author: JACOBUS, J.

text:
    Jerome FLESCHER and Elsa Flescher, et al., Appellants, v. OAK RUN ASSOCIATES, LTD., Appellee.
    Case Nos. 5D12-2575, 5D12-3254.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2013.

      Carol M. Anderson, of Anderson & Anderson, P.A., The Villages, for Appellants.
    Wm. Patrick Fulford of Wright, Fulford, Moorhead & Brown, P.A., Altamonte Springs, for Appellee.
   JACOBUS, J.

This is an appeal by individual homeowners in a large-scale development from a summary judgment that rejected their challenge to the amendment to their declarations by the developer. The amendment permitted the developer to keep the money left over from the homeowners’ annual dues rather than place them in a reserve account for future expenses. The amendment also relieved the developer from certain obligations that it undertook in the declaration for maintaining the lawns and landscaped areas of the common and recreation areas in the development. In addition, the homeowners appeal the trial court’s finding that section 720.3086, Florida Statutes, did not require the developer to account annually as to the collection of assessments and the expenses. We affirm in part and reverse in part.

Oak Run consists of twenty-five neighborhoods with approximately 3,439 homes. Between 1985 and 2008, the developer recorded declarations with respect to each association within Oak Run as each neighborhood was developed. All of the declarations are materially the same as the first declaration recorded in 1985. As part of its development plan, the developer retained ownership and control of the common areas and recreation facilities within Oak Run. The declarations required each homeowner to pay: (1) an annual assessment payable in twelve monthly installments, (2) any special assessments deemed appropriate by the developer for violations of the declarations, and (3) road and drainage assessments. A base amount for fees was set in each declaration. After the first three years and at the Developer’s discretion, the fee amount would vary yearly. Prior to May 6, 2005, Article VI, Section I, of the declaration required the annual assessment to be applied not only to the recreation and common areas, but to additional items such as utility cost, garbage and trash collections, security, cable television reception service, Oak Run’s closed-circuit television channel, roads and drainage facilities. The provision also stated that the assessment could be used to fund the creation of reasonable reserves, stating:

Covenants for Maintenance Assessments

Section 1. Purpose of Assessments. The assessments levied by the Declarant shall be used in the sole and absolute discretion of the Declarant for the purpose of promoting the recreation, health, safety and welfare of the residents in Oak Run; constructing, maintaining, operating, repairing and replacing improvements on the Common Areas and Recreational Areas; enforcing the Covenants and Restrictions; and for the maintenance, operation, repairing and replacing of properties, services, and facilities which have been constructed, installed or furnished, which are devoted to the purpose and related to the use and enjoyment of the Common Areas and Recreational Areas including, but not limited to, the payment of taxes, and insurance thereto, on the Common Areas and Recreational Areas, and repair, replacement, and additions thereto, and for the cost of labor, equipment, materials, management and supervision thereof. The assessments shall also be used for maintaining the laums and landscaped areas of the Common Areas and Recreational Areas, and for all utility costs including electricity, water, gas and telephone used in connection with the foregoing, garbage and trash collections, twenty-four hour security service, cable television reception service, and an exclusive closed circuit Oak Run television channel, and for road and drainage facilities, repair and maintenance. The assessment may also provide reasonable reserves for deferred maintenance and replacements, for construction of Common Areas, Recreational Areas, and shall be used as a mean of enforcing compliance with these restrictions.

(emphasis added).

On May 6, 2005, the developer recorded an amendment to the declarations which deleted those portions of the provision underlined above. As amended, the new provision limited the use of the assessments to the common areas and recreational areas, and allowed the developer to retain any unused assessments, effectively preventing the creation of any reserves. The new provision stated as follows:

Covenants for Maintenance Assessments

Section 1. Purpose of Assessments. The assessments levied by the Declarant shall be used in the sole and absolute discretion of the Declarant for the purpose of promoting the recreation, health, safety and welfare of the residents in Oak Run; constructing, maintaining, operating, repairing and replacing improvements on the Common Areas and Recreational Areas; enforcing the Covenants and Restrictions; and for the maintenance, operating, repairing and replacing of properties, services, and facilities which have been constructed, installed or furnished, or may subsequently be constructed, installed or furnished, which are devoted to the purpose and related to the use and enjoyment of the Common Areas and Recreational Areas including, but not limited to, the payment of taxes, and insurance thereto, on the Common Areas and Recreational Areas, and repair, replacement and additions thereto, and for the cost of labor, equipment, materials, management and supervision thereof. Owners acknowledge that the payment of this assessment is a fee for those services provided by the Declarant and is not intended to represent a prorated share of actual expenses and the Declarant is entitled to retain any excess amounts collected from the Owners over cost and expense in providing such services.

(emphasis added). The amendment was made on the authority of provisions in the declaration that permitted the developer to amend the declaration in its sole and absolute discretion.

The homeowners’ amended complaint contained seven counts against the developer and the developer’s president. Counts 1 and 2 sought declaratory and injunctive relief regarding the amendment to Article VI, Section 1; counts 3 and 4 sought declaratory and injunctive relief regarding the developer’s alleged failure to comply with the financial disclosure requirements of section 720.3086, Florida Statutes, for the years 2005 through 2010; counts 5 and 6 sought restitution from Oak Run and its general partner respectively; and count 7 sought damages from the president of the developer for conversion.

Both parties filed cross-motions for summary judgment as to count 1, with the homeowners contending that the developer’s right to amend the declaration was limited by an implied “reasonableness test” and the amendment was invalid as it substantially changed the character of the development. The lower court ruled against homeowners on this issue, which foreclosed their claims on counts 2 and 5 through 7 of the complaint. The developer also moved for and was granted summary judgment on counts 3 and 4 of the complaint regarding its alleged duty to comply with the financial disclosure requirements of section 720.3086, Florida Statutes, for the years 2005 through 2010, concluding all of homeowners’ claims.

We affirm in part and reverse in part with respect to the ruling on count 1, concerning the amendment to Article VI, Section 1. We recognize that a developer has the right to amend, alter, modify or change restrictive covenants if the right is reserved and the reservation is reasonable. Carrigan & Boland, Inc. v. Worrock, 402 So.2d 514, 517 (Fla. 5th DCA 1981). However, Florida has recognized at least one implied limitation on the right to amend, which is “that the reserved power be exercised in a reasonable manner so as not to destroy the general plan.” Nelle v. Loch Haven Homeowners’ Ass’n, 413 So.2d 28, 29 (Fla.1982). The Restatement (Third) of Property recognizes the same limitation, but imposes an additional restriction that the developer may not materially change the burdens on the existing community members unless they are apprised of this possibility by the declaration. Specifically, it provides:

A developer may not exercise a power to amend or modify the declaration in a way that would materially change the character of the development or the burdens on the existing community members unless the declaration fairly apprises purchasers that the power could be used for the kind of change proposed.

Restatement (Third) of Property § 6.21 (2000). In Klinow v. Island Court at Boca West Property Owners’ Ass’n, 64 So.3d 177, 180 (Fla. 4th DCA 2011), the Fourth District also held that an amendment to a declaration will be impermissible if it effectuates a “radical change of plans,” which was defined, in turn, as “a change which would create an inconsistent scheme, or a deviation in benefit from that of the grantee to that of the grantor.” Id. (citing Flamingo Ranch Estates, Inc. v. Sunshine Ranches Homeowners, Inc., 303 So.2d 665, 666 (Fla. 4th DCA 1974)).

The amendment made by the developer of Article VI, Section I, does not result in material changes to the character of the development. However, the amendment impermissibly changes the burdens between the parties. It operated to relieve the developer of his express burden to use the funds collected for maintaining the lawns and landscaped areas of the common areas and the recreation areas, and for all utility costs including electricity, water, gas and telephone used in connection with the foregoing, garbage and trash collections, twenty-four-hour security service, cable television reception service, an exclusive closed-circuit Oak Run television channel, and for the road and drainage facilities, repair, and maintenance. Although the developer did not attempt to shift these burdens to any other person or entity, it is not reasonable for the developer to collect fees intended to cover these obligations, while eliminating its duty to apply the funds towards these same obligations and enacting an amendment that allows them to pocket any excess funds. Therefore, we hold that the amendment was an improper exercise of the developer’s amendment power to the extent it relieves the developer of those burdens. See Flamingo Ranch, 303 So.2d at 665 (stating that the court must read a reasonableness requirement into clause reserving right to developer to amend declaration because the reservation is inherently inconsistent with elaborate set of restrictions designed to provide for general scheme of development); see also Sepe v. City of Safety Harbor, 761 So.2d 1182 (Fla. 2d DCA 2000) (explaining that implied covenant of good faith is a mechanism to protect the parties’ reasonable expectations and is frequently applied when one party has sole power to make discretionary decision without defined standards). The remaining amendments to the declaration may somehow disappoint the homeowners’ expectations, including the amendment allowing the developer to pocket “excess” maintenance fees, but they are permissible because they do not change the character of the community or the burdens between the grantee and grantor. The developer conceded at oral argument that the method of establishing the amount of the recreation fee is unchanged and is still governed by Article VI, Section V, of the declarations, and homeowners have not been called on to pay any more than under the original declarations. The developer also had the right under the original declarations to charge certain “service” fees and was not obligated to establish reserves, so that no true shift in burdens occurred as a result of this provision.

Our ruling on this issue disposes of count 2 of the complaint, which sought an injunction restoring the original version of Article VI, Section I, prohibiting the developer from pocketing excess funds, and mandating a refund of any fees pocketed by defendants. The ruling also requires us to affirm the judgment in favor of defendants on counts 5 through 7, which sought restitution and damages for any excess fees pocketed by defendants.

