text:
    Bernardo KOPEL, and Enrique Kopel, Appellants, v. Leon KOPEL, Appellee.
    No. 3D11-536.
    District Court of Appeal of Florida, Third District.
    March 20, 2013.
    Rehearing Denied May 8, 2013.

      Scott Jay Feder, Miami, for appellants.
    Conroy, Simberg, Ganon, Krevans, Abel, Lurvey, Morrow & Schefer, Lawrence S. Gordon and Rolando A. Soler, for appellee.
    Before CORTIÑAS and FERNANDEZ, JJ., and SCHWARTZ, Senior Judge.
   FERNANDEZ, J.

The appellants-defendants, Bernardo Kopel and Enrique Kopel, appeal the trial court’s Final Judgment entered in favor of the appellee-plaintiff, Leon Kopel. We reverse because there is no relation back or unjust enrichment.

Factual Background

a. The Business Relationships

Leon and Enrique Kopel are brothers. They were business partners with their father, Scharja Kopel. Scharja created a family textile business in the Dominican Republic where they lived. Scharja made all ultimate decisions on family investments.

In 1987, Enrique’s son, Bernardo, graduated from college and lived in Miami, Florida. Scharja wanted to assist him financially and thought investing in Florida real estate would be good for the family. Scharja directed that family money be sent to Florida and that Leon, Enrique, and Bernardo would each own one-third of the investments. In 1988 and 1989, the family invested $6.6 million to buy two properties in Miami: half of the ownership for a piece of land to be developed as a warehouse (“KOP I”) and all of a Miami shopping center (“KOP II”). Leon, Enrique, and Bernardo each invested $2.2 million to purchase the properties. Because of onerous laws regarding foreign ownership, they established the entities as S-corporations, listing Bernardo, the only partner with U.S. citizenship, as the sole owner of these entities.

In 1991, Leon decided he wanted his actual ownership of the Florida investments to be legally recognized. Leon sought an American transactional lawyer who suggested that promissory notes be created from Bernardo to Leon for $845,000 and $1.45 million, even though the transactions were investments and not loans. In August 1991, these two notes were created and back-dated with effective dates of January 4, 1989 and January 3, 1989, in the sums of $1.45 million and $845,000, respectively.

Meanwhile, Scharja became ill and decided to retire from the family business. He requested that Enrique and Leon buy out his interests for $8.884 million and directed that they acquire the money to pay him by borrowing money through their corporations. Leon and Enrique, through a series of transactions, obtained a loan to their respective companies from the Royal Bank of Canada for $15 million. Leon borrowed $5 million through his solely-owned corporation, Lerif Corporation. Enrique borrowed $10 million through his solely-owned corporation, Beko Corporation.

Lerif and Beko used the $15 million to pay $8.884 million to Scharja and to create Nautilus Holdings, Ltd., (“Nautilus”), a British Virgin Islands corporation. Leon held a one-third interest in Nautilus while Enrique controlled the other two-thirds. Nautilus then purchased the half of “KOP I” that had been owned by outside investors for $585,000. The brothers then formed a second new company, Eminence Corporation, NV, (“Eminence”), a corporation of the then existing Netherlands Antilles. Again, Leon held a one-third interest while Enrique controlled the other two-thirds. Eminence purchased a note and mortgage from Southeast Bank, N.A. worth $5.15 million for the discounted sum of $4,851,119. The remaining funds were used for fees and expenses.

By 1992, relations between the brothers had rapidly deteriorated. Leon demanded that Enrique return the $5 million that Leon’s corporation had borrowed. Leon also demanded payment from his nephew, Bernardo, on the promissory notes for $845,000 and $1.45 million. When neither of these demands was met, Leon filed suit in 1994.

b. Trial Court Proceedings

Litigation ensued over the next few years with changes occurring in the pleadings, including references to Leon’s claims as an investor or a lender. In November 1997, Leon filed his second amended complaint, adding the legal entities to the lawsuit, including Eminence and Nautilus. He alleged that he funded these two foreign companies, as well as the two Florida corporations (KOP I and KOP II) with his $5 million, while at the same time this money was a loan by him to Bernardo. However, the trial court eventually denied the claims against the legal entities. Leon continued to sue on the two promissory notes, sought the same $5 million back as an alleged loan to both Bernardo and Enrique, and alternatively claimed that he never loaned any money but rather invested in the entities and was entitled to damages for fraud, a shareholder’s derivative action, RICO and other claims.

The case proceeded to trial in 2008. Leon sued on the two promissory notes, the loan, and unjust enrichment. At trial, for the first time and over the defendants’ objection, Leon claimed that various settlement conversations between him and Enrique after 1991 were not actually settlement discussions but rather independent oral agreements whereby Enrique was to pay $5 million to Leon in exchange for Leon’s interest in the entities. Leon testified that these discussions were between him and Enrique only. The trial ended in a hung jury and then mistrial. The trial court then ordered the parties to amend the pleadings.

In September 2008, Leon filed a third, fourth and then a fifth amended complaint. His amended complaint alleged that from 1987 to 1991, the $5 million was provided by the family to Bernardo with the understanding that Bernardo, Leon, and Enrique would each be entitled to a one-third interest in any profits from the ventures operated by Bernardo. Leon abandoned his claims on the two promissory notes. Instead, he alleged that using the $15 million loan, he lent $5 million to Bernardo (count I), and at the same time, received an oral promise from Enrique and Bernardo that in exchange for $5 million, Leon would give up his interests in the companies (count II). He also alleged that Enrique and Bernardo were unjustly enriched when he provided them $5 million, and they kept it (count III). Bernardo and Enrique challenged this pleading due to its inconsistencies and due to the new claims being time-barred by the applicable four-year statute of limitations. However, the trial court denied their motion.

Prior to trial, the defendants moved for summary judgment, arguing the complete lack of evidence of any money ever being loaned to Bernardo, the lack of evidence that Bernardo participated in any agreement to repay Leon in exchange for Leon’s interests in the companies, and that because the alleged oral agreement with Enrique in 1991 was pled for the first time in 2008, it was time-barred. The trial court denied the motion, and the case proceeded to trial.

The jury eventually found for Leon on all three counts. It found that Bernardo borrowed $5 million and at the same time orally agreed to repay $2 million and Enrique orally agreed to pay $3 million for Leon’s interests. The jury also found that the defendants were unjustly enriched in the sum of $10 million.

The defendants again argued that there were inconsistencies in the verdicts and requested that the jury be so instructed and sent back to deliberate again, but the trial court denied the request. The defendants filed a motion for new trial or judgment notwithstanding the verdict, but the trial court denied the motion.

Leon then filed for prejudgment interest and entry of final judgment. At the hearing, the trial court sua sponte ruled that the final judgment would be entered on count III of the complaint, for unjust enrichment only, against both defendants jointly and severally. The court also reduced the award from $10 million to $5 million and granted prejudgment interest on the $5 million, using the selected date of funding, over the defendants’ objection. The court entered final judgment in favor of Leon for $5 million, plus prejudgment interest of $9,063,164.50, for a total of $14,063,164.50.

Analysis

We reverse the verdict and hold that Bernardo and Enrique are entitled to judgment as a matter of law because the evidence does not support the claims alleged in any of the three counts. Furthermore, the evidence does not support Leon’s claim of unjust enrichment.

The standard for reviewing relation-back pleadings is abuse of discretion. See Lasar Mfg. Co. v. Bachanov, 436 So.2d 236, 237 (Fla. 3d DCA 1983). In reviewing a true discretionary act, the appellate court must fully recognize the superior vantage point of the trial judge and should apply the “reasonableness” test to determine whether the trial judge abused his discretion. Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980). If reasonable men could differ as to the propriety of the action taken by the trial court, then the action is not unreasonable and there can be no finding of an abuse of discretion. Id. The discretionary ruling of the trial judge should be disturbed only when his decision fails to satisfy this test of reasonableness. Id. Although it is well settled that a trial court has discretion to permit or refuse amendment to pleadings, this ruling can be overturned on appeal upon finding an abuse of discretion. See Lasar Mfg. Co., 436 So.2d at 237.

a. The Relation-Back Doctrine

On appeal, Bernardo and Enrique contend that 1) the verdicts were against the manifest weight of the evidence; 2) permitting a new claim after fourteen years into litigation was error; 3) allowing highly prejudicial evidence to be injected into trial was error; and 4) the Final Judgment based on the jury’s inconsistent verdicts was error.

The claims alleged in the fifth amended complaint did not relate back. Further, the claim for unjust enrichment warrants reversal because Leon’s $5 million investment in a jointly-held corporation only indirectly benefited one of the appellants. Because reversal of the first two issues renders the last two issues moot, we need not review them here.

Florida law clearly states that in order for an amended pleading to survive a motion to dismiss after the statute of limitations has passed, an amended complaint must relate back to the original pleading made before the expiration of the statute of limitations. See Fla. R. Civ. P. 1.190(c). To relate back, the pleading must not state a new cause of action. See Daniels v. Weiss, 385 So.2d 661, 663 (Fla. 3d DCA 1980). “[W]hen a cause of action set forth in an amended pleading in a pending litigation is new, different, and distinct from that originally set up, there is no relation back.” Trumbull Ins. Co. v. Wolentarski, 2 So.3d 1050, 1055 (Fla. 3d DCA 2009) (quoting Livingston v. Malever, 103 Fla. 200, 137 So. 113, 118 (1931)).

Count II is reversed because the statute of limitations bars it from being raised for its failure to relate back. In his Fifth Amended complaint, Leon claimed that at the same time Bernardo borrowed money from him, Enrique orally promised Leon $5 million in exchange for Leon’s release of all of his interests in these companies. This new claim of an oral promise to pay him $5 million for his interests in the companies was asserted for the first time in 2008, fourteen years after the alleged agreement was made. Because this amendment to the complaint was not provided until after the first trial, the amendment does not relate back to the original pleading. Thus, the applicable four-year statute of limitations bars this claim.

