author: MORRIS, Judge.

text:
    John CASTEEL, Appellant, v. Anna MADDALENA, Appellee.
    No. 2D11-4455.
    District Court of Appeal of Florida, Second District.
    April 3, 2013.

      Stephen F. Rosenthal of Podhurst Or-seck, P.A., Miami; Weldon E. Brennan of Brennan Holden & Kavouklis, P.A., Tampa; and Charles M. Laycock of Brooks Law Group, Winter Haven, for Appellant.
    Mark D. Tinker and Charles W. Hall of Banker Lopez Gassier P.A., St. Peters-burg, for Appellee.
   MORRIS, Judge.

John Casteel appeals an order granting relief from judgment. The underlying negligence action arose out of a car accident involving Casteel and Anna Mad-dalena. A bifurcated trial was held, and the jury determined that Casteel was 55% hable while Maddalena was 45% liable. Maddalena then moved for a new trial based on newly discovered evidence pursuant to Florida Rule of Civil Procedure 1.540(b)(2). The basis for the motion was that testimony provided by one of Casteel’s witnesses had been proven inaccurate. The trial court took the matter under advisement, but subsequently— without notice to the parties and without conducting a further evidentiary hearing — the trial court granted Maddalena’s motion on an entirely different ground: fraud pursuant to rule 1.540(b)(3). We conclude that in doing so, the trial court erred.

Background

The crux of this case centers on the exact location of the accident. Casteel claimed that he was riding his motorcycle and that he had pulled up to a stop sign that abutted a roadway with two lanes of travel in each direction divided by a median. Because Casteel intended to turn left on the roadway, he would have to cross over two lanes of traffic and enter the median and wait there until he could complete his left turn. Casteel testified that traffic was heavy so he waited at the stop sign for approximately two minutes before entering the roadway. Casteel testified that he saw Maddalena’s car approaching and that he estimated she was about six car lengths away. The parties agreed that Maddalena was traveling at about thirty-five miles per hour which meant she would cover those six car lengths within one to two seconds. Casteel contended that when the accident occurred, he had safely crossed the northbound lanes of traffic in which Maddalena was traveling and had come to a stop in the median. He alleged that his foot was down to steady his motorcycle as he waited to turn left into southbound traffic and that it was at that point that Maddalena hit him.

Maddalena, on the other hand, alleged that Casteel had not completed crossing the northbound lanes and was still in her lane of travel at the time she hit him. She testified that when she saw Casteel attempt to cross in front of her, she hit the brakes and blew the horn. She testified Casteel’s motorcycle was still moving at the time of impact.

Because the question to be resolved was the location of the accident, the issue of whether Maddalena skidded to a stop on impact became the main focus of the trial. Maddalena testified that she did not skid at all and that skid marks reflected in photographs shown to the jury were not caused by her ear. Casteel’s counsel called Melanie Lopez, Casteel’s girlfriend, who testified that she lived nearby. She arrived at the scene of the accident just a few minutes after it happened. Lopez further testified that she saw the skid marks at the scene and returned several hours after the accident to take the photographs which were shown to the jury. However, the testimony which became the basis for Maddalena’s motion for relief from judgment was Lopez’s testimony that because she lived so close to the scene of the accident, she had personal knowledge that the roadway had been freshly paved the day before the accident. Using that testimony, Casteel’s counsel argued to the jury that Maddalena’s car must have caused the skid marks and that Maddalena’s testimony to the contrary was not rehable.

Lopez’s testimony was a surprise to Maddalena because Lopez had not been listed as a witness for the liability portion of the trial. Rather, Lopez had been listed as a witness who would testify about Cas-teel’s general health during the damages phase of the proceedings. Consequently, Maddalena’s counsel conducted a posttrial investigation into Lopez’s claim that the roadway had been paved the day before the accident. Through public records and later verification by a Lane Construction Corporation employee, Maddalena learned that Lopez’s testimony was inaccurate and that the road had, in fact, been paved somewhere between ten days and three weeks before the accident, rather than the day before. Maddalena then filed her motion for relief from judgment based on that new evidence.

The trial court conducted a hearing on the motion and after taking the matter under advisement, the court granted the motion. However, despite Maddalena’s filing of the motion pursuant to rule 1.540(b)(2) on the basis of newly discovered evidence, the trial court, sua sponte, ruled that the motion was considered a motion filed pursuant to rule 1.540(b)(3) which deals with misconduct by an adverse party. Casteel filed a motion for rehearing but that motion was denied. This appeal follows.

Analysis

Ordinarily, we review an order on a motion for relief from judgment for an abuse of discretion. See Carmona v. Wal-Mart Stores, E., LP, 81 So.3d 461, 464 (Fla. 2d DCA 2011); Leach v. Salehpour, 19 So.3d 342, 344 (Fla. 2d DCA 2009). However, because the trial court’s decision to apply rule 1.540(b)(3) was purely a question of law, we apply a de novo review to that decision. See U.S. Bank Nat’l Ass’n v. Paiz, 68 So.3d 940, 943 (Fla. 3d DCA 2011); Mourning v. Ballast Nedam Constr., Inc., 964 So.2d 889, 892 (Fla. 4th DCA 2007).

I. Rule 1.540(b)(3) is not applicable in this case.

Rule 1.540(b)(3) specifically addresses fraud or misconduct of an adverse party. This includes situations where a party or their counsel participates in misconduct by a witness. Cf. Estate of Willis v. Gaffney, 677 So.2d 949, 950-51 (Fla. 2d DCA 1996) (recognizing that motion for relief from judgment may be properly filed pursuant to rule 1.540(b)(3) where party induced witness to commit perjury). Had Maddalena alleged that Casteel encouraged Lopez to provide false testimony, Maddalena’s motion could have been construed to be one filed under rule 1.540(b)(3). See Estate of Willis, 677 So.2d at 951 (noting that “ ‘the character of a motion will depend upon its grounds or contents, and not on its title.’ ” (quoting Jones v. Denmark, 259 So.2d 198, 200 n. 1 (Fla. 3d DCA 1972))).

But Maddalena never alleged that Cas-teel or his counsel committed any fraud or participated in any misconduct committed by Lopez. In fact, Maddalena alleged the contrary in her motion for relief from judgment. Specifically, Maddalena alleged that

[t]his is not to say that [the] Plaintiff intentionally gave testimony [he] knew to be false, as the Plaintiff may have truly believed this allegation to be factual. It is merely Defendant’s contention that the testimony was intentionally used to bolster the allegations of the Plaintiff, and this information has now been proven to be false, thus allowing a relief from judgment.

We have not found any Florida cases which specifically address a situation where an adverse party’s witness is alleged to have provided false testimony but no connection is made to the adverse party or that party’s counsel. But because rule 1.540 was modeled after Federal Rule of Civil Procedure 60, we may resort to federal case law to aid us in our interpretation of rule 1.540. And federal case law indicates that rule 60 only applies to fraud committed by the adverse party. See, e.g., Rodriguez v. Mitchell, 252 F.3d 191, 201 (2d Cir.2001) (“A fraud committed by a witness ... is not a ‘fraud ..., misrepresentation, or other misconduct of an adverse party.’ ” (quoting Fed.R.Civ.P. 60(b)(3))); see also In re Bolin & Co., No. 3:08cv1793 (SRU), 2012 WL 4370530, at *4 (D.Conn. Sept. 24, 2012); Lee v. Marvel Enters., Inc., 765 F.Supp.2d 440, 450 (S.D.N.Y.2011); Chang v. Roclcridge Manor Condo., 2010 WL 3063185, at *3-4 (N.D.Cal. Aug.3, 2010); Forrest v. Beloit Corp., 2005 WL 1869172, at *3 (E.D.Pa. Aug.2, 2005).

Maddalena’s allegation that Casteel intentionally used Lopez’s testimony to bolster his claims is not the same as an allegation that Casteel knew Lopez’s testimony was false but presented it anyway thereby participating in the fraud. Mad-dalena simply did not allege any fraud on the part of Casteel or his counsel. Additionally, the trial court made it clear that its order should not be misinterpreted to suggest that Casteel’s counsel presented Lopez’s testimony despite knowing it was false. Indeed, the trial court stated “There is absolutely no reason to conclude anything of the sort.”

However, the trial court did find that Lopez’s testimony “amounted to a fraud” because it “was not merely an ‘arguable miscalculation.’” And despite the fact that Maddalena expressly stated that she was not alleging that Casteel intentionally provided false testimony, the trial court— ■without any evidentiary support — found that Lopez’s testimony was “prepared by the client.” The clear implication then was that Casteel participated in presenting false testimony. This finding was reached without the benefit of having received evidence on that matter and, as a result, is not supported by the record.

Under the facts of this case, where the moving party has expressly refrained from alleging any fraud on the part of the adverse party or that party’s counsel, where the trial court itself has found no basis to conclude that the adverse party’s counsel knowingly presented false testimony, and where there is absolutely no record evidence to support a finding that the adverse party participated in the fraud, we hold that rule 1.540(b)(8) is inapplicable. The fact that an adverse party’s witness may have provided false testimony is not sufficient to entitle a moving party to relief from judgment pursuant to rule 1.540(b)(3) without proof that the adverse party or that party’s counsel participated in the fraud. Therefore the trial court erred by granting the motion based on rule 1.540(b)(3).

Yet even if rule 1.540(b)(3) had been applicable, we would be constrained to reverse.

II. Where a party clearly specifies fraudulent conduct pursuant to rule 1.540(b)(3), an evidentiary hearing is required.

When a party files a motion for relief from judgment pursuant to rule 1.540(b)(3) based upon an adverse party’s fraud or misconduct and the moving party clearly specifies the fraudulent conduct, the trial court must hold an evidentiary hearing before ruling on the motion. Rosenthal v. Ford, 443 So.2d 1077, 1078 (Fla. 2d DCA 1984); Dynasty Express Corp. v. Weiss, 675 So.2d 235, 239 (Fla. 4th DCA 1996); S. Bell Tel. & Tel. Co. v. Welden, 483 So.2d 487, 489 (Fla. 1st DCA 1986). The purpose of such a hearing is to permit the trial court to assess the credibility of the allegations. See Rosenthal, 443 So.2d at 1078. The failure to hold an evidentiary hearing, in the face of specific allegations of fraudulent conduct, constitutes reversible error. See Novastar Mortg., Inc. v. Bucknor, 69 So.3d 959, 960 (Fla. 2d DCA 2011); Rosenthal, 443 So.2d at 1078-79.

Of course, here, Maddalena did not allege any fraud on the part of Casteel or his counsel. But even if Maddalena’s allegations could be construed as facially sufficient allegations pursuant to rule 1.540(b)(3), the trial court would not have been permitted to rule on the motion without conducting an evidentiary hearing.