Finally, we reverse the final summary judgment in favor of the developer as to counts 3 and 4 of the complaint. The trial court dismissed these counts on the basis that section 720.3086, Florida Statutes, was not applicable to the developer. The statute was first passed after the majority of the declarations involved herein were recorded in the public records. The developer contended that the statute does not apply to require it to account to homeowners since this would be a retroactive application of the statute that impairs its vested right to the confidentiality of its financial records. However, the developer had no vested rights to the confidentiality of its records which could be impaired by the statute. See Landgraf v. USI Film Prods., 511 U.S. 244, 269-70, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994); Fla. Hosp. Waterman, Inc. v. Buster, 984 So.2d 478, 491 (Fla.2008). As the owner of the common and recreational facilities, the developer is subject to the statute, which by its terms is applicable to a residential subdivision in which the owners of the lots or parcels must pay a mandatory maintenance or amenity fee to the subdivision developer or to the owners of the common areas. The statute creates a duty on the part of the entity collecting fees, within sixty days following the end of each fiscal year, to provide a complete financial report on the actual total receipts of mandatory maintenance or amenity fees received by it and an itemized listing of the expenditures made by it from such fees for that year. It is apparent from a plain reading of the statute that the Legislature meant to create some form of minimal regulation of owners of common areas and recreational facilities in subdivisions that require a mandatory fee to have a minimum accounting to those obligated to pay the fees. We hold that the trial court erred in finding that the developer was not required to comply with the statute.

AFFIRMED IN PART and REVERSED IN PART.

GRIFFIN and TORPY, JJ., concur.

      . Article V, Section V of the declaration.

      . Specifically, the statute states:
      In a residential subdivision in which the owners of lots or parcels must pay mandatory maintenance or amenity fees to the subdivision developer or to the owners of the common areas, recreational facilities, and other properties serving the lots or parcels, the developer or owner of such areas, facilities, or properties shall make public, within 60 days following the end of each fiscal year, a complete financial report of the actual, total receipts of mandatory maintenance or amenity fees received by it, and an itemized listing of the expenditures made by it from such fees, for that year. Such report shall be made public by mailing it to each lot or parcel owner in the subdivision, by publishing it in a publication regularly distributed within the subdivision, or by posting it in prominent locations in the subdivision. This section does not apply to amounts paid to homeowner associations pursuant to chapter 617, chapter 718, chapter 719, chapter 721, or chapter 723, or to amounts paid to local governmental entities, including special districts.
      § 720.3086, Fla. Stat.


source: Caselaw Access Project

author: TORPY, J. GRIFFIN, J.,

license: Public Domain

text:
    Douglas Brian MANN, Sr., Appellant, v. Stacey A. YEATTS, Appellee.
    No. 5D11-3762.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2013.
    Rehearing Denied May 3, 2013.

      Stephen E. Hilker of Stephen E. Hilker, P.A., Palatka, for Appellant.
    S. Grant Halliday, Tampa, for Appellee.
   TORPY, J.

Appellant challenges the order transferring his supplemental petition to modify child support from Putnam County to Hillsborough County. The supplemental petition sought to modify support orders entered in a paternity action that originated in Hillsborough County. We affirm.

In 1996, Appellee filed a paternity action against Appellant in Hillsborough County. The Hillsborough court determined paternity and ordered Appellant to pay child support. In 2010, Appellant filed a petition in Hillsborough County to reduce child support, claiming that he had become permanently disabled. The Hillsborough court denied Appellant’s petition and ordered him to pay Appellee’s attorney’s fees and costs.

In early 2011, Appellee’s counsel informed Appellant that Appellee intended to file a supplemental petition in Hillsbor-ough County seeking an increase in child support. Appellee’s counsel contacted Appellant as a courtesy in an effort to resolve the dispute prior to further litigation. In response, Appellant hired counsel, who filed the instant petition in Putnam County. The petition named Appellee as “Plaintiff’ and Appellant as “Defendant.” Appellant claimed that the circumstances had changed since the 2010 order in that he had now been “declared” disabled and was unable to pay child support without a reduction. The alleged declaration was apparently made by the Social Security Administration. Curiously, Appellant’s petition also contained allegations regarding venue, including that the witnesses and doctors who would testify resided in “Northeast Florida,” and that Appellant was not physically able to travel to Hills-borough County.

Appellee then filed her supplemental petition to increase child support in Hillsbor-ough County. She also filed a verified motion to transfer in Putnam County, requesting that court to transfer Appellant’s petition to modify child support to Hills-borough County. The motion to transfer outlined the procedural history of the paternity action since it was filed in 1996. It alleged that the proper forum for the action was in Hillsborough County, where the court had retained jurisdiction for the purpose of modifying and enforcing its orders and judgments.

On August 2, 2011, the Putnam court held an evidentiary hearing on the motion to transfer. Appellee’s counsel tendered the verified motion in lieu of evidence and both counsel presented argument that included factual assertions offered without objection. Appellee argued that venue in Hillsborough County was proper and all related proceedings should remain in Hills-borough County. Appellant countered that the Putnam court should transfer the Hillsborough County, arguing:

And the Resor case does change the law regarding the venue in paternity action, and does allow the court to consider a change of venue based on 47.122, and what has been popularly known as forum non conveniens, or what, in the interests of justice, for the convenience of the parties or witnesses, is to be relevant, as far [as] transferring a civil action. The only issue ... that the court would have to consider is whether or not [Appellant] does have a medical condition which no longer permits him to earn the monies that he previously earned that was the basis for the existing support order. With that, your hon- or, the witnesses to this issue are all in Northeast Florida....

The trial court agreed to reserve ruling on the motion to transfer venue until after August 17, because the parties represented that they were close to resolving the matter.

After the parties failed to announce a settlement, the Putnam court scheduled a case management conference for September 27, 2011. During the conference, Appellant’s counsel attempted to file a partial deposition of Appellant’s doctor in support of his venue argument. The trial court sustained Appellee’s objection to the deposition because the venue hearing had closed in August. Thereafter, the trial court entered a written order changing venue to Hillsborough County. In its order, the trial court made the following finding:

The evidence shows that the case was originally filed in 1996 in Hillsborough County and that is where all litigation has been held. At the beginning of this year [Appellee] planned to file a Supplemental Petition in the case. However, out of professional courtesy, her counsel contacted [Appellant] in an attempt to work out the issue. Upon being informed of the motion, [Appellant] immediately filed a Supplemental Petition here in Putnam County to take jurisdiction from Hillsborough County. The court finds [Appellant’s] actions to be legal posturing through gamesmanship and an attempt to be clever in two counties ....

In its order, the trial court addressed the legal issue Appellant framed and argued it. The court reiterated Appellant’s contention that, based on section 47.122, it could transfer the action to Putnam County to accommodate the convenience of the witnesses. It concluded, however, that Appellant’s argument was erroneous because Appellant’s requested change of venue should have been filed in Hillsborough County. The trial court said:

Based on [Appellant’s] own case law, the proper procedure would be for [Appellant] to file this motion in Hillsborough County seeking to transfer the case to Putnam. On the contrary, [Appellant] is asking the Putnam Court to transfer the case from Hillsborough to Putnam. Only the Hillsborough Court has the jurisdiction to transfer the case from Hillsborough to Putnam....

It is axiomatic that our review is limited to the issues properly presented to the trial court and that Appellant raised in his brief. Herskovitz v. Hershkovich, 910 So.2d 366 (Fla. 5th DCA 2005). Absent fundamental error, arguments not presented to the trial court may not be considered for the first time on appeal. Gliszczynski v. State, 654 So.2d 579, 580 (Fla. 5th DCA 1995). Nor can we consider errors that the complaining party invited. Tate v. Tate, 91 So.3d 199 (Fla. 2d DCA 2012). Here, Appellant raises two issues on appeal, regarding (1) the August 2, 2011 hearing, and (2) venue. First, Appellant presents a generalized claim that the trial court erred by not taking evidence at the August 2, 2011 hearing. This claim of error is not preserved for review because Appellant did not object when the court considered the verified motion and counsel’s factual assertions at the hearing. See Reddick v. Reddick, 728 So.2d 374, 376 (Fla. 5th DCA 1999) (opining that trial court’s reliance on document not in evidence, contents of which were argued without objection, not preserved for review). Appellant further claims that the trial court erred by refusing to reopen the hearing to consider his doctor’s deposition. Appellant fails to demonstrate an abuse of discretion on this point. The trial court patiently allowed both parties to conclude their presentations at the August 2, 2011 hearing. The court clearly communicated its intent to rule on the merits of the motion without further hearing if settlement could not be reached. Appellant never requested that the hearing remain open until after the completion of discovery. Finally, the deposition, even if considered, would not have affected the outcome on the venue issue.

Secondly, citing P.A.G. v. A.F., 602 So.2d 1259 (Fla.1992), Appellant argues that venue was proper in Putnam County because a modification of a paternity support order is maintained under section 61.14, Florida Statutes, which provides several alternative venues, including where either party resides. Although this argument is premised on a correct statement of the law, it is not preserved for our review because it was not argued below, and the purported error was invited by Appellant’s incorrect argument to the trial court. Appellant’s entire argument below was based on his assumption of the burden to justify a transfer of the action from Hillsborough County to Putnam County. Appellant never argued that his petition was a new action and that venue was proper in Putnam County. The trial court ruled that Appellant’s request for transfer should have been made in Hillsborough County. That was the correct ruling on the argument presented.

Assuming Appellant had preserved his argument and not invited the error, we would affirm nevertheless. Although venue in Putnam County was not improper, pursuant to section 47.122, Florida Statutes, the trial court had the discretion to transfer the action to Hillsborough County in the interest of justice. Stewart v. Coleman, 413 So.2d 93, 93 (Fla. 1st DCA 1982). Based on the findings made by the trial court, the decision to transfer the action back to. Hillsborough County fell within the bounds of the court’s discretion.

AFFIRMED.

LAWSON, J., concurs.

GRIFFIN, J., dissents with opinion.

GRIFFIN, J.,

dissenting.

I respectfully dissent.

Mann filed his petition for modification of a paternity support order, pursuant to section 61.14, Florida Statutes, in his home county of Putnam. Indisputably, this was a statutorily authorized venue choice. Venue was proper in Putnam County. The majority concedes this point.

