author: THOMAS, Judge.

text:
    Thomas Devern HADLEY and Melinda Jeanette Hadley v. Robert Lee PARKER.
    2121029.
    Court of Civil Appeals of Alabama.
    March 7, 2014.

      T. Jason Hadley of The Hadley Law Firm, LLC, Bay Minette, for appellants.
    Taylor D. Wilkins, Jr., and Robert W. Waller, Jr., of Wilkins, Bankester, Biles & Wynne, P.A., Bay Minette, for appellee.
   THOMAS, Judge.

Thomas Devern Hadley and Melinda Jeanette Hadley appeal from a judgment of the Baldwin Circuit Court (“the trial court”).

The relevant facts and procedural history are as follows. Robert Lee Parker and the Hadleys are owners of coterminous properties located in Baldwin County. On November 2, 2011, Parker filed a complaint in the trial court alleging a boundary-line dispute and, as a result, a dispute as to ownership of certain property between the parties. The Hadleys filed an answer to the complaint and a counterclaim on December 8, 2011. After a trial, the trial court entered a judgment on November 13, 2012. The judgment awarded the Hadleys the disputed property via adverse possession and awarded Parker a prescriptive easement across the disputed property. The judgment also ordered the parties to agree upon a surveyor to establish the boundary line, or the trial court would appoint a surveyor, and included a vague description of the prescriptive easement awarded to Parker.

The Hadleys filed a motion on November 14, 2012, asking the trial court to specifically set out the boundary line between the parties’ properties; Parker filed a response on November 29, 2012, agreeing with the Hadleys. The trial court entered an order on December 3, 2012, appointing a surveyor. On December 21, 2012, the trial court entered an amended judgment. The amended judgment does not refer to a survey; however, it set the boundary line between the parties’ properties. The judgment included the following description of the prescriptive easement awarded to Parker:

“Said easement shall be measured from the southern boundary of the east-west easement on the northern end of the property. Said east-west easement being that certain non-exclusive easement, filed for record on July 21, 2008, and granted unto [Parker] by [the Had-leys], [] T-posts currently mark the area defined in said easement as ‘where it slightly widens out.’ The measurement for the easement granted unto [Parker] herein shall begin along the line marked by T-posts along the southern boundary of the existing easement, for record on July 21, 2008, from [the Hadleys] unto [Parker], Nothing in this easement shall affect the terms of the non-exelu-sive easement filed for record on July 21, 2008.”

On March 18, 2018, Parker filed a motion in the trial court asserting that the surveyor had incorrectly surveyed the easement that he had been awarded in the trial court’s judgment. The Hadleys filed a response in opposition on March 25, 2013. On August 5, 2018, the trial court entered an order that stated, in pertinent part:

“2. The measurement for the easement granted [Parker] shall begin along the line marked by the T-posts along the southern boundary of the existing easement where the eastern boundary of the herein described easement intersects the existing easement filed for record on July 21, 2008. The easement shall extend south to the southern post of the gap in the fence situated on the western boundary of the easement, thereby [Parker] having access, ingress and egress, through the gap.
“3. Notwithstanding, anything to the contrary, all other provisions of the Amended Judgment entered by the Court on the 21st day of December, 2012, not in conflict with the above, shall remain in full force and effect.”

The Hadleys filed a motion seeking to certify the judgment as final pursuant to Rule 54(b), Ala. R. Civ. P., and for a stay of enforcement of the judgment on August 16, 2013. The trial court entered an order on August 22, 2013, granting the Hadleys’ Rule 54(b) request but denying the stay. The Hadleys filed an appeal to this court on August 30, 2013. We transferred the appeal to our supreme court for lack of subject-matter jurisdiction; the appeal was transferred back to this court pursuant to § 12-2-7(6), Ala. Code 1975.

Although neither side has raised the issue of this court’s jurisdiction on appeal,

“‘“[j]urisdictional matters are of such magnitude that we take notice of them at any time and do so even ex mero motu.” Wallace v. Tee Jays Mfg. Co., 689 So.2d 210, 211 (Ala.Civ.App.1997) (quoting Nunn v. Baker, 518 So.2d 711, 712 (Ala.1987)). The timely filing of a notice of appeal is a jurisdictional act. Williamson v. Fourth Ave. Supermarket, Inc., 12 So.3d 1200, 1202 (Ala.2009).”

Burgess v. Burgess, 99 So.3d 1237, 1239 (Ala.Civ.App.2012).

We first note that Parker’s motion filed on March 18, 2013, was filed well beyond the 30 days allowed to file a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P. Parker’s motion was simply titled “Motion” and did not reference any Alabama rule of civil or appellate procedure. The trial court stated that it entered the August 5, 2013, order “to clarify the intent of the Court in its previous Amended Judgment.” We have determined that Parker’s March 18, 2013, motion was a motion to clarify. Therefore, because the time to appeal was not tolled’ by a timely filed postjudgment motion, the Hadleys’ appeal, filed more than 42 days after entry of the December 21, 2012, amended judgment, is untimely. See Rule 4(a)(1) & (a)(8), Ala. R.App. P.; see also Gary Powers Dev., Inc. v. State Home Builders Licensure Bd., 852 So.2d 778, 781-82 (Ala.Civ.App. 2002). We therefore dismiss the appeal.

APPEAL DISMISSED.

THOMPSON, P.J., and PITTMAN, MOORE, and DONALDSON, JJ., concur.

      . In its judgment, the trial court actually stated that Parker had established an easement by adverse possession, which we will refer to as an easement by prescription or a prescriptive easement.

      . The record indicates that this is the second time that Parker and the Hadleys have had a property dispute and that in 2008 Parker was awarded an easement over the Hadleys' property.

      . Our review of the record does not reveal any outstanding claims not addressed by the trial court.

      . We have also considered whether Parker’s March 18, 2013, motion could be construed as a Rule 60(b)(1), Ala. R. Civ. P., motion. However, we conclude that Parker’s motion did not allege a mistake of fact or request that the trial court’s judgment be set aside; rather, it requested the trial court to clarify the starting point of the prescriptive easement for the purposes of conducting a survey. Furthermore, the Hadleys’ arguments on appeal concern the trial court's judgment awarding Parker the prescriptive easement; the Hadleys do not raise on appeal an issue as to the correctness of the trial court's August 5, 2012, order. Alabama Farm Bureau Muí. Cas. Ins. v. Boswell, 430 So.2d 426, 428 (Ala. 1983) (citing Sanders v. Blue Cross-Blue Shield of Alabama, 368 So.2d 8 (Ala. 1979)) ("An order overruling or denying a motion under Rule 60 is ... an appealable order, but presents for review only the correctness of the trial court’s order on the Rule 60 motion.”).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    B.A.M. v. CULLMAN COUNTY DEPARTMENT OF HUMAN RESOURCES.
    2130014.
    Court of Civil Appeals of Alabama.
    March 7, 2014.

      Sarah Sparks, Cullman, for appellant.
    Luther Strange, atty. gen., and Sharon E. Ficquette, gen. counsel, and Elizabeth L. Hendrix, asst. atty. gen., Department of Human Resources, for appellee.
   PER CURIAM.

B.A.M. (“the mother”) appeals from a judgment entered by the Cullman Juvenile Court (“the juvenile court”) terminating her parental rights to E.A. (“the child”). We reverse.

On July 18, 2012, the Cullman County Department of Human Resources (“DHR”) petitioned the juvenile court to terminate the parental rights of the mother and W.H.A. (“the father”). On August 13, and September 11, 2013, the juvenile court'conducted a hearing on DHR’s petition. The father, who was in prison, did not attend the hearing, and his parental rights to the child are not at issue in this appeal. On September 17, 2013, the juvenile court entered its judgment terminating the mother’s parental rights. On October 1, 2013, the mother filed a postjudgment motion; on that same date, the mother filed a notice of appeal. On October 2, 2013, the juvenile court denied, without a hearing, the mother’s postjudgment motion, and her notice of appeal was deemed filed on that date. See Rule 4(a)(5), Ala. R.App. P.

On appeal, the mother first argues that the juvenile court erred in denying her postjudgment motion without a hearing. However, the record indicates that the mother did not request a hearing on her postjudgment motion. As a result, she waived her right to a hearing. See Greene v. Thompson, 554 So.2d 376, 381 (Ala.1989); and Frederick v. Strickland, 386 So.2d 1150,1152 (Ala.Civ.App.1980).

The mother next argues that the juvenile court erred in finding grounds for termination of her parental rights. The statutory grounds for terminating parental rights, i.e., for a finding that the child is dependent, are set forth in § 12-15-319, Ala.Code 1975, which provides, in pertinent part:

“(a) If the juvenile court finds from clear and convincing evidence, competent, material, and relevant in nature, that the parents of a child are unable or unwilling to discharge their responsibilities to and for the child, or that the conduct or condition of the parents renders them unable to properly care for the child and that the conduct or condition is unlikely to change in the foreseeable future, it may terminate the parental rights of the parents.”

Pursuant to the terms of that statute, a juvenile court may terminate a parent’s parental rights only if clear and convincing evidence shows that the parent is currently unable to discharge his or her parental duties properly, see D.O. v. Calhoun Cnty. Dep’t of Human Res., 859 So.2d 439, 444 (Ala.Civ.App.2003), and that the conduct or condition that prevents the parent from assuming or exercising proper care of the child will likely persist in the foreseeable future. See D.M. v. Walker Cnty. Dep’t of Human Res., 919 So.2d 1197, 1211 (Ala.Civ.App.2005).

From the substantial evidence presented in the record, the juvenile court reasonably could have been clearly convinced that the mother lacked the ability to meet the special needs of the child. See Ex parte Mclnish, 47 So.3d 767, 774 (Ala.2008) (explaining the standard of appellate review when the clear-and-convincing-evidence standard applies at trial). The evidence established that the child had been diagnosed with “Attention Deficit Hyperactivity Disorder,” “Oppositional Defiance Disorder,” and autism, and that his serious behavioral issues require a highly structured facility equipped to handle his aggressive behaviors and to monitor and dispense his many medications. According to multiple witnesses, the child’s emotional and behavioral issues, which include hitting, kicking, throwing items, and running away, often had required more than one aide to ensure the child’s safety and the safety of those around him, and the severity of those issues had led multiple professional institutions and foster homes to remove the child from their programs. The child has been diagnosed with a borderline low IQ that requires him to attend special-education classes and with a speech impediment that requires speech therapy. During DHR’s involvement with him, the child had been hospitalized on multiple occasions to regulate his medications and to gain control of his behaviors.