We acknowledge that the trial court’s order indicates it received evidence at the initial hearing on Maddalena’s motion for relief from judgment. However, because the motion was presented as one based on newly discovered evidence pursuant to rule 1.540(b)(2), rather than one based on fraud pursuant to rule 1.540(b)(3), the parties were not on notice that the trial court intended to consider the issue of whether Casteel participated in the presentation of Lopez’s false testimony. Thus neither party was provided with the opportunity to present evidence on that issue and the initial hearing cannot be considered the equivalent of a rule 1.540(b)(3) evidentiary hearing.

III. Remand is required because the trial court did not conduct a due diligence analysis for purposes of determining whether Maddalena should obtain relief based on newly discovered evidence pursuant to rule 1.540(b)(2).

Maddalena contends that this court could affirm for a different reason: that she met the requirements for relief from judgment based on newly discovered evidence. However, to obtain relief from judgment based on newly discovered evidence, the movant must demonstrate that she could not have discovered the evidence through due diligence within the time to move for rehearing or a new trial. See Belk v. McKaveney, 903 So.2d 337, 338 (Fla. 2d DCA 2005) (citing rule 1.540(b)(2)).

The trial court did not make a finding as to whether Maddalena had proven due diligence. Instead, the trial court found that “[a] party is not required to anticipate false testimony and therefore is not required to discover evidence that would refute it” (citing McDonald v. Pickens, 544 So.2d 261 (Fla. 1st DCA 1989)), and that “[t]here appears to be no case law supporting the proposition [that] a party must demonstrate due diligence before claiming that a case was affected by fraud” (citing Dynasty Express Corp., 675 So.2d 235).

We recognize that case law supports the proposition that there is no due diligence requirement where the adverse party knowingly puts on or uses false testimony. See McDonald, 544 So.2d at 264; Roberto v. Allstate Ins. Co., 457 So.2d 1148, 1150 (Fla. 3d DCA 1984). However, as we have already explained, there was no evidence in the record to support the trial court’s finding that Casteel participated in a fraud and Maddalena conceded as much in her motion. Thus because rule 1.540(b)(3) is inapplicable under the facts of this case, we are not persuaded by the trial court’s citation to cases that dispense with the due diligence requirement where a party claims a judgment has been affected by fraud. Accordingly, on remand, if the trial court considers Maddalena’s motion pursuant to rule 1.540(b)(2), it must conduct a due diligence analysis.

IV. Conclusion

There is simply no record evidence to support the trial court’s implication that Casteel participated in presenting Lopez’s false testimony. The trial court’s actions in taking the motion under advisement and then sua sponte ruling on it as a rule 1.540(b)(3) motion not only deprived the parties of notice that the court was considering the motion as one based on fraud or misconduct, but it also deprived the parties of their right to participate in a required evidentiary hearing. The hearing would have allowed the trial court to receive evidence to assist in determining whether, in fact, Casteel participated in presenting Lopez’s false testimony. But in the absence of such a hearing and in the absence of any express allegations of fraud on the part of Casteel or his counsel, the trial court had no evidentiary basis on which to grant the motion pursuant to rule 1.540(b)(3). Ac-eordingly, we reverse and remand for proceedings in conformance with this opinion.

Reversed and remanded.

NORTHCUTT and VILLANTI, JJ., Concur.

      . The trial was bifurcated for separate determinations on liability and damages.

      . DeClaire v. Yohanan, 453 So.2d 375, 377 (Fla.1984), superseded by rule on different grounds as stated in Parker v. Parker, 950 So.2d 388, 393 n. 2 (Fla.2007).

      . See Molinos Del S.A. v. E.I. Dupont de Nemours & Co., 947 So.2d 521, 524-25 (Fla. 4th DCA 2006) (noting that rule 1.540 is substantially similar to federal rule 60 and therefore relying on federal case law where no Florida case was factually on point).

      . We recognize that an evidentiary hearing is only required where a party specifies the fraudulent conduct rather than just mere legal conclusions. See Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994); see also S. Bell Tel. & Tel. Co. v. Welden, 483 So.2d 487, 489 (Fla. 1st DCA 1986) (holding that where party's allegations raise a "colorable entitlement” to relief pursuant to rule 1.540(b)(3), a formal evidentiary hearing is required). And as we have already noted, Maddalena did not specify any fraudulent conduct on the part of Casteel or Cas-teel’s counsel. However, because the trial court treated Maddalena’s allegations as involving fraud, we write to explain why eviden-tiary hearings are required where clear allegations of fraud exist.


source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    John CENTENO, Appellant, v. Joanne CENTENO, Appellee.
    No. 2D12-1708.
    District Court of Appeal of Florida, Second District.
    April 3, 2013.
    Laura H. Howard and Mark S. Howard of Mark S. Howard, P.A., Tampa, for Appellant.
    Jane H. Grossman of Law Office of Jane H. Grossman, St. Petersburg, for Appellee.
   DAVIS, Judge.

John Centeno, the Former Husband, challenges the trial court’s order denying his petition to modify the alimony provisions of the final judgment of dissolution of his marriage to Joanne Centeno, the Former Wife. We reverse.

On May 12, 2008, the trial court entered its final judgment of dissolution, incorporating the parties’ mediated settlement agreement (MSA). The final judgment awarded the Former Wife rehabilitative alimony of $5000 per month for five years. However, by the terms of the MSA, the parties agreed to certain self-executing modifications of the term and amount of rehabilitative alimony should the Former Wife remarry within the five-year term.

Specifically, the MSA provides as follows: “Except as set forth below, the term of the rehabilitative alimony shall be non-modifiable [sic;] however, since the alimony is insufficient to meet the needs of the wife as established during the parties’ marriage, the amount of the alimony shall be modifiable.” The MSA further provides that should the Former Wife remarry within the first three years after dissolution, the Former Husband’s alimony obligation would automatically be reduced to $2000 per month and the term would be shortened to twenty-four months following the remarriage. Additionally, according to the MSA, if the Former Wife remarried at any time between the beginning of the third year and the conclusion of the fifth year after dissolution, the Former Husband’s alimony obligation would be reduced to $2000 per month for the remainder of the five-year term. This paragraph of the MSA specifically states that “[t]he payments established by this paragraph shall be non-modifiable [sic] as to amount and duration.”

The MSA also includes a provision for the extension of the rehabilitative alimony at the rate of $2000 a month for an additional twenty-four months should the original five-year term expire and the Former Wife remain unmarried. Again, this provision specifically states that the payments “shall otherwise be non-modifiable [sic] as to amount and duration.”

Postdissolution, the Former Husband failed to make the alimony and child support payments required by the MSA as incorporated into the final judgment. The Former Wife therefore filed a motion seeking to hold the Former Husband in contempt, to enforce his support obligations, and to award her attorney’s fees and costs. The Former Husband then filed a petition for a downward modification of the amounts of his alimony and child support obligations.

In considering the pleadings, the trial court found that by the language of the MSA, the Former Husband had waived his rights to seek modification of the amount of the rehabilitative alimony. Because the Former Wife had not remarried and the sixty-month term had not expired, the only language that was subject to review by the trial court was the initial statement setting forth the length of the term and the amount of the rehabilitative alimony. The trial court agreed with the Former Wife that the phrase “since the alimony is insufficient to meet the needs of the wife” limited the parties’ rights to modify to only her right to seek an increase. Accordingly, the trial court granted the Former Wife’s motion for summary judgment on the waiver issue. This was error.

“Parties to a marriage may waive their statutory right to seek modification of alimony provisions in a settlement agreement if the language in the agreement clearly and unambiguously expresses waiver or if the ‘interpretation of the agreement as a whole can lead to no other conclusion but waiver.’ ” Tapp v. Tapp, 887 So.2d 442, 444 (Fla. 2d DCA 2004) (quoting Sasnett v. Sasnett, 683 So.2d 177, 178 (Fla. 2d DCA 1996)). Here, the language of the MSA provisions contemplating the Former Wife’s remarriage demonstrates a clear intent to make those provisions nonmodifiable. The terms are clear and leave no room for interpretation.

However, the expression in the initial statement is not so clear. The phrase “since the amount of the alimony is insufficient to meet the needs of the wife ... the amount of alimony shall be modifiable” suggests that the Former Wife may indeed seek an increase in the amount of the alimony should the Former Husband’s income increase. But the language does not clearly and plainly state that such would be the only circumstance under which modification may occur. The language of the MSA here is analogous to that of the agreement in Cook v. Cook, 94 So.3d 683 (Fla. 4th DCA 2012). There, the issue was the modification of alimony rather than child support. The parties’ agreement required the former husband to pay alimony in the amount of $1 annually but also provided as follows:

This amount may be modified upon any modification in custody of the minor children,. such that the alimony obligation would be increased. It is the intent of the parties that the wife be able to modify this amount at any time there is a modification to the custody provisions of this [a]greement.

Id. at 684. When the former wife in Cook sought a modification in alimony even though there was no change in custody, the trial court determined that the agreement limited any modification to instances where there had been a change in custody; because this had not occurred, the court denied the former wife’s request. Id.

The Fourth District, however, determined that this language was not a limiting condition. Id. at 685. That is, although it gave the former wife the right to seek a modification when a change in custody occurred, that description did not preclude any other attempts to seek modification of the alimony amount. Id. The Fourth District concluded that “[a]s a general rule, conditions precedent are not favored, and courts will not construe provisions to be such, unless required to do so by plain, unambiguous language or by necessary implication.” Id. (quoting In re Estate of Boyar, 592 So.2d 341, 343 (Fla. 4th DCA 1992)).

We conclude that the language of the instant MSA also describes one set of facts under which the amount of rehabilitative alimony may be modified but does not in clear and express terms limit modification to only that one set of facts. The terms are not a clear and unambiguous waiver by the Former Husband of his statutory right to seek modification, and we decline the invitation to read the language as a condition precedent to his seeking relief.

Accordingly, we reverse and remand for further proceedings consistent with this opinion.

CRENSHAW and MORRIS, JJ„ Concur.


text:
    Christopher CUNNINGHAM, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1874.
    District Court of Appeal of Florida, Second District.
    April 3, 2013.

      Christopher Cunningham, pro se.
   DAVIS, Judge.

Christopher Cunningham appeals from an order denying his three-claim motion filed pursuant to Florida Rule of Criminal Procedure 3.850. We affirm as to claims one and two without further comment. We reverse and remand as to claim three, treated by the postconviction court as if filed under rule 3.800(a), because the records of previous convictions provided by the State and attached to the order on appeal do not clearly demonstrate that Cunningham could be sentenced as a habitual offender.

