author: FERNANDEZ, J.

text:
    Louis BRENNAN, Appellant, v. CITY OF MIAMI, Appellee.
    No. 3D12-3059.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2014.

      Sheppard, White & Kachergus, P.A., and Wm. J. Sheppard, Elizabeth L. White, Matthew R. Kachergus and Bryan E. De-Maggio, Jacksonville, for appellant.
    Victoria Méndez, City Attorney, and John A. Greco, Janeen L. Richard and Casey P. Cohen, Assistant City Attorneys., for appellee.
    Before ROTHENBERG, EMAS and FERNANDEZ, JJ.
   FERNANDEZ, J.

Louis Brennan appeals a final order from the Public Employees Relations Commission in which the Commission concluded that appellee City of Miami did not violate chapter 295, Florida Statutes (2012), when it failed to afford Brennan a veterans’ preference in promotion and dismissed Brennan’s complaint. We disagree with this conclusion because Brennan’s failure to submit documentation to the City of his active duty during wartime did not preclude his entitlement to a lieutenant’s promotional preference, pursuant to section 295.09, Florida Statutes (2012), and rule 55A-7.0111, Florida Administrative Code. Accordingly, we reverse and remand.

Factual Background

Brennan is a firefighter employed with the City since 1999. He is a former United States Marine Reservist who participated in military training for which he received a DD-214. He included this document in his initial employment application with the City.

Brennan returned to active duty in 2003. He resumed City employment at the conclusion of his military service for which he received a second DD-214. He submitted this document to the City when he returned to work. In 2004, the City gave Brennan a certifícate of appreciation for his military service.

In 2008, Brennan applied for a promotional position of Fire Lieutenant with the City. The Register Announcement that established the minimum requirements for the fire lieutenant position listed, in relevant part, the “Veteran’s Preference Documentation” as follows:

All DD-214’s or military discharge papers, or equivalent certification from the U.S. Department of Veteran’s Affairs, which lists the military status, dates of service, discharge type, and, if applicable, the combat campaign or expedition for which a campaign or expeditionary medal was authorized.
If an applicant claims veteran’s preference, he or she must indicate this on the application form, and all required documentation in accordance with Florida Statute Section 295 and Florida Administrative Code 55A-7.013, must be submitted with the application by the closing date.

The City’s application for employment contained the following statement:

YOU MUST SUBMIT A LEGIBLE FORM DD-214 AND OTHER RELEVANT DOCUMENTS CONCERNING ELIGIBILITY FOR VETERAN’S PREFERENCE. VETERAN’S PREFERENCE WILL BE AWARDED ONLY IF YOU SUBMIT, WITH YOUR APPLICATION, A LEGIBLE FORM DD-214 AND / OR PROOF OF A SERVICE-CONNECTED DISABILITY FROM A STATE APPROVED AUTHORITY THAT IS LESS THAN ONE YEAR OLD.

Brennan timely submitted his application to the City’s Employment Office. On his application, he checked a box that indicated that he served on active military duty during wartime. He did not submit the DD-214 or any other documents to claim a preference. At the time of his submission, the employment office advised him that he had to submit a DD-214 in support of his employment application. Brennan, however, could not locate his DD-214. He then went to the records division of the City’s Human Resources Department and requested a copy of his DD-214. The Human Resources Department provided him with his 1997 DD-214, which he submitted to the City. At that time, Brennan asked if he needed to provide any additional documentation, and the employment office advised that he did not.

The testing and validation specialist responsible for screening applications for the fire lieutenant exam subsequently advised Brennan that he was not eligible for preference because he only submitted his 1997 DD-214 with his application, which reflected service for training only. Brennan did not receive the five additional points for veterans’ preference.

Brennan passed the qualifying examination. He later learned that he had not received any veterans’ preference points.

a. Proceedings before the Department of Veterans Affairs

Brennan filed a complaint with the Department of Veterans Affairs in which he contested his failure to receive five extra points on the fire lieutenant’s exam. The department found his complaint invalid because he had not appended the 2003 DD-214 to the application in which he claimed veterans’ preference. The department also concluded that the complaint was premature because everyone who had been promoted at the time had a higher score than Brennan would have had if he had been given the five extra points.

Brennan filed a second complaint with the department. He asserted that he would have been promoted to lieutenant had he been awarded veterans’ preference points. The department issued its decision, finding Brennan had a valid complaint, and concluding that, because the 2003 DD-214 was in the City’s personnel files, the City should have informed Brennan that his 2003 DD-214 was missing, such that Brennan could remedy the problem.

b. Proceedings before the Florida Public Emplogees Relations Commission

Brennan consequently filed a veterans’ preference complaint with the Commission in which he alleged that the City erroneously denied him veterans’ preference points in promotion. The hearing officer disagreed with the department’s decision and issued a recommended order following a hearing, concluding that Brennan was not entitled to a veterans’ preference because he did not submit the proper documentation with his application. Brennan filed exceptions to the hearing officer’s recommended order, to which the City responded.

The Commission ultimately denied all of Brennan’s exceptions. The Commission rejected Brennan’s claim that the Commission’s hearing officer should have deferred to the findings of the department’s investigator, who found that the City’s Human Resources Department was obligated to contact him and provide him an opportunity to supply his missing 2003 DD-214. The Commission reasoned that its review of investigators’ findings is de novo, and the review should not be controlled by their findings and conclusions, both factual and legal.

The Commission also rejected Brennan’s claim that Florida Administrative Code Rule 55A-7.013, which provides that the applicant claiming preference is responsible for providing supporting documentation, solely applies to original appointment and retention, and not to promotion. Brennan argued that the only statute addressing promotion, section 295, Florida Statutes (2012), and the only accompanying Department of Veterans Affairs regulation, Florida Administrative Code Rule 55A-7.0111, do not require veterans to confirm their eligibility with documentation. The Commission disagreed, stating, “[t]he Commission has consistently placed the responsibility for documentation set forth in rule 55A-7.013 to all claims for a veteran’s preference, initial appointments, and promotions alike.” Additionally, the Commission accorded “great deference” to the Department of Veterans Affairs’ interpretation of rule 55A-7013 as applying to promotional preference.

The Commission further rejected Brennan’s argument that the Department of Veterans Affairs did not have the authority to make rules that related to veterans’ preference in promotion, asserting that the Commission was not the proper venue to contest the Department of Veterans Affairs’ rulemaking authority.

The Commission denied Brennan’s exception that challenged the hearing officer’s failure to make additional findings of fact. The Commission explained that Brennan did not cite to the record in support of the findings he sought to include, and these additional findings were unnecessary to resolve the case.

The Commission next rejected Brennan’s claim that the testing and validation specialist had actual or constructive knowledge of Brennan’s active wartime duty when she failed to afford him preference points. The Commission concluded that substantial evidence in the record supported the hearing officer’s contrary finding. The Commission rejected Brennan’s contention that the City’s receipt of the 2003 DD-214 contained in Brennan’s personnel file and the certificate of appreciation Brennan received imputed knowledge of Brennan’s wartime duty. The Commission stated:

Holding a large municipal employer responsible for knowledge of the existence of all DD-214s in its personnel records and affording preference to veterans accordingly is not only clearly contrary to rule 55A-7.013(2)’s explicit designation of the veteran as the party responsible for supplying the necessary documentation for any claimed preference at the time of making application, but it is also patently unreasonable.

The Commission further dismissed as moot the issue of whether Brennan should have been appointed lieutenant had he been awarded preference points because he was not entitled to points due to his failure to provide the 2003 DD-214.

Standard of Review

This Court reviews an agency’s statutory interpretation de novo. See Sullivan v. Fla. Dep’t of Envtl. Prot., 890 So.2d 417, 420 (Fla. 1st DCA 2004). The record is reviewed to determine whether competent and substantial evidence supports an administrative agency’s decision. § 120.68, Fla. Stat. (2012). See also Braddock v. Sch. Bd. of Nassau Cnty., 455 So.2d 394, 396 (Fla. 1st DCA 1984). Administrative agencies are “afforded wide discretion in the interpretation of a statute which it is given the power and duty to administer.” Republic Media, Inc. v. Dep’t of Tmnsp., 714 So.2d 1203, 1205 (Fla. 5th DCA 1998). “[A] reviewing court must defer to an agency’s interpretation of an operable statute as long as that interpretation is consistent with legislative intent and is supported by substantial, competent evidence.” Pub. Emp. Relations Comm’n v. Dade Cnty. Police Benevolent Ass’n, 467 So.2d 987, 989 (Fla.1985). If the agency’s interpretation is “within the range of possible and reasonable” interpretations, it is not clearly erroneous and should be affirmed. See Republic Media, 714 So.2d at 1205.

Analysis

The Commission’s final order must be reversed because the record lacks competent and substantial evidence to support the order. Furthermore, the Commission’s interpretation of the statute falls outside the range of possible and reasonable interpretations, and is clearly erroneous. More specifically, the Commission’s decision is inconsistent with state law, the plain language of applicable law, specific provisions of the Florida Administrative Code, established principles of statutory interpretation, and the policy underlying veterans’ preference laws. Thus, Brennan was not obligated to submit any documentation to the City to establish his eligibility for promotion and receive a veterans’ preference to which he was entitled.

We first address the policy underlying veterans’ preference laws, which is unequivocally clear. It is “the policy of this State of Florida that in appreciation for [veterans’] service to this state and the country, and in recognition of the time and advantage lost toward the pursuit of a civilian career, veterans ... shall be granted preference in employment with the state and political subdivision of or in the state.” Ch. 98-33, at 244, Laws of Fla. The Florida Supreme Court has stated that:

The purpose of veterans’ preference acts is sometimes said to be to reward those who served their country in time of need, and, again, it is stated that such acts are a recognition of the qualities and traits developed by military service which tend to make of veterans superior public servants. But whether such preference is considered to be in recompense for the services performed and the sacrifices suffered by veterans, or whether it is considered to be a legislative recognition of the habits of industry, obedience, and fortitude instilled by their service on active duty in the armed forces of our country, there can be no doubt that the Legislature desired the veteran to have the actual benefit of the preference granted — either upon his entrance into public service or upon his promotion in such service, if a re-instated employee — and it is clear that the interpretation contended for by the Board would not accomplish the legislative purpose. ‘Preference to veterans must be a reality. It cannot be made illusory or a mere gesture.’

Yates v. Rezeau, 62 So.2d 726, 727 (Fla.1953) (citations omitted).

