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    MASTERBRAND CABINETS, INC. v. Meleya GILMORE.
    2100937.
    Court of Civil Appeals of Alabama.
    Aug. 17, 2012.
    Certiorari Denied Oct. 12, 2012 Alabama Supreme Court 1111537.

      Mark J. Romaniuk of Baker & Daniels, LLP, Indianapolis, Indiana; and John C. DeShazo of Laney & Foster, P.C., Birmingham, for appellant.
    Donald W. Lang, Sylacauga, for appel-lee.
   On Application for Rehearing

THOMAS, Judge.

The opinion of June 8, 2012, is withdrawn, and the following is substituted therefor.

Masterbrand Cabinets, Inc. (“Masterb-rand”), appeals from a judgment awarding workers’ compensation benefits to Meleya Gilmore. The Talladega Circuit Court found that Gilmore was permanently and totally disabled as a result of an injury she suffered in a work-related accident, and it awarded benefits accordingly. We affirm.

Procedural Background

On October 12, 2007, Gilmore filed a complaint seeking workers’ compensation benefits, alleging that she had been injured in a January 29, 2003, work-related accident that had rendered her permanently and totally disabled; Masterbrand answered the complaint, denying the material allegations. On October 30, 2007, the trial court entered a pretrial scheduling order (“the scheduling order”), which, among other things, provided discovery deadlines. The parties conducted discovery.

On November 22, 2010, Masterbrand filed a notice to take the deposition of Don Hoffman; on November 24, 2010, Masterb-rand filed a notice to take the deposition of Dean Wennerberg. On November 23, 2010, Gilmore filed a motion to quash Masterbrand’s notice of deposition of Hoffman. She later filed a motion requesting that her motion to quash the deposition of Hoffman also apply to the notice of deposition of Wennerberg. In her motions to quash, she argued that the scheduling order prohibited Masterbrand from taking Hoffman’s and Wennerberg’s depositions (“the Empi depositions”) because, she contended, no further discovery was to be conducted by the parties because the discovery-cutoff date had passed. Additionally, she argued that the deponents were not listed on Masterbrand’s September 23, 2010, witness list (“the original witness list”), that she was unaware of the proposed deponents’ occupations or their involvement in the action, and that her counsel was unable to attend the depositions in person or telephonically on the date noticed in the notices of depositions filed with the trial court. In response to the motions to quash the Empi depositions, Masterb-rand argued that the scheduling order was inapplicable because the Empi depositions were to be used at trial as testimony and not for discovery purposes and, alternatively, that the discovery-cutoff date had not been triggered because, it said, Gilmore had failed to provide it with written notice of maximum medical improvement (“MMI”) as required in the scheduling order. Additionally, Masterbrand stated that Gilmore’s counsel’s unavailability on the scheduled date did not constitute a ground to quash the notices of depositions, and it stated that it would reschedule the depositions at a date and time convenient for Gilmore’s counsel to attend either in person or telephonically. On November 30, 2010, the trial court granted Gilmore’s motions to quash the Empi depositions.

On December 1, 2010, Masterbrand filed a motion to reconsider the trial court’s decision to grant Gilmore’s motions to quash the Empi depositions. On December 1, 2010, Masterbrand filed a “notice of trial deposition of Don Hoffman” and a “notice of trial deposition of Dean Wennerberg.” On December 6, 2010, Masterbrand filed an amended witness list specifically listing both Hoffman and Wen-nerberg; the December 6, 2010, witness list noted that Hoffman and Wennerberg would be testifying by deposition. Mast-erbrand proceeded to take Hoffman’s and Wennerberg’s depositions on December 7, 2010. Although Masterbrand rescheduled the depositions, notified Gilmore’s counsel of the new date, and provided Gilmore’s counsel telephonic access to participate in the depositions, Gilmore’s counsel did not attend or telephonically participate in the depositions based on the facts that the trial court had granted the motions to quash and that the Empi depositions were taken a mere nine days before trial; thus, Gilmore’s counsel did not cross-examine either Hoffman or Wennerberg.

On December 16, 2010, the trial court conducted a trial at which it heard ore tenus testimony. At the start of the trial, Masterbrand attempted to enter the Empi depositions into evidence and the trial court denied that request. After hearing the testimony at trial and considering the evidentiary submissions of the parties, including medical records and the deposition testimony of Dr. Michelle Turnley, Gilmore’s treating physician, the trial court entered a detailed judgment finding that Gilmore was permanently and totally disabled. On May 12, 2011, Masterbrand filed a motion to alter, amend, or vacate the judgment or, in the alternative, for a new trial. In its postjudgment motion, Masterbrand asserted that the trial court had erred in excluding the Empi depositions from evidence at trial and that the trial court’s judgment was unsupported by the evidence. On May 27, 2011, the trial court denied Masterbrand’s postjudgment motion. Masterbrand filed a timely notice of appeal to this court.

Factual Background

At the time of trial, Gilmore was a 46-year-old high-school graduate who had worked as a cashier, as a manager of a feed store, and as an assembly-line worker at Masterbrand. It was undisputed that she suffered a work-related injury while working for Masterbrand on January 29, 2003. Gilmore began experiencing pain in the left side of her body after having worked on the assembly line lifting cabinet doors. She notified Masterbrand of the injury and immediately sought medical treatment. She testified that after the injury the left side of her body around her neck and her left arm hurt and that her supervisor sent her to Masterbrand’s nurse, who, in turn, sent her to the hospital for medical treatment. The initial treating physicians diagnosed a cervical strain and recommended physical therapy. Gilmore returned to work, with some restrictions, on February 3, 2003, and, after completing further physical therapy, she returned to work, without any limitations, on March 17, 2003. Gilmore testified that she was still suffering from pain during this period and was experiencing some numbness in her arm.

Based on Gilmore’s continued complaints of pain, her initial treating physician ordered an MRI. The MRI indicated disk bulges at the C4-C5 and C5-C6 levels as well as a disk herniation at the C6-C7 level. The initial treating physician again placed Gilmore on several work restrictions and referred her to Dr. James White, a neurosurgeon, who opined that Gilmore was a candidate for surgery. Gilmore requested a second opinion and demanded a panel of four physicians from which she chose Dr. Donald H. Slappey, Jr. See § 25-5-77(a), Ala.Code 1975. Dr. Slappey performed a second MRI and determined that there had been no changes since the first MRI. Additionally, he determined that Gilmore was not a surgical candidate, continued treating her for a cervical strain, and recommended physical therapy. Dr. Slappey released her to full work without any limitations in August 2003. Gilmore testified that she continued to experience pain from the time she was injured on January 29, 2003, until her last day of work on October 10, 2003.

On October 10, 2003, Gilmore left her employment at Masterbrand, and she has not been employed since that date. Gilmore testified that, although she had ceased working, she would have “good days and bad days” and that she continued to take the medication Dr. Slappey had prescribed for her. In December 2004, Gilmore again demanded a panel of four physicians from which she chose Dr. Swaid N. Swaid. She complained of consistent arm and neck pain with greater pain on the left side of her body in 2004. Dr. Swaid ordered a third MRI, which revealed mild disk bulges at the C4-C5, C5-C6, and C6-C7 levels. He also noted degenerative changes to Gilmore’s spine. Dr. Swaid opined that Gilmore was not a surgical candidate and referred her to Dr. Michelle Turnley for pain management in February 2005.

Dr. Turnley administered Gilmore trigger-point injections and prescribed her Lortab and other pain medications. On August 11, 2005, Dr. Turnley placed Gilmore at MMI with no impairment rating. She also referred Gilmore for a functional-capacities evaluation (“FCE”), which indicated that Gilmore’s ability to lift was significantly impaired and that her lower-body functions, such as standing and walking, were also occasionally impaired. After receiving the FCE results, Dr. Turnley rescinded her initial impairment rating and assigned Gilmore a 4% impairment rating in September 2005 and ceased treating Gilmore.

In November 2008, Gilmore again sought medical treatment for her pain from Dr. Turnley. Gilmore testified that she had had trouble obtaining medical treatment through Masterbrand from September 2005 until November 2008. She testified that during that period she had continued taking the medications Dr. Turnley had initially prescribed for her because her personal internist, Dr. Renee Davis, had continued to prescribe her the medications during that period. In November 2008, Dr. Turnley diagnosed a persistent cerviealgia neck pain that did not radiate outward or downward. To treat Gilmore’s pain, Dr. Turnley prescribed Lortab, Nuerotin, and Flexeril. Further, in December 2009, she ordered Gilmore a TENS unit to manage the pain. Additionally, Dr. Turnley authorized several epidural blocks in an attempt to manage Gilmore’s pain. Dr. Turnley testified that she ordered a fourth MRI, which indicated ongoing degenerative changes and showed no substantial differences from the previous MRI tests. Dr. Turnley opined that Gilmore was functionally able to engage in employment in a light-work category, based on her medical history. She also stated that, to a reasonable degree of medical certainty, Gilmore’s complaints of dizziness, carpal tunnel syndrome, and arm and hand numbness are unrelated to her January 29, 2003, work-related injury.

Gilmore testified that the medications, the TENS unit, and the epidural blocks had provided some relief but that she suffers from consistent pain at an 8 on a 1-to-10 scale. She further stated that the pain intensifies when she engages in any activity and that she has not worked since she left Masterbrand in 2003 because of the debilitating pain she consistently experiences.

Russ Gurley, Masterbrand’s vocational expert, testified that he had assigned Gilmore a “vocational disability of 40 to 45 percent, based primarily Dr. Turnley’s restrictions.” He further opined that, because of Gilmore’s work history, she had the ability to find a job in the light-work category, such as in a cashier position. However, he further testified that he had not searched Gilmore’s area for available job opportunities in the light-work category.

In contrast, Jo Spradley, Gilmore’s vocational expert, opined that Gilmore is 100% vocationally disabled. Specifically, she testified that, “[cjonsidering the factors of [Gilmore’s] age, education, work history, [Gilmore’s] physical limitations, [Gilmore’s] subjective complaints, and the prescription medications [Gilmore was] taking, [she did not] believe [Gilmore was] capable of performing any of the jobs that are open at this present time.”

Issues

Masterbrand raises two issues on appeal: whether the trial court erred in concluding that the scheduling order barred Masterbrand from taking the Empi depositions and from having them admitted into evidence and whether the evidence produced is sufficient to support the trial court’s judgment finding that Gilmore was permanently and totally disabled.

