(2), Florida Statutes.

In Count 1, Appellant alleged a FDUT-PA violation, asserting that Appellees added credit life, credit disability, and GAP insurance to their customers’ monthly payments without proper or adequate disclosure. In Count 2, Appellant alleged a FDUTPA violation, asserting that Appel-lees placed GPS tracking devices on their vehicles without the authorization, approval, or knowledge of their customers. In Count 3, Appellant alleged a FDUTPA violation, asserting that Appellees deceived their customers by adding a pre-delivery inspection (“PDI”) fee to the price of their vehicles without disclosing the nature and purpose of the fee and without providing the proper disclosures, an alleged violation of sections 501.976(11) and (18), Florida Statutes. In Count 4, Appellant alleged a FDUTPA violation, asserting that Appel-lees kept their customers’ deposits or binders without adequate disclosure, an alleged violation of section 501.976(10), Florida Statutes. It also alleged that certain customers were led to believe that their deposits would be returned if they did not purchase vehicles from Appellees. In Count 5, Appellant alleged both FDUTPA and FCCPA violations, asserting that Ap-pellees BBAF and John O. King, Sr. willfully used threats and profane language with debtors and willfully claimed or threatened to enforce illegitimate debts. In Count 6, Appellant alleged a FDUTPA violation, asserting that Appellee Barbara King posted false reviews on internet websites. In Count 7, Appellant alleged a FDUTPA violation, asserting that Appel-lees also posted false reviews on internet websites. In Count 8, Appellant alleged a FDUTPA violation, asserting that Appel-lees engaged in the business of a motor vehicle retail installment seller without a license, an alleged violation of section 520.03(1), Florida Statutes. In Count 9, Appellant alleged a FDUTPA violation, asserting that Appellees wrongfully repossessed customers’ vehicles based on false assertions that the customers’ automobile insurance had lapsed or based on nonexistent liens. In Count 10, Appellant alleged a FDUTPA violation, asserting that Appellees reported false sales and financing.

Appellant attached several documents to its amended complaint, including sworn statements of some of Appellees’ customers and employees, bills of sale and schedules of insurance containing language that credit life and credit disability insurance were optional items, a SAFE-GAP Deficiency Waiver Addendum providing in part that the purchase of the additional coverage was voluntary and would not be a factor in the credit approval process, and a December 9, 2011, letter to Appellee John 0. King, Sr. from the Office of Financial Regulation advising him that BBA’s application for licensure as a motor vehicle installment seller had been denied. Also attached was a receipt for one of Appel-lees’ customers that contained a stamp setting forth, “BBA AGREES TO HOLD ABOVE VEHICLE UNTIL'_ FOR NON REFUNDABLE BINDER OF

Appellee Barbara King filed an answer and affirmative defenses in response to the amended complaint. Appellees moved to dismiss the amended complaint. Appellant subsequently filed a final order of the Office of Financial Regulation with the trial court. The order incorporated a stipulation and consent agreement, which set forth that Appellees’ license as a motor vehicle retail installment seller became inactive in December 2010 for an “inadvertent failure to renew.” It also provided that Appellees operated “unintentionally” without a license from January 1, 2011, until April 30, 2012.

During the hearing on Appellees’ motion to dismiss, counsel for Appellee Barbara King stated that King had “no say” in the motion given that she had answered the amended complaint. Appellees’ counsel argued as to Count 1 that Appellant raised the same claim as it had raised in its original complaint.

As to Count 2, Appellees’ counsel argued, “We don’t have exceptions to [it] other than we feel that it misjoins some other general paragraphs .... So we’re not asking it to be dismissed with prejudice; we’re asking it be cleaned up a little bit.”

As to Count 3, Appellees’ counsel argued that res judicata barred the claim given that Appellees “previously settled the class action and [the court] issued a final order on May 10 of 2011.” According to counsel, it was alleged in the class action that Ap-pellees violated FDUTPA, and all class members released Appellees from any and all liability arising out of the PDI fee. Appellant’s counsel acknowledged that the class members received actual damages for Appellees’ PDI fee violation but noted that it was “seeking ... an enforcement or damages based on an enforcement action .... ” Counsel offered to “remove the actual damages language from there” and asked that Appellant be permitted to move forward with regard to it receiving damages “based on a violation of 501 as an enforcement agency.”

With respect to Count 4, Appellees’ counsel argued that the nonrefundable deposit language used by Appellees complied with the pertinent statutes. Appellant’s counsel argued that the “binder stamp” did not give consumers a clear and conspicuous statement as to when a deposit was refundable or nonrefundable as required by section 501.976, Florida Statutes.

