text:
    In re AMENDMENTS TO FLORIDA RULE OF APPELLATE PROCEDURE 9.130.
    No. SC13-1493.
    Supreme Court of Florida.
    Nov. 13, 2014.
    Wendy S. Loquasto, Chair, Appellate Court Rules Committee, Fox & Loquasto P.A., Tallahassee, FL, Eduardo I. Sanchez, Past Chair, Appellate Court Rules Committee, Miami, FL, John F. Harkness, Jr., Executive Director, and Heather Savage Telfer, Bar Staff Liaison, The Florida Bar, Tallahassee, FL, for Petitioner.
   PER CURIAM.

We have for consideration the out-of-cycle report of proposed amendments to Florida Rule of Appellate Procedure 9.130 (Proceedings to Review Non-Final Orders and Specified Final Orders), filed by The Florida Bar’s Appellate Court Rules Committee (Committee). See Fla. R. Jud. Admin. 2.140(f). We have jurisdiction. See art. V, § 2(a), Fla. Const. As discussed below, we adopt the amendment to rule 9.130(a)(3)(C)(x) as proposed by the Committee; but we modify the proposed amendment to rule 9.130(a)(3)(C)(xi) to authorize appeals of nonfinal orders that determine, as a matter of law, that a party is not entitled to sovereign immunity.

BACKGROUND

The Committee proposes amendments to rule 9.130 in response to a request by the Court in Keck v. Eminisor, 104 So.3d 359 (Fla.2012). In Keck, the Court requested that the Committee “submit a proposed narrow amendment to rule 9.130 addressing the. rule change mandated by [that] decision,” id. at 366, allowing for interlocutory review “where an individual defendant who claims immunity under [section] 768.28(9)(a)[, Florida Statutes,] is denied that immunity and the issue turns on a matter of law.” Id. at 369. In the concurring opinion, a majority of the Court further recommended that the Committee “undertake a comprehensive review of whether the categories of non-final orders in rule 9.130(a)(3) should be expanded to include the denial of any claim of immunity where the question presented is solely a question of law.” Id. at 370 (Pariente, J., concurring with an opinion in which Lewis, Labarga, and Perry, JJ., concur).

The Committee submitted the proposals without publishing them for comment. The Board of Governors of The Florida Bar unanimously approved the proposals. After the proposals were filed, the Court published them for comment. The Court received no comments.

AMENDMENTS

Rule 9.130(a)(3) (Applicability) specifies the types of nonfinal orders that can be appealed to the district courts. We add a new subdivision (a)(3)(C)(x), as proposed by the Committee, to authorize appeals from nonfinal orders which determine “that, as a matter of law, a party is not entitled to immunity under section 768.28(9), Florida Statutes.” Additionally, the Committee proposes adding new subdivision (a)(3)(C)(xi) to authorize appeals from nonfinal orders which determine that, as a matter of law, a party is not entitled to any immunity from suit not otherwise addressed in this rule. However, because we have concerns that claims pertaining to immunity as a whole may be too broad, we modify the Committee’s proposal to authorize appeals from nonfinal orders which determine, as a matter of law, that a party is not entitled to sovereign immunity.

CONCLUSION

Accordingly, we amend Florida Rule of Appellate Procedure 9.130 as reflected in the appendix to this opinion. New language is indicated by underscoring; deletions are indicated by struck-through type. The amendments shall become effective January 1, 2015, at 12:01 a.m.

It is so ordered.

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

APPENDIX

RULE 9.130. PROCEEDINGS TO REVIEW NON-FINAL ORDERS AND SPECIFIED FINAL ORDERS

(a) Applicability.

(l)-(2) [No Change]
(3) Appeals to the district courts of appeal of non-final orders are limited to those that
(A)-(B) [No Change]
(C) determine
(i)-(vii) [No Change]
(viii) that a governmental entity has taken action that has inordinately burdened real property within the meaning of section 70.001(6)(a), Florida Statutes; or
(ix) the issue of forum non conve-niens!
(x) that, as a matter of law, a party is not entitled to immunity under section 768.28(9), Florida Statutes; or
(xi) that, as a matter of law, a party is not entitled to sovereign immuni-⅛
(D) [No Change]
(4) — (6) [No Change]
(b)-(h) [No Change]
Committee Notes

1977-2008 Amendments. [No Change]


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The FLORIDA BOARD OF BAR EXAMINERS re J.R.B.
    No. SC14-759.
    Supreme Court of Florida.
    Nov. 20, 2014.

      Daryl M. Manning, Chair, Tampa, FL, and Michele A. Gavagni, Executive Director, and Robert G. Blythe, General Counsel, Florida Board of Bar Examiners, Tallahassee, FL, for Petitioner.
    John A. Weiss of John A. Weiss, P.A., Tallahassee, FL, for Respondent.
   PER CURIAM.

The Florida Board of Bar Examiners (“Board”) has filed a “Report and Recommendation” regarding the application of J.R.B. for admission to The Florida Bar. See art. Y, § 15, Fla. Const. The Board recommended that J.R.B. be conditionally admitted, subject to the terms and conditions set forth in the Board’s Report. See Fla. Bar Admiss. R. 3-22.5(b) & 5-15. The Court disapproves the Board’s recommendation and hereby denies J.R.B. admission to The Florida Bar now and at any time in the future.

BACKGROUND

J.R.B. (“Applicant”) received his law degree in April 2005 and he successfully completed all parts of the Florida Bar examination in February 2006. In his bar application, J.R.B. reported that in 2002 he was found to have defrauded his former employer, Florida State University, of $54,046. He had been adjudicated guilty on five felony counts of Grand Theft. J.R.B. also pled no contest to forty-five counts of misdemeanor Petit Theft, reduced from felony charges of forgery and uttering, and adjudication was withheld. He was sentenced to five months’ incarceration and five years of probation, with early termination upon restitution in full. Applicant served his jail term and paid restitution in full. By order dated March 25, 2004, the sentencing judge terminated his probation early. In February 2005, shortly before he received his law degree, his civil rights were restored.

In addition, J.R.B. reported filing for Chapter 7 bankruptcy in July 2004 and listed $40,210 in debt. He asserted the bankruptcy was the result of his arrest and subsequent resignation from his position at Florida State University. Applicant’s debts were discharged in November 2004.

Upon review of J.R.B.’s file, the Board called for a hearing. J.R.B. appeared before a division of the Board for an investigative hearing on May 12, 2006. Following the investigative hearing, the Board determined that Specifications should be prepared and served upon Applicant and that the matter of his character and fitness be considered at a formal hearing.

Specifications were filed against J.R.B. in June 2006, regarding his 2002 felony arrest for stealing funds while employed at Florida State University; unprofessional and irregular conduct while employed at Florida State University resulting in two formal reprimands and numerous warnings; and his failure to timely amend his law school application to report the arrest. After J.R.B. filed an Answer to Specifications, the Office of General Counsel and Applicant agreed to resolve the case by a consent judgment. In September 2006, the Board approved the consent judgment for a three-year denial of Applicant’s admission to The Florida Bar.

In October 2009, J.R.B. executed an updated Florida Bar Application. He reported that his employment as an online professor of Axia College of University of Phoenix was terminated in November 2007 (which was two years before he reported it). According to Applicant, a student who was displeased with his comments on her assignment performed an Internet search of Applicant’s name and discovered news articles related to his arrest while he was employed at Florida State University. According to J.R.B., the student posted the articles and other comments within the online course chat room. As a result, Axia College suspended him from teaching when he admitted that the information was accurate. Thereafter, J.R.B. was removed from his position pending an investigation.

After reviewing J.R.B.’s updated file, the Board filed a new Specification to consider his character and fitness. The new Specification was filed against J.R.B. in March 2011, regarding his failure to disclose to Axia College of University of Phoenix that he was a convicted felon because he thought he would not be accepted for employment. J.R.B. filed an Answer to the Specification in. which he admitted to the allegations. Following a formal hearing in September 2011, the Board found J.R.B. failed to establish his rehabilitation by clear and convincing evidence. The Board determined to withhold J.R.B.’s admission for one year and, at the conclusion of the one-year period, he would submit a report to the Board describing in detail his efforts at rehabilitation, including continued group therapy through Florida Lawyers Assistance, Inc. (FLA) and completion of 250 hours of community service. If the evidence was sufficient, the Board would recommend J.R.B. for conditional admission to The Florida Bar if he executed a consent agreement requiring his continued active participation in FLA programs, with quarterly reports provided to a monitoring agency for a two-year period.

In October 2013, the Board received J.R.B.’s statement of rehabilitation. The statement asserted that he had: performed volunteer work with Habitat for Humanity; a good reputation for professional ability; a lack of malice toward staff and administrators at Florida State University; and continued participation in group therapy. The Office of General Counsel did not file a formal response to Applicant’s statement of rehabilitation. After a formal hearing panel reviewed the statement, the Board recommended that J.R.B. be conditionally admitted for a period of two years, subject to several terms and conditions. Pursuant to the terms of the Board’s Report and Recommendation, as well as a consent judgment, one of the requirements is that J.R.B. must continue to abide by his contract with FLA.

ANALYSIS

The Court is not precluded from reviewing the factual underpinnings of the Board’s recommendation, based on an independent review of the record. Fla. Bd. Bar Exam’rs re M.B.S., 955 So.2d 504, 508 (Fla.2007). Based upon its review, the Court disapproves the Board’s recommendation and denies J.R.B. admission to The Florida Bar. The facts in this case clearly demonstrate Applicant’s character and fitness deficiencies. Further, Applicant has failed to demonstrate rehabilitation from his misconduct.

J.R.B. has demonstrated a lifetime of dealing in falsehoods. He lacks the ability to be truthful and his conduct over the years demonstrates that he has no respect for the law. J.R.B. engaged in embezzlement, stealing funds from his. employer on numerous occasions. Further, the funds he stole included funds for a university debate team, so his misdeeds could have directly impacted students who were working to achieve important goals in their lives. J.R.B. was adjudicated guilty on five felony counts of Grand Theft and he pled no contest to forty-five counts of misdemeanor Petit Theft. This is a significant criminal history, which is based on untruthful conduct. In addition, J.R.B. had to resign from his position with the university in disgrace; people who have left one profession in disgrace cannot find a haven by seeking to become a member of The Florida Bar. See generally Fla. Bd. of Bar Exam’rs re D.M.B., 144 So.3d 532 (Fla.2014) (former doctor, whose medical license was revoked due to extensive history of misconduct with his patients, was permanently denied admission to The Florida Bar).

Further, according to the Board’s Report, J.R.B. was found guilty of defrauding his employer in 2002. He graduated from law school in April 2005. Therefore, while he was preparing to possibly enter the practice of law, a profession that requires a higher calling, he was a felon dealing ■with the consequences of his criminal activities. He was on probation until March •2004 and did not have his civil rights restored until approximately three months before he graduated.