Furthermore, the Fifth Amended complaint added a new cause of action that had not been raised until fourteen years after the original pleading. The alleged oral promise by Enrique to repay Leon his $5 million was new, different, and distinct from that which was originally pled. See Trumbull, 2 So.3d at 1055. Thus, because the fifth amended complaint states a new action, it cannot relate back as a matter of law. See Daniels, 385 So.2d at 663. Accordingly, we conclude that the trial court abused its discretion when it allowed Leon’s fifth amended complaint because it should have been barred by the applicable four-year statute of limitations.

b. Unjust Enrichment

Count III, which held the defendants liable for unjust enrichment, was in error as well because the evidence introduced at trial does not support such a claim. Leon claimed in his fifth amended complaint that he advanced $5 million to Bernardo and Enrique, conferring a benefit upon them which they “knowingly and voluntarily accepted and then retained.” However, the evidence at trial indicates these monies were used to fund legal entities, not individuals. “The elements of an unjust enrichment claim are: ‘a benefit conferred upon a defendant by the plaintiff, the defendant’s appreciation of the benefit, and the defendant’s acceptance and retention of the benefit under circumstances that make it inequitable for him to retain it without paying the value thereof.” Fla. Power Corp. v. City of Winter Park, 887 So.2d 1237, 1241-42 n. 4 (Fla.2004). Unjust enrichment requires that the benefit be direct to the litigant. See Peoples Nat’l Bank of Commerce v. First Union Nat’l Bank of Fla. N.A., 667 So.2d 876, 879 (Fla. 3d DCA 1996).

Here, there was no unjust enrichment because there was no benefit conferred to either Enrique or Bernardo individually. Leon admitted he paid his father $2,917,200 of the $5 million. Bernardo and Enrique did not receive this benefit. Leon further admitted he paid $1,794,999 into two foreign corporations in which he held a one-third interest. Enrique held the remaining two-thirds interest in these corporations, while Bernardo had nothing to do with them at all. Thus, there was no evidence of any benefit to Enrique or Bernardo individually, only an indirect benefit through a corporation of which Enrique happened to be an owner. Unjust enrichment requires that the benefit be direct to the litigant, but that was not the case here.

Conclusion

We therefore reverse because Leon’s fifth amended complaint stated a new cause of action which did not relate back to the original pleadings, and was thus time-barred by the applicable statute of limitations. Additionally, we conclude that Bernardo and Enrique were not unjustly enriched because Leon’s investment of $5 million into a jointly-held corporation did not directly benefit either Bernardo or Enrique, and only indirectly benefited Enrique through a corporation which he happened to partially own. Consequently, Bernardo and Enrique are entitled to judgment as a matter of law because the evidence does not support Leon’s claims. We reverse and remand to the trial court so that judgment can be entered for Bernardo and Enrique.

Reversed and remanded for proceedings consistent with this opinion.


source: Caselaw Access Project

author: LaROSE, Judge.

license: Public Domain

text:
    Mitsu CAPOTE, Appellant/Cross-Appellee, v. Frank Alfonso CAPOTE, Appellee/Cross-Appellant.
    No. 2D09-5387.
    District Court of Appeal of Florida, Second District.
    March 27, 2013.
    Rehearing Denied June 4, 2013.

      W. Dale Gabbard of The Law Office of W. Dale Gabbard, P.A., Tampa, for Appellant/Cross-Appellee.
    Allison M. Perry of Law Office of Allison M. Perry, P.A., Tampa, for Appel-lee/Cross-Appellant.
   LaROSE, Judge.

Mitsu Capote, the former wife, appeals the final judgment of dissolution of her marriage to Frank Alfonso Capote, the former husband. He cross-appeals. They each dispute various aspects of the trial court’s equitable distribution of marital assets and debts. We affirm, in part, reverse, in part, and remand for further proceedings.

By way of background, we know that the parties married in California in 1989 when the former husband worked in his family’s dry-cleaning business. The former husband’s father sold the business in 1990 and moved to Tampa. The parties also moved to Tampa where the former husband bought a Tampa dry-cleaning business and named it A1 Capote’s Dry Cleaning, Inc. The parties married in 1996 and separated in 2008.

Gulf Boulevard and Bradford Avenue Properties

The parties owned various properties they acquired during the marriage. They dispute the equitable distribution of the Gulf Boulevard and Bradford Avenue properties. The equitable distribution schedule incorporated in the final judgment assigned to the former husband the entire value of these parcels as well as the entire amount of the outstanding mortgages. But the parties owned only a fifty-percent interest in each property and were responsible for only one-half of each mortgage. On the former husband’s motion for rehearing, the trial court reduced these awards to one half of their values. Unfortunately, the trial court failed to correspondingly reduce the mortgage amounts by half. The former wife asks us to reverse and remand for the trial court to correct this apparent oversight.

The former husband concedes that the trial court erred in assigning to him the entire mortgage amounts. He notes, and we agree, that the trial court also failed to reduce by half the $11,402 property tax liability on the Bradford Avenue property. We reverse and remand for the trial court to correct the equitable distribution of these two properties.

Business as Marital Asset

On cross-appeal, the former husband argues that the trial court erred in ruling that A1 Capote’s Cleaners is a marital asset. First, he claims that his father contributed $75,000 towards the down payment and owned fifty percent of the business pursuant to an oral agreement. The trial court was unconvinced. No documents memorialized the father’s interest in the business. The business was incorporated by the former husband in his sole name. Neither business records nor tax returns reflected the father’s alleged interest. The parties’ joint accountant testified that, as far as he knew, the former husband was the sole owner. As for the alleged contribution towards the down payment, the trial court concluded that it was a gift. No documentary evidence supported the former husband’s claim on this point. We cannot say that the trial court erred. Thus, we must affirm on this issue.

Second, the former husband contends that most of the value of the business is premarital because he bought the business before the marriage. “We review de novo the characterization of an asset as marital or nonmarital.” Tradler v. Tradler, 100 So.3d 735, 738 (Fla. 2d DCA 2012) (citing Fortune v. Fortune, 61 So.3d 441, 445 (Fla. 2d DCA 2011)). The trial court ruled that any nonmarital portion of the business value lost its separate non-marital character because the former husband consistently used the business operating account to pay the family’s personal expenses. See Pfrengle v. Pfrengle, 976 So.2d 1134, 1136 (Fla. 2d DCA 2008) (“Money is fungible, and once commingled it loses its separate character.”) (citing Belmont v. Belmont, 761 So.2d 406, 408 (Fla. 2d DCA 2000)). We find no error and affirm on this point.

Valuation of Business

The former husband contends that the trial court erred in valuing A1 Capote’s Cleaners, which was awarded to him in the equitable distribution. Neither party hired an appraiser. The former wife valued the business property on Seventh Avenue at $275,000. The former husband testified that it was worth $220,000. The trial court assigned a $275,000 value and subtracted a $60,000 mortgage, for a net value of $215,000. The parties agreed that the Twenty-First Street property was worth $100,000. Subtracting its debt netted a value of $64,201. Thus, the combined value was $279,000. The trial court then added $80,233 in good will as listed on an August 2009 balance sheet. This resulted in a total valuation of $359,201. Competent, substantial evidence supports the trial court’s valuation. See Beaty v. Gribble, 652 So.2d 1156, 1158 (Fla. 2d DCA 1995) (holding property owner’s testimony is competent evidence of its value). Therefore, we affirm on this issue.

We do note a minor error in the valuation; the actual total of the trial court’s calculation should be $359,434, rather than $359,201. On remand, the trial court shall correct this small miscalculation.

Insurance Proceeds

The trial court awarded the former husband $72,917 in insurance proceeds from a home burglary. The former husband argues that the trial court erred because (1) these funds were depleted before the final hearing for family and business expenses and (2) because $62,917 of the proceeds covered his premarital property. The trial court found that the former husband deposited these proceeds into the business account without the former wife’s knowledge or consent and spent it. If a spouse’s misconduct resulted in the dissipation of a marital asset, it is proper to assign the dissipated asset to the spending spouse. Levy v. Levy, 900 So.2d 737, 746 (Fla. 2d DCA 2005). The record supports the trial court’s ruling and we affirm on this issue.

Loan

The former husband argues that the trial court erred in awarding him, as a contingent asset, the total amount of a $55,000 loan he made to a Mr. Villa against the former wife’s wishes when the final judgment states that the former wife is entitled to one half of any repayment. By assigning the entire “asset” and its risk of nonrepayment to the former husband, and then equally dividing the parties’ total assets and liabilities, the trial court effectively awarded the former wife $27,500 in other assets in place of her half of any loan repayment. To resolve the conflict between the equitable distribution schedule and the statement in the final judgment, the trial court on remand should remove the conflicting statement.

Credit Card Debt

The trial court did not include American Express and Chase credit card debt in the equitable distribution. The final judgment states that the court declined to do so because the cards had minimal balances at the time of filing and the former husband used them for both business and personal expenses. We cannot say that the trial court erred on this issue and, thus, affirm.

Conclusion

We reverse the final judgment and remand for the trial court to correct the equitable distribution schedule to reflect the liability reductions for the Gulf Boulevard and Bradford Avenue properties, to correct the $233 mistake in the value of Al Capote’s Cleaners, and to remove the statement that the former wife is entitled to one half of any repayment of the Villa loan. In all other respects, we affirm the final judgment.

Affirmed in part, reversed in part, and remanded.

WALLACE and MORRIS, JJ„ Concur.


author: PER CURIAM.

text:
    Aatif ELZEBIR, Appellant, v. The STATE of Florida, Appellee.
    No. 3D11-403.
    District Court of Appeal of Florida, Third District.
    March 27, 2013.
    Rehearing Denied April 19, 2013.
    Carlos J. Martinez, Public Defender, and Thomas Regnier, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Keri T. Joseph, Assistant Attorney General, for appellee.
    Before CORTIÑAS, ROTHENBERG and EMAS, JJ.
   PER CURIAM.

Affirmed. See Thompson v. State, 994 So.2d 468, 470 (Fla. 3d DCA 2008).


text:
    Juan DUQUE, et al., Appellants, v. TRG-BRICKELL POINT LTD., et al., Appellees.
    No. 3D12-2289.
    District Court of Appeal of Florida, Third District.
    April 24, 2013.