As to Count 5, Appellees’ counsel argued that the claim should be dismissed with prejudice because Appellant did not have authority to pursue a FCCPA claim. Appellant’s attorney argued that the deferral letter from the State Attorney gave Appellant enforcement jurisdiction to “go after any of the acts that are within the complaint.” .

After noting that Count 6 could be skipped given that it dealt with Appellee Barbara King, Appellees’ counsel represented that Appellees would “forego” their motion to dismiss as to Count 7 and “go ahead and answer that count .... ”

As to Count 8, Appellees’ counsel represented that Appellees’ motor vehicle retail installment sales license had been reinstated on a probationary basis.

With respect to Count 9, Appellees’ counsel stated in part, “We would ask that [Appellant] restate the count primarily to identity who it is seeking damages from because ... this count is asking for damages for consumers who have been aggrieved, but it doesn’t tell us who has been aggrieved.”

As to Count 10, Appellees’ counsel argued that the trial court had previously discussed the issue when Appellant unsuccessfully sought the sales agreements of family members and friends of Appellee John 0. King, Sr. Appellant’s counsel asserted that the claim pertained not only to those individuals, but also to other consumers or business enterprises that were affected by Appellees’ actions in falsifying documents for the purpose of sale.

Thereafter, the trial court entered the Order Dismissing Amended Complaint, setting forth the following:

The Court, being fully advised in the premises, finds that the allegations of the Amended Complaint fail to state a cause of action. Additionally, the Attorney General lacks standing to bring civil actions under certain provisions cited as authority in the Amended Complaint. Further, many of the allegations of the Amended Complaint are barred by the statute of limitations. Also, the Complaint has previously been dismissed for the same reasons cited above, with leave to amend. The Amended Complaint cures none of the deficiencies of the original Complaint. In fact, Count I of the original Complaint was dismissed with prejudice; notwithstanding that fact, the Amended Complaint restates the same claims that were alleged in Count I of the original Complaint.

This appeal followed.

A motion to dismiss raises a question of law as to whether the facts alleged in the complaint are sufficient to state a cause of action. Rhea v. Dist. Bd. of Trs. of Santa Fe Coll., 109 So.3d 851, 854 (Fla. 1st DCA 2013). When considering the legal sufficiency of a complaint, a trial court’s view is limited to the four corners of the complaint, and the factual allegations contained therein are to be accepted as true. Id. A trial court must resolve all reasonable conclusions or inferences in favor of the plaintiff, as the non-moving party. Id.; Wells Fargo Bank, N.A. v. Bohatka, 112 So.3d 596, 600 (Fla. 1st DCA 2013) (explaining that a court’s review of a motion to dismiss is limited to the four corners of the complaint and to any documents attached or incorporated thereto). A trial court’s order dismissing a complaint for failure to state a cause of action is reviewed de novo. Andrew v. Shands at Lake Shore, Inc., 970 So.2d 887, 889 (Fla. 1st DCA 2007).

FDUTPA prohibits “[u]nfair methods of competition, unconscionable acts or practices, and unfair or deceptive acts or practices in the conduct of any trade or commerce.” § 501.204(1), Fla. Stat. (2011). The term “trade or commerce” as used in section 501.204(1) is defined as “advertising, soliciting, providing, offering, or distributing whether by sale, rental, or otherwise, of any good or service, or any property ... or any other article, commodity, or thing of value, wherever situated.” § 501.203(8), Fla. Stat. (2011). An unfair action under FDUTPA is an act that offends established public policy and one that is substantially injurious to consumers, unscrupulous, oppressive, unethical, or immoral. PNR, Inc. v. Beacon Prop. Mgmt., Inc., 842 So.2d 773, 777 (Fla.2003). Deception occurs if there is a representation, omission, or practice that is likely to mislead consumers acting reasonably in the circumstances, to the consumers’ detriment. Id.

The enforcing authority under FDUTPA is “the office of the state attorney if a violation of this part occurs in or affects the judicial circuit under the office’s jurisdiction” or the “Department of Legal Affairs if the violation occurs in or affects more than one judicial circuit or if the office of the state attorney defers to the department in writing ....” § 501.203(2), Fla. Stat. (2011). The enforcing authority may bring an action to obtain a declaratory judgment that an act or practice violates the law, an action to enjoin a person who has violated, is violating, or is likely to violate the law, or an action on behalf of one or more consumers or governmental entities for the actual damages caused by an act or practice in violation of the law. § 501.207(1)(a)-(c), Fla. Stat. (2011). A FDUTPA action may not be brought more than four years after the occurrence of a violation or more than two years after the last payment in a transaction involved in a violation of the law. § 501.207(5), Fla. Stat. (2011).