In addition, instead of striving to meet his financial responsibilities, he filed for bankruptcy while in law school. Although he was adjudicated guilty of the criminal acts in 2002, he filed for bankruptcy in July 2004. Before the Board, he attributed the $40,210 of debt to his arrest and resignation from’ his position at Florida State University. Applicant stole over $54,000 from his employer and potentially caused harm to students whose school activities were supported by those funds; he then entered law school, and two years later he characterized his financial problems as due to his resigning from employment in 2002. Applicant fails to acknowledge the seriousness of his character deficiencies.

Furthermore, while J.R.B. was in the three-year period of waiting to reapply for Bar admission, it was discovered that he did not tell his. employer, Axia College, of his criminal history. He was terminated from that position in November 2007. J.R.B. has continued to engage in dishonest conduct, even while waiting to apply for Bar membership. It is also telling that he did not inform the Board of the events regarding Axia College until over two years later — he did not report this information to the Board until October 2009.

Applicant has an extensive and documented record of dishonest conduct. His egregious behavior does not demonstrate that he would respectfully obey the professional ethics of the legal profession. The Court has consistently held that “no moral character qualification for Bar membership is more important than truthfulness and candor.” Fla. Bd. of Bar Exam’rs re J.H.K., 581 So.2d 37, 39 (Fla.1991); see also Fla. Bd. of Bar Exam’rs re Zavadil, 123 So.3d 550, 556 (Fla.2013); Fla. Bd. of Bar Exam’rs re M.B.S., 955 So.2d 504, 509 (Fla.2007); Fla. Bd. of Bar Exam’rs ex rel. R.L.W., 793 So.2d 918, 926 (Fla.2001).

Accordingly, the underlying facts of the instant case impact so adversely on the character and fitness of J.R.B. that the misconduct mandates that he not be admitted to The Florida Bar now or at any time in the future.

No motion for rehearing will be entertained by this Court.

It is so ordered.

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

PARIENTE, J., concurs in result.

      . The Court recognizes the benefits of attorneys participating in FLA programs. However, in circumstances such as those in the instant case, it is not the responsibility of FLA to rehabilitate applicants to make them acceptable to the Board.


author: SALTER, J.

text:
    GENERAL EMPLOYEES RETIREMENT COMMITTEE, Appellant, v. CITY OF NORTH MIAMI BEACH, Appellee.
    No. 3D14-887.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 2014.
    Sugarman & Susskind and Ivelisee Ber-io Lebeau and Robert A. Sugarman, Coral Gables, and Michael Anthony Gillman, for appellant.
    Lewis Longman & Walker and Andrew J. Baumann, West Palm Beach, and James W. Linn, Tallahassee, for appellee.
    Before SALTER, FERNANDEZ and SCALES, JJ.
   SALTER, J.

Meryl Robin Porter, for amicus curiae American Federation of State, County, and Municipal Employees, Local 3293, AFL-CIO.

The General Employees Retirement Committee (the “Retirement Committee”) appeals a final summary judgment upholding a City of North Miami Beach ordinance amending the terms of the City’s pension plan. The Retirement Committee maintains that, in amending the pension plan, the City failed to comply with a condition precedent established in the City’s own previously-enacted ordinance. We affirm the trial court’s conclusion that, as a matter of law, the City had no such obligation.

Ordinance 2013-15, the Alleged Condition Precedent, and the Lawsuit

City Ordinance 2013-15 was adopted to implement two changes to the City’s Retirement Plan for General Employees. First, the ordinance adopted certain changes to the Plan embodied in the most recent collective bargaining agreement between the City and the labor union representing its general employees (American Federation of State, County, and Municipal Employees, Local 3293, AFL-CIO (“AFSCME”)). Second, the ordinance deleted a longstanding provision of the Retirement Plan establishing a condition precedent to any amendment:

Section 1.05 AMENDMENT OF PLAN
(a) Resolution of City — The Plan may be amended by the City from time to time in any respect whatever, by resolution of City Council of North Miami Beach, specifying such amendment, subject only to the following limitations:
(1) Approval of Participants — Approval of 66-2/3% of the active participants shall be required before the Plan may be amended by the City Council.

“Active participants” in the Retirement Plan included then-current employees subject to the AFSCME-City collective bargaining agreement, but it also included employees represented by another union and unrepresented employees, as well as former employees, none of whom were subject to the 2013 collective bargaining agreement. The City maintained that the approval requirement in section 1.05(a)(1) of the Retirement Plan was an improper delegation of the City Council’s authority to a minority of the active members of the retirement plan, impermissibly infringing on the collective bargaining rights of the City and the AFSCME union, and jeopardizing the sound actuarial position of the Retirement Plan.

Following the City’s execution of the collective bargaining agreement and the enactment of Ordinance 2013-15, the Retirement Committee formally voted to disapprove the Ordinance because of its purported elimination of the 66-2/3% approval condition. The City filed an action for a declaratory judgment upholding the Ordinance, and both the City and the Retirement Committee filed cross-motions for final summary judgment. The trial court granted the City’s motion and denied the Retirement Committee’s, and'this appeal followed.

Analysis

Benefits payable by the Retirement Plan are constitutionally mandated to be funded on a sound actuarial basis. Art. X, § 14, Fla. Const. The City is permitted to adopt prospective amendments to the Retirement Plan, and to collectively bargain for such changes, consistent with its budget. Florida Sheriffs Ass’n v. Dep’t of Admin., 408 So.2d 1033 (Fla.1981). A provision requiring a referendum of electors to ratify a collective bargaining agreement, as a condition precedent to its enforceability, violates the rights of municipal employees and the City to bargain collectively. Art. I, § 6, Fla. Const.; City of Miami Beach v. Bd. of Trs. of the City Pension Fund for Firefighters & Police Officers in the City of Miami Beach, 91 So.3d 237 (Fla. 3d DCA 2012). In the present case, the purported approval requirement was in the hands of a minority of the active members of the retirement plan rather than a minority of the electors, but the effect and result are the same.

Further, a municipality has broad home rule powers to legislate. Art. VIII, § 2(b), Fla. Const.; § 166.021, Fla. Stat. (2013). As the City had the authority to enact the condition precedent contained in section 1.05 of the Retirement Plan (putting aside the constitutional infirmity described above), the City had the same undivided authority to eliminate that condition. If the condition precedent had been imposed by Florida statute or municipal charter provision, the analysis might be different.

For these reasons, the trial court’s final summary judgment is affirmed.

      . The percentage approval requirement was set at 75% in 1989, and reduced to 66-2/3% in 1998.

      . Section 1.06 of the Retirement Plan authorized the City to unilaterally terminate the Retirement Plan by written notice without the 66-2/3% approval requirement, a far harsher medicine than the changes adopted in Ordinance 2013-15.


author: BLACK, Judge.

text:
    Samuel LENKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-3509.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2014.
    Howard L. Dimmig, II, Public Defender, and Tosha Cohen, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   BLACK, Judge.

In this Anders appeal, we affirm Samuel Lenker’s convictions and sentences without comment. However, we remand for entry of a corrected written revocation order reflecting that Lenker was only adjudicated guilty of and sentenced on counts 2-13. See Willingham v. State, 48 So.3d 173 (Fla. 2d DCA 2010).

Affirmed; remanded with directions.

KELLY and WALLACE, JJ„ Concur.

      . Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967).


author: KHOUZAM, Judge.

text:
    Rashad J. TAYLOR, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4487.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2014.

      Dane K. Chase of Chase Law Florida, P.A., St. Petersburg, for Appellant.
    No appearance for Appellee.
   KHOUZAM, Judge.

Rashad Taylor appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. In 2007, Taylor pleaded guilty to the charge of first-degree murder — a crime he committed when he was seventeen years old — and received a mandatory sentence of life without the possibility of parole. In Miller v. Alabama, — U.S. -, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the United States Supreme Court held that such a sentence is unconstitutional. And in Toye v. State, 133 So.3d 540 (Fla. 2d DCA 2014), this court determined that the holding in Miller applies retroactively. Accordingly, we reverse the order summarily denying Taylor’s motion and remand for further proceedings consistent with Miller and Toye. See Baker v. State, 138 So.3d 1175 (Fla. 2d DCA 2014); Landrum v. State, 133 So.3d 601 (Fla. 2d DCA 2014). We again certify conflict with Geter v. State, 115 So.3d 375 (Fla. 3d DCA 2013); Gonzalez v. State, 101 So.3d 886 (Fla. 1st DCA 2012); and Falcon v. State, 111 So.3d 973 (Fla. 1st DCA), review granted, 137 So.3d 1019 (Fla.2013). See Burton v. State, 148 So.3d 541, 542 (Fla. 2d DCA 2014).

Reversed and remanded. Conflict certified.

NORTHCUTT and CRENSHAW, JJ., concur.


author: MORRIS, Judge.

text:
    Sonny GARCIA, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-6251.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2014.
    Howard L. Dimmig, II, Public Defender, and Richard P. Albertine, Jr., Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Gillian N. Leytham, Assistant Attorney General, Tampa, for Appel-lee.
   MORRIS, Judge.

Sonny Garcia appeals the revocation of his sex offender probation for the offense of possession of child pornography and his resulting sentence of forty-eight months in prison. We affirm the revocation of his probation because there was competent, substantial evidence to support the trial court’s finding that Garcia “intentionally] disregarded] ... the GPS monitoring rules,” constituting a willful and substantial violation of probation. Correa v. State, 43 So.3d 738, 745 (Fla. 2d DCA 2010) (noting that “noncompliance with the rules [that] results from equipment problems or the subject’s unintentional failure to operate the equipment properly ... does not rise to the level of a willful and substantial violation of probation” but that “intentional disregard of the GPS monitoring rules, tampering with the equipment, or actual violations of curfew or other activity restrictions will generally amount to willful and substantial violations”); see also State v. Carter, 835 So.2d 259, 262 (Fla.2002) (“The trial court is in a better position to identify the probation violator’s motive, intent, and attitude and assess whether the violation is both willful and substantial.”).

Affirmed.

DAVIS, C.J., and LaROSE, J., Concur.


author: CRENSHAW, Judge.

text:
    Petia B. TENEV, Appellant, v. DEPARTMENT OF LAW ENFORCEMENT, Appellee.
    No. 2D14-1570.
    District Court of Appeal of Florida, Second District.
    Dec. 3, 2014.
    Petia B. Tenev, pro se.
    Grace.A. Jaye, Assistant General Counsel, Florida Department of Law Enforcement, Tallahassee, for Appellee.
   CRENSHAW, Judge.

Petia Tenev appeals the dismissal of her petition for mandamus. Because the court erred in concluding that mandamus was improper based on Tenev’s failure to seek internal review from the Florida Department of Law Enforcement, we reverse.

Tenev filed an application for certification of eligibility for expunction with the Florida Department of Law Enforcement. Concluding that she was ineligible for ex-punction based on extant adjudications of guilt, the Department denied her the certificate. The Department’s denial letter, based upon our holding in Rowell v. State, 700 So.2d 1242, 1243-44 (Fla. 2d DCA 1997), informed Tenev that challenges to her criminal history record based on incompleteness or factual error needed to be appealed internally but that if she was challenging the Department’s legal conclusion, she should seek review in the circuit court by motion or by writ.