      Joseph E. Altschul, Fort Lauderdale, for appellants.
    Akerman Senterfitt, and C., for appel-lees.
    Before CORTIÑAS and ROTHENBERG, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Wood-Cohan v. Prudential Ins. Co. of Am., 715 So.2d 999 (Fla. 4th DCA 1998); Bird Lakes Dev. Corp. v. Meruelo, 582 So.2d 119 (Fla. 3d DCA 1991).


text:
    Richard J. TEATER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D12-3152.
    District Court of Appeal of Florida, Third District.
    April 24, 2013.
    Rehearing Denied Aug. 23, 2013.
    Richard J. Teater, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SUAREZ and LOGUE, JJ., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See §§ 775.084(l)(d) 1. a & 776.08, Fla. Stat.; Curi v. State, 36 So.3d 853 (Fla. 3d DCA 2010); Ubilla v. State, 8 So.3d 1200 (Fla. 3d DCA 2009).


text:
    Jahi HASANATI, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-548.
    District Court of Appeal of Florida, Third District.
    May 8, 2013.

      Jahi Hasanati, in proper person.
    Pamela Jo Bondi, Attorney General, Tallahassee, for appellee.
    Before CORTIÑAS, SALTER and EMAS, JJ.
   PER CURIAM.

We previously dismissed Hasanati’s appeal in the instant cause, and at that time ordered Hasanati to show cause why he should not be prohibited from submitting further pro se appeals, petitions or motions relating to lower tribunal case number F10-8595K, unless such pleadings are signed by an attorney who is a duly licensed member of the Florida Bar.

In response, Hasanati filed a document entitled “Notice of Conditional Acceptance” in which Hasanati states in part: “This (acceptance) is consistent with the terms found in the United Nations Charter, the International Convention on Civil and Political Rights; and does not in any way diminish or extinguish any right(s) to seek vindication elsewhere in the judicial process. It constitutes sufficient evidence for future claims.” Attached to his “Notice of Conditional Acceptance” is a typewritten document entitled “Affidavit of Non-Response” which can only be described as incomprehensible.

Having considered Hasanati’s response to the order to show cause, and haring reviewed the myriad pro se appeals brought by Hasanati related to case number F10-8595K, we conclude that Hasa-nati has failed to establish good cause and has abused the judicial process through his repeated and meritless pro se appeals and petitions. Accordingly, Jahi Hasanati is prohibited from filing any further pro se appeals, pleadings, motions, or petitions relating to case number F10-8595K. See State v. Spencer, 751 So.2d 47 (Fla.1999) (holding a court can prohibit future pro se pleadings as a sanction for repeated and frivolous filings if the court first provides a pro se litigant notice and an opportunity to respond). We direct the clerk of the Third District Court of Appeal to refuse to accept any such papers relating to lower court case number F10-8595K unless reviewed and signed by an attorney, who is a duly licensed member of the Florida Bar in good standing.

      . In less than three years, Hasanati has filed a total of seventeen separate pro se appeals or petitions (including the instant cause) related to the underlying circuit court case: 3D 13-508; 3D12-2781; 3D12-2704; 3D12-2703; 3D12-2128; 3D12-1240; 3D12-1239; 3D12-1238; 3D12-1237; 3D12-852; 3D11-3238; 3D11-1390; 3D11-1123; 3D11-918; 3D10-3069; 3D10-2726.


text:
    Bruce LING, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2205.
    District Court of Appeal of Florida, First District.
    May 22, 2013.
    Rehearing Denied Aug. 1, 2013.
    Bruce Ling, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. Baker v. State, 878 So.2d 1286 (Fla.2004).

BENTON, C.J., RAY and MAKAR, JJ., concur.


author: DAVIS, Judge.

text:
    Lamar MAYNARD, Appellant, v. TACO BELL OF AMERICA, INC., a Delaware corporation, and Daniel Peterson a/k/a Dan Peterson, an individual, Appellees.
    No. 2D11-5390.
    District Court of Appeal of Florida, Second District.
    May 31, 2013.
    Christopher M. Palermo, Tampa, for Appellant.
    F. Robert Radel, II, of Unice Salzman Radel, P.A., Palm Harbor; and Cory J. Person, and Ezequiel Lugo of Butler Pap-pas Weihmuller Katz Craig, LLP, Tampa, for Appellees.
   DAVIS, Judge.

Lamar Maynard challenges the trial court’s final judgment entered in favor of Taco Bell of America, Inc., and Daniel Peterson, a former employee of Taco Bell. Maynard’s civil complaint contained five counts against Taco Bell and five counts against Peterson individually. In his first count, which was brought against Taco Bell, Maynard alleged a violation of the Florida Civil Rights Act. The trial court dismissed this count for Maynard’s failure to timely meet a required condition precedent before filing suit. The trial court also entered summary judgment in favor of Taco Bell and Peterson on the remaining nine counts. Because Maynard sufficiently alleged in his complaint that he met the condition precedent to filing his lawsuit by filing his claim with the Florida Commission on Human Relations (FCHR), we reverse the trial court’s dismissal of count one. We affirm as to the remaining nine counts without further discussion.

Maynard is a young African-American male. On April 15, 2007, he and another African-American male drove Maynard’s vehicle up to the drive-thru lane of a Taco Bell and placed an order. After driving forward to the pick-up window, Maynard attempted to order his friend a soft drink that was not included in his original order. Peterson, the employee working at the pick-up window, refused to accept the additional order and made remarks that Maynard interpreted as racially motivated and demeaning. In response, Maynard turned off his car’s engine and refused to pull his car out of the drive-thru lane, blocking traffic and preventing Taco Bell from doing drive-thru business for about twenty minutes.

Inside the restaurant, Peterson pressed a silent alarm button that automatically alerted local police officials, who then responded to the scene. Maynard found himself surrounded by Tampa Police officers approaching his car with weapons drawn. He attempted to get out of his car, striking his knee on the steering wheel in the process. He immediately was seized by the police officers and frisked for weapons. During the pat down, Maynard’s elbow struck the car. The search of Maynard’s person and his car disclosed no weapons or other contraband, and neither he nor his passenger was arrested.

Pursuant to section 760.11, Florida Statutes (2005), Maynard had 365 days — or until April 14, 2008 — to file a complaint with FCHR. He filed an initial FCHR questionnaire form on April 8, 2008, and a formal complaint with FCHR on April 24, 2008. According to the agency record, which is included in the record on appeal, FCHR determined that the complaint was timely filed by relying on its relation back policy to deem the complaint filed as of the April 8, 2008, filing of the original questionnaire. FCHR then processed Maynard’s claim pursuant to the statute, and on January 13, 2009, issued its standard notice of dismissal acknowledging that the complainant had voluntarily withdrawn his complaint in favor of filing suit in the state court of competent jurisdiction.

Once Maynard opted to withdraw his FCHR complaint and file a complaint in the circuit court, Taco Bell moved to dismiss count one as having failed to meet the requisite condition precedent. Taco Bell maintained that the April 24 filing of the formal administrative complaint was untimely under the requirements of section 760.11 and that the date of filing should not relate back to Maynard’s April 8 questionnaire form because that form specifically stated that it was not a complaint. The trial court agreed with Taco Bell and dismissed count one with prejudice. This was error.

A motion to dismiss tests the legal sufficiency of a complaint to state a cause of action and is not intended to determine issues of ultimate fact. And on. a motion to dismiss the trial court is limited to consideration of the allegations contained within the four corners of the complaint.

Reyes ex rel. Barcenas v. Roush, 99 So.3d 586, 589 (Fla. 2d DCA 2012) (citations omitted) (internal quotation marks omitted). A cause of action based on a violation of the Florida Civil Rights Act is a statutorily created cause of action. Taco Bell is correct that by the terms of the statute, the presuit filing of the complaint with FCHR for investigation is a condition precedent that must be pleaded when filing the civil action. See Martinez v. Abraham Chevrolet-Tampa, Inc., 891 So.2d 579, 581 (Fla. 2d DCA 2004) (“We conclude that the administrative process is more accurately described as a condition precedent to the age discrimination lawsuit.”). But the determination of whether such a complaint is timely filed rests with FCHR. Accordingly, as long as Maynard sufficiently alleged timely compliance with the requisite condition precedent, it is not part of the trial court’s consideration to reweigh that timeliness determination on a motion to dismiss. See Reyes, 99 So.3d at 589 (“Because the trial court on a motion to dismiss [is] not allowed to determine the veracity of [an allegation in the complaint], it [is] restricted to considering] whether [the allegation is] properly pleaded.”).

Section 760.11(1) provides that when a complaint is filed with the FCHR within 365 days of an alleged violation, FCHR will notify the person who allegedly committed the violation and that person may file an answer within twenty-five days. Section 760.11(3) provides that FCHR has 180 days from the date the complaint is filed to investigate and determine if there is probable cause to believe that a violation has occurred. If FCHR fails to make such a determination within 180 days, the aggrieved person may proceed as though FCHR made such a finding by filing a lawsuit or requesting an administrative hearing. § 760.11(8).

Here, in the civil complaint he filed in the circuit court, Maynard alleged that he received on January 13, 2009, notice from FCHR indicating that 180 days had elapsed after the filing of the complaint without FCHR making a probable cause determination. Once this time elapsed, Maynard elected to dismiss the complaint filed with FCHR, thereby enabling him to file the civil complaint.

Based on section 760.11 and the record before us, FCHR’s January 13, 2009, notice of dismissal demonstrated FCHR’s satisfaction with Maynard’s timely filing of the initial administrative complaint. This necessarily indicates compliance with the required condition precedent under section 760.11, and Maynard sufficiently pleaded this compliance in his complaint. It was therefore error for the trial court to go behind Maynard’s pleadings to reweigh the administrative agency’s treatment of the initial complaint as timely.

With the civil complaint sufficiently alleging compliance with the statutorily required condition precedent and supporting that allegation by attachment, the trial court erred in dismissing the complaint for failure to comply with the condition precedent. Accordingly, we reverse the trial court’s dismissal of count one and remand for further proceedings as to that count only.

Affirmed in part, reversed in part, and remanded.

SILBERMAN, C.J., and NORTHCUTT, J., Concur.

      . It is not clear from the record how much information was conveyed to the police at this time, but the officers who responded apparently were under the impression that a robbery was in progress.


text:
    Juan RIVERA, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-2015.
    District Court of Appeal of Florida, First District.
    May 31, 2013.
    Rehearing Denied Aug. 1, 2013.
    Juan Rivera, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

BENTON, C.J., RAY and MAKAR, JJ., concur.


text:
    Alonzo McCULLUM, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5652.
    District Court of Appeal of Florida, First District.
    June 3, 2013.
    Rehearing Denied Aug. 1, 2013.
    Nancy A. Daniels, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace and Brittany Ann Rhoda-back, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Alonzo McCullum (“Appellant”) appeals his conviction for lewd or lascivious molestation of a victim less than 12 years of age. He argues the trial court reversibly erred by allowing the State to put on evidence of a prior alleged, but uncharged, child molestation. Specifically, he asserts the evidence was irrelevant, and thus, inadmissible because the prior acts were not sufficiently similar to the alleged acts supporting the charged offense.