Appellant first argues on appeal that the trial court erred in dismissing the amended complaint based on its finding that Appellant was not the enforcing authority under FDUTPA. Appellees correctly acknowledge that Appellant is the enforcing authority under FDUTPA based upon the State Attorney’s deferral. Therefore, to the extent that the trial court dismissed the amended complaint on this basis, it erred in doing so.

Appellant next contends that the trial court erred in dismissing the amended complaint based on its finding that many of Appellant’s allegations were barred by the statute of limitations. We agree. While Appellees are correct that anything that occurred prior to October 7, 2007, would not be actionable under FDUTPA, the trial court’s characterization that “many” of Appellant’s allegations are barred by the statute of limitations is inaccurate. Only two allegations within the amended complaint referred to time periods outside the four-year statute of limitations and did so only generally. As such, dismissal on this basis was improper.

In its third and final issue oh appeal, Appellant addresses the dismissal of each count separately. We will do the same.

Count 1 (Payment Packing)

We agree with Appellant that the trial court erred in finding that Count 1 of the amended complaint simply restated the allegations contained in Count 1 of the original complaint. In its original complaint, Appellant alleged that Appellees improperly required the purchase of credit life, credit disability, and GAP insurance as a condition of the sale of their vehicles. In contrast, Appellant alleged an unfair or fraudulent act in Count 1 of its amended complaint by alleging that Appellees added those optional items to their customers’ monthly payments without disclosing the items to them.

With that said, however, FDUTPA does not apply to “[a]ny person or activity regulated under laws administered by [t]he Office of Insurance Regulation of the Financial Services Commission” or “[a]ny person or activity regulated under the laws administered by the former Department of Insurance which are now administered by the Department of Financial Services.” § 501.212(4)(a), (d), Fla. Stat. (2011). Florida courts resolve questions about the applicability of section 501.212(4) by looking to the activity that is the subject of the lawsuit and determining whether the activity is subject to the regulatory authority of the Office of Insurance Regulation. State Farm Mut. Auto. Ins. Co. v. Physicians Injury Care Ctr., 427 Fed.Appx. 714, 728 (11th Cir.2011).

In support of its argument that the exemptions do not apply in this case, Appellant cites Federal Trade Commission v. Dixie Finance Co., 695 F.2d 926 (5th Cir.1983). There, the Fifth Circuit explained that the purpose of the investigation by the Federal Trade Commission in the case was to determine whether finance companies, automobile dealerships, or others were engaged in unfair or deceptive acts or practices in connection with arranging for or consummating a consumer credit transaction, including misrepresenting, directly or by implication, that the purchase of credit insurance was a prerequisite to the extension of credit. 695 F.2d at 928. The respondents failed to provide the requested documents on the ground that the Commission’s inquiry was an unlawful attempt to investigate and regulate the “business of insurance,” which is protected by the McCarran-Ferguson Act; the pertinent provision of the Act provided that the “business of insurance, and every person engaged therein, shall be subject to the laws of the several States which relate to the regulation or taxation of such business.” Id. The Fifth Circuit explained that the respondents were consumer finance companies that sold life, health, and accident insurance to their loan customers. Id. The Commission argued that the “business of insurance” was not involved because an insurance policy was only tangentially involved and because none of the elements of the insurer-insured relationship were being scrutinized by the Commission. Id. at 929. The Fifth Circuit agreed with the Commission, reasoning, “It is not the actual sale, but the fact that the sale is a precondition to the extension of credit that is critical here. Were the Commission attempting to investigate the sale of these policies, clearly the state statutes ... would govern and the McCar-ran Act exemption would apply.” Id. at 930. In affirming the order compelling the respondents to provide documentary evidence to the Commission, the Fifth Circuit set forth, “[T]he relationship ... is not the relationship between insurer and insured [that the Commission wanted to investigate]. It is the credit relationship that the Commission is concerned with; specifically, whether the sale of insurance is a precondition to the arrangement of credit.” Id. (emphasis in original). See also Elliott v. ITT Corp., 764 F.Supp. 102, 104 (N.D.Ill.1991) (noting that while there is no doubt that the sale of an insurance policy is the business of insurance, “[w]here the particular activity under attack is, as here, the alleged misrepresentation that credit will be extended only when certain insurance is also purchased, however, it is not the business of insurance ... that is implicated” and finding that the plaintiffs complaint was plainly focused on the particulars of credit extension).