Thereafter, Tenev timely filed a petition for writ of mandamus in the circuit court asserting the Department’s legal error. In her petition, Tenev stated that over a decade ago, she was arrested for felony driving while license suspended or revoked (DWLSR). She attached the circuit court order that dismissed that charge because the State could only establish two prior moving violations (noncriminal infractions) and not criminal convictions. Because that charge was dismissed, Tenev argued in her mandamus petition that the Department legally erred in treating her DWLSR as a felony, precluding issuance of the certificate of eligibility for her expunction. The circuit court concluded it could not entertain the petition, stating that Tenev needed to appeal the Department’s conclusion internally. Tenev appealed that dismissal. The Department concedes that because Tenev seeks to challenge a legal conclusion, the petition for writ of mandamus was indeed the proper vehicle for Tenev to seek review and that dismissal of the petition was error.

The court erred in dismissing the petition for writ of mandamus. On remand, the court shall consider Tenev’s claims on the merits.

Reversed and remanded with directions.

NORTHCUTT and LaROSE, JJ., Concur.


text:
    Sandra RESTREPO, Appellant, v. INDYMAC FEDERAL BANK, F.S.B., Appellee.
    No. 3D13-2887.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 2014.
    Sandra Restrepo, in proper person.
    Baker, Donelson, Bearman, Caldwell & Berkowitz, PC and Eve A. Cann (Ft. Lauderdale), for appellee.
    Before SHEPHERD, C.J., and SUAREZ and LAGOA, JJ..
   PER CURIAM.

Affirmed. See Schneiderman v. Cantor, 546 So.2d 51, 52 (Fla. 4th DCA 1989); Ranger Constr. Indus., Inc. v. Huff, 499 So.2d 2 (Fla. 4th DCA 1986).


text:
    Waymon BISHOP, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-3279.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 2014.
    Waymon Bishop, in proper person.
    Pamela Jo Bondi, Attorney General, and Jay E. Silver, Assistant Attorney General, for appellee.
    Before SHEPHERD, C.J., and LAGOA and SCALES, JJ.
   PER CURIAM.

Waymon Bishop appeals the trial court’s November 18, 2013 order denying his motion to clarify his sentences in lower tribunal case number 90-14763-A. This court has considered Bishop’s motion as filed pursuant to Florida Rule of Criminal Procedure 3.800(a).

The order on review states, in pertinent part, “[I]n 2001, pursuant to the Jimmy Ryce act [sic] the defendant was found to be a sexual predator” in lower tribunal case number 01-10787.

The State concedes that it dismissed its petition to have Bishop declared a sexual predator under the Jimmy Ryce Act in lower tribunal case number 01-10787.

Accordingly, we remand for the limited purpose of striking the sexual predator language from the trial court’s November 18, 2018 order.

Remanded with directions.

      . In lower tribunal case number 90-14763-A, Bishop was sentenced to ten years in prison after pleading guilty to kidnapping, false imprisonment, and seven counts of sexual battery.

      . The State had sought to have Bishop committed under the Jimmy Ryce Act as a sexually violent predator in lower tribunal case number 01-10787. According to the State, however, after Bishop received a life sentence in an unrelated case (lower tribunal case number 98-41196), the State dismissed its Jimmy Ryce Petition. Bishop's life sentence in lower tribunal case number 98-41196 was subsequently reduced to twenty years.

      . We note that Bishop's convictions may qualify him as a "sexual offender” under section 943.0435, Florida Statutes; that issue, however, is not-before us.


text:
    Eusebio L. MEDINA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-1036.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 2014.
    Eusebio L. Medina, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SHEPHERD, C.J., and SUAREZ and ROTHENBERG, JJ.
   PER CURIAM.

Affiri-np.fl. See § 775.21(4)(c)(1)(a), Fla. Stat. (1997).


author: WELLS, Judge.

text:
    William A. ROCHA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-2601.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 2014.
    William A. Rocha, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before WELLS, ROTHENBERG and EMAS, JJ.
   WELLS, Judge.

William Rocha appeals from an order which he claims was rendered on October 16, 2014 on his Motion to Correct Sentence to award credit for time served in Circuit Court case numbers F08-35131A and F11-22483. Neither the order attached to Rocha’s notice of appeal nor any other order entered below bear an October 16, 2014 date nor does the record reflect any order rendered on that date. Because two orders were entered below addressing motions to correct sentence related to credit for time served — one dated August 14, 2014 and rendered that same day, the other dated September 4 and also rendered that same day — one of which appears to accord Rocha credit for all of the time he had served prior to his latest plea, we dismiss this appeal without prejudice to allow Rocha to seek a belated appeal of the order which he claims to be in error and to attach a copy of that order to his notice of appeal.

Dismissed without prejudice.

      . The record shows that Rocha has filed at least three motions addressing his sentence in the two cases at issue. The first of these motions was a Motion to Clarify filed on May 7, 2014 and addressed whether his sentences on these two cases would be served consecutively or concurrently. That motion was denied on August 13. The second of these motions was filed on August 8, 2014 and addressed whether Rocha was entitled to credit for all of the time he had served in these two cases or whether he was entitled to credit only from August 25, 2011. This motion was denied on August 13, 2014 with the trial court finding that the "plea colloquy shows that the sentencing judge awarded the defendant credit for time served from August 25, 2011 on FI 1-22483 and he is not entitled to any more credit for time served.” The third motion titled Corrected Motion to Correct Sentence is dated August 27, 2014 and argues that the plea colloquy shows that the sentencing judge stated that Rocha was entitled to "all credit” for time previously served. It is this corrected motion that appears to be the genesis of the September 4 order according Rocha credit for time served not just from August 25, 2011 but for time served between 9/23/08 to 2/4/09; 2/18/09 to 3/13/09; 11/1/09 to 1/3/10; 11/11/09 to 11/23/09; and 8/5/10 to 9/15/10 as well. Since we cannot discern whether this last order (or any other for that matter) resolves any issues regarding credit for time served or whether there are additional issues regarding this or any other order about which Rocha wishes to have reviewed, we dismiss the instant appeal without prejudice.


text:
    Larry LEATHERWOOD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-688.
    District Court of Appeal of Florida, Third District.
    Dec. 3, 2014.
    Larry Leatherwood, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before ROTHENBERG, FERNANDEZ, and LOGUE, JJ.
   PER CURIAM.

This is an appeal of an order summarily denying a motion under Florida Rule of Criminal Procedure 3.850. On appeal from a summary denial, this Court must reverse unless the postconviction record, see Fla. R. App. P. 9.141(b)(2)(A), shows conclusively that the appellant is entitled to no relief. See Fla. R. App. P. 9.141(b)(2)(D).

Because the record now before us fails to make the required showing, we reverse the order and remand for further proceedings. If the trial court again enters an order summarily denying the postconviction motion, the court shall attach record excerpts conclusively showing that the appellant is not entitled to any relief.

Reversed and remanded for further proceedings.


text:
    Jerrell Lenard JORDAN, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-4287.
    District Court of Appeal of Florida, First District.
    Dec. 5, 2014.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael McDermott, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Smith v. State, 21 So.3d 72, 76 (Fla. 1st DCA 2009) (trial court’s failure to hold limited hearing under Sheppard v. State, 17 So.3d 275 (Fla.2009) on defendant’s pro se motion to withdraw plea is harmless error where record conclusively refutes allegations supporting the motion).

BENTON, WETHERELL, and MARSTILLER, JJ., concur.


text:
    Chad DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-1068.
    District Court of Appeal of Florida, Fifth District.
    Dec. 9, 2014.
    Frances Martinez, of Escobar & Assocs., P.A., Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan and Robin A. Compton, Assistant Attorneys General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED. See Hampton v. State, 135 So.3d 440 (Fla. 5th DCA 2014).

PALMER, ORFINGER and EVANDER, J.J. concur.


author: SHEPHERD, C.J.

text:
    HIALEAH MEDICAL ASSOCIATES, INC., etc., Petitioner, v. UNITED AUTOMOBILE INSURANCE COMPANY, Respondent.
    No. 3D14-1625.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2014.
    Marlene S. Reiss, for petitioner.
    Michael J. Neimand, General Counsel for United Automobile Insurance Company, respondent.

      Before SHEPHERD, C.J., and SUAREZ and SALTER, JJ.
   SHEPHERD, C.J.

Based on United Automobile Insurance Company’s concession that the Petitioner, Hialeah Medical Associates, Inc., was entitled to appellate attorney fees below as the prevailing party, pursuant to section 627.428(1) of the Florida Statutes and clear case law from this district requiring the same, see, e.g. A. Carlo Guadagno, D.C., P.A. v. United Auto. Ins. Co., 88 So.3d 246, 247 (Fla. 3d DCA 2011) (finding, on petition for certiorari, a departure from the essential requirements of law for the failure to conditionally award attorney fees under section 627.428(1) to the prevailing party), we grant certiorari, quash the portion of the opinion denying appellate attorney fees below, and remand the case to the circuit court appellate division for a determination of an amount of attorney fees to be awarded, conditioned upon the Petitioner prevailing in the underlying proceedings.


text:
    HYDRAPAC, INC., etc., Appellant, v. COMMERCIAL BRIDGE LOAN FUNDING GROUP, LLC, Appellee.
    No. 3D14-312.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2014.
    David A. Geller (Hollywood), for appellant.
    Matthew Estevez, for appellee.
    Before ROTHENBERG, SALTER and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1980).


text:
    Carieann M. SCHMIEDER, Appellant, v. NCL AMERICA, INC., Appellee.
    No. 3D14-909.
    District Court of Appeal of Florida, Third District.
    Dec. 10, 2014.
    Lipcon, Margulies, Alsina & Winkleman, and Michael A. Winkleman and Jacqueline Garcell, for appellant.
    McAlpin Conroy, and Richard J. McAl-pin and Kassandra C. Doyle, Miami, for appellee.
    Before SHEPHERD, C.J., and ROTHENBERG and EMAS, JJ.
   SHEPHERD, C.J.

Carieann M. Schmieder appeals from orders dismissing her negligence claim for fraud on the court and a final judgment awarding NCL America, Inc., attorney’s fees and costs. Finding no abuse of discretion, we affirm the order dismissing Ms. Schmieder’s claim. NCL America, Inc., however, has conceded error in the award of attorney’s fees and costs predicated upon section 768.79, Florida Statutes (2013), which this Court has ruled inapplicable in admiralty cases. See Royal Caribbean Cruises, Ltd. v. Cox, 137 So.3d 1157 (Fla. 3d DCA 2014), rev. dismissed, 145 So.3d 822 (Fla.2014). Accordingly, we reverse the judgment awarding attorney’s fees and remand the award of costs to the trial court for reconsideration.

Affirmed in part; reversed in part; and remanded.

      . The trial court did not have the benefit of this Court’s holding in Cox.


text:
    Billie Earl FUTRELL, Appellant, v. STATE of Florida, Appellee.
    No. 5D14-1587.
    District Court of Appeal of Florida, Fifth District.
    Dec. 12, 2014.
    Scott T. Smith, of Scott Timothy Smith, P.A., Brooksville, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

Billie Futrell appeals the judgment and sentence rendered by the trial court finding that he willfully and substantially violated the conditions of his sex offender probation. Because there is no substantial, competent evidence that Futrell willfully violated his probation, we reverse the judgment and sentence under review and remand this case to the trial court to enter an order reinstating Futrell’s probation.