On August 27, 2004, Christopher Cunningham pleaded guilty to several charges, including two counts of selling cocaine, in exchange for a split sentence of seven years in prison followed by eight years of probation. Cunningham was not sentenced on that day. Instead, he requested a brief furlough, which the court granted on the condition that he return for sentencing on a specified day, failing which he would be sentenced to fifteen years in prison. On the day scheduled for sentencing, the court was closed due to a hurricane, and Cunningham’s sentencing was rescheduled. Cunningham, however, failed to appear on the rescheduled day. When he was later arrested, the court sentenced him to two concurrent fifteen-year terms as a habitual felony offender (HFO) on the sale of cocaine charges.

In claim three of his postconviction motion, Cunningham alleged that the State had failed to satisfy two statutory requirements for habitualization because (1) the offenses for which he had been habitual-ized did not occur within the timeframe defined in the relevant statute and (2) they were not sequential. The postconviction court properly treated this claim as if it had been raised pursuant to rule 3.800(a). See Bover v. State, 797 So.2d 1246, 1248-49 (Fla.2001).

As for the first subclaim, section 775.084(l)(a)(2)(b), Florida Statutes (2003), requires that the offenses for which the defendant is being sentenced as an HFO must have been committed “[w]ithin [five] years of the date of the conviction of the defendant’s last prior felony or other qualified offense or within [five] years of the defendant’s release from a prison sentence, probation, community control ... or lawfully imposed supervision.... ” The court relied on the second prong, attaching a Department of Corrections (DOC) release-date letter and what appears to be a DOC crime and time report. However, these documents were insufficient to establish Cunningham’s release date because the latter document bears the name and DOC number of another inmate. On remand, the court may again deny Cunningham’s motion if it attaches documentation existing in the record to support his qualification as an HFO.

Cunningham’s second subclaim is that the two predicate offenses asserted by the State fail to satisfy section 775.084(5), which requires that the two predicate felonies must have been sentenced separately. The documentation provided by the State to support the first composite predicate appears to be in order. For the second predicate, however, the State provided a judgment entered on violation of probation. This is improper because it is impossible to confirm that the original sentencing for the second set of predicate offenses did not take place together with the sentencing for the offenses of the first predicate. See Butler v. State, 93 So.3d 328, 330 (Fla. 2d DCA 2011) (holding that a “judgment” entered on violation of probation did not reflect a new conviction and thus did not support a violent career criminal sentence). On remand, the postconviction court may again deny this claim if it attaches documents from the record demonstrating sequential predicates. See Martin v. State, 884 So.2d 452, 453 (Fla. 3d DCA 2004).

If the postconviction court is unable to attach record documentation to refute Cunningham’s claims, it shall resentence Cunningham to any sentence contemplated by his plea and furlough agreement.

Affirmed in part, reversed in part, and remanded with instructions.

NORTHCUTT and CRENSHAW, JJ., Concur.

      . The postconviction court treated claim three under rule 3.800(a) because it concluded that the claim was successive under rule 3.850. Our reversal does not disturb that conclusion.

      . The Florida Supreme Court in Yisrael v. State, 993 So.2d 952, 955-60 (Fla.2008), provides a somewhat complex analysis of how the two DOC documents can be used together by the State to confirm a prison release date when habitualizing a defendant. However, a release-date letter, without the crime and time report, is hearsay that does not satisfy the business records or public records exceptions to the hearsay rule and is thus inadmissible on its own to demonstrate a release date. Id. Accordingly, although the release-date letter here bore the correct name, it alone was not enough to establish Cunningham’s status as an HFO.


author: VILLANTI, Judge.

text:
    Raymond Lee MABREY, Appellant, v. FLORIDA PAROLE COMMISSION, Appellee.
    No. 2D12-3941.
    District Court of Appeal of Florida, Second District.
    April 3, 2013.
    Raymond Lee Mabrey, pro se.
    Sarah J. Rumph, General Counsel, Florida Parole Commission, Tallahassee, for Appellee.
   VILLANTI, Judge.

Raymond Lee Mabrey appeals from an order of the circuit court dismissing his petition for writ of habeas corpus. The Florida Parole Commission has waived briefing and concedes that Mabrey, who resides -within the territorial jurisdiction of the Sixth Judicial Circuit, properly sought his immediate release by filing a petition for writ of habeas corpus in that court. See Donovan v. Fla. Parole Comm’n, 72 So.3d 339, 340 (Fla. 2d DCA 2011). Furthermore, the petition demonstrates on its face that Mabrey exhausted his administrative remedies once the Commission took final action on the revocation of his conditional release. The circuit court, acting in its appellate capacity, should have reviewed the Commission’s order. See Sheley v. Fla. Parole Comm’n, 703 So.2d 1202, 1206 (Fla. 1st DCA 1997) (en banc), aff'd, 720 So.2d 216 (Fla.1998).

Accordingly, we reverse the order dismissing Mabrey’s petition for writ of habe-as corpus and remand for the circuit court to consider the petition on its merits.

CASANUEVA and DAVIS, JJ., Concur.


author: NORTHCUTT, Judge.

text:
    D.C., Appellant, v. STATE of Florida, Appellee.
    No. 2D11-6079.
    District Court of Appeal of Florida, Second District.
    April 3, 2013.

      Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Danilo CruznCarino, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

D.C. appeals a restitution order following his no contest plea to burglary and petit theft. He argues, and we agree, that the restitution amount was not supported by competent, substantial evidence. Accordingly, we reverse.

D.C., along with his brother and another juvenile, burgled a home. At the restitution hearing, the husband-and-wife victims testified regarding the property allegedly stolen from their home. The investigating officers also testified. The couple claimed that more property was stolen than they had initially reported. The prosecutor then attempted to summarize the victims’ testimony and suggested reductions in value for depreciation. Defense counsel objected to the amounts and to the award of restitution for items that were never reported to the police as stolen or for items that the police said they recovered. The trial court announced that it would “award restitution in the amount suggested by the State Attorney.” The subsequent order awarded restitution of $652.34.

A trial court has discretion to determine the amount of restitution and is not required to abide by “a rigid standard of proof.” State v. Hawthorne, 573 So.2d 330, 332-33 (Fla.1991). “[T]his does not mean ... that a trial court can arbitrarily award any amount of restitution it deems adequate.” Fernandez v. State, 98 So.3d 730, 732 (Fla. 2d DCA 2012) (quoting Glaubius v. State, 688 So.2d 913, 915 (Fla.1997)). Generally, restitution will be based on the fair market value of the property at the time of the offense, and this case does not present any exception to the general rule. See Hawthorne, 573 So.2d at 333.

Fair market value can be established through evidence of “(1) original market cost; (2) manner in which the item was used; (3) the general condition and quality of the item; and (4) the percentage of depreciation;” Id. at 332 (citing Negron v. State, 306 So.2d 104, 108 (Fla.1974), receded from on other grounds, Butterworth ex rel. Broward Cnty. v. Fluellen, 389 So.2d 968 (Fla.1980)). An owner is generally qualified to offer testimony on the fair market value of his or her property. Id. at 3336 n. 6.

In this case, however, the owners’ testimony was incomplete because they simply furnished purchase prices for the stolen items, not the fair market value. And in several cases, they provided a range of prices. Some of the items were several years old, leading the prosecutor to propose depreciated values based on nothing more than her ad hoc sense of what seemed fair. The prosecutor’s assertions were not competent, substantial evidence. See Molter v. State, 892 So.2d 1115, 1117 (Fla. 2d DCA 2004). A restitution award must be based on competent evidence, not on mere speculation. Fernandez, 98 So.3d at 732. We reverse and remand for a new restitution hearing.

Reversed.

SILBERMAN, C.J., and CRENSHAW, J., Concur.


author: PER CURIAM.

text:
    Dawn RUSS and Law Office of Michael J. Winer, P.A., Petitioners, v. BROOKSVILLE HEALTH CARE CENTER, LLC/Premier Group Insurance, Respondents.
    No. 1D12-4289.
    District Court of Appeal of Florida, First District.
    April 3, 2013.
    Susan W. Fox of Fox & Loquasto, P.A., Orlando for Petitioner Dawn Russ; Michael J. Winer of the Law Office of Michael J. Winer, P.A., Tampa, for Petitioner Law Office of Michael J. Winer, P.A.
    William H. Rogner and W. Rogers Turner of Hurley, Rogner, Miller, Cox, War-anch & Westcott, P.A., Winter Park, for Respondents.
   PER CURIAM.

In this workers’ compensation case, Appellants have filed a petition for certiorari review of an order of the Judge of Compensation Claims (JCC) which denied Claimant’s motion seeking both approval of an hourly attorney’s fee retainer agreement and an evidentiary hearing to build a record to support a constitutional challenge to the attorney’s fee statutes. We find the Claimant is entitled to relief on the denial of an evidentiary hearing, by the reasoning below. As a result, we decline to review the JCC’s decision not to approve the fee agreement, or consider the constitutional arguments associated with such review, as premature.

A JCC’s inability to rule on constitutional issues does not preclude a claimant’s right to build an evidentiary record in preparation for a constitutional challenge. See Anderson Columbia v. Brown, 902 So.2d 838, 841 (Fla. 1st DCA 2005), cited in Punsky v. Clay County Bd. of County Comm’rs, 60 So.3d 1088, 1092 (Fla. 1st DCA 2011). Although, as noted by the JCC, rule 60Q-6.115(4) of the Rules of Procedure for Workers’ Compensation Adjudications states, “[t]he judge shall not hold hearings on motions except in exceptional circumstances and for good cause shown in the motion or response.” Appellants’ challenge to the constitutionality of the fee statutes, particularly because it is an as-applied challenge, presents such circumstances for a hearing here. It is true that JCCs lack jurisdiction over constitutional issues. B & B Steel Erectors v. Burnsed, 591 So.2d 644, 647 (Fla. 1st DCA 1991) (“[W]e note that workers’ compensation judges do not have the power to determine the constitutionality of a portion of the Workers’ Compensation Act, and that such issues may be raised for the first time on appeal, without having been preserved below.”). Even in the context of a workers’ compensation case, however, “the right to call witnesses is one of the most important due process rights of a party.” AT & T Wireless Servs., Inc. v. Castro, 896 So.2d 828, 832 (Fla. 1st DCA 2005). Further, to assist appellate courts in determining the constitutionality of statutes “it oftentimes is preferable to have a record developed in the lower court.” N. Fla. Women’s Health & Counseling Servs., Inc. v. State, 866 So.2d 612, 626 (Fla.2003) (concerning Parental Notice of Abortion Aet); see also State Employees Attorneys Guild v. State, 653 So.2d 487, 489 (Fla. 1st DCA 1995) (“When the constitutionality of a statute is a mixed question of law and fact, involving the existence of valid reasons for the legislation, it is preferable to have a record developed in a lower court before a finder of fact.”). And both the Florida Supreme Court and this court have rejected constitutional arguments for lack of evidence. See Cox v. Fla. Dep’t of Health & Rehabilitative Servs., 656 So.2d 902 (Fla.1995) (remanding case on ground eviden-tiary record was insufficient to support Second District’s holding that equal protection rights were not violated by statute precluding petitioner from adopting child because petitioner was gay); Khoury v. Carvel Homes S., Inc., 403 So.2d 1043, 1046 (Fla. 1st DCA 1981) (holding workers’ compensation claimant failed to prove statute requiring JCC’s approval for payment of attorney’s fees was inadequate to achieve legitimate state interest in protecting workers).