It cannot be said that the City’s ordinance can co-exist simultaneously with the state statute. A county cannot enact an ordinance that conflicts with a state statute. Phantom of Brevard, Inc. v. Brevard Cnty., 3 So.3d 309, 314 (Fla.2008). Where a municipality is authorized to legislate with the State, “a municipality’s concurrent legislation must not conflict with state law.” Thomas v. State, 614 So.2d 468, 470 (Fla.1993). “When a municipal ‘ordinance flies in the face of state lav/— that is, cannot be reconciled with state law — the ordinance ‘cannot be sustained.’ ” City of Palm Bay v. Wells Fargo Bank, N.A., 114 So.3d 924, 928 (Fla.2013) (citing to Barragan v. City of Miami, 545 So.2d 252, 255 (Fla.1989). Such a conflict “comes into play ‘where the local enactment irreconcilably conflicts with or stands as an obstacle to the execution of the full purposes of the statute.’” Id. (citing 5 McQuillin Mun. Corp. § 15:16 (3d ed. 2012)).

The City’s requirement creates a barrier for eligible veterans which is otherwise non-existent under the state statute. In effect, the City’s requirement restricts the rights granted to veterans who seek promotional preference and renders the promotional preference a mere illusion. Thus, the conflict is self-evident, “flies in the face of state law,” and the ordinance simply cannot stand. Id.

We agree with Brennan’s argument that rule 55A-7.013 is inapplicable under the facts of this case. Rule 55A-7.013 addresses veterans’ preference within the context of appointment and retention, and appointment and retention are not at issue in the case before us. In fact, rule 55A-7.003(10) specifically defines the term “vacant position” to mean:

[A] position which the covered employer has announced as being open for recruitment and available to all applicants. A position that is announced as being open to current employees only, to be filled by the reassignment, promotion or demotion of an employee is not a vacant position for the purpose of this chapter.

Fla. Admin. Code R. 55A-7.013 (emphasis added).

Rule 55A-7.0111, Florida Administrative Code, which implemented section 295.09, Florida Statutes (2012), and addresses veterans’ preference in promotion, governs instead.

Neither is the City’s requirement consistent with rule 55A-7.0111 and section 295.09. Nowhere in rule 55A-7.0111 and section 295.09, whose language is clear and unambiguous, is there a requirement that a veteran submit veterans’ preference documentation, or DD-214 form. The City’s requirement is also illogical and duplicative where, as here, the City maintained that documentation on file.

Conclusion

Brennan was not required to submit his 2003 DD-214 form with his job application, pursuant to section 295.09, Florida Statutes (2012), and rule 55A-7.0111, Florida Administrative Code. We therefore reverse the final order and remand with instructions that Brennan receive an award of five additional points on his fire lieutenant exam, and that he be promoted to the position of fire lieutenant with back pay and benefits from the time his modified test score entitled him to that position, if he would have otherwise been entitled to such promotion.

Reversed and remanded with instructions.

      . DD-214 is a document the United States Department of Defense issues following discharge from military service.

      . Brennan's service during 2003, as documented in the DD-214 issued subsequent to that service, qualified him for additional preference based on his wartime service.

      . Brennan also filed a grievance pursuant to the collective bargaining agreement in which he challenged his placement on the Eligibility Roster. The grievance was settled, whereby the City and the Union agreed to abide by the final decision of the Department of Veterans Affairs.

      . Rule 55A-7.013 provides in relevant part as follows:

        Documentation of Preference Claim.
      (1) An applicant for a covered position who believes he or she is entitled to veterans’ preference in employment shall indicate such preference on the application form.
      (2) The applicant claiming preference is responsible for providing required documentation at the time of making an application for a vacant position, or prior to the closing date of the vacancy announcement.
      (3) The covered employer shall inform applicants of requirements for documentation of eligibility for preference.
      (4) The covered employer shall determine whether an applicant is eligible for veterans' preference.
      (5) The covered employer shall document the employee’s election of veterans’ preference.

      . Section 295.09 provides as follows:
      Reinstatement or reemployment; promotion preference.
      (l)(a) When an employee of the state or any of its political subdivisions employed in a position subject or not subject to a career service system or other merit-type system, with the exception of those positions which are exempt pursuant to s. 295.07(4), has served in the Armed Forces of the United States and is discharged or separated therefrom with an honorable discharge, the state or its political subdivision shall reemploy or reinstate such person to the same position that he or she held prior to such service in the armed forces, or to an equivalent position, provided such person returns to the position within 1 year of his or her date of separation or, in cases of extended active duty, within 1 year of the date of discharge or separation subsequent to the extension. Such person shall also be awarded preference in promotion and shall be promoted ahead of all others who are as well qualified or less qualified for the position. When an examination for promotion is utilized, such person shall be awarded preference points, as provided in s. 295.08, and shall be promoted ahead of all those who appear in an equal or lesser position on the promotional register, provided he or she first successfully passes the examination for the promotional position.
      (b) The provisions of paragraph (a) shall also apply to a person who was a veteran when employed by the state or its political subdivision and who was recalled to extended active duty in the Armed Forces of the United States and was discharged or separated therefrom with an honorable discharge.
      (c) The provisions of paragraphs (a) and (b) shall apply only to a veteran’s first promotion after reinstatement or reemployment, without exception.
      (2) For the purposes of this section, “extended active duty” means active duty, other than for training, beyond the date of honorable discharge or separation, due to military requirements.

      . Rule 55A-7.0111 provides as follows:
      Reinstatement or Reemployment; Promotion Preference.
      (1) When an employee in a covered position leaves employment of the state or its political subdivisions for the purpose of serving in the Armed Forces of the United States and is separated therefrom with an honorable discharge, the state or its political subdivision shall reinstate or reemploy such person under the following conditions:
      (a) Reinstatement or reemployment is made to the same or to an equivalent position.
      (b) Reinstatement or reemployment is made within one year of the date of separation from the military service, or, in the case of extended active duty, within one year of the date of discharge or separation subsequent to the extension.
      (2)Persons reinstated or reemployed under this rule shall be awarded preference in promotion, and shall be promoted ahead of all other employees who are as well or less qualified for the position. When an examination, as defined in Rule 55A-7.003, F.A.C., is utilized, such persons shall be eligible for preference points and ranking on the register as provided by Rule 55A-7.010, F.A.C., of this chapter. Eligibility for preference in promotion shall apply only to a veteran’s first promotion after reinstatement or reemployment, without exception.
      (3) If the reinstated or reemployed person is not promoted, the person retains promotion preference eligibility until the first promotion following reemployment is satisfied.
      (4) Where the reinstated or reemployed person is not promoted and the register is vacated to establish a new register for the next promotion, such person shall retain eligibility for preference points and ranking on the new register as provided by Rule 55A-7.010, F.A.C.


source: Caselaw Access Project

author: SCALES, J.

license: Public Domain

text:
    Carmen A. RAMOS, et al., Appellants, v. CITIMORTGAGE, INC., Appellee.
    No. 3D13-2240.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2014.

      Robert Flavell, P.A., and Robert Flavell, for appellants.
    Akerman LLP, and Nancy M. Wallace and Kristen M. Fiore, Tallahassee; Aker-man LLP, and William P. Heller, Fort Lauderdale, for appellee.
    Before SALTER, EMAS and SCALES, JJ.
   SCALES, J.

The Ramoses, Defendants below, appeal a final summary judgment of foreclosure in favor of CitiMortgage, Plaintiff below. We reverse because the summary judgment evidence did not rebut the Ramoses’ affirmative defenses, which alleged they had not received a default notice and that the default notice allegedly sent by CitiMort-gage was not properly delivered as required by the express provisions of its mortgage.

I. Facts

Defendant, Carmen Ramos, executed a promissory note in favor of CitiMortgage in August 2005. The note was secured by a mortgage encumbering property in Miami, Florida.

When Mrs. Ramos defaulted on her loan in April 2009, CitiMortgage brought the instant foreclosure action; a copy of the note and mortgage was attached to Citi-Mortgage’s complaint.

Pursuant to Paragraph 22 of the mortgage, CitiMortgage was required to send Mrs. Ramos written default notice prior to accelerating the amounts due under the note and foreclosing on the mortgage. The mortgage provides for specific information to be included in the default notice, such as notice of the default and how and when the default can be cured.

Pursuant to Paragraph 15 of the mortgage, all notices sent by first class mail are required to be sent to the address of the mortgaged property unless the borrower has provided CitiMortgage with an alternate address. Alternatively, Paragraph 15 allows CitiMortgage to comply with the notice requirements, other than via first class mail, by actually delivering such notices to the property address.

The Ramoses filed a motion to dismiss CitiMortgage’s foreclosure complaint, alleging, among other things, that CitiMort-gage had failed to comply with an express condition precedent to filing the lawsuit. Specifically, citing the relevant language of the mortgage, the Ramoses argued that CitiMortgage had failed to send the required default notice to Mrs. Ramos at the mortgaged property .address.

After the motion to dismiss was denied, the Ramoses filed their answer and affirmative defenses. The Ramoses denied Ci-tiMortgage’s allegation that all conditions precedent had been performed. Also, the Ramoses asserted, as an affirmative defense, that CitiMortgage failed' to deliver the required default notice to Mrs. Ramos, and therefore had not complied with a condition precedent to foreclosure. The Ramoses also asserted they never received the default notice.

CitiMortgage filed a reply to the affirmative defenses, attaching a copy of the default notice it purportedly had mailed to Mrs. Ramos in October 2010. This default notice indicated it had been mailed to a post office box in Coral Gables, Florida, rather than to the mortgaged property address.

CitiMortgage then filed a motion for summary judgment. CitiMortgage’s summary judgment motion was supported by two affidavits, one of which attached a copy of the October 2010 default notice. The Ramoses filed no affidavits or other summary judgment evidence.

At the summary judgment hearing, the Ramoses argued that CitiMortgage had failed to establish an absence of a genuine issue of fact, i.e., that CitiMortgage had complied with the mortgage’s default notice requirements. The trial court disagreed and entered final summary judgment of foreclosure for CitiMortgage. We reverse.

II. Analysis

We review a trial court’s entry of a final summary judgment de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000); Rodriguez v. Sec. Nat’l Ins. Co., 138 So.3d 520, 522 (Fla. 3d DCA 2014). For a plaintiff to be entitled to a summary judgment, the plaintiff must establish that no genuine issue of material fact exists. Muñoz Hnos, S.A. v. Editorial Televisa Int’l, S.A., 121 So.3d 100,103 (Fla. 3d DCA 2013). Additionally, the summary judgment evidence must disprove all affirmative defenses raised by the defendant. GMT Constr., Inc. v. Gulf-side Supply, Inc., 116 So.3d 515, 517 (Fla. 3d DCA 2013) (“[W]here affirmative defenses are plead [sic], the movant for summary judgment is similarly burdened and must conclusively refute the affirmative defenses.” (citing Calarese v. Weissfisch, 87 So.3d 1225, 1227 (Fla. 3d DCA 2012))).