REVERSED and REMANDED.

SAWAYA, COHEN, and WALLIS, JJ., concur.


text:
    Daniel SHERRON, Appellant, v. CTX MORTGAGE COMPANY, LLC, et al., Appellees.
    No. 5D14-559.
    District Court of Appeal of Florida, Fifth District.
    Dec. 12, 2014.
    Daniel Sherron, Longwood, pro se.

      Joseph D. Wargo, Susan Capote and Matthew McGuane, of Wargo & French, LLP, Miami, for Appellee.
   PER CURIAM.

AFFIRMED. See Badgley v. Suntrust Mortg., Inc., 134 So.3d 559 (Fla. 5th DCA 2014). This court, sua sponte, orders Sherron to pay reasonable attorney’s fees and costs incurred by Appellees in this appeal, pursuant to section 57.105(1), Florida Statutes. The trial court is to determine the amount of fees after a hearing.

TORPY, C.J., PALMER, J. and JACOBUS, B.W., Senior Judge, concur.


author: COHEN, J.

text:
    HOLMES REGIONAL MEDICAL CENTER, INC., Petitioner, v. Robert DUMIGAN and Edith Dumigan, Respondents.
    No. 5D14-505.
    District Court of Appeal of Florida, Fifth District.
    Dec. 12, 2014.

      Gabrielle Osborne and Kenneth A. Bey-tin, of Beytin, McLaughlin, McLaughlin, O’Hara & Bolin, P.A., Tampa, for Petitioner.
    Christopher D. Donovan, John A. Boud-et and Robert B. Graziano, of Roetzel & Andress, LPA, Naples, for Respondents.
   COHEN, J.

In this petition for writ of certiorari, we are called upon to review whether the Florida Medical Malpractice Act’s (“FMMA”) presuit notice requirements are applicable to the facts of this case. The petitioner, Holmes Regional Medical Center, Inc. (“HRMC”), seeks certiorari review of a trial court order denying its motion to dismiss Robert and Edith Dumi-gan’s (“the Dumigans”) complaint for negligence. In its petition, HRMC argues that the trial court departed from the essential requirements of the law when it denied its motion to dismiss, because: (1) the allegations of the complaint arise out of the rendering of, or the failure to render, medical care or services; (2) to prevail on their claims, the Dumigans would be required to address the medical negligence standard of care found in section 766.102(7), Florida Statutes (2013); and (3) the trial court’s finding that the Dumi-gans’ claims against HRMC are for product liability and not medical negligence contradicts well-established Florida law regarding strict liability and healthcare providers. In short, HRMC asserts that, despite being characterized as a cause of action for product liability and negligence, the facts alleged in the complaint set forth a medical malpractice claim subject to the presuit requirements. We disagree.

To obtain relief via writ of certio-rari, a petitioner must establish: (1) a departure from the essential requirements of the law; (2) a consequent material injury for the balance of the trial; and (3) the absence of an adequate remedy on appeal. Allan & Conrad, Inc. v. Univ. of Cent. Fla., 961 So.2d 1083, 1087 (Fla. 5th DCA 2007) (citing Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987)). The second and third prongs of this three-part standard are often combined into the concept of “irreparable harm,” and they are jurisdictional. See Citizens Prop. Ins. Corp. v. San Perdido Ass’n, 104 So.3d 344, 351 (Fla.2012) (citing Allstate Ins. Co. v. Boecher, 733 So.2d 993, 999 (Fla.1999)). Therefore, an appellate court must find irreparable harm, i.e., a material injury that cannot be remedied on appeal, before it may even consider whether there has been a departure from the essential requirements of the law. See San Perdido Ass’n, 104 So.3d at 351 (citing Williams v. Oken, 62 So.3d 1129, 1132-33 (Fla.2011)).

Although orders denying motions to dismiss are generally not reviewable by writ of certiorari, Florida courts have created an. exception and permit certiorari review when the presuit requirements of the FMMA are at issue. Omni Healthcare, Inc. v. Moser, 106 So.3d 474, 475 (Fla. 5th DCA 2012). This exception is based on the purpose of the FMMA: to facilitate settlement and avoid baseless claims. Id. When a plaintiff files a medical malpractice action but does not satisfy the presuit notice requirements set forth in section 766.203(2), the defendant suffers a material injury that cannot be remedied in a postjudgment appeal. Rell v. McCulla, 101 So.3d 878, 880-81 (Fla. 2d DCA 2012) (citing Corbo v. Garcia, 949 So.2d 366, 368 (Fla. 2d DCA 2007)). Therefore, irreparable harm occurs when a court improperly denies a motion to dismiss for failure to follow presuit requirements because the defendant loses the cost-saving benefits that the FMMA was intended to create. Palms W. Hosp. Ltd. P’ship v. Burns, 83 So.3d 785, 788 (Fla. 4th DCA 2011) (citing Dr. Navarro’s Vein Ctr. of the Palm Beach, Inc. v. Miller, 22 So.3d 776, 778-79 (Fla. 4th DCA 2009)).

Initially, we must address the Du-migans’ claim that HRMC failed to preserve these issues for appeal. HRMC’s motion to dismiss cited virtually no case law to assist the trial court in making its determination. HRMC did not provide any real analysis or case law until it filed what it labeled as “Defendant, [HRMC’s] Reply to [the Dumigans’] Response to [HRMC’s] Motion to Dismiss.” Despite the deficiencies in the initial motion to dismiss, we find that the argument was sufficiently raised to put both the Dumi-gans and the trial court on notice of what issues were involved.

On the merits of the case, we agree with HRMC that merely labeling a cause of action as either product liability or simple negligence is not dispositive. See Moser, 106 So.3d at 475 (finding that although plaintiff attempted to allege a claim in simple negligence, it was clear that the claim sounded in medical malpractice); S. Miami Hosp., Inc. v. Perez, 38 So.3d 809, 811-12 (Fla. 3d DCA 2010) (finding that plaintiffs premises liability claim was a “[disingenuous attempt] to avoid the [pre-suit notice] requirements of Chapter 766 by characterizing the [d]eeedent as a mere ‘business invitee’” because the claim was essentially a medical malpractice action); Martinez v. Lifemark Hosp. of Fla., Inc., 608 So.2d 855, 856-57 (Fla. 3d DCA 1992) (finding that the. case should be handled under the FMMA because plaintiffs asserted claims of negligent hiring and retention, fraud and misrepresentation, and intentional tort were necessarily and inextricably connected to negligent medical treatment).

In determining whether an action sounds in medical malpractice, courts must — on a case-by-case basis — examine the allegations in the complaint and accept them as true. S. Baptist Hosp. of Fla., Inc. v. Ashe, 948 So.2d 889, 890 (Fla. 1st DCA 2007) (citing Foshee v. Health Mgmt. Assocs., 675 So.2d 957, 959 (Fla. 5th DCA 1996)); see also Stackhouse v. Emerson, 611 So.2d 1365, 1366 (Fla. 5th DCA 1993). And because the presuit requirements of the FMMA limit the constitutional right of access to courts, they must be narrowly construed. See Acosta v. HealthSpring of Fla., Inc., 118 So.3d 246, 248 (Fla. 3d DCA 2013) (citing Pierrot v. Osceola Mental Health, Inc., 106 So.3d 491, 493 (Fla. 5th DCA 2013)).

Here, Mr. Dumigan was admitted to HRMC for cardiac bypass surgery; he left a double amputee. During the course of surgery, Mr. Dumigan was administered contaminated heparin, which caused him to develop a severe bacterial infection that ultimately led to the amputation of his left leg and right foot. The Dumigans’ complaint alleges that the heparin supplier had issued a recall of its contaminated product prior to Mr. Dumigan’s surgery, but that HRMC failed to have adequate procedures in place to respond to the recall:

Despite the fact that [the manufacturer’s] contaminated products had been recalled months earlier, [HRMC] failed to promptly remove and return all of its supplies of recalled ... heparin products at the time of the recall. Instead, [HRMC] negligently failed to conduct an adequate review and removal process for the ..recalled heparin. At the time of Mr. Dumigan’s operation, more than four months after [the manufacturer’s] recall ... recalled heparin products were still in stock at [HRMC].

Notably, the healthcare workers, including the doctors who participated in the bypass surgery, are not defendants in the lawsuit. The Dumigans do not allege that the administration of heparin as part of the surgical procedure was below the standard of care. Nor do they allege that the healthcare workers knew or had reason to know that the heparin was tainted. Moreover, the Dumigans’ suit against HRMC is not based upon HRMC’s vicarious liability for the negligence of its healthcare workers. Rather, it focuses on the administrative policies and actions of HRMC in responding to the recall of the contaminated heparin.

It is axiomatic that the mere fact that a wrongful act occurs in a medical setting does not automatically transform the contested action into one that sounds in medical malpractice; the wrongful act must be “directly related to the improper application of medical services and the use of professional judgment or skill.” Corbo, 949 So.2d at 368 (quoting Lynn v. Mount Sinai Med. Ctr., Inc., 692 So.2d 1002, 1003 (Fla. 3d DCA 1997)). This Court has previously held that “[t]he primary test for whether a claim is one for medical malpractice is whether the claim relies on the application of the medical malpractice standard of care.” Pierrot, 106 So.3d at 493 (citing Weinstock v. Groth, 629 So.2d 835, 838 (Fla.1993); Joseph v. Univ. Behavioral LLC., 71 So.3d 913, 917 (Fla. 5th DCA 2011); GalenCare, Inc. v. Mosley, 59 So.3d 138, 141-43 (Fla. 2d DCA 2011)).

Application of this standard is not always easy or consistent. The cases range from the obvious — such as an incorrect diagnosis or an error that occurs during treatment or surgery — to the more difficult — such as the condition of the premises or the use of tainted materials during a medical procedure. As to the latter category of cases, courts have not applied the standard uniformly. Still, some guiding principles can be gleaned from the case law.

Typically, if the negligent act occurs during the course of the medical procedure, courts find that the complaint sounds in medical malpractice. For example, in Corbo, 949 So.2d at 368, a patient was burned by an improperly calibrated machine during the course of physical therapy treatment. The patient filed suit, alleging simple negligence, but the physical therapy provider argued that the claim sounded in medical malpractice. Id. In finding that the ease sounded in medical malpractice, the court reasoned that “the injury alleged by [the patient] was directly inflicted by the medical care-that is, physical therapy treatment-provided to her by the petitioner. [The patient’s] claim thus arose ‘out of the rendering of ... medical care or services.’ ” Id. (citing § 766.106(1)(a), Fla. Stat.). In other words, the alleged “wrongful act” was “directly related to the improper application of medical services ... and the use of professional judgment or skill.” Id. (citing Lynn, 692 So.2d at 1003). Significantly, the court in Corbo distinguished a previous case, Mobley v. Hirschberg, P.A., 915 So.2d 217 (Fla. 4th DCA 2005), because in that case, the alleged wrongful act occurred in preparation for a medical procedure and did not involve the use of professional judgment or skill. Id. at 369-70.