Standards of Review

‘The trial court has broad and considerable discretion in controlling the discovery process and has the power to manage its affairs ... to ensure the orderly and expeditious disposition of cases.’ Salser v. K.I.W.I., S.A., 591 So.2d 454, 456 (Ala.1991). Therefore, this Court will not interfere with a trial court’s ruling on a discovery matter unless this Court ‘ “determines, based on all the facts that were before the trial court, that the trial court clearly [exceeded] its discretion.” ’ Ex parte Henry, 770 So.2d 76, 80 (Ala.2000) (quoting Ex parte Horton, 711 So.2d 979, 983 (Ala.1998)).”

Ex parte Vulcan Materials Co., 992 So.2d 1252, 1259 (Ala.2008).

“Section 25-5-81(e), Ala.Code 1975, provides the standard of review in workers’ compensation cases:
“ ‘(1) In reviewing the standard of proof set forth herein and other legal issues, review by the Court of Civil Appeals shall be without a presumption of correctness.
“ ‘(2) In reviewing pure findings of fact, the finding of the circuit court shall not be reversed if that finding is supported by substantial evidence.’
“Substantial evidence is ‘ “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” ’ Ex parte Trinity Indus., Inc., 680 So.2d 262, 268 (Ala.1996) (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989)).”

White Tiger Graphics, Inc. v. Clemons, 88 So.3d 908, 910 (Ala.Civ.App.2012).

Discussion

First, Masterbrand contends that the trial court exceeded its discretion in concluding that the scheduling order prohibited it from taking the Empi depositions or entering the Empi depositions into evidence at trial. In support of its argument, Masterbrand contends that the discovery-cutoff date, as designated in the scheduling order, was inapplicable to the Empi depositions because, it says, the Empi depositions were “trial” depositions, allowed pursuant to Rule 32(a)(3), Ala. R. Civ. P., and not “discovery” depositions. Alternatively, it contends that the discovery-cutoff date was never triggered because Gilmore failed to provide written notice that she had reached MMI as required in the scheduling order. We reject those contentions.

As explained above, the trial court granted Gilmore’s motions to quash the Empi depositions. However, Masterbrand filed subsequent notices to take “trial” depositions of Hoffman and Wennerberg and proceeded to travel to Minnesota and take the Empi depositions after the trial court had quashed its original deposition notices. Gilmore’s counsel did not attend the Empi depositions based on the fact that the trial court had previously quashed the deposition notices, and, thus, Gilmore had no opportunity to cross-examine either deponent. In denying Masterbrand’s motion to reconsider the trial court’s decision to grant Gilmore’s motions to quash the Empi depositions and Masterbrand’s request to offer the Empi depositions into the record, the following exchange occurred between the parties and the trial court:

“[Masterbrand’s counsel]: Judge, we do offer [the Empi depositions] into the record.
“THE COURT: Your response, [Gilmore’s counsel]?
“[Gilmore’s counsel]: Judge, these depositions were taken after the time for taking depositions contained in your scheduling order expired. And they were also taken after I filed a motion to quash their deposition notice and, [you], ruled and — that the scheduling order in essence prohibited the taking of further depositions. And — and granted my motion to quash, even after that, they went ahead and went to — is it Minnesota?
“[Masterbrand’s counsel]: Yes.
“[Gilmore’s counsel]; Minnesota. And took these depositions. I have no idea what they say and I have no idea why they went to Minnesota, but, [you], had already quashed their deposition notice and in essence ruled that the time had expired.
“THE COURT: Is that right, [Masterb-rand’s counsel]? Did I do that? That’s a yes or no.
“[Masterbrand’s counsel]: The first deposition notice — the notices were resent. They were specific notices of trial deposition.
“THE COURT: That’s not what I’m asking. Did I issue an order quashing the deposition?
“[Masterbrand’s counsel]: You issued an order to quash deposition—
“THE COURT: And you went ahead?
“[Masterbrand’s counsel]: — of Don Hoffman, yes, sir.
“THE COURT: All right. That’s denied.
“[Masterbrand’s counsel]: Judge, the motion to reconsider points out the fact that [Gilmore’s counsel] pointed to the scheduling order, that, [you], entered your order — I think you pointed to the scheduling order with relying on your decision. I want to point out to the Court that the scheduling order requires [Gilmore] — the date that’s triggered in the scheduling order, starts when [Gilmore] gives written notification to [Masterbrand] that [Gilmore] is at MMI. That’s when the dates in your order are triggered, that’s when the time starts to run. We have never received written notification from [Gilmore’s counsel] that his client, that Ms. Gilmore, is at MMI. Therefore, it would be our position those dates never started to run.
“THE COURT: Overruled.
“[Masterbrand’s counsel]: Further, Judge, the depositions are for trial purposes. These are depositions of people outside the power of the court and they were trial depositions, evidentiary depositions as opposed to discovery depositions. We would ask the court allow these trial depositions, which they were specifically noticed as to come in as Defendant’s Exhibits 1 and 2.
“THE COURT: Overruled.
“[Masterbrand’s counsel]: Judge, I’d like to make an offer of proof on these depositions. I can do it now or I can do it during my case. But, we feel these depositions, if they’re allowed to come into evidence would give relevant background that would be beneficial to the Court regarding some of her use of TENS unit and when supplies were given to her, as well as give the court knowledge and information related to the purpose of the TENS unit and what a TENS unit does. We feel we would be greatly prejudiced if we are not allowed to enter these trial depositions into the record as evidence.
“THE COURT: The way I see it, you prejudiced yourself by not getting up there earlier and doing it.
“[Masterbrand’s counsel]: Judge, if I may, we would again to ask the court to reconsider it’s exclusion of [the Empi depositions]. We feel that those — if those were allowed in, they would show evidence of the TENS unit, the usage of the TENS unit, which would be helpful in the court making determination in this case and we feel we would be greatly prejudiced if these are not allowed to be—
“THE COURT: Would it be prejudiced to [Gilmore’s counsel] if he was not permitted to cross-examine those people that gave those depositions? I mean, would that be any prejudice to him at all?
“[Masterbrand’s counsel]: I can’t speak to that. I will say that I—
“THE COURT: Overruled.”

As evidenced by the exchange, the trial court’s reasoning for excluding the Empi depositions hinged on its determination that the discovery-cutoff date, as stated in the scheduling order, had passed and its implicit finding that Gilmore would have been prejudiced by the introduction of the Empi depositions based on the facts surrounding the initial requests to take the Empi depositions and the subsequent taking of the depositions, the initial notices as to which the trial court had explicitly granted motions to quash.

On appeal, Masterbrand first argues that the scheduling order cannot be used as a basis to quash the notices of deposition or deny its offer of the Empi depositions into evidence at trial because, it says, the Empi depositions are “trial” depositions of an unavailable witness, pursuant to Rule 82, Ala. R. Civ. P., and not “discovery” depositions, and, thus, the discovery-cutoff date is inapplicable. We reject this argument and conclude that there is no distinction between discovery depositions and trial depositions and that the trial court did not exceed its discretion in this case.

In asserting its argument to the trial court and before this court in its brief and at oral argument, Masterbrand relies on numerous federal cases to support its position that the trial court erred in prohibiting the Empi depositions from being taken or admitted into evidence based on the expiration of the discovery-cutoff date listed in the scheduling order. See Charles v. Wade, 665 F.2d 661, 664-65 (5th Cir.1982) (holding that the district court had erred in denying a party leave to depose an unavailable witness — an inmate confined to prison — because the discovery-cutoff date had passed and noting that there was a practical distinction between trial depositions and discovery depositions); Odell v. Burlington N. R.R., 151 F.R.D. 661, 663 (D.Colo.1993) (holding that trial depositions are not discovery depositions); Spangler v. Sears, Roebuck & Co., 138 F.R.D. 122, 124 (S.D.Ind.1991) (concluding that, although the discovery period has closed, “a party may still prepare for trial by taking the depositions of witnesses whose unavailability for trial is anticipated” when allowing the taking of the depositions poses no detriment to either party); Estenfelder v. Gates Corp., 199 F.R.D. 351, 356 (D.Colo.2001) (finding that there is a practical difference between discovery depositions and trial depositions and holding that the discovery-cutoff date did not apply to the taking of trial depositions when plaintiff failed to show that he would be prejudiced by allowing the depositions); and Mathews v. Denver Newspaper Agency LLP, (Civil Action No. 07-cv-02097-WDM-KLM, Jan. 15, 2009) (D.Colo.2009) (not published in F.Supp.2d) (same). However, in contrast, several other federal courts have rejected the notion that there is a distinction, even a practical one, between trial depositions and discovery depositions. Henkel v. XIM Prods., Inc., 138 F.R.D. 556, 557 (D.Minn.1991) (“Neither the Rules of Civil Procedure nor the Rules of Evidence make any distinction between discovery depositions and depositions for use at trial.”); Integra Lifesciences I, Ltd. v. Merck KGaA, 190 F.R.D. 556 (S.D.Cal.1999) (finding no distinction between a discovery deposition and a trial deposition and stating that Charles, 665 F.2d 661, had been decided before several amendments to the Federal Rules of Civil Procedure, specifically the amendment to Rule 16, which provides for scheduling orders dictating the discovery process); United States v. International Bus. Machs. Corp., 90 F.R.D. 377, 381 (S.D.N.Y.1981) (“Rule 32 does not ‘evince a distinction as to admissibility at trial between a deposition taken solely for purposes of discovery and one taken for use at trial....”’ (quoting Rosenthal v. Peoples Cab Co., 26 F.R.D. 116, 117 (W.D.Pa.1960))); and Chrysler Int’l Corp. v. Chemaly, 280 F.3d 1358, 1362 (11th Cir.2002) (declining to extend Charles, 665 F.2d 661, to a situation where the party to be deposed was a “free” individual and the party seeking the deposition had “unduly delayed in undertaking to obtain” the deposition). Thus, the federal caselaw regarding this issue is scant and conflicting.

No Alabama court has directly addressed whether the expiration of a discovery-cutoff date in a scheduling order can preclude a party from taking the deposition of a party outside the court’s subpoena power. However, in Ex parte Coots, 527 So.2d 1292 (Ala.1988), the Alabama Supreme Court noted that, like the Federal Rules of Civil Procedure, the Alabama Rules of Civil Procedure do not distinguish between discovery depositions and trial depositions.