We find Appellant’s reliance upon Dixie Finance Co. misplaced. Section 501.212(4) exempts from FDUTPA “[a]ny person or activity regulated under laws administered” by the Office of Insurance Regulation or the laws administered by the former Department of Insurance which are now administered by the Department of Financial Services. This language is broader than the “business of insurance” language at issue in Dixie Finance Co. Moreover, unlike the situation in Dixie Finance Co. where the sale of insurance was a precondition to the arrangement of credit, Appellant alleged that Appellees added credit life, credit disability, and GAP insurance to their customers’ transactions without the customers’ knowledge. As such, the alleged activity in this case deals with the insurance itself.

Our conclusion is supported by the statutes regulating the type of insurance at issue. Section 516.35, Florida Statutes (2011), which is entitled “Credit insurance must comply with credit insurance act,” addresses in subsection (2) how the costs of credit property, credit life, and credit disability insurance must be disclosed. Section 626.321(1)(e), Florida Statutes (2011), provides that the Department of Financial Services shall issue a qualified applicant a license as an agent authorized to transact a limited class of business in credit insurance. Section 627.678(1), Florida Statutes (2011), provides that “[f]or the effective protection of the public interest, the commission [the Financial Services Commission] shall have full power and authority to adopt, and the office [Office of Insurance Regulation] shall enforce, separate rules pertaining to issuance and use of each type of credit insurance defined in s. 627.677.” Section 627.679, Florida Statutes (2011), provides for the amount that may be charged for credit life and credit disability insurance, and section 627.681, Florida Statutes (2011), provides for the term of credit life and credit disability insurance. Section 627.683, Florida Statutes (2011), which also pertains to credit life and credit disability insurance, sets forth, “All policies to which this chapter applies shall be issued through a licensed agent.” Not only do the foregoing provisions refute Appellant’s argument that Ap-pellees’ act of selling credit life and credit disability insurance is not exempted from FDUTPA under section 501.212(4), but Appellant’s counsel acknowledged during the hearing below that Appellee BBA “sells an insurance product.” In' addition, Appellees’ counsel provided the trial court with a copy of Appellees’ license to sell insurance.

In assessing the dismissal of Count 1, we are also guided by the fact that Appellant attached to its amended complaint Appellees’ schedules of insurance, which provided in part:

I(We) understand that the insurance applied for herein is not compulsory, nor a condition precedent to any loan or credit transaction. I(We) hereby state that I(we) have been given the option to purchase such credit insurance or other insurance from any insurer or agency of my (our) choice and that I(we) freely choose Life of the South Insurance Company.

A bill of sale issued by Appellees included a section entitled “OPTIONAL CREDIT LIFE AND DISABILITY INSURANCE DISCLOSURE.” The form stated in part, “Credit Life Insurance and Credit Disability Insurance are not required to obtain credit and will not be provided unless you agree to pay the additional cost by signing below.” As Appellees argue, when an exhibit negates a cause of action, the exhibit’s plain language controls and may be the basis for a motion to dismiss. Fladell v. Palm Beach Cnty. Canvassing Bd., 772 So.2d 1240, 1242 (Fla.2000); see also Southworth & McGill, P.A. v. S. Bell Tel. & Tel. Co., 580 So.2d 628, 631 (Fla. 1st DCA 1991). We agree with Appellees that the cited language negates Appellant’s allegations that Appellees added credit life and credit disability insurance without authorization or disclosure.

While Appellant is correct that section 520.02(7), Florida Statutes (2011), provides that GAP coverage is not insurance for purposes of the Florida Insurance Code and that, as a result, the exemptions in section 501.212(4) would not apply to the sale of the item, Exhibit G to the amended complaint included a SAFE-GAP Deficiency Waiver Addendum for one of Appellees’ customers. The form provided in part:

THE PURCHASE OF THE DEFICIENCY WAIVER ADDENDUM IS VOLUNTARY, WILL NOT BE A FACTOR IN THE CREDIT APPROVAL PROCESS AND NEITHER THE EXTENSION OF CREDIT, THE TERMS OF THE CREDIT, NOR THE TERMS OF THE RELATED MOTOR VEHICLE SALE OR LEASE, MAY BE CONDITIONED UPON THE PURPOSE OF THE GAP WAIVER.

The “OPTIONAL CREDIT LIFE AND DISABILITY INSURANCE DISCLOSURE” language was also included on the form. For these reasons, we affirm the order as to the dismissal of Count 1.

Count 2 (GPS Devices)

We agree with Appellant that Count 2 of the amended complaint was improperly dismissed. The trial court correctly noted in its order dismissing the original complaint that the installation of GPS tracking devices without notification to the purchaser would support an allegation that such a practice was unfair or deceptive. Not only did Appellant allege in its amended complaint that Appellees installed the devices on cars they sold without their customers’ knowledge or authorization, but Appellees’ counsel stated during the hearing that he did not take exception to the substance of the claim. Given such, we reverse the order as to the dismissal of Count 2.