For these reasons, we conclude the JCC departed from the essential requirements of law, and caused irreparable harm, by denying Claimant’s motion for an eviden-tiary hearing. Cf. Sylvia H. Walbolt & Leah A. Sevi, The “Essential Requirements of the Law”—When Are They Violated?, The Florida Bar Journal 21-26 (March 2011) (suggesting constitutional considerations be included in defining “essential requirements of law” for purposes of certiorari review); Philip J. Padovano, Florida Appellate Practice § 29:5, at 734-35 (2011 ed.) (“This standard [whether the order on review is a departure from the essential requirements of law] focuses not only on the alleged error, but also on the seriousness of the error”).

PETITION GRANTED and ORDER QUASHED in part, as to the ruling denying the evidentiary hearing.

WOLF, PADOVANO, and LEWIS, JJ., concur.


author: KHOUZAM, Judge.

text:
    David B. HUFFMAN, Appellant/Cross-Appellee, v. Vivian Janice HUFFMAN, a.k.a. Janice B. Huffman, Appellee/Cross-Appellant.
    No. 2D11-2496.
    District Court of Appeal of Florida, Second District.
    April 3, 2013.
    James R. Schaffer of James R. Schaffer, P.A., Tampa, for Appellant/Cross-Appel-lee.
    Jeremy E. Gluckman of Jeremy E. Gluckman, P.A., Tampa, for Appel-lee/Cross-Appellant.
   KHOUZAM, Judge.

David B. Huffman timely appeals the amended and restated final judgment of dissolution of marriage to Vivian Janice Huffman. Ms. Huffman has also filed a timely cross-appeal. We reverse because the trial court failed to properly credit Mr. Huffman for alimony paid during the pen-dency of the proceedings. As to the remaining issues, we affirm without comment.

Mr. Huffman argues that the court abused its discretion by fading to properly credit him for alimony paid during the pendency of the proceedings, in which the petition for dissolution was filed in 2004 and the original final judgment was entered in 2007. In the amended final judgment, the court awarded retroactive alimony to Ms. Huffman and stated that it would be added to her equalization payment, subject to credit for alimony actually paid and designated as such during the time period in question. The original final judgment stated that Mr. Huffman had actually paid $86,909 in support payments for 2004, $153,305 in support for 2005, and $67,384 in 2006. Because the amended equitable distribution schedule does not appear to take these payments into account, we reverse and remand for the trial court to credit Mr. Huffman for these payments.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and CASANUEVA, JJ., Concur.


text:
    DEPARTMENT OF CHILDREN AND FAMILIES, Petitioner, v. W.H., Mother of C.H., Minor Child, Respondent.
    No. 1D13-733.
    District Court of Appeal of Florida, First District.
    April 3, 2013.

      Ward L. Metzger, Appellate Counsel, Department of Children and Families, Jacksonville, for Petitioner.
    Susan Barber, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, Tallahassee, for Respondent.
   PER CURIAM.

The Department of Children and Families (the Department) seeks certiorari review of a non-final, post-dependency order which ordered reunification of the child, C.H., with her parents. “Certiorari review of a nonfinal order is limited to errors that constitute a departure from the essential requirements of the law, causing irreparable injury, for which there is no adequate remedy on direct appeal.” In re A.W.P, Jr., 10 So.3d 134, 135 (Fla. 2d DCA 2009). Because the trial court departed from the essential requirements of the law, we quash the order on review.

Before ordering reunification, a trial court must consider the parents’ compliance with the case plan and whether reunification would be detrimental to the child. C.D. v. Dep’t of Children & Families, 974 So.2d 495, 500 (Fla. 1st DCA 2008). The court is also required to make written factual findings as to the six statutory factors contained in section 39.621(10), Florida Statutes. Id. In this case, the trial court made a finding only as to the parents’ compliance with the case plan. The court failed to address the other statutory factors. Moreover, there was no competent, substantial evidence to support a finding as to any of the factors because the Department was not on notice that reunification was a possible result of the hearing and no evidence regarding this issue was presented to the trial court. The lack of notice and the lack of an evidentiary hearing on reunification violated the Department’s right to due process. State, Dep’t of Children & Families v. B.D., 102 So.3d 707, 710 (Fla. 1st DCA 2012) (quashing an order reopening a dependency proceeding where the trial court failed to make specific, required findings of fact and where the court failed to allow the presentation of evidence); Fla. Dep’t of Children & Families v. R. A., 980 So.2d 578, 579-80 (Fla. 3d DCA 2008) (quashing an order of reunification where the Department was not given due process notice and there was no competent, substantial evidence to support the court’s decision to reunify the children with the mother); Dep’t of Children & Family Servs. v. I.C., 742 So.2d 401, 405-06 (Fla. 4th DCA 1999) (noting that an injunction was a violation of due process where the court gave no notice to the Department that it would enter the injunction and it took no evidence regarding that issue). For these reasons, the trial court’s order departed from the essential requirements of the law and caused irreparable harm that could not be remedied on direct appeal.

We, therefore, grant the petition, quash the order on review, and remand for an appropriate determination of the issues involved after due notice and a full hearing.

Certiorari granted.

CLARK, WETHERELL, and ROWE, JJ., concur.


author: ROWE, J.

text:
    W. Charles FLETCHER, Petitioner, v. JUSTICE ADMINISTRATIVE COMMISSION, Respondent.
    No. 1D12-5709.
    District Court of Appeal of Florida, First District.
    April 4, 2013.
    Rick A. Sichta and Susanne K. Sichta, Jacksonville, for Petitioner.
    Stuart L. Hartstone and Terence M. Lenamon of The Florida Capital Resource Center, Miami, Amicus Curiae.
    Ana Cristina Martinez, General Counsel, and Christian D. Lake, Assistant General Counsel, the Justice Administrative Commission, Tallahassee, for Respondent.
   ROWE, J.

Petitioner, W. Charles Fletcher, seeks review of an order awarding him $35,000 in attorney’s fees for representing an indigent criminal defendant in a capital case, instead of the $62,570 he requested. Petitioner argues that the trial court departed from the essential requirements of the law in two ways. First, he argues that the trial court erred in limiting his fees without making a finding as to the reasonable number of hours he worked in representing his client. Second, he argues that the trial court impermissibly considered the court’s budget when it limited his fee award. We agree that the trial court failed to make the requisite factual findings, and we grant the petition.

Petitioner, who is a private attorney, was appointed to represent Billy Sheppard in a capital trial involving two counts of first-degree murder, one count of attempted robbery, two counts of possession of a firearm by a convicted felon, and one count of grand theft. Petitioner filed a motion seeking $62,750 in attorney’s fees for 627.5 hours of legal services at the statutory maximum rate of $100 per hour. After an evidentiary hearing, the trial court found that the case required extraordinary and unusual efforts on the part of counsel, that the circumstances merited a departure from the statutory flat fee of $15,000, and that twice the statutory flat fee would be confiscatory. The court, without explanation, found that an award of $35,000 would be appropriate under the circumstances, and it attached a memorandum that was sent to all court-appointed conflict' counsel about the court’s ability to award excess attorney’s fees due to the 2012 amendment to section 27.5304, Florida Statutes.

The Legislature has set a flat fee of $15,000 for compensating court-appointed private attorneys who represent indigent defendants in capital cases. § 27.5304(5)(a)4., Fla. Stat. (2012). However, the Legislature provided a procedure for counsel to seek excess fees in cases that require extraordinary and unusual efforts. § 27.5304(12), Fla. Stat. (2012). The chief judge, or a single designee, is required to hold an evidentiary hearing on all motions for excess fees and, if the chief judge finds that 200% of the flat fee would be confiscatory, the chief judge is required to calculate the amount of fees necessary to ensure that the total fees paid are not confiscatory by using an hourly rate not exceeding $100 per hour in capital cases. § 27.5304(12)(d), Fla. Stat. (2012). When awarding fees pursuant to section 27.5304, the trial court is required to make a finding as to the reasonable number of hours expended by counsel in the ease before it can determine whether a fee award would be confiscatory. Kelly v. Justice Admin. Comm’n, 99 So.3d 627, 628 (Fla. 2d DCA 2012); Hilliard v. Justice Admin. Comm’n, 98 So.3d 1288, 1289 (Fla. 1st DCA 2012); Zelman v. Justice Admin. Comm’n, 78 So.3d 105, 107 (Fla. 1st DCA 2012). In this case, the trial court never made any findings regarding the reasonable number of hours expended by Petitioner when it determined that $35,000 was an appropriate fee. Because this was a departure from the essential requirements of the law, we grant the petition and quash the fee award.

Petitioner also argues that the trial court departed from the essential requirements of the law by citing to budgetary concerns when it limited his fee award. The court’s budgetary concerns arose from the 2012 amendment to section 27.5304. In 2012, the Legislature amended the statute “to require the State Court System to pay court appointed counsel fees ordered by the court above the flat fees set in law once the funds appropriated to the Justice Administrative Commission for that purpose have been spent.” Fla. H.R. Comm, on Just. Approp., SB 1960 (2012) Staff Analysis (final Mar. 19, 2012) (on file with comm.). Prior to this amendment, conflict-counsel fees were paid by the Justice Administrative Commission from the Criminal Conflict Appropriation category in the General Appropriation Act. The cost of fees in previous years exceeded the original appropriation and the Legislature was required to make supplemental appropriations from unallocated general revenue to cover the deficit. The purpose of the 2012 amendment was to encourage the courts to “take a stronger role in governing the ordering of fees. If the court system is answerable for some of the costs associated with payments above the flat fee, judges may be less willing to order these fees.” Fla. S. Comm, on Budget, SB 1960 (2012) Staff Analysis (final Feb. 16, 2012) (on file with comm.).

In order to implement this change, the Office of the State Court Administrator (OSCA) and the Trial Court Budget Commission created the “Statewide Conflict Counsel Payment Over the Flat Fee Pool” (Statewide Pool). Excess fees from all types of cases are paid from the Statewide Pool. However, in an attempt to constrain expenditures, each circuit has been given an expenditure allowance from the Statewide Pool for non-RICO and non-capital cases. According to a memorandum from OSCA that was sent to all of the circuit courts, if a circuit exceeds its expenditure allowance for non-capital and non-RICO cases, then funds must be transferred from that circuit’s general budget to the Statewide Pool. However, the memorandum failed to address how excess fees in capital and RICO cases would be paid if the Statewide Pool was exhausted.