In Ex parte Coots, our supreme court issued a writ of mandamus directing the trial court to allow a doctor’s deposition, which had been taken during the discovery period, to be admitted into evidence pursuant to Rule 32(a)(3)(D), Ala. R. Civ. P. Id. at 1296. The trial court had excluded the deposition at trial because the defendant had argued that he would be prejudiced due to the fact that he was deprived of his right to fully cross-examine the doctor because he had not conducted discovery regarding the doctor’s qualifications and opinions and because the plaintiffs notice of deposition had suggested that the deposition was only a discovery deposition and not an “evidentiary” deposition. Id. at 1295. The supreme court determined that the trial court had erred in excluding the doctor’s deposition because the notice of the deposition stated that the doctor’s deposition was to be used for “ ‘the purpose of discovery or for use as evidence in this cause, or for both purposes,’ ” and the defendant could have conducted other forms of discovery to learn of the doctor’s qualifications and opinions in order to effectively cross-examine him in the deposition. Id. at 1294. More importantly, however, in reaching its conclusion, our supreme court noted that the Alabama Rules of Civil Procedure do not differentiate between discovery depositions and “evidentiary” depositions and cited with approval several federal-court opinions that had also rejected the argument that a distinction existed between discovery depositions and “evidentiary” depositions. Id. at 1294-95.

Thus, Ex parte Coots does not provide direct guidance on the issue presented in this appeal — whether a discovery-cutoff date can be used as the a basis to exclude a deposition, otherwise allowed pursuant to Rule 32(a), from evidence at trial; however, it provides relevant and binding authority for the proposition that the Alabama Rules of Evidence do not distinguish between discovery depositions and trial depositions. See § 12-3-16, Ala.Code 1975.

After considering numerous federal authorities, our supreme court’s decision in Ex parte Coots, and the facts of this case, we cannot conclude that the trial court exceeded its discretion by granting Gilmore’s motions to quash the Empi depositions and in excluding the Empi depositions from evidence at trial based on the expiration of the discovery-cutoff date listed in the scheduling order.

At oral argument before this court, Masterbrand asserted that, based on the previously cited federal authorities, trial courts should employ a balancing test to weigh the possible prejudice of taking the deposition after the expiration of the discovery-cutoff date against the need for the deposition. Masterbrand contends that, in this case, the trial court erred because, it says, the trial court did not balance the possible prejudice versus the need for the Empi depositions, and, instead, relied solely on the expiration of the discovery-cutoff date in the scheduling order in deciding to quash the deposition notices and to deny its request to enter the Empi depositions into evidence, although the Empi depositions met the requirements of Rule 32(a)(3)(B), Ala. R. Civ. P. We disagree.

Initially, we note that the “[t]he trial court has broad and considerable discretion in controlling the discovery process and has the power to manage its affairs ... to ensure the orderly and expeditious disposition of cases.” Salser v. K.I.W.I., S.A., 591 So.2d 454, 456 (Ala.1991). Thus, the trial court had the ability to allow some variation from the dates listed in the scheduling order if it determined that Masterbrand had had good cause for waiting until November 22 and November 24, 2010, respectively 23 and 21 days before the scheduled December 16, 2010, trial date, to file its notices of depositions notifying the court that it intended take additional “trial” depositions. In this case, it was undisputed that Masterbrand had failed to list either Hoffman or Wenner-berg as witnesses on the original witness list it had filed with the trial court. The record also indicates that the trial date was set after the parties had notified the trial court in writing that each party was prepared for trial, as is customary practice in workers’ compensation cases in Alabama. Most importantly, though, the record indicates that the trial court implicitly concluded that Gilmore would have been prejudiced had Masterbrand been allowed to take the Empi depositions or to enter the Empi depositions into evidence. This implicit finding distinguishes this case from the federal authorities that Masterb-rand relies upon on appeal. See Charles v. Wade, 665 F.2d at 665 (“permitting the deposition to be taken would not have prejudiced appellees in any way”); Odell v. Burlington N. R.R., 151 F.R.D. at 663; Spangler v. Sears, Roebuck & Co., 138 F.R.D. at 124-25; Estenfelder v. Gates Corp., 199 F.R.D. at 356; and Mathews v. Denver Newspaper Agency LLP, supra. Thus, based on our review of the record and the trial court’s implicit finding regarding prejudice, we cannot conclude that the trial court exceeded its discretion.

Next, Masterbrand argues that the Empi depositions were not prohibited by the scheduling order because, it says, the discovery-cutoff date had not run on December 7, 2010, the date it took the Empi depositions, because Gilmore had never provided it with written notification that she had attained MMI. This argument lacks merit.

The October 30, 2007, scheduling order provided, in pertinent part, as follows: “That [Masterbrand] shall complete all discovery within 120 days from the date that counsel for [Gilmore] provides written notification to counsel for [Masterbrand] that [Gilmore] has reached MMI, or the date of this Order, whichever event is last to occur.” In this case, Gilmore had been placed at MMI on August 11, 2005 — almost two and a half years before the commencement of the action and the issuance of the scheduling order. The trial court could have reasonably concluded that Masterbrand had constructive notice that Gilmore had reached MMI because on September 15, 2009, Dr. Turnley testified by deposition that Gilmore had been placed at MMI on August 11, 2005, and the parties stipulated at trial that the date of MMI was the date stated in Dr. Turnley’s deposition and records. Further, approximately 15 months passed between the date of Dr. Turnley’s deposition and the date Masterbrand sent its notice that it intended to take the Empi depositions. Thus, we reject Masterbrand’s argument that the discovery deadline had not been triggered on December 7, 2010, a mere nine days before the trial in this case.

Accordingly, because “[t]he Alabama Rules of Civil Procedure vest broad discretionary power in the trial court to control the discovery process and to prevent its abuse,” Ex parte Nissei Sangyo America, Ltd., 577 So.2d 912, 913 (Ala.1991), we conclude that the trial court did not exceed its discretion in quashing the notices of depositions and in denying Masterbrand’s request to admit into evidence the Empi depositions because the deposition notices were filed less than a month before the scheduled trial date, because the deponents were not listed on Masterbrand’s original witness list, because Gilmore’s counsel did not have an opportunity to cross-examine the deponents, because the trial court implicitly determined that Gilmore would have been prejudiced by allowing the Empi depositions into evidence, and because the discovery deadline had expired. To hold otherwise would allow litigants to circumvent established Rule 16, Ala. R. Civ. P., discovery deadlines without leave of the court based merely on the nomenclature of a motion, which our supreme court has rejected. Thus, we affirm the trial court’s actions insofar as it granted Gilmore’s motions to quash the Empi depositions and denied Masterbrand’s request to enter the Empi depositions into evidence.

Finally, Masterbrand argues that the trial court erred in finding that Gilmore is permanently and totally disabled. Specifically, Masterbrand asserts that the medical evidence, the vocational evidence, and the testimony presented at trial do not support the trial court’s judgment. In asserting its argument, Masterbrand contends that the only evidence presented to the trial court supporting its finding was Gilmore’s self-serving testimony. Mast-erbrand also highlights Dr. Turnley’s testimony and focuses on alleged deficiencies in Spradley’s vocational opinion.

In reviewing this argument,

“[ o]ur review is restricted to a determination of whether the trial court’s factual findings are supported by substantial evidence. Ala.Code 1975, § 25-5-81(e)(2). This statutorily mandated scope of review does not permit this court to reverse the trial court’s judgment based on a particular factual finding on the ground that substantial evidence supports a contrary factual finding; rather, it permits this court to reverse the trial court’s judgment only if its factual finding is not supported by substantial evidence. See Ex parte M & D Mech. Contractors, Inc., 725 So.2d 292 (Ala.1998). A trial court’s findings of fact on conflicting evidence are conclusive if they are supported by substantial evidence. Edwards v. Jesse Stutts, Inc., 655 So.2d 1012 (Ala.Civ.App.1995).”

Landers v. Lowe’s Home Ctrs., Inc., 14 So.3d 144, 151 (Ala.Civ.App.2007) (opinion on original submission).

Additionally, in regard to determining whether an employee is permanently and totally disabled, this court has stated:

“ ‘ “The test for total and permanent disability is the inability to perform one’s trade and the inability to find gainful employment.” Fuqua v. City of Fairhope, 628 So.2d 758, 759 (Ala.Civ.App.1993). See also Liberty Trousers v. King, 627 So.2d 422, 424 (Ala.Civ.App.1993). A “permanent total disability” is defined as including “any physical injury or mental impairment resulting from an accident, which injury or impairment permanently and totally incapacitates the employee from working at and being retrained for gainful employment.” § 25-5-57(a)(4)d., Ala.Code 1975; Russell v. Beech Aerospace Services, Inc., 598 So.2d 991, 992 (Ala.Civ.App.1992).’
“Alabama Catfish, Inc. v. James, 669 So.2d 917, 918 (Ala.Civ.App.1995).”

CVS Corp. v. Smith, 981 So.2d 1128, 1136 (Ala.Civ.App.2007).

The record reveals the following relevant facts. Gilmore testified to debilitating pain in the left side of her body, specifically in her neck, shoulder, and back, consistently rating the pain as an 8 on a scale of 1 to 10. She testified that the pain is constant, even after taking her prescribed medications, and that her pain interferes with her ability to sleep. Gilmore stated that she had lost the ability to dress herself and to fix her hair on a daily basis, as well as the ability to perform numerous other activities, such as driving. Gilmore further stated that the pain interfered with her ability to concentrate and that her “whole lifestyle ha[d] changed because of th[e] injury.”

Dr. Turnley testified that she found Gilmore’s subjective complaints of pain to be credible and that having a pain level of eight can be debilitating and can interfere with one’s ability to think and concentrate. However, she opined that, based on Gilmore’s medical history, Gilmore most likely experienced pain at a five or a six level. Dr. Turnley further opined that Gilmore was able to engage in gainful employment and that, she believed, Gilmore was functionally able to join the workforce in a light-duty-work-eategory job. Gilmore’s FCE indicated that Gilmore had trouble consistently lifting. Dr. Turnley testified that there were objective medical findings to substantiate Gilmore’s complaints of pain. Dr. Turnley further testified that she would defer to a vocational expert regarding Gilmore’s ability to find gainful employment in the light-work category.