Where, as here, a mortgage contains a provision which specifically requires a default notice be sent to the borrower prior to foreclosure, and the defendant expressly pleads both that (a) the plaintiff has failed to comply with such condition precedent to foreclosure, and (b) the defendant has not received the notice, for the trial court to enter summary judgment, the plaintiff must establish — through summary judgment evidence — either that (1) the plaintiff complied with the mortgage documents’ notice provisions, or (2) the defendant received the default notice. See DiSalvo v. SunTrust Mortg., Inc., 115 So.3d 438, 439^0 (Fla. 2d DCA 2013) (citing Morrison v. U.S. Bank, N.A., 66 So.3d 387, 387 (Fla. 5th DCA 2011) (concluding the bank’s filing of an unathenticated notice letter did not support summary judgment where the defendant asserted she had not received a notice of default)); Bryson v. Branch Banking & Trust Co., 75 So.3d 783 (Fla. 2d DCA 2011) (reversing grant of summary judgment where the plaintiff asserted affirmative defense that bank had not complied with condition precedent and nothing established bank gave homeowner notice of default as required by the mortgage).

In this case, because the Ramoses’ affirmative defenses alleged that CitiMortgage failed to comply with conditions precedent and that they had not received the required default notice, the summary judgment evidence had to conclusively disprove those allegations. See GMT Constr., Inc., 116 So.3d at 517.

While CitiMortgage’s affidavit attached a copy of the default notice mailed to Mrs. Ramos, the default notice was addressed to a post office box in Coral Gables, rather than the address of the mortgaged property as required in the mortgage. There was no summary judgment evidence indicating that the Ramoses provided the alternative address to Citi-Mortgage as contemplated in Paragraph 15 of the Mortgage. Alternatively, there was no record evidence that the Ramoses had actually received the default notice. Hence, CitiMortgage did not meet its burden to disprove the Ramoses’ affirmative defenses so as to be entitled to summary judgment.

CitiMortgage also argues that CitiMort-gage should be excused from complying with the default notice condition precedent required by its mortgage because such compliance would have been futile. Citi-Mortgage asserts that if the Ramoses were unable to meet their monthly note obligation of around $2000, they certainly would not have been able to cure the default by paying the almost $58,000 in accrued amounts due under the note.

While CitiMortgage’s argument might have practical merit, the trial court obviously never reached the “futility” issue, and, on this record, we certainly are unable to conclude, as a matter of law, that sending the required default notice to the Ramoses as required by the mortgage would have been a futile gesture.

III. Conclusion

Accordingly, we reverse the final judgment of foreclosure and remand the case for proceedings consistent with this opinion.


author: EMAS, J.

text:
    DESIGN HOME REMODELING CORP., Appellant, v. Rene SANTANA and Maritza Torres, Appellees.
    No. 3D13-2852.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2014.

      Gilbert & Caddy, Bryce Gilbert and Randall L. Gilbert, Hollywood, for appellant.
    Ross & Girten and Lauri Waldman Ross, Miami; Friedman & Friedman and John S. Seligman, Coral Gables, for appel-lees.
    Before LAGOA, SALTER and EMAS, JJ.
   EMAS, J.

Design Home Remodeling Corporation (“Design Home”) appeals from an order denying its motion for attorney’s fees pursuant to a proposal for settlement. For the reasons that follow, we affirm.

FACTS AND BACKGROUND

In December 2007, Rene Santana (“Santana”) slipped and fell on premises owned by Flanco Condominium Association, Inc. (“Flanco”). In May 2009, Santana and Maritza Torres (“Torres”), Santana’s wife, filed a premises liability action against Flanco, alleging negligent maintenance. In its answer to the complaint, Flanco asserted that non-party Design Home was at fault for any negligent maintenance. On March 26, 2010, Santana and Torres filed an amended complaint, adding Design Home as a defendant and alleging Design Home was negligent because it “failed to keep [the] premises in a reasonably safe condition on the floor and/or failed to warn that the floor was wet and slippery.”

On May 25, 2010, sixty days from the date on which Santana and Torres filed the amended complaint adding Design Home as a defendant, Design Home served Santana and Torres with individual proposals for settlement. By their express terms, the proposals were made pursuant to section 768.79, Florida Statutes (2010) and Florida Rule of Civil Procedure 1.442. Neither Santana nor Torres accepted the proposals for settlement or served any response.

Three years later, the trial court entered an agreed summary final judgment in favor of Design Home on all claims. Design Home timely filed its motion for attorney’s fees, asserting as its basis the prior proposals for settlement. The trial court denied the motion, concluding that they had been filed prematurely under rule 1.442(b). Design Home’s motion for rehearing was also denied, and this appeal followed.

ANALYSIS

We review de novo the question of whether a trial court properly applied the law in denying a motion for attorney’s fees. Campbell v. Goldman, 959 So.2d 223, 225 (Fla.2007). See also, S. Baptist Hosp. of Fla., Inc. v. Welker, 908 So.2d 317 (Fla. 2005).

Section 768.79, Florida Statutes (2007), entitled “Offer of judgment and demand for judgment” provides, in pertinent part: In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within 30 days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him....

Section 768.79 does not provide a time-frame within which an offer of judgment or demand for judgment can be made. However, Florida Rule of Civil Procedure 1.442, entitled “Proposals for Settlement,” implements the statute and provides additional procedural components, including the following pertinent timeframes:

A proposal to a defendant shall be served no earlier than 90 days after service of process on that defendant; a proposal to a plaintiff shall be served no earlier than 90 days after the action has been commenced.

Rule 1.442(b)(emphasis added).

Section 768.79 and rule 1.442 are in derogation of the common law rule that each party bear its own attorney’s fees therefore, the provisions of the statute and the rule must be strictly construed. Willis Shaw Exp., Inc. v. Hilyer Sod, Inc., 849 So.2d 276, 278 (Fla.2003).

In Campbell, the trial court invalidated a proposal for settlement because it failed to include the requisite reference to the statute upon which the proposal was based. The Fourth District reversed, holding that the proposal’s failure to expressly cite to the statute constituted “an insignificant technical violation of the rule.” Campbell, 959 So.2d at 225. In doing so, the Fourth District certified direct conflict with contrary decisions of the First and Second Districts. The Supreme Court accepted jurisdiction, quashed the Fourth District’s decision, approved the decisions in McMullen Oil and Pippin, and reaffirmed the requirement that the provisions of rule 1.442 and section 768.79 be strictly construed:

[Sjtrict construction is applicable to both the substantive and procedural portions of the rule and statute. When read together the rule and statute provide parties with an unambiguous method for obtaining attorney fees. Section 768.79 provides a sanction against a party who unreasonably rejects a settlement offer. See Willis Shaw, 849 So.2d at 278. The plain language of the statute provides that an offer must state it is being made pursuant to this section. This is a mandatory requirement for this penal, fee-shifting provision. Because the overall subject is in derogation of the common law, all portions must be strictly construed.
Id. at 227.

Notwithstanding the Supreme Court’s decision in Campbell, Design Home relies on two eases from our Court — both of which predate the Campbell decision — to support its contention that prematurity is a mere “technical violation” and not fatal to the validity of a proposal for settlement.

Kuvin v. Keller Ladders, Inc., 797 So.2d 611 (Fla. 3d DCA 2001) is indistinguishable on its relevant facts from the instant case, and involved a premature offer of judgment made by a third-party defendant upon a third-party plaintiff. Our Court determined that, under the circumstances, this prematurity did not invalidate the offer:

[I]t seems clear cut that — while the ninety day provision may serve a useful purpose in the case of an offer to a defendant, who presumably is in no position to respond so soon after he first gets notice of the case — it seems to have no such reason for being, or any other, when, as here, an offer by the defendant is involved.Particularly in these circumstances in which the present action against Kuvin was brought only after six years of accumulation of information about the case, we find that, as we stated in Flight Express, Inc. v. Robinson, 736 So.2d 796, 797 n. 1 (Fla. 3d DCA 1999) any “failure to follow [rule 1.442] must be considered merely a harmless technical violation which did not affect the rights of the parties.” Kuvin, 797 So.2d at 613.

Shoppes of Liberty City, LLC v. Sotolongo, 932 So.2d 468 (Fla. 3d DCA 2006) is the second pre-Campbell case relied upon by Design Home. In Shoppes, this Court determined that the proposal for settlement was not premature. We held alternatively (and relying upon Kuvin), that even if the proposal was premature, the “mere prematurity of a defendant’s proposal for settlement does not disentitle it to recovery under the pertinent rule.” Id. at 469.

Regardless of the logic underlying the decisions in Kuvin and Shoppes, the Supreme Court’s subsequent decision in Campbell plainly and unambiguously rejects the notion that a failure to comply with the requirements of rule 1.442 and section 768.79 can be considered a “mere technical violation” thus preserving the validity of a proposal for settlement. To this extent, the Supreme Court’s pronouncement in Campbell has sub silentio overruled this Court’s holdings in both Kuvin and Shoppes. See, Hoffman v. Jones, 280 So.2d 431 (Fla.l973)(holding that district courts of appeal have no authority to overrule a decision of the Supreme Court of Florida; district courts are duty-bound to follow the decision of the Florida Supreme Court, even if it conflicts with a prior opinion of the district court). Design Home’s naked assertion that Kuvin and Shoppes somehow survived the holding of Campbell is simply untenable. The broad and unequivocal language of Campbell has covered the waterfront and, Design’s tacit argument notwithstanding, it is not necessary for the Supreme Court, in issuing an opinion that resolves a decisional conflict between the district courts, to catalogue every other intermediate appellate court decision that may be overruled in its wake.

Design Home was not included as a party in the lawsuit until the amended complaint, naming Design Home as a defendant, was filed on March 26, 2010. Design Home served its proposal on May 25, 2010, sixty days after the amended complaint was filed against Design Home, contrary to the rule’s requirement that “a proposal to a plaintiff shall be served no earlier than 90 days after the action has been commenced.” Thus, Design Home’s premature proposal for settlement violated the express ninety-day requirement of rule 1.442(b).

CONCLUSION

We recognize that, under the facts of the instant case, the result may appear harsh. But for the ninety-day timeframe established by the rule, a plaintiff might reasonably expect a defendant to make a proposal for settlement straightaway in response to a lawsuit, and it is difficult to conceive of a reason why a plaintiff would be unprepared to respond to such a proposal within the requisite thirty-day timeframe. However, the express language of the rule, together with the principle of strict construction and the holding in Campbell, lead inexorably to an affirmance of the trial court’s order.

Affirmed.

      . The American Rule states "that each party, including the successful one, in litigation must ordinarily bear the burden of his own attorneys’ fees.” General Motors Corp. v. Sanchez, 16 So.3d 883, 884 (Fla. 3d DCA 2009).