In criminal prosecutions for child molestation, section 90.404(2)(b), Florida Statutes, permits the use of evidence of prior acts of child molestation “for its bearing on any matter to which it is relevant.” § 90.404(2)(b)l., Fla. Stat. (2011). To be admissible, the evidence not only must be relevant, but its relevance must substantially outweigh the potential for unfair prejudice, confusing the issues, misleading the jury, or needless presentation of cumulative evidence. See § 90.403, Fla. Stat. (2011); McLean v. State, 934 So.2d 1248, 1255, 1259 (Fla.2006); Moore v. State, 943 So.2d 296, 297 (Fla. 1st DCA 2006). The similarity of the collateral act(s) to the charged act(s) is the “key consideration” in determining admissibility, both as to relevance and as to unfair prejudice. See Moore v. State, 943 So.2d at 297 (citing Bodie v. Harvey, 943 So.2d at 1259 (La. App. 3 Cir.2006))

Here, the State accused Appellant of molesting a nine-year-old girl by touching and rubbing the child’s vaginal area over her clothes. The collateral acts occurred three years before, involved Appellant’s 15-year-old niece, began with Appellant touching the girl’s breasts on one occasion, and culminated later with sexual intercourse. Although the victims’ ages were different, and the previous acts included intercourse, the trial court found Appellant’s prior acts sufficiently similar to the charged acts as to opportunity and plan. Specifically, in addition to involving acts of molestation, in both cases, the victims were visiting Appellant in his home. In both cases, he committed the acts while others were present in the house. And in both cases, the precursor to the acts was Appellant either suggesting or permitting the victims to use his computer, which was not located in a common area of the house. In light of these similarities, the trial court did not abuse its discretion in admitting the evidence of prior molestation. See Moore v. State, 943 So.2d at 297.

AFFIRMED.

ROWE and MARSTILLER, JJ., concur.

BENTON, C.J., dissents.


author: SUAREZ, J.

text:
    Arthur BLEICH and Gloris Elder, individually and on behalf of all others similarly situated, Appellants, v. CHICAGO TITLE INSURANCE COMPANY, a foreign corporation, Appellee.
    No. 3D12-1261.
    District Court of Appeal of Florida, Third District.
    June 5, 2013.
    Rehearing Denied Aug. 21, 2013.
    Wites & Kapetan and Marc A. Wites, Lighthouse Point; Daniel A. Bushell, Fort Lauderdale, for appellants.
    Baker & Hostetler and Jerry R. Lin-scott and Julie E. Singer, Orlando, for appellee.
    P. Scott Russell IV, Jacksonville; Liggio Benrubi and Jeffrey M. Liggio, West Palm Beach; John S. Mills and Courtney Brewer, Tallahassee, for Kenneth E. and Deete Higgins, James V. and Patricia Raffone, James M. and Barbara A. Chereskin and Carmen Grosso, as amici curiae.
    Alan B. Fields, for The Florida Land Title Association, as amicus curiae.
    Before WELLS, C.J., and SHEPHERD and SUAREZ, JJ.
   SUAREZ, J.

This appeal arises out of the trial court’s grant of summary judgment in favor of Chicago Title Insurance Company (“Chicago Title”). The appellants are representatives of a class action lawsuit against Chicago Title, the appellee, alleging that Chicago Title uniformly overcharges for title insurance in mortgage refinance transactions. The sole issue on appeal is whether the trial court correctly interpreted Regulation 690-186.003(2), Florida Administrative Code, which provides conditions under which a homeowner may qualify for a lower premium on title insurance in a refinance transaction. We conclude the trial court correctly interpreted the subject regulation, and accordingly affirm the entry of final summary judgment.

Pursuant to legislative delegation, the Florida Financial Services Commission has created a rate scheme for title insurance premiums. § 627.782, Fla. Stat. (2012); Fla. Admin. Code R. 690-186.003 (2002). Title insurers and agents are prohibited from knowingly quoting, charging, or collecting a premium that differs from the rate set by the Commission. § 627.780, Fla. Stat. (2007). The “original rate,” applicable to premiums on title policies issued for original owners or leasehold titles, is higher than the “reissue rate.” The lower reissue rate applies to premiums for specified properties “[pjrovided a previous owner’s policy was issued insuring the seller or the mortgagor in the current transaction and that both the reissuing agent and the reissuing undenvriter retain for their respective files copies of the prior owner’s policy. ...” Fla. Admin. Code R. 690-186.003(2) (2002) (emphasis added). It is the second part of this provision we are asked to interpret on appeal.

The parties and the trial court agree, as do we, that the regulation is unambiguous. In such instances, “th[e] first canon [of statutory interpretation] is also the last”: the plain language controls. Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254, 112 S.Ct. 1146, 117 L.Ed.2d 391 (1992). The language of the regulation is clear. The reissuing agent and the reissuing underwriter shall charge the lower premium rate provided two requirements are met. First, a previous owner’s policy must have been issued insuring the seller or the mortgagor in the current transaction and, second, both the reissuing agent and the reissuing underwriter must retain for their files copies of the prior owner’s policy. Only upon satisfaction of both these requirements does the regulation not only permit, but require, the insurer to charge the lower premium. Should either or both of these provisions remain unsatisfied, the insurer would violate the regulation if it were to charge the lower rate.

The appellants argue this second provision is logically read to require the insurer to conduct a “reasonable search” for prior policies to protect eligible homeowners from being overcharged. However, there is no reasonable interpretation of this regulation that would mandate the insurer to conduct such a “reasonable search.” To so hold would require this court to look behind the face of the regulation for a legislative intent. This exceeds the scope of power granted to a court interpreting an unambiguous statute. See Blanton v. City of Pinellas Park, 887 So.2d 1224, 1230 (Fla.2004). To impose such a duty would also require this court to rewrite the regulation. That is not the function of the judiciary. The appellants further contend our holding today renders the reissue rate illusory by permitting the insurer to be willfully blind when presented with a prior policy. Should this claim prove true, it is more properly addressed on an individual basis based on specifically pled allegations. Crafting a statute to curb the potential abuse prophesied by the appellants is, again, the province of the legislature and not the judiciary.

AFFIRMED.

      . 690-186.003(2), Florida Administrative Code (2012), provides:
      (a) 1. The reissue premium charge for owner's, mortgage, and leasehold title insurance policies shall be:
      Per Thousand
      Up to $ 100,000 of liability written $3.30
      Over $100,000 and up to $1 million, add $3.00
      Over $1 million and up to $10 million, add $2.00
      Over $ 10 million, add $1.50
      2. The minimum premium shall be $100.00.
      (b) Provided a previous owner’s policy was issued insuring the seller or the mortgagor in the current transaction and that both the reissuing agent and the reissuing underwriter retain for their respective files copies of the prior owner’s policy, the reissue premium rates in paragraph (a) shall apply to:
      1. Policies on real property which is unimproved except for roads, bridges, drainage facilities, and utilities if the current owner’s title has been insured prior to the application for a new policy;
      2. Policies issued with an effective date of less than three years after the effective date of the policy insuring the seller or mortgagor in the current transaction; or
      3. Mortgage policies issued on refinancing of property insured by an original owner's policy which insured the title of the current mortgagor.
      (c)Any amount of new insurance, in the aggregate, in excess of the amount under the previous policy shall be computed at the original owner’s or leasehold rates, as provided in subsection (1).

      . It is important to note the regulation specifically uses the term “provided,” defined as:
      The word used in introducing a proviso (q.v.). Ordinarily it signifies or expresses a condition ... according to the context, it may import a covenant, or a limitation or qualification, or a restraint, modification, or exception to something which precedes.
      Black’s Law Dictionary 1102 (5th ed. 1979).


text:
    Kimberley JACKSON, Appellant, v. FLORIDA DEPARTMENT OF REVENUE, Appellee.
    No. 1D13-1457.
    District Court of Appeal of Florida, First District.
    June 7, 2013.
    Rehearing Denied Aug. 9, 2013.
    Jennifer R. Kuyrkendall, Child Support Hearing Officer.
    Kimberley Jackson, pro se, Appellant.

      Pamela Jo Bondi, Attorney General, and William H. Branch, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

DISMISSED. Snelson v. Snelson, 440 So.2d 477 (Fla. 5th DCA 1983).

BENTON, C.J, THOMAS and CLARK, JJ., concur.


text:
    Daniel Lee HODGES, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1152.
    District Court of Appeal of Florida, First District.
    June 10, 2013.
    Rehearing Denied Aug. 1, 2013.
    Bradley G. Johnson, Milton, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Petitioner filed a motion to modify his sentence in the trial court pursuant to Florida Rule of Criminal Procedure 3.800(c). The trial court denied the motion as untimely. We treat the petitioner’s notice of appeal as a petition for certiorari review and deny the petition. See Davis v. State, 745 So.2d 499 (Fla. 1st DCA 1999).

DENIED.

BENTON, C.J., THOMAS, and CLARK, JJ., concur.


author: CASANUEVA, Judge. WALLACE, Judge, ALTENBERND, Judge,

text:
    Andrea KIDDER, Petitioner, v. STATE of Florida, Respondent.
    No. 2D12-3535.
    District Court of Appeal of Florida, Second District.
    June 12, 2013.

      Keith W. Upson of The Upson Law Group, P.L., Fort Myers, for Petitioner.
    Sonya Rudenstine, Gainesville; James T. Miller, Jacksonville; and Michael Uffer-man, Tallahassee, for Amicus Curiae Florida Association of Criminal Defense Lawyers.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Jonathan P. Hurley, Assistant Attorney General, Tampa, for Respondent.
   CASANUEVA, Judge.

Andrea Kidder petitions this court for a writ of certiorari seeking to quash a discovery order that required her to disclose the results of a blood alcohol test. Because she was required to disclose the results of this scientific test pursuant to Florida Rule of Criminal Procedure 3.220(d) (1) (B) (ii), the discovery order did not depart from the essential requirements of law and the petition is therefore denied.