In response to the filing of Mann’s petition in Putnam County, Yeatts did two things: she filed her own action in Hills-borough County, where she resided, and she filed a motion to transfer Mann’s case to the Thirteenth Judicial Circuit. Yeatts’ motion to move the case to Hillsborough was based on a single proposition: that because the proceedings between the parties began as a paternity action in Hills-borough County, the Putnam County Circuit Court “lacked jurisdiction” to hear Mr. Mann’s newly filed modification petition. This argument was also the only argument asserted by Yeatts’ counsel during the hearing. Yeatts’ counsel specifically argued that section 61.14 did not apply to the case because it was a paternity action. Yeatts’ counsel made no mention of moving the case to Hillsborough County pursuant to section 47.122, Florida Statutes (“forum non conveniens ”). The trial court accepted Yeatts’ “improper venue” argument and expressly ruled in the appealed order:

Based on the evidence presented, argument of the parties, and prevailing case law, the court finds the petitioner should have filed his motion in Hillsborough County, rather than Putnam.

Not content with this erroneous ruling, however, the trial judge went on to rule further:

Even if Putnam were the proper filing location, the respondent [Mann] failed to prove a substantial inconvenience or undue expense.

This ruling is nonsensical on its face. If Putnam County were the proper filing location, Mann would have no burden to prove anything, much less a substantial inconvenience or undue expense in order to move the ease to Putnam County pursuant to section 47.122. The case was already in Putnam County. It was not Mann who would be seeking to transfer venue out of Putnam County; it would have to be Yeatts who would be attempting to move the case from Putnam County to Hillsborough County. The burden would be on Yeatts, not Mann. Yeatts, however, never made a forum non conve-niens motion or a forum non conveniens argument at the hearing. Not one iota of forum non conveniens evidence was offered. Transferring the case to Hillsbor-ough County, based upon what was before the court, was (or should have been) a legal impossibility. The venue privilege to file in Putnam belonged to Mann and the (unmet) burden to transfer the case was on Yeatts. The appealed order was completely wrong and should be reversed.

In Brown v. Nagelhout, 84 So.3d 304, 308-09 (Fla.2012), the Supreme Court of Florida recently affirmed that:

A defendant wishing to challenge the plaintiffs selection has “the burden of pleading and proving that the venue is improper.” Inverness Coca-Cola Bottling Co. v. McDaniel, 78 So.2d 100, 102 (Fla.1955). “When a trial court is presented with a motion to transfer venue based on the impropriety of the plaintiffs venue selection under section 47.011, the trial court must resolve any relevant factual disputes and then make a legal decision whether the plaintiffs venue selection is legally supportable. McDaniel Reserve Realty Holdings, LLC v. B.S.E. Consultants, Inc., 39 So.3d 504, 508 (Fla. 4th DCA 2010) (citing PricewaterhouseCoopers LLP v. Cedar Resources, Inc., 761 So.2d 1131, 1133 (Fla. 2d DCA 1999)). “The trial court’s legal conclusions in this regard are reviewed de novo.” Id.

With this mandate in mind, a recap is in order.

1. Did Yeatts plead and prove that venue was improper? — Plead—yes; prove — no.
2. Did the trial court resolve any relevant factual disputes? — No.
3. Did the trial court make a legal decision whether the plaintiffs venue selection is supportable? — Yes, albeit the wrong one.
4. Has this court reviewed the trial court’s legal conclusion that venue was improper de novo? — No.

This Court has concluded that these errors do not matter because, during the hearing, Mann’s counsel failed to tell the trial court that his client’s choice of venue was legal.

Contrary to the majority’s view, this is not a “preservation of error” problem. When a defendant files a motion to change an improper venue, the question is purely a legal one. That is why the supreme court says we are to review it de novo. If venue is not improper, we must affirm. It is ironic that Mann lost his venue privilege because, according to the majority, Mann’s counsel made the wrong argument. Yeatts’ motion was based on the wrong law, Yeatts’ counsel’s argument was completely erroneous and the trial judge was 100% wrong, but it is Mann — who had no burden at the hearing — who loses his venue choice because his lawyer kept telling the trial judge the cases needed to be in Putnam because his client was too ill to litigate in Hillsborough and all his witnesses were in northeast Florida. Admittedly, counsel for Mann made a garbled argument, but he never waived the right to a correct ruling on Yeatts’ motion, and he certainly never waived his client’s venue rights. Perhaps if Yeatts’ attorney had filed a legally supportable venue motion, i.e., one that raised the only viable ground, which was a section 47.122 transfer, the hearing would have gone differently. Instead, after hearing counsel for Yeatts’ “improper venue” argument, the trial court announced that Yeatts, not Mann, had the discretion to decide where the case should go ... and things went downhill from there.

The majority also errs in its final conclusion that, notwithstanding the trial court’s erroneous ruling on Yeatts’ motion and the nonsensical allocation of the burden of showing inconvenience on the non-moving party, the trial court had the discretion to transfer the action to Hillsborough County “in the interest of justice.” First, the trial court never made such a ruling. Second, Yeatts made no motion on this basis and no evidence was offered.

The majority cites Stewart v. Coleman, 413 So.2d 93 (Fla. 1st DCA 1982), for the unremarkable proposition that venue may be changed for the convenience of the parties or witnesses or in the interest of justice. That is what section 47.122 says; but as Stewart points out, venue can only be changed under section 47.122 “upon a proper showing.” (Emphasis added).

A trial court may sua sponte raise the issue of forum non conveniens under section 47.122; however, it is a denial of due process for a trial court to take such an action without proper notice and opportunity for both parties to be heard. Where a defendant moves to transfer a case based solely on improper venue, but the trial court decides to change venue for reasons of convenience and judicial economy, the trial court has to give the parties notice and the right to be heard on the section 47.122 criteria. McDaniel Reserve Realty Holdings, LLC v. B.S.E. Consultants, Inc., 39 So.3d 504, 510-11 (Fla. 4th DCA 2010). This was never done.

What makes this case truly unique is that it is the appellate court that sua sponte has decided that the “interest of justice” requires a venue transfer to Hills-borough County. No notice, no hearing, no evidence — not a problem. Here, the trial court’s order never mentioned the “interest of justice,” much less that it could be a basis to move the case to Hillsbor-ough County. The trial court simply ruled that the case should have been filed in Hillsborough County and that Mann failed to prove a substantial inconvenience or undue expense sufficient to warrant moving the case to Putnam County.

So, a lawsuit filed in Putnam County, in accordance with the venue privilege set forth in Florida Statutes, has been moved to Hillsborough County based on the appellate court’s sua sponte conclusion that it would be “in the interest of justice” to do so. Presumably, the majority is of the view that this case should be in Hillsbor-ough County since the earlier litigation was in Hillsborough County. I respectfully suggest that this is not a decision we are empowered to make. On the bright side, however, there is no doubt that this decision will make venue appeals much easier to review. We only need ask ourselves, “Where, in the interest of justice, should this case be tried?”

      . Appellee contends that the declaration by the Social Security Administration does not give rise to a change of circumstances and is irrelevant and inadmissible hearsay evidence. We need not address these points in this appeal.

      . Resor v. Welling, 44 So.3d 656 (Fla. 5th DCA 2010).

      . We may consider lack of preservation as a basis to affirm even in the absence of a specific argument on that point by Appellee. Food Lion, L.L.C. v. Henderson, 895 So.2d 1207 (Fla. 5th DCA 2005).

      . The trial court also determined that Appellant did not satisfy his burden.

      . In defense of Mann’s counsel, it should be pointed out that he and Yeatts' counsel had filed an agreed motion to continue the venue hearing because of outstanding discovery, but the trial court insisted on going forward.


author: PALMER, J.

text:
    U.S. BANK, N.A., Appellant, v. Linda A. WANIO-MOORE, et al., Appellees.
    No. 5D12-1746.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2013.
    Jacqueline J. Brown of Douglas C. Zahm, P.A., St. Petersburg, for Appellant.
    Linda A. Wanio-Moore, Altamonte Springs, pro se.
   PALMER, J.

U.S. Bank, N.A. (Bank) appeals the trial court’s order dismissing its mortgage foreclosure complaint, without leave to amend, for inadequate verification of the complaint. Determining that the verification provided by the Bank was legally sufficient, we reverse.

The trial court dismissed the Bank’s complaint because the signed verification accompanying it did not state the signer’s position. The court relied on a decision of another circuit, Aurora Loan Services v. Fleetwood, 18 Fla. L. Weekly Supp. 390 (Fla. 19th Cir. Ct. Jan. 26, 2011), to support its ruling. There, the court wrote:

The complaint needs to be verified by an employee or officer of the plaintiff, by an employee or officer of its loan servicer, or by the attorney who files the case. Designations such as “authorized agent”, “authorized signatory”, “authorized officer”, “representative of the plaintiffs servicer”, “representative of the plaintiff’ and the like are meaningless, insufficient and tell the reader nothing. The rule requires a clean, plain statement of accuracy by a person who actually verifies the truth of the claims made, and who is identified as being in a position to actually do so.

(Emphasis omitted.)

The trial court erred in concluding that a foreclosure verification must state the signer’s position. Florida Rule of Civil Procedure 1.110(b) provides, in relevant part:

Rule 1.110. General Rules of Pleading
(b) Claims for Relief. ....
When filing an action for foreclosure of a mortgage on residential real property the complaint shall be verified. When verification of a document is required, the document filed shall include an oath, affirmation, or the following statement: “Under penalty of perjury, I declare that I have read the foregoing, and the facts alleged therein are true and correct to the best of my knowledge and belief.”

Thus, the rule does not require any information about the signer’s positional authority, and a court cannot “read more into [rule 1.110(b) ] than its plain language dictates.” BAC Home Loan Servicing, L.P. v. Stentz, 91 So.3d 235, 236 (Fla. 2d DCA 2012); accord Becker v. Deutsche Bank Nat’l Trust Co., 88 So.3d 361 (Fla. 4th DCA 2012).

REVERSED and REMANDED.

LAWSON and COHEN, JJ., concur.


author: BLACK, Judge.

text:
    STATE of Florida, Appellant, v. Tyran A. YOUNG, Appellee.
    No. 2D11-5953.
    District Court of Appeal of Florida, Second District.
    April 12, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    Ita M. Neymotin, Regional Counsel, Second District, Bartow, and Stacy L. Sherman, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Fort Myers, for Appellee.
   BLACK, Judge.

The State of Florida appeals the trial court’s order granting Tyran A. Young’s motion to suppress evidence found in Jacqueline Faye Jones’s residence pursuant to a search warrant. In his motion, Young contended the search warrant was issued without probable cause. Without stating its rationale for doing so, the trial court granted Young’s motion to suppress.

