author: McMANUS, F. SHIELDS, Associate Judge.

text:
    Joni M. GARVIN, Appellant, v. Connie TIDWELL, Appellee.
    No. 4D11-2712.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 2012.

      Daniel A. Bushell of Bushell Appellate Law, P.A., Fort Lauderdale, Marc A. Wites and Jonathan S. Burns of Wites & Kapetan, P.A., Lighthouse Point, for appellant.
    Richard A. Sherman, Sr. and James W. Sherman of Law Offices of Richard A. Sherman, P.A., Fort Lauderdale, and Terry L. Watson of Law Offices of Patricia E. Garagozlo, Plantation, for appellee.
   McMANUS, F. SHIELDS, Associate Judge.

Appellant appeals an order denying her motion to rescind a mediated settlement agreement because the appellee’s discovery responses failed to disclose an advertisement and other information potentially adverse to the defense. Because we find that appellee violated her discovery obligations, and the trial court abused its discretion in denying the motion, we reverse.

Appellee owned a ten-year-old quarter horse named “Buster,” whom she boarded at a stable. In June, 2009, after observing appellant ride other horses at the stable, appellee asked appellant, an experienced equestrian, if she would ride Buster. Appellant had limited her riding to docile horses in recent years, so she asked appel-lee several times whether Buster had ever exhibited any dangerous behavior. Appel-lee replied, “No.” During appellant’s third ride on Buster, he reared up on his hind legs, bolted off at a fast gallop, then stopped suddenly and abruptly changed directions. As a result, appellant fell off the horse, hit a fence, and fell to the ground. She suffered injuries to her back which required surgery.

Appellant filed a complaint against ap-pellee alleging negligence and negligent misrepresentation. Specifically, appellant alleged that Buster had a long and well-known history of bucking and running away with riders and appellee negligently failed to disclose Buster’s dangerous propensities.

During discovery, appellant sent one set of interrogatories and requests to produce. The discovery was reasonably calculated to produce the names of persons with any knowledge of facts at issue, the subject matter of their knowledge, and any “model, plat, map, drawing, motion picture, videotape, or photograph pertaining to any fact or issue involved.” One interrogatory asked for the names of persons and any documents concerning the care, maintenance, and training of the horse including feeding, medical issues, and riding. The request to produce sought statements and also documents identified in answers to interrogatories.

Appellee answered the discovery by giving twenty names and producing four photographs. Appellee objected to producing statements and documents identified in the answer to interrogatories on grounds of work product privilege. No privilege log was filed. No statements or documents were identified.

Appellant never filed a motion to compel in response to any of appellee’s answers. Appellant did depose appellee and her daughter, who was Buster’s primary caregiver. They testified of some incidences of Buster being “spooked” or “bucking,” mostly as a young horse, but said that was not a “characteristic.” Buster’s personality was described as “a gentleman” who was “lazy, if anything.” Appellee moved for summary judgment on the grounds that the only testimony was that Buster was a good horse.

The parties went to mediation and settled in the fall of 2010. Soon thereafter, appellant’s counsel received an unmarked envelope containing a magazine advertisement for a dietary supplement for horses dated “Spring 2010.” This advertisement featured a page about the horse calming successes of the supplement “Ex Stress,” featuring a color picture of Buster. The advertisement identified Buster’s owner as appellee. The advertisement quoted ap-pellee as saying that she decided to give Ex Stress to her horse, Buster, because he “can be a little difficult at times.” Appel-lee is quoted as saying, “What a difference it made in him. Ever since he’s been on it, we’ve had nothing but great rides.”

Appellee had not produced this advertisement in response to appellant’s discovery requests or mentioned use of any calming supplements. Neither appellee nor her daughter mentioned Buster’s use of calming supplements or “difficult” behavior during their depositions.

When asked by appellant’s counsel, ap-pellee’s counsel admitted that he and his client were in possession of the Ex Stress advertisement at the time of the depositions and when they responded to the interrogatories and requests for production.

Appellant moved to reopen discovery and rescind the mediation agreement and for sanctions. She supported the motion with a verified memorandum. Appellee filed a response in which she contended the Ex Stress advertisement was not responsive to the discovery requests and was not inconsistent with the depositions. The trial court denied appellant’s motion to rescind the mediation agreement and for sanctions, and granted appellee’s motion to enforce the settlement.

Requirement of Good Faith Discovery

Florida courts have long recognized that one of the primary functions of discovery is to enable parties to enter settlement negotiations with an understanding of their chances of success at trial.