I. FACTS AND PROCEDURAL HISTORY

In November 2009, Ms. Kidder was involved in an automobile accident which resulted in the death of Bree Kelly. At the request of the Florida Highway Patrol, emergency medical service personnel obtained two blood samples from Ms. Kidder. The Florida Department of Law Enforcement (FDLE) analyzed one sample and determined that the alcohol content was 0.196 percent.

Ms. Kidder was thereafter charged by information with DUI manslaughter and vehicular homicide, and she elected to participate in pretrial discovery pursuant to rule 3.220(a). Ms. Kidder filed a motion to require FDLE to send the second blood sample to Wuesthoff Toxicology Laboratory to have the sample analyzed to determine its alcohol content. The trial court granted this motion and the second blood sample was sent to Wuesthoff for testing.

Thereafter the State moved to compel Ms. Kidder to provide it with the results of Wuesthoffs blood alcohol analysis pursuant to the reciprocal discovery provisions of rule 3.220(d)(l)(B)(ii). It argued that the rule requires a defendant, who has elected to participate in discovery, to disclose the results of scientific tests. The State further argued that the results of the scientific test did not meet the definition of work product as defined by rule 3.220(g)(1).

In opposition, Ms. Kidder asserted that the results of Wuesthoffs testing were protected work product and that compelling disclosure of the report would contravene the Fifth and Sixth Amendments to the United States Constitution. Ms. Kidder asserted that she did not intend to use the report at trial.

The trial court entered its order compelling Ms. Kidder to provide the State with a copy of Wuesthoffs report. We note that the report at issue is not included in the appendix and the transcript of the motion hearing does not indicate that the trial court viewed the report in camera or otherwise. However, Ms. Kidder does not assert that Wuesthoffs report contains the opinions, theories, or conclusions of her attorney or members of the attorney’s legal staff.

II. ANALYSIS

A. Certiorari Review

“A petition for writ of certiorari is appropriate to review a discovery order when the order departs from the essential requirements of law, causing material injury throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.” Nussbaumer v. State, 882 So.2d 1067, 1071 (Fla. 2d DCA 2004). The last two requirements of this test are jurisdictional. Barker v. Barker, 909 So.2d 333, 336 (Fla. 2d DCA 2005).

We agree that discovery of information that could be considered work product may cause such irreparable injury if disclosed. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla.1995). However, as discussed below, the Wuesthoff report does not contain work product.

B. Florida Rule of Criminal Procedure 3.220

Participation in the discovery process is not mandatory for a criminal defendant: “a defendant may elect to participate in the discovery process provided by these rules.... ” Fla. R. Crim. P. 3.220(a). Once this election occurs, it “triggers a reciprocal discovery obligation for the defendant” and both the prosecution and defendant are then bound “to all discovery procedures contained in these rules.” Id.

The defendant’s reciprocal discovery obligation pertinent to the case at bar is set forth in rule 3.220(d)(l)(B)(ii) and requires a defendant to disclose and permit the inspection and copying of “reports or statements of experts made in connection with the particular case, including results of ... scientific tests, experiments, or comparisons.” See Abdool v. State, 53 So.3d 208, 219-20 (Fla.2010) (applying rule 3.220(d)(l)(B)(ii) to penalty phase proceedings and holding that appellant was required to provide the State with raw data from his mental health expert). Based on the plain language of rule 3.220(d)(l)(B)(ii), Ms. Kidder was required to disclose to the State the results of the scientific test Wuesthoff conducted on the blood sample.

Ms. Kidder urges this court to interpret rule 3.220(d)(l)(B)(ii) to require disclosure of a scientific test only when a defendant intends to call the expert who conducted the test as a witness. We believe that this interpretation would be contrary to the plain language of the rule. See Scipio v. State, 928 So.2d 1138, 1144 (Fla.2006) (“Because full and fair discovery is essential to these important goals, we have repeatedly emphasized not only compliance with the technical provisions of the discovery rules, but also adherence to the purpose and spirit of those rules in both the criminal and civil context.”).

Rule 3.220(d) provides as follows:

Defendant’s Obligation.
(1) If a defendant elects to participate in discovery, either through filing the appropriate notice or by participating in any discovery process, including the taking of a discovery deposition, the following disclosures shall be made:
(A) Within 15 days after receipt by the defendant of the Discovery Exhibit furnished by the prosecutor pursuant to subdivision (b)(1)(A) of this rule, the defendant shall furnish to the prosecutor a written list of the names and addresses of all witnesses whom the defendant expects to call as witnesses at the trial or hearing. When the prosecutor subpoenas a witness whose name has been furnished by the defendant, except for trial subpoenas, the rules applicable to the taking of depositions shall apply.
(B) Within 15 days after receipt of the prosecutor’s Discovery Exhibit the defendant shall serve a written Discovery Exhibit which shall disclose to and permit the prosecutor to inspect, copy, test, and photograph the following information and material that is in the defendant’s possession or control:
(i) the statement of any person listed in subdivision (d)(1)(A), other than that of the defendant;
(ii) reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments, or comparisons; and
(iii) any tangible papers or objects that the defendant intends to use in the hearing or trial.

(Emphasis added.)

Subsection (d)(1)(B)®, by referencing subsection (d)(1)(A), requires a defendant to provide the State with the statements of any person the defendant plans to call as a witness. Subsection (d)(l)(B)(iii) also specifically states that a defendant must provide to the State any tangible papers or objects that the defendant intends to use in a hearing or trial. Conversely, subsection (d)(l)(B)(ii) does not restrict the disclosure of reports of experts to only those experts a defendant plans to call as a witness. We conclude that the rule is clear and unambiguous in requiring a defendant to disclose the results of a scientific test like the one at issue in the present case, regardless of whether the defendant anticipates calling the person who conducted the test as a witness. See Weston TC LLLP v. CNDP Mktg. Inc., 66 So.3d 370, 375 (Fla. 4th DCA 2011) (“When a rule is clear, and unambiguous, courts will not look behind the rule’s plain language or resort to rules of construction to ascertain intent.”).

C. Work Product

1. Federal and Civil Cases Involving Work Product

The Supreme Court first recognized the work product doctrine in a civil case, Hickman v. Taylor, 329 U.S. 495, 508, 67 S.Ct. 385, 91 L.Ed. 451 (1947), where the petitioner sought discovery of written and oral statements of witnesses in the respondent’s files, even though the identity of those witnesses was well known and their availability to the petitioner was unimpaired. The Court held that the petitioner’s attempt “to secure written statements, private memoranda and personal recollections prepared or formed by an adverse party’s counsel in the course of his legal duties” without a showing of necessity or justification, fell outside the area of proper discovery and “contravenes the public policy underlying the orderly prosecution and defense of legal claims.” Id. at 510.

Several years later in United States v. Nobles, 422 U.S. 225, 238, 95 S.Ct. 2160, 45 L.Ed.2d 141 (1975), the Supreme Court discussed the application of the work product doctrine in criminal cases, explaining that “[t]he interests of society and the accused in obtaining a fair and accurate resolution of the question of guilt or innocence demand that adequate safeguards assure the thorough preparation and presentation of each side of the case.”

At its core, the work-product doctrine shelters the mental processes of the attorney, providing a privileged area within which he can analyze and prepare his client’s case. But the doctrine is an intensely practical one, grounded in the realities of litigation in our adversary system. One of those realities is that attorneys often must rely on the assistance of investigators and other agents in the compilation of materials in preparation for trial. It is therefore necessary that the doctrine protect material prepared by agents for the attorney as well as those prepared by the attorney himself.

Id. 422 U.S. at 238-39, 95 S.Ct. 2160.

Florida recognizes two forms of work product: opinion work product and fact work product. “Fact work product traditionally protects that information which relates to the case and is gathered in anticipation of litigation.” S. Bell Tel. & Tel. Co. v. Deason, 632 So.2d 1377, 1384 (Fla.1994) (citing State v. Rabin, 495 So.2d 257 (Fla. 3d DCA 1986)). In comparison, opinion work product “consists primarily of the attorney’s mental impressions, conclusions, opinions, and theories.” Id.

The distinction between the two forms of work product becomes important when disclosure is sought. Fact work product can be discovered upon a determination by an opposing party of need and undue hardship. Id. Conversely, “opinion work product generally remains protected from disclosure.” Id.

2. Opinion Work Product Defined by Rule 3.220

Rule 3.220 specifically defines and excludes from discovery certain materials in criminal cases. Rule 3.220(g)(1) states that the following matters are not subject to disclosure: “Work Product. Disclosure shall not be required of legal research or of records, correspondence, reports, or memoranda to the extent that they contain the opinions, theories, or conclusions of the prosecuting or defense attorney or members of their legal staffs.” This rule specifically describes opinion work product and excludes it from discovery in criminal cases. See id.

In Smith v. State, 873 So.2d 585, 587-88 (Fla. 3d DCA 2004), the court found that the provisions of rule 3.220(g)(1) sheltered a twenty-two page psycho-social report and addendum “prepared by defense counsel with the assistance of other members of the defense team, that is in narrative form and is based on medical records, witness interviews, and mental health evaluations.” The report contained “a summary of witness statements, italicizing certain portions, which unavoidably combined a selection process achieved through an interpretative filter that emphasized certain information over other, thus disclosing counsel’s opinions and strategy.” 873 So.2d at 588.

We conclude that the lab report containing the results of the scientific test Wuesthoff conducted on the blood sample does not meet the definition of work product in rule 3.220(g)(1). The scientific report at issue was generated by Wuesthoff Toxicology Laboratory, not by defense counsel, and Ms. Kidder does not allege that the report contains the opinions, theories, or conclusions of her attorney or members of her attorney’s legal staff. See Bailey v. State, 100 So.3d 213, 217 (Fla. 3d DCA 2012) (rejecting appellant’s contention that raw data from the mental health expert who appellant intended to call as witnesses was work product).

3. Fact Work Product

Although rule 3.220 only includes in its definition of work product information that is typically considered opinion work product, it does address fact work product in two previously noted subsections. Subsection 3.220(d)(l)(B)(i) provides that a defendant must provide in discovery the statements of a person only if the defendant plans to call that person as a witness. Further, subsection 3.220(d)(l)(B)(iii) requires a defendant to provide tangible papers or objects only where the defendant intends to use such in a hearing or trial.