Young, Jones, and Young’s twin brother, Kyran Young, were all arrested at Jones’s residence following the execution of the search warrant. Each filed a motion to suppress arguing a lack of probable cause. The facts surrounding the issuance of the warrant are detailed in State v. Jones, 110 So.3d 19 (Fla. 2d DCA 2013). As we did in Jones, we conclude that probable cause existed and that the trial court erred in granting the motion to suppress. Accordingly, we reverse the order granting Young’s motion to suppress.

Reversed and remanded.

SILBERMAN, C.J., and WALLACE, J., Concur.


author: NORTHCUTT, Judge.

text:
    STATE of Florida, Appellant, v. Alexander Fernando BENNETT, Appellee.
    No. 2D11-4691.
    District Court of Appeal of Florida, Second District.
    April 17, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Dawn A. Tiffin, Assistant Attorney General, Tampa, for Appellant.
    Howard L. Dimmig, II, Public Defender, and Bruce P. Taylor, Assistant Public Defender, Bartow, for Appellee.
   NORTHCUTT, Judge.

The State appeals the dismissal of grand theft and battery charges against Alexander Bennett after the circuit court determined that Bennett’s due process rights were violated by the failure of law enforcement to preserve evidence. We reverse.

The charges stemmed from a hostile encounter between two groups of acquaintances at a gas station convenience store. According to the criminal report affidavit, Bennett’s friend Ms. Murray approached the victim, Mr. Barron, inside the store and pushed him several times. Barron went outside, where a friend was waiting in Barron’s car. Bennett accosted Barron and snatched Barron’s wallet from his hand, and the two began to fight. After the fight was broken up, Bennett and Murray left in a car driven by their friend Mr. Rodriguez. Law enforcement arrived to investigate the situation. Shortly thereafter, officers located Bennett and arrested him. He admitted his involvement in the incident.

An investigating detective viewed a video of the incident recorded by the convenience store’s surveillance system. His report described what he saw on the video and also stated that he had downloaded it. But when Bennett’s counsel requested a copy of the video in discovery, it was determined that the police had not in fact downloaded it and that the original recording had been automatically erased from the store’s system. Bennett moved to dismiss the charges against him. His motion alleged that the video could have been used to impeach witnesses’ statements, and it described the video as evidence “helpful to the defense.”

At the hearing on Bennett’s motion, the detective testified that the video had never actually been in law enforcement custody. He explained that he tried to download the video on the day he watched it, but his equipment failed. He sent a deputy to obtain a copy of the video the next day. The deputy returned and handed him a DVD, which the detective mistakenly thought held a copy of the video. He did not realize until Bennett filed his discovery request that the DVD instead contained still photographs of the crime scene.

The State advised the court that the witnesses who were present during the altercation would testify and that the defense could cross-examine them about what had happened. It posited that rather than a dismissal of the charges, the appropriate sanction would be to exclude any testimony about the video. When announcing its intention to grant Bennett’s motion, the court remarked: “Well, again, it might be exculpatory. We don’t know that. I doubt it, but again, no.”

We review an order granting a defendant’s motion to dismiss de novo. Bell v. State, 835 So.2d 392 (Fla. 2d DCA 2003). When determining whether a defendant’s due process rights have been violated by the State’s destruction of or failure to preserve evidence, a court must first consider whether the missing evidence was “materially exculpatory” or only “potentially useful.” The State has a duty to preserve materially exculpatory evidence, i.e., that which “might be expected to play a significant role in the suspect’s defense.” California v. Trombetta, 467 U.S. 479, 488, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984). The Trombetta Court described such evidence as having “constitutional materiality,” in that it possessed “an exculpatory value that was apparent before the evidence was destroyed” and was “of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.” Id. at 489,104 S.Ct. 2528.

In contrast, evidence that is merely “potentially useful,” posing only some likelihood of exonerating a defendant, does not reach the standard of constitutional materiality discussed in Trombetta. Failure to preserve such evidence is a denial of due process only when law enforcement acts in bad faith. Arizona v. Youngblood, 488 U.S. 51, 56-58, 109 S.Ct. 333, 102 L.Ed.2d 281 (1988).

As we pointed out in Bennett v. State, 23 So.3d 782, 792-94 (Fla. 2d DCA 2009), the law is somewhat unsettled as to which side bears the burden of establishing whether the destroyed evidence is materially exculpatory or potentially useful. Under the facts of this ease, however, we need not reach this issue. It is undisputed that the video showed the altercation between Bennett and Barron, but it is also undisputed that at least three people other than the two participants also witnessed it. Thus the defense can obtain evidence comparable to the video in the form of the eyewitnesses’ testimony. See Trombetta, 467 U.S. at 489, 104 S.Ct. 2528. That being so, the unavailable video did not rise to the level of constitutionally material evidence.

When the missing evidence is only potentially useful, as was the case here, a defendant must establish that law enforcement acted in bad faith in order to prove a violation of his due process rights. Youngblood, 488 U.S. at 56-58, 109 S.Ct. 333. In the context of destroyed evidence, we have described bad faith as “a flagrant and deliberate act done ... with the intention of prejudicing the defense.” State v. Powers, 555 So.2d 888, 890 (Fla. 2d DCA 1990). Although the facts of this case reflected law enforcement’s negligence, they clearly did not establish bad faith.

We reverse the dismissal of the charges against Bennett and remand for further proceedings.

Reversed and remanded.

CASANUEVA and DAVIS, JJ., Concur.

      . The overview of the law on preservation of evidence in Bennett is actually dicta, 23 So.3d at 788, but it presents a comprehensive analysis of Florida, federal, and out-of-state case law on this topic. We also note that the Bennett in that case is not the same person as the Bennett in this one.


author: SILBERMAN, Chief Judge.

text:
    Raymond William DRISCOLL, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-2572.
    District Court of Appeal of Florida, Second District.
    April 19, 2013.

      Raymond William Driscoll, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Chief Judge.

Raymond William Driscoll seeks review of an order denying his motion to clarify and/or modify the conditions of his probation. Driscoll argues that the trial court erred in ruling that he was subject to probationary conditions set forth in section 948.30(1), Florida Statutes (2010), because his offenses were committed before its effective date. We agree and reverse.

In April 1997, Driscoll entered a guilty plea to eight sex offenses dating from October 17, 1994, to March 6, 1995, in violation of section 800.04, Florida Statutes (Supp.1994). The court sentenced him to eighteen years in prison followed by twenty years of probation. The court also designated Driscoll as a sexual predator and imposed several special conditions of probation.

Driscoll served his prison sentence and was placed on probation in 2010. In October 2011, Driscoll filed a motion to clarify and/or modify his probation in which he asserted that, in addition to the special conditions of probation imposed at his sentencing hearing, probation officials were requiring him to comply with the standard conditions of probation set forth in section 948.30(1). Driscoll argued that section 948.30(1) did not apply to him because his crimes were committed before the statute’s effective date. The trial court denied his motion and concluded that Driscoll was subject to the conditions of probation set forth in section 948.30(1) due to his continuing status as a sexual predator.

Section 948.30(1), which sets forth mandatory conditions of probation for defendants convicted of certain sex offenses, was enacted in 1995. See ch. 95-283, § 59, at 2688-90, Laws of Fla. The statute expressly states that it applies to “probationers or community eontrollees whose crime was committed on or after October 1, 1995, and who are placed under supervision for violation of chapter 794, s. 800.04, s. 827.071, s. 847.0135(5), or s. 847.0145.” § 948.30(1), Fla. Stat. (2010).

Under the plain language of section 948.30(1), the probation conditions set forth therein are not statutorily authorized as standard conditions for offenders who committed their crimes before October 1, 1995. See Davis v. State, 76 So.3d 1014, 1016 (Fla. 5th DCA 2011). Therefore, when these conditions are not orally imposed as special conditions at the time of sentencing for crimes committed before October 1, 1995, they are not applicable. See id. Thus, Driscoll is not subject to the probation conditions under section 948.30(1) that were not orally imposed as special conditions at his original sentencing hearing. We reverse the order denying Driscoll’s motion to clarify and/or modify the conditions of his probation and remand for further proceedings consistent with this opinion.

Reversed and remanded.

DAVIS and CRENSHAW, JJ., Concur.

      . Section 948.30(1) was originally created as section 948.03(5), Florida Statutes (1995). See ch. 95-283, § 59, at 2688-90, Laws of Fla. The differences between the original statute and the 2010 version in effect when Driscoll was placed on probation are not material to our analysis.


author: DAVIS, Judge.

text:
    James Royce WEAVER, Appellant, v. Elizabeth COREY, f/k/a Elizabeth Weaver, and James Dalton Weaver, Appellees.
    Nos. 2D11-3113, 2D11-6265.
    District Court of Appeal of Florida, Second District.
    April 19, 2013.
    Ellen E. Ware of Ware Law Group, P.A., Tampa, for Appellant.

      Walter E. Smith of Meros, Smith, Laz-zara & Olney, P.A., St. Petersburg, for Appellees.
   DAVIS, Judge.

In these consolidated cases, James Royce Weaver, the Former Husband, challenges the trial court’s final judgment in which it awarded his adult son, James Dalton Weaver, and the Former Wife, Elizabeth Corey, f/k/a Elizabeth Weaver, reimbursement of funds they paid toward the son’s college expenses. Additionally, the Former Husband challenges the final judgment that awarded the Former Wife the costs of litigating this contract dispute. We affirm the trial court’s determination that the Former Husband is responsible for the college expenses; however, we reverse the cost award as related to the expert witness fee.

The Former Wife and Former Husband entered into a marital settlement agreement on May 26, 1997, as part of the dissolution of their marriage. At that time the parties had three minor children. By the terms of the agreement, the parties contracted to use their best efforts to provide for the expenses of sending their children to private or parochial school, college, and graduate school. Specifically, the agreement provided that “[b]oth parties agree that each will use their best efforts to provide funds” and that “[t]he contribution of each parent shall be calculated on the basis of the ratio between their gross annual incomes as reported [i]n their most recent federal income tax return immediately preceding the academic year.”