Count 3 (PDI Fee)

Appellant correctly argues that Count 3 was improperly dismissed. While Appellees argue that dismissal was appropriate because Appellant’s claim was barred under the doctrine of res judicata, a defendant generally cannot raise the defense of res judicata for the first time in a motion to dismiss. Britt v. City of Jacksonville, 770 So.2d 257, 257-58 (Fla. 1st DCA 2000). Where the basis for res judi-cata or collateral estoppel does not appear on the face of a complaint, those grounds cannot be determined by way of a motion to dismiss. Garnac Grain Co., Inc. v. Mejia, 962 So.2d 408, 410 (Fla. 4th DCA 2007). Cf. Duncan v. Prudential Ins. Co., 690 So.2d 687, 688 (Fla. 1st DCA 1997) (affirming the dismissal of the complaint and noting that although the defenses of res judicata and estoppel by judgment are affirmative defenses which ordinarily cannot be raised by a motion to dismiss, the appellant specifically incorporated the previous proceedings into her complaint by reference, thereby providing the trial court a complete history of the litigation). Ap-pellees represent on appeal that they notified the trial court of the prior litigation between them and their customers. By doing so, they acknowledge that Appellant did not refer to the litigation in its amended complaint. Accordingly, we reverse the order as to the dismissal of Count 3.

Count 4 (Deposits)

Appellant correctly argues that the trial court erred in dismissing Count 4 of the amended complaint. As alleged by Appellant, it is an unfair or deceptive practice and actionable under FDUTPA for an automobile dealer to:

[r]equire or accept a deposit from a prospective customer prior to entering into a binding contract for the purchase and sale of a vehicle unless the customer is given a written receipt that states how long the dealer will hold the vehicle from other sale and the amount of the deposit, and clearly and conspicuously states whether and upon which conditions the deposit is refundable or nonrefundable.

§ 501.976(10), Fla. Stat. (2011). Appellees argue that dismissal was appropriate as to Count 4 because the stamp they used to inform customers that them binders or deposits were nonrefundable fully satisfied the statutory requirements as a matter of law. While the stamp that was included in Exhibit K to the amended complaint set forth that Appellee BBA agreed to hold a vehicle until a certain date for a “non refundable binder,” Appellant alleged in its amended complaint that the stamp did not fully satisfy section 501.976(10) because it did not clearly and conspicuously state whether and upon what conditions the deposit was refundable or nonrefundable. It also alleged that, notwithstanding the stamp, Appellees’ customers were led to believe that they would receive their deposits back if they did not purchase a vehicle. These allegations were sufficient to withstand Appellees’ motion to dismiss. We, therefore, reverse the order as to the dismissal of Count 4.

Count 5 (Debt Collection)

In Count 5, Appellant alleged that Appellees violated both FCCPA and FDUTPA by engaging in certain debt collection practices. As to its authority to bring a FCCPA claim, Appellant cites Section 559.725 of FCCPA, which is entitled “Consumer complaints; administrative duties” and provides in part:

(1) The office [Office of Financial Regulation] shall receive and maintain records of correspondence and complaints from consumers concerning any and all persons who collect debts, including consumer collection agencies.
(2) The office shall inform and furnish relevant information to the appropriate regulatory body of the state or the Federal Government, or The Florida Bar in the case of attorneys, if a person has been named in a consumer complaint pursuant to subsection (3) alleging violations of s. 559.72. The Attorney General may take action against any person in violation of this part.
(3) The complainant, subject to penalty of perjury as provided in s. 837.06, shall certify on a form approved by the Financial Services Commission a summary of the nature of the alleged violation and the facts that allegedly support the complaint, and shall submit the form to the office.
(4) The office shall investigate complaints and record the resolution of such complaints.
(5) The office shall advise the appropriate state attorney or the Attorney General of any determination by the office of a violation of this part by any consumer collection agency that is not registered as required by this part. The office shall furnish the state attorney- or Attorney General with the office’s information concerning the alleged violations of such requirements.

(Emphasis added).

As Appellees contend, Appellant did not rely upon subsection (2) in the trial court. Instead, Appellant incorrectly relied upon the State Attorney’s letter deferring its FDUTPA enforcement authority to it. Because Appellant failed to bring section 559.725(2) to the trial court’s attention, we decline to address the applicability of the provision to Appellant in this case and affirm the dismissal of the FCCPA claim in Count 5. See Aills v. Boemi, 29 So.3d 1105, 1108 (Fla.2010) (noting that a party must state a legal ground for an objection, and in order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below).