Efforts to keep the child in the home with the mother failed after she repeatedly exhibited an inability to independently control the child, her husband and his mother expressed concerns about the child being in the home, and some of the child’s prescription medication went missing. A family counselor testified that, after working with the mother for 14 months, she found the mother “very cooperative but lacking in skills.” The counselor testified that, despite her own experience, the child’s medication regimen was complicated even for her and that she had concerns about whether the mother, who displayed limited reading ability, could properly administer the child’s medications without help. The counselor testified that it would not be safe for the mother to be alone with the child for any length of time and that she did not believe the mother has sufficient family support to resume care of the child in her home.

Nevertheless, we agree with the mother that the juvenile court erred in terminating her parental rights. As the mother lastly argues, parental rights may not be terminated, even if sufficient statutory grounds exist, when some less drastic measure might be employed to preserve the parental relationship without harming the interests of the child. See Ex parte Beasley, 564 So.2d 950, 954 (Ala.1990).

“Parents and their children share a fundamental right to family integrity that does not dissolve simply because the parents have not been model parents. Santosky v. Kramer, 455 U.S. 745, 754, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). That due-process right requires states to use the most narrowly tailored means of achieving the state’s goal of protecting children from parental harm. Roe v. Conn, 417 F.Supp. 769, 779 (M.D.Ala.1976). Thus, if some less drastic alternative to termination of parental rights can be used that will simultaneously protect the children from parental harm and preserve the beneficial aspects of the family relationship, then a juvenile court must explore whether that alternative can be successfully employed instead of terminating parental rights. Id.”

T.D.K. v. L.A.W., 78 So.3d 1006, 1011 (Ala.Civ.App.2011).

The evidence presented to the juvenile court undisputably established that the mother had raised the child continuously since his birth until he was removed from her care at the age of seven. It is undisputed that the mother and the child share a strong bond and that the mother has maintained constant contact and communication with the child while he has been in the care of others. Multiple witnesses agreed that it would- be in the child’s best interest and necessary for his mental health that he and the mother continue to maintain their relationship and communication, even if he is not in her primary custody or care. Multiple witnesses further testified that the child suffers significant emotional distress when his visits with the mother end.

In such cases, this court has held that terminating parental rights could do more harm than good. See, e.g., CM. v. Tuscaloosa Cnty. Dep’t of Human Res., 81 So.3d 391 (Ala.Civ.App.2011). Juvenile courts therefore must consider the benefit to the child of maintaining custody with some third party with parental visitation as opposed to terminating parental rights solely to remove obstacles to the adoption of the child. C.M., 81 So.3d at 397 (citing D.M.P. v. State Dep’t of Human Res., 871 So.2d 77, 95 n. 17 (Ala.Civ.App.2003) (plurality opinion)). -

In this case, maintaining visitation with the mother would not present any risk of harm to the child. The record discloses no evidence to suggest that the mother has ever abused or neglected the child. Throughout DHR’s involvement, the mother did all that was asked of her, and she appears to have done all that she could to care for the child and to meet his needs. As the mother correctly asserts, numerous professionals and foster parents have been equally unable to meet the child’s needs, and the child has required hospitalization on several occasions while in DHR’s custody. The psychologist who evaluated the child opined that he could see nothing that the mother had done to cause or exacerbate the child’s diagnoses.

Furthermore, the record discloses no benefit the child will receive from terminating the mother’s parental rights. The child’s most recent DHR caseworker testified that, if the mother’s parental rights were terminated, the child would be added to the State’s adoption registry in the hopes of finding an adoptive parent. She acknowledged that DHR had no identified resources for the child at the time of the termination hearing and that it would be difficult to find adoptive parents for him. According to the caseworker, DHR had not determined where the child would be placed long-term and she was still searching for an appropriate therapeutic foster home for him. It appears that finding an appropriate placement for the child is a difficult task. Additionally, the child will continue to require numerous services from the State to meet his needs whether the mother’s parental rights remain intact or not.

Given the almost total uncertainty as to whether the child will ever receive any stability or permanency if the judgment stands, and the almost total certainty that he will suffer serious emotional turmoil if it does, we can perceive no advantage to the child in disturbing the status quo. Our supreme court has held that a juvenile court should maintain foster care or another third-party custodial arrangement without terminating parental rights when a child shares a beneficial emotional bond with a parent and the custodial arrangement ameliorates any threat of harm presented by the parent. See Ex parte A.S., 73 So.3d 1223 (Ala.2011). Consistent with that analysis, we hold that the juvenile court erred in terminating the mother’s parental rights rather than maintaining the current custody and visitation arrangement. See also CM., supra (reversing judgment terminating the parental rights of a mentally ill mother because the mother and the children had a strong bond, the mother had remained involved in the children’s lives after they were removed from her custody, the children desired to continue their contact and relationship with the mother, and the benefits of maintaining that familial relationship outweighed the potential benefits to the children that might arise from being adopted or finding a long-term placement). We therefore reverse the juvenile court’s judgment and remand the cause for the entry of a judgment consistent with this opinion.

REVERSED AND REMANDED WITH INSTRUCTIONS.

All the judges concur.


text:
    In re AMENDMENTS TO the FLORIDA RULES OF JUDICIAL ADMINISTRATION.
    No. SC14-219.
    Supreme Court of Florida.
    Oct. 30, 2014.
    Murray Bruce Silverstein, Chair, Rules of Judicial Administration Committee, Greenberg Traurig, P.A., Tampa, FL, Judge Jon Berkley Morgan, Past Chair, Rules of Judicial Administration Committee, Kissimmee, FL, John F. Harkness, Jr., Executive Director, and Krys Godwin, Bar Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
    Fredric W. Baggett and Mary Hope Keating of Greenberg Traurig, P.A., Tallahassee, FL, on behalf of Florida Association of Court Clerks, Inc., Judge Cheryl Kendrick Thomas, Chair, Judicial Branch Records Management Committee, and Joseph E. Smith, President, Florida Court Clerks & Comptrollers, Fort Pierce, FL, Responding with comments.
   PER CURIAM.

We have for consideration the regular-cycle report of proposed rule amendments filed by The Florida Bar’s Rules of Judicial Administration Committee (Rules Committee). See Fla. R. Jud. Admin. 2.140(b)(4). We have jurisdiction and adopt the amendments as proposed.

BACKGROUND

The Rules Committee proposes amendments to Florida Rules of Judicial Administration 2.430 (Retention of Court Records), and 2.510 (Foreign Attorneys). Consistent with rule 2.140(b)(2), the Rules Committee published the proposals for comment before filing them with the Court. The Committee did not receive any comments. The Board of Governors of The Florida Bar approved the proposals. The Court also published the proposals for comment. One comment was filed with the Court by the Florida Association of Court Clerks, Inc. (Clerks) opposing the amendments to rule 2.430. The Rules Committee filed a response urging the Court to adopt those amendments as proposed.

In response to a request by the Court, the Judicial Branch Records Management Committee filed a comment making recommendations on the proposed amendments to rule 2.430, and addressing the issues raised in the Clerks’ comment. See In re Amends, to the Fla. Rules of Jud. Admin., No. SC14-219 (Fla. order filed June 18, 2014) (requesting comment); see also In re Amends, to Rule of Jud. Admin. 2430, 973 So.2d 437, 440 n. 6 (Fla.2008) (stating that the Judicial Branch Records Management Committee has responsibility to comment on proposed amendments to the retention rules); In re Judicial Branch Records Mgmt. & Retention Program, Fla. Admin. Order No. AOSC08-5, 1-2 (Dec. 15, 2008) (charging the Judicial Branch Records Management Committee with responsibility to comment on proposed amendments to the retention rules). The Clerks filed a response to the comment, after being granted leave to do so.

AMENDMENTS

After considering the Rules Committee’s proposals, the comments filed, and the responses to the comments, we amend the rules as proposed.

The more significant amendments to rule 2.430 (Retention of Court Records) extend the retention periods for misdemeanor and criminal traffic violation records, and clarify that criminal traffic violations records are considered either misdemeanor records or felony records. Currently, as relevant here, rule 2.430(c)(1)(C) allows the clerks to destroy misdemeanor and criminal traffic violation records that are not permanently recorded five years after the judgment becomes final. The reference to “criminal traffic violations” is removed from the retention schedule and those records are now subsumed under the schedules for misdemeanor and felony records. The amendments to subdivisions (c)(1)(C), (c)(1)(E), and (c)(1)(F) require the same 10- and 75-year retention periods for misdemeanor records as are currently required for felony records, under subdivisions (c)(1)(E) and (c)(1)(F). According to the Rules Committee’s report, the longer retention periods were suggested by the Florida Prosecuting Attorneys Association. The prosecutors were concerned about the destruction of misdemeanor records by clerks after five years and explained the need to maintain those records in order to prove recidivism if the crimes in question occur more than five years apart. In addition, the prosecutors urged that misdemeanor records are needed for postconviction motions, impeachment with prior convictions, and preparation of sentencing guideline scoresheets.

The Court has given due consideration to the Clerks’ concerns about the cost of maintaining misdemeanor and criminal traffic records for the extended retention periods. While we appreciate the Clerks’ concerns, all agree that the cost to maintain paper records will continue to diminish as the judicial system moves to a fully electronic filing and document management system. And the Court agrees with the Rules Committee and the Judicial Branch Records Management Committee that any remaining fiscal concerns attendant to electronically retaining the records for the extended periods cannot outweigh the retention value of those records in proving recidivism and protecting defendants against false allegations.