The parties’ oldest child, James Dalton Weaver, graduated from high school in December 2008 and enrolled in college the next month. The Former Husband began to contribute to the cost of James’ college expenses. However, there came a time when the Former Husband did not pay the full amount of the college expenses as expected by his now adult son and the Former Wife, and they sued the Former Husband for breach of contract. The trial court found that the Former Husband had not used his best efforts in supplying the costs of his son’s college education and entered an order requiring the Former Husband to pay a total of $41,603 to the son and the Former Wife as the costs of the college education.

On appeal, the Former Husband argues that the trial court failed to take into account the Former Wife’s failure to exercise her best efforts to contribute funds, as is also required by the agreement. Specifically, the Former Husband maintains that the Former Wife was willfully underemployed causing her annual income to range from $300 to $8500. When compared to the Former Husband’s income, the ratio described in the marital settlement agreement required the Former Husband to pay the equivalent of 97.4% to 99.9% of the son’s college expenses. The Former Husband argues that the trial court’s failure to consider the Former Wife’s willful underemployment in considering whether she was exercising her best efforts was error. We disagree.

Although the agreement does suggest that each of the parties agreed to exercise his/her best efforts, the Former Husband did not plead the failure of the Former Wife to do so as an affirmative defense, nor did he argue this failure at trial. The only reference to “best efforts” at trial was the Former Husband’s argument that he indeed had exerted his best efforts by paying a portion of the costs even though he had not paid all of the costs. As such, the trial court determined the only issue that had been placed before it — whether the Former Husband exercised his best efforts in paying for the college expenses.

Because the Former Husband did not plead the Former Wife’s failure to employ her best efforts as an affirmative defense and did not argue the issue at trial, we cannot review this theory of defense for the first time on appeal. See Dober v. Worrell, 401 So.2d 1322, 1323 (Fla.1981) (“[Fjailure to raise an affirmative defense before a trial court ... precludes raising that issue for the first time on appeal.”). Accordingly, we affirm the trial court’s award.

The Former Husband also argues on appeal that the trial court erred in calculating its award of total college costs by including room and board. He maintains that the college expenses contemplated in the marital settlement agreement included only tuition, books, and fees but not room and board. Florida courts, however, have “generally recognized that such expenses are factored into the cost of higher education.” Reynolds v. Diamond, 605 So.2d 525, 527 (Fla. 4th DCA 1992).

In the companion case, the Former Husband challenges the cost award, specifically targeting the trial court’s award of $10,536.88 for the expert witness fee. The Former Wife employed the services of a certified public accountant to review several bills and invoices to determine which were related to actual college expenses, 1.e., tuition, books, fees, and room and board, and which were the adult son’s social expenses, i.e., fraternity dues. The expert then looked at the several sources of payment of the college expenses and determined that the Former Husband had not paid any of these costs. The Former Husband argued in the trial court and on appeal that these costs are not awardable under the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions found in the Florida Rules of Civil Procedure. We agree.

The discretion afforded to the trial court to award fees and costs is not unbridled. See Brophy v. Condon, 771 So.2d 7 (Fla. 2d DCA 2000). The burden of proving the costs is on the moving party. In re Amendments to Uniform Guidelines for Taxation of Costs, 915 So.2d 612, 616 (Fla.2005). The fee charged by the expert was not for his deposition or trial testimony, nor was it for the preparation of a court-ordered report. Additionally, the services performed were in the nature of describing expenses, tabulating totals, and examining the sources of payment. Such services are not of the type requiring a CPA because the result was not an expert opinion — it was simple math. We conclude that such services are not covered by the guidelines and that the trial court abused its discretion in making this award.

Accordingly, we affirm the final judgment that ordered the Former Husband to pay for the college expenses incurred by the adult son, including room and board. However, we reverse that portion of the order on fees and costs which awarded $10,536.88 for the expert witness fee and remand for a recalculation of the fees and costs award.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and WALLACE, JJ., Concur.

      . We note that the attorney who prepared the marital settlement agreement does not represent any party in the instant litigation and that the Former Husband's trial counsel does not represent him on appeal.

      . The Former Husband paid some of the expenses, the Former Wife used the funds of her new husband to pay some, and the son borrowed and worked to cover the remaining costs.


text:
    N.H., Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5820.
    District Court of Appeal of Florida, Second District.
    April 19, 2013.
    Howard L. Dimmig, II, Public Defender, and Alisa Smith, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and John M. Klawikofsky, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

The State alleged that N.H. committed the delinquent acts of carrying a concealed weapon, § 790.01, Fla. Stat. (2011), and possession of a firearm by a minor, § 790.22(3), (5). At his adjudicatory hearing, N.H. argued that the evidence was insufficient to prove the crimes, and he moved to dismiss the charges. The judge denied his motions, adjudicated him delinquent, and sent him to a moderate-risk facility. N.H. now challenges the sufficiency of the evidence on appeal. We agree with his position and reverse.

Late one summer evening, a group of six to eight Hillsborough County sheriffs deputies arrived at an apartment complex in a van. They were not responding to any particular complaint, but they regularly patrolled the area because of known drug and gang activity. The deputy who was driving saw three boys sitting on a three-foot-high wall. He parked the van nearby and the other deputies leaped out, shouting that they were from the sheriffs office. The driver observed N.H. standing behind the wall and saw him bend down as one might if placing something on the ground. The driver believed N.H. was holding an object in his hand, but he could not identify it. When N.H. ran away, deputies apprehended him almost immediately.

The driver of the van directed another deputy to search behind the wall for something N.H. might have placed there. The other deputy found a .38 caliber revolver resting flush against the wall. At the hearing, the deputy who found the gun testified that the area was “pretty well-lit” and he had “the aid of a flashlight.” The deputy did not recount whether anything was covering the gun.

We review the denial of a motion to dismiss in a delinquency case de novo. E.A.B. v. State, 851 So.2d 308, 310 (Fla. 2d DCA 2003) (citing Pagan v. State, 830 So.2d 792 (Fla.2002)). We turn first to the concealed firearm charge. The crime can be proven by evidence that the weapon was within a defendant’s possession or ready reach and that it was hidden from the sight of an ordinary person. See State v. Blanco, 702 So.2d 597 (Fla. 2d DCA 1997)(holding that a weapon stashed between the seats of a car was concealed). But see State v. Weyant, 990 So.2d 675 (Fla. 2d DCA 2008) (determining that an unloaded firearm wedged between car seats did not qualify as concealed when the ammunition was not in ready reach). The court in State v. Hinkle, 970 So.2d 433 (Fla. 4th DCA 2007), held that a firearm on the seat of a car, covered with flowers, qualified as a concealed weapon. In another automobile case, Dorelus v. State, 747 So.2d 368, 371 (Fla.1999), the supreme court recited several variables that could determine whether a weapon was carried in a manner that would hide it from ordinary sight, including the weapon’s location within a car, such as on a seat versus in a closed console, whether it was concealed by another object such as a towel, or whether the defendant concealed it with his body.

Here, the State merely established that a gun was found behind a wall, in a public place, near an occupied apartment building. N.H. stood behind the wall in reach of where the gun was found. Although the deputy could not see the gun from his vantage point because the wall blocked his view, the State offered no evidence that the gun was concealed from the sight of the three boys sitting nearby on the wall, or of anyone else who might have been walking by or observing from one of the apartments. No one testified that the gun was covered in any way. While concealment can be shown by circumstantial evidence, the facts presented in this case did not prove that the gun was hidden from the view of an ordinary person. Cf. Blanco, 702 So.2d at 598. Thus, the evidence was insufficient to show that N.H. carried a concealed firearm.

In fact, the evidence was insufficient even to show that N.H. possessed the gun. The driver of the sheriffs van stated that he saw something in N.H.’s hand, but he could not attest that it was a firearm. N.H. was certainly in the proximity of the place where the gun was found. But three other youths were sitting on the wall in the same vicinity. Moreover, the gun was found in a public place, at night; the deputy was using a flashlight when he found it.

As we discussed in G.G. v. State, 84 So.Bd 1162 (Fla. 2d DCA 2012), whether the State proceeds under an actual, ready-reach, possession theory, or under a constructive possession theory, it must prove that the contraband item was under the accused’s control. The requisite control cannot be proved merely by proximity— some additional evidence must connect the accused to the firearm. Here, the State presented no other evidence, such as fingerprints, to connect N.H. to the weapon. N.H. did not admit that he possessed the firearm, and no one actually saw it in his hand. The mere fact that the deputy believed N.H. may have put something on the ground was not sufficient to establish that he possessed the gun. See id. at 1164 (and cases cited therein).

We must reverse N.H.’s delinquency adjudications and remand with instructions to dismiss the petition.

Reversed.

WALLACE and LaROSE, JJ., Concur.

      . Our decision that the evidence was insufficient to support a finding of guilt on the charged crimes makes it unnecessary to discuss N.H.’s other issue on appeal.


author: PER CURIAM.

text:
    Cassandra GARRETT, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-3841.
    District Court of Appeal of Florida, Fifth District.
    April 19, 2013.
    Cassandra Garrett, Quincy, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anthony J. Golden and Kristen L. Davenport, Assistants Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Cassandra Garrett appeals the summary denial of her original and amended motions for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm the summary denial of all claims, except claim five, which was insufficiently pled. In claim five, Garrett alleges defense counsel was ineffective for failing to file a motion to withdraw plea. However, she fails to articulate which plea she believes counsel should have sought to withdraw and fails to identify any specific basis upon which defense counsel might have advanced such a motion. Inasmuch as claim five is legally insufficient, Garrett should be given at least one opportunity to correct the deficiency. See Spera v. State, 971 So.2d 754 (Fla.2007). Accordingly, we reverse the trial court’s summary denial of claim five, and remand with instructions to strike this claim with leave to amend within a specified time consistent with the parameters identified in Spera. See, e.g., Boule v. State, 86 So.3d 1185, 1186 (Fla. 5th DCA 2012); Parsons v. State, 981 So.2d 1249, 1250 (Fla. 5th DCA 2008).

AFFIRMED IN PART, REVERSED IN PART, AND REMANDED.