Within Count 5, Appellant also asserted a FDUTPA claim based upon Appellees’ allegedly unfair and deceptive debt collection practices. In Schauer v. General Motors Acceptance Corp., 819 So.2d 809, 811 (Fla. 4th DCA 2002), the appellant appealed the dismissal of his complaint wherein he alleged FDUTPA and FCCPA claims against the appellees. The case arose from the sale of a used car by appellee Ed Morse Chevrolet to the appellant’s stepdaughter; the appellant was a co-signer to the loan. 819 So.2d at 811. In reversing as to the dismissal of the FDUTPA claim, the Fourth District determined that the appellant was a “consumer” and that the actions of appellee GMAC by extending credit fell within FDUTPA’s broad definition of “trade or commerce.” Id. at 812. The Fourth District set forth, “As [the appellant] alleged sufficient facts to show GMAC violated this Act by willfully harassing him and his family with respect to the collection of its debt, this cause of action should have survived dismissal.” Id. In construing Schauer, this Court has explained, “The plaintiff also connected the seller with GMAC through agency allegations. In other words, there appeared to be a ‘trade or commerce’ relationship between GMAC and the plaintiff before GMAC attempted to collect the debt through means unconnected to the legal process.” See Baker v. Baptist Hosp. Inc., 115 So.3d 1123, 1125 (Fla. 1st DCA 2013); see also F.T.C. v. Check Investors, Inc., 502 F.3d 159, 174 (3d Cir.2007) (noting that the deceptive acts or practices forbidden by the Federal Trade Commission Act include those used in the collection of debts); Losure v. Capital One Servs., Inc., No. 2:05CV502FTM29SPC, 2006 WL 166520, at *1-3 (M.D.Fla. Jan. 23, 2006) (noting that defendant Capital One retained defendant NCO to collect the discounted portion of the debt at issue and determining that the plaintiff, a credit card holder, adequately pled a claim under FDUTPA where he alleged that NCO, with the knowledge that the debt was satisfied, attempted to collect the debt by willfully harassing him at home and at his place of employment through letters and telephone calls). Compare Williams v. Nationwide Credit, Inc., 890 F.Supp.2d 1319, 1321 (S.D.Fla.2012) (holding that the defendant was not engaged in trade or commerce under FDUTPA in making debt collection calls to the plaintiff).

We agree with Appellant that the trial court erred in dismissing the FDUT-PA claim contained in Count 5. By alleging that Appellees BBAF and John O. King, Sr., both individually and as the owner, officer and/or director of both BBA and BBAF, willfully used threats or threatened force or violence in their debt collection and willfully claimed or threatened to enforce illegitimate debts, Appellant, like the appellant in Schauer, alleged sufficient facts under FDUTPA to withstand a motion to dismiss. We, therefore, reverse the order as to the dismissal of Appellant’s FDUTPA claim in Count 5.

Count 6 (Appellee Barbara King’s Alleged False Positive Reviews)

As Appellant argues and as Ap-pellees concede, the trial court’s dismissal of Count 6 was improper because Appellee Barbara King did not move to dismiss the amended complaint but instead filed an answer and affirmative defenses. We, therefore, reverse the order as to the dismissal of Count 6.

Count 7 (Appellees’ Alleged False Positive Reviews)

As Appellant argues and as Ap-pellees again concede, the trial court erred in dismissing Count 7 given the fact that Appellees’ counsel represented below that Appellees were foregoing the motion to dismiss as to the count and would instead respond to Appellant’s allegations. As such, reversal as to the dismissal of Count 7 is appropriate.

Count 8 (Licensure)

Section 520.03(1), Florida Statutes (2011), prohibits a person from engaging “in the business of a motor vehicle retail installment seller or operating] a branch of such business without a license.” Although Appellant alleged that Appellees violated FDUTPA by operating as an unlicensed seller, we agree with Appellees that dismissal was appropriate as to this count because Appellant failed to sufficiently plead how the alleged violation caused actual damages to consumers. In order to assert a claim for damages under FDUT-PA, a plaintiff must establish: (1) a deceptive act or unfair practice, (2) causation, and (3) actual damages. Baker, 84 So.3d at 1204. In Baker, we held that the class representative lacked standing to represent the class in its FDUTPA claim for damages against the appellant because he did not suffer any actual damages as a result of the imposition or payment of the lien at issue. Id. at 1205; see also Shibata v. Lim, 133 F.Supp.2d 1311, 1317 (M.D.Fla.2000) (noting that to state a cause of action under FDUTPA, the consumer must allege sufficient facts to show that the consumer has been actually aggrieved by the unfair or deceptive act committed by the seller in the course of trade or commerce); City First Mortg. Corp. v. Barton, 988 So.2d 82, 86 (Fla. 4th DCA 2008) (explaining that a plaintiff in a FDUTPA action may recover “only ‘actual damages’ incurred ‘as a consequence of a violation of the statute’ ”).