The more significant amendments to rule 2.510 (Foreign Attorneys) include the following. The amendment to subdivision (a) (Eligibility) allows the court to waive the pro hac vice filing fee in pro bono cases in which the foreign attorney’s client may not be technically “indigent,” where good cause is shown. According to the committee report, the trial judge would have discretion to determine what constitutes a “pro bono” client and what constitutes “good cause” for purposes of the rule. Subdivision (b)(1) is amended to provide that a certificate of good standing from the foreign attorney’s home jurisdiction is not required. The amendment to subdivision (b)(3) clarifies the requirements regarding disclosure of all disciplinary, suspension, disbarment, or contempt proceedings that have been initiated against the attorney in the preceding five years. This subdivision corresponds to amendments to item 5 of the verified motion for admission to appear pro hac vice form, which now requires the movant to certify as to any disciplinary, suspension, disbarment, or contempt proceedings initiated against the movant. Paragraphs 6, 7, and 8 of the form are deleted because their substance is now part of paragraph 5 and the form is renumbered.

CONCLUSION

Accordingly, we amend the Florida Rules of Judicial Administration as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective January 1, 2015, at 12:01 a.m.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.

APPENDIX

RULE 2.480. RETENTION OF COURT RECORDS

(a)-(b) [No Change]

(c) Records Not Permanently Recorded. No court records under this subdivision shall be destroyed or disposed of until the final order, final docket entry, or final judgment is permanently recorded for, or recorded in, the public records. The time periods shall not apply to any action in which the court orders the court records to be kept until the court orders otherwise. When an order is entered to that effect, the progress docket and the court file shall be marked by the clerk with a legend showing that the court records are not to be destroyed or disposed of without a further order of court. Any person may apply for an order suspending or prohibiting destruction or disposition of court records in any proceeding. Court records, except exhibits, that are not permanently recorded may be destroyed or disposed of by the clerk after a judgment has become final in accordance with the following schedule:

(1) For trial courts
(A) 60 days — Parking tickets and noncriminal traffic infractions after required audits have been completed.
(B) 2 years — Proceedings under the Small Claims Rules, Medical Mediation Proceedings.
(C) 5 years — Misdemeanor—actions, criminal-traffic violations, Noncriminal ordinance violations, civil litigation proceedings in county court other than those under the Small Claims Rules, and civil proceedings in circuit court except marriage dissolutions and adoptions.
(D) 10 years — Probate, guardianship, and mental health proceedings.
(E) 10 years — Felony and misdemeanor cases in which no information or indictment was filed or in which all charges were dismissed, or in which the state announced a nolle prosequi, or in which the defendant was adjudicated not guilty.
(F) 75 years — Juvenile proceedings containing an order permanently depriving a parent of custody of a child, and adoptions, and all felony and misdemeanor cases not previously destroyed.
(G) Juvenile proceedings not otherwise provided for in this subdivision shall be kept for 5 years after the last entry or until the child reaches the age of majority, whichever is later.
(H) Marriage dissolutions — 10 years from the last record activity. The court may authorize destruction of court records not involving alimony, support, or custody of children 5 years from the last record activity.
(2) — (3) [No Change]

(d)-(k) [No Change]

RULE 2.510. FOREIGN ATTORNEYS

(a) Eligibility. Upon filing a verified motion with the court, an attorney who is an active member in good standing of the bar of another state and currently eligible to practice law in a state other than Florida may be permitted to appear in particular cases in a Florida court upon such conditions as the court may deem appropriate, provided that a member of The Florida Bar in good standing is associated as an attorney of record. The foreign attorney must make application in each court in which a case is filed even if a lower tribunal granted a motion to appear in the same case. In determining whether to permit a foreign attorney to appear pursuant to this rule, the court may consider, among other things, information provided under subdivision (b)(3) concerning discipline in other jurisdictions. No attorney is authorized to appear pursuant to this rule if the attorney (1) is a Florida resident, unless the attorney has an application pending for admission to The Florida Bar and has not previously been denied admission to The Florida Bar; (2) is a member of The Florida Bar but is ineligible to practice law; (3) has previously been disciplined or held in contempt by reason of misconduct committed while engaged in representation permitted pursuant to this rule provided, however, the contempt is final and has not been reversed or abated; (4) has failed to provide notice to The Florida Bar or pay the filing fee as required in subdivision (b)(7); or (5) is engaged in a “general practice” before Florida courts. For purposes of this rule, more than 3 appearances within a 365-day period in separate cases shall be presumed to be a “general practice.” Appearances at different levels of the court system in the same case shall be deemed 1 appearance for the purposes of determining whether a foreign attorney has made more than 3 appearances within a 365-day period. In cases involving indigent or pro bono clients, the court may waive the filing fee for good cause shown.

(b) Contents of Verified Motion. A form verified motion accompanies this rule and shall be utilized by the foreign attorney. The verified motion required by subdivision (a) shall include:

(1) a statement identifying all jurisdictions in which the attorney is an active member in good standing and currently eligible to practice law, including all assigned bar numbers and attorney numbers?, for which a certificate of good standing is not required;
(2) [No Change]
(3) a statement identifying all jurisdictions in which disciplinary, suspension, disbarment, or contempt proceedings have been initiated against the attorney has.been-disciplined in any manner — in the preceding 5 years and the- sanction-imposedy-oi- in which the attorney has -pending — any disciplinary proceeding-,--including the date of the disciplinary action and on which the proceeding was initiated, the nature of the alleged violation, and the result of the proceeding including the sanction, if any, imposed;
(4) — (6) [No Change]
(7) a certificate indicating service of the verified motion upon all counsel of record in the matter in which leave to appear pro hac vice is sought and upon The Florida Bar at its Tallahassee office accompanied by a nonrefundable $250.00 filing fee made payable to The Florida Bar or notice efthat the movant has requested a judicial waiver of thesaid fee; and
(8) [No Change]

I HEREBY CERTIFY that a trae and correct copy of the foregoing motion was served on (insert the name-or-names-and-addresses used for-ssrv-lce)-by-(e-maif) ('delivery-l-fty mail) (TaxJ to PHV Admissions, The Florida Bar, 651 East Jefferson Street, Tallahassee, Florida 32399-2333 accompanied by payment of the $250.00 filing fee made payable to The Florida Bar, or notice that the movant has requested a judicial waiver of said fee: and by fe-mail') ('delivery") ('mail) ('fax’) to (name of attorney or party if not represented! Name and Address of All Counsel-of-Record and of Parties Not Represented by-Gouasel-this_day of_, 20_. Movant - 15-

      . See art. V, § 2(a), Fla. Const.


text:
    Chadwick D. BANKS, Appellant, v. STATE of Florida, Appellee.
    No. SC14-2026.
    Supreme Court of Florida.
    Nov. 3, 2014.

      Terri Lynn Backhus of Backhus & Iza-kowitz, P.A., Tampa, FL, for Appellant.
    Pamela Jo Bondi, Attorney General, Stephen Richard White, Assistant Attorney General, and Charmaine Millsaps, Assistant Attorney General, Tallahassee, FL, for Appellee.
   PER CURIAM.

Chadwick D. Banks, a prisoner under sentence of death for whom a warrant has been signed and execution set for November 13, 2014, appeals the circuit court’s orders denying 'his second successive motion for postconviction relief and sustaining objections to his public records requests, which were filed under Florida Rules of Criminal Procedure 3.851 and 3.852 after his death warrant was signed. We have jurisdiction. See art. V § 3(b)(1), Fla. Const. For the reasons that follow, we affirm. Additionally, we deny Banks’ motion for a stay of execution, filed October 29, 2014.

I. BACKGROUND

In the early morning hours of September 24,1992, Banks shot and killed his wife while she slept. Banks then went to the bedroom of his ten-year-old stepdaughter and sexually battered her before fatally shooting her in the top of the head as she knelt at her bedside. An eyewitness identified Banks arriving at and leaving the victims’ residence on the night of the murder. The next day, Banks confessed to the murders and “molesting” his stepdaughter. He provided to law enforcement the gun that he used when he committed the murders. Ballistic analysis confirmed that the bullets removed from the victims’ heads were fired from Banks’ gun. Banks’ confession was also corroborated by semen found in the anus of the child victim and around various places in her bedroom, which was consistent with having come from Banks. DNA analysis was performed on semen found on the child’s thigh, and the DNA was matched to Banks’ DNA. Blood matching Banks’ type was found under the child victim’s fingernails.

Banks pleaded no contest to two counts of first-degree murder and one count of sexual battery on a child under the age of twelve. The State agreed to waive the death penalty as to the murder of Banks’ wife. After a capital penalty-phase trial as to the murder of his ten-year-old stepdaughter, a jury recommended that Banks be sentenced to death by a vote of nine to three. The trial court followed the jury’s recommendation and sentenced Banks to death for the murder of his stepdaughter. Concurrent life terms with minimum mandatory sentences of twenty-five years were imposed for the murder of Banks’ wife and the sexual battery of his stepdaughter. We upheld the convictions and sentences on direct appeal. Banks v. State, 700 So.2d 363, 368 (Fla.1997).

Banks filed his initial motion for post-conviction relief in 1999. The motion was denied after an evidentiary hearing, and we affirmed that denial on appeal. Banks v. State, 842 So.2d 788, 793 (Fla.2003). In 2010, Banks filed a successive motion for postconviction relief. It was summarily denied, and we affirmed in 2012. Banks v. State, 97 So.3d 821 (Fla.2012).

Banks also sought relief in federal court. In 2004, he filed a petition for a writ of habeas corpus in the United States District Court raising “the same claims [he] presented on direct and state collateral review.” Banks v. Crosby, No. 4:03cv328/RV, 2005 WL 5899837, at ⅜2 (N.D.Fla. July 29, 2005). Banks’ petition was untimely, and the federal district court granted summary judgment in favor of the State. Id. at *6. The Eleventh Circuit Court of Appeals affirmed. Banks v. Sec’y, Fla. Dep’t of Corr., 491 Fed.Appx. 966, 971 (11th Cir.2012) (unpublished), cert. denied, — U.S. —, 134 S.Ct. 118, 187 L.Ed.2d 85 (2013).