Both Spradley and Gurley, although they assigned Gilmore differing impairment ratings, testified that they found Gilmore and her complaints of pain to be credible. Spradley testified that Gilmore was 100% vocationally disabled, and Spradley opined that Gilmore’s pain resulted from her shoulder and neck injury. In contrast, Gurley assigned Gilmore a 40-45% disability rating; however, he testified that a pain level of 8 on a l-to-10 scale would be debilitating.

In its judgment, the trial court noted that it “was impressed with [Gilmore]’s candor and genuineness,” found that Gilmore’s “testimony [was] credible,” and stated that her “demeanor and appearance in open court [was] consistent with her complaints of chronic, debilitating pain.” The trial court further found that Gilmore “suffers from chronic pain which is severe, excruciating, and debilitating and that pain within itself precludes [Gilmore] from engaging in any reasonable, gainful employment” and that “the pain arises as a result of [Gilmore]’s neck and shoulder injury and that her neck and shoulder injuries are the proximate result of her on-the-job accident of January 29, 2003.”

Because a worker can be determined to be totally and permanently disabled if his or her ability to find and engage in gainful employment is so limited that he or she cannot expect to consistently work due to pain and physical limitations resulting from a work-related injury and because, in this case, Gilmore testified of chronic pain at a level eight and vocational and medical experts testified that consistent pain in itself can be debilitating, we cannot conclude that the trial court erred in finding that Gilmore was totally and permanently disabled. See Stebbins Eng’g & Mfg. Co. v. White, 457 So.2d 425, 427 (Ala.Civ.App.1984); and Caseco, LLC v. Dingman, 65 So.3d 909, 925-26 (Ala.Civ.App.2010) (holding that there was sufficient evidence to support the trial court’s finding of an employee’s permanent total disability, although the evidence was conflicting, based on the vocational testimony, the fact that the employee’s chronic pain rated a 9, on a l-to-10 scale, and the side effects of the pain medications).

In its appellate brief, Masterbrand asserts several additional, more specific arguments regarding its challenge to the sufficiency of the evidence. We will briefly consider those arguments.

First, Masterbrand contends that Gilmore’s pain does not disable her body as a whole and, therefore, that the evidence presented fails to support a finding of permanent total disability. In an attempt to bolster its argument, Masterbrand cites Norandal U.S.A., Inc. v. Graben, [Ms. 2080679, March 12, 2010] - So.3d -, - (Ala.Civ.App.2009), and G.UB.MK Constructors v. Davis, 78 So.3d 998, 1000 (Ala.Civ.App.2011). Both cases deal with injuries to a scheduled member and the “pain exception.” In this case, Gilmore’s work-related injury did not involve a scheduled member, and, thus, the holdings in Graben and Davis are inapplicable. See Ala.Code, § 25-5-57(a)(3); Grace v. Standard Furniture Mfg. Co., 54 So.3d 909, 913 (Ala.Civ.App.2010) (stating that injuries to the employee’s neck and shoulder were injuries to nonscheduled members of the body); and Millry Mill Co. v. Manuel, 999 So.2d 508, 520 (Ala.Civ.App.2008) (noting that the trial court had found the employee to be “permanently and totally disabled as a result of the injury to his neck, a body part not listed in the schedule”).

Next, Masterbrand contends that the trial court’s judgment is unsupported by substantial evidence because, it claims, Gilmore’s unrelated medical conditions are a contributing cause of her limitations. Specifically, it argues that her carpal tunnel syndrome, dizziness, and arm and hand numbness limited her ability to perform on the FCE and her ability to be gainfully employed. However, the trial court considered and rejected this argument in its judgment. Specifically, the trial court stated “[t]hat [Gilmore] suffers from other conditions besides her neck and shoulder injury, including carpal tunnel syndrome. The court finds no credible evidence that the carpal tunnel syndrome is job related but the Court also finds that [Gilmore’s] 100% disability results from her neck and shoulder injuries without taking into account any of her other medical conditions.” Thus, the trial court concluded that Gilmore’s debilitating pain was not the result of the unrelated medical conditions. Viewing “the facts in the light most favorable to the findings of the trial court,” Ex parte Professional Bus. Owners Ass’n Workers’ Comp. Fund, 867 So.2d 1099, 1102 (Ala.2003), we reject Masterbrand’s argument that the trial court erred by finding that Gilmore’s unrelated medical conditions did not contribute to her disability. See Water Bros. Contractors, Inc. v. Wimberley, 20 So.3d 125, 132-33 (Ala.Civ.App.2009) (holding that the trial court did not erroneously rely on the employee’s unrelated medical conditions when awarding workers’ compensation benefits because the trial court’s findings of fact failed to mention the employee’s unrelated medical conditions).

Finally, Masterbrand argues, without citation to any authority, that the trial court inappropriately relied upon the alleged treatment undertaken by Gilmore’s personal internist, Dr. Davis. We find that the record does not support this argument. As Masterbrand highlights in its appellate brief, Dr. Davis’s medical records were not introduced into evidence at trial and Dr. Davis did not testify at trial; thus, the trial court could not have considered any of Dr. Davis’s treatment because it had no evidence of her treatment to consider. In its judgment, the trial court stated:

“[Masterbrand] during the trial of this case made much ado trying to show that [Gilmore] went approximately two (2) years without any treatment from Dr. Michelle Turnley. [Gilmore] testified that during that period of time the workers’ compensation carrier would not authorize her treatment with Dr. Michelle Turnley and that she was still in need of her medication and [Gilmore] went to her family practitioner, Dr. Renee Davis, to procure her prescriptions for pain. The Court also finds this testimony credible and believable.”

The trial court mentioned Dr. Davis, but it did not consider her alleged treatment of Gilmore. Instead, the trial court’s statement indicates that it mentioned Dr. Davis in connection only with its credibility assessment of Gilmore and her complaints of debilitating pain given that there was a significant “gap” in her pain-management treatment with Dr. Turnley from 2005 until 2008. Masterbrand presented evidence contradicting Gilmore’s testimony that she had repeatedly requested an appointment with a treating physician during the “gap” period; however, the trial court rejected Masterbrand’s evidence on the issue and expressly found in favor of Gilmore, as noted above.

“ ‘[I]t ⅛ well established that the trial court is in the best position to observe the demeanor and credibility of the employee and other witnesses in a workers’ compensation case.’ Mayfield Trucking Co. [v. Napier ], 724 So.2d [22,] 25 [ (Ala.Civ.App.1998) ]. ‘The resolution of conflicting evidence is within the exclusive province of the trial court, and this court is forbidden to invade that province upon review.’ Id.”

Clear Creek Transp., Inc. v. Peebles, 911 So.2d 1059, 1063 (Ala.Civ.App.2004). Thus, we cannot conclude that the trial court inappropriately relied on Dr. Davis’s alleged treatment of Gilmore in making its decision to award Gilmore workers’ compensation benefits for permanent total disability.

Based on our review of the record, we cannot conclude that the trial court’s finding that Gilmore was totally and permanently disabled is unsupported by substantial evidence.

Conclusion

For the reasons discussed above, we affirm the trial court’s judgment.

APPLICATION OVERRULED; OPINION OF JUNE 8, 2012, WITHDRAWN; OPINION SUBSTITUTED; AFFIRMED.

THOMPSON, P.J., and PITTMAN, J., concur.

BRYAN and MOORE, JJ., concur in the result, without writings.

      . The trial court orally denied this motion at trial.

      . On rehearing, Masterbrand argues that this court erred in determining that the "discovery deadline had expired” because, it says, the trial court's discovery period was "open” pursuant to the trial court’s grant of Gilmore’s September 23, 2010, motion to allow additional discovery. This is the first time that Masterbrand has asserted this specific argument; the record indicates that Masterbrand failed to assert this argument before the trial court either at trial or in its postjudgment motion. Masterbrand also failed to assert this argument in its initial appellate brief; instead, it previously argued only that the discovery period was open because Gilmore had failed to provide it with written notice of MMI as required in the scheduling order, an argument that this court fully considered on original submission. " '[I]t is a well-settled rule that an appellate court’s review is limited to only those issues that were raised before the trial court. Issues raised for the first time on appeal cannot be considered.’ ” Neal v. Neal, 856 So.2d 766, 778 (Ala.2002) (quoting Beavers v. County of Walker, 645 So.2d 1365, 1372 (Ala.1994)). Thus, because Masterbrand raises this argument for the first time in its application for a rehearing, we will not consider this issue on appeal. See Millar v. Wayne’s Pest Control, 804 So.2d 213, 217 (Ala.Civ.App.2001) (declining to consider an argument that appellant had failed to raise before the trial court and had asserted for the first time on application for a rehearing).

      . As is well established, federal caselaw interpreting the Federal Rules of Civil Procedure may be persuasive authority in analyzing the Alabama Rules of Civil Procedure. First Baptist Church of Citronelle v. Citronelle-Mobile Gathering, Inc., 409 So.2d 727, 729 (Ala.1981). However, federal authorities are not binding on an appellate court interpreting the Alabama Rules of Civil Procedure. Id.

      . We further note that in the present case the underlying action concerned a workers’ compensation claim and that Ala.Code 1975, § 25-5-81, provides specific limitations on discovery in workers’ compensation cases in addition to the limitations on discovery found in the Alabama Rules of Civil Procedure. Ala. Code 1975, § 25-5-81 (“It is the intent of this section that limited discovery shall be available.”).


source: Caselaw Access Project

author: BURKE, Judge.

license: Public Domain

text:
    Myron Dontrell CLANCY v. STATE of Alabama.
    CR-10-1228.
    Court of Criminal Appeals of Alabama.
    March 23, 2012.
    Rehearing Denied May 25, 2012.
    Certiorari Denied Oct. 12, 2012 Aabama Supreme Court 1111176.

      Laura Kristen Segers, Tuscaloosa, for appellant.
    Luther Strange, atty. gen., and Jack W. Willis, asst. atty. gen., for appellee.
   BURKE, Judge.

Myron Dontrell Clancy was convicted of murder, a violation of § 13A-6-2, Ala.Code 1975, and was sentenced to 40 years’ imprisonment. This appeal follows.