Conversely, subsection 3.220(d)(l)(B)(ii) specifically states that a defendant is required to disclose to the State a report of an expert, including results of scientific tests. This subsection does not require that the defendant anticipate calling the expert as a witness nor does it require the State to establish that it cannot obtain the information by any other means. The Supreme Court of Florida in Abdool, 53 So.3d at 219-20, held that the appellant was required to disclose to the State raw data relied upon by the appellant’s mental health expert. After determining that rule 3.220 applies in capital cases both in the guilt phase and the penalty phase, the court noted “Tule 3.220 spells out very specific discovery obligations by both sides when the defendant elects to participate in discovery.’ ” Id. at 219-20 (quoting Kearse v. State, 770 So.2d 1119, 1127 (Fla. 2000)).

Although here we are not in the context of the penalty phase of a death eligible case, this case is similar in the material sought to be disclosed. In both instances, the reciprocal discovery process requires the disclosure of the data, and Abdool supports the trial court’s order to disclose. See Bailey, 100 So.3d 213. Therefore, in the context of criminal proceedings, blood test results are not protected by a general claim of work product privilege.

We are not persuaded by the cases Ms. Kidder cites from other jurisdictions. In People v. Spiezer, 316 Ill.App.3d 75, 249 Ill.Dec. 192, 735 N.E.2d 1017, 1028 (2000), the court interpreted a criminal discovery rule similar to Florida’s but concluded that it did “not believe that the drafters” of the rule specifically intended to exclude reports of nontestifying, consulting experts from the work product doctrine. United States v. Walker, 910 F.Supp. 861, 863 (N.D.N.Y.1995), involved the admissibility, not the discoverability, of evidence the government wished to present at trial from experts retained by the appellee who the appellee did not plan to call as witnesses and who were cumulative of the government’s experts. In State v. Mingo, 77 N.J. 576, 392 A.2d 590, 592 (1978), the court found that the State did not have a justification for calling the appellee’s handwriting expert as a witness at trial where it was capable of obtaining its own expert.

D. Fifth Amendment

Ms. Kidder also asserts that the disclosure of the blood alcohol report violates the protection afforded her by the Fifth Amendment’s privilege against self-incrimination. We disagree. The privilege is personal to the accused and does not apply to the chemist who conducted the blood alcohol analysis. See Nobles, 422 U.S. at 233-34, 95 S.Ct. 2160 (holding that “disclosure of the relevant portions of the defense investigator’s report would not impinge on the fundamental values protected by the Fifth Amendment”); Parkin v. State, 238 So.2d 817, 820 (Fla.1970) (“The constitutional privilege against self-incrimination in history and principle seems to relate to protecting the accused from the process of extracting from his own lips against his will an admission of guilt.”).

E. Sixth Amendment

Ms. Kidder further contends that compelling a defendant to provide the results of a scientific test performed by an expert who is not expected to testify would hinder the defendant’s trial preparation and therefore his or her right to the effective assistance of counsel afforded by the Sixth Amendment. She contends that whenever it is necessary for a defense attorney to seek an independent scientific test as part of the attorney’s preparation for trial, the attorney possibly will be creating an unfavorable witness. We do not find merit in this argument because an accused is under no obligation and correspondingly has no constitutional right to participate in the discovery process.

Ms. Kidder is correct that the Sixth Amendment to the United States Constitution provides an accused in every criminal prosecution the right to the assistance of counsel, which is intended “to ensure a fair trial.” Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). To that end, the attorney has “a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process.” Id. 466 U.S. at 688, 104 S.Ct. 2052.

Furthermore, the State has the duty to provide a defendant with favorable evidence upon request where the evidence is material to guilt and the failure of the State to do so violates the defendant’s due process rights. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). However, the Supreme Court has held that “[t]here is no general constitutional right to discovery in a criminal case, and Brady did not create one; ... ‘the Due Process Clause has little to say regarding the amount of discovery which the parties must be afforded....’” Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 837, 51 L.Ed.2d 30 (1977) (quoting Wardius v. Oregon, 412 U.S. 470, 474, 93 S.Ct. 2208, 37 L.Ed.2d 82 (1973)); see generally Taylor v. Illinois, 484 U.S. 400, 415, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (holding that the exclusion of a defense witness’s testimony as a sanction for a discovery violation did not violate the Compulsory Process Clause of the Sixth Amendment).

Florida has provided a procedure to engage in criminal pretrial discovery, and Ms. Kidder could have elected not to participate in the discovery process. See Fla. R. Crim. P. 3.220(a). By electing to participate in the discovery process, Ms. Kidder was able to obtain evidence in the State’s possession, more than that required by Brady. The second blood sample was originally in the possession of the State and the State could have had both blood samples analyzed. Ms. Kidder had the State’s evidence transferred to her for what her motion classified as an “independent analysis.” Nowhere in Ms. Kidder’s motion does she assert that the results of the laboratory test are for her sole use and protected from disclosure to the State. We fail to see how Ms. Kidder’s due process right to a fair trial has been impaired. See Commonwealth v. Paszko, 391 Mass. 164, 461 N.E.2d 222, 237 (1984) (concluding that criminal procedure rules favoring liberal discovery serves a truth-enhancing purpose that outweigh “any resulting inconvenience or potential disincentive to lawyers who obtain and preserve such statements in written form”).

Nevertheless, we recognize the decision of whether to engage in the discovery process may present defense counsel with a Hobson’s choice. To elect to participate in discovery allows an accused, such as Ms. Kidder, the ability to view the State’s evidence. In return, however, the State, as permitted by the discovery rule, is entitled to the same. While such an exchange may well promote a fair trial, for defense counsel charged with the duty to effectively assist the client, it may be difficult to reconcile the duty to defend with the duty to disclose. It is likely that the results of the second blood test will not aid Ms. Kidder but will aid the State. We can envision circumstances where counsel may not desire to engage in discovery under rule 3.220. However, the State’s lab report, similar to Wuesthoffs lab report which Ms. Kidder argues should be unavailable to the State, was made available to defense counsel. Ms. Kidder “is not constitutionally entitled to a discovery system that operates only to [her] benefit.” Paszko, 461 N.E.2d at 237.

III. CONCLUSION

Pursuant to rule 3.220(d)(l)(B)(ii), Ms. Kidder was required to disclose to the State the results of the scientific test Wuesthoff conducted on the blood sample, and consequently, the trial court’s discovery order did not depart from the essential requirements of law. We add that this result should not be construed as permitting the introduction of the results of the second blood test in the State’s case-in-chief. Other issues may yet remain, including but not limited to whether such evidence is cumulative and whether it would constitute improper bolstering.

We deny Ms. Kidder’s petition for writ of certiorari.

WALLACE, J., Concurs in the result with opinion.

ALTENBERND, J., Concurs with opinion.

WALLACE, Judge,

Concurring in the result.

The plain language of rule 3.220(d)(l)(B)(ii) supports the trial court’s order requiring Ms. Kidder to provide the State with a copy of Wuesthoff s report concerning the results of the blood alcohol analysis. If Ms. Kidder had not elected to participate in reciprocal discovery under the rule, the entry of an order requiring the defense to disclose to the prosecution evidence that it did not intend to use at trial would likely violate Ms. Kidder’s rights under the United States Constitution. See generally, Eric D. Blumenson, Constitutional Limitations on Prosecuto-rial Discovery, 18 Harv. C.R.-C.L. L.Rev. 123 (1983) (discussing the constitutional implications of discovery by the prosecution and the limitations on such discovery imposed by the United States Constitution); Robert P. Mosteller, Discovery Against the Defense: Tilting the Adversarial Balance, 74 Calif. L.Rev. 1567 (1986) (discussing limitations on discovery by the prosecution against the defendant imposed by the Fifth and Sixth Amendments to the United States Constitution, attorney-client privilege, and the work product doctrine). However, as Judge Ca-sanueva observes in his thoughtful opinion for the majority, Ms. Kidder had the option of electing not to participate in the discovery process. If Ms. Kidder had declined to participate in reciprocal discovery, she would not have been required to give the prosecution materials such as the results of Wuesthoff s blood alcohol analysis. Because the obligation to turn over the results of the test flowed solely from Ms. Kidder’s voluntary election to obtain the advantages of receiving discovery from the prosecution, I concur in the result reached by the majority. I also agree that the results of Wuesthoffs blood alcohol analysis do not constitute work product that is protected from discovery under rule 3.220(g)(1).

The Supreme Court of Florida first adopted rules of criminal procedure that included provisions for reciprocal discovery in 1967. The new rules became effective on January 1, 1968. In re Florida Rules of Criminal Procedure, 196 So.2d 124, 124 (Fla.1967). Rule 1.220 addressed the subject of “DISCOVERY.” Id. at 151-55. Under subsection (a) of this new rule, the defendant could obtain discovery from the State by motion. If the court required the prosecution to produce test results and reports and documents and other tangible objects for inspection, copying, and photographing, then the defendant had the obligation under subsection (c) of the new rule to disclose similar items to the prosecution:

(c) Reciprocal Discovery .-If the court grants relief sought by the defendant under (a)(2), or (b) of this rule, it shall condition its order by requiring that the defendant permit the state to inspect, copy or photograph scientific or medical reports, books, papers, documents, or tangible objects which the defendant intends to produce at the trial and which are within his possession, custody, or control.

Id. at 151. Notably, the provisions of the new reciprocal discovery rule concerning the reports or statements of experts did not require the defendant to provide the prosecution with such materials unless the defendant intended to use them at trial.

In 1972, the Supreme Court of Florida made extensive amendments to the criminal rules. The changes became effective on February 1, 1973. In re Florida Rules of Criminal Procedure, 272 So.2d 65, 65 (Fla.1972). The amendments to the discovery rule eliminated the need for court intervention and made the reciprocal discovery provisions self-executing. Id. at 105-10. Under subsection 3.220(b)(4)(ii) of the 1972 rules, a defendant electing to participate in reciprocal discovery was required to disclose to the prosecution “[Reports or statements of experts made in connection with the particular case, including results of physical or mental examinations and of scientific tests, experiments or comparisons.” Id. at 107. The 1972 amendment to the discovery rule deleted the limitation providing that the defendant was required to produce reports or statements of experts only if he or she intended to use such materials at trial. Neither the Supreme Court of Florida nor the Special Advisory Committee addressed the reason for this major change in the extent of the defendant’s obligation to provide reciprocal discovery to the prosecution. The absence of any comment on such a major change raises the question of whether it may have resulted from an oversight. Although the court has amended the reciprocal discovery rules several times since the 1972 revision, the defendant’s obligation to provide reports and statements of experts — without regard to whether the defense intends to use them at trial — has remained unchanged in the rule to the present.