A primary purpose in the adoption of the Florida Rules of Civil Procedure is to prevent the use of surprise, trickery, bluff and legal gymnastics. Revelation through discovery procedures of the strength and weaknesses of each side before trial encourages settlement of cases and avoids costly litigation. Each side can make an intelligent evaluation of the entire case and may better anticipate the ultimate results.

Surf Drugs, Inc. v. Vermette, 236 So.2d 108, 111 (Fla.1970).

“[L]awyers, out of respect for the adversary system, should make good faith efforts to comply with one another’s reasonable discovery requests.” Summit Chase Condo. Ass’n, Inc. v. Protean Investors, Inc., 421 So.2d 562, 564 (Fla. 3d DCA 1982). “Evasive or incomplete” answers can amount to a failure to answer and may also warrant the imposition of sanctions. Herold v. Computer Components Int’l, Inc., 252 So.2d 576, 579 (Fla. 4th DCA 1971). In Smith v. University Medical Center, Inc., 559 So.2d 393, 395 (Fla. 1st DCA 1990), the court found that the appel-lee had “disregarded his obligation to comply with discovery” by failing to “disclose the housekeeping map at issue after several discovery requests.”

In Schlapper v. Maurer, 687 So.2d 982 (Fla. 5th DCA 1997), the Fifth District concluded that counsel for a co-defendant had violated his “obligation not to lie about or misrepresent facts critical to the case” when he untruthfully represented to plaintiffs counsel that “[the co-defendant] had nothing to do with the treatment of [the plaintiff].” Schlapper, 687 So.2d at 984. Based on this representation, “the attorney for [the plaintiff] did not oppose the summary judgment which dismissed [the co-defendant] from the case.” Id.

In Leo’s Gulf Liquors v. Lakhani, 802 So.2d 337 (Fla. 3d DCA 2001), the Third District discussed the importance of honesty in discovery. Although this case is procedurally distinguishable from the ease at bar, the court’s discussion of discovery obligations is still relevant. The court explained that,

[witnesses who give sworn testimony by way of interrogatories, at depositions, pretrial hearings and trial, swear or affirm to tell the truth, the whole truth, and nothing but the truth. We expect and will settle for nothing less. Lawyers who advise their clients and/or witnesses to mince words, hold back on necessary clarifications, or otherwise obstruct the truth-finding process, do so at their own, and the clients’ peril.

Leo’s Gulf Liquors, 802 So.2d at 343. The Third District also made clear that a witness’s oath to tell the truth is equally demanding at depositions, and noted that “[t]he overwhelming number of law suits filed in Florida are resolved by way of settlement!,]” and that “[c]ases are regularly settled on the basis of the discovery taken during pretrial preparation.” Id. “Accordingly, sworn answers to interrogatories and at depositions are extremely important to a lawsuit, since the likelihood of any given case actually going to trial is remote.” Id.

We find that appellee violated her discovery obligations by failing to disclose the Ex Stress advertisement and information known to her about Buster’s behavior which prompted the use of Ex Stress. This information was relevant to appellant’s discovery requests and to some of the questions posed during the depositions. It is likely to be an important exhibit at trial. The appellant has referred to the advertisement in her brief and oral argument as a “smoking gun.”

Rescission of an Agreement for Unilateral Mistake

Florida Rule of Civil Procedure 1.730(c) affords trial courts “broad powers to grant relief as to settlement agreements reached through mediation.” Stamato v. Stamato, 818 So.2d 662, 664 (Fla. 4th DCA 2002). In Stamato, we explained that a trial court may rescind an agreement based on unilateral mistake if “(1) the mistake did not result from an inexcusable lack of due care, and (2) defendant’s position did not so change in reliance that it would be unconscionable to set aside the agreement.” Id. Additionally, we will look at whether the unilateral mistake goes to the “very substance of the agreement.” Rock Springs Land Co. v. West, 281 So.2d 555, 556 (Fla. 4th DCA 1973); Langbein v. Comerford, 215 So.2d 630, 631 (Fla. 4th DCA 1968).

We review a trial court’s order denying a motion to rescind an agreement for an abuse of discretion. See Billian v. Mobil Corp., 710 So.2d 984, 990 (Fla. 4th DCA 1998). Here, under the two-part test set forth in Stamato, the trial court abused its discretion by not allowing appellant to rescind the mediated settlement agreement. Appellant’s lack of knowledge about Buster’s use of a calming supplement did not result from her inexcusable neglect. Despite various interrogatories and requests for production that would have required appellee to disclose the Ex Stress advertisement, she failed to do so. Appellant did not learn of Buster’s use of calming supplements due to appellee’s omissions.