      . Section 768.79(2)(a) requires that an offer of judgment or demand for judgment ”[b]e in writing and state that it is being made pursuant to this section.” Rule 1.442(c)(1) provides: "A proposal shall be in writing and shall identify the applicable Florida law under which it is being made.”

        .McMullen Oil Co. v. ISS Int’l Svc. Sys., 698 So.2d 372 (Fla. 2d DCA 1997) (superceded by rule on other grounds) and Pippin v. Latosyn-ski, 622 So.2d 566 (Fla. 1st DCA 1993).

      . In fact, this Court has already acknowledged and followed the holding of Campbell without further reference to our prior decisions in Kuvin and Shoppes. See e.g., Milton v. Reyes, 22 So.3d 624 (Fla. 3d DCA 2009).

      . Although not raised by either party, we would agree with our sister court that the phrase "after the action has been commenced" means, in this context, after the action was commenced against Design Home — specifically, when Appellees filed their amended complaint adding Design Home as a named defendant. See, Regions Bank v. Rhodes, 126 So.3d 1259 (Fla. 4th DCA 2013).

      . Given the existence of the rule and its mandatory timeframes, however, one cannot ignore the possibility that in the instant case Appellees recognized the proposals were served prematurely and were invalid under Campbell, therefore requiring no response at all.

      . One cannot help but lament the often-tortuous history of offers of judgments/proposals for settlement and the valiant attempts to craft a rule that effectuates the statute’s intended purpose without procedural shortcomings that sometimes serve to frustrate good-faith settlement efforts. See e.g., Campbell, 959 So.2d at 227-28 (Pariente, J. specially concurring); Lamb v. Matetzschk, 906 So.2d 1037, 1042-44 (Fla.2005) (Pariente, J. specially concurring); Sec. Prof Is, Inc. v. Segall, 685 So.2d 1381, 1384 (Fla. 4th DCA 1997) (observing "[w]e regret that this case is just one more example of the offer of judgment statute causing a proliferation of litigation, rather than fostering its primary goal to ‘terminate all claims, end disputes, and obviate the need for further intervention of the judicial process.’ ”) (quoting Unicare Health Facilities, Inc. v. Mort, 553 So.2d 159, 161 (Fla.1989)).
      While we do not suggest the existence of an unassailable solution, we would encourage the Florida Bar's Civil Procedure Rules Committee to consider whether the rule should be amended to require an offeree to serve a limited response to a proposal (apart from the existing response provision in the rule), raising any procedural defects to the proposal, thereby providing the offeror with an opportunity to serve a corrected proposal, in an effort to effectuate the salutary purpose underlying a proposal for settlement. Should the offeree fail to serve such a response, the rule could provide that this failure waives any right to subsequently challenge the proposal based upon these procedural defects. Such an amendment would prevent situations in which an offeror might reasonably believe he has made a fair, valid and binding offer, only to find out (at the eventual conclusion of costly and lengthy litigation) that the offer was procedurally defective and therefore invalid ab initio. If the aim is to promote early and reasonable settlements, it seems worthwhile to consider whether the rule should be fashioned to give the offeror an opportunity to cure any procedural defects so that the offer-ee has a genuine opportunity to weigh the substantive merits of a proposal for settlement.


author: WELLS, Judge.

text:
    Blas GARCIA-MANRIQUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-2814.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2014.
    Rehearing Denied Sept. 17, 2014.
    Carlos J. Martinez, Public Defender, and Marti Rothenberg, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Michael W. Mervine, Assistant Attorney General, for appellee.
    Before WELLS, EMAS and FERNANDEZ, JJ.
   WELLS, Judge.

Bias Gareia-Manriquez appeals from a final judgment of conviction and sentence entered following a guilty plea. He claims that the court below erred in accepting a plea with which he did not entirely agree. Because the issue was not presented to the trial court in a timely motion to withdraw his plea, we are without jurisdiction to consider this claim:

Generally,- to obtain appellate review of a plea of guilty or no contest, the defendant must specifically reserve dis-positive issues for appeal or file a motion to withdraw the plea in the trial court. Bums v. State, 884 So.2d 1010, 1012 (Fla. 4th DCA 2004). Following a guilty or no contest plea, a defendant may appeal only the trial court’s lack of subject matter jurisdiction; a violation of a plea agreement, if preserved by a motion to withdraw the plea; an involuntary plea, if preserved by a motion to withdraw the plea; and a sentencing error, if preserved. Fla. R. App. P. 9.140(b)(2)(A); Liebman v. State, 853 So.2d 514, 515 (Fla. 4th DCA 2003).
... An issue relating to the voluntary and intelligent nature of the plea falls ■ within the limited class of issues which a defendant may raise on appeal from a guilty or no contest plea without having specifically reserved the right to do so. Robinson v. State, 373 So.2d 898, 902 (Fla.1979); Burns, 884 So.2d at 1013. However, before raising such an issue on appeal, the defendant must first file a motion to withdraw the plea with the trial court. Because Hicks failed to do so, we lack jurisdiction to consider his claim. Liebman.

Hicks v. State, 915 So.2d 740, 741 (Fla. 5th DCA 2005); see also Fla. R. App. P. 9.140(b)(2)(A).

Because Gareia-Manriquez failed to file a motion to withdraw his plea, we dismiss this appeal without prejudice to Gareia-Manriquez’ right to seek appropriate and timely post-conviction relief below.

Dismissed.


author: PER CURIAM.

text:
    Edgar NIVIA, Appellant, v. Aurora Loan Services, LLC, Appellee.
    No. 3D14-1409.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2014.

      Edgar Nivia, in proper person.
    Akerman LLP, and Nancy M. Wallace and Ryan M. O’Connor (Tallahassee); Ak-erman LLP, and William P. Heller (Fort Lauderdale), for appellee.
    Before ROTHENBERG, LOGUE and SCALES, JJ.
   PER CURIAM.

Appellant, Defendant below, appeals a non-final order directing the Miami-Dade County clerk of the court to issue a writ of possession related to property foreclosed upon by the plaintiff in December 2011.

Appellant’s Notice of Appeal was filed on June 10, 2014. Pursuant to Florida Rule of Appellate Procedure 9.130(e), Appellant’s Initial Brief was required to be served no later than June 25, 2014.

In response to Appellee’s July 8, 2014 Motion to Dismiss, on August 6, 2014, we issued an Order to Show Cause as to why the appeal should not be dismissed due to Appellant’s failure to timely file and serve his Initial Brief.

On August 18, 2014, Appellant responded to our Show Cause Order, and filed his Initial Brief and Appendix. We therefore deny as moot Appellee’s Motion to Dismiss, and discharge our Show Cause Order.

Upon consideration of Appellant’s Initial Brief and accompanying Appendix, and finding no preliminary basis for reversal has been demonstrated, the order below is summarily affirmed pursuant to Florida Rule of Appellate Procedure 9.315(a).

Affirmed.


text:
    O.A., a juvenile, Petitioner, v. The STATE of Florida, Repondent.
    No. 3D14-1277.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2014.
    Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for petitioner.

      Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for respondent.
    Before SUAREZ, EMAS and SCALES, JJ.
   PER CURIAM.

On May 30, 2014, O.A., a juvenile, filed an emergency petition for writ of habeas corpus seeking release from home detention. On June 2, 2014, this court issued a clerk’s order vacating the trial court’s order of home detention and directing the trial court to release O.A. to the custody of a parent or guardian. The clerk’s order noted that an opinion would follow.

O.A. was arrested on May 27, 2014, and charged with two third-degree felonies: (i) robbery by sudden snatching (section 812.131, Florida Statutes (2014)), and, (ii) possession of a controlled substance without a prescription (section 893.13(6)(a), Florida Statutes (2014)).

A juvenile’s detention status is determined by the trial court’s scoring of the juvenile based on, among other factors, the nature of the offense(s) charged. § 985.245 Fla. Stat. (2014).

At O.A.’s May 28, 2014, detention hearing, over the objection of O.A., the trial court classified the charged crime of robbery by sudden snatching as a “violent third-degree felony” resulting in an enhanced detention-status score for O.A.

Based on O.A.’s detention-status score, the trial judge ordered home detention for O.A. under section 985.255(l)(f), Florida Statutes.

In determining that portion of O.A.’s detention score attributable to the crime of robbery by sudden snatching, the trial judge did not have the benefit of our court’s recent decision in AM v. State, No. 3D14-1259, 147 So.3d 98, 2014 WL 3456157 (Fla. 3d DCA Aug. 6, 2014). In A.M., a case virtually indistinguishable from the instant case, this court held that robbery by sudden snatching is not a categorical “violent third-degree felony” when the crime is committed without the use of force beyond that which is necessary to obtain possession of the stolen property.

Hence, O.A.’s detention-status score was miscalculated resulting in O.A.’s improper detention. O.A.’s emergency petition for writ of habeas corpus is granted. See AM. v. State, No. 3D14-1259, 147 So.3d 98, 2014 WL 3456157 (Fla. 3d DCA Aug. 6, 2014).

      . The record reflects that the trial court relied on a written schedule prepared by Florida's Department of Juvenile Justice which, for the purpose of detention-status scoring, delineates which crimes are "violent.”


author: ROTHENBERG, J.

text:
    Nicholas BELANGER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-1750.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2014.

      Nicholas Belanger, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, LOGUE, and SCALES, JJ.
   ROTHENBERG, J.

The defendant, Nicholas Belanger, appeals the denial of his Florida Rule of Criminal Procedure 3.801 motion for additional jail credit. Based on our review of the defendant’s motion, we agree with the trial court that the defendant’s motion fails to include all of the information required by rule 3.801(c). However, because this was the defendant’s first attempt to file such a motion, the trial court erred by denying the defendant’s motion without giving the defendant leave to amend his motion. Accordingly, we reverse the order under review to allow the defendant to file a facially sufficient rule 3.801 motion within sixty days of the issuance of this Court’s mandate.

We briefly address the procedure that should be followed by trial courts when a defendant files a timely but facially insufficient rule 3.801 motion that disputes the amount of credit given for the time the defendant spent in the county jail prior to sentencing. Rule 3.801(e) incorporates portions of rule 3.850, including subsection (f). Rule 3.850(f)(2) provides:

(f) Procedure; Evidentiary Hearing; Disposition. On filing of a motion under this rule, the clerk shall forward the motion and file to the court. Disposition of the motion shall be in accordance with the following procedures, which are intended to result in a single, final, appealable order that disposes of all claims raised in the motion.
(2) Timely but Insufficient Motions. If the motion is insufficient on its face, and the motion is timely filed under this rule, the court shall enter a nonfinal, nonappealable order allowing the defendant 60 days to amend the motion. If the amended motion is still insufficient or if the defendant fails to file an amended motion within the time allowed for such amendment, the court, in its discretion, may permit the defendant an additional opportunity to amend the motion or may enter a final, appealable order summarily denying the motion with prejudice.