In the forty years during which the reciprocal discovery rules have been in their current form, the Florida courts have disposed of millions of criminal cases. It is remarkable that during this forty-year period, there has not been — until now — a single reported Florida case in which the State has sought the entry of an order requiring the defense to disclose to the prosecution the report or statement of an expert that the defendant did not intend to use at a hearing or in trial. Here, the significance of this fact lies not in what has happened but instead in what has not happened. Thus it is appropriate to ask why — over a forty-year period involving millions of criminal prosecutions — there has been no reported instance in Florida of an effort by the prosecution to obtain reports or statements of experts that the defendant does not intend to use at trial.

I suggest that there are three possible answers to this question. These explanations overlap; they are not mutually exclusive. First, it may be relatively easy for the defense to evade any obligation under the reciprocal discovery rule to disclose such materials to the prosecution. Defense counsel may request the expert to make any report of a “bad” result orally and to provide a written report only if the result is favorable to the defense. See, e.g., People v. Lamb, 136 Cal.App.4th 575, 40 Cal.Rptr.3d 609, 612 (2006) (noting a statement by a defense accident reconstruction expert “that written reports are sometimes not prepared in order to avoid discovery”). Second, despite the plain language of rule 3.220(d)(l)(B)(ii), prosecutors, defense attorneys, and trial judges may share an assumption that a defendant’s obligation to provide reciprocal discovery under the rule is limited to items that the defense intends to use at trial. Such an understanding would be consistent with Federal Rule of Criminal Procedure 16(b)(1)(B) (the comparable federal rule) and with Florida Rule of Civil Procedure 1.280(b)(5)(B). Third, under our ac-cusatorial system of criminal justice, the defendant generally may not be compelled to assist the prosecution in proving his or her guilt. Instead, we have traditionally relied on “a judicial system in which even the guilty are not to be convicted unless the prosecution ‘shoulderfs] the entire load.’ ” Tehan v. United States ex rel. Shott, 382 U.S. 406, 415, 86 S.Ct. 459, 15 L.Ed.2d 453 (1966); cf. Blumenson, supra at 176-77 (discussing the extent to which the decision in Williams v. Florida, 399 U.S. 78, 90 S.Ct. 1893, 26 L.Ed.2d 446 (1970), and rules authorizing prosecutorial discovery of the defense case have made inroads on the accusatorial system). These fundamental tenets of our criminal justice system are so ingrained in lawyers that they may engender a certain restraint that disinclines prosecutors from seeking the production of materials that the defense does not intend to use at trial.

Whatever the reason for the absence of any reported appellate opinions in Florida on this topic, the publication of the court’s decision in this case is likely to change the legal landscape for both prosecutors and defense counsel. Prosecutors will now be encouraged to seek, and defense counsel may be obligated to disclose, the reports and statements of experts whether or not the defense intends to use them at trial. The decision in this case may provide the prosecution with a limited and short-term tactical advantage in Ms. Kidder’s case. However, I believe that our decision will have negative effects in the long term for the criminal defense bar, the State, and the courts.

The effect of our decision will be to confront defense counsel with a dilemma. In most instances, defense counsel will wish to participate in reciprocal discovery to obtain the names and addresses of the State’s witnesses and to learn the nature of the State’s evidence. Generally speaking, such information is essential to the effective representation of the client. Nevertheless, a decision made at the outset of the case to participate in reciprocal discovery may subsequently require defense counsel to produce a report or statement of an expert that is damaging to the defense even if defense counsel does not intend to use the report or statement at trial. Early in the progress of the case, when defense counsel generally makes the decision to participate in reciprocal discovery, he or she may be unaware that a consultation with an expert will become necessary. Defense counsel will almost surely be unaware of the nature of any potential test results. In the event defense counsel must disclose an adverse test result or report to the prosecution, the defendant may blame defense counsel for electing to participate in reciprocal discovery. On the other hand, an election not to participate in reciprocal discovery may limit defense counsel’s ability to investigate fully the State’s case against his or her client and to provide effective representation. Under these circumstances, defense counsel faces the risk that the defendant will fault him or her no matter which course counsel decides to pursue.

However, the impact of the dilemma described above will not be limited to the criminal defense bar. The unfortunate dynamics of this situation are likely to give rise to a new variety of ineffective-assistance-of-counsel claims under rule 3.850. Everyone involved — defense counsel, prosecutors, and the courts — will be required to devote scarce resources to addressing such claims. To the extent that the reports and statements of experts constitute work product, they will remain off limits to prosecutors. To the extent that such reports and statements are not work product — as in this case — the State may win a limited, short-term advantage through the discovery of materials that the defense does not intend to use at trial. Nevertheless, I doubt that any such short-term tactical advantage in a particular case warrants the additional use of scarce resources in the criminal justice system as a whole that the court’s decision may cause.

For the reasons outlined above, I suggest that the Criminal Procedure Rules Committee of The Florida Bar may wish to consider whether rule 3.220(d)(l)(B)(ii) should be amended to limit the defense obligation under reciprocal discovery to provide the prosecution with reports or statements of experts. Such a limitation might require the defendant to disclose the reports and statement of experts only if the defendant intends to use such materials at trial or if the defendant intends to call the expert who prepared the report as a witness and the subject matter of the report relates to the expert’s testimony. Such an amendment would make the defendant’s obligation to disclose such materials under the Florida rules comparable to the defendant’s obligation under the federal criminal rules. See Fed.R.Crim.P. 16(b)(1)(B). Such an amendment would avoid the dilemma for defense counsel described above and should not hinder the prosecution in the preparation of its cases.

ALTENBERND, Judge,

Concurring.

I fully concur in Judge Casanueva’s excellent opinion for the court. I also share many of the concerns addressed by Judge Wallace. Given the effort that both judges have devoted to this case, it should be obvious that we are troubled by the application of this rule of procedure in this context. Intuitively, most legal minds would initially believe that when the government compels you to provide your own blood as evidence against you, you ought to be entitled to receive a private report concerning the contents of that blood. See art. I, § 23, Fla. Const.

I would underscore our narrow holding: this court cannot prevent the State from seeking this report or the trial court from ordering its production to the State in the context of a common law petition for cer-tiorari. If the State chooses to obtain and review this report, it will undoubtedly create additional issues for direct appeal that can be assessed under a different standard of review. Absent exceptional circumstances, if the trial court permits the State to use this second report at trial or allows the State to argue that “even the defendant’s own expert concludes she was intoxicated,” it is quite possible that this case may be tried more than once.

      . Because this case is being reviewed by this court via a certiorari proceeding, we do not have a full record on appeal and must rely on the appendix to the petition.

      . We note that, in comparison, Federal Rule of Criminal Procedure 16(b)(1)(B) specifically requires a defendant to disclose the results of any scientific test or experiment only if "(i) the item is within the defendant’s possession, custody, or control; and (ii) the defendant intends to use the item in the defendant's case-in-chief at trial, or intends to call the witness who prepared the report and the report relates to the witness’s testimony.”

      . It does not appear that Ms. Kidder requested the trial court to conduct an in camera review of the toxicology report.

      . By contrast, Florida Rule of Civil Procedure 1.280(b)(5)(B) specifically provides that a party may only discover facts that are known to an expert hired in preparation for trial but who is not expected to be called as a witness at trial, only after demonstrating exceptional circumstances which make it impracticable to obtain such facts by other means.

      . The Special Advisory Committee provided "Committee Notes” on the revision to the criminal rules of procedure.

      . In fiscal year 2011-2012 alone, the Florida courts disposed of 990,159 criminal cases. This total includes 187,330 circuit court cases and 802,829 county court cases. See Fla. Office of the State Courts Adm'r, FY 2011-12 Statistical Reference Guide, 3-1 and 7-1, available at http:/ Avww.flcourts.org/gen_ public/stats/reference_guidel l_12.shtml and 18.2.3(a), 169-70.

      . Of course, the defendant’s obligation to disclose the reports and statements of experts will be limited to the extent that such materials constitute work product under rule 3.220(g)(1).

      . The State had already obtained an analysis by FDLE of one of the blood samples. The result of the blood alcohol analysis prepared for the State by FDLE was 0.196, more than double the amount necessary to establish an unlawful blood alcohol level. See § 316.193(1 )(b), Fla. Stat. (2009). At the hearing on the State's motion to compel reciprocal discovery, the trial judge asked the prosecutor, "Does the State have some corn-pelling need to get [the Wuesthoff report]?” The prosecutor responded, "Well, yes, I would think so, Your Honor, because ... [i]t corroborates whether or not our — our blood test is correct ... which we have disclosed to [defense counsel].” The prosecutor also said, "And I suspect that [defense counsel] may use some of the information that he has in order to challenge our blood test.” However, the prosecutor did not explain why there was any reason to doubt the accuracy of the FDLE analysis. And Ms. Kidder’s counsel represented to the trial court that he did not intend to use the Wuesthoff report at trial.

      . The dilemma the court's decision creates is similar to the dilemma defense counsel occasionally faced before the Supreme Court of Florida amended rule 3.250 and added rule 3.381 to eliminate the "sandwich.” See In re Amendments to the Florida Rules of Criminal Procedure — Final Arguments, 957 So,2d 1164 (Fla.2007). Before the amendments to the rules, circumstances might force defense counsel to choose between presenting evidence other than the defendant’s testimony and retaining the first and last closing argument. See Van Poyck v. State, 694 So.2d 686, 697 (Fla.1997); Diaz v. State, 747 So.2d 1021, 1026 (Fla. 3d DCA 1999); Cole v. State, 700 So.2d 33, 36 (Fla. 5th DCA 1997); Nicole Velasco, Taking the "Sandwich" Off the Menu: Should Florida Depart from Over ISO Years of Its Criminal Procedure and Let Prosecutors Have the Last Word?, 29 Nova L.Rev. 99, 116-18 (2004). One might argue that the elimination of the "sandwich” benefitted members of the criminal defense bar by relieving them of a tactical decision that was occasionally difficult to make.


author: KELLY, Judge.

text:
    Nancy HAVENS, D.D.S., Appellant, v. COAST FLORIDA, P.A., a Florida corporation, Appellee.
    No. 2D12-1047.
    District Court of Appeal of Florida, Second District.
    June 12, 2013.
    Michael L. Morgan of Morgan Dramis, Sarasota, for Appellant.
    Denise L. Wheeler and Christopher D. Donovan of Roetzel & Andress, LPA, Naples, for Appellee.
   KELLY, Judge.