In response to this change and pursuant to the methodology established by OSCA, the Fourth Judicial Circuit sent a memorandum to all court-appointed conflict counsel about the court’s ability to award excess fees. The memorandum informed counsel that the circuit had already spent 25% of its allowance for fees within the first two months of the fiscal year and that once the allowance was exhausted, the funds would be taken out of the circuit court’s general budget, jeopardizing essential programs, services, resources, and personnel. The memorandum further stated that the chief judge would be forced to deny almost all excess fees in order to protect the best interests of the circuit as a whole. However, the memorandum did not make any distinction between excess fees awarded in capital and RICO cases and those awarded in all other types of cases.

Petitioner relies on Still v. Justice Administrative Commission, 82 So.3d 1168 (Fla. 4th DCA 2012), to argue that the court’s consideration of budgetary issues was a departure from the essential requirements of the law. In Still, the trial court awarded conflict counsel substantially less than the amount of fees requested due to concerns over whether the State of Florida could afford to pay the amount sought. Id. at 1169. The Fourth District held: “While the trial court’s concerns as to the State’s financial condition were obviously well intended, it must be recognized that matters of appropriation and adequacy of state funds are legislative functions and not judicial. It would be a violation of the separation of powers doctrine for trial courts to address whether adequate state funding is available to discharge a statutory provision authorizing payment of attorney’s fees, such as here.” Id. at 1170. The rationale in Still is not applicable to the current case because the circuit court was considering its own budget, not that of the State of Florida, when determining the proper amount of fees to award. Thus, the same separation of powers concern is not present in the instant case. While we are sensitive to the court’s budgetary concerns and the need to keep the courthouse doors open and thus preserve access to courts, these concerns must be balanced with the defendant’s Sixth Amendment right to appointed, conflict-free counsel. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Johnson v. State, 78 So.3d 1305 (Fla.2012). Regardless, we need not reach this issue because the trial court failed to make the requisite findings as discussed above.

We, therefore, grant the petition, quash the fee award, and remand for reconsideration. If the trial court determines that an award greater than the statutory cap is justified, it should make the appropriate findings to support the award.

PETITION GRANTED.

MARSTILLER, J„ concurs; BENTON, C.J., concurs in result.

       We note, however, that it is unclear from the record before this Court whether the circuit court would be required to transfer money from its own budget into the Statewide Pool for excess fee awards in a capital or RICO case once the Statewide Pool has been exhausted.


text:
    Keith ELMS, Petitioner, v. CASTLE CONSTRUCTORS CO. and Bridgefield Employers Insurers/Claims Centers, Respondents.
    No. 1D12-4274.
    District Court of Appeal of Florida, First District.
    April 4, 2013.
    Jeffrey E. Appel of the Appel Law Group, Lakeland, for Petitioner.
    Thomas P. Vecchio of Vecchio, Carrier & Feldman, P.A., Lakeland, for Respondents.
   PER CURIAM.

In this workers’ compensation case, Keith Elms petitions for certiorari review of an order of the Judge of Compensation Claims (JCC) denying approval of a retainer agreement between Elms and his attorney, Jeffery Appel. We dismiss the petition because Elms has not established the “irreparable harm” necessary to obtain certiorari relief.

In September 2011, Elms was rendered a paraplegic as a result of a work accident. He has received permanent total disability payments and other workers’ compensation benefits from the employer/carrier (E/C) since the accident. There are no pending disputes between the parties and, to date, Elms has not needed to file a petition for benefits to secure any of the benefits that he is due under the Workers’ Compensation Law. Thus, for Elms, the workers’ compensation system appears to be working precisely as intended. See § 440.015, Fla. Stat. (2011) (explaining that Workers’ Compensation Law is intended to be self-executing system that assures prompt delivery of disability and medical benefits to injured workers).

In May 2012, Elms, through Appel, filed a motion seeking JCC approval of a retainer agreement pursuant to which Elms would pay a one-time flat fee of $100 for ongoing advice concerning his workers’ compensation case in exchange for Appel not charging an employee-paid fee on any benefits secured during the course of the representation. The JCC denied the motion, reasoning that section 440.34(1), Florida Statutes (2011), effectively prohibits the approval of such an agreement and fee where the attorney has not secured any benefits. Elms timely filed a petition for certiorari with this Court seeking review of the JCC’s order, in which he argues that the JCC misinterpreted section 440.34(1) or, if the JCC properly construed the statute, it is unconstitutional on Equal Protection and First Amendment grounds.

“Certiorari is the proper remedy, in limited circumstances, to review a non-final order that is not subject to [interlocutory appeal].” AVCO Corp. v. Neff, 30 So.3d 597, 601 (Fla. 1st DCA 2010); see also Keck v. Eminisor, 104 So.3d 359, 364 (Fla.2012) (explaining that “under very narrow circumstances, a party may petition for certiorari to seek review of a non-final order not otherwise appealable”). As the supreme court recently reiterated, “[c]ertiorari review is intended to ... allow a court to reach down and halt a miscarriage of justice where no other remedy exists; it was never intended to redress mere legal error.” Williams v. Oken, 62 So.3d 1129, 1133 (Fla.2011) (quoting Broward County v. G.B.V. Int'l., Ltd., 787 So.2d 838, 842 (Fla.2001) (internal quotations omitted)). More recently, in Board of Trustees of the Internal Improvement Trust Fund v. American Educational Enterprises, LLC, the supreme court emphasized that “certiorari relief is an ‘extremely rare’ remedy that will be provided in ‘very few cases.’ ” 99 So.3d 450, 455 (Fla.2012) (quoting Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1098-99 (Fla.1987), and citing a number of other cases).

To obtain relief by certiorari, the petitioner must demonstrate that the challenged order [1] constitutes a departure from the essential requirements of law [2] resulting in material injury for the remainder of the case [3] that cannot be corrected on appeal. Williams, 62 So.3d at 1132 (quoting Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla.2004)). The latter two elements are jurisdictional and must be met before the appellate court may even consider the first element, and if the petitioner fails to establish the “irreparable harm” required by the latter two elements, then the appellate court lacks jurisdiction to grant certiorari relief. Bd. of Trustees, 99 So.3d at 454-55 (“A finding that the petitioning party has ‘suffered an irreparable harm that cannot be remedied on direct appeal’ is a ‘condition precedent to invoking a district court’s certiorari jurisdiction.’ ”) (quoting Jaye v. Royal Sax on, Inc., 720 So.2d 214, 215 (Fla.1998)); accord Pepsi Bottling Group, Inc. v. Underwood, 8 So.3d 1260, 1262 (Fla. 1st DCA 2009) (denying petition for certiorari in workers’ compensation case because petitioner “failed to satisfy the irreparable harm requirement”).

Here, the petition alleges that Elms is irreparably harmed by the JCC’s order because it leaves him without legal representation to navigate the complex workers’ compensation system. The record presented, however, refutes this assertion and establishes that Elms has, and has always had, competent counsel of his choice ready, willing, and available to advise and assist him on matters related to his workers’ compensation case. In fact, it is undisputed that when an issue arose concerning the E/C’s obligation to pay for modifications to Elms’ home to accommodate his disability, Appel negotiated a substantial lump-sum settlement of the claim on Elms’ behalf that included an E/C-paid attorney’s fee in excess of $11,000. Accordingly, under the circumstances of this case, it is disingenuous for Elms to suggest that the challenged order leaves him without legal representation and as “helpless as a turtle on its back.” Cf. Davis v. Keeto, Inc., 463 So.2d 368, 371 (Fla. 1st DCA 1985) (observing that, without assistance of competent counsel, claimant would have been “helpless as a turtle on its back” in attempting to recover impairment benefits withheld by E/C).

This case is unlike Walker v. River City Logistics, Inc., 14 So.3d 1122 (Fla. 1st DCA 2009), in which this Court granted a petition for writ of certiorari and quashed the JCC’s order disqualifying the claimant’s attorney. The effect of the order in Walker was to “den[y] a party its counsel of choice.” Id. at 1123. Here in contrast, Elms has not been denied counsel of his choice and, as noted above, he has been, and continues to be, represented by counsel of his choice, Appel, despite the JCC’s order denying approval of the retainer agreement. At most, the order denies Elms the opportunity to obtain Appel’s services under the terms specified in the retainer agreement. That, however, is not enough to justify certiorari review in this case.

In sum, while we recognize the importance of injured employees having access to competent counsel to provide advice and assistance on workers’ compensation matters, Elms failed to establish that the challenged order in this case has a material, irreparable adverse impact on his access to competent counsel of his choice. Accordingly, we lack jurisdiction to review the challenged order by certiorari and thus do not reach the statutory construction and constitutional issues framed by the petition.

For these reasons, the petition for writ of certiorari is DISMISSED.

WOLF, VAN NORTWICK, and WETHERELL, JJ., concur.

        See Bared & Co. v. McGuire, 670 So.2d 153, 157 (Fla. 4th DCA 1996) (en banc) (explaining that dismissal, rather than denial, is proper disposition of petition for writ of certiorari when appellate court determines that there has been insufficient showing of irreparable harm).


text:
    Gilberto LOPEZ, Appellant, v. A. DUDA & SONS, INC. and Chartis Claims, Inc., Appellees.
    No. 1D12-3482.
    District Court of Appeal of Florida, First District.
    April 4, 2013.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, for Appellant.
    Nancy C. Ciampa and Christopher B. Corts of Carlton Fields, P.A., Miami, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Gilberto Lopez challenges the Judge of Compensation Claims’ (JCC’s) denial of his claim for permanent total disability (PTD) benefits. Because we agree the JCC erred in denying the claimed benefits, we reverse and remand with directions to award benefits.

Background

Mr. Lopez, who drove both semi tractor-trailers and field tractors for A. Duda & Sons for twenty-seven years, sustained a compensable injury in January of 2011 to his back. After reaching maximum medical improvement on September 7, 2011, Mr. Lopez filed a petition for benefits on October 28, 2011, seeking an award of PTD benefits.

Claimant’s treating physicians opined Mr. Lopez had physical restrictions attributable to his compensable injuries that limited him to “light to medium” work. Gerri Pennachio, as requested by A. Duda & Sons, conducted on May 11, 2012 (one month before the hearing), a re-employment assessment. Ms. Pennachio explained that this assessment requires a review of an individual’s medical records to determine medical restrictions based on physicians’ opinions, review of an individual’s educational background, and review of the individual’s work history to determine whether the individual could still perform work done in the past. If not, then she was to make an assessment to determine whether the individual is employable (in at least sedentary employment) within a 50-mile radius of the individual’s home.