The cases primarily relied upon by ap-pellee do not support her position on this issue.

In Stamato, appellant sought rescission of a settlement agreement on the basis of unilateral mistake, arguing that she did not know that, before she settled, the trial court had already ruled on her motion to seek punitive damages. Stamato, 818 So.2d at 663-64. We held that the appellant was not entitled to rescission, because she had committed inexcusable neglect by entering into a settlement agreement “without bothering to find out if the court had ruled” on her motion. Id. at 665.

In BMW of North America, Inc. v. Krathen, 471 So.2d 585 (Fla. 4th DCA 1985), the appellants sought to rescind a settlement agreement based on unilateral mistake. Krathen, 471 So.2d at 588. We upheld the trial court’s finding that appellants were not entitled to rescind the agreement due to then inexcusable neglect. Id. In support of its holding, we noted that “[t]he offer of judgment did not involve a complex transaction” and that “[t]he terms were few and easily understood.” Id. As such, we did not consider appellants’ omission of what they characterized as an “essential term” to be such an inadvertent error as to justify rescission of the agreement. Id. In other words, with such a basic agreement, the appellant’s legal team really had no excuse for leaving out something they considered to be so important.

In Rachid v. Perez, 26 So.3d 70 (Fla. 3d DCA 2010), appellant sought rescission of a settlement agreement based on unilateral mistake. Rachid, 26 So.3d at 71. The Third District found that the appellant failed to preserve her argument for appellate review, but even if she had, it would have failed on the merits. Id. at 72. Appellant failed to present any evidence that “any party misled or induced her to enter into the settlement agreement.” Id. Instead, appellant claimed that her attorney induced her to enter into the agreement, and this caused her claim to fail as a matter of law. Id.

In Sponga v. Warro, 698 So.2d 621 (Fla. 5th DCA 1997), the appellant sought reversal of the trial court’s order setting aside a “final order of dismissal based on a settlement agreement executed by the parties after mediation.” Sponga, 698 So.2d at 622. In the trial court, appellee moved to set aside the settlement agreement she had entered into with a physician because, in entering the agreement, she relied on a report that the physician had prepared “in error,” which she interpreted as stating “that her shoulder injury was not connected with the [subject] accident.” Id. at 623-24. The Fifth District reversed, finding that the facts of the case could “not scale the barrier of lack of due care.” Id. at 625. In support of this conclusion, the court explained that, based on the facts appellant knew before the physician drafted his report which allegedly induced her to settle, she would have known that the report was erroneous. Despite this, appellant never made an effort to specifically ask the physician whether he “would relate her injury to the accident.” Id.

These four cases do not support an af-firmance because they are factually inap-posite to the case at bar. This case does not involve a plaintiff who failed to inquire about certain facts, as in Sponga, or a plaintiff who decided to enter into a settlement agreement that lacked an essential term, as in Krathen. Furthermore, in this case, appellant did not agree to settle the case before checking on the status of other motions pending in the court, as in Sta-mato. In contrast, this case involves a plaintiff who entered into a settlement agreement believing that, after- conducting discovery, she had all of the material facts in front of her, when in fact she did not. There does not appear to have been any reasonable way for appellant to find out about the advertisement or Buster’s “difficult” behavior other than through the methods she had already employed. Thus, appellant’s mistake lacks inexcusable neglect.

As to the second prong of the test in Stamato, there is no evidence in the record to suggest that it would have been inequitable to rescind the settlement' agreement due to appellee’s reliance upon it. During the hearing, appellee never argued that that she had already detrimentally relied upon the agreement, and she did not raise this argument in either one of her written motions to enforce the settlement agreement.

Appellant has filed as supplemental authority Jones v. Publix Super Markets, Inc., 114 So.3d 998 (Fla. 5th DCA 2012), in which the appellee failed to reveal the known address of the customer who witnessed appellant’s fall in a puddle of water. The court stated:

Although we do not find an order disposing of the motion in the record, we note that the Joneses also asked the trial judge to strike Publix’s offers of settlement on the seemingly unassailable reasoning that, in the face of a wrongful failure to disclose the address of a key witness, such an offer could not meet the test of “good faith” and the factors set forth in section 768.79(7), Florida Statutes.