PALMER, COHEN and BERGER, JJ., concur.


text:
    Pernell GRANT, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-2462.
    District Court of Appeal of Florida, First District.
    April 22, 2013.
    Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

The appellant, Pernell Grant, challenges the trial court’s denial of his request to have a confidential expert appointed to determine his competency. The appellant argues, and the State concedes, that appointment of a confidential expert was mandatory because the threshold showing required under Florida Rule of Criminal Procedure 3.216(a) was satisfied. We agree.

In two cases below, the appellant entered pleas of guilty to armed robbery, fleeing or attempting to elude an officer, and possession of a firearm by a convicted felon. Prior to sentencing, the appellant’s attorney filed a motion for the appointment of a confidential expert because she believed the appellant may be incompetent based on a letter he had written. At the time of his motion for a confidential expert, the appellant, an indigent, was represented by court-appointed counsel due to a conflict with the public defender and regional counsel. The trial court denied the motion because it did not include a good faith certificate and proceeded to sentence the appellant.

Rule 3.216(a) provides:

When in any criminal case a defendant is adjudged to be indigent or partially indigent, and is not represented by the public defender or regional counsel, and counsel has reason to believe that the defendant may be incompetent to proceed or that the defendant may have been insane at the time of the offense or probation or community control violation, counsel may so inform the court who shall appoint 1 expert to examine the defendant in order to assist counsel in the preparation of the defense. The expert shall report only to the attorney for the defendant and matters related to the expert shall be deemed to fall under the lawyer-client privilege.

The trial court was required to appoint a confidential expert pursuant to this rule based on the attorney’s belief that the appellant may be incompetent. See State v. Hamilton, 448 So.2d 1007, 1008 (Fla. 1984) (holding that when an appointed attorney advises the trial court that he has reason to believe that his client is incompetent to stand trial and requests the appointment of a defense expert under rule 3.216(a), the threshold requirements of the rule are satisfied, and court-appointment of the expert is mandatory); Price v. State, 816 So.2d 738, 740 (Fla. 3d DCA 2002). Accordingly, the appellant’s sentences are reversed, and the cases are remanded for the appointment of a confidential expert and resentencing. See Ahedo v. State, 842 So.2d 868, 872 (Fla. 2d DCA 2003) (remanding for resentencing upon a misapplication of rule 3.216(a) prior to sentencing).

REVERSED and REMANDED.

PADOVANO, ROBERTS, and CLARK, JJ., concur.


text:
    Joseph Michael ANDREOLI, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-4095.
    District Court of Appeal of Florida, Fifth District.
    April 23, 2013.
    Joseph Michael Andreoli, Live Oak, pro se.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See McIntosh v. State, 959 So.2d 1246 (Fla. 4th DCA 2007); Irby v. Missouri, 427 So.2d 367 (Fla. 2d DCA 1983).

ORFINGER, C.J., EVANDER and JACOBUS, JJ., concur.


text:
    Michael McKENNA, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-586.
    District Court of Appeal of Florida, Fifth District.
    April 23, 2013.
    Michael McKenna, Wewahitchka, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Fox v. State, 892 So.2d 1197 (Fla. 5th DCA 2005).

EVANDER, COHEN and BERGER, JJ., concur.


author: MORRIS, Judge.

text:
    PILOT CONSTRUCTION SERVICES, INC., a Florida corporation, Appellant, v. BABE’S PLUMBING, INC., a Florida corporation, Appellee.
    No. 2D11-6009.
    District Court of Appeal of Florida, Second District.
    April 24, 2013.

      Jawdet I. Rubaii and Jack F. White, III, of Jawdet I. Rubaii, P.A., Clearwater, for Appellant.
    H. Vance Smith of Kadyk & Delesie P.A., Tampa, for Appellee.
   MORRIS, Judge.

Appellee’s motion for rehearing is granted. The opinion dated February 1, 2013, is withdrawn and the following opinion is substituted therefor. Appellee’s motion for rehearing en banc is denied. No further motions for rehearing will be entertained.

Pilot Construction Services, Inc. (Pilot), appeals a final summary judgment entered on its cross-claims against Babe’s Plumbing, Inc. (Babe’s), in litigation initiated by New College against Pilot and Babe’s. In moving for summary judgment, Babe’s argued that New College’s release of Babe’s in connection with their settlement barred Pilot’s claims against Babe’s. Babe’s also argued that Pilot’s indemnity claims were barred by section 725.06, Florida Statutes (2005). The trial court granted Babe’s’ motion for summary judgment. Based on the following analysis, we reverse.

I. Background

Pilot served as the general contractor on the renovation of a residence hall on New College’s Sarasota campus. After completion of the project, New College discovered that some of the subcontractors either failed to perform the work on the residence hall’s bathrooms and shower stalls pursuant to the plans and specifications or failed to make the necessary repairs. The defects resulted in leaks that caused significant damage to the residence hall. When the parties were unable to reach a resolution, New College filed suit.

New College’s initial complaint alleged counts for breach of contract and breach of express warranty against Pilot. New College alleged that Pilot had breached its agreement with New College by “failing to properly manage the work, failing to properly assure quality control of the construction[,] and failing to properly supervise the work of subcontractors involved in the construction of the shower stalls.” New College also alleged a count of breach of express warranty against Babe’s, alleging that “there were numerous defects in the workmanship and materials and the work performed by Babe’s.” New College described the defects as including the “improper installation of shower pans, corner frames[,] and shower drains.”

After the suit was filed, Babe’s and New College entered into a settlement. New College then filed an amended complaint dropping Babe’s as a defendant but maintaining the same counts originally asserted against Pilot. The amended complaint alleged that Pilot breached the contract “by failing to properly manage the work on the [pjroject, failing to properly assure quality control of the construction of the [pjroject, and by failing to properly supervise and inspect the work of subcontractors involved in the construction of the [p]roject.” New College continued to allege that the shower pans and drains were improperly installed.

Pilot filed a cross-claim against Babe’s for indemnity. Pilot then settled with New College and was granted leave to amend its cross-claim against Babe’s to allege counts for indemnity, breach of warranty, and equitable subrogation. Pilot sought indemnity for the portion of its settlement sum paid to New College that was attributable to the work for which Babe’s was responsible. Pilot also alleged that Babe’s failed to honor its written warranty for work it performed on the project.

Babe’s moved for summary judgment, claiming that New College’s settlement with Babe’s included a release which covered any claims that Pilot could make against Babe’s and that section 725.06 barred Pilot’s claims of indemnity. Without stating its rationale, the trial court granted Babe’s’ motion and entered summary judgment in favor of Babe’s.

II. Discussion

A. Summary judgment

Summary judgment should be granted only when “there is no genuine issue of material fact and ... the moving party is entitled to a judgment as a matter of law.” Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). “The party moving for summary judgment has the burden of establishing irrefutably that the nonmoving party cannot prevail.” Hervey v. Alfonso, 650 So.2d 644, 645-46 (Fla. 2d DCA 1995). “[I]f the record reflects the existence of any genuine issue of material fact or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, that doubt must be resolved against the moving party and summary judgment must be denied.” Id. at 646. The standard of review for summary judgments is de novo. Redington Grand, LLP v. Level 10 Props., LLC, 22 So.3d 604, 607 (Fla. 2d DCA 2009).

B. The release

In support of their motion for summary judgment, Babe’s relied on the release between Babe’s and New College signed pursuant to their settlement. On appeal, Pilot claims that the release did not limit Pilot’s claims against Babe’s or absolve Babe’s of its liability to Pilot and that questions of fact exist regarding Babe’s’ or Pilot’s responsibility for the defects in the project. We agree.

The release between Babe’s and New College included the following language: “Nothing within this Release is intended to be nor shall it be construed as any kind of waiver, limitation, or compromise to any claim or defense New College has or may have against any party or entity other than Babe’s Plumbing, Inc.” This provision reflects Babe’s’ and New College’s intent to not limit New College’s claims against other parties. However, the release also included language which releases Babe’s together with

any other person, firm, corporation or business entity that would in any way be vicariously liable for their negligence or legal responsibility, of and from any and all actions, causes of action, claims, demands, costs, loss of services, loss of consortium, expense and compensation, on account of, or in any way growing out of, any and all known and unknown damages resulting or to result from all causes of action arising in Sarasota County, Florida in connection with the work of Babe’s Plumbing, Inc. in the construction of a university residence hall....

This provision purports to release Babe’s for any claim another entity may have against Babe’s for Babe’s’ negligence or responsibility for the defects. The record before us is silent as to how the trial court reconciled these apparently conflicting portions of the release at issue in light of the facts in this case. After executing the release and settling with Babe’s, New College continued to assert its claims against Pilot, which Pilot argued were rooted in Babe’s’ faulty work. To the extent that the language of the release purports to bar Pilot’s claims against Babe’s, we conclude that it cannot preclude Pilot from pursuing its claims against Babe’s because the release was between Babe’s and New College and Pilot was not a party to the release. See Rebhan Leasing Corp. v. Trias, 419 So.2d 352, 353 (Fla. 3d DCA 1982) (holding that “[t]he fact that the active tortfeasors settled with the plaintiff does not release them from the claim for indemnification by the party held vicariously liable”); see generally Morgan Stanley DW Inc. v. Halliday, 873 So.2d 400, 403 (Fla. 4th DCA 2004) (recognizing the general rule that only parties to a contract are bound by that contract with the exception of third party beneficiaries). And Pilot was not an intended third-party beneficiary of the release and could not rely on the release as a defense to New College’s claims against Pilot because, as noted above, the language of the release specifically stated that it did not limit or waive New College’s rights against other parties. Therefore, the release did not clearly release Pilot from liability for New College’s claims. Cf. Abis v. Tudin, 18 So.3d 666, 669-70 (Fla. 2d DCA 2009) (holding that release signed by dog owner applied to certain claims against veterinarians not named in the release because the language specifically applied to all other persons for claims resulting from the sale, use, or administration of a veterinary drug); Enter. Leasing Co. v. Demartino, 15 So.3d 711, 714 (Fla. 2d DCA 2009) (holding that intended third-party beneficiary of release had standing to enforce the release because the language clearly released all persons from any and all claims arising from a particular incident).