After the death warrant was signed by Governor Scott on September 22, 2014, Banks sent public records requests to state and local agencies, including the Florida Department of Law Enforcement, the Florida Department of Corrections, the Second Judicial Circuit State Attorney’s Office, and the Gadsden County Sheriffs Office. The agencies objected to the demands. Finding that Banks’ requests were general demands that did not seek any specific document or category of documents and that Banks failed to demonstrate that the records sought relate to a colorable claim for postconviction relief, the trial court sustained the objections.

On October 9, 2014, Banks filed a second successive motion for postconviction relief, presenting three claims: (1) the trial court denied Banks due process by sustaining objections to his public records requests; (2) Banks received ineffective postconviction representation; and (3) Florida’s method of execution is cruel and unusual. A case management conference was held on October 10, 2014, as required by rule 3.851(h)(3). At the conclusion of the hearing, the trial court summarily denied the motion. A written order reflecting the court’s decision was entered on October 15, 2014. In denying the motion, the trial court reasoned that “[t]he motion to vacate ma[de] no facially sufficient claim adequate to require a factual determination,” and that “[a]ll claims raised in the motion to vacate [were] legally insufficient, should have been brought on direct appeal (or on appeal from the denial of Mr. Banks’ prior post-conviction motion), or are positively refuted by the record.” State v. Banks, No. 1992-841-CF at 8 (Fla.2d Jud. Cir. Ct. Final Order Denying Motion to Vacate filed Oct. 15, 2014). On October 17, 2014, Banks filed an amended motion, which was also summarily denied. In denying the amended motion, the trial court explained that “[t]he claims raised in the Amended Motion are in almost all respects substantively the same as asserted in the [October 9] Motion to Vacate and are governed by the same legal principles.” State v. Banks, No. 1992-841-CF at 1 (Fla.2d Jud. Cir. Ct. Final Order Denying Amended Motion to Vacate filed Oct. 20, 2014). This appeal followed.

II. ANALYSIS

A. Ineffective Assistance of Postconviction Counsel

In his first claim on appeal, Banks asserts that he was entitled to raise procedurally barred claims of ineffective assistance of trial counsel in his post-warrant second successive postconviction motion because he received ineffective assistance of postconviction counsel in his initial collateral review proceeding. In support of his claim, Banks relies on the decisions of the United States Supreme Court in Martinez v. Ryan, — U.S. —, 132 S.Ct. 1309, 182 L.Ed.2d 272 (2012), and Trevino v. Thaler, — U.S. —, 133 S.Ct. 1911, 185 L.Ed.2d 1044 (2013). His reliance is misplaced.

Martinez held that “a procedural default will not bar a federal habeas court from hearing a substantial claim of ineffective assistance at trial if, in the initial-review collateral proceeding, there was no counsel or counsel in that proceeding was ineffective.” 132 S.Ct. at 1320. Trevino simply applied the Martinez holding in a federal habeas case arising out of a Texas state court and involving Texas state law. Trevino, 133 S.Ct. at 1921 (“[W]e conclude that where, as here, state procedural framework, by reason of its design and operation, makes it highly unlikely in a typical case that a defendant will have a meaningful opportunity to raise a claim of ineffective assistance of trial counsel on direct appeal, our holding in Martinez applies[.]”). In essence, both Trevino and Martinez addressed circumstances in which a defendant can raise a claim in a federal habeas petition that he did not raise in state proceedings.

We have held that Martinez applies only to federal habeas proceedings and “does not provide an independent basis for relief in state court proceedings.” Howell v. State, 109 So.3d 763, 774 (Fla.2013); see also Chavez v. State, 129 So.3d 1067, 2013 WL 5629607, at *1 (Fla.2013) (table); Gore v. State, 91 So.3d 769, 778 (Fla.), cert, denied, — U.S. —, 132 S.Ct. 1904, 182 L.Ed.2d 661 (2012). Nor does Trevino. Zakrzewski v. State, No. SC13-1825, 2014 WL 2810560, at *1 (Fla. June 20, 2014) (citing Gore and Howell). Moreover, we have “repeatedly held that claims of ineffective assistance of postcon-vietion counsel are not cognizable.” Howell, 109 So.3d at 774; Chavez, 129 So.3d at 1067, 2013 WL 5629607, at *9; Moore v. State, 132 So.3d 718, 724 (Fla.2013); Atwater v. State, 118 So.3d 219, 2013 WL 3198744, at *1 (Fla.2013) (table); Mann v. State, 112 So.3d 1158, 1164 (Fla.2013); Gore, 91 So.3d at 778. Because claims of ineffective assistance of postconviction counsel do not present a valid basis for relief, we deny relief on Banks’ claim that postconviction counsel rendered ineffective assistance.

B. Lethal Injection Protocol

Next, Banks contends that the circuit court erred in denying his claim that Florida’s lethal injection protocol violates the prohibition against cruel and unusual punishment found in the Eighth Amendment to the United States Constitution. He argues that the first and second drugs in the protocol, midazolam hydrochloride and vecuronium bromide, present an objectively intolerable risk of pain and suffering. He claims that midazolam is not a suitable drug to render him insensate prior to the administration of the second and third drugs. And, if not properly anesthetized, the paralytic nature of vecuronium bromide will render him unable to convey that he is experiencing pain and suffering.

To state a claim under the Eighth Amendment, a defendant must show that a state’s lethal injection protocol is “ ‘sure or very likely to cause serious illness and needless suffering.’ ” Brewer v. Landrigan, — U.S. —, 131 S.Ct. 445, 445, 178 L.Ed.2d 346 (2010) (quoting Baze v. Rees, 553 U.S. 35, 50,128 S.Ct. 1520,170 L.Ed.2d 420 (2008) (plurality opinion)). “[T]o prevail on such a claim there must be a ‘substantial risk of serious harm,’ an ‘objectively intolerable risk of harm.’ ” Baze, 553 U.S. at 50, 128 S.Ct. 1520 (quoting Farmer v. Brennan, 511 U.S. 825, 842, 846 & n. 9,114 S.Ct. 1970,128 L.Ed.2d 811 (1994)). Such a challenge cannot be based on conjecture or speculation. Deparvine v. State, 146 So.3d 1071, 1104 (Fla.2014) (citing Pardo v. State, 108 So.3d 558, 563 (Fla.), cert, denied, — U.S. —, 133 S.Ct. 815, 184 L.Ed.2d 602 (2012)); Chavez v. State, 132 So.3d 826, 831 (Fla.), cert, denied, 134 S.Ct. 1156 (2014). “Simply because an execution method may result in pain, either by accident or as an inescapable consequence of death, does not establish the sort of ‘objectively intolerable risk of harm’ that qualifies as cruel and unusual.” Baze, 553 U.S. at 50, 128 S.Ct. 1520.

We have repeatedly rejected Eighth Amendment challenges to Florida’s lethal injection protocol as revised in September 2013. See Davis v. State, 142 So.3d 867, 871-73 (Fla.), cert, denied, 189 L.Ed.2d (2014); Henry v. State, 134 So.3d 938, 946-49 (Fla.), cert, denied, — U.S.—, 134 S.Ct. 1536,188 L.Ed.2d 466 (2014); Howell v. State, 133 So.3d 511, 522-23 (Fla.), cert. denied, — U.S —, 134 S.Ct. 1536, 188 L.Ed.2d 372 (2014); Chavez, 132 So.3d at 831; Muhammad v. State, 132 So.3d 176, 194-96 (Fla.2013), cert, denied, — U.S. —, 134 S.Ct. 894, 187 L.Ed.2d 700 (2014). We have held that the use of mi-dazolam hydrochloride as the first drug in the lethal injection protocol does not violate the Eighth Amendment. Chavez, 132 So.3d at 831 (citing Muhammad, 132 So.3d at 195). We have likewise rejected Eighth Amendment challenges to the use of vecu-ronium bromide. Howell v. State, 133 So.3d at 522-23; Pardo, 108 So.3d at 564-65. Challenges to the use of both drugs have also been rejected in federal court. See Muhammad v. Crews, No. 3:13-cv-1587-J-32JBT, 2013 WL 6844489, at *8 (M.D.Fla. Dec. 27, 2013) (noting that if consciousness check is done correctly after administration of midazolam hydrochloride there is no substantial risk of harm), cert. denied, — U.S.—, 134 S.Ct. 894, 187 L.Ed.2d 700 (2014); Ferguson v. Warden, Fla. State Prison, 493 Fed.Appx. 22, 24-25 (11th Cir.2012) (unpublished) (finding that use of vecuronium bromide as second drug in Florida’s protocol does not violate Eighth Amendment). Once we have upheld the constitutionality of a lethal injection protocol, that protocol is facially constitutional as a matter of law. Banks has not presented any new information that would warrant reconsideration of our prior decisions upholding the constitutionality of the current protocol.

Banks’ contention that there is a known, available alternative to Florida’s three-drug protocol, using only one drug, is likewise foreclosed. We rejected the notion that Florida is constitutionally mandated to adopt a one-drug protocol in both Howell, 133 So.3d at 515, and Muhammad, 132 So.3d at 196-98. Baze provides that courts should not be transformed into “boards of inquiry” on determining the “best practices” for execution procedures, nor should the courts be embroiled “in ongoing scientific controversies beyond their expertise.” Baze, 553 U.S. at 51, 128 S.Ct. 1520. A showing of “a slightly or marginally safer alternative” is insufficient to satisfy the risk of harm that is actionable under the Eighth Amendment. Id.

In addition to his challenges to the drugs, Banks takes issue with other parts of the protocol. However, these challenges are also foreclosed by our prior decisions. See Troy v. State, 57 So.3d 828, 840 (Fla.2011) (rejecting claim that defendant was entitled to evidentiary hearing regarding any potential issues concerning venous access as insufficiently pleaded because defendant failed to allege a medical condition that would contribute to difficulty in gaining venous access and conclusory allegations do not establish a legally sufficient claim for postconviction relief); Schwab v. State, 995 So.2d 922, 930 (Fla.2008) (lethal injection protocol involving consciousness check by execution team warden does not violate Eighth Amendment); Lightboume v. McCollum, 969 So.2d 326, 351 (Fla.2007) (rejecting challenge to qualifications and training of personnel involved in execution).