In Goldman v. Halifax Medical Center, 662 So.2d 367 (Fla. 5th DCA 1995), the plaintiff alleged that an operator of mam-mographic equipment negligently applied excessive pressure causing the rupture of the plaintiffs silicone breast implant. Like in Corbo, she also claimed that her injury was caused in part by the improper calibration of the equipment. This Court found that the action was subject to the FMMA’s presuit requirements because the patient “was injured as a direct result of receiving medical care or treatment by a hospital employee.” Id. at 371.

Additionally, courts have consistently found that cases that do not involve professional medical judgment or skill sound in ordinary negligence. See, e.g., Joseph, 71 So.3d at 919-20 (finding that the administrative decision not to separate patients did not involve medical judgment and did not sound in medical malpractice); Quintanilla v. Coral Gables Hosp., Inc., 941 So.2d 468, 468-69 (Fla. 3d DCA 2006) (finding that the spilling of hot tea on a patient sounded in ordinary negligence); Lynn, 692 So.2d at 1003 (finding that the improper collection and labeling of a urine specimen taken for purposes of drug testing sounded in ordinary negligence); Buchanan v. Lieberman, M.D., 526 So.2d 969, 972 (Fla. 5th DCA 1988) (finding that a treating physician’s improper touching did not sound in medical malpractice).

Out-of-state cases involving the use of tainted materials during medical procedures provide further instruction on the distinction between medical malpractice and ordinary negligence. For example, in Weiner v. Lenox Hill Hospital, 88 N.Y.2d 784, 650 N.Y.S.2d 629, 673 N.E.2d 914 (1996), a patient sought treatment at a hospital for a small bowel obstruction. During the course of the treatment, numerous blood transfusions were administered. Id. 650 N.Y.S.2d 629, 673 N.E.2d at 915. At least one was contaminated with HIV, which ultimately led to the patient’s death from AIDS-related illnesses. Id. The patient’s estate brought suit challenging the hospital’s “failure to adopt and prescribe proper procedures in screening and collecting blood.” Id. 650 N.Y.S.2d 629, 673 N.E.2d at 916. The hospital raised the medical malpractice statute of limitations as a defense. Id. 650 N.Y.S.2d 629, 673 N.E.2d at 915. The New York Court of Appeals, like Florida courts, reasoned that not every act that occurs in a hospital involves the rendition of medical care or involves professional medical judgment. Id. at 787-88, 650 N.Y.S.2d 629, 673 N.E.2d 914 (citing Bleiler v. Bodnar, 65 N.Y.2d 65, 73, 489 N.Y.S.2d 885, 479 N.E.2d 230 (N.Y.1985)). The court held that “a claim sounds in medical malpractice when the challenged conduct ‘constitutes medical treatment or bears a substantial relationship to the rendition of medical treatment by a licensed physician.’ ” Id. at 788, 650 N.Y.S.2d 629, 673 N.E.2d 914 (quoting Bleiler, 65 N.Y.2d at 72, 489 N.Y.S.2d 885, 479 N.E.2d 230). Ultimately, in rejecting the applicability of the medical malpractice statute of limitations, the court noted that the core issue in the case did not implicate questions of medical competence or judgment but turned on the hospital’s procedures. Id.; see also Estate of Doe v. Vanderbilt Univ., Inc., 958 S.W.2d 117 (Tenn.Ct.App.1997).

Similarly, in Turner v. Steriltek, Inc., No. M2006-01816-COA-R3-CV, 2007 WL 4523157, at *8 (Tenn.Ct.App. Dec. 20, 2007), a Tennessee appellate court addressed this issue in the context of improperly sterilized instruments. In Turner, physicians were performing surgery on the plaintiffs daughter. Id. at *1. During surgery, the physicians were notified that the surgical instruments were contaminated. Id. Plaintiffs father filed suit against the hospital and alleged that the hospital was negligent in failing to have proper procedures in place to ensure that instruments were properly sterilized. Id. at *3. On appeal, the court held that the claim did not sound in medical malpractice because the administrative decision was made well before the medical procedure, and the decision did not involve medical judgment. Id. at *8.

In this case, no medical judgment or skill was exercised by HRMC, and the allegedly wrongful act occurred months before Mr. Dumigan’s surgery. Moreover, HRMC’s decision to administer heparin is not the gravamen of the complaint. Indeed, the failure to administer a blood thinner during the procedure would undoubtedly fall below the acceptable standard of care. Rather, the allegedly wrongful act was HRMC’s administrative failure to properly remove heparin from its inventory, which it knew or should have known had been recalled. This alleged failure of administrative policy is not unlike the failure of a grocery store to remove a tainted product after having been notified of a recall. Thus, HRMC’s allegedly wrongful act is not unique to the hospital setting and does not involve professional medical judgment or skill. For these reasons, the claim sounds in ordinary negligence rather than medical malpractice, and the FMMA’s presuit notice requirements do not apply.

For the reasons expressed, we deny the petition for writ of certiorari.

PETITION DENIED.

SAWAYA and ORFINGER, JJ., concur.

      . §§ 766.101-.316, Fla. Stat. (2013).

      . There is no dispute that the Dumigans did not provide presuit notice.

      . We do not consider the merits of any of the causes of action. Instead, we address only the issue of presuit notice.

      . The medical malpractice standard of care is set forth in section 766.102(1), which provides:
      In any action for recovery of damages based on the death or personal injury of any person in which it is alleged that such death or injury resulted from the negligence of a health care provider as defined in s. 766.202(4), the claimant shall have the burden of proving by the greater weight of evidence that the alleged actions of the health care provider represented a breach of the prevailing professional standard of care for that health care provider. The prevailing professional standard of care for a given health care provider shall be that level of care, skill, and treatment which, in light of all relevant surrounding circumstances, is recognized as acceptable and appropriate by reasonably prudent similar health care providers.
      § 766.102(1), Fla. Stat. (2013).

      . The issue raised in Goldman was whether the presuit screening requirements applied to the medical center when the employee performing the allegedly negligent acts was not a healthcare provider as defined by the statute. Id. at 368. That question was answered affirmatively. Id. at 370.

      . We recognize, however, that each state’s statute is different, which can lead to different results.

      . Summary judgments were affirmed, though, on malpractice claims against the treating physicians. Id. at *6.


text:
    Adiel GOREL and FLCA Tropical Holdings, LLC, Appellants, v. The BANK OF NEW YORK MELLON, etc., Appellee.
    No. 5D13-165.
    District Court of Appeal of Florida, Fifth District.
    Dec. 19, 2014.

      Michael E. Rodriguez, of Foreclosure Defense Law Firm, PL, Tampa, for Appellants.
    Elizabeth T. Frau and Jeffrey M. Gano, of Ronald R. Wolfe & Associates, PL, Tampa, for Appellee.
   PER CURIAM.

Adiel Gorel and FLCA Tropical Holdings, LLC appeal the Final Summary Judgment of Mortgage Foreclosure in favor of The Bank of New York Mellon (Bank). Gorel and FLCA contend that Bank failed to establish that it was entitled to summary judgment because it failed to properly refute their affirmative defense alleging Bank’s failure to provide them with pre-acceleration notice as required by the terms of the mortgage. We agree, reverse the summary judgment under, review, and remand this case for further proceedings. See Pavolini v. Williams, 915 So.2d 251, 253 (Fla. 5th DCA 2005) (“ ‘[T]he plaintiff must either disprove those defenses by evidence or establish their legal insufficiency. Thus, summary judgment is appropriate only where each affirmative defense has been conclusively refuted on the record.’ ” (citation omitted) (quoting The Race, Inc. v. Lake & River Recreational Props., Inc., 573 So.2d 409, 410 (Fla. 1st DCA 1991))); see also Haven Fed. Sav. & Loan Ass’n v. Kirian, 579 So.2d 730, 733 (Fla.1991) (“A court cannot grant summary judgment where a defendant asserts legally sufficient affirmative defenses that have not been rebutted.”); Gray v. Union Planters Nat'l Bank, 654 So.2d 1288, 1288 (Fla. 3d DCA 1995) (“[Wjhere a defendant pleads an affirmative defense and the plaintiff does not by affidavit contradict or deny that defense, the plaintiff is not entitled to a summary judgment.’ ” (quoting Johnson & Kirby, Inc. v. Citizens Nat’l Bank of Ft. Lauderdale, 338 So.2d 905, 906 (Fla. 3d DCA 1976))).

REVERSED and REMANDED.

SAWAYA, PALMER, and LAMBERT, JJ., concur.


text:
    Shaketra ARNETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-1333.
    District Court of Appeal of Florida, First District.
    Dec. 23, 2014.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED without prejudice to the filing of a proper motion pursuant to Florida Rule of Criminal Procedure 3.801.

PADOVANO, CLARK, and MARSTILLER, JJ., concur.


text:
    Shaketra ARNETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-1334.
    District Court of Appeal of Florida, First District.
    Dec. 23, 2014.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED without prejudice to the filing of a proper motion pursuant to Florida Rule of Criminal Procedure 3.801.

PADOVANO, CLARK, and MARSTILLER, JJ., concur.


text:
    Shaketra ARNETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-1331.
    District Court of Appeal of Florida, First District.
    Dec. 23, 2014.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED without prejudice to the filing of a proper motion pursuant to Florida Rule of Criminal Procedure 3.801.

PADOVANO, CLARK, and MARSTILLER, JJ., concur.


text:
    Shaketra ARNETT, Appellant, v. STATE of Florida, Appellee.
    No. 1D14-1332.
    District Court of Appeal of Florida, First District.
    Dec. 23, 2014.
    Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Giselle D. Lylen, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED without prejudice to the filing of a proper motion pursuant to Florida Rule of Criminal Procedure 3.801.

PADOVANO, CLARK, and MARSTILLER, JJ., concur.


author: PER CURIAM. THOMAS, J.,

text:
    Alan R. CLARK, Appellant, v. R & L CARRIERS and Gallagher Bassett Services, Appellees.
    No. 1D14-2886.
    District Court of Appeal of Florida, First District.
    Dec. 23, 2014.
    Bradley Guy Smith, Lakeland, and Bill McCabe, Longwood, for Appellant.
    Scot G. Nimmo of Quintarios, Prieto, Wood & Boyer, P.A., Orlando, for Appel-lees.
   PER CURIAM.

AFFIRMED.

ROWE and OSTERHAUS, JJ., concur.

THOMAS, J., Specially concurring with opinion.

THOMAS, J.,

specially concurs With Opinion.

In this workers’ compensation case, Claimant appeals a final order denying his claims for medical and indemnity benefits as barred under section 440.09(4)(a), Florida Statutes (2012). Section 440.09(4)(a) provides that an employee who knowingly or intentionally violates subsections 440.105(4)(b)1.-3., Florida Statutes (2012), is not entitled to workers’ compensation benefits. Under subsections 440.105(4)(b) 1 . — 3., it is unlawful for any person to make, or cause to be made, any false, fraudulent, or misleading oral or written statement for the purpose of securing compensation.