We find no merit in Appellant’s argument that it properly pled damages pursuant to section 520.12(2), Florida Statutes (2011), which provides in part that “[i]n the case of a willful violation of this part with respect to any retail installment sale, the buyer may recover from the person committing such violation ... an amount equal to any finance charge and any fees charged to the buyer by reason of delinquency, plus attorney’s fees and costs _” Not only is this provision not contained within FDUTPA, but Appellant did not cite the provision in its amended complaint as a basis for damages or allege that the sought-after damages were based upon finance charges or fees as a result of delinquency.

In affirming as to the dismissal of Count 8, we are mindful that Appellant also sought injunctive relief and civil penalties in the count. As section 501.207(1) provides, the enforcing authority may bring an action under FDUTPA for a declaratory judgment, for an injunction, or for actual damages on behalf of consumers. However, not only does it appear from the record that Appellees are now acting under a probationary license pending the outcome of this case, but Appellant also filed a final order of the Office of Financial Regulation with the trial court. That order set forth that Appellees’ act of operating without a license was done unintentionally due to their inadvertent failure to renew their license. Given such, we see no remaining remedy available to Appellant at this point under FDUTPA based upon its allegations in Count 8. We, therefore, affirm the dismissal of this count.

Count 9 (Wrongful Repossession)

Appellant correctly argues that the trial court erred in dismissing Count 9. Appellees assert on appeal that while they have no objection to remanding the case on this count as to the three named consumers in the amended complaint, Appellant cannot pursue additional claims under the count unless and until it identifies other allegedly affected individuals by name. However, as Appellees acknowledge, we have previously rejected the argument that Appellant, as the enforcing authority-under FDUTPA, is required to name those consumers on whose behalf it is litigating a FDUTPA action. See Taubert v. State, Office of the Attorney Gen., 79 So.3d 77, 79 (Fla. 1st DCA 2011) (rejecting the appellant’s argument that the trial court erred in denying his motion to dismiss the underlying complaint because the appellee (Appellant in this case) failed to provide the names of the defrauded consumers in its FDUTPA action). As such, we reverse the order as to the dismissal of Count 9.

Count 10 (Reporting False Sales)

Appellant correctly argues that the trial court erred in dismissing Count 10. Although Appellees contend that dismissal was appropriate because Appellant failed to allege how any particular entity or customer was aggrieved as a result of the alleged conduct, Appellees’ premise that Appellant had to plead and prove actual damages in order to bring a FDUT-PA claim is flawed. As we explained herein, Appellant, as the enforcing authority under FDUTPA, is permitted to seek declaratory relief, injunctive relief, or actual damages. It may also seek civil penalties. For purposes of Count 10, Appellant sought injunctive relief and civil penalties. As such, we reverse the order as to the dismissal of this count.

In conclusion, we affirm the trial court’s dismissal of Counts 1 and 8 and the FCCPA claim in Count 5, but reverse the dismissal of Counts 2, 3, 4, 6, 7, 9, and 10 and the FDUTPA claim in Count 5.

AFFIRMED in part; REVERSED in part; and REMANDED for further proceedings.

WOLF and MAKAR, JJ„ Concur.

      . When used herein, "Appellees” refers to BBA, BBAF, and John O. King, Sr. Appellee Barbara King will be referred to as such.


text:
    MEDICAL DATA SYSTEMS, INC., Appellant, v. COASTAL INSURANCE GROUP, INC., Thomas L. Webb, and American Professional Liability Underwriters, Inc., Appellees.
    No. 4D13-178.
    District Court of Appeal of Florida, Fourth District.
    May 21, 2014.
    Rehearing Denied June 26, 2014.

      Casey Walker of Murphy & Walker, P.L., Vero Beach, for appellant.
    Shelley H. Leinicke of Wicker, Smith, O’Hara, McCoy & Ford, P.A., Fort Laud-erdale, for appellee American Professional Liability Underwriters, Inc.
   PER CURIAM.

Medical Data Systems, Inc. (“appellant”) appeals from a final summary judgment entered in favor of appellee, American Professional Liability Underwriters, Inc. (“APLU”), on the ground that the statute of limitations had run. We find that the statute of limitations had not run and, as such, we reverse.

Appellant, a nationwide medical debt collector, relied on Coastal Insurance Group and its agent Thomas Webb to obtain liability coverage appropriate for its needs. The policy for 2006-2007 issued by Illinois Union for appellant’s benefit excluded liability coverage for debt collection activities. Beginning in April 2006, lawsuits were filed against appellant for claims arising out of violations of the Fair Debt Collection Practices Act. Appellant retained counsel to defend against the claims and received a bill on June 1, 2006 for work performed during the previous month. Illinois Union denied coverage under the insurance policy in September 2006. The underlying claims were settled in June 2008.