(Emphasis added).

Although the trial court concluded that the defendant’s timely-filed 3.801 motion was facially insufficient, it appears this was the defendant’s first attempt to file a facially sufficient rule 3.801 motion. Thus, the trial court should not have denied the motion and entered a final judgment advising the defendant that he had the right to file an appeal within thirty days of its rendition. Instead, the trial court should have entered “a nonfinal, nonappealable order allowing the defendant 60 days to amend the motion.” Fla. R. Crim. P. 3.850(f)(2); see also Spera v. State, 971 So.2d 754, 761-62 (Fla.2007) (holding that, “When a defendant’s initial rule 3.850 motion for postconviction relief is determined to be legally insufficient for failure to meet either the rule’s or other pleading requirements, the trial court abuses its discretion when it fails to allow the defendant at least one opportunity to amend the motion,” and limiting its ruling to motions deemed facially insufficient to support relief).

Reversed.

      . Rule 3.8 01 (c) provides:
      (c) Contents of Motion. The motion shall be under oath and include:
      (1) a brief statement of the facts relied on in support of the motion;
      (2) the dates, location of incarceration and total time for credit already provided;
      (3) the dates, location of incarceration and total time for credit the defendant contends was not properly awarded;
      (4) whether any other criminal charges were pending at the time of the incarceration noted in subdivision (c)(3), and if so, the location, case number and resolution of the charges; and
      (5) whether the defendant waived any county jail credit at the time of sentencing, and if so, the number of days waived.


text:
    Juan MENDOZA, Appellant, v. STATE of Florida, Appellee.
    No. 3D14-228.
    District Court of Appeal of Florida, Third District.
    Sept. 3, 2014.
    Juan Mendoza, in proper person.
    Pamela Jo Bondi, Attorney General, and Joanne Diez, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and SUAREZ and SALTER, JJ.
   PER CURIAM.

Affirmed without prejudice. See Casteel v. State, 141 So.3d 624 (Fla. 4th DCA 2014) (affirming without prejudice for appellant to file a sworn and legally sufficient motion under Fla. R. Crim. P. 3.801).


text:
    Tony Eugene EGGERS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3440.
    District Court of Appeal of Florida, First District.
    Sept. 4, 2014.
    Tony Eugene Eggers, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied as premature.

ROBERTS, MARSTILLER, and SWANSON, JJ., concur.


text:
    Teron D. HARRISON, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3743.
    District Court of Appeal of Florida, First District.
    Sept. 4, 2014.
    Teron D. Harrison, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

PADOVANO, THOMAS, and ROBERTS, JJ., concur.


text:
    Simmie KENDRY, Appellant, v. MEADOWLARK REAL ESTATE, LLC, Jeff Vigue; Rapid Funding Group; Randy Rugg; and Thomas C. Santoro, Appellees.
    No. 1D14-3497.
    District Court of Appeal of Florida, First District.
    Sept. 4, 2014.
    Simmie Kendry, pro se, Appellant.
    No appearance for Appellees.
   PER CURIAM.

DISMISSED. See Dedge v. Crosby, 914 So.2d 1055 (Fla. 1st DCA 2005).

PADOVANO, THOMAS, and ROBERTS, JJ., concur.


author: ORFINGER, J.

text:
    Emily Lynn BOOZER and Virgil Wright, III, Esq., Petitioners, v. Douglas STALLEY, as Guardian of, etc., et al., Respondents.
    No. 5D13-4365.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2014.

      Jane Anderson and Kansas R. Gooden, of Boyd & Jenerette, PA, Jacksonville, for Petitioner, Emily Boozer.
    R. David De Armas, of Cramer Price & De Armas, PA, Orlando, for Petitioner, Virgil Wright, III, Esq.
    Karissa L. Owens, of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Orlando; Sylvia H. Walbolt and Matthew J. Conigli-aro, of Carlton Fields Jordan Burt, P.A., Tampa, for Respondent, Holmes Regional Medical Center, Inc.
    Mark D. Tinker and Charles W. Hall, of Banker Lopez Gassier P.A., St. Peters-burg, for Respondents, Allstate Insurance Company and Allstate Indemnity Company.
    Shea Moxon and Angela Rodante, of Swope, Rodante P.A., Tampa, for Respondent, Douglas Stalley.
   ORFINGER, J.

Petitioners, Emily Lynn Boozer, and her attorney, Virgil Wright, III, seek certiorari review to quash the trial court’s order allowing Douglas Stalley, guardian of the property of Benjamin Hintz, to depose and obtain documents from Boozer’s attorney, Wright. We consider this case en banc, sua sponte, to recede from Dunn v. National Security Fire & Casualty Co., 631 So.2d 1103 (Fla. 5th DCA 1993), insofar as it addresses the discovery of attorney-client protected communications in bad faith insurance actions. We grant the petition and quash the order to the extent that it ordered Wright to submit to a deposition and produce documents without adequate consideration of Boozer’s attorney-client privilege.

Background

Benjamin Hintz was injured in a motor vehicle accident involving Boozer. Boozer’s liability for the accident was covered under at least two insurance policies, one issued by Allstate Indemnity Company and the other by Allstate Insurance Company (collectively, “Allstate”). Together, the two polices provided a total of $1.1 million in bodily injury liability coverage. Stalley, Hintz’s guardian, filed an auto negligence suit against Boozer, and Allstate retained Wright to defend her. Settlement discussions failed to resolve the dispute and following a trial, Stalley recovered a judgment against Boozer in excess of $11.1 million, which was not appealed. Allstate paid its policy limits of $1.1 million, leaving the remainder of the judgment unsatisfied. Stalley’s current efforts to collect on the judgment include filing a bad faith action against Allstate. Attorneys hired by Allstate, including Wright, have continued to appear on Boozer’s behalf in the post-judgment proceedings.

During the third-party bad faith litigation, Stalley sought to depose Boozer’s attorney, Wright, and subpoenaed his original files in the underlying action. Asserting the attorney-client privilege on behalf of Boozer and Allstate, Wright and Boozer moved for a protective order, asking the trial court to limit both the deposition and the document production to prevent the forced disclosure of attorney-client privileged information. At a hearing on the motion, Wright argued that he represented Boozer and their communications were protected by the attorney-client privilege. Wright explained that Boozer’s interests were not aligned with Stalley and that she had not assigned any of her rights to him. Relying on this Court’s decision in Dunn, Continental Casualty Co. v. Aqua Jet Filter Systems, Inc., 620 So.2d 1141 (Fla. 3d DCA 1993), and Baxley v. Geico General Insurance Co., No. 5:09cv343/RS/MD, 2010 WL 1780796 (N.D.Fla. May 4, 2010), the trial court denied Wright’s motion and his request to stay the deposition pending appellate review of the order.

Wright appeared for his scheduled deposition with the pleadings and correspondence from his file. He answered general questions concerning how his files were organized and the case management system that the firm used. However, after he refused to answer any questions or produce any documents related to his direct representation of Boozer, the deposition was adjourned. Wright and Boozer then filed the instant petition for writ of certio-rari, arguing that the trial court’s denial of the motion for protective order constituted a departure from the essential requirements of the law, which causes irreparable injury that cannot be remedied on appeal. Stalley responds that long-standing Florida precedent holds that in the context of third-party bad faith litigation, he stands in the shoes of Boozer and may obtain discovery of any materials that would be available to her, including those that would otherwise be protected by the attorney-client privilege.

Analysis

Certiorari review is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995); Montanez v. Publix Super Mkts., Inc., 135 So.3d 510, 512 (Fla. 5th DCA 2014). Discovery of certain types of information may cause material injury of an irreparable nature, including “cat out of the bag” material that constitutes work product or material protected by privilege. E.g., Langston, 655 So.2d at 94; Wilder v. Wilder, 993 So.2d 182, 184 (Fla. 2d DCA 2008); Am. Home Assur. Co. v. Vreeland, 973 So.2d 668, 671 (Fla. 2d DCA 2008). “When an order directs disclosure of information that is allegedly privileged, ‘[t]he next question is whether the order departs from the essential requirements of law.’ ” Coates v. Akerman, Senterfitt & Eidson, P.A., 940 So.2d 504, 506 (Fla. 2d DCA 2006) (quoting Estate of Stephens v. Galen Health Care, Inc., 911 So.2d 277, 279 (Fla. 2d DCA 2005)).

Whether a defense attorney retained to represent the insured and the insurer could be deposed and required to produce his file in a subsequent bad faith action brought by the injured party without an assignment from the insured was first considered in Boston Old Colony Insurance Co. v. Gutierrez, 325 So.2d 416, 416 (Fla. 3d DCA 1976). In allowing the attorney to be deposed, the third district explained:

In Shingleton v. Bussey, 223 So.2d 713 (Fla.1969), the Florida Supreme Court established the doctrine that an insured has the right to recover against his insurer because of the latter’s bad faith in failing to settle a claim against its insured within policy limits. In extending the Shingleton doctrine, the Florida Supreme Court held, in Thompson v. Commercial Union Insurance Company of New York, 250 So.2d 259 (Fla.1971), that a plaintiff in a personal injury action who obtained a judgment against a defendant in excess of the defendant’s insurance coverage could bring an action for bad faith against the insurance company without [an] assignment from the defendant insured on the third party beneficiary theory. It is well established that a third person can enforce a contract entered into between others for his benefit. See 81 A.L.R. 1279. As a third party beneficiary of the insurance policy, Gutierrez stands in the same posture as that of Brown, the insured. Just as Brown would be entitled to discovery, including deposition and production of files by the attorneys, since both he (Brown) and Boston Old Colony were their clients, Gutierrez has the same right of discovery in furtherance of the preparation of his case.

Id. at 417; see also 620 So.2d at 1142 (“[W]e find that the trial court correctly ruled that Aqua Jet had the right to obtain Kubicki Draper’s litigation files where the attorney-client and work product privileges do not preclude production of the files in a third party bad faith context.”); Stone v. Travelers Ins. Co., 326 So.2d 241, 243 (Fla. 3d DCA 1976) (citing Boston Old Colony, and holding plaintiff in third-party bad faith action against insurance company for failure to settle claim for policy limits is entitled to entire litigation file of insured’s counsel from inception of lawsuit until date that judgment was entered in underlying action since plaintiff judgment creditor stands in same posture as insured).