The relevant facts for the purposes of this appeal are procedural in nature. Clancy’s murder charge originated in the Juvenile Court of Tuscaloosa County because he was 15 years old at the time of the charged conduct. On March 11, 2008, the State filed a motion in the juvenile court asking it to transfer Clancy’s case to the circuit court where Clancy could be prosecuted as an adult pursuant to § 12-15-34, Ala.Code 1975. (C. 13.) Two days later, Clancy’s mother filed a petition pursuant to § 12-15-90, Ala.Code 1975, seeking to have Clancy involuntarily committed to a mental-health facility on the basis that he was mentally ill and consequently posed “a real and present threat of substantial harm to himself or to others.” (C. 95.) On March 14, 2008, the juvenile court held a hearing on both the motion to transfer and the petition for involuntary commitment. The juvenile court granted the State’s motion to transfer Clancy’s case to the circuit court and dismissed the petition to have him involuntarily committed. (C. 16.) Clancy filed a separate appeal from each of the rulings.

Clancy’s appeal from the dismissal of the petition for involuntary commitment was filed in this Court; however, it was transferred by consent of the parties to the Alabama Court of Civil Appeals on September 29, 2008. The case was subsequently sent back to this Court where, on July 30, 2009, it was transferred by order of the Alabama Supreme Court to the Alabama Supreme Court pursuant to § 12-3-14, Ala.Code 1975. (C. 96.)

Clancy also appealed the transfer order to this Court. On October 8, 2008, this Court issued an order staying that appeal pending the disposition of the appeal of the involuntary commitment by the Alabama Court of Civil Appeals. (C. 59.) However, on September 25, 2009, this Court affirmed the juvenile court’s transfer order. See Clancy v. State (CR-07-1161, September 25, 2009), 57 So.3d 200 (Ala.Crim.App.2009) (table). We note that as of the date this case was argued, the Alabama Supreme Court had yet to issue a decision on the appeal of the dismissal of Clancy’s petition for involuntary commitment.

Clancy makes two arguments on appeal. First, he contends that the appeal of the dismissal of his petition for involuntary commitment constitutes an appeal of the transfer order. Therefore, he argues, the fact that the involuntary-commitment appeal was pending prevented the circuit court from obtaining jurisdiction over him. Second, Clancy points out that this Court issued an order staying all proceedings regarding the transfer order pending the disposition of the involuntary-commitment appeal. He contends that this Court’s af-firmance of the transfer order is void because it was issued in violation of the stay.

I.

It is undisputed that a circuit court does not have jurisdiction to adjudicate the merits of a case while an appeal of a transfer order from a juvenile court is pending in an appellate court. Ex parte Webb, 843 So.2d 127, 130-31 (Ala.2002) (holding that “the circuit court did not have jurisdiction to adjudicate the merits of the indictment against Webb while his appeal of the transfer order was pending before the appellate courts”); see also Rule 28(F), Ala. R. Juv. P. (“The filing of an appeal from an order transferring a child to the adult court for criminal prosecution shall stay the proceedings in the circuit court.”). However, the appeal of Clancy’s transfer order became final on October 14, 2009, when this Court issued a certificate of judgment. Therefore, no appeal was pending when Clancy’s trial began on January 24, 2011.

Although Clancy does not dispute that the appeal of the transfer order was final, he contends that the involuntary-commitment appeal is, in effect, an appeal of the transfer order. (Clancy’s brief, at 8.) Clancy points out that § 12-15-34(b), Ala. Code 1975, states that a child can be transferred from juvenile court to circuit court only if the court finds that “there are no reasonable grounds to believe that the child is committable to an institution or agency for the mentally retarded or mentally ill” According to Clancy, if the Alabama Supreme Court were to reverse the juvenile court’s ruling on his petition for involuntary commitment it would mean that reasonable grounds do exist as to whether he is “committable to an institution or agency for the mentally retarded or mentally ill.” Thus, according to Clancy, the juvenile court would have necessarily erred by transferring him to the circuit court.

As noted, the Alabama Supreme Court has yet to issue a ruling on Clancy’s involuntary-commitment appeal. While the disposition of that case may have an effect on whether the circuit court had jurisdiction to try Clancy for murder, we are not called on to determine that issue in this particular instance.

Clancy’s argument on appeal hinges on his contention that the involuntary-commitment appeal is also an appeal of the transfer order. He asserts that, since both the transfer proceeding and the involuntary-commitment proceeding concern the same issues regarding his mental health, a successful appellate challenge to the ruling on the involuntary-commitment petition would invalidate the transfer order. Therefore, according to Clancy, an appeal of the ruling on the involuntary-commitment petition is equivalent to an appeal of the transfer order, and, based on the reasoning of Ex parte Webb, supra, the circuit court did not have jurisdiction to try and convict him.

We agree with Clancy’s assertion that a determination of whether a child is committable is a prerequisite to. a valid transfer order and we also agree that an appeal of a transfer order stays the proceedings and prevents a circuit court from obtaining jurisdiction over the child. However, Clancy has failed to cite any authority supporting his contention that an appeal of a ruling on an involuntary-commitment petition is equivalent to an appeal of a transfer order that would consequently preclude the circuit court from obtaining jurisdiction of a transferred case.

“Rule 28(a)(10), Ala. R.App. P., requires that an argument contain ‘the contentions of the appellant/petitioner with respect to the issues presented, and the reasons therefor, with citations to the cases, statutes, other authorities, and parts of the record relied on.’ ‘Recitation of allegations without citation to any legal authority and -without adequate recitation of the facts relied upon has been deemed a waiver of the arguments listed.’ Hamm v. State, 913 So.2d 460, 486 (Ala.Crim.App.2002). ‘Authority supporting only “general propositions of law” does not constitute a sufficient argument for reversal.’ Beachcroft Props., LLP v. City of Alabaster, 901 So.2d 703, 708 (Ala.2004), quoting Geisenhoff v. Geisenhoff, 693 So.2d 489, 491 (Ala.Civ.App.1997).”

Egbuonu v. State, 993 So.2d 35, 38-39 (Ala.Crim.App.2007).

Additionally, we note that the motion to transfer and the involuntary-commitment petition are separate and distinct proceedings. Although both proceedings require a juvenile court to determine whether a child is committable to an institution for the mentally ill, a transfer hearing arises out of a delinquency proceeding, which is criminal in nature, while an involuntary-commitment hearing is a civil matter that is not necessarily tied to a delinquency proceeding. They are also codified in separate articles of the Alabama Juvenile Justice Act: at all relevant times, transfer hearings were included in Article 2 entitled “Delinquency and Children in Need of Supervision,” while involuntary-commitment proceedings were included in Article 4 entitled “Involuntary Commitment of Minors or Children.” See §§ 12-15-34 and 12-15-90, Ala.Code 1975 (see note 1 supra). This distinction is further reinforced by Rule 28(A)(2), Ala. R. Juv. P., which states that appeals from a final order of a juvenile court in matters other than “proceedings in which a child is adjudicated delinquent, proceedings to revoke probation or aftercare in delinquency cases, and proceedings in which a motion seeking an order to transfer a child to the adult court for criminal prosecution is either granted or denied” are to be filed in the Court of Civil Appeals. Accordingly, we cannot say that an appeal of a ruling on an involuntary-commitment petition constitutes an appeal of a transfer order.

Moreover, the Alabama Supreme Court has held:

“The general rule is that a court may not interfere with the enforcement of criminal laws through a civil action; instead, the party aggrieved by such enforcement shall make his case in the prosecution of the criminal action:
“ ‘It is a plain proposition of law that equity will not exert its powers merely to enjoin criminal or quasi criminal prosecutions, “though the consequences to the complainant of allowing the prosecutions to proceed may be ever so grievous and irreparable.” Brown v. Birmingham, 140 Ala. [590,] 600, 37 South. [173,] 174 [(1904)]. “His remedy at law is plain, adequate, and complete by way of establishing and having his innocence adjudged in the criminal court.” Id.’
“Board of Comm’rs of Mobile v. Orr, 181 Ala. 308, 318, 61 So. 920, 923 (1913). See also 22A Am.Jur.2d Declaratory Judgments § 57 (2003)(‘A declaratory judgment will generally not be granted where its only effect would be to decide matters which properly should be decided in a criminal action.’).”

Tyson v. Macon County Greyhound Park, Inc., 43 So.3d 587, 589 (Ala.2010). In the present case, the issue of Clancy’s mental health and his potential need for commitment was addressed by the juvenile court at the transfer hearing, and that court’s decision was subsequently affirmed by this Court on appeal. Clancy could have pursued the issue further by petitioning the Alabama Supreme Court for a writ of cer-tiorari, but he failed to do so. The record clearly demonstrates that, at the time of Clancy’s trial in the circuit court, the appeal of his transfer hearing was final. Accordingly, under Ex parte Webb, 843 So.2d 127 (Ala.2002), as well as Rule 28(F), Ala. R. Juv. P., the circuit court had jurisdiction to try and convict Clancy of murder.

II.

Clancy also argues that this Court’s decision in Clancy v. State (CR-07-1161, September 25, 2009), 57 So.3d 200 (Ala.Crim.App.2009) (table), affirming the juvenile court’s transfer order, is void because, he argues, it violated the stay issued on October 8, 2008. However, by affirming the transfer order on September 25, 2009, this Court implicitly lifted the stay it had issued on October 8, 2008. Therefore, the decision affirming the transfer order was and continues to be valid. Accordingly, the circuit court had jurisdiction to try and convict Clancy.

For the foregoing reasons, the judgment of the circuit court is due to be affirmed.

AFFIRMED.

WINDOM, P.J., and JOINER, J., concur. WELCH and KELLUM, JJ., concur in the result.

      . The Alabama Juvenile Justice Act, § 12 — 15— 1 et seq., Ala.Code 1975, including §§ 12-15-34 and 12-15-90, was amended and the Code sections renumbered effective January 1, 2009. Because the instant offense occurred on March 8, 2008, we will refer to the statutes in effect prior to the amendments. See Minnifield. v. State, 941 So.2d 1000, 1001 (Ala.Crim.App.2005) ("It is well settled that the law in effect at the time of the commission of the offense controls the prosecution.”).

      . The record is unclear as to when or why the case was transferred back to this Court from the Court of Civil Appeals. However, the order from the Alabama Supreme Court stated that the case was to be transferred "from the Court of Criminal Appeals to the Supreme Court of Alabama for consideration.” (C. 96.)