C. Public Records Requests

Banks’ final claim is that the circuit court erred in sustaining objections made by the various agencies to his public records requests. We recently addressed the appropriate standard of review with regard to a denial of public records requests.

This Court has held that denial of public records requests are reviewed under the abuse of discretion standard. See Dennis v. State, 109 So.3d 680, 698 (Fla.2012); Diaz v. State, 945 So.2d 1136, 1149 (Fla.2006). “Discretion is abused only when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable person would take the view adopted by the trial court.” State v. Coney, 845 So.2d 120, 137 (Fla.2003) (quoting White v. State, 817 So.2d 799, 806 ([Fla.]2002)). The Court has long acknowledged that the public records procedure under Florida Rule of Criminal Procedure 3.852 “is not intended to be a procedure authorizing a fishing expedition for records unrelated to a colorable claim for postconviction relief.” Valle [v. State], 70 So.3d [530,] 549 [ (Fla.2011) ] (quoting Moore v. State, 820 So.2d 199, 204 (Fla.2002) (quoting Glock v. Moore, 776 So.2d 243, 253 (Fla.2001))).

Muhammad, 132 So.3d at 200. Accordingly, where a defendant cannot demonstrate that records are relevant or may reasonably lead to the discovery of admissible evidence, the trial court may properly deny a public records request. Mann, 112 So.3d at 1163.

Here, the circuit court found that Banks failed to demonstrate that the requested public records were relevant to any color-able claim. We agree. The underlying claims for which these records were sought were the ineffective assistance of counsel claim and the general challenge to the lethal injection protocol. As discussed above, these claims are foreclosed. Because the requested records were not relevant to a colorable claim, the trial court did not abuse its discretion in sustaining the objections to the requests.

III. CONCLUSION

For the reasons stated above, we affirm the circuit court’s order summarily denying the second successive postconviction motion and the circuit court’s orders sustaining the objections to the public records requests. In addition, we deny Banks’ motion for a stay of execution, which he filed on October 29, 2014. No motion for rehearing will be entertained by this Court. The mandate shall issue immediately-

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and PERRY, JJ., concur.


author: WARNER, J.

text:
    Michael BARRETT, Appellant, v. STATE of Florida, Appellee.
    No. 4D14-1974.
    District Court of Appeal of Florida, Fourth District.
    Aug. 20, 2014.
    Rehearing En Banc Denied Dec. 5, 2014.
    Michael Barrett, Chipley, pro se.
    No appearance required for appellee.
   WARNER, J.

Appellant challenges the legality of his sentence, claiming that the trial court failed to pronounce him a habitual offender when it mitigated his sentence pursuant to Florida Rule of .Criminal Procedure 3.800(c). Because the trial court did orally pronounce his habitual offender status at the original sentencing, the court properly sentenced him as a habitual offender, and we conclude that the mitigation of his sentencing does not constitute a de novo re-sentencing.

Appellant was convicted after trial of second degree murder with a firearm, armed burglary of a dwelling, and attempted robbery with a firearm. The trial court sentenced him to life imprisonment as a habitual felony offender (HFO) for the murder and burglary charges and to a concurrent thirty-year term for the attempted robbery. Within sixty days, appellant moved to mitigate his sentence. The judge granted the motion, mitigating the murder and burglary sentences' to thirty-five years’ imprisonment. This court affirmed the direct appeal. Barrett v. State, 789 So.2d 1001 (Fla. 4th DCA 2001). After several unsuccessful postconviction motions and petitions, appellant presented his claim that the trial court failed to orally impose the HFO designation. This court remanded the trial court’s initial denial because the claim was cognizable. Barrett v. State, 123 So.3d 665 (Fla. 4th DCA 2013) (citing State v. Akins, 69 So.3d 261, 268 (Fla.2011) (holding that modification of judgment and sentence to reflect an HFO designation that was not orally pronounced at sentencing violated double jeopardy and constituted an illegal sentence)).

When the state responded to the motion after remand, it attached portions of the transcript from the original sentencing in which the trial court indeed declared and sentenced appellant as a habitual offender. Referencing the transcript, the trial court denied the rule 3.800 motion.

Appellant contends, however, that the trial court never announced the habitual offender designation when it mitigated his sentence, which he claims was a de novo resentencing. Thus, he argues that the trial court failed to attach documents (the mitigation transcript) to conclusively refute his allegations.

We conclude, however, that his motion is legally insufficient. A reduction of a sentence based upon a motion to mitigate, which motion must be considered within sixty days of sentencing, relates to the original sentencing and does not constitute a new sentencing. It is merely a modification of the original sentence. See Fla. R. Crim. P. 3.800(c). Moreover, the motion is discretionary, and no appellate review lies. See, e.g., Brown v. State, 954 So.2d 1253 (Fla. 4th DCA 2007); Johnson v. State, 543 So.2d 1289 (Fla. 4th DCA 1989). Were it a de novo sentencing, the appellant would be entitled to an appeal. The mitigation being a part of the original sentencing, the trial court was not compelled to restate the declaration of sentencing as a habitual offender.

Affirmed.

DAMOORGIAN, C.J., and STEVENSON, J., concur.


author: SILBERMAN, Judge.

text:
    Frank W. ROBERTO, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4397.
    District Court of Appeal of Florida, Second District.
    Aug. 22, 2014. .
    Howard L. Dimmig, II, Public Defender, and Ama N. Appiah, Special Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Elba Caridad Martin-Scho-maker, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Judge.

We affirm Frank W. Roberto, Jr.’s, convictions and sentences for fleeing or eluding a law enforcement officer and vehicular homicide without prejudice to any right he may have to file a motion pursuant to Florida Rule of Criminal Procedure 3.800(a) with respect to prison credit. See McCall v. State, 88 So.3d 1015, 1016 (Fla. 2d DCA 2012).

KELLY and VILLANTI, JJ„ Concur.


author: GROSS, J.

text:
    GEICO GENERAL INSURANCE COMPANY, Appellant, v. Kelly PATON, Appellee.
    No. 4D12-4606.
    District Court of Appeal of Florida, Fourth District.
    Sept. 17, 2014.
    Rehearing En Banc Denied Dec. 12, 2014.

      Paul L. Nettleton of Carlton Fields, P.A., Miami, for appellant.
    Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, and Richard M. Benrubi of Liggio & Benrubi, P.A., West Palm Beach, for appellee.
    Louis K. Rosenbloum of Louis K. Ro-senbloum, P.A., Pensacola, for Amicus Curiae, Florida Justice Association.
   GROSS, J.

We affirm the final judgment in this first-party bad faith action brought by an insured against her underinsured motorist carrier and write to address one issue: whether, in the bad faith trial, the plaintiff was required to once again prove her damages, instead of relying on the jury’s damage determination in the first trial, which also established the liability of the tortfea-sor. We hold that the jury’s determination of damages in the first trial was binding on the insurance company in the bad faith trial.

On January 1, 2008, Kelly Patón, a passenger, was injured in a car accident due to the negligence of the underinsured driver. The driver’s insurance company, GEI-CO General Insurance Company (“Geico”), paid Patón the $10,000 policy limit. Pa-ton’s mother maintained uninsured/under-insured coverage with Geico, with $100,000 of coverage.

Paton’s attorney, Darryl Kogan, demanded the $100,000 policy limit from Gei-co. Geico offered $1,000. After Geico’s expert reviewed Paton’s MRI which, according to her expert, showed that she had two lumbar herniations, Geico maintained its $1,000 offer. Later, Geico raised its offer to $5,000, but returned to the $1,000 offer after Patón refused to settle. In an attempt to resolve the case, Patón, against Kogan’s advice, reduced her demand to $22,500. Geico did not respond to this offer.

The case went to trial. The jury returned a verdict in Paton’s favor and against Geico. In closing argument, plaintiffs counsel did not suggest a specific amount for Paton’s intangible losses. The jury awarded $10,000 for past pain and suffering, and $350,000 for future pain and suffering. The verdict set Paton’s total damages at $469,247.

Geico did not file a motion for new trial.

Judgment was entered in favor of Patón, but was limited to the $100,000 UM policy limit. Geico paid the final judgment.

With leave of court, Patón amended her complaint to add a claim of bad faith under section 624.155, Florida Statutes (2010). Before trial, Patón moved in limine to exclude evidence of damages; she argued that the excess verdict returned in the UM trial established the damages she could recover under her bad faith claim. In opposition, Geico filed its own motions in limine seeking to (1) exclude from evidence in the bad faith trial the verdict returned in the UM trial and (2) require Patón to prove her damages anew in the bad faith trial. The circuit court granted Paton’s motions and denied those of Geico.

At the bad faith jury trial, there were two issues of fact: 1) whether the attorney representing Patón in the underlying litigation met a statutory notice requirement and 2) whether Geico failed to act in good faith to settle Paton’s claim. Consistent with the rulings on the motions in limine, Patón presented evidence of the verdict returned in the UM trial and the trial court removed the damages issue from the jury’s consideration with an instruction that the court would award damages in an amount allowable under Florida law if its verdict was for the plaintiff.

The jury found for the plaintiff. The circuit court entered a final judgment in the amount of the excess verdict from the UM trial ($369,247) plus prejudgment interest.

Geico argues that the circuit court erred by treating the excess verdict from the UM trial as conclusive evidence of Paton’s damages in the bad faith trial, thereby denying the company procedural due process and violating its right to appeal and access to the courts.

Geico’s position is not well taken based on (1) the wording of the statute creating the bad faith cause of action, (2) the Supreme Court’s jurisprudence in first party bad faith actions, and (3) Geico’s failure to challenge the damage award after the first trial or in-this appeal.

By its 1982 enactment of section 624.155, Florida Statutes, the “Legislature created a first-party bad faith cause of action by an insured against the insured’s uninsured or underinsured motorist carrier, thus extending the duty of an insurer to act in good faith to those types of actions.” State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 59 (Fla.1995); see also § 624.155(l)(b)l., Fla. Stat. (2009).