This Court had the opportunity to consider a similar issue in Dunn, when the plaintiff in a third-party bad faith claim sought the insurer’s claim and litigation file. In rejecting the insurer’s claim of work product and attorney-client privilege, we reasoned:

In bad faith suits against insurance companies for failure to settle within the policy limits, all materials in the insurance company’s claim file up to the date the judgment in the underlying suit are obtainable, and should be produced when sought by discovery. Continental Casualty Co. v. Aqua Jet Filter Systems, Inc., 620 So.2d 1141 (Fla. 3d DCA 1993); U.S. Fire Insurance Co. v. Clear-water Oaks Bank, 421 So.2d 783 (Fla. 2d DCA 1982); Aaron v. Allstate Insur- anee Co., 559 So.2d 275 (Fla. 4th DCA), rev. denied, 569 So.2d 1278 (Fla.1990); Koken v. American Service Mutual Insurance Co., Inc., 380 So.2d 805 (Fla. 3d DCA 1976); Stone v. Travelers Insurance Co., 326 So.2d 241 (Fla. 3d DCA 1976). Additional memos or documents in the file after date of the judgment can be obtained with a showing of good cause. Stone v. Travelers Insurance Co.
Discovery of the insurer’s claim file and litigation file is allowed in a bad faith case over the objections of the insurer that production of the file would violate the work product or attorney/client privilege. Continental Casualty Co. The rationale (as discussed above) is because the injured third party “stands in the shoes” of the insured party in a third party bad faith case and the insurer owed a fiduciary duty to its insured. Aaron v. Allstate Insurance Co.; Continental Casualty Co. v. Aqua Jet Filter Systems, Inc.

631 So.2d at 1109; see also United Seros. Auto. Ass’n v. Jennings, 731 So.2d 1258, 1260 (Fla.1999) (holding that victim stood in shoes of insured by virtue of stipulation that served as functional equivalent of excess judgment, and neither attorney-client nor work product privileges protected claims file through date of stipulation). Collectively, these decisions support Stal-ky’s argument, and the trial court’s ruling, that the attorney-client privilege does not prevent him from reviewing Wright’s tort litigation file or deposing Wright concerning his representation of Boozer in the underlying tort litigation. However, several decisions subsequent to Dunn and Jennings require us to rethink our holding that allowed discovery of attorney-client privileged information in bad faith actions.

In Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121, 1122 (Fla.2005), the Florida Supreme Court held that in first-party bad faith actions brought pursuant to section 624.155, Florida Statutes (2002), work product materials were discoverable. Important to our consideration of this case, the Ruiz decision moved away from past case law distinguishing first- and third-party bad faith actions, explaining that the enactment of section 624.155, “created a statutory first-party bad faith cause of action for first-party insureds” that “ushered out the distinction between first- and third-party statutory claims for the purposes of initiating bad faith actions.” Id. The court noted that “some court decisions have continued to draw inappropriate distinctions in defining the parameters of discovery in those bad faith actions,” but indicated that “any distinction between first- and third-party bad faith actions with regard to discovery purposes is unjustified and without support under section 624.155 and creates an overly formalistic distinction between substantively identical claims.” Id. at 1126, 1128. Making the point clearly, the court said that “[tjhere simply is no basis upon which to distinguish between first- and third-party cases with regard to the rationale of the discov-erability of the claim file type material.” Id. at 1129.

While Ruiz concerned work product, our Court implicitly recognized a shift in the landscape when we held in West Bend Mutual Insurance Co. v. Higgins, 9 So.3d 655, 658 (Fla. 5th DCA 2009), that in the context of a first-party bad faith proceeding, Ruiz did not extend to materials protected by the attorney-client privilege, reasoning:

Although the Florida Supreme Court has concluded that section 624.155 applies to first-party insurance disputes as well as third-party claims, and that the immunity from disclosure of the claim file based on work product ought not to apply, nothing in Ruiz suggests that the attorney-client privilege available to any contracting party, including insurers, somehow evaporates uniquely for insureds upon the filing of a bad-faith claim. We see nothing in Ruiz to suggest that a first-party insurer against whom a bad faith claim has been made is subject to the exposure of all its communications with its own counsel.

Other district courts and several federal courts in Florida have reached the same conclusion, holding that the attorney-client privilege continues to exist and be available to insurers that are defending statutory bad faith claims. See, e.g., State Farm Fla. Ins. Co. v. Seville Place Condo. Ass’n, 74 So.3d 105, 112 (Fla. 3d DCA 2011); State Farm Fla. Ins. Co. v. Puig, 62 So.3d 23, 26 (Fla. 3d DCA 2011); Progressive Express Ins. Co. v. Scoma, 975 So.2d 461, 465 (Fla. 2d DCA 2007); Liberty Mut. Fire Ins. Co. v. Bennett, 939 So.2d 1113, 1114 (Fla. 4th DCA 2006); XL Specialty Ins. Co. v. Aircraft Holdings, LLC, 929 So.2d 578, 583 (Fla. 1st DCA 2006); see also Coulter v. State Farm Mut. Auto. Ins. Co., No. 4:12cv577-WS/CAS, 2013 WL 6511560 (N.D.Fla. May 9, 2013); Trujillo v. USAA Cas. Ins. Co., No. 11-80320-CIV, 2012 WL 3516511 (S.D.Fla. Aug. 14, 2012).

In Genovese v. Provident Life & Accident Insurance Co., 74 So.3d 1064 (Fla.2011), a first-party bad faith case, the Florida Supreme Court considered whether Ruiz also allowed discovery of attorney-client privileged communications in the same circumstances. Genovese determined that, based on the differences between the work product doctrine and the attorney-client privilege and the justification for permitting the discovery of work product in the bad faith context, attorney-client communications were not discoverable. Specifically, the supreme court reasoned:

[T]he attorney-client privilege, unlike the work-product doctrine, is not concerned with the litigation needs of the opposing party. See Quarles & Brady, LLP v. Birdsall, 802 So.2d 1205, 1206 (Fla. 2d DCA 2002) (“[U]ndue hardship is not an exception, nor is disclosure permitted because the opposing party claims that the privileged information is necessary to prove their case.”) (citation omitted); see also West Bend Mutual Ins. Co. v. Higgins, 9 So.3d 655, 658 (Fla. 5th DCA 2009). Instead, the purpose of the privilege is to “encourage full and frank communication” between the attorney and the client. Id. at 657 (quoting Am. Tobacco v. State, 697 So.2d 1249, 1252 (Fla. 4th DCA 1997)). This significant goal of the privilege would be severely hampered if an insurer were aware that its communications with its attorney, which were not intended to be disclosed, could be revealed upon request by the insured. Moreover, we note that there is no exception provided under section 90.502 that allows the discovery of attorney-client privileged communications where the requesting party has demonstrated need and undue hardship.
Therefore, although we held in Ruiz that attorney work product in first-party bad faith actions was discoverable, this holding does not extend to attorney-client privileged communications. Consequently, when an insured party brings a bad faith claim against its insurer, the insured may not discover those privileged communications that occurred between the insurer and its counsel during the underlying action.
Although we conclude that the attorney-client privilege applies, we recognize that cases may arise where an insurer has hired an attorney to both investigate the underlying claim and render legal advice. Thus, the materials requested by the opposing party may implicate both the work product doctrine and the attorney-client privilege. Where a claim of privilege is asserted, the trial court should conduct an in-camera inspection to determine whether the sought-after materials are truly protected by the attorney-client privilege. If the trial court determines that the investigation performed by the attorney resulted in the preparation of materials that are required to be disclosed pursuant to Ruiz and did not involve the rendering of legal advice, then that material is discoverable.
Moreover, our opinion in this case is not intended to undermine any statutory or judicially created waiver or exception to the privilege. Specifically, we note that under the “at issue” doctrine, the discovery of attorney-client privileged communications between an insurer and its counsel is permitted where the insurer raises the advice of its counsel as a defense in the action and the communication is necessary to establish the defense. See Coates v. Akerman, Senter-fitt & Eidson, P.A., 940 So.2d 504, 510 (Fla. 2d DCA 2006); see also Savino v. Luciano, 92 So.2d 817, 819 (Fla.1957) (“[W]hen a party has filed a claim, based upon a matter ordinarily privileged, the proof of which will necessarily require that the privileged matter be offered in evidence, we think that he has waived his right to insist, in pretrial discovery proceedings, that the matter is privileged.”). Thus, we acknowledge that the attorney-client privilege may also be overcome in first-party bad faith actions in limited circumstances, although we emphasize that attorney-client privileged communications are not the discoverable materials discussed by our opinion in Ruiz.

Id. at 1068-69.

As the supreme court limited its holding in Genovese to the certified question it addressed, a question remains, at least in this district, regarding the effect of that holding on discovery requests in third-party bad faith proceedings involving the attorney-client privilege as presented here. Somewhat presciently, prior to the supreme court’s decision in Genovese, the second district examined a closely-related issue in Scoma, 975 So.2d 461. There, the personal representative of the deceased victim filed a third-party bad faith action against the insurer based on the insurer’s purported bad faith in failing to settle the insurance claim made against its insured. The insured did not assign any bad faith claim that he might have had against the insurer to the personal representative. Id. at 463-64. Still, arguing that she stood in the shoes of the insured for purposes of the third-party bad faith action, the personal representative sought discovery of all documents in the possession of the insurer, Progressive, related to the initial claim. She further contended that the attorney-client privilege did not apply to any confidential communications between the insured, Progressive, and their respective counsel in the underlying tort litigation. Id. at 464.

The trial court, relying on this Court’s holding in Dunn and the third district’s holding in Aqua Jet, concluded that the attorney-client privilege did not protect confidential communications made by the insurer and the insured with their counsel during the underlying tort suit from discovery. On certiorari review, the second district quashed the order, holding that communications between the insurer and its counsel were protected by the attorney-client privilege. Id. at 465, 467. The court explained that:

There are two separate claims of attorney-client privilege at issue. First, [the insurer] seeks to protect its confidential communications with its counsel regarding [the personal representative]’s wrongful death suit. Second, [the insurer] seeks to protect [the insured]’s confidential communications with the attorney who represented him in the wrongful death suit. From our limited record, it appears that there is only one attorney who may have had confidential communications with both [the insurer] and [the insured]. It is at least possible, however, that [the insurer] may have had individual counsel at some point during the wrongful death proceedings and may have had confidential communications with that counsel.
We conclude that any communications between [the insurer] and its personal counsel are clearly protected by the attorney-client privilege. Moreover, we conclude that although [the personal representative] may “stand in the shoes” of [the insured] for the purposes of standing to bring a bad faith action, that position does not permit her access to otherwise privileged communications between [the insured] and his counsel in the wrongful death action, at least in the absence of a waiver of the privilege by [the insured] or his written assignment of the bad faith claim. A person does not waive or otherwise lose an attorney-client privilege merely because a third party is authorized to file a lawsuit against the person’s insurance company.

Id. at 464-65.