The fact that Babe’s settled with New College does not release Babe’s from the claim for indemnification by Pilot, who may be liable to New College for Babe’s’ actions or inactions. In addition, the limiting provision of the release makes no mention of the breach of warranty claim, and Pilot’s action against Babe’s included such a claim. Therefore, even if the release could be read to apply to Pilot’s claims against Babe’s, the language of the release would not operate to bar the warranty claim.

Because the language of the release does not apply to bar Pilot’s claims against Babe’s, the trial court erred in granting summary judgment against Pilot. There remain material issues of fact regarding whether Pilot’s responsibility to New College was based on Babe’s’ faulty work and, if so, whether Babe’s is liable to Pilot.

C. Section 725.06

Babe’s’ motion for summary judgment also argued that Pilot’s claims were barred by section 725.06 because Pilot was seeking indemnification from Babe’s for Pilot’s own negligence. See Fed. Ins. Co. v. W. Waterproofing Co. of Am., 500 So.2d 162, 164 (Fla. 1st DCA 1986) (holding that section 725.06 operates to bar indemnification “in circumstances wherein a party by contract seeks to obtain indemnification from another party for its own active negligence ”). Pilot argues on appeal that section 725.06 “only applies to circumstances where the first party agreed to indemnify the second party for the second party’s negligence.”

The 1997 version of section 725.06 applicable to this case provides, in relevant part, that “[a]ny portion of any agreement or contract for ... any construction ... of a building ... wherein any party referred to herein obtains indemnification from liability for damages to persons or property caused ... by ... that party arising from the contract or its performance shall be void and unenforceable” unless the contract contains a monetary limitation and the person to be indemnified gives specific consideration in the contract. Id. This statute is inapplicable to the facts of this case as demonstrated in Alonzo Cothron, Inc. v. Upper Keys Marine Construction, Inc., 480 So.2d 136 (Fla. 3d DCA 1985). In that case, the Third District held that the trial court erred in granting summary judgment on the basis of section 725.06. 480 So.2d at 136. The court held that “[sjection 725.06 would apply if Cothron sought indemnification from Upper Keys for Cothran’s negligence.... [Hjowever, Upper Keys entered into a contractual agreement to indemnify Cothron for negligence by Upper Keys in the performance of its construction contract with Cothron.” 480 So.2d at 136-37 (emphasis added) (footnote omitted). The court held that the contractual provision providing for indemnification was valid. Id. at 137.

Section 725.06 would only bar Pilot’s claims for indemnification if Pilot’s claims were based on Pilot’s own negligence. A plain reading of Pilot’s claims against Babe’s shows that Pilot’s suit against Babe’s was based on Babe’s’ failures to correctly install shower pans and drains in the residence hall bathrooms. Whether the defects in the project resulted from Pilot’s negligent supervision of Babe’s or from Babe’s’ own negligence or both are disputed issues of material fact that preclude summary judgment in this case.

III. Conclusion

Summary judgment was improvidently granted in this case as there are disputed issues of material fact. Accordingly, we reverse the final summary judgment and remand for further proceedings.

LaROSE and CRENSHAW, JJ., Concur.

      . There were several other parties and claims involved in the lawsuit below, but claims were settled and parties were dropped leaving the only remaining dispute between Pilot and Babe's.

      . The contract between Babe’s and Pilot was signed in 1998.


text:
    ALLSTATE FIRE & CASUALTY INSURANCE COMPANY, Appellant, v. Jorge PEREZ, an insured individual by and through his assignee, JEFFREY TEDDER, M.D., P.A., Appellee.
    No. 2D12-807.
    District Court of Appeal of Florida, Second District.
    April 24, 2013.
    Anthony J. Parrino and Katherine Shad-wick of Reynolds Parrino Spano, P.A., St. Petersburg, for Appellant.
    David M. Caldevilla and Michael R. Bray of de la Parte & Gilbert, P.A., Tampa, and Philip A. Friedman of FL Legal Group, Tampa, for Appellee.
   MORRIS, Judge.

Allstate Fire and Casualty Insurance Company appeals a county court order entering summary judgment in favor of Dr. Jeffrey Tedder, as assignee of Jorge Perez’s personal injury protection (PIP) benefits under Perez’s automobile insurance policy. The county court entered an order certifying the issue addressed in the final judgment as a matter of great public importance, and this court exercised its discretionary review power and accepted jurisdiction of the appeal. See Fla. R.App. P. 9.160. We frame the issue as follows:

WHEN A PARTICULAR CPT BILLING CODE IS NO LONGER RECOGNIZED BY MEDICARE PART B BUT THE SERVICE REPRESENTED IN THAT BILLING CODE REMAINS COVERED UNDER MEDICARE PART B, IS THE SERVICE “REIMBURSABLE UNDER MEDICARE PART B” FOR PURPOSES OF SECTION 627.736(5)(a)(2)(f), FLORIDA STATUTES (2009)?

We answer the question in the affirmative, and we affirm the final judgment of the county court.

I. Facts

On March 8, 2009, the insured, Jorge Perez, was injured in an automobile accident. At the time of the accident, Perez was covered by an automobile policy which provided PIP benefits as required by the Florida Motor Vehicle No-Fault Law. See generally §§ 627.730-.7405, Fla. Stat. (2009). The policy was issued by Allstate. On January 11, 2010, Perez sought medical treatment from Dr. Tedder for the injuries he sustained in the accident. Perez then assigned his benefits to Dr. Tedder. Dr. Tedder submitted a bill to Allstate for $675 and sought reimbursement for the consultation services he provided to Perez.

In his bill for services, Dr. Tedder identified the consultation services by referencing CPT code 99245. After receiving Dr. Tedder’s bill and a presuit demand for payment, Allstate ultimately paid $192.80, which represented 80% of the fee for CPT code 99245 under the workers’ compensation fee schedule rather than 80% of 200% of the amount allowable under the participating physicians fee schedule for Medicare Part B. See § 627.736(5)(a)(2)(f). Allstate declined to apply the Medicare Part B schedule because on January 1, 2010, just days before Dr. Tedder provided his consultation services to Perez, the U.S. Department of Health and Human Services, Centers for Medicare and Medicaid Services (CMS), determined that it would no longer recognize CPT code 99245 for payment under Medicare Part B.

Dr. Tedder then filed suit against Allstate seeking a declaration that Allstate improperly used the workers’ compensation fee schedule for the consultation services when the services were reimbursable under Medicare Part B. Dr. Tedder also alleged a count for breach of contract claiming that Allstate had not paid the minimum amount required by the PIP statute as promised by the policy. Both parties moved for summary judgment. Dr. Tedder argued that Medicare’s decision to no longer recognize CPT code 99245 only applies to Medicare beneficiaries and does not affect private citizens insured under the PIP laws. Dr. Tedder also argued that Allstate should not have paid the claim in an amount less than the allowable amount under the participating physicians schedule for Medicare Part B for 2007. In opposition, Allstate asserted that CPT code 99245 is not reimbursable under the Medicare Part B schedule for 2010 and that Allstate properly applied the workers’ compensation schedule as allowed by section 627.736(5)(a)(2)(f).

The county court entered final summary judgment in favor of Dr. Tedder. The county court ruled that “the nature of the medical services in question, i.e.[,] consultation services, are allowable services under Medicare Part B for 2010, notwithstanding the Medicare change in the CPT coding effective January 1, 2010.” The court went on to conclude that Allstate incorrectly utilized the workers’ compensation schedule because the workers’ compensation schedule “only eome[s] into effect under PIP when the services in question are otherwise not reimbursable under Medicare Part B but are reimbursable under [w]orkers[’] compensation.” The court ruled that the consultation services “remain reimbursable under Medicare Part B” and should have been reimbursed at the “amount allowable under the participating physicians schedule of Medicare Part B for 2007.”

After the county court entered final summary judgment, it entered an order on rehearing certifying its final judgment as a matter of great public importance pursuant to rule 9.160. Specifically, the order states that the “issue in this matter is interpretation [of section] 627.736(5)(a)(2), (3), and (4) as it relates to consultation codes and the proper fee schedule utilization therein under law.”

II. Analysis

On appeal, Allstate argues that it properly applied the workers’ compensation fee schedule because CPT code 99245 is no longer reimbursable under the 2010 Medicare Part B participating physicians fee schedule. We review de novo the county court’s interpretation of the relevant PIP statute and its determination that Dr. Tedder is entitled to summary judgment as a matter of law. See Allstate Ins. Co. v. Holy Cross Hosp., Inc., 961 So.2d 328, 331 (Fla.2007); Judy v. MSMC Venture, LLC, 100 So.3d 1287, 1288 (Fla. 2d DCA 2012).

Under section 627.736, an insurer may “choose between two different payment calculation methodology options.” Kingsway Amigo Ins. Co. v. Ocean Health, Inc., 63 So.3d 63, 67 (Fla. 4th DCA 2011). The insurer may either pay reasonable medical expenses as provided in subsection (5)(a)(l), or the insurer may limit reimbursement according to the parameters of subsection (5)(a)(2). The latter subsection provides the following relevant language:

2. The insurer may limit reimbursement to 80 percent of the following schedule of maximum charges:
f. For all other medical services, supplies, and care, 200 percent of the allowable amount under the participating physicians schedule of Medicare Part B. However, if such services, supplies, or care is not reimbursable under Medicare Part B, the insurer may limit reimbursement to 80 percent of the maximum reimbursable allowance under worker’s compensation, as determined under s. 440.13 and rules adopted thereunder which are in effect at the time such services, supplies, or care is provided. Services, supplies, or care that is not reimbursable under Medicare or workers’ compensation is not required to be reimbursed by the insurer.

§ 627.736(5)(a)(2)(f) (emphasis added). Thus, under section 627.736(5)(a)(2)(f), if services are not “reimbursable” under Medicare Part B, they may be reimbursed under the workers’ compensation schedule. Because Allstate chose to pay the bill according to the provisions of subsection (5)(a)(2)(f), we must decide whether the services in this case are reimbursable under Medicare Part B.