Ms. Pennachio testified that Mr. Lopez’s past work required a medium level of physical exertion, but that his past work required specific activities that his physicians testified he could no longer do; thus, he could not return to his previous types of employment. Ms. Pennachio’s recommendation for returning Mr. Lopez to suitable employment was that he return to A. Duda & Sons. The only job identified as within his physical restrictions and vocational capabilities was that of security guard. She testified that such a position was “probably the best option for him. He’s not really going to be employed with any other employer because he’s been with this employer since 1985, so the best way for him to try to return to work would be with Duda & Sons.” Ms. Pennachio concluded that “he really would not be placeable anywhere else.” Ms. Pennachio determined that A. Duda & Sons currently had no open security guard positions, however. The JCC accepted Ms. Pennachio’s testimony in its entirety.

Mariano Vasquez, human resources manager for A. Duda & Sons, testified about the security guard job, a job he also felt Mr. Lopez would most likely be able to perform given his physical restrictions. Mr. Vasquez testified he first contacted Mr. Lopez by writing him a letter dated November 28, 2011. That letter did not include a job offer. Likewise, subsequent contacts with Mr. Lopez in February and April 2012 did not result in any job offer. Mr. Lopez contacted Mr. Vasquez following his receipt of a May 10, 2012, letter, sent at a time, Mr. Vasquez testified, that he believed a position to be available. By the time they met, however, Mr. Vasquez determined that the position had been filled, and accordingly advised Mr. Lopez of this. Mr. Vasquez did suggest to Mr. Lopez that he contact him in September, when the harvest season begins, because there could be an available opening at that time. At no time was a job offered to Mr. Lopez by A. Duda & Sons.

Analysis

Mr. Lopez’s burden to prove entitlement to PTD benefits required him to prove he was “not able to engage in at least sedentary employment, within a 50-mile radius of [his] residence, due to his ... physical limitation.” § 440.15(1), Fla. Stat. (2010). This court has recognized that this burden was not intended to apply to some hypothetical claimant; rather the analysis properly addresses Mr. Lopez himself, the individual. See HDV Constr. Sys., Inc. v. Aragon, 66 So.3d 381, 334 (Fla. 1st DCA 2011) (“This court has stated that the legal question presented under section 440.15(l)(b)5. is not merely whether the employee is physically capable of performing at least sedentary employment, but whether the employee (the individual seeking benefits, not a hypothetical individual) can reasonably secure or obtain — “engage in” — at least sedentary employment within a fifty-mile radius of his residence, considering his physical and vocational limitations.”) (emphasis in original).

Here, Mr. Lopez could not return to the work he had done for the past twenty-seven years for A. Duda & Sons. Even though his physicians opined he could engage in light to medium work, the uncon-tradicted vocational evidence accepted by the JCC was that a security guard job with A. Duda & Sons was the only suitable employment possible: Ms. Pennachio testified that Mr. Lopez “would not be placea-ble anywhere else.”

Mr. Lopez was never offered an open position by A. Duda & Sons. That A. Duda & Sons “could” have additional security guard jobs positions in the fall (some six months after the hearing), and that Mr. Lopez “should” come in at that time, does not support a finding that Mr. Lopez failed to meet his burden. In fact, the opposite is true — the record established that Mr. Lopez was unable to secure or obtain at least sedentary employment as a security guard with the only employer likely to hire him.

The JCC erred in finding Mr. Lopez did not establish that he has permanent work-related physical restrictions that preclude him from engaging in at least sedentary employment.

REVERSED and REMANDED, with directions for entry of an order consistent with this opinion.

BENTON, C. J., WOLF, and SWANSON, JJ„ concur.


author: WETHERELL, J.

text:
    Michael Anthony GIAMBRONE, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-3265.
    District Court of Appeal of Florida, First District.
    April 4, 2013.

      Nancy A. Daniels, Public Defender, and Archie F. Gardner, Jr., Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Angela R. Hensel, Assistant Attorney General, Tallahassee, for Appellee.
   WETHERELL, J.

Appellant seeks review of an order extending and modifying his drug offender probation based upon his failure to make the court-ordered payments for the cost of his supervision. We reverse.

In 2009, Appellant was placed on drug offender probation and ordered to pay “$20 per month, as well as a 4% surcharge, toward the cost of [his] supervision” as a condition of probation. In February 2012, Appellant’s probation officer filed an affidavit alleging that Appellant violated the conditions of his probation by failing to make the cost-of-supervision payments (Condition 2) and by testing positive for Hydrocodone (Condition 7). With respect to the alleged violation of Condition 2, the affidavit stated that Appellant was $565.77 in arrears on his supervision costs.

Appellant pled not guilty to the violations. The case proceeded to a hearing at which the trial court found Appellant guilty of violating Condition 2, but not guilty of violating Condition 7. The trial court reinstated Appellant’s probation, extending it for an additional three years and adding new conditions requiring Appellant to enroll in and complete a drug treatment program, dispose of all expired medications, and provide proof of any new prescriptions to his probation officer.

We review the trial court’s determination that Appellant violated his probation for an abuse of discretion. See Odom v. State, 15 So.3d 672, 675 (Fla. 1st DCA 2009).

In Del Valle v. State, 80 So.3d 999, 1012 (Fla.2011), the supreme court explained that before revoking probation for failure to pay a monetary obligation that is a condition of probation, the trial court “must find that the defendant’s failure to pay was willful — i.e., [1] the defendant has, or has had, the ability to pay the obligation and [2] purposefully did not do so.” Accordingly, the trial court is required to “inquire into a probationer’s ability to pay and make an explicit finding of willfulness based on the greater weight of the evidence.” Id. at 1011 (emphasis in original). Here, the trial court found that Appellant had the ability to pay the cost of supervision, but the court did not make a finding that his failure to do so was willful.

Del Valle precludes us from inferring a finding of willfulness from the trial court’s determination that Appellant violated his probation. Id. (“A probationer cannot have his probation constitutionally revoked absent an inquiry into ability to pay and a specific finding of willfulness, and a trial court’s failure to conduct such an inquiry or make such a finding cannot be deemed harmless.”) (emphasis in original). But even if such a finding could be inferred, we would reverse because the evidence was insufficient to support the trial court’s finding that Appellant had an ability to pay.

Almost all of the testimony, evidence, and argument presented at the hearing focused on the alleged violation of Condition 7. The only evidence presented on the alleged violation of Condition 2 and Appellant’s financial situation was testimony from his probation officer. Neither the State, nor the trial court inquired of Appellant as to his income or expenses or the reason for his failure to make the required payments toward the cost of his supervision.

We conclude that the probation officer’s testimony was insufficient to demonstrate that Appellant had an ability to pay the cost of supervision. The officer testified that he had supervised Appellant for three years and, during most of that time, Appellant was “not bringing in much [money]” working on his father’s blueberry farm. The officer testified that Appellant told him that he started working for his brother several weeks prior to the filing of the affidavit of violation of probation and that that Appellant expected that “his monthly income would probably be around $2,000.” (emphasis added). However, no evidence was presented as to Appellant’s actual monthly income.

In sum, because the evidence was insufficient to support the trial court’s finding that Appellant had the ability to pay the cost of his supervision and because the trial court did not make an express finding that his failure to pay was willful, the trial court abused its discretion in finding Appellant in violation of his probation. Accordingly, we reverse the order extending and modifying Appellant’s probation and remand for reinstatement of the prior probationary term.

REVERSED and REMANDED.

VAN NORTWICK and ROWE, JJ„ concur.

       It appears that the trial court misheard this testimony because, after the court ruled, Appellant’s attorney asked for clarification of the ruling and the following colloquy ensued:
      THE COURT: [The probation officer] testified ... that [Appellant] was working for his brother and said he made $2,000 a month....
      So, the Court finds there’s an ability to pay....
      [DEFENSE COUNSEL]:.... My memory of what [the probation officer] said was that he was not—
      THE COURT: I am not going to rehash it. I’m stating it as a factual basis. If you think it’s incorrect, you can appeal it. And I’m more than happy for you to appeal it. But I’m not arguing the outcome. That's a finding of the Court.
      [DEFENSE COUNSEL]: All right, Your Honor. And very respectfully, my understanding was that he did not say that he •was making, [he said] that he thought he would make about 2,000 a month when goes to work for his brother. That’s just what the defense recalls the testimony being.
      THE COURT: That's not what I heard.
      (Emphasis added).


author: GRIFFIN, J.

text:
    In re: Guardianship of J.S.J., Appellant, v. Alejandro J. PENA, M.D., and Physicians Associates of Florida, Inc., Appellees.
    No. 5D12-1113.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2013.

      Matthew Branz, of Paul & Elkind, P.A., Deland, for Appellant.
    No Appearance for Appellees.
   GRIFFIN, J.

Appellant, the Guardianship of J.S.J., appeals a post-judgment order granting Appellees’, Alejandro J. Pena, M.D., and Physicians Associates of Florida, Inc., motion to have Martha Smith, as Guardian of J.S.J., fill out Form 1.977 (Fact Information Sheet) in aid of execution of their judgment. On appeal, Appellant argues that the Florida Statutes do not authorize a natural guardian to incur debt or place a minor’s assets at risk, especially those under the control of a legal guardian of a minor’s property. See § 744.301, Fla. Stat. (2011). Rather, the Florida Legislature created safeguards against such acts. The Guardianship was not a named party to the underlying action and was not authorized to participate in the lawsuit. It cannot be a “judgment debtor” as referenced in rule 1.560(b), and thus should not be required to fill out the fact information sheet. We agree and reverse.

On December 8, 1999, the minor child was born severely brain damaged. In 2002, a guardianship was set up for the child through the probate court [“the Guardianship”]. Tracie Turner Jackson, the minor’s mother, was named as the legal guardian of the minor child’s property-

in 2003, Mr. and Mrs. Jackson, individually, and as parents and natural guardians of their minor, filed a medical malpractice negligence complaint against Dr. Pena and Physicians Associates. The Guardianship was not mentioned in the complaint and no notice was provided to the probate court. In 2006, Mrs. Jackson was removed as guardian of the property, and Martha Smith was appointed as successor guardian. Neither the Guardianship nor Martha Smith was named as a party in the negligence action, and neither participated.

A jury returned a verdict in favor of Appellees in the malpractice action. The trial court entered a final cost judgment against Mr. and Mrs. Jackson, individually and as parents and natural guardians of their minor child, in the amount of $83,794.50. Appellees subsequently filed a motion in probate court, seeking to require Martha Smith to complete Form 1.977.

We begin with the proposition that guardianships are governed and controlled exclusively by statute in Florida. Hughes v. Bunker, 76 So.2d 474 (Fla.1954); Poling v. City Bank & Trust Co. of St. Petersburg, 189 So.2d 176 (Fla. 2d DCA 1966). A guardianship has been defined as a trust relationship of the most sacred character in which one person, called a “guardian,” acts for another, called the “ward,” whom the law regards as incapable of managing his own affairs. 39 Am.Jur.2d, Guardian and Ward § 1. There are various types of guardianships, including a natural guardian and a court-appointed guardian. The first depends upon the parental relationship and the second depends upon court order.