Recently, in Maharaj v. GEICO Casualty Co., 289 F.R.D. 666 (S.D.Fla.2013), the United States District Court for the Southern District of Florida faced a similar issue when a plaintiff in a third-party bad faith action sought discovery of the insurer’s claim file and the insurer objected to the discovery based on the attorney-client privilege. The magistrate judge summarized the issue as follows:

The Florida Supreme Court in Genovese v. Provident Life & Accident Ins. Co., 74 So.3d 1064 (Fla.2011), held that attorney-client privileged communications are not discoverable in first-party bad faith actions. The instant case is a third-party bad faith action. In their supplemental memoranda, the parties disagree as to whether the Genovese decision applies in the third-party bad faith context as well. As there is no dispute that the case at hand is a third-party bad faith ease, this Court must determine whether the legal analysis in Genovese should apply to the facts of this case.

Id. at 669. The magistrate judge then determined that Genovese applied, allowing attorney-client privilege in third-party bad faith actions, and explained:

Based on the Florida Supreme Court’s language in Ruiz and the rationale in Genovese, this Court determines that the holding in Genovese, which protects attorney-client privileged documents in an insurer’s claim file in a first-party bad faith action, should be equally applicable in a third-party bad faith action. The Court is cognizant of the fact that the express language of Genovese limits its holding to the first-party bad faith context, but the Court sees no reason why the legal analysis utilized in Ge-novese regarding the application of the attorney-client privilege to the insurer’s claims file would not be equally relevant in a third-party bad faith case. In fact, it would seem incongruous to uphold the attorney-client privilege in a first-party bad faith action and eviscerate it in a third-party bad faith action. The Florida Supreme Court itself diminished, if not eliminated, the distinction for discovery purposes between the two types of cases in Ruiz.

Additionally, in Justice Pariente’s specially concurring opinion in Genovese, in which Justices Lewis, Labarga, and Perry concurred, she cited the following language from the Ruiz opinion:

The insurers’ duties set forth in section 624.155 to act “fairly and honestly toward [their] insured and with due regard for her or his interests” imposes a statutory obligation in first-party claims that is identical to the common law duty of good faith imposed on insurers in third-party claims. This was the essence of our holding in Allstate Indemnity Co. v. Ruiz, 899 So.2d 1121 (Fla.2005), which recognized the critical role that discovery of the claims file played in bad faith claims and held that there should not be “artificial and disparate discovery rules between first- and third-party bad faith claims [sic].” Id. at 1129. “There simply is no basis upon which to distinguish between first- and third-party cases with regard to the rationale of the discoverability of the claim file type material.” Id.

Genovese, 74 So.3d 1064, 1069. Later in her special concurrence, Justice Par-iente also asserted, “[y]et, while we strived in Ruiz to level the playing field in the critical area of discovery between first- and third-party bad faith cases, we must acknowledge that we do not have the independent authority to abrogate the attorney-client privilege, even in the context of bad faith claims.” Id. at 1070. The special concurrence gives further weight to this Court’s determination that Genovese should apply in a third-party bad faith case so as to protect attorney-client privileged materials in an insurer’s claim file. Based on the above, the communications between the insured, Junie Telfort, and her counsel, Kubicki Draper, are clearly protected by the attorney-client privilege.

Id. at 670-71.

The magistrate judge’s order in Maha-raj is a logical extension of the Florida Supreme Court’s determinations in Ruiz and Genovese, and the second district’s holding in Scoma. Thus, we believe that we should adopt the holdings of Scoma and Maharaj and recede from Dunn to the extent it allows the unqualified discovery of attorney-client protected material. The fact that Stalley may stand in Boozer’s shoes, or have an independent right to bring a bad faith action under section 627.155, does not mean that Boozer gave up her statutory attorney-client privilege, codified in section 90.502, Florida Statutes (2009). There is no indication that Stalley obtained an assignment from Boozer, and it is clear that their interests are adverse.

Recognizing the uncertainty of the law in this important area, we certify the following question to the Florida Supreme Court:

DO THE DECISIONS IN ALLSTATE INDEMNITY CO. V. RUIZ, 899 So.2d 1121 (Fla.2005), AND GENOVESE V PROVIDENT LIFE & ACCIDENT INSURANCE CO., 74 So.3d 1064 (Fla. 2011), SHIELD ATTORNEY-CLIENT PRIVILEGED COMMUNICATIONS FROM DISCOVERY IN THIRD-PARTY BAD FAITH LITIGATION?

ORDER QUASHED; QUESTION CERTIFIED.

TORPY, C.J., SAWAYA, PALMER, LAWSON, EVANDER, COHEN, BERGER, WALLIS and LAMBERT, JJ. concur.

Id.

      . Moreover, in Ruiz, the supreme court favorably cited this Court’s holding in Dunn (as well as it’s prior opinion in Jennings and the third district’s holdings in Gutierrez and Aqua Jet), for the principal that ’’discovery of the insurer’s underlying claim file type material is permitted over the objections of work product protection," 899 So.2d at 1126, and concluded that an insurer’s work product objection to discovery of the insurer’s claim file in a bad faith action "does not automatically operate to protect such documents from discovery,” id. at 1131. The court explained that
      in connection with evaluating the obligation to process claims in good faith under section 624.155, all materials, including documents, memoranda, and letters, contained in the underlying claim and related litigation file material that was created up to and including the date of resolution of the underlying disputed matter and pertain in any way to coverage, benefits, liability, or damages, should also be produced in a first-party bad faith action. Further, all such materials prepared after the resolution of the underlying disputed matter and initiation of the bad faith action may be subject to production upon a showing of good cause or pursuant to an order of the court following an in-camera inspection.

        Id. at 1129-30.

      . In West Bend, the insured was attempting to obtain attorney-client material from the insurer’s own attorney, not the attorney retained by the insurer to represent the insured.

      . The district court adopted the magistrate judge’s order in Maharaj in an unreported order. See Maharaj v. GEICO Cas. Co., No. 12-80582-CIV, 2013 WL 1934075 (S.D.Fla. Apr. 5, 2013).

      . In 1998, the Supreme Court of Appeals of West Virginia expressly disagreed with this Court’s holding in Dunn. See State ex rel. Allstate Ins. Co. v. Gaughan, 203 W.Va. 358, 508 S.E.2d 75, 88 (1998). Referring to this Court’s position in Dunn as the "minority view," the court in Gaughan stated as follows:
      We do not hesitate in rejecting the minority approach to the issue of whether an insurer has standing to invoke the attorney-client privilege and work product rule in an attempt to prevent disclosure of the contents of an insured’s file in a third-party bad faith action. The minority position is unsound. It seriously undermines the relationship between an insured and insurer. By overemphasizing a party’s right to obtain disclosure of evidence to prove a third party claim of bad faith, the minority neglects the importance of "full and frank consultation between a client and a legal advisor [without] the fear of compelled disclosure of information.” State ex rel. USF & G v. Canady, 194 W.Va. [431] 438, 460 S.E.2d [677,] 684 [(W.Va. 1995)].

        . Communications solely between Allstate and its separate counsel do not appear to be at issue here and would not be discoverable. Scoma, 975 So.2d at 467; West Bend, 9 So.3d at 658. Neither can we determine from the limited record before us if Wright represented solely Boozer or Boozer and Allstate or shared confidential information with Allstate in which event the "common interests” or "pooled information” exception to the waiver doctrine would need to be considered. See, e.g., MapleWood Partners, L.P. v. Indian Harbor Ins. Co., 295 F.R.D. 550, 594 (S.D.Fla. 2013); Cone v. Culverhouse, 687 So.2d 888 (Fla. 2d DCA 1997); Visual Scene, Inc. v. Pilldngton Bros, pic., 508 So.2d 437 (Fla. 3d DCA 1987).


text:
    John M. CAVE, Appellant, v. Elizabeth Colon CAVE, Appellee.
    No. 5D14-1129.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2014.
    John Cave, Lake Butler, pro se.
    No Appearance for Appellee.
   PER CURIAM.

John Cave appeals the summary denial of his motion to dissolve an injunction for protection previously entered against him. Because Cave’s motion sufficiently alleged that circumstances had changed subsequent to denial of his earlier motions to dissolve, he was entitled to an evidentiary hearing. See Raymonvil v. Lewis, 46 So.3d 189 (Fla. 5th DCA 2010).

REVERSED and REMANDED.

EVANDER, LAMBERT, JJ., and HARRIS, C. M., Senior Judge, concur.


text:
    Cristina RABAGO, Appellant, v. GUARDIANSHIP OF Evelyn M. STROBAK, Appellee.
    No. 5D13-2641.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2014.
    David C. Brennan and Sancha Brennan Whynot of The Brennan Law Firm, Orlando, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

We reverse the order reducing Appellant’s fees for her services as guardian of Evelyn M. Strobak because the trial court did so without affording Appellant a hearing with an opportunity to present evidence and otherwise be heard. Shappell v. Guardianship of Naybar, 876 So.2d 690, 691 (Fla. 2d DCA 2004). We remand this cause for a hearing on the petition.

REVERSED AND REMANDED.

TORPY, C.J., EVANDER and LAMBERT, JJ., concur.


text:
    SCHOOL DISTRICT OF ORANGE COUNTY, Florida, Appellant, v. ORANGE COUNTY CLASSROOM TEACHERS ASSOCIATION, Appellee.
    No. 5D13-3609.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2014.
    Charles R. Fawsett and Paul J. Scheck of Shutts & Bowen, LLP, Orlando, and John C. Palmerini, Orlando, for Appellant.
    Tobe M. Lev and Suzanne Tzuanos of Egan, Lev & Siwica, P.A., Orlando, for Appellee.
   PER CURIAM.

AFFIRMED. See Sch. Dist. of Orange Cnty., Fla. v. Orange Cnty. Classroom Teachers Ass’n, — So.3d -(Fla. 5th DCA 2014).

SAWAYA, COHEN, JJ„ and FOXMAN, D.H., Associate Judge, concur.


text:
    Charles SCHWADES and Cathy Schwades, Appellants, v. AMERICA’S WHOLESALE LENDER, et al., Appellees.
    No. 5D13-3518.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2014.
    Kelley A. Bosecker, St. Petersburg, for Appellant.
    Allison Morat and Ronnie J. Bitman, of Pearson Bitman LLP, Maitland, for Appel-lee.
    K. Denise Haire, of Blank Rome, LLP, Boca Raton, for Appellee.
   PER CURIAM.

Charles and Cathy Schwades voluntarily dismissed this appeal; however, we order that this case be remanded to the trial court because we conclude that a sanction in the form of the imposition of appellate attorney’s fees is warranted.

In this case, the appellants argued that the trial court erred in dismissing their quiet title action. The basis of the action (i.e., that the appellee banks waived all rights secured by the note and mortgage by failing to respond to the Appellant’s demand that they prove the debt), was essentially the same as that in Badgley v. Suntrust Mortg. Inc., 134 So.3d 559 (Fla. 5th DCA 2014); Badgley involved the same appellate attorney as here, Kelley Bosecker. In Badgley, we affirmed the trial court’s dismissal order and ordered the appellant and Bosecker to pay Sun-Bank section 57.105(1), Florida Statutes, attorney’s fees based upon the frivolous nature of the appeal. We conclude that the instant appeal is similarly frivolous.