In its publication MLN Matters Number: MM67W, CMS explained that certain CPT consultation codes are no longer recognized for payment under Medicare Part B: “[Effective January 1, 2010, the [CPT] consultation codes (ranges 99241-99245 and 99251-99255) are no longer recognized for Medicare Part B payment.” Centers for Medicare & Medicaid Servs., U.S. Dep’t of Health & Human Services, MLN Matters Number: MM67I0, at 2 (revised on November 8, 2011). However, the article went on to explain that the services represented in those codes are still covered services: “Although CMS has eliminated the use of the CPT consultation codes for payment of [evaluation and management] services furnished to Medicare fee-for-service patients, those [evaluation and management] services themselves continue to be covered services if they are medically reasonable and necessary....” Id. at 3 (emphasis added). Therefore, it is clear that the services represented by CPT code 99245 are still covered by Medicare Part B if they are medically reasonable and necessary. It then follows that the services are “reimbursable under Medicare Part B” for purposes of section 627.736(5)(a)(2)(f). The language of section 627.736(5)(a)(2)(f) is clear. The statute focuses on whether services, supplies, or care is “reimbursable under Medicare Part B”; it does not require that CPT codes be recognized by Medicare for reimbursement purposes. See Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (“ ‘[T]he statute must be given its plain and obvious meaning.’ ” (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931))). While CPT codes help to clearly identify services that may be reimbursable under the PIP statute, a CPT code alone does not dictate whether a service is reimbursable under the statute. As the county court ruled, it is the nature of the medical service that controls. This plain reading of the statute is consistent with the well-established rule in Florida that the PIP statute should be construed liberally in favor of the insured. See State Farm, Mut. Auto. Ins. Co. v. Pressley, 28 So.3d 105, 108 (Fla. 1st DCA 2010) (citing Farmer v. Protective Cas. Ins. Co., 530 So.2d 356 (Fla. 2d DCA 1988)).

Because the services provided by Dr. Tedder are reimbursable under Medicare Part B, Allstate was not permitted to utilize the worker’s compensation fee schedule. Allstate was required to reimburse Dr. Tedder under a Medicare Part B fee schedule. Section 627.736(5)(a)(3) provides that

[f]or purposes of subparagraph 2., the applicable fee schedule or payment limitation under Medicare is the fee schedule or payment limitation in effect at the time the services, supplies, or care was rendered and for the area in which such services were rendered, except that it may not be less than the allowable amount under the participating physicians schedule of Medicare Part B for 2007 for medical services, supplies, and care subject to Medicare Part B.

The applicable fee schedule in effect at the time the services were rendered was the 2010 Medicare Part B fee schedule. But as noted above, the CPT code was not recognized under the 2010 Medicare Part B fee schedule although the services are still reimbursable under Medicare Part B; therefore, Allstate should have referred to the Medicare Part B schedule for 2007, which is the baseline for services reimbursable under Medicare Part B. See id.

We acknowledge that section 627.736(5)(d) requires providers to submit bills for services that comply with the CPT coding in effect for the year in which the services are rendered. We cannot say that Dr. Tedder failed to comply with this provision because there has been no allegation that CPT code 99245 was eliminated from the general CPT coding system used outside of the Medicare system. But we understand the confusion that is likely caused when a provider uses a CPT code that, while still valid in the medical community, is no longer recognized by the current Medicare Part B schedule but the services are considered covered and therefore reimbursable under Medicare Part B. As in this case, the insurer would have to look beyond the CPT code to determine whether the services represented in the code are reimbursable under Medicare Part B. We understand that this complicates the reimbursement process under the PIP statute. Nonetheless, we are bound by the plain language of section 627.786(5)(a)(2)(f), which does not require a CPT code to be recognized by Medicare Part B if the services are otherwise covered and reimbursable under Medicare Part B. See Overstreet v. State, 629 So.2d 125, 126 (Fla.1993) (“If the legislature did not intend the results mandated by the statute’s plain language, then the appropriate remedy is for it to amend the statute.”); Peace River/Manasota Reg’l Water Supply Auth. v. IMC Phosphates Co., 18 So.3d 1079, 1087 (Fla. 2d DCA 2009) (“[T]his court is not permitted to add words to a statute that were not placed there by the legislature.”).

III. Conclusion

In sum, we hold that the county court correctly concluded that the consultation services provided by Dr. Tedder are reimbursable under section 627.736(5)(a)(2)(f) despite the fact that the CPT code used to identify those services is no longer recognized by Medicare Part B.

Affirmed.

DAVIS and WALLACE, JJ., Concur.

      . CPT stands for Current Procedural Terminology and is a registered trademark of the American Medical Association. See http:// www.ama-assn.org/ama/pub/physician-resources/solutions-managing-your-practice/ coding-billing-insurance/cpt.page (last visited March 18, 2013).

      .The article can be found at http://www.cms. gov/Outreach-and-Education/Medicare-Learning-Network-MLN/MLNMatters Articles/downloads/mm6740.pdf (last visited March 18, 2013).

      . Allstate does not argue that the consultation services were not medically reasonable and necessary.

      . Section 627.736(5)(d) provides in relevant part that

        [a]Il billings for such services rendered by providers shall, to the extent applicable, follow the Physicians’ Current Procedural Terminology (CPT) or Healthcare Correct Procedural Coding System (HCPCS), or ICD-9 in effect for the year in which services are rendered and comply with the Centers for Medicare and Medicaid Services (CMS) 1500 form instructions and the American Medical Association Current Procedural Terminology (CPT) Editorial Panel and Healthcare Correct Procedural Coding System (HCPCS).


text:
    Michael P. MATOS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-4594.
    District Court of Appeal of Florida, Fifth District.
    April 26, 2013.

      Michael P. Matos, Milton, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Appellant challenges the order denying his petition to remove the requirement that he register as a sex offender. Because the trial court failed to afford Appellant a hearing on a disputed issue of material fact, we reverse and remand this cause for a hearing.

The State originally charged Appellant with one count of sexual battery in violation of section 794.011(4), Florida Statutes (1997), alleging that he penetrated the fifteen-year-old victim’s vagina with his penis without the victim’s consent and while she was physically helpless to resist. Five months later, the State amended the charge to lewd or lascivious assault upon a child, pursuant to section 800.04(1), Florida Statutes (1997). The amended information alleged that Appellant penetrated the victim’s vagina with his penis in a lewd, lascivious, or indecent manner without committing the crime of sexual battery. Section 800.04 specifies that the victim’s consent is not a defense to the crime. Appellant entered a no contest plea to the reduced charge and the court sentenced him to sixty-four months in prison.

Fourteen years later, Appellant filed a petition with the trial court seeking removal of the requirement to register as a sexual offender. As required by section 943.04354, Florida Statutes (commonly referred to as the Romeo and Juliet statute), Appellant alleged that removal of the registration requirement would not conflict with federal law. See § 943.04354(3)(b), Fla. Stat. (2011) (“The person must allege in the motion that he or she meets the criteria in subsection (1) and that removal of the registration requirement will not conflict with federal law.”). The State objected, asserting that Appellant did not qualify for removal. It argued that, under the Sex Offender Registration and Notification Act, 42 U.S.C. § 16911 (commonly known as the Adam Walsh Act), only consensual sexual conduct qualifies for relief from the registration requirement and Appellant’s sexual conduct with the victim was not consensual. The State attached a copy of the original information to its response to show that Appellant’s sexual conduct was not consensual. Appellant filed a reply pointing out that the amended information, which was filed several months before he entered his plea, did not allege non-consensual sexual conduct.

Without conducting a hearing to resolve the disputed fact, the trial court rendered its order denying Appellant’s petition. The court based its ruling on the victim’s statement contained in a presentence investigation report (“PSI”), which does not appear in the record.

The trial court’s decision on a petition for removal of the sexual offender registration requirement is reviewed for an abuse of discretion. Clark v. State, 95 So.3d 986 (Fla. 2d DCA 2012). Under section 943.0435, a defendant convicted of violating section 800.04 is automatically designated a sexual offender and required to comply with the registration requirements of the statute. Simmons v. State, 25 So.3d 638, 638 (Fla. 1st DCA 2009); Miller v. State, 17 So.3d 778, 779-80 (Fla. 5th DCA 2009). However, section 943.04354 permits a defendant to petition for removal of the registration requirement if the defendant satisfies the statutory criteria. Miller, 17 So.3d at 780. Here, the only criterion at issue is whether Appellant’s sexual conduct with the victim was consensual. If it was not consensual, then his removal from the registration requirement would violate the Adam Walsh Act. See 42 U.S.C. § 16911(5)(c) (2011) (excluding consensual sexual conduct from definition of “sex offense” under circumstances present in Appellant’s case, where “the victim was at least 13 years old and the offender was not more than 4 years older than the victim”).

Appellant argues that the court’s finding that his sexual conduct with the victim was not consensual is not supported by competent, substantial evidence because the PSI constituted hearsay and lacked corroborating evidence. We agree. The language of section 943.04354(3)(b), Florida Statutes (2011), suggests that a hearing should be held:

(b) A person may petition the court in which the sentence or disposition for the violation of ... 800.04 ... occurred for removal of the requirement to register as a sexual offender or sexual predator. The person must allege in the petition that he or she meets the criteria in subsection (1) and removal of the registration requirement will not conflict with federal law. The state attorney must be given notice of the petition at least 21 days before the hearing on the petition and may present evidence in opposition to the requested relief or may otherwise demonstrate why the petition should be denied. The court shall rule on the petition and, if the court determines the person meets the criteria in subsection (1) and removal of the registration requirement will not conflict with federal law, it may grant the petition and order the removal of the registration requirement. If the court denies the petition, the person is not authorized under this section to file any further petition for removal of the registration requirement.

(Emphasis added). Although a hearing might not be required under circumstances where the record contains no dispute on the issue of consent, here, the record does not reflect that Appellant agreed that the PSI could be considered as evidence. Nor did Appellant have an opportunity to dispute its contents.

The State alternatively argues that the trial court’s ruling should be affirmed because the court has discretion to deny a request for removal even where a defendant demonstrates that he meets all of the statutory criteria. § 943.04354(3)(b), Fla. Stat. (2011). The State is correct that the trial court has discretion to deny the petition even where a defendant meets all the criteria. That discretion, however, is not unbridled and the court must set forth the basis of its determination. Clark, 95 So.3d at 989.

REVERSED AND REMANDED.

TORPY, EVANDER and JACOBUS, JJ., concur.