Jones, 114 So.3d 998 at 1002.

We find that the same principle applies when a party withholds material information in discovery. Since our system of justice depends on truthful discovery, misconduct in discovery must be discouraged by disallowing the settlement which is the fruit of such misconduct.

Appellant’s additional claim that the agreement should be rescinded because it was unconscionable is denied. This claim is not preserved because it was not presented in her written motion or during the hearing before the trial court.

Appellant’s appeal of the trial court’s failure to order sanctions is denied because the appellant did not file a motion to compel discovery, and the trial court did not issue an order compelling discovery. The purpose of sanctions is to promote compliance with discovery, rather than serve as a penalty. See Winn Dixie v. Teneyck, 656 So.2d 1348, 1351 (Fla. 1st DCA 1995). Sanctions for a discovery violation are not an appropriate remedy in this case. The trial court has not abused its discretion by failing to issue sanctions without first receiving a motion to compel from appellant and issuing an order to comply with the discovery request. See id.

The orders denying appellant’s motion to rescind the settlement agreement and granting appellee’s motion to enforce the settlement agreement are reversed and the cause is remanded for further proceedings consistent with this opinion.

POLEN and CONNER, JJ., concur.

      . Because the motion to reopen discovery was not granted, the record is silent on when Buster was given Ex Stress, when he was “difficult,” and whether this was before or after appellant's injuries. There was no claim made by appellee, however, that Ex Stress was given as a remedial measure taken after the injury to the appellant.


source: Caselaw Access Project

author: PER CURIAM. WARNER, J.,

license: Public Domain

text:
    Eric MCPHERSON, Appellant, v. Michaela BITTNER, Appellee.
    No. 4D12-156.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 2012.
    Dan S. Arnold III of Dan S. Arnold III, P.A., Fort Lauderdale, for appellant.
    Jason Scott Coupal of Coupal & Associates, PL, Pompano Beach and Sandor F. Genet of Sandor F. Genet & Associates, P.A., North Miami Beach, for appellee.
   PER CURIAM.

Appellant challenges the award of fees in this modification of child support case. He appealed the award in the trial court, which we affirmed. McPherson v. Bittner, 88 So.3d 955 (Fla. 4th DCA 2000). We awarded appellate fees, thus determining entitlement. He now appeals the trial court’s fee award, claiming a lack of entitlement. He is bound by the law of the case, as appellee’s entitlement to attorney’s fees was already determined in the prior appeal. Dicks ex rel. Montgomery v. Jenne, 740 So.2d 576, 578 (Fla. 4th DCA 1999) (law of the case doctrine prevents an appellate court from reconsidering questions of law considered by a previous appellate panel, unless there has been a material change in the evidence, controlling law has changed, or adhering to the prior decision would result in a manifest injustice).

Affirmed.

DAMOORGIAN and CONNER, JJ., concur.

WARNER, J., concurs specially with opinion.

WARNER, J.,

concurring specially.

I concur but write to disagree with a prior opinion of this court and thus to show why no manifest injustice has occurred, as appellant suggests.

This case began as a paternity determination and award of child support which was appealed to this court. We granted appellate attorney’s fees in the direct appeal of the judgment of modification. Bound by our order, the trial court set the fee. The appellant has appealed again, claiming that appellate attorney’s fees are not authorized in paternity actions, a claim which we rejected in the prior appeal.

Appellant maintains that our holding in Gilbertson v. Boggs, 743 So.2d 123, 128-29 (Fla. 4th DCA 1999), precludes an award of appellate attorney’s fees in a paternity action, and that a manifest injustice has occurred. While Gilbertson held that section 742.025, Florida Statutes, does not permit an award of appellate attorney’s fees in a paternity action, I believe the case was wrongly decided, and I would recede from it.

Section 742.045 provides for the award of attorney’s fees in paternity proceedings:

The court may from time to time, after considering the financial resources of both parties, order a party to pay a reasonable amount for attorney’s fees, suit money, and the cost to the other party of maintaining or defending any proceeding under this chapter, including enforcement and modification proceedings.

The Legislature enacted this section in 1991. Ch. 91-246, § 7, Laws of Fla. At the time, it mirrored the attorney’s fees provision of section 61.16. It was not until 1994, when the Legislature amended section 61.16, that a specific reference to fees on appeal was included at the end of the foregoing sentence in section 61.16. Ch. 94-169, § 1, Laws of Fla.