Two later statutory amendments firmly established that the damages in a first-party bad faith case include the total amount of the plaintiffs damages that were caused by the original third-party tortfeasor, even an amount in excess of policy limits. See Chs. 90-119, § 55, 92-318, § 80, Laws of Fla. Subsection 624.155(8) provides that:

The damages recoverable pursuant to this section [624.155] shall include those damages which are a reasonably foreseeable result of a specified violation of this section by the. authorized insurer and may include an award or judgment in an amount that exceeds the policy limits.

In 1992, the Legislature passed section 627.727(10), which provides:

The damages recoverable from an uninsured motorist carrier in an action brought under s. 624.155 shall include the total amount of the claimant’s dam- • ages, including the amount in excess of the policy limits, any interest on unpaid benefits, reasonable attorney’s fees and costs, and any damages caused by a violation of a law of this state. The total amount of the claimant’s damages is recoverable whether caused by an insurer or by a third-party tortfeasor.

According to the Supreme Court, these two statutes reflect the Legislature’s determination “that damages in first-party bad faith actions are to include the total amount of a claimant’s damages, including any amount in excess of the claimant’s policy limits without regard to whether the damages were caused by the insurance company.” Laforet, 658 So.2d at 60.

In the context of a first-party bad faith action, the underlying action between the insured and the insurer establishes two elements that must exist for the bad faith cause of action to accrue — the liability of the uninsured tortfeasor and the extent of the plaintiffs damages in the underlying accident. In Blanchard v. State Farm Mutual Automobile Insurance Co., 575 So.2d 1289, 1291 (Fla.1991), the Supreme Court wrote that:

an insured’s underlying first-party action for insurance benefits against the insurer necessarily must be resolved favorably to the insured before the cause of action for bad faith in settlement negotiations can accrue. It follows that an insured’s claim against an uninsured motorist carrier for failing to settle the ■ claim in good faith does not accrue before the conclusion of the underlying litigation for the contractual uninsured motorist insurance benefits. Absent a determination of the existence of liability on the part of the uninsured tortfeasor and the extent of the plaintiff’s damages, a cause of action cannot exist for a bad faith failure to settle.

(Emphasis added). Applying section 627.727(10), Laforet reiterated that the initial action for first-party benefits, which sets the plaintiffs damages arising from an accident, determines the extent of the plaintiffs damages in a first party bad faith case:

Section 627.727(10) provides that the damages recoverable from an uninsured motorist insurance carrier in a bad faith action brought under section 624.Í55 and the 1990 amendment thereto shall include the total amount of a claimant’s damages, including any amount in excess of the claimant’s policy limits awarded by a judge or jury in the underlying claim.

658 So.2d at 56-57 (emphasis added); see also Progressive Select Ins. Co. v. Shockley, 951 So.2d 20, 20 (Fla. 4th DCA 2007) (recognizing that “both the existence of liability and the extent of damages are elements of a statutory cause of action for bad faith”); State Farm Mut. Auto. Ins. Co. v. O’Hearn, 975 So.2d 633, 635 (Fla. 2d DCA 2008) (stating that “[t]here is an abundance of case law that holds that a first-party bad faith claim does not accrue until there has been a final determination of both liability and damages in an underlying coverage claim”). Thus, based on the Florida Supreme Court’s construction of the applicable statutes, the initial action between the insurer and the insured fixes the amount of damages in a first-party bad faith action.

Forcing retrial of a plaintiffs damages at a first party bad faith trial, as Geico urges, is such bad policy that we do not glean even a hint of its existence in any case the Supreme Court has decided in this area. Under Blanchard, the recovery of damages in the first-party action for insurance benefits is necessary for the accrual of the bad faith claim. Geico participated fully in the first trial with an opportunity to challenge the plaintiffs evidence and a powerful motive to suppress the amount of damages. When it comes to a judge or jury’s factual determination of damages, Florida’s policy is not to give multiple bites at the same apple absent some legal infirmity in the first trial. As one federal district judge has observed,

[fjorcing plaintiffs to relitigate their damages in first-party bad faith actions would have serious ramifications, including: running the almost-certain risk of inconsistent verdicts; potentially raising comity issues between state and federal courts; creating a discrepancy (surely unintended and definitely illogical) between first- and third-party bad faith claims; placing an inexplicable burden on plaintiffs to prove their cases twice; and causing a great deal of judicial inefficiency.

Batchelor v. Geico Cas. Co., No. 6:11-cv-1071-Or]-37GJK, 2014 WL 3906312, *4 (M.D.Fla. June 9, 2014). To a limited extent, Geico could have addressed damages in the bad faith trial by arguing that the amount of damages awarded in the first trial could not reasonably have been foreseen, so there was an absence of bad faith.

We reject Geico’s position that the procedure used in this case has frustrated its appellate rights because it was unable to challenge the full amount of the jury’s verdict in the first case. Florida Rule of Civil Procedure 1.530(a) provides that a “new trial may be granted to all or any of the parties and on all or a part of the issues.” The motion for new trial must be served “not later than 15 days after the return of the verdict in a jury action.” Fla. R. Civ. P. 1.580(b) (emphasis added). Because Geico never filed a rule 1.530(a) motion, we are left to guess at what errors might have infected the first trial. However, we note that the extent of damages awarded — $469,247—and the amount of the final judgment — $100,000—are in the same ballpark for damages arising from the type of injury of which plaintiff complained. See, e.g., Leinhart v. Jurkovich, 882 So.2d 456, 459 (Fla. 4th DCA 2004) (award of $348,000 where plaintiff suffered “herniated disc in the lumbar portion of the back”); Delgardo v. Allstate Ins. Co., 731 So.2d 11, 13 (Fla. 4th DCA 1999) ($204,269 awarded for “herniated disc as well as cervical and lumbar sprains”). Many types of legal errors might have applied equally to damages above and below the $100,000 policy limit, such that the entire amount of damages was interrelated for the purpose of being appealable. Because the damages in the first trial fixed the amount of bad faith damages and an order denying a motion for new trial could have addressed damages in excess of $100,000, an appeal after the final judgment in the first trial directed at the total amount of damages thus would have fallen within the constitutional parameters of the jurisdiction of this Court as an appeal from a “final judgment[ ] or order[ ]” of the trial court. Art. V, § 4(b)(1), Fla. Const. This approach conserves judicial resources and best serves the procedure contemplated by Blanchard. By failing to file a Rule 1.530(a) motion or take an appeal in the first trial, Geico did not preserve its right to challenge the total amount of the jury’s damage award from the first trial.

In this area of the law, we do not discern the constitutional conundrum identified by Judge Altenbernd’s concurring opinion in Geico General Insurance Co. v. Bottini, 93 So.3d 476 (Fla. 2d DCA 2012). There the jury verdict found that the plaintiffs damages were $30,872,266 and the trial court entered a final judgment for the applicable policy limits of $50,000. Id. at 477. In light of this disparity, the majority held that “even if Geico were correct that errors may have affected the jury’s computation of damages,” any such errors were harmless given the amount of the judgment. Id. In his special concurrence, Judge Altenbernd expressed concern that a district court of appeal would not have jurisdiction to consider the propriety of damages in excess of $1,050,000, an amount that Geico conceded would have been proper after a finding of liability, because that amount was not included in the judgment on appeal. Id. at 478.

When applied to the issue presented in Bottini — where a jury’s damage award far exceeds the amount of a final judgment— the “final judgment or order” language of Article V, section 4(b)(1) should be expansively read to include an appeal from an order denying a new trial in a first party suit for uninsured motorist benefits.. The final judgment subsumes the earlier order’s resolution of the jury’s damage determination so that the total amount is an immediately appealable issue. Such a reading is consistent with the Supreme Court’s view in Blanchard that a first-party bad faith cause of action cannot accrue until after a factfinder’s determination of the uninsured tortfeasor’s liability and the extent of the plaintiffs damages. 575 So.2d at 1291.

The harmless error approach of the Bot-tini majority would also appear to allow for a challenge to damages in the bad faith case; the harmless error finding would not preclude later consideration of the propriety of damages in excess of $50,000. Bot-tini would allow for this practical option where the trial judge defers ruling on the propriety of any amount of damages in excess of the final judgment until after a finding of bad faith in the second trial; in this instance an appellate challenge to the amount of damages would occur after the entry of a final judgment in the bad faith case. Whether the bad faith cause of action has been abated or added by amendment, the record and damage issue are all part of the same case. If there is a jurisdictional bar to reviewing damages in the appeal of that lawsuit, the practical advantage of this option is its compliance with the First Rule of Judicial Economy by postponing a ruling on the legal propriety of a damage award until those damages are triggered by a bad faith determination.,

We have considered the other arguments raised on appeal and find no reversible error.

Affirmed.

CIKLIN, J., and KASTRENAKES, JOHN, Associate Judge, concur.

      . The Supreme Court might well clarify that this is the preferable approach by adopting a rule requiring final judgments in uninsured motorist suits between an insured and the insurer to include specific findings on the total amount of damages, even though execution would issue for only the policy limits.

      . We do not decide here whether Geico might have pursued the appellate option suggested by the appellee’s brief-raising "any issue regarding the ‘excess’ damages in this appeal from the bad faith judgment in which the ‘excess' damages were incorporated” — without filing a rule 1.530 motion after the verdict in the first trial.

      . We acknowledge Geico’s heavy reliance on King v. Government Employees Insurance Co., No. 8:10-cv-977-T-30AEP, 2012 WL 4052271 (M.D.Fla. Sept. 13, 2012), but reject its analysis. The case treats Judge Alten-bernd’s concurring opinion in Bottini as binding authority, while ignoring the majority opinion, and engages in an abbreviated "procedural due process” analysis without citation to authority or consideration of Lindsey v. Normet, 405 U.S. 56, 77, 92 S.Ct. 862, 31 L.Ed.2d 36 (1972). See N. Am. Van Lines, Inc. v. Ferguson Transp., Inc., 639 So.2d 32, 34 (Fla. 4th DCA 1994) (observing that the United States Supreme Court "has stated that as long as a 'full and fair trial on the merits is provided, the Due Process Clause of the Fourteenth Amendment does not require a State to provide appellate review' ” (quoting Lindsey, 405 U.S. at 77, 92 S.Ct. 862)).