       Note from the reporter of decisions: On August 15, 2012, the Alabama Supreme Court transferred the appeal of the dismissal of the petition for involuntary commitment to the Alabama Court of Civil Appeals. That court, on September 21, 2012, dismissed the appeal. 106 So.3d 893 (Ala.Civ.App.2012).


author: LaROSE, Judge.

text:
    Eduardo VAZQUEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-2641.
    District Court of Appeal of Florida, Second District.
    Jan. 7, 2011.
   LaROSE, Judge.

Eduardo Vazquez appeals an order striking his motion for postconviction relief because it contained an insufficient oath. See Fla. R.Crim. P. 3.850(e); Scott v. State, 464 So.2d 1171, 1172 (Fla.1985); Welch v. State, 946 So.2d 649, 650 (Fla. 2d DCA 2007). We dismiss the appeal for lack of jurisdiction.

The postconviction court struck Mr. Vazquez’s motion without prejudice to refile a properly sworn motion within sixty days. This is not a final order. See Havens v. State, 27 So.3d 803, 804 (Fla. 2d DCA 2010); Christner v. State, 984 So.2d 561, 562-63 (Fla. 2d DCA 2008). However, the order advised Mr. Vazquez that he must appeal within thirty days. Mr. Vazquez followed this directive and timely filed notice of appeal. To our knowledge, he did not amend his rule 3.850 motion.

In Christner, 984 So.2d at 562, we explained that a postconviction court should advise a claimant, in circumstances involving a nonfinal order such as the one present here, that the order is “not appealable at this time.” Accordingly, on remand, the postconviction court should amend its order to so provide and should also give Mr. Vazquez sixty days in which to file a sufficient postconviction motion if he is able to do so. See Scott, 464 So.2d at 1172; Welch, 946 So.2d at 650; see also Herron v. State, 34 So.3d 206 (Fla. 2d DCA 2010).

Dismissed and remanded.

KELLY and KHOUZAM, JJ., Concur.


author: GRIFFIN, J.

text:
    DEPARTMENT OF CHILDREN AND FAMILIES, et al., Petitioner, v. P.F., Mother of K.A., a Child, Respondent.
    No. 5D12-4296.
    District Court of Appeal of Florida, Fifth District.
    Feb. 18, 2012.

      Beth E. Antrim, Department of Children and Families, Children’s Legal Services, Inverness, and Deborah A. Schroth, Department of Children & Families, Orange Park, for Petitioner.
    E. Juan Lynum, of Lynum & Associates, PLLC, for Petitioner, J.A., Father.
    Christopher S. Mulligan, Brooksville, for Respondent, P.F., Mother.
    Wendie Michelle Cooper, Guardian ad Litem Program, Tavares, for Guardian ad Litem.
   GRIFFIN, J.

Petitioners, Department of Children and Families [“DCF”] and J.A., the father, seek certiorari review of the trial court’s order on the October 1 and 5, 2012 Keeping Children Safe Act [“KCSA”] hearing that granted the maternal grandfather access to the child, K.A. DCF is correct that the statutory procedure was not followed. Accordingly, we grant the petition, quash the order of the trial court, and remand for a new hearing.

In July 2012, the child was removed from her mother and placed in protective custody. It was alleged that the mother and her paramour used drugs in front of the child. The paramour died in front of the child from a drug overdose. At the shelter hearing, the child was placed with a maternal aunt, and the mother was granted supervised visitation. The father was granted unsupervised visits, and the maternal grandfather was granted supervised visits over DCF’s objection. D.K., the maternal grandfather’s long-term companion, was allowed to supervise the mother’s visitation.

At the August 20, 2012, disposition hearing, D.K. requested a homestudy and custody of the child. DCF advised that a homestudy would be denied because of the maternal grandfather’s prior child abuse registry history. The comprehensive behavioral health assessment [“CBHA”] filed with the court noted that, one year earlier, there was a verified finding of sexual abuse of the child by the maternal grandfather.

At a September 10, 2012 status hearing, DCF advised that the grandfather’s record reflected a criminal charge that subjected him to the KCSA even though the charge was subsequently dismissed. In the announcement of no information, the state attorney had explained:

The evidence available is insufficient to convince a jury beyond a reasonable doubt. Because of the child’s young age she is not likely to be considered a competent witness. Further the defendant denies any improper conduct and persons who were reported to have potential William’s Rule evidence deny any misconduct by the defendant. A conviction is not reasonably likely and thus the case must be declined....

Shortly thereafter, the aunt reported that she could no longer care for the child. On September 21, 2012, an emergency motion to modify placement from the aunt to foster care was filed and a hearing was held the same day. The court ordered a non-relative placement with D.K. The court ordered the grandfather to leave the residence until a KCSA hearing could be held. DCF and the Guardian Ad Litem [“GAL”] objected to the placement because there was not an approved home-study. The grandfather was permitted to have supervised visitation.

A KCSA hearing was held October 1 and 5, 2012. The court noted that “a rebuttable presumption of detriment to a child is created when ... a court of competent jurisdiction has found probable cause exists that a parent or caregiver has sexually abused a child as defined in 39.01.” The court correctly explained that in a KCSA hearing pursuant to section 39.0139, Florida Statutes, a person seeking contact must present clear and convincing evidence that the safety, wellbeing, physical, mental, or emotional health of the child is not endangered.

The hearing began with DCF calling the child protective investigator [“CPI”], who investigated the allegations of sexual abuse by the grandfather. The CPI testified that the child disclosed that the grandfather touched her vaginal area. The child was taken for a Child Protection Team [“CPT”] interview and medical exam, at which the child disclosed that the grandfather stuck his penis in her mouth. DCF also called a member of the CPT to testify. The CPT member verified that the child indicated on an anatomical drawing that her grandfather put his penis in her mouth. The CPT member also determined that the child had information that a four-year-old child would not typically have. The child also informed the CPT member that her grandfather kissed her privates. The CPT made verified findings of abuse.

Detective Chris Ball testified that the foregoing was part of what he used to make his determination that probable cause existed to arrest the grandfather. In addition to that information, the child informed him that she was no longer allowed to see her grandfather because he touched her privates. When interviewed, the grandfather denied the allegations, but the detective concluded that he displayed “obvious signs of deception through all the interviews.” The detective also testified that the mother informed him that she had heard that the grandfather also inappropriately touched the mother’s sister and step-brother. The detective testified that he spoke with the maternal grandmother who informed the detective that she witnessed the grandfather kissing the breasts of her daughter who was seven years old at the time. The mother’s sister told the detective that she did not remember the alleged incident.

During the KCSA hearing, the mother’s attorney informed the court that the mother and grandfather wished to testify to rebut the presumption, and the hearing was continued. At the October 5, 2012, hearing, the court indicated that it would watch the DVDs of the CPT interviews first. After doing so, the court announced that it did not need to hear anything else, found no probable cause, and advised the grandfather that he could return home.

On October 30, 2012, DCF moved to stay the trial court’s order so it could appeal as soon as the order was rendered. The trial court held a hearing and denied the emergency notice of stay. At the hearing, the court said:

[ A]ll you got to do is look at the tapes and I think I kind of, even though you mentioned in your motion, Ms. Antrim, that there was probable cause found in 2011-CF-1363, I was the judge that did that and all we have to do is find probable cause for the detainment.
That was undisputed, unchallenged statements by a law enforcement officer. Based upon that, and that alone, that’s— we have a finding of probable cause for detainment. Whether or not there’s probable cause for the prosecutor to file charges is a different story.
And I can tell you and I’m looking at my notes, the child in an initial — which I felt was kind of coached, but — he touched and — he kissed and touched my vagina. One time she said she had no clothes on, another time she says, “Yeah, I had clothes on.” And then she says, “Only dad can touch the private parts. No one else does, no one else does.” And then she says, to even clarify with dad, “Dad touched with a car on her private area. Nobody else touches but daddy.” Okay, so—
And I’m supposed to find probable cause based upon that and I, and I do not.
MS. ANTRIM: You did the first appearance.
THE COURT: Okay. Now, and after listening, you know, probable cause is challenged in that case. So whenever you’re looking at a cold, hard piece of paper, you take for granted everything that’s said and you say: Based upon what I’m reading here, probable cause exists. Just upon that, yes.
Now, that’s what creates the rebuttable, you know, that you get an opportunity for the other party to say something, when you don’t in a probable cause first appearance hearing, which is a lot different. There was not a probable cause, criminal probable cause hearing.
So after hearing that, the evidence, and that evidence was presented through testimony and also that of me actually seeing what the child actually said, I found that there was not probable cause to believe the child was at risk or that Mr. Flanagan [maternal grandfather] had ever abused that child.
Okay. Now, according to — we’ll just go through it then 39.0139. A rebuttable presumption of detriment to a child is created when a court of competent jurisdiction has found probable cause exists that a parent or caretaker has sexually abused a child.
Now I don’t know if they’re talking about this — the probable cause you find at first appearance, because there are probable cause hearings. But basically that’s what we were doing is there was a — probable cause had been raised because there was probable cause for a detainment in the setting of bond; which is certainly different than a probable cause hearing you would have in a criminal case.
But going further. So that was the one in which we were going forward on. And so you skip down to number four, person who meets the criteria, which we’ll go with the finding of probable cause by myself at a first appearance determination for bond.
It says they shall have a right to an evidentiary hearing to determine whether the contact is appropriate. A Guardian Ad Litem was appointed pursuant to A. B, at the hearing I received and relied upon the evidence of testimony of witnesses and most importantly the actual entry into evidence of the two DVDs in which the child was being interviewed.
Also judicial notice of the criminal court file was taken and those documents contained were in — within were considered. I find that by clear and convincing evidence that the safety, wellbeing and physical, mental, and emotional health of the child is not endangered by contact with Mr. Flanagan....
And I be — and it is my finding that that allegation was rebutted by the evidence received in court. I ordered that Mr. Flanagan could return to his home. And have you returned home, sir?
MS. ANTRIM: And, Your Honor, you stated particularly the DVDs. So are you discounting the testimony that was provided by—
THE COURT: No. I said I, I, I considered the testimony of the witnesses, I’ve considered the file, both the criminal file and the juvenile dependency file — or, excuse me, juvenile, yeah, dependency file, and the DVDs.
And after having considered, I find by clear and convincing evidence that the welfare of the child is not threatened by contact with her grandfather.