Claimant, a long-distance truck driver, was involved in two compensable motor vehicle accidents in 2012 resulting in injuries to his shoulder, neck, and low back. The Employer/Carrier (E/C) accepted compensability of both accidents and authorized medical care with several providers, including Dr. Tresser and Dr. Goldsmith. The E/C later received workers’ compensation records from the state of Ohio and other prior medical records revealing that Claimant had previous injuries with medical treatment for physical complaints similar to those associated with his 2012 accidents; the E/C also obtained records indicating Claimant had engaged in fairly extensive litigation regarding the injuries suffered in Ohio. The E/C defended all further claims for benefits for the 2012 accidents based on Claimant’s alleged misrepresentation of his medical history to his authorized medical providers.

To establish a fraud or misrepresentation defense, an employer or carrier must prove violations of section 440.105(4)(b) by a preponderance of evidence. See Singletary v. Yoder’s Ameritrust Ins. Corp., 871 So.2d 289, 281 (Fla. 1st DCA 2004). The judge of compensation claims (JCC) is then “required to determine whether [claimant knowingly or intentionally made any false, fraudulent, incomplete, or misleading statement, whether oral or written, for the purpose of obtaining workers’ compensation benefits, or in support of his claim for benefits.” Village of N. Palm Beach v. McKale, 911 So.2d 1282, 1283 (Fla. 1st DCA 2005). Here, the JCC found that Claimant’s claims were barred “due to his misrepresentations which occurred when he failed to advise his doctors of his prior injuries.” More specifically, the JCC found that Claimant “did not tell either Dr. Tresser or Dr. Goldsmith about his prior back injuries” and that “[b]oth Dr. Tresser and Dr. Goldsmith revised their opinions on learning of these prior injuries and complaints.”

A JCC’s ruling on a fraud or misrepresentation defense is reviewed for CSE, and the factual findings will be upheld if any CSE supports the JCC’s decision, regardless of whether “other persuasive evidence, if accepted by the JCC, might have supported a contrary ruling.” Pinnacle Benefits, Inc. v. Alby, 913 So.2d 756, 757 (Fla. 1st DCA 2005) (emphasis in original). Claimant argues that there is no competent substantial evidence (CSE) to support the JCC’s findings because the evidence does not establish that either Dr. Tresser or Dr. Goldsmith asked Claimant about any prior low back problems. Indeed, a review of the testimony of both doctors reveals that the deposition questions focused on Claimant’s history of prior neck and shoulder complaints-not his prior low back problems. On the other hand, Dr. Broom, an expert medical advisor (EMA), expressly testified that Claimant affirmatively gave an, inaccurate and incomplete medical history about his prior “extensive low back problems.” Furthermore, the record shows that Claimant affirmatively misrepresented his prior neck complaints to Dr. Tresser, Dr. Goldsmith, and Dr. Broom because all three doctors confirmed that Claimant denied any prior neck problems, and yet had a documented history of years of neck pain. The JCC also rejected Claimant’s testimony at the final hearing that he did not remember his prior injuries.

In short, the record contains evidence of multiple instances of Claimant’s affirmative misrepresentation of his medical history to the authorized medical providers, the EMA, and the JCC. Because CSE supports the JCC’s ultimate finding that Claimant misrepresented his medical history with the requisite intent to secure benefits, the technical inaccuracies in the JCC’s factual recitation of Claimant’s misrepresentations to Dr. Tresser and Dr. Goldsmith constitute harmless error. See Special v. W. Boca Med. Ctr., — So.3d - (Fla.2014) (holding that test for harmless error requires beneficiary of error to prove there is no reasonable possibility that error contributed to verdict). Given the number of material misrepresentations made by Claimant, there is no reasonable possibility that the inconsequential inaccuracies complained of in the appealed order contributed to the JCC’s determination that the E/C sustained its burden of proving violations of section 440.105(4)(b) by the preponderance of the evidence. Accordingly, I concur that the JCC’s order denying Claimant’s claims as barred under section 440.09(4)(a) should be affirmed.

      . As seems to be the case with many workers’ compensation, claims involving allegations of misrepresentation or fraud, the E/C here did not expressly identify the actual written or oral statement proving the violation of section 440,15(4)(b) and the JCC made a seemingly conclusory finding of Claimant's misrepresentations. It is this practice that serves as the gravamen of Claimant’s arguments in this appeal. Notably, the workers' compensation rules of procedure have recently been amended, as of November 10, 2014 (which postdates the trial proceedings here), to require the following in the parties' pretrial stipulation:
      Any defense raised pursuant to Sections 440.09(4)(a) and 440.105, F.S., and any affirmative defense, must be raised with specificity, detailing the conduct giving rise to the defense, with leave to amend within 10 days. Failure to plead with specificity shall result in the striking of the defense. Any objections/responses to the affirmative defenses must be pled with specificity.
      Fla. Admin Code R. 60Q-6.113(2)(h). This rule of procedure, if in place at the time of the trial proceedings herein, might well have alleviated the problems that serve as the centerpiece of the instant appeal. Nevertheless, the record supports the JCC’s conclusion that Claimant was well aware of the misrepresentations that served as the basis of the E/C's misrepresentation defense, and, there is no reasonable possibility that a remand for more specific findings would yield a different result.


text:
    Rachel BERRY, Former Wife, Appellant, v. Bret M. BERRY, Former Husband, Appellee.
    No. 1D14-935.
    District Court of Appeal of Florida, First District.
    Dec. 24, 2014.
    William E. Whitlock, III, Tallahassee, for Appellant.
    Ethan Andrew Way of Way Law Firm, P.A., Tallahassee, for Appellee.
   PER CURIAM.

This is an appeal from an order denying former wife’s motion to vacate the final judgment of dissolution of marriage and set aside the parties’ marital settlement agreement. While this appeal was pending, this court granted former wife’s petition for writ of prohibition upon finding that an ex parte conference held by the judge during the hearing on former wife’s motion to vacate constituted a legally sufficient basis for the judge’s disqualification. Berry v. Berry, 139 So.3d 508 (Fla. 1st DCA 2014). The court remanded with instructions that a new judge be assigned to hear further proceedings in this matter. Id. Florida Rule of Judicial Administration 2.330(h) provides that “[pjrior factual- or legal rulings by a disqualified judge may be reconsidered and vacated or amended by a successor judge based upon a motion for reconsideration, which must be filed within 20 days of the order of disqualification, unless good cause is shown for a delay in moving for reconsideration or other grounds for reconsideration exist.” Pursuant to this rule, we believe the proper procedure in this ease is for former wife to seek relief by filing a motion requesting the successor judge to reconsider the disqualified judge’s order. See Weiss v. Berkett, 907 So.2d 1181 (Fla. 3d DCA 2005); Doe ex rel. Doe v. Publix Super Markets, Inc., 814 So.2d 1249, 1251 (Fla. 2d DCA 2002); Berry v. Berry, 765 So.2d 855, 858 (Fla. 5th DCA 2000); Robbins v. Robbins, 742 So.2d 395, 397 (Fla. 2d DCA 1999); Schlesinger v. Chemical Bank, 707 So.2d 868, 869 (Fla. 4th DCA 1998). Because former wife cannot file such a motion while this appeal is pending, we remand with directions that former -wife be given the opportunity to file a rule 2.330(h) motion within twenty days o'f the issuance of this court’s mandate.

REMANDED.

LEWIS, C.J., VAN NORTWICK and SWANSON, JJ„ concur.


text:
    WEST SEVEN SEAS, INC., Appellant, v. Adelaide G. FEW, as Personal Representative of the Estate of Beatrice D. Gonzalez, and A Few Tampa Properties, LLC, Appellee.
    No. 2D06-3324.
    District Court of Appeal of Florida, Second District.
    March 7, 2007.
   ORDER ON NOTICE OF VOLUNTARY DISMISSAL

Having received Appellant’s notice of dismissal, we withdraw the opinion dated February 7, 2007, and dismiss the appeal.


text:
    Emanuel JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-5482.
    District Court of Appeal of Florida, Second District.
    May 13, 2011.
    Bill Jennings, Capital Collateral Regional Counsel, and Mark S. Gruber and Maria Perinetti, Assistant Capital Collateral Regional Counsel, Middle Region, Tampa, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Vickers Blanco, Assistant Attorney General, Tampa, for Appellee.
   ORDER ON APPELLEE’S MOTION TO PROHIBIT THE OFFICE OF CAPITAL COLLATERAL REGIONAL COUNSEL FROM REPRESENTING APPELLANT IN THIS NON-CAPITAL APPEAL

PER CURIAM.

The State of Florida has filed a motion to prohibit the Office of Capital Collateral Regional Counsel — Middle Region (CCRC) from representing the appellant in non-summary postconviction appeal 2D10-5481. We treat the motion as filed in nonsummary postconviction appeal 2D10-5482 as well, as the two appeals are traveling together. Relying on the Florida Supreme Court’s construction of sections 27.7001 et seq., Florida Statutes, in State v. Kilgore, 976 So.2d 1066 (Fla.2007), we grant the State’s motion. See id. at 1070 (“[W]e conclude that CCRC is not expressly authorized under the applicable statutes to collaterally challenge a noncapital conviction.”). CCRC is hereby discharged as appellant’s counsel in both appeals.

Within twenty days of this order, the circuit court shall issue an order either appointing public counsel for the appellant or concluding that appointment of counsel is not constitutionally required, see Graham v. State, 372 So.2d 1363 (Fla.1979); Rowe v. State, 111 So.2d 1088 (Fla. 2d DCA 2001), and shall file a copy of the order in this court, with service on the parties.

CASANUEVA, C.J., and KELLY and WALLACE, Concur.


text:
    Eddie Lee WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 2D14-202.
    District Court of Appeal of Florida, Second District.
    July 2, 2014.
    Eddie Lee Wilson, pro se.
   PER CURIAM.

Affirmed. See Vernold v. State, 376 So.2d 1166 (Fla.1979); Leeman v. State, 357 So.2d 703 (Fla.1978); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Wilson v. State, 982 So.2d 697 (Fla. 2d DCA 2008) (table decision); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006); Nedd v. State, 855 So.2d 664 (Fla. 2d DCA 2003); Desmond v. State, 576 So.2d 743 (Fla. 2d DCA 1991); Budd v. State, 477 So.2d 52 (Fla. 2d DCA 1985); Mills v. State, 840 So.2d 464 (Fla. 4th DCA 2003); McMillan v. State, 832 So.2d 946 (Fla. 5th DCA 2002); Harris v. State, 789 So.2d 1114 (Fla. 1st DCA 2001); Hart v. State, 761 So.2d 334 (Fla. 4th DCA 1998).

KHOUZAM, MORRIS, and SLEET, JJ., Concur.


author: DAVIS, Chief Judge.

text:
    James Alan PRICE, Appellant, v. CASTLE KEY INDEMNITY COMPANY, Appellee.
    No. 2D13-1809.
    District Court of Appeal of Florida, Second District.
    Sept. 3, 2014.
    Daniel Phillips of Phillips Law Firm, Tallahassee, for Appellant.
    Darryl L. Gavin and Bret M. Cary of Rumberger, Kirk & Caldwell, Orlando, for Appellee.
   DAVIS, Chief Judge.