The appellants further argued that the trial court reversibly erred in not permitting them an opportunity to amend their complaint; however, the record establishes that they never requested leave to amend (in spite of assertions to the contrary made by Bosecker during oral argument). In addition, as to America’s Wholesale Lender (Lender), the appellants asserted claims for appellate relief against Lender, notwithstanding the fact that the record demonstrates that Bosecker advised the trial court that she was willing to voluntarily dismiss the claims against Lender with prejudice. During oral argument, Bosecker initially denied that she had agreed to dismiss the claims related to the Lender, although she ultimately conceded to the contrary. She also stated that, if successful on appeal, she would voluntarily dismiss the claims against Lender.

The appellants’ attorney, Kelley Bosecker, knew or should have known, since the filing of her initial brief, that the claims asserted therein were not supported by the material facts of record. As such, counsel acted in bad faith in this matter. Therefore, we sua sponte award the appel-lees attorney’s fees for this appeal. See Badgley, 134 So.3d at 560; Santini v. Cleveland Clinic Fla., 65 So.3d 22, 41 (Fla. 4th DCA 2011). Accordingly, we order the appellants and Attorney Bosecker to each pay one-half of the reasonable attorney’s fees and costs incurred by the appellees in this appeal, and remand this case to the trial court for the purpose of properly assessing the amount of such fees.

Lastly, the filing of frivolous claims by Attorney Bosecker is not an isolated incident in our court, but rather, similar claims have been raised in the federal courts. Under such circumstances, several federal courts have subjected Bosecker to sanctions. See Fitzgerald v. Regions Bank, 5:13-CV-36-OC-10PRL, 2014 WL 129066 (M.D.Fla. Jan. 14, 2014); Calderon v. Merck. & S. Bank, 5:13-CV-85-OC-22PRL, 2013 WL 5798565 (M.D.Fla. Oct. 28, 2013); Huff v. Regions Bank, No. 5:13-CV-63-OC-22, 2013 WL 5651807 (M.D.Fla. Oct. 15, 2013); Barrios v. Regions Bank, No. 5:13-CV-29-OC-22PRL, 2013 WL 5230653 (M.D.Fla. Sept. 16, 2013); Gonzalez v. GMAC Mortg., No. 5:13-CV-72-OC-22PRL, 2013 WL 4767872 (M.D.Fla. Aug. 23, 2013). Accordingly, we direct the Clerk of this Court to forward this opinion to the Florida Bar for its examination of the conduct of Attorney Bosecker.

REMANDED.

PALMER, EVANDER and WALLIS, JJ., concur.

      . See § 57.105(1), Fla. Stat. (2011).


text:
    Christopher ORIZONDO, Appellant, v. Cheryl L. ORIZONDO, Appellee.
    No. 5D13-4251.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2014.

      Eduardo J. Mejias of AAA Family Law, LLC, Altamonte Springs, for Appellant.
    Rose M. Marsh, Orlando, for Appellee.
   PER CURIAM.

Christopher Orizondo (Former Husband) appeals the final judgment dissolving his marriage to Cheryl Orizondo (Former Wife). The parties had two daughters born of the marriage: one is already eighteen, and the other will be turning eighteen in less than six months. The parties agreed to allow the trial judge to meet with the daughters and consider their desires with regard to time-sharing. No ruling on time-sharing was going to repair the strained relationship between Former Husband and his daughters. However, the trial court’s admitted abdication to the desires of the children constitutes reversible error. See Perez v. Perez, 767 So.2d 513, 518-19 (Fla. 3d DCA 2000); Elkins v. Vanden Bosch, 433 So.2d 1251, 1252 (Fla. 3d DCA 1983).

We also find that other portions of the final judgment must be reversed. The trial court set child support at $791 per month, pursuant to the child support guidelines, and determined the arrearage to be $8,756. Neither party disputed these amounts. When the trial court asked for a suggested amount for payment of the arrearage, Former Wife recommended $500 per month and Former Husband suggested ten percent. Apparently, the trial court interpreted Former Husband’s suggestion to mean ten percent of the total arrearage: $875.60 per month. However, Former Husband, via his counsel, intended to suggest ten percent of the monthly obligation. Under the trial court’s interpretation, the amount required to be paid for the arrearage was greater than the monthly child support obligation. A review of Former Husband’s financial affidavit reflects an inability to meet both his own expenses and the combined child support award. We remand for the trial court to reconsider the arrearage payments. The court may take into consideration the age of the children in establishing the monthly arrearage payment.

Additionally, as conceded by Former Wife, the unequal allocation of uncovered reasonable and necessary medical expenses constituted error. The parties’ incomes were substantially equal. On remand, Former Husband shall be responsible for fifty percent of such expenses.

Lastly, the parties listed their various liabilities and noted that none were being paid. On remand, despite the nonpayment, the final judgment should allocate the liabilities and include factual findings to support the allocation. See § 61.075, Fla. Stat. (2018).

The remaining issues raised on appeal were either not preserved or lack merit.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

EVANDER, COHEN, JJ„ and HARRIS, C.M., Senior Judge, concur.

      . This will necessitate the entry of a new income deduction order, mooting other issues raised on appeal.


author: PALMER, J.

text:
    Connie BEAL, Appellant, v. Robert BEAL, Appellee.
    No. 5D13-936.
    District Court of Appeal of Florida, Fifth District.
    Sept. 5, 2014.
    Rhonda D. Portwood, of Law Office of R. Portwood, PL, Inverness, for Appellant.

      Patricia M. Moring, of Moring & Mor-ing, P.A., Crystal River, for Appellee.
   PALMER, J.

Connie Beal (Ms. Beal) timely appeals the trial court’s final order on dissolution of marriage. Determining that the trial court erred in awarding alimony and attorney’s fees, we affirm in part, reverse in part, and remand for further proceedings.

Ms. Beal filed a petition seeking dissolution of her twelve-year marriage to Robert Beal. There were no children born of this marriage, so all of the issues tried below were financial.

Pursuant to the parties’ Partial Meditated Settlement Agreement, Mr. Beal received sole ownership of the marital residence; however, he agreed to refinance the residence and to give $4,000 of the proceeds to Ms. Beal. Because the parties could not reach an agreement regarding alimony or the payment of Ms. Beal’s attorney’s fees, the matter proceeded to trial.

Ms. Beal testified that she is totally disabled from a severe arthritic condition in her spine and, as a result of her condition, she is unable to work. She receives disability payments in the amount of $1,189 per month. Ms. Beal testified that a villa comparable to her marital home would cost approximately $850 per month. Ms. Beal’s counsel introduced into evidence the parties’ tax returns for 2007-2012. Those tax returns indicate that Mr. Beal’s adjusted gross income ranged from approximately $91,000 to over $101,000 between 2007 and 2011. Mr. Beal’s 2012 W-2 indicated that he earned $94,289.80. Nevertheless, Mr. Beal testified that his salary was only $72,000 per year. He explained that the discrepancy between his current salary and the pay listed on his W-2 and tax returns is due to a decrease in his travel expenses and overtime pay. Mr. Beal testified that he no longer travels for his job and that overtime pay is no longer available.

Upon conclusion of the evidence, the trial court drafted a final order, ruling as follows:

Mr. Beal shall pay Ms. Beal $300.00 per month in bridge-the-gap alimony for two years, beginning March 1, 2013 and ending February 1, 2015. Ms. Beal will have additional funds from the settlement agreement to help in establishing a new residence. In six years, she will have an additional $1450.00 per month from Mr. Beal’s pension.
As to attorney fees, Ms. Beal has paid her attorney $1600.00, but still owes an additional $2385.00 after trial. Ms. Beal has very limited income at this point, and Mr. Beal will have to help in those fees. He shall pay $1200.00 of her attorney fees, to be paid no less than $100.00 per month ... Ms. Beal will be responsible for the balance of the fee.

This appeal timely followed.

Although Ms. Beal raises a number of issues, we need to address only two. First, Ms. Beal argues that the trial court erred in awarding an amount of alimony which requires her to use her equitable distribution assets to pay for certain living expenses. We agree.

A trial court has considerable discretion in determining an award of alimony, and that determination is reviewed for an abuse of discretion. See, e.g., Marshall v. Marshall, 953 So.2d 23, 25-26 (Fla. 5th DCA 2007) (citing Canalcañs v. Canakans, 382 So.2d 1197 (Fla.1980)). However, whether a trial court applied the correct legal standard is a question of law reviewed de novo. Henderson v. Henderson, 905 So.2d 901, 903 (Fla. 2d DCA 2005).

In its final order, the trial court acknowledged that Ms. Beal’s disability prevents her from working and that her disability payments are her sole source of income. In the very next sentence, the trial court found that “[Ms. Beal] will be receiving $4000 within the next six months to help establish a residence.” This $4,000 payment was a provision in the parties’ mediated equitable distribution agreement, which makes no reference as to how Ms. Beal should use these funds. Not only did the trial court expect Ms. Beal to deplete her assets to pay for living expenses, the trial court’s findings suggest that Ms. Beal’s equitable distribution assets played a significant role in determining the amount and type of alimony to award, since the amount of alimony awarded appears inadequate to cover her reasonable living expenses. Florida law has consistently held that, while equitable distribution can have an influence on alimony, a former spouse is not required to deplete her assets to provide for her living expenses. See, e.g., Wright v. Wright, 135 So.3d 1142, 1145 (Fla. 5th DCA 2014); Grill v. Grill, 123 So.3d 683, 684 (Fla. 2d DCA 2013); Weimer v. Weimer, 677 So.2d 86, 87 (Fla. 4th DCA 1996); see Blakistone v. Blakistone, 462 So.2d 883 (Fla. 2d DCA 1985); De Cenzo v. De Cenzo, 433 So.2d 1316 (Fla. 3d DCA 1983). Therefore, we reverse the trial court’s alimony award and remand to the trial court to reconsider Ms. Beal’s claim for alimony.

Second, Ms. Beal contends that the trial court erred in failing to award her the full amount of her attorney’s fees. She argues that, in light of the disparity in the parties’ respective financial positions, the trial court abused its discretion in failing to order Mr. Beal to pay the entire amount of her attorney’s fees. Because reconsideration of Ms. Beal’s alimony claim is necessary, on remand the trial court will need to revisit the issue of Ms. Beal’s attorney’s fees.

Accordingly, we affirm the final judgment of dissolution of marriage in part, but reverse and remand as it relates to alimony and attorney’s fees.

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

ORFINGER and LAWSON, JJ., concur.