In November 2009, appellant filed a complaint against Coastal and its agent for negligence in failing to obtain appropriate insurance coverage. On August 25, 2010, appellant filed an amended complaint, adding APLU as a defendant. The amended complaint alleged that Coastal retained the services of APLU as a broker to procure the Illinois Union policy.

APLU moved for summary judgment, alleging that appellant’s cause of action against APLU was barred by the four-year statute of limitations. Relying on Kelly v. Lodwick, 82 So.3d 855 (Fla. 4th DCA 2011), APLU asserted that appellant’s cause of action accrued when appellant retained counsel and first started paying legal fees in June 2006.

Appellant filed a memorandum in opposition to the motion for summary judgment, asserting that the statute of limitations had not run. Relying on Blumberg v. USAA Casualty Insurance Co., 790 So.2d 1061 (Fla.2001), appellant argued, inter alia, that the statute of limitations to bring a negligence action against APLU did not begin to run until June 2008, when the underlying claims for violation of the Fair Debt Collection Practices Act were settled.

The trial court entered summary judgment in favor of APLU, finding that the statute of limitations had run under Kelly. Appellant appealed.

An order granting summary judgment is reviewed de novo. Fla. Atl. Univ. Bd. of Trs. v. Lindsey, 50 So.3d 1205, 1206 (Fla. 4th DCA 2010) (citation omitted). “A legal issue surrounding a statute of limitations question is an issue of law subject to de novo review.” Fox v. Madsen, 12 So.3d 1261, 1262 (Fla. 4th DCA 2009) (citation omitted).

Under the statute of limitations, a negligence action must be commenced within four years of when the cause of action accrued. § 95.11(3)(a), Fla. Stat. (2009). “A cause of action accrues when the last element constituting the cause of action occurs.” § 95.031(1), Fla. Stat. (2009). The last element of a cause of action based on negligence is actual loss or damage. Clay Elec. Coop., Inc. v. Johnson, 873 So.2d 1182, 1185 (Fla.2003).

The trial court based its decision to enter summary judgment on Kelly. In Kelly, a school became uninsured after its insurance agents failed to obtain a new insurance policy. On March 1, 2004, a student was injured due the alleged negligence of a school employee. On April 20, 2005, the student sued the school. As part of a settlement agreement, the student obtained the right to sue the agents for negligence and breach of fiduciary duty for failure to obtain coverage for the school. The student brought suit against the agents on February 9, 2009, alleging that the school and employee first incurred damages when they were forced to retain counsel to defend themselves. The trial court dismissed the complaint on the grounds that the four-year limitations period had run. In reversing, this court concluded that, based on the allegations of the complaint, the statute of limitations did not begin to run until April 20, 2005, when the school and employee were forced to defend against the student’s claim.

Kelly is procedurally distinguishable because there, in ruling on the motion to dismiss, the trial court was bound by the specific facts alleged in the complaint. In contrast, because the present case involves summary judgment, the trial court was not limited to the specific facts alleged in the complaint. Additionally, Kelly is factually distinguishable because in Kelly there was no insurance policy in effect. Here, in contrast, appellant had an insurance policy, but the policy did not provide the necessary coverage. For this reason, the present case is more analogous to Blumberg.

In Blumberg, a burglar broke into a home on November 9, 1991, and stole sports cards. The insurer denied coverage, and the homeowner filed suit against the insurer for breach of contract. In August 1996, the trial court entered a judgment in favor of the insurer because the policy did not cover the loss of the cards. The homeowner then filed suit against the insurance agent for negligence in procuring insurance. The trial court granted summary judgment in favor of the agent, finding that the statute of limitations had run. The supreme court found that the limitations period for the negligence action against the agent did not accrue until the insurance proceeding was final. The supreme court explained that “in the circumstances presented here, a negligence/malpractice cause of action accrues when the client incurs damages at the conclusion of the related or underlying judicial proceedings or, if there are no related or underlying judicial proceedings, when the client’s right to sue in the related or underlying proceeding expires.” 790 So.2d at 1065.

Applying Blumberg to the present case, the cause of action for negligence against APLU did not accrue until June 2008, when the underlying claims for violation of the Fair Debt Collection Practices Act were settled. Because the statute of limitations had not run at the time appellant filed suit against APLU, the trial court erred in granting summary judgment in favor of APLU. Accordingly, we reverse the judgment in favor of APLU and remand for further proceedings.

Reversed and remanded.

WARNER, MAY and LEVINE, JJ., concur.