James Alan Price challenges the trial court’s summary final judgment entered in his breach of contract action against his insurer, Castle Key Indemnity Company. Because there are disputed issues of material fact that preclude the entry of summary judgment, we reverse and remand for further proceedings.

The parties do not dispute that 195,000 gallons of water escaped from an upstairs bathroom in the Price home while the family was out of town for an extended period. Due to a dispute over the scope of his insurance coverage, Mr. Price sued Castle Key, and both parties moved for summary judgment. The trial court granted the motion for summary judgment in favor of Castle Key based on the terms of the parties’ insurance contract.

On its face, the insurance policy covers “sudden and accidental direct physical loss to property.” An exclusion to that coverage is

[sjeepage, meaning continuous or repeated seepage or leakage over a period of weeks, months, or years, of water, steam, or fuel ... from, within[,] or around any plumbing fixtures, including, but not limited to shower stalls, shower baths, tub installations, sinks[,] or other fixtures designed for the use of water or steam.

Here, water flowed from a pipe going to Mr. Price’s upstairs toilet for a lengthy period of time. Mr. Price maintains that based on that time frame and the total number of gallons that escaped, the water had to have been exiting the pipe at a rate of 6000 gallons per day. According to Mr. Price, such a rate, at a minimum, creates an ambiguity as to whether the incident could be defined as seepage. Mr. Price further argues that the term “sudden” is not defined in the policy and that his situation should be covered because “sudden” can mean unexpected, a definition that may apply to a flow that occurs over time. Finally, Mr. Price argues that if wear, age, or rust caused the problem, as alleged by Castle Key, then another clause in the policy still requires coverage for direct physical damage occurring when the identified origins “cause the sudden and accidental escape of water or steam from a plumbing” device. These arguments raise several questions of fact that were before the trial court at the time of the entry of summary judgment.

Ambiguities in the terms of a contract are either patent or latent. Real Estate Value Co. v. Carnival Corp., 92 So.3d 255, 260 (Fla. 3d DCA 2012) (“The interpretation of a contract, including whether the contract or one of its terms is ambiguous, is a matter of law subject to de novo review. A contract is ambiguous when its language is reasonably susceptible to more than one interpretation, or is subject to conflicting interests. There are two types of ambiguities — patent and latent. Patent ambiguities are on the face of the document, while latent ambiguities do not become clear until extrinsic evidence is introduced and requires parties to interpret the language in two or more possible ways.” (citations omitted) (internal quotation marks omitted)).

A latent ambiguity ... arises “where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings.” Ace Elec. Supply Co. v. Terra Nova Elec., Inc., 288 So.2d 544, 547 (Fla. 1st DCA 1974). A latent ambiguity is thus brought to light when extraneous circumstances reveal “an insufficiency in the contract not apparent from the face of the document.” Hunt v. First Nat’l Bank, 381 So.2d 1194, 1197 (Fla. 2d DCA 1980).

Mac-Gray Servs., Inc. v. Savannah Assocs. of Sarasota, LLC, 915 So.2d 657, 659 (Fla. 2d DCA 2005).

Here, the terms of the insurance contract are not facially ambiguous. However, the basic undisputed facts agreed to by the parties demonstrate the existence of the alleged latent ambiguities in the terms of the contract. Specifically, based on the undisputed fact that a large amount of water flowed from the pipe over time, the meaning of the contractual terms of “seepage” and “sudden” are less than clear. Additionally, the relevant facts regarding the cause of the escaped water — whether it escaped as an escalating leak or as a burst that continued at a constant rate — remain at issue. Because these “latent ambi-guit[ies] affecting a disputed contract provision” existed, “there necessarily [existed] a disputed issue of material fact.” See id. Accordingly, summary judgment was improper. Id. at 659-60. We therefore reverse the final summary judgment and remand for further proceedings.

Reversed and remanded.

SILBERMAN and WALLACE, JJ., Concur.

      . Castle Key relies on Hoey v. State Farm Florida Insurance Co., 988 So.2d 99 (Fla. 4th DCA 2008), to support its position that the extended duration of the water expulsion triggered the seepage exclusion of the insurance policy. However, Mr. Price argues that Hoey is facially distinguishable because in this case the leak began gradually and increased into a greater amount of water expulsion. We conclude that Hoey is procedurally distinguishable from the instant circumstances because it involves a factual determination at trial over the length of time a leak occurred and whether those facts met the exclusion set forth in the unambiguous terms of an insurance coverage contract. As such, it is only instructive to the instant case as an example of a case where factual questions required resolution by a trier-of-fact and were not resolved by way of summary judgment.


text:
    Johnny GAFFNEY, Appellant, v. FLORIDA DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D14-1292.
    District Court of Appeal of Florida, First District.
    Oct. 9, 2014.
    Rehearing Denied Dec. 9, 2014.
    Johnny Gaffney, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Jamie M. Braun, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

On the court’s own motion, we treat this proceeding as an appeal from the circuit court’s order, see Green v. Moore, 777 So.2d 425, 426 (Fla. 1st DCA 2000), and affirm.

LEWIS, C.J., CLANK and MARSTILLER, JJ., concur.


author: ROTHENBERG, J.

text:
    Fernando GUERRERO, Appellant, v. GLOBALMAX ENTERPRISES, INC., etc., et al., Appellees.
    No. 3D14-327.
    District Court of Appeal of Florida, Third District.
    Oct. 15, 2014.
    Rehearing Denied Dec. 22, 2014.
    WermuthLaw P.A., and J. Michael Wer-muth and Osnat N. Dorot, Miami, for appellant.
    Dorta & Ortega, and Omar Ortega, Rey Dorta, and Trida Neimand, Coral Gables, for appellees Pavan Taneja, Bridge Holdings USA, LLC, and Raft Management; Richards & Associates, and Richard L. Richards and Jason Goldstein, for appel-lees Ricardo Hernandez, Teresa Ramirez, Wildaymil Rodriguez, Prestige Transportation Service, LLC, and Alliance Hospitality Group, Inc.
    Before ROTHENBERG, LAGOA, and LOGUE, JJ.
   ROTHENBERG, J.

Fernando Guerrero (“Guerrero”) appeals the trial court’s order adopting the general magistrate’s second report and recommendation' on proceedings supplementary. Guerrero contends that the trial court abused its discretion and committed reversible error by failing to conduct a special set hearing on his exceptions to the magistrate’s second report and recommendation before adopting and ratifying the report and recommendation. Based on the unique facts of this case, we find no error and affirm.

Specifically, we note that the magistrate conducted a lengthy evidentiary hearing during which several witnesses testified and documentary evidence was introduced. Based on the evidence presented, the magistrate issued a very detailed report finding that no credible evidence had been presented that any of the defendants or third party defendants had conspired to make or had actually made any fraudulent transfers of assets to defraud their creditors or Guerrero. This report included specific references to the evidentiary support for the findings made by the magistrate.

Guerrero filed timely exceptions to the magistrate’s report. The trial court conducted a special set hearing on Guerrero’s exceptions, during which the trial court reviewed the evidence presented at the evidentiary hearing and the magistrate’s findings and adopted the magistrate’s factual findings. However, because it was unclear whether the magistrate had applied all of the applicable law, the trial court asked the magistrate to clarify whether she had considered and applied sections 726.105(l)(b), 726.106, and 56.29(6) of the Florida Statutes when making her findings.

In response to the trial court’s query, the magistrate issued a second report and recommendations clarifying that these three statutes had been applied to her findings. Guerrero filed exceptions to the magistrate’s second report. However, these exceptions simply restated the exceptions Guerrero made to the first report, and he presented no new evidence or any additional arguments to the magistrate. Because no new evidence had been supplied to support the previously rejected exceptions, the trial court did not conduct another special set hearing. Rather, the trial court simply rejected Guerrero’s exceptions and adopted the magistrate’s findings and recommendations at a hearing conducted during the trial court’s motion calendar.

Because the magistrate’s initial report and recommendation was supported by competent substantial evidence; the trial court conducted a special set hearing on Guerrero’s exceptions to the initial report and recommendations; and the magistrate’s second report was merely a clarification of her first report, we conclude that the trial court did not abuse its discretion by failing to conduct a second special set hearing because there was nothing new to consider. Robinson v. Robinson, 928 So.2d 360, 362 (Fla. 3d DCA 2006) (holding that the trial court is bound by the magistrate’s factual findings if they are supported by competent substantial evidence unless those findings are clearly erroneous or the magistrate had misconceived the legal effect of the evidence).

Affirmed.


text:
    Robert ADAMS, Appellant, v. Ronald BRAY, Dr. Brenda Snipes, in her Official Capacity as Supervisor of Elections of Broward County, Florida, Ken Detzner, in his Official Capacity as Secretary of the State of Florida, Department of State, and Florida Democratic Party, Appellees.
    No. 1D14-3260.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2014.
    Rehearing Denied Dec. 8, 2014.
    Michael Alan Steinberg, Tampa, for Appellant.
    J. Andrew Atkinson, General Counsel, and Ashley E. Davis, Assistant General Counsel, Florida Department of State, Tallahassee; Burnadette Norris-Weeks of Law Office of Burnadette Norris-Weeks, P.A., Fort Lauderdale; Michael Wayne Moskowitz, Fort Lauderdale; Mark Her-ron, Joseph B. Donnelly and Robert J. Telfer, III of Messer Caparello, P.A., Tallahassee, for Appellees.
   PER CURIAM.

AFFIRMED. See Matthews v. Steinberg, No. 1D14-3477, 2014 WL 5305574 (Fla. 1st DCA 2014).

LEWIS, C.J., CLARK, and MARSTILLER, JJ., concur.


text:
    Erick EDOUARD, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, Respondent.
    No. 1D14-4368.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2014.
    Rehearing Denied Dec. 3, 2014.
    Erick Edouard, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Kathleen C. Hagan, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of prohibition is denied on the merits. See Buss v. Reichman, 53 So.3d 339 (Fla. 4th DCA 2011).

LEWIS, C.J., CLARK and MARSTILLER, JJ., concur.


text:
    John Jay DITTRICH, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D14-4487.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2014.
    Rehearing Denied Dec. 9, 2014.

      John Jay Dittrich, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Powell v. Fla. Dep’t of Corr., 727 So.2d 1103 (Fla. 1st DCA 1999).

LEWIS, C.J., CLARK and MARSTILLER, JJ., concur.


author: ROBERTS, J.

text:
    Mayor Alvin BROWN and the City of Jacksonville and the Jacksonville Police and Fire Pension Fund Board of Trustees, Appellants, v. Frank DENTON, Appellee.
    Nos. 1D14-0443, 1D14-0444.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2014.
    Rehearing Denied Dec. 3, 2014.