On November 5, 2012, the court entered a written order on the October 1 and 5, 2012, KCSA hearing and motion for stay. The court denied the motion for stay. The court acknowledged that, in December 2011, the grandfather was arrested and charged with two counts of sexual battery on a child under the age of 12 and was in custody for a month. The court then found:

Upon personally reviewing the evidence of the child’s statements that lead to the necessity of a KCSA hearing, this Court finds no probable cause that Mr. Flanagan has sexually abused the child. The child’s statements were inconsistent and unreliable. There was no evidence that the child will be endangered by her grandfather.

On appeal, DCF contends that the trial court departed from the essential requirements of law in two respects: 1) the trial court incorrectly interpreted the probable cause determination that triggers the re-buttable presumption of detriment to the child pursuant to section 39.0139(3)(a)l., Florida Statutes; and 2) the grandfather did not meet his burden to rebut the presumption or to support the court’s findings and grant of custody.

The KCSA statute is relatively new. There is little case law discussing the statute, and no cases that discuss the statute in terms of probable cause. The legislature amended the statute, effective July 2011, to read “A rebuttable presumption of detriment to a child is created when: 1. A court of competent jurisdiction has found probable cause exists that a parent or caregiver has sexually abused a child as defined in s. 39.01.” See § 39.0139(3)(a)l., Fla. Stat. (2011). The KCSA does not define probable cause. The trial court suggests it only means “probable cause” found after an evidentiary hearing, but chapter 39 suggests otherwise. See §§ 39.401(1), § 39.402(1), 39.402(8)(d), Fla. Stat. (2011).

The Florida Rules of Juvenile Procedure state that, in the context of a shelter hearing, “the issue of probable cause shall be determined in a nonadversarial manner, applying the standard of proof necessary for an arrest warrant.” Fla. R. Juv. P. 8.305(b)(3). “In making a probable cause finding to support an arrest warrant, a judge considers a sworn affidavit prepared by a law enforcement officer.” Perry v. State, 842 So.2d 301, 303 (Fla. 5th DCA 2003).

Nor does the KCSA authorize a court to revisit a probable cause determination that has been made. It is not the responsibility of a court in a KCSA hearing to re-determine whether there was probable cause; rather, the responsibility of the court is to determine whether a court of competent jurisdiction has found probable cause, and then to allow the caregiver to present clear and convincing evidence to rebut the statutory presumption that flows from the probable cause determination.

What is worrying about this case from the perspective of the reviewing court is that the trial court concluded that it was enough to listen to and evaluate the statements made in the CPT interview. Once an investigation has generated a finding of probable cause to believe the child has been a victim of abuse, the mandate of the statute is to keep the child from exposure to the probable abuser until there is clear proof that the child will be safe. The KCSA is not concerned with whether a conviction can be obtained, it is concerned with the child’s safety. These are often cases where the young victims are unable to comprehend the crimes against them. They are often legally incapable of testifying or unable to relate facts as an adult could do. It makes sense that the Legislature has shifted the burden to the person seeking access.

On the face of it, these sexually explicit allegations were not the fanciful prattles of a toddler. The child, who the record suggests had been diagnosed with ADHD, may not have been the most articulate witness at age four, but her description of sexual activity warrants examination. The child is now a year older and may be a better witness to what did or did not happen to her. There was evidence that the grandfather had done this kind of thing before to another child. There was testimony that the child made reports of her abuse other than during the CPT interview. The assigned investigator testified that he interviewed the grandfather and did not believe his denials. The objective of the hearing was for the grandfather to prove clearly and convincingly that he was not a threat to the child. Why a court with this statutory mandate would not expect to hear this man testify, explore all the available facts and listen to any available witness is a mystery. We grant the petition, quash the order of the trial court, and remand for a new KCSA hearing that meets the requirements of section 39.0139, Florida Statutes.

Petition GRANTED; Order QUASHED and REMANDED.

PALMER and COHEN, JJ„ concur.

      . The pertinent portions of the KCSA, § 39.0139, Florida Statutes (2011), are as follows:
      (3) Presumption of detriment.—
      (a) A rebuttable presumption of detriment to a child is created when:
      1. A court of competent jurisdiction has found probable cause exists that a parent or caregiver has sexually abused a child as defined in s. 39.01;
      2. A parent or caregiver has been found guilty of, regardless of adjudication, or has entered a plea of guilty or nolo con-tendere to, charges under the following statutes or substantially similar statutes of other jurisdictions:

        a. Section 787.04, relating to removing minors from the state or concealing minors contrary to court order;
      b. Section 794.011, relating to sexual battery;
      c. Section 798.02, relating to lewd and lascivious behavior;
      d. Chapter 800, relating to lewdness and indecent exposure;
      e. Section 826.04, relating to incest; or
      f. Chapter 827, relating to the abuse of children; or
      3. A court of competent jurisdiction has determined a parent or caregiver to be a sexual predator as defined in s. 775.21 or a parent or caregiver has received a substantially similar designation under laws of another jurisdiction.
      (b) For purposes of this subsection, "substantially similar” has the same meaning as in s. 39.806(l)(d) 2.
      (c) A person who meets any of the criteria set forth in paragraph (a) may not visit or have contact with a child without a hearing and order by the court.
      (4) Hearings. — A person who meets any of the criteria set forth in paragraph (3)(a) who seeks to begin or resume contact with the child victim shall have the right to an evidentiary hearing to determine whether contact is appropriate.
      (a)Prior to the hearing, the court shall appoint an attorney ad litem or a guardian ad litem for the child if one has not already been appointed. Any attorney ad litem or guardian ad litem appointed shall have special training in the dynamics of child sexual abuse.
      (b) At the hearing, the court may receive and rely upon any relevant and material evidence submitted to the extent of its probative value, including written and oral reports or recommendations from the child protective team, the child’s therapist, the child's guardian ad litem, or the child's attorney ad litem, even if these reports, recommendations, and evidence may not be admissible under the rules of evidence.
      (c) If the court finds the person proves by clear and convincing evidence that the safety, well-being, and physical, mental, and emotional health of the child is not endangered by such visitation or other contact, the presumption in subsection (3) is rebutted and the court may allow visitation or other contact. The court shall enter a written order setting forth findings of fact and specifying any conditions it finds necessary to protect the child.
      (d) If the court finds the person did not rebut the presumption established in subsection (3), the court shall enter a written order setting forth findings of fact and prohibiting or restricting visitation or other contact with the child.


author: VILLANTI, Judge.

text:
    Carol RUDOLPH, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 2D11-2222.
    District Court of Appeal of Florida, Second District.
    May 23, 2012.
    Rehearing Denied July 11, 2012.

      Peter D. Ringsmuth of Law Office of Peter D. Ringsmuth, Fort Myers, for Petitioner.
    Stephen D. Hurm, General Counsel, and Jason Helfant, Assistant General Counsel, Lake Worth, for Respondent.
   VILLANTI, Judge.

Carol Rudolph petitions this court for a writ of certiorari to review a circuit court order that denied her petition for writ of certiorari. This case involves an administrative hearing officer’s decision to sustain the suspension of Ms. Rudolph’s driver’s license. The circumstances of this case are very similar to those in Arenas v. Department of Highway Safety & Motor Vehicles, 90 So.3d 828 (Fla. 2d DCA 2012), Lawrence v. Department of Highway Safety & Motor Vehicles, 93 So.3d 350 (Fla. 2d DCA 2012), and Roark v. Department of Highway Safety & Motor Vehicles, 107 So.3d 1131 (Fla. 2d DCA 2012). We grant the petition in this case for the same reasons that this court granted the petition in Arenas. We likewise remand this case to the circuit court to determine the mechanism by which the lawfulness of the arrest may be decided. However, just as there were distinctions between Arenas, Lawrence, and Roark, there is yet another distinction between those cases and this one. Therefore, we write to briefly explain the distinction.

Ms. Rudolph was stopped by a Lee County Port Authority officer as she was leaving the Fort Myers airport on September 9, 2010. According to the officer’s testimony at the administrative hearing on the driver’s license suspension, Ms. Rudolph’s car came to his attention when it failed to properly stop at a traffic light on airport property. The officer followed her vehicle and ultimately paced it traveling 68 miles per hour in a 50-mile-per-hour zone. The officer ultimately stopped the car, which Ms. Rudolph was driving. While speaking with the officer, Ms. Rudolph exhibited signs of being impaired, and she subsequently performed poorly on roadside field sobriety tests. She was arrested for driving under the influence, and she submitted to a breath test. The test results reflected a blood alcohol level between .129 and .137.

The administrative hearing in this case was held on October 13, 2010. At that hearing, the hearing officer specifically refused to consider Ms. Rudolph’s challenge to the lawfulness of her stop by the Port Authority officer pursuant to section 322.2615(7)(a), Florida Statutes (2010), which provides that the hearing officer in a formal review hearing shall consider only whether the officer had probable cause to believe that the person whose license was suspended was driving or in actual physical control of a motor vehicle while under the influence of alcoholic beverages and whether that person had an unlawful blood or breath alcohol level. On January 20, 2011, Ms. Rudolph filed a motion to suppress the evidence obtained as a result of the traffic stop in her pending criminal case. However, before the criminal court could consider the motion to suppress, the State nol prossed the criminal charge.

Ms. Rudolph then filed a petition for writ of certiorari in the circuit court challenging the ruling in the administrative proceeding. The circuit court denied the petition for certiorari review on April 6, 2011. We delayed the disposition of this second-tier certiorari proceeding pending the Florida Supreme Court’s decision in Florida Department of Highway Safety & Motor Vehicles v. Hernandez, 74 So.3d 1070 (Fla.2011), which quashed our decision in McLaughlin v. Department of Highway Safety & Motor Vehicles, 2 So.3d 988 (Fla. 2d DCA 2008). See also McLaughlin v. Dep’t of Highway Safety & Motor Vehicles, - So.3d - (Fla. 2d DCA 2012).