A natural guardianship ordinarily confers only custody of the person, and not of the property, of the child to the guardian. Parents, as natural guardians, however, are expressly authorized to exercise limited powers with regard to the personal property of their children. Section 744.301(2), Florida Statutes (2011), sets out the actions natural guardians may take on behalf of their minor children. All of the powers granted by the Legislature are for the benefit of the minor. There is no provision in the statute that allows the natural guardian to incur debt or to place the minor’s assets at risk. In fact, section 744.397(3), Florida Statutes (2011), suggests otherwise. That section provides:

If the ward is a minor and the ward’s parents are able to care for him or her and to support, maintain, and educate him or her, the guardian of the minor shall not so use his or her ward’s property unless directed or authorized to do so by the court.

See also § 744.444(8), Fla. Stat. (2011).

Likewise, section 744.387(2), Florida Statutes, only permits the natural guardians or legal guardian of a minor to settle a claim by or on behalf of a minor that does not exceed $15,000 without bond. A legal guardianship is required when the net amount of the settlement to the minor exceeds $15,000. After an action on a claim has been commenced by or on behalf of a minor, no settlement is effective unless approved by the court having jurisdiction of the action. § 744.387(3)(a), Fla. Stat. (2011).

In Yount v. Varnes, 691 So.2d 1129 (Fla. 4th DCA 1997), which the trial court concluded was controlling, a minor was severely injured in an automobile accident when she was a year old and received emergency room medical treatment. Her accident case resulted in a settlement of approximately $2.3 million. As a result of the settlement, a guardianship was set up for the minor. Settlement proceeds were placed in an investment management account that was managed by a CPA, who was appointed legal guardian of the minor’s property. A court order was required for the withdrawal of funds from the account. The remainder of the settlement was structured so that the minor received monthly and periodic lump sum payments during her lifetime.

The minor, through her father as natural guardian, brought a medical malpractice action against the emergency room physician who had treated the minor. After a defense verdict, the physician obtained a prevailing party judgment for his attorney’s fees and costs against the minor. Experiencing difficulty in collecting his judgment, he had a writ of garnishment issued against the bank where the investment management account was located, which resisted payment in the absence of a court order.

The probate court refused to approve payment of the judgment, believing that it had the discretion to do so, relying on authorities such as Brown v. Ripley, 119 So.2d 712, 717 (Fla. 1st DCA 1960), in which the court said:

Independent of statute or rule a court of chancery has inherent jurisdiction and right to control and protect infants and their property, and enjoys a broad discretion in making orders protecting their welfare.

Yount, 691 So.2d at 1130. The physician appealed the probate court’s refusal to approve payment of the judgment from the minor’s investment account. The Fourth District reversed, holding:

Neither party has cited, and our independent research does not reveal, a case from Florida or any other jurisdiction which would give a court discretion to refuse payment of a judgment under these circumstances. Nor have we found anything in our statutes or rules pertaining to guardianships which would authorize a court to refuse payment of a judgment. Although our legal system has built-in protections for infants, as well as persons with other types of disabilities, in order to insulate them from having to suffer the consequences of some types of conduct, we cannot find any which would allow courts to discriminate as to which judgments should be paid.
The statute did require counsel to inform clients of its provisions in writing, before initiating malpractice actions. The lawsuit in this case was brought by [the minor’s] father, as her natural guardian, and presumably his decision to proceed was an informed one. Although we do not relish having to impose this burden on [the minor], we cannot ignore the fact that if she had prevailed in the malpractice action she would have recovered prevailing party attorney’s fees under the statute. Neither can we cast aside the rights of [the physician].

Id. Yount is the only Florida case that resembles the current case.

Yount’s reliance upon the “prevailing party” statute, section 768.56(1), Florida Statutes, is odd. There is no dispute that under section 768.56 Yount was entitled to his costs; the question was, who was responsible for those costs. Apparently, the Yount court concluded that the child was the non-prevailing party and, therefore, any asset of the child was available to satisfy a judgment in favor of the prevailing defendant, but this view appears to ignore the entire statutory construct designed to provide supervision over a minor’s assets. We also question the Yount court’s suggestion that, if the natural guardian had prevailed, the child would have been entitled to recover the fees and costs. Almost certainly, it was the natural guardian who had contracted with counsel and the guardian who would have been at risk for fees and/or costs. If the natural guardian had prevailed, those fees and costs were recoverable by the guardian as “prevailing party” to reimburse him for the contractual burden he had undertaken to secure counsel and pursue the litigation. In the case now before us, the trial judge analyzed the issues as we have and rightly concluded, despite his stated reservations, that he was bound by Yount, but we are not.

The natural guardians’ decision to bring the lawsuit, as next friend, on behalf of the minor cannot implicate the assets held by the legal guardian where the legal guardian has not consented to or participated in the litigation, and where no court approval for the expenditure of the minor’s assets has been sought or obtained. Notably, had Mrs. Jackson initiated the lawsuit as the minor’s legal guardian, she would have had to have received court approval to do so. § 744.441(11), Fla. Stat. Likewise, court approval would have been required for the guardian to prosecute or defend the action. Id. Here, the State, through the law of guardianship, has protected the minor by requiring court approval of a guardian’s decision to impact a minor’s estate. The legal guardian was not a party to the lawsuit, and court approval of the suit was not obtained. Therefore, the legal guardian in this case is not liable for payment of the cost judgment and had no duty to complete Form 1.977.

The lower court did consider a line of more recent cases concerning a natural guardian’s authority to impact a minor’s rights. Both Kirton v. Fields, 997 So.2d 349 (Fla.2008) and Applegate v. Cable Water Ski, L.C., 974 So.2d 1112 (Fla. 5th DCA 2008), concerned a natural guardian’s authority to sign a pre-injury release on behalf of his or her child. Although we think these cases are of limited relevance due to the public policy concerns that were important to the court’s analysis, the Kirton opinion does rest on reasoning similar to ours.

The supreme court said in Kirton that a parent’s right to allow a minor child to participate in a particular activity as part of the parent’s fundamental right to raise a child, does not mean that a parent also has a right to execute a pre-injury release of a tortfeasor on behalf of a minor child. It cannot be presumed that a parent, who has decided voluntarily to give up a minor child’s rights in advance, is acting in the child’s best interest. Kirton, 997 So.2d at 357. Moreover, a “parent’s decision in signing a pre-injury release impacts the minor’s estate and the property rights personal to the minor.” Id. (quoting Fields v. Kirton, 961 So.2d 1127, 1129-30 (Fla. 4th DCA 2007)).

REVERSED.

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

      . Florida Rule of Civil Procedure 1.560(b) provides:
      (b) Fact Information Sheet. In addition to any other discovery available to a judgment creditor under this rule, the court, at the request of the judgment creditor, shall order the judgment debtor or debtors to complete form 1,977, including all required attachments, within 45 days of the order or such other reasonable time as determined by the court. Failure to obey the order may be considered contempt of court.

      . When, as here, a legal guardian of the property of a minor has been appointed, we question the authority of the natural guardian to bring an action in court or settle any claim, regardless of amount.


author: PALMER, J.

text:
    Charles R. GREEN, Appellant, v. JPMORGAN CHASE BANK, N.A., Appellee.
    No. 5D12-870.
    District Court of Appeal of Florida, Fifth District.
    April 5, 2013.

      Charles R. Green, Indialantic, pro se.
    Kimberly S. Mello, of Greenberg Trau-rig, P.A., Tampa, and Michele L. Stocker of Greenberg Traurig, Ft. Lauderdale, for Appellee.
   PALMER, J.

In this mortgage foreclosure matter, Charles R. Green appeals the final judgment of foreclosure entered in favor of JPMorgan Chase Bank, N.A. (Bank). Determining that the trial court erred in denying Green’s motion to add a counterclaim and in granting the Bank’s motion for summary judgment, we reverse.

The Bank filed a mortgage foreclosure complaint against Green. Green filed an answer raising multiple affirmative defenses. He later filed a motion seeking leave of court to file a counterclaim containing several counts. The Bank filed a motion for summary judgment. Both motions were heard together, after which the trial court denied Green’s motion to add a counterclaim, granted the Bank’s motion for summary judgment, and entered a final judgment of foreclosure.

On appeal, Green argues that the trial court erred in denying his motion to add a counterclaim and in granting the Bank’s motion for summary judgment when the Bank had not refuted all of his affirmative defenses. We agree.

First, the court erred in denying Green’s motion to add a counterclaim. A trial court’s denial of a motion to add a counterclaim is reviewed for abuse of discretion. See Cedar Mountain Estates, LLC v. Loan One, LLC, 4 So.3d 15, 16 (Fla. 5th DCA 2009). All doubts must be resolved in favor of allowing amendment, and “[p]ublic policy ... favors the liberal granting of leave to amend where the failure to do so will likely prevent the cause from being resolved on its merits.” Crown v. Chase Home Fin., 41 So.3d 978, 980 (Fla. 5th DCA 2010). Consequently, “[refusal to allow amendment of a pleading constitutes an abuse of discretion unless it clearly appears that allowing the amendment would prejudice the opposing party; the privilege to amend has been abused; or amendment would be futile.” Sonny Boy, L.L.C. v. Asnani, 879 So.2d 25, 28 (Fla. 5th DCA 2004).

One count of Green’s proposed counterclaim, and the only count he addresses on appeal, alleged that the Bank violated the federal Real Estate Settlement Procedures Act (RESPA) by failing to notify him of a change in the servicer of his loan. Specifically, the count alleged the following. Green obtained a loan from Washington Mutual Bank, FA (WaMu). Through this transaction, WaMu may have acquired and retained a servicing interest in the loan. The Bank claimed to possess servicing rights in the loan. However, the Bank failed to notify Green that it was the new servicer within 30 days of assignment of servicing, as required by RESPA. As a result, the Bank denied Green a good-faith opportunity to determine who the new ser-vicer was, preventing him from making mortgage payments to avoid foreclosure.

The Bank responded that this count would be futile because Green could not state a valid claim, since he made eight monthly payments after servicing was transferred to the Bank. In support, the Bank relied on (1) a Purchase and Assumption Agreement showing that the Bank bought WaMu and its assets out of receivership on September 25, 2008; (2) a Customer Account Activity Statement showing that, after September 25, 2008, Green made at least 12 payments on the account; and (3) an affidavit of amounts due and owing. In addition, the Bank’s counsel represented to the court that the Bank regularly contacted Green by mail and phone to explore home retention options. In support, the Bank relied on (1) a letter from the Bank to Green, and (2) a Consolidated Notes Log describing various phone interactions between the Bank and Green after he defaulted on the loan. Green objected that the Bank presented no sworn testimony. Green represented that he was never aware that the Bank was involved until he was served with the complaint, and he denied that he had made any payments to the Bank.