      .The procedure in this paragraph might become problematic where a plaintiff files an entirely separate action for bad faith. One possibility is to allow the insurance company to raise its preserved objections to the amount of the verdict in the first-party action for insurance benefits as an affirmative defense in the bad faith action so that the issues might still be raised in the appeal of the bad faith verdict.


text:
    Frederick Charles DUTTON, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-3099.
    District Court of Appeal of Florida, First District.
    Oct. 6, 2014.
    Rehearing Denied Nov. 24, 2014.

      Frederick Charles Dutton, Jr., pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of mandamus is denied. See Munn v. Fla. Parole Comm’n, 807 So.2d 733 (Fla. 1st DCA 2002).

THOMAS, ROBERTS, and ROWE, JJ., concur.


author: VAN NORTWICK, J. THOMAS, J.

text:
    STATE of Florida, Petitioner, v. Zoltan BARATI and Motorola, Inc., Respondents.
    No. 1D13-4937.
    District Court of Appeal of Florida, First District.
    Oct. 7, 2014.
    Rehearing Denied Nov. 24, 2014.

      Pamela Jo Bondi, Attorney General, Russell S. Kent, Special Counsel, and William E. Foster, Tallahassee, for Petitioner.
    David W. Moyé, Tallahassee, for Respondent Zoltán Barati.
    Brandice Dickson and Brian A. Newman of Pennington, P.A., Tallahassee, for Respondent Motorola.
    William W. Large, Florida Justice Reform Institute, Tallahassee; John T. Boese, pro hac vice and Kayla Stachniak Kaplan, pro hac vice of Fried, Frank, Harris, Shriver & Jacobson, LLP, Washington, DC, for Amicus Curiae The Florida Justice Reform Institute in support of Petitioner.
    Gary M. Farmer, Jr., Mark S. Fistos, and Gary M. Farmer, Sr. of Farmer, Jaffe, Weissing, Edwards, Fistos, Lehrman, P.L., Ft. Lauderdale, for Amicus Curiae Florida Justice Association in support of Respondent, Zoltán Barati.
   VAN NORTWICK, J.

The State files a petition for writ of prohibition seeking to prohibit the trial court from holding a hearing on a motion to strike a notice of dismissal filed by respondent Zoltán Barati. For the reasons that follow, the petition for a writ of prohibition is denied as premature.

In September 2009, Barati filed a qui tam action against Motorola, Inc., pursuant to the Florida False Claims Act, section 68.081 et seq., Florida Statutes. Bara-ti alleged that Motorola had contracted with the Florida Department of Law Enforcement (FDLE) to produce a fingerprint identification .system and, according to the complaint, Motorola was unable to produce a system satisfying all of the requirements of the contract. The complainant further alleges that, despite its failure to satisfy the requirements of the contract, Motorola was paid under the contract and FDLE contracted with another vendor to secure a working system.

The Florida False Claims Act authorizes a private person or the State to initiate a civil action against a person or company who knowingly presents a false claim to the State for payment. The private citizen who brings an action, i.e., the “relator,” sues on behalf of himself and the State. Such an action is called a qui tam action from the Latin phrase: “qui tam pro domino rege quam pro se ipso in hac parte sequitur.” Black’s Law Dictionary translates the phrase as: “who as well for the king as for himself sues in this matter.” The qui tam complaint is filed under seal and is not immediately served on the defendant, so that the Department of Legal Affairs, on behalf of the State, may investigate the allegations made in the complaint and decide if it wishes to become a party to the action. If it does, then the State takes over primary responsibility for the action; but if it declines then “the person who initiated the action has the right to conduct the action.” §§ 68.083(2), (3) and (6), and 68.084(1) and (3), Fla. Stat. The State may later be permitted to intervene after initially declining to .do so, but only “upon showing of good cause.” § 68.084(3), Fla. Stat. The Florida False Claims Act specifically provides that a qui tam action shall be governed by the Florida Rules of Civil Procedure. § 68.083(2), Fla. Stat.

After being served a copy of the qui tam complaint and relevant materials, the State of Florida conducted an investigation, pursuant to section 68.083(3), Florida Statutes. The State declined to join the qui tam action, which Barati thereafter prosecuted for approximately three and a half years. Without formally intervening in the cause, the Attorney General, on behalf of the State, filed a notice of voluntary dismissal of the action on July 18, 2013. The State asserted in its notice that it had the unilateral right to dismiss the action on authority of section 68.084(2)(a), notwithstanding any objections that Barati may have.

Barati thereafter moved to strike the notice of voluntary dismissal arguing inter alia that dismissal did not occur automatically, as the State was suggesting. The motion to strike was set for hearing to be held on October 14, 2013.

The State then filed in this court an emergency petition for a writ of prohibition arguing that the circuit court lost jurisdiction upon the filing of the notice of voluntary dismissal by the State. By order dated October 3, 2013, this court denied the petition as premature. The order, in pertinent part, stated:

The petition for writ of prohibition is denied as premature. See Campbell v. Lungstrum, 732 So.2d 437 (Fla. 1st DCA 1999) (denying prohibition relief for failure to show that the jurisdictional argument being presented had first been presented to the trial court of its consideration); Tabb ex rel. Tabb v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 880 So.2d 1253, 1257 (Fla. 1st DCA 2004) (quoting Sun Ins. Co. v. Boyd, 105 So.2d 574, 575 (Fla.1958)) (“a tribunal always has jurisdiction to determine its own jurisdiction”).

On remand, the State moved to cancel the hearing previously set for October 14, 2013, on Barati’s pending motion to strike the notice of voluntary dismissal. In that motion to cancel hearing, the State set forth extensive argument as to why it believed the circuit court no longer had jurisdiction under Florida False Claims Act.

The circuit court denied the motion without addressing the arguments raised by the State in its motion to cancel the hearing or otherwise addressing its jurisdiction. The order provided:

THIS MATTER came before the Court on the Motion by the State of Florida, Department of Legal Affairs to cancel the hearing scheduled for October 14, 2013. Having considered the Motion and being otherwise fully advised in the premises,
It is hereby ORDERED and ADJUDGED as follows:
1. The Attorney General’s Motion is DENIED.
DONE and ORDERED in Chambers, Tallahassee, Leon County Florida this 11th day of October, 2013.

Thus, the hearing on the motion to strike was to be held as previously scheduled.

The instant emergency petition for a writ of prohibition was immediately filed in this court upon the denial of the State’s motion to cancel the hearing. Barati was ordered to show cause why prohibition should not be granted. In his response, Barati argued inter alia that the instant petition for a writ of prohibition is premature. At oral argument before this court Barati suggested, as did the Attorney General, that this court should consider the issue of whether the trial court was immediately divested of jurisdiction to further proceed in the case upon receipt of the Attorney General’s notice of dismissal. We must decline that invitation as we lack the constitutional authority to do so.

Prohibition is “an extraordinary writ by which a superior court may prevent an inferior court or tribunal, over which it has appellate and supervisory jurisdiction, from acting outside its jurisdiction.” Mandico v. Taos Construction, Inc., 605 So.2d 850, 853-54 (Fla.1992); see Southern Records & Tape Serv. v. Goldman, 502 So.2d 413, 414 (Fla.1986); English v. McCrary, 348 So.2d 293, 296 (Fla.1977); State ex rel. B.F. Goodrich Co. v. Trammell, 140 Fla. 500, 503-04, 192 So. 175 (1939). The writ is very narrow in scope and operation, and it must be employed with caution and utilized only in emergency cases to prevent an impending injury where there is no other appropriate and adequate legal remedy. Mandico, 605 So.2d at 853-54. There is no precedent for using this writ as a means of considering a matter not ripe for review.

The circuit court’s order denying the motion to cancel the hearing does not rule on the question of whether the circuit court has jurisdiction. That is, the order denying the request to cancel the hearing was not a substantive order on the question of jurisdiction. In setting a hearing, and then refusing to cancel it, the circuit court merely has preserved for itself the opportunity to rule explicitly on the question of its jurisdiction at a later point. After all, the purpose of the hearing is to rule on the motion to strike the notice of voluntary dismissal; that motion to strike is still pending. As is the case in other circumstances where it is asserted that a court lacks jurisdiction, a court is allowed to proceed until it. determines for itself whether it has jurisdiction. “[A] tribunal always has jurisdiction to determine its own jurisdiction.” Sun Ins. Co. v. Boyd, 105 So.2d 574, 575 (Fla.1958); see Tabb ex rel. Tabb v. Fla. Birth-Related Neurological Injury Compensation Ass’n, 880 So.2d 1253,1256-1257 (Fla. 1st DCA 2004).

Simply asserting a claim that jurisdiction does not exist does not make it so. A trial court must rule on such assertion. As we explained in Campbell v. Lungstrum, 732 So.2d 437 (Fla. 1st DCA 1999), this court will not issue a writ of prohibition when the “petitioner has failed to show that the jurisdictional argument being presented to this court has first been presented to the trial court for its consideration.” By allowing argument on its own jurisdiction, the trial court did not implicitly assert it possessed jurisdiction other than that necessary to decide the preliminary question of whether it possessed the jurisdiction to determine its jurisdiction. Similarly, this court, by hearing argument on the propriety of the issuance of a writ of prohibition, has not implicitly determined that a writ is appropriate in this case. In fact, quite the opposite is true.

Because the trial court has not considered the merits of the State’s notice of dismissal or the Relator’s motion to strike the motion to dismiss, if we were to address the question of whether the State can unilaterally dismiss the instant qui tarn proceeding, or whether the circuit court immediately was divested of jurisdiction upon filing of the notice of dismissal, this court would be rendering an advisory opinion. Under the Florida Constitution, only the Florida Supreme Court has the jurisdiction to issue advisory opinions. Art. V., § 3(b)(10), Fla. Const.; see Fla. House of Representatives v. League of Women Voters, 118 So.3d 198, 207 (Fla. 2013). Thus, were this court to consider the merits of the notice to dismiss prior to an explicit ruling from the trial court on the scope of its jurisdiction, this court would be acting unconstitutionally. As a court of limited jurisdiction, this court, in the words of Justice Stevens, should not place “a higher value on the rendition of a volunteered advisory , opinion than on the virtues of judicial restraint.” Superintendent, Massachusetts Correctional Inst, Walpole v. Hill, 472 U.S. 445, 462, 105 S.Ct. 2768, 2777, 86 L.Ed.2d 356 (1985) (Stevens, J., concurring in part and dissenting in part).