      Craig D. Feiser and David J. D’Agata, Assistant General Counsels, Jacksonville, for Appellants Mayor Alvin Brown and the City of Jacksonville.
    Robert D. Klausner, Stuart A. Kaufman, and Paul A. Daragjati of Klausner, Kaufman, Jensen & Levinson, Plantation, for Appellant Jacksonville Police and Fire Pension Fund Board of Trustees.
    George D. Gabel, Jr., Timothy J. Conner, and Jennifer Mansfield of Holland & Knight, Jacksonville, for Appellee.
   ROBERTS, J.

In this consolidated appeal, the appellants, Mayor Alvin Brown (the Mayor), the City of Jacksonville (the City), and the Jacksonville Police and Fire Pension Fund Board of Trustees (the Board), appeal an order granting summary final judgment in favor of the appellee, Frank Denton (Den-ton). Finding no grounds for reversible error, we affirm.

In February 2013, Randall Wyse, who was employed as the fire district chief and who also served as the Chief Negotiator for the Firefighters’ Union — the Jacksonville Association of Fire Fighters Local 122, IAFF (JAFF) — along with several other plaintiffs, filed suit against the City and the Board in the United States District Court for the Middle District of Florida. In March 2013, the City, the Board, and the plaintiffs voluntarily sought mediation in the federal case. For the next few months, several closed-door mediation sessions were held at a stipulated mediator’s office in Gainesville, Florida. Although not parties to the federal litigation, the JAFF and the Fraternal Order of Police Lodge 5-30 (FOP and, collectively with JAFF, the Unions) attended the mediation sessions. No party informed the federal court that the negotiations would entail collective bargaining or that the provisions of the Florida Statutes and Constitution may require such collective bargaining to be conducted in public. There was no public notice of the mediation sessions nor was any transcript made of the proceedings.

The end result of the private mediation sessions was a Mediation Settlement Agreement (MSA), which, on its face, changed the specific, defined pension benefits of City employees in the Unions. The signatories to the MSA included: the May- or’s Chief of Staff, General Counsel for the City, Wyse (who signed “individually” and also as the President/Chief Negotiator of JAFF), the Executive Director of the Pension Fund, legal counsel for the Pension Fund, legal counsel for the Unions, and the President/Chief Negotiator of FOP as well as the remaining federal plaintiffs. The parties were to use their best efforts to obtain approval from their respected officials necessary for implementation of the MSA. It was also undisputed that the parties intended to seek further mediation if the MSA were not adopted.

In May 2013, the Mayor held a press conference announcing an .agreement on retirement reform with the Unions. An ordinance was subsequently introduced to the City Council seeking approval of the MSA. In July 2013, the City Council voted down the proposed ordinance and, therefore, decided not to adopt the MSA.

In August 2013, Denton, an editor of the Florida Times-Union newspaper in Jacksonville, filed a verified amended complaint for declaratory and injunctive relief in circuit court against the Mayor, in his official capacity, the City, and the Board. The complaint alleged that the closed-door mediation sessions constituted collective bargaining negotiations that, under section 447.605(2), Florida Statutes (2013), were conducted in violation of Florida’s Sunshine Law as codified in section 286.011, Florida Statutes (2013). The complaint sought a declaration that the MSA was void ab initio and that a Sunshine Law violation occurred and would continue to occur were the mediation sessions allowed to continue. Finally, the complaint sought an injunction prohibiting the defendants from adopting, performing, or implementing the MSA and from engaging in future mediation.

Following motions for summary judgment on the issues, on December 31, 2013, the circuit court entered an order granting summary final judgment in favor of Den-ton. The circuit court found that it had jurisdiction to determine whether collective bargaining had been held in compliance with the Sunshine Law and to enjoin further violations. The circuit court found that in negotiating the MSA, the City and the Board made changes to the terms of the employee pension benefits, which were a mandatory subject of collective bargaining, and, absent a clear waiver, were required to be conducted in the sunshine. The circuit court found that the Board acted as the Unions’ representative and bargaining agent in the negotiations or the Unions themselves participated to some degree in negotiating the MSA. As such, the circuit court held that the federal mediation sessions violated the Sunshine Law, voided the MSA ab initio, and enjoined “the parties from conducting further proceedings entailing collective bai'-gaining of the police officer and firefighter pension funds in private outside of the sunshine.” The circuit court further held,

The Local Rules for the Middle District of Florida require that mediations be privileged. Given the parameters of the Sunshine Law and its place within the Florida Constitution, however, it is appropriate that the parties be ordered to inform a federal court that they are obligated to comply with Florida’s Sunshine Law requirements and further ordered to take all reasonable steps to seek a waiver of the local federal rules in order to comply with this Court’s judgment, the Constitution of the State of Florida, and applicable Florida laws mandating Government in the Sunshine. If, after fully complying with this Court’s judgment, the parties nevertheless are ordered by the federal court to conduct mediations in private, the Supremacy Clause of the United States Constitution requires that the parties comply with the federal court’s order.

The appellants then individually initiated appeals, between them challenging the circuit court’s jurisdiction, its determination that collective bargaining occurred, its determination that the entities present at the mediation sessions had the ability to collectively bargain pension benefits, and its determination that the Board acted as the Unions’ bargaining agent. They also argued that the circuit court’s order violated the rule of confidentiality of mediation sessions, principles of comity, and the Supremacy Clause. We are not persuaded that any of these issues require reversing Judge Wallace’s well-reasoned and sound order.

The Sunshine Law provides a right of access to government. See Art. 1, § 24, Fla. Const.; § 286.011, Fla. Stat. (2013). It was enacted in the public interest to protect the public from “closed door” politics. See Pinellas Cnty. Sch. Bd. v. Suncam, Inc., 829 So.2d 989, 990 (Fla. 2d DCA 2002) (citing Wood v. Marston, 442 So.2d 934, 938 (Fla.1983)). The Sunshine Law is to be liberally construed to give effect to its public purpose, and exemptions should be narrowly construed. See Bd. of Pub. Instruction of Broward Cnty. v. Doran, 224 So.2d 693, 699 (Fla.1969). In addition, it should be construed so as to frustrate all evasive devices. See City of Miami Beach v. Bems, 245 So.2d 38, 41 (Fla.1971).

Chapter 447, Part II, Florida Statutes (PERA), governs collective bargaining of public employees. Section 447.605(2), Florida Statutes (2013), provides:

The collective bargaining negotiations between a chief executive officer, or his or her representative, and a bargaining agent shall be in compliance with the provisions of s. 286.011.

Thus, once the collective bargaining process begins, whenever one side or any of its representatives at any time meets with the other side or any of its representatives to discuss anything relevant to the terms and conditions of the employer-employee relationship, such a meeting is subject to the Sunshine Law. City of Fort Myers v. News-Press Publ’g Co., Inc., 514 So.2d 408, 412 (Fla. 2d DCA 1987).

The matters here were presented to the circuit court in the context of violations of the Sunshine Law. Considering and determining Sunshine Law violations are within the circuit court’s purview. See § 286.011(2), Fla. Stat. (2013) (vesting jurisdiction to enforce the public meeting requirements in the circuit courts). While the circuit court made some determinations regarding collective bargaining, those determinations were not dispositive of any issues particularly relating to the collective bargaining process itself so as to fall under PERC’s exclusive jurisdiction. Rather, they constituted necessary threshold determinations in the context of whether the mediation sessions triggered application of the Sunshine Law. Cf. Miami Ass’n of Firefighters Local 587 v. City of Miami, 87 So.3d 93 (Fla. 3d DCA 2012) (finding that the union was required to exhaust its administrative remedies with PERC before seeking relief in circuit court where the claims against the City raised violations of both chapter 447, Florida Statutes, and the Sunshine Law).

The circuit court found that the Board acted as the Unions’ bargaining agent in the mediation sessions, which, in the context of the Sunshine Law, was a proper finding. The circuit court focused on the fact that section 447.605(2) requires collective bargaining to be conducted in the sunshine when negotiations involve a “bargaining agent.” Considering the definition of bargaining agent in section 447.203(12), Florida Statutes (2013), the circuit court found that it included more than just PERC-certified bargaining agents as it also included the certified entities’ “representative.” Thus, the fact that the Board had not been formally designated as the Unions’ bargaining agent did not necessarily mean that it did not function as a representative of the Unions so as to qualify as a “bargaining agent” for purposes of Sunshine Law application.

With regard to whether collective bargaining occurred during the mediation sessions, the circuit court found that the parties negotiated pension benefits, an undisputed mandatory subject of collective bargaining. The circuit court appropriately considered the parties that went in to the closed-door mediation sessions and the end product, which by its terms made changes to employee pension benefits. As further evidence of the changes made by the MSA, the circuit court recognized that the Mayor held a press conference announcing an agreement on retirement reform with the Unions. The fact that the MSA was tentative and conditioned upon further approval does not cure any prior Sunshine Law violation as the purpose of the Sunshine Law is to “prevent at nonpublic meetings the crystallization of secret decisions to a point just short of ceremonial acceptance.” Zorc v. City of Vero Beach, 722 So.2d 891, 896 (Fla. 4th DCA 1998) (citing Town of Palm Beach v. Gradison, 296 So.2d 473, 477 (Fla.1974)). The circuit court’s findings with regard to the parties as well as the nature of the mediation sessions were supported by the record such that they should not be disturbed on appeal.

With regard to the remedy ordered, the circuit court took appropriate care in recognizing the federal court’s supremacy and the limited scope of the Sunshine Law issue before it. The circuit court narrowly crafted its remedy to respect the interplay between Sunshine Law principals and federal mediation.

We affirm the order on appeal under the broad public policy of Florida’s Sunshine Law. We cannot condone hiding behind federal mediation, whether intentionally or unintentionally, in an effort to thwart the requirements of the Sunshine Law. Caution should be taken to comply with the Sunshine Law, and compliance should be the default rather than the exception. See Gradison, 296 So.2d at 477 (“The principle to be followed is very simple: When in doubt, the members of any board, agency, authority or commission should follow the open-meeting policy of the State.”). By holding closed-door negotiations that resulted in changes to public employee’s pension benefits, the appellants ignored an important party who also had the right to be in the room — the public.

AFFIRMED.

MARSTILLER and SWANSON, JJ„ concur.


text:
    Rayl Lynn KELLAR, Petitioner, v. Michael D. CREWS, Secretary Florida Department of Corrections; Joseph Shubert, M.D., Executive Director, Corizon Health Services; R. Wolf; M. Willis; D. Douglas; L. Driggers, Respondents.
    No. 1D14-4473.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2014.
    Rehearing Denied Dec. 2, 2014.
    Rayl Lynn Kellar, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and David W. Grimes, Assistant Attorney General, Tallahassee, for Respondent, Michael D. Crews, Secretary, Florida Department of Corrections.
   PER CURIAM.

DISMISSED. Eutsay v. State, 103 So.3d 181, 182 (Fla. 1st DCA 2012).

VAN NORTWICK, RAY, and OSTERHAUS, JJ., concur.


text:
    Gene AMBERT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D14-4504.
    District Court of Appeal of Florida, First District.
    Oct. 21, 2014.
    Rehearing Denied Dec. 4, 2014.
    Gene Ambert, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See English v. McCrary, 348 So.2d 293 (Fla.1977).

VAN NORTWICK, RAY, and OSTERHAUS, JJ., concur.