The Bank failed to conclusively show that this count of Green’s proposed counterclaim would be futile. The only evidence submitted by the Bank was the affidavit of amounts due and owing. That affidavit did not show specific payments by Green or the dates on which they were made. As such, the trial court erred in denying his motion as to this count.

Second, the trial court erred in granting the Bank’s motion for summary judgment because the Bank failed to refute Green’s affirmative defense of lack of standing. This court reviews de novo an order granting summary judgment. Major League Baseball v. Morsani, 790 So.2d 1071, 1074 (Fla.2001). To establish standing to foreclose for purposes of summary judgment, the plaintiff must show that it acquired the right to enforce the note before it filed suit. See Gonzalez v. Deutsche Bank Nat’l Trust Co., 95 So.3d 251, 253-54 (Fla. 2d DCA 2012); Venture Holdings & Acquisitions Group, LLC v. A.I.M. Funding Group, LLC, 75 So.3d 773, 776 (Fla. 4th DCA 2011).

The Bank s motion for summary judgment asserted that the Bank had standing as the holder of the note, as evidenced by its earlier filing of the original promissory note. The note contained an indorsement in blank by WaMu. On appeal, the Bank adds that its standing was supported by the Purchase and Assumption Agreement, which showed that the Bank bought all of WaMu’s assets before the Bank filed suit. The Bank also asserts that it filed an affidavit stating that it was the holder of the note.

Within the original note, the in-dorsement in blank did not establish that the Bank had the right to enforce the note when it filed suit, because the indorsement was undated. See Gonzalez, 95 So.3d 251. Moreover, the Bank’s standing also was not established by its act of filing of the original note. Although the filing of the original blank-indorsed note showed the Bank’s possession of (and thus right to enforce) it at the time of filing the note, that filing occurred more than a year after the Bank filed suit. As for the Purchase and Assumption Agreement, that Agreement was not authenticated for purposes of summary judgment. Finally, the affidavit of amounts due and owing did state that the Bank “holds the Note.” However, like the filing of the original note, the affidavit did not establish that the Bank held the note at the time it filed suit because the affidavit was dated more than two years later.

REVERSED and REMANDED.

ORFINGER, C.J., and BERGER, J., concur.

      . See 12 U.S.C. § 2605(c)(1), (2)(B) (2011).

      . None of the other documents were authenticated. Unauthenticated documents cannot be used in support of a motion for summary judgment. Ciolli v. City of Palm Bay, 59 So.3d 295, 297 (Fla. 5th DCA 2011).

      . The copy of the note attached to the Bank s complaint did not contain this indorsement. However, this fact does not affect our analysis.


text:
    Frank BENNIEFIELD, Appellant, v. CITY OF LAKELAND and Claims Center, Appellees.
    No. 1D12-2353.
    District Court of Appeal of Florida, First District.
    April 8, 2013.

      Bradley G. Smith of Smith, Feddeler & Smith, P.A., Lakeland, and Wendy S. Lo-quasto of Fox & Loquasto, P.A., Tallahassee, for Appellant.
    Bettina N. Carrier and Thomas Vecchio of Vecchio, Carrier & Feldman, P.A., Lakeland, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, Claimant challenges the Judge of Compensation Claims’ (JCC’s) denial of his claim for permanent total disability (PTD) benefits on grounds that the JCC erred regarding Claimant’s date of maximum medical improvement (MMI) and further erred by denying penalties, interest, costs, and attorney’s fees associated with that claim. Because we agree, we reverse and remand the case to the JCC for further proceedings.

BACKGROUND

On April 9, 2008, Claimant sustained a compensable back injury and was placed on MMI on January 7, 2009, by Dr. John C. Amann, his authorized treating provider. Thereafter, Claimant filed a petition for benefits (PFB) seeking PTD benefits from January 7, 2009, and continuing, along with penalties, interest, costs, and attorney’s fees. The E/C contested the claim in its entirety on various grounds.

Subsequently, on February 23, 2012, Claimant fell when his walking cane collapsed. Upon returning to Dr. Amann for evaluation, the doctor opined that a new MRI was needed to assess Claimant’s condition. Dr. Amann testified that Claimant’s fall had “not yet” changed his opinion on the date of MMI and that it was too soon to determine whether the fall had exacerbated his compensable injury. According to Dr. Amann, additional surgery might be recommended upon review of Claimant’s MRI. results; he indicated that surgery may improve Claimant’s condition. In light of Dr. Amann’s testimony, the E/C asserted that, because Claimant’s current status, restrictions, and future treatment were uncertain, Claimant’s claim for PTD benefits was premature.

In the order on review, the JCC denied Claimant’s claim for PTD benefits as premature on the basis that Claimant had not established that he was at MMI. In support, the JCC acknowledged Dr. Amann’s testimony that Claimant’s fall had not changed his opinion regarding Claimant’s MMI status, but found that, given Dr. Amann’s testimony regarding the need for an MRI to determine the extent of Claimant’s condition, Claimant’s current status could not be determined until after the MRI. Consequently, the JCC found that Claimant had failed to meet his burden to prove that he is at MMI. Claimant timely appealed.

ANALYSIS

To the extent a JCC’s order turns on a resolution of the facts, the review standard is competent substantial evidence (CSE); to the extent it involved an interpretation of law, the standard is de novo. See Mylock v. Champion Int’l, 906 So.2d 363, 365 (Fla. 1st DCA 2005); see also Lemmer v. Urban Elec., Inc., 947 So.2d 1196, 1198 (Fla. 1st DCA 2007) (holding JCC’s finding of MMI will be affirmed if supported by CSE).

The date of MMI is statutorily defined as “the date after which further recovery from, or lasting improvement to, an injury or disease can no longer reasonably be anticipated, based upon reasonable medical probability.” See § 440.02(10), Fla. Stat. (2007). It is the claimant’s burden to prove that he is at overall MMI or, if not at overall MMI, that the disability and restrictions from which he suffers are permanent. See East v. CVS Pharmacy, Inc., 51 So.3d 516 (Fla. 1st DCA 2010). Once a claimant’s medical condition has improved as much as is reasonably expected under available and recommended remedial treatments, the claimant may be considered to be at MMI and entitled to PTD benefits for continuing disability even though it is anticipated that the claimant will likely become a candidate for additional remedial treatment at some time in the future. See Emanuel v. David Piercy Plumbing, 765 So.2d 761, 762 (Fla. 1st DCA 2000) (citing Holder v. Keller Kitchen Cabinets, 610 So.2d 1264 (Fla.1992) (affirming PTD award even though it was anticipated that claimant would likely become a candidate for total knee replacement)).

Here, the JCC’s finding that Claimant’s PTD claim was premature is not supported by the record. It is undisputed that Dr. Amann placed Claimant at MMI as of January 7, 2009. Further, it is undisputed that Claimant remained at MMI through at least the date of his fall, February 23, 2012. Although Dr. Amann testified that Claimant’s condition could improve in the future if he became a candidate for surgery, Claimant satisfied his burden to prove that he was at MMI for the period from January 7, 2009 (the date of MMI), through February 23, 2012 (the date of Claimant’s fall), even though Claimant later could become a candidate for surgery, and even if such remedial treatment eventually improved Claimant’s condition. See Emanuel, 765 So.2d at 762 (concluding that where medical testimony supports finding that claimant has reached MMI in real time, PTD benefits can be awarded thereafter, even if claimant later became candidate for remedial surgery to restore claimant’s ability to work). This is so because workers’ compensation benefits, by design, are to be paid in real time. See § 440.015, Fla. Stat.(2007) (“It is the intent of the Legislature to ensure the prompt delivery of benefits to the injured worker.”). Accordingly, the JCC’s finding that Claimant’s PTD claim was premature is REVERSED and the case REMANDED for reconsideration of the merits of Claimant’s PTD claim in accordance with this opinion.

ROBERTS, RAY, and SWANSON, JJ., concur.


author: AMY, Judge.

text:
    STATE of Louisiana v. Eric T. EDWARDS.
    No. KA 08-1527.
    Court of Appeal of Louisiana, Third Circuit.
    March 4, 2009.
    John Foster DeRosier, District Attorney, Lake Charles, LA, for Appellee, State of Louisiana.
    Eric T. Edwards, Lake Charles, LA, pro se.
    Court composed of JOHN D. SAUNDERS, JIMMIE C. PETERS, and MARC T. AMY, Judges.
   AMY, Judge.

| defendant, Eric T. Edwards, pled guilty to purse snatching on June 13, 2005; his three-year sentence was suspended and he was placed on three years supervised probation. At a hearing to revoke his probation on June 29, 2007, Defendant was reprimanded for a probation violation and he was ordered to continue on probation with the same special conditions as the original probation. Probation was ultimately revoked on July 9, 2008, for further violations of the conditions of probation.

On July 15, 2008, Defendant filed a Notice of Appeal. He also filed correspondence to the trial court on August 13, 2008 indicating his desire for review because he was “sentenced ... for probation violation.” This court issued an order on December 18, 2008 requiring Defendant to show cause why his appeal should not be dismissed because the judgment revoking his probation is not an appealable judgment under La.Code Crim.P. art. 912. In response, the defendant advances the reasons he believes that his probation should not have been revoked.

While La.Code Crim.P. art. 912(C)(1) provides that a defendant may appeal a final judgment imposing sentence, Defendant questions the merits of the probation revocation, not the sentence imposed. Jurisprudence has consistently held that a defendant does not have a right to appeal an order revoking probation. See Clavelle v. State, 02-1244, p. 2 (La.12/12/03), 861 So.2d 186. See also State v. Manuel, 349 So.2d 882 (La.1977); State v. Williams, 06-642 (La.App. 5 Cir. 11/20/06), 947 So.2d 47; State v. McDougald, 02-279 (La.App. 5 Cir. 9/30/02), 829 So.2d 525. Instead, review of the revocation of probation is available by application for supervisory writs. La.Code Crim.P. art. 912.1(C)(1). Williams, 947 So.2d 47; State v. Bailey, 06-360 (La.App. 5 Cir. 10/31/06), 945 So.2d 797.

Accordingly, we dismiss Defendant’s appeal, but permit him to file a proper application for supervisory review, in compliance with Uniform Rules — Courts of Appeal, Rule 4-3, within thirty days from the date of this decision. Defendant is not required to either file a notice of intent to seek writs or obtain an order setting a return date pursuant to Uniform Rules — Courts of | ¡Appeal, Rule 4-3, as we hereby construe the Notice of Appeal as a notice of intent to seek a supervisory writ.

APPEAL DISMISSED. DEFENDANT IS PERMITTED TO FILE AN APPLICATION FOR SUPERVISORY REVIEW WITHIN THIRTY DAYS FROM THE DATE OF THIS DECISION.