Until the trial court specifically rules on its jurisdiction, any proceeding in this court to review the lower court’s jurisdiction is premature and hence beyond our jurisdiction. Accordingly, the petition for a writ of prohibition is DENIED.

BENTON, J., concurs, and THOMAS, J., dissents with written opinion.

THOMAS, J.

Dissenting.

I respectfully dissent. Because the Attorney General’s dismissal of this action deprived the trial court of jurisdiction, we should grant the writ of prohibition.

The action here was filed in 2009. Under section 68.084(2)(a), Florida Statutes (2009), the Legislature has granted the Attorney General the sole power to dismiss a qui tam action: “The department [of Legal Affairs] may voluntarily dismiss the action notwithstanding the objections of the [relator].” (Emphasis added.) There is no time limitation or other substantive limitation whatsoever on the Attorney General’s authority to control qui tam litigation. The Attorney General has the unfettered power to prosecute or dismiss such an action, and is the real party in interest, regardless of her decision to intervene. United States ex. rel. Milam v. Univ. of Texas M.D. Anderson Cancer Ctr., 961 F.2d 46, 50 (4th Cir.1992); United States ex. rel. Dimartino v. Intelligent Decisions, Inc., 308 F.Supp.2d 1318, 1322, n. 8 (M.D.Fla.2004). Because the Attorney General has the unfettered authority to dismiss qui tam litigation, her voluntary dismissal here divested the trial court of jurisdiction to take any further action in this matter, even assuming the Florida Rules of Civil Procedure control, because, as unequivocally held by the Florida Supreme Court in Pino v. Bank of New York, 121 So.3d 23, 32 (Fla.2013), “[i]t is well accepted that the effect of a plaintiffs voluntary dismissal under rule 1.420(a)(1) is jurisdictional.” (Emphasis added.)

The majority opinion’s refusal to grant the writ contradicts the plain text of the qui tam statute and the decision in Pino, and allows' the trial court to conduct a hearing on a matter over which it has no jurisdiction. Further, the majority opinion allows the trial court" to conduct a hearing which violates the strict separation of powers requirement of Article II, section three of the Florida Constitution and conflicts with the supreme court’s holding in Avatar Development Corporation v. State, 723 So.2d 199, 201 (Fla.1998), because the trial court’s action here to consider the relator’s motion to strike the Attorney General’s dismissal improperly interferes with the Executive Branch’s sole authority to prosecute qui tam litigation on behalf of the State of Florida.

Federal courts have duly noted that to allow courts to interfere with the government’s power to prosecute and control qui tam actions by requiring “good cause” before dismissal, where the Attorney General has declined to intervene, would put the similar federal statute on “constitutionally unsteady ground.” See United States ex. rel. Ridenour v. Kaiser-Hill Co. LLC, 397 F.3d 925, 934-35 (10th Cir.2005), cert, den., 546 U.S. 816,126 S.Ct. 341,163 L.Ed.2d 52 (2005). Unlike the Florida qui tam statute, the federal provision specifically authorizes a judicial hearing before the government may dismiss the action, but even under this language, courts have recognized that the federal government possesses nearly an “unfettered right to dismiss a qui tarn action.” Swift v. United States, 318 F.3d 250, 253 (D.C.Cir.2003).

Prohibition is precisely the correct remedy to avoid this type of jurisdictional error which improperly cabins prosecutorial discretion and thereby violates Article II, section three. See State v. Bloom, 497 So.2d 2 (Fla.1986). I would grant the petition for writ of prohibition to preclude further action by the trial court in this matter.


author: SLEET, Judge.

text:
    ANDRE FRANKLIN, INC., a Florida corporation, and Andre Franklin, individually, Appellants, v. Herb WAX and Jill Wax, Husband and Wife, Appellees.
    No. 2D14-1151.
    District Court of Appeal of Florida, Second District.
    Oct. 8, 2014.
    Paul J. Kelly of Paul J. Kelly, P.A., St. Petersburg, for Appellants.
    Marie Tomassi and Anne C. McAdams of Trenam, Kemker, Scharf, Barkin, Frye, O’Neill & Mullís, P.A., St. Petersburg, for Appellees.
   SLEET, Judge.

Andre Franklin, Inc., and Andre Franklin, individually, (collectively referred to as “Franklin”), appeal the trial court’s denial of a motion to compel arbitration and motion to abate proceedings pending arbitration. Because Franklin did not take action inconsistent with its right to arbitration, it did not waive its right to arbitration. Accordingly, we reverse.

In January 2007, Herb and Jill Wax contracted with Franklin to restore a historic home they had purchased. Within the contract, the parties agreed to, among other things, arbitrate disputes. After five years a disagreement arose relating to payment. Franklin subsequently .recorded a claim of lien against the Waxes’ home.

In November 2012, the Waxes filed a four-count complaint against Franklin alleging (1) a show cause action pursuant to section 713.21, Florida Statutes (2012), for issuance of a summons requiring Franklin to show cause why the claim of lien should not be vacated; (2) a fraudulent lien; (3) slander of title; and (4) breach of contract.

Franklin responded by simultaneously filing a motion to enforce arbitration, a motion to abate, a motion to dismiss for failure to comply with Florida Rule of Civil Procedure 1.130(a) and for failing to file presuit notice required by section 558.004, Florida Statutes (2012), an answer and affirmative defenses, and counterclaims for foreclosure of lien and breach of contract. All motions were set for a hearing. After the July 3, 2013, hearing the trial court granted, in part, Franklin’s motion to dismiss and allowed the Waxes to amend their complaint to include presuit notice pursuant to section 558.004.

In November 2013, the Waxes filed then-amended complaint. Franklin responded by simultaneously filing its renewed motion to enforce arbitration, renewed motion to abate, and answer and affirmative defenses to amended complaint. The trial court held a hearing on the motions on February 4, 2014. The Waxes argued that Franklin waived its right to arbitrate by filing counterclaims and arguing the motion to dismiss during the first hearing. The trial court agreed with the Waxes and concluded that Franklin waived its right to arbitration. The trial court’s principal reason for finding that Franklin waived its right to arbitrate was Franklin’s filing of a counterclaim for breach of contract. The court concluded that Franklin had sought affirmative relief from the court by filing that claim and sought to enforce the contract. The court entered its order denying Franklin’s motion to compel arbitration and motion to abate.

We review a trial court’s order denying a motion to compel arbitration de novo. See Waterhouse Constr. Group, Inc. v. 5891 SW 61th St., LLC, 949 So.2d 1095, 1097 (Fla. 3d DCA 2007). We note that Florida public policy favors arbitration. See SCG Harbourwood, LLC v. Hanyan, 93 So.3d 1197, 1199 (Fla. 2d DCA 2012). The contractual right to arbitration, however, is subject to waiver. See Mora v. Abraham Chevrolet-Tampa, Inc., 913 So.2d 32, 34 (Fla. 2d DCA 2005). A party may waive its contractual right to arbitrate by actively participating in a lawsuit or taking action inconsistent with that right. Waterhouse, 949 So.2d at 1100. The Waxes argue that Franklin acted inconsistently with its right to arbitrate by filing the counterclaims and rely on Coral 97 Associ ates, Ltd. v. Chino Electric, Inc., 501 So.2d 69 (Fla. 3d DCA 1987), for support.

In Coral, the parties entered into a contract where Chino agreed to make certain improvements to property owned by Coral. Id. at 70. The parties agreed to arbitrate disputes. Id. Eventually, Chino instituted an action against Coral for foreclosure of a mechanic’s lien and breach of contract without requesting arbitration. Id. Coral filed a motion to dismiss the complaint arguing that Chino failed to state a cause of action and failed to comply with contractual provisions requiring arbitration. Id. Coral also filed a counterclaim for breach of contract. Id. Prior to the hearing on the motion to dismiss, Coral filed a notice of taking Chino’s deposition. Id. The Third District held that Coral waived its right to arbitration by taking the inconsistent action of filing a counterclaim and noted that a party may waive arbitration either by taking an active part in the litigation or by undertaking an action inconsistent with that right. Id.

However, a year after deciding Coral, the Third District clarified its holding in Coral when it decided Concrete Design Structures, Inc. v. P.L. Dodge Foundation, Inc., 532 So.2d 1334 (Fla. 3d DCA 1988). In Concrete, the court held that filing a counterclaim and motion to dismiss the complaint at the same time a motion to compel arbitration is filed did not constitute a waiver of the right to arbitration. Id. at 1334-35. The court clarified that in Coral “it was the act of implementing discovery, following the simultaneous filings of the counterclaim and motions to arbitrate and dismiss, that was held inconsistent with and thus a waiver of the arbitration right.” Id. See also Avid Eng’g., Inc. v. Orlando Marketplace Ltd., 809 So.2d 1 (Fla. 5th DCA 2001) (holding that filing a counterclaim with a motion to arbitrate did not waive the right to arbitration).

In light of the holdings in Concrete and Avid, we conclude that Franklin did not waive its contractual right to arbitrate by filing a counterclaim simultaneously with its motion to compel arbitration, motion to dismiss, and motion to abate. Franklin did not implement discovery. Franklin’s filing of the counterclaims and motion to dismiss at the same time as a motion to compel arbitration is filed, without more, does not waive the contractual right to arbitrate. See Concrete, 532 So.2d at 1334.

Accordingly, we reverse the order denying the motion to compel arbitration and the motion to abate pending arbitration and remand for proceedings consistent with this opinion.

Reversed and remanded.

NORTHCUTT and CRENSHAW, JJ., Concur.

      . In this opinion, we do not reach the issue of whether any of the claims raised in the complaint are arbitrable. ■