Nancy Havens, D.D.S., challenges the final order dismissing with prejudice her second amended complaint against Coast Florida, P.A. (Coast). We reverse because Dr. Havens’ complaint sufficiently alleged a cause of action for breach of an employment contract to survive a motion to dismiss.

Dr. Havens began working as a dentist for Coast in 1996. In 2007, Coast and Dr. Havens entered into a five-year employment agreement. Three years later, Coast’s attorney telephoned Dr. Havens and informed her that, effective immediately, she was suspended without pay from practicing dentistry for Coast while Coast conducted an investigation. Coast’s attorney instructed Dr. Havens that she was to vacate the office and that she was not to seek employment elsewhere because she remained subject to the employment agreement’s noncompete provision.

Dr. Havens notified Coast that its actions constituted a breach of the written employment agreement and that at a minimum, her compensation must be reinstated to avoid an action for breach of contract. When Coast refused, Dr. Havens resigned from her employment and filed suit. Count I of the complaint alleged that Coast breached the employment agreement by discontinuing Dr. Havens’ compensation and by failing to provide written notice of the suspension. In response, Coast moved to dismiss the complaint on the ground that the employment agreement did not contain any provisions regarding compensation to a suspended employee and as such there could be no breach. The trial court granted Coast’s motion to dismiss and gave Dr. Havens leave to amend.

Dr. Havens filed an amended complaint alleging the existence of a contract, a breach of the contract, and damages resulting from the breach. She added a count alleging that Coast’s oral instructions that she would be suspended without pay constituted an anticipatory breach. Coast again moved to dismiss the complaint on the ground that there could be no breach of the employment agreement by suspending Dr. Havens without notice or pay because the contract was silent as to suspensions. The court granted Coast’s motion to dismiss the amended complaint and again gave Dr. Havens leave to amend.

In her second amended complaint, Dr. Havens maintained the counts for breach of contract and anticipatory breach and added counts for de facto/constructive termination and breach of the implied duty of good faith and fair dealing. The constructive termination count alleged that Coast’s actions effectively terminated Dr. Havens by discontinuing her compensation. The count for breach of the implied duty of good faith and fair dealing alleged that Coast’s actions violated the duty with regard to the provisions defining compensation, hours of work, length of commitment, and the procedure for termination.

Coast filed its third motion to dismiss. After a hearing on the motion, the court granted Coast’s motion with prejudice. Dr. Havens appeals the final order of dismissal.

“In reviewing an order dismissing a complaint for failure to state a cause of action this court must look only to the four corners of the complaint, accepting the allegations of the complaint as true and resolving all reasonable inferences in favor of the plaintiff.” Mettler, Inc. v. Ellen Tracy, Inc., 648 So.2d 253, 255 (Fla. 2d DCA 1994) (citing Londono v. Turkey Creek, Inc., 609 So.2d 14 (Fla.1992); Orlando Sports Stadium,, Inc. v. State ex rel. Powell, 262 So.2d 881 (Fla.1972); Drew v. Knowles, 511 So.2d 393, 395 (Fla. 2d DCA 1987)); see MEBA Med. & Benefits Plan v. Lago, 867 So.2d 1184, 1186 (Fla. 4th DCA 2004). To state a cause of action, a complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief. Fla. R. Civ. P. 1.110(b).

A cause of action for breach of contract has three elements: (1) a valid contract, (2) a material breach, and (3) damages. Rollins, Inc. v. Butland, 951 So.2d 860, 876 (Fla. 2d DCA 2006). As to the first element, Dr. Havens’ complaint alleged that Coast and she entered into a valid employment agreement. The mutual obligations between the parties were that Dr. Havens promised to perform dentistry exclusively for Coast and to forgo all other employment opportunities for five years and that in exchange, Coast promised to provide a facility for Dr. Havens to perform and to compensate Dr. Havens for the specified term.

As to the second element, the complaint alleged that Coast materially breached the agreement by verbally notifying Dr. Havens that she would be suspended without pay effective immediately and by instructing Dr. Havens to vacate the workplace. The complaint points to Coast’s failure to perform its obligations under section 1, which sets the hours of her employment; section 3, which sets the length of the agreement at five years unless “terminated earlier in accordance with this agreement”; section 7, which allows immediate termination only for “cause”; and section 15, which requires all notices and communication to be in writing. It also alleged a breach of the terms of compensation. As such, the trial court’s order erroneously finds that the complaint “failed to allege a breach of any particular terms of the employment agreement.”

Finally, the complaint sufficiently pleaded the third element, damages. The complaint alleges that Dr. Havens was suspended without pay and was prohibited by the employment agreement from seeking other employment. Her damages include lost income anticipated throughout the balance of the term of the employment agreement.

The trial court erred in finding that Coast was free to suspend Dr. Havens without pay simply because the employment agreement was “silent as to suspensions.” By doing so, the court improperly attributed a substantive right into the contract that is absent from the employment agreement. Having authored the agreement, any ambiguity in the agreement must be construed against Coast. See City of Homestead v. Johnson, 760 So.2d 80, 84 (Fla.2000) (“An ambiguous term in a contract is to be construed against the drafter.”).

Accordingly, we reverse the final order of dismissal.

CASANUEVA and MORRIS, JJ„ Concur.


author: NORTHCUTT, Judge.

text:
    R.A., Appellant, v. STATE Of Florida, Appellee.
    No. 2D12-4819.
    District Court of Appeal of Florida, Second District.
    June 12, 2013.

      Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and C. Suzanne Bechard, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

R.A., a juvenile, was adjudicated delinquent and committed to a moderate-risk facility. The juvenile court ordered this placement despite the recommendation of the Department of Juvenile Justice (DJJ) that R.A. be placed on probation. R.A. correctly contends, and the State concedes, that the juvenile court’s reasons for the deviation were insufficient under E.A.R. v. State, 4 So.3d 614 (Fla.2009). Accordingly, we reverse and remand for further proceedings.

In exchange for the State’s dismissal of several other offenses, R.A. entered pleas in three cases to solicitation to commit robbery, theft of a firearm, misdemeanor battery, and resisting without violence. The juvenile court adjudicated him delinquent and committed him to the custody of the DJJ for placement in a level six, moderate-risk residential facility. In support of its placement decision, the court quoted from a June 2012 comprehensive evaluation that recommended R.A.’s placement in a residential setting. However, in an August 2012 amended predisposition report (PDR), the DJJ recommended that R.A. be placed on probation. It repeated that recommendation at R.A.’s September 2012 disposition hearing, and the State agreed. R.A.’s attorney objected to the court’s deviation from the DJJ’s recommendation, citing E.A.R.

In E.A.R., the supreme court held that when a juvenile court decides to place a juvenile who has been adjudicated delinquent on a restrictiveness level different from the one recommended by the DJJ, it must

(1) Articulate an understanding of the respective characteristics of the opposing restrictiveness levels including (but not limited to) the type of child that each restrictiveness level is designed to serve, the potential “lengths of stay” associated with each level, and the divergent treatment programs and services available to the juvenile at these levels; and
(2) Then logically and persuasively explain why, in light of these differing characteristics, one level is better suited to serving both the rehabilitative needs of the juvenile — in the least restrictive setting — and maintaining the ability of the State to protect the public from further acts of delinquency.
Simply listing “reasons” that are totally unconnected to this analysis does not explain why one restrictiveness level is better suited for providing the juvenile offender “the most appropriate disposi-tional services in the least restrictive available setting.” § 985.03(21), Fla. Stat. (2007) (emphasis supplied)....

Id. at 638. The juvenile court’s departure reasons “must ‘establish by a preponderance of the evidence why the court is disregarding the assessment of the child and the restrictiveness level recommended by the [DJJ].’ ” Id. (alteration in original) (quoting § 985.433(7)(b), Fla. Stat. (2007)). The supreme court specifically held that the juvenile court’s mere regurgitation or parroting of information in the DJJ’s comprehensive assessment and PDR is insufficient to establish acceptable reasons why the court is disregarding those documents and the DJJ’s recommended disposition. Id.

[I]nstead, the juvenile court’s stated “reasons,” must provide a legally sufficient foundation for “disregarding” the DJJ’s professional assessment and PDR by identifying significant information that the DJJ has overlooked, failed to sufficiently consider, or misconstrued with regard to the child’s programmatic, rehabilitative needs along with the risks that the unrehabilitated child poses to the public.

Id. at 638.

Under E.A.R., the juvenile court in this case abused its discretion by deviating from the DJJ’s recommended placement based on factors already considered by the DJJ. Therefore, we reverse the order of commitment and remand for a new disposition hearing. If the court again concludes that it should deviate from the DJJ’s placement recommendation, it must make the findings required by E.A.R. If it cannot do so, it must place R.A. on probation as recommended by the DJJ. See J.H. v. State, 100 So.3d 1236, 1238 (Fla. 2d DCA 2012); N.P. v. State, 18 So.3d 735, 738 (Fla. 2d DCA 2009).

Reversed and remanded with directions.

DAVIS and SLEET, JJ., Concur.

      . The PDR is the culmination of the assessment process juvenile offenders must undergo upon entering the juvenile justice system. § 985.14(3)(a), Fla. Stat. (2012); E.A.R., 4 So.3d at 620-21. It contains the DJJ’s professional recommendation for an appropriate disposition. 4 So.3d at 620.


text:
    Emmett W. CALDWELL, Appellant, v. The WENDY’S COMPANY and Wendium of Florida, Inc., Appellee.
    No. 3D13-88.
    District Court of Appeal of Florida, Third District.
    June 12, 2013.
    Rehearing Denied July 12, 2013.
    Emmett W. Caldwell, in proper person.
    Marlow Connell Abrams Adler Newman & Lewis, and Jennifer A. Hoffman and Anthony S. Hearn, Coral Gables, for appel-lee.
    Before WELLS, C.J., and LOGUE J., and SCHWARTZ, Senior Judge.
   PER CURIAM.

Affirmed. See Fla. R.App. P, 9.315(a).