As with Mr. Arenas, the criminal charges against Ms. Rudolph were dropped before she had the opportunity to challenge the lawfulness of her stop. In addition, Ms. Rudolph was denied the opportunity to challenge the lawfulness of her stop in the civil administrative proceeding. In order to avoid subjecting Ms. Rudolph to a miscarriage of justice or unconstitutional treatment, as the supreme court has warned, see Hernandez, 74 So.3d at 1080, the lawfulness of her stop, which has never been determined, must be reviewed and decided. Accordingly, as we did in Arenas, Lawrence, and Roark, we grant Ms. Rudolph’s petition and remand this case to the circuit court for it to determine the mechanism by which the lawfulness of her stop may be decided. However, as we did in Roark, we note that the exclusionary rule that is often used as a remedy for violations of the Fourth Amendment in criminal cases may not necessarily apply in this civil administrative proceeding to exclude the evidence resulting from Ms. Rudolph’s breath tests. See, e.g., Chase v. Neth, 269 Neb. 882, 697 N.W.2d 675 (2005); Beller v. Rolfe, 194 P.3d 949 (Utah 2008). However, we express no opinion on this issue.

Petition for writ of certiorari to the circuit court granted for proceedings in accordance with this opinion.

ALTENBERND and WHATLEY, JJ., Concur.

      . § 316.193(1), Fla. Stat. (2010).

      . This information was not in our initial record. We requested this information from the parties because we thought this case might be moot. However, both parties agree that this case is not moot because of the potential legal consequences to Ms. Rudolph of the license suspension at issue here.


author: ALTENBERND, Judge.

text:
    Byron ROARK, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 2D10-5261.
    District Court of Appeal of Florida, Second District.
    May 23, 2012.
    Rehearing Denied July 11, 2012.

      Eilam Isaak, Tampa, for Petitioner.
    Stephen D. Hurm, General Counsel, Tallahassee, and Kimberly A. Gibbs, Assistant General Counsel, Orlando, for Respondent.
   ALTENBERND, Judge.

Byron Roark petitions this court for a writ of certiorari to review a circuit court order that denied his petition for writ of certiorari. This case involves an administrative hearing officer’s decision that sustained the suspension of Mr. Roark’s driver’s license. The circumstances of this case are very similar to those in Arenas v. Department of Highway Safety & Motor Vehicles, 90 So.3d 828 (Fla. 2d DCA 2012), and Lawrence v. Department of Highway Safety & Motor Vehicles, 93 So.3d 350 (Fla. 2d DCA 2012). We grant the petition for the same reasons that this court granted the petition in Arenas. We likewise remand this case to the circuit court to determine the mechanism by which the lawfulness of the arrest may be decided. Just as there was one distinction between Arenas and Lawrence, there is one distinction between Lawrence and Mr. Roark’s case. We write briefly to explain this distinction.

According to the arresting officer’s report, a police officer stopped Mr. Roark on July 10, 2009, at 3:07 a.m. The police officer’s report states that Mr. Roark made an improper left turn. When stopped, Mr. Roark exhibited signs of intoxication. He had difficulty with the standard field sobriety tests. The officer arrested him for driving under the influence. Unlike Ms. Lawrence and Mr. Arenas, Mr. Roark submitted to a breath test. The test results reflected a blood alcohol level between .129 and .136.

The administrative hearing in this case occurred on February 5, 2010. The circuit court denied the petition for certiorari review in October 2010. We delayed the disposition of this petition pending the Florida Supreme Court’s decisions in Florida Department of Highway Safety & Motor Vehicles v. Hernandez, 74 So.3d 1070 (Fla.2011), which quashed our decision in McLaughlin v. Department of Highway Safety & Motor Vehicles, 2 So.3d 988 (Fla. 2d DCA 2008). See also McLaughlin v. Dep’t of Highway Safety & Motor Vehicles, - So.3d - (Fla. 2d DCA 2012).

Like Ms. Lawrence, the charges against Mr. Roark were not dropped. He ultimately pleaded to a reduced charge of reckless driving and a term of probation. Apparently, both the license suspension and the period of probation are over.

Although Mr. Roark has never had an opportunity to challenge the lawfulness of his stop in this civil administrative proceeding, he may have had such an opportunity in his criminal proceeding. Moreover, because he submitted to the breath test, this case includes additional evidence of intoxication. Because this is a civil administrative hearing, the exclusionary rule that is often used as the remedy for violations of the Fourth Amendment in criminal cases may not necessarily apply in this case. See, e.g., Chase v. Neth, 269 Neb. 882, 697 N.W.2d 675 (2005) (holding that the exclusionary rule is inapplicable to administrative license revocation proceedings); Beller v. Rolfe, 194 P.3d 949 (Utah 2008) (holding that the exclusionary rule is inapplicable to driver license revocation proceedings). Thus, in addition to the mechanisms suggested in Arenas, the circuit court is permitted to consider whether the criminal proceeding provided an adequate mechanism to challenge the lawfulness of the stop. If a lower tribunal determines that the stop was unlawful, it is still permitted to decide whether the breath test evidence is admissible. We express no opinion on these issues.

Petition for writ of certiorari to the circuit court granted for proceedings in accordance with this opinion.

WHATLEY and VILLANTI, JJ., Concur.

      . § 316.193(1), Fla. Stat. (2008).

      . This information obviously was not in our initial record. We requested this information from the parties because we thought this case might be moot. Both parties agree that the case is not moot.


author: WALLACE, Judge.

text:
    Kieran F. O’NEILL, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-747.
    District Court of Appeal of Florida, Second District.
    June 1, 2012.
    Rehearing Denied June 14, 2012.

      Robert E. Taylor, Jr., of McIntyre, Pan-zarella, Thanasides, Hoffman, Bringgold & Todd, P.L., Tampa, for Appellant.
   WALLACE, Judge.

Rieran F. O’Neill appeals the dismissal of his motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850 in which he moved to withdraw his plea based on Padilla v. Kentucky, 559 U.S. 356, -, 130 S.Ct. 1473, 1483, 176 L.Ed.2d 284 (2010). We reverse the post-conviction court’s dismissal of O’Neill’s motion, and we remand for an evidentiary hearing.

On June 14, 2010, O’Neill pleaded nolo contendere to possession of cocaine and sale of cocaine in case number 10-CF-15242 and to grand theft in case number 10-CF-15254. O’Neill was sentenced on all charges to concurrent terms of 364 days in jail, followed by twenty-four months’ probation. On November 30, 2011, O’Neill, through counsel, filed a motion for postconviction relief in which he alleged that his counsel gave him incorrect advice about the deportation consequences of his pleas in these cases.

O’Neill claimed that his counsel spoke with an immigration attorney and learned that a conviction for sale and possession of cocaine would result in O’Neill’s deportation and would probably make him permanently inadmissible to the United States. Nevertheless, counsel informed O’Neill that because the court would sentence O’Neill to only 364 days in jail, his pleas would have no immigration consequences. O’Neill alleged that his counsel’s misadvice on this matter rendered counsel’s performance deficient in light of Padilla, 130 S.Ct. at 1483, which requires that when eligibility for deportation is a clear result of a plea, counsel must inform the defendant accordingly. Furthermore, O’Neill alleged prejudice, stating that absent his counsel’s misadvice on the immigration consequences of his pleas, he would not have resolved his cases by pleas and instead would have exercised his right to a jury trial in each case.

O’Neill maintained that the prejudice resulting from his counsel’s deficient performance was not cured by the general deportation warning required — and given — during the plea colloquy in accordance with Florida Rule of Criminal Procedure 3.172(c)(8). In support, O’Neill claimed that because the immigration consequences of his plea were certain, his counsel had a duty under Padilla to advise him accordingly. Therefore, a general warning that his plea might subject him to deportation does not cure the prejudice resulting from counsel’s incorrect advice. See Hernandez v. State, 61 So.3d 1144, 1151 (Fla. 3d DCA 2011), review granted, 81 So.3d 414 (Fla.2012).

Padilla was decided before O’Neill entered his pleas; there is no issue about retroactivity here. However, the postcon-viction court pointed to the Fourth District’s reasoning in Flores v. State, noting that “[cjritically, Padilla was not advised by the trial court during the plea colloquy that the plea might result in deportation.” 57 So.3d 218, 220 (Fla. 4th DCA 2010). The Fourth District held that because Flores had received such a warning in accordance with rule 3.172(c)(8), he could not show the prejudice necessary to obtain relief, under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Flores, 57 So.3d at 220-21; see also Castano v. State, 65 So.3d 546, 547-48 (Fla. 5th DCA 2011) (agreeing with the Fourth District in Flores), review granted, 81 So.3d 413 (Fla.2012).

Following Flores, the postconviction court ruled that because O’Neill had received a deportation warning in compliance with rule 3.172(c)(8), he was unable to establish prejudice. In addition, the court concluded that O’Neill’s reliance on Hernandez was misplaced. The court reasoned as follows: A decision about the deportation of any particular individual is obviously within the control of the federal government. Accordingly, absolute certainty about whether the federal government will ever deport any particular defendant — even if he or she is clearly eligible— is unattainable. Therefore, a warning that a defendant “may” be subject to deportation is more accurate than a warning that he or she “will” be subject to deportation.

This court has already ruled that Padilla does not apply retroactively, see Barrios-Cruz v. State, 63 So.3d 868, 870 (Fla. 2d DCA 2011), but it has not yet addressed the impact of rule 3.172(c)(8) on claims of ineffective assistance under Padilla. In Padilla, the United States Supreme Court said: “[W]hen the deportation consequence [of a plea] is truly clear, ... the duty to give correct advice is equally clear.” 130 S.Ct. at 1483. Based on this precept, the Third District disagreed with the Fourth District’s Flores opinion, reasoning as follows:

[T]he ruling in Padilla does not turn on the fact that the Kentucky trial court and plea colloquy failed to include a “may subject you to deportation” type of warning. It turns on the fact that a “may” warning is deficient (and is actually misadviee) in a case in which the plea “will” subject the defendant to deportation.

Hernandez, 61 So.3d at 1151. On this point, we agree with the Third District. For the reasons explained in Hernandez, we hold that the deportation warning required by rule 3.172(c)(8) does not cure the prejudice resulting from counsel’s failure to perform the duties mandated by Padilla.

Accordingly, we reverse the postconviction court’s dismissal of O’Neill’s motion, and we remand for an evidentiary hearing. In addition, we certify conflict with the Fourth District’s opinion in Flores and with the Fifth District’s opinion in Casta-ño.

In light of the imminence of O’Neill’s anticipated deportation, we expedited our review of this case. On remand, the post-conviction court shall expedite its consideration of O’Neill’s claims.

Reversed and remanded.

DAVIS and MORRIS, JJ., Concur.