However, case law prior to the inclusion of the word “appeals” interpreted section 61.16 as permitting an award of appellate fees. In Thornton v. Thornton, 433 So.2d 682, 683-84 (Fla. 5th DCA 1983), the court explained:

The authority of the appellate court to award attorney’s fees is based on the interpretation of section 61.16 as authorizing fee awards both at trial and on appeal. Bryan v. Bryan, 342 So.2d 858 (Fla. 2d DCA 1977); Sommese v. Sommese, 324 So.2d 647 (Fla. 1st DCA 1976); Ruhnau v. Ruhnau, 299 So.2d 61 (Fla. 1st DCA 1974); Lovett v. Lovett, 194 So.2d 916 (Fla. 2d DCA 1967).

See also Gieseke v. Gieseke, 499 So.2d 839, 839 (Fla. 4th DCA 1986).

A well-settled maxim of statutory construction states that “ ‘the legislature is presumed to know the existing law when a statute is enacted, including judicial decisions on the subject concerning which it subsequently enacts a statute.’ ” Seagrave v. State, 802 So.2d 281, 290 (Fla.2001) (quoting Wood v. Fraser, 677 So.2d 15, 18 (Fla. 2d DCA 1996)). In enacting section 742.045, the Legislature copied the language of section 61.16 and thus is presumed to have known and approved of the judicial construction that the statute includes the authority to award appellate attorney’s fees. In fact, the Legislature’s subsequent specific inclusion of appeals in section 61.16 merely reinforces the judicial construction of the statute for over twenty-five years. Thus, section 742.045 should be interpreted consistently with the judicial construction given to the identical section 61.16: that appellate attorney’s fees are included within its provision.

This would be consistent with other statutes which provide for attorney’s fees but do not specifically mention appellate fees. For instance, although section 57.105, permitting the assessment of attorney’s fees where the claims are frivolous, does not mention appeals, the supreme court applied the statute to appellate proceedings. See Whitten v. Progressive Cas. Ins. Co., 410 So.2d 501, 505-06 (Fla.1982). Moreover, section 59.46, Florida Statutes, provides that, “[i]n the absence of an expressed contrary intent, any provision of a statute ... providing for the payment of attorney’s fees to the prevailing party shall be construed to include the payment of attorney’s fees to the prevailing party on appeal.” Although section 742.045 is not a prevailing party attorney’s fees statute, the legislative directive is clear that the Legislature intends to include attorney’s fees on appeal within statutes permitting the assessment of attorney’s fees, unless it specifically expresses a contrary intent. Here there is no contrary intent.

A construction of the statute which would preclude the assessment of appellate attorney’s fees in actions involving paternity makes little sense. In this case, for instance, the mother was put to considerable expense in defending the modification proceedings both at trial and on appeal. Why should she be entitled to her fees in the trial court but not on appeal? If she has the need, and the father has the ability to pay, she should be entitled to an award of fees to compensate her for the expense of defending the final judgment on modification. Otherwise, income which may be needed to support the child would be redirected to the payment of her appellate attorney’s fees.

Gilbertson did not consider the judicial construction put on the identical language in section 61.16 when section 742.045 was adopted. It is that construction which should control the interpretation of section 742.045. I would recede from that portion of Gilbertson which held that the statute does not authorize attorney’s fees on appeal.

Gilbertson relied on Starkey v. Linn, 727 So.2d 386, 387 n.3 (Fla. 5th DCA 1999). 743 So.2d at 128-29. I would thus disagree with Starkey also.

Because Gilbertson was wrongly decided, I conclude that appellee was certainly entitled to attorney’s fees in this case. I therefore join in affirming the award.

      . In Forum v. Boca Burger, Inc., 788 So.2d 1055, 1060 (Fla. 4th DCA 2001), we recognized that the holding in Written was partially superseded by the 1999 amendment to section 57.105. However, this amendment has no bearing on the analysis here.


author: PER CURIAM.

text:
    Rodney DELEGAL, Appellant, v. STATE of Florida, Appellee.
    No. 4D11-1388.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 2012.
    Rodney Delegal, Coleman, pro se.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Helene C. Hvizd, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Rodney Delegal appeals an order that denied his petition for writ of habeas corpus in which he sought: 1) jail credit for time spent in federal custody following Florida’s filing of a detainer, and 2) a hearing setting a new presumptive release date. We affirm the trial court’s denial of relief on both claims. See Gethers v. State, 838 So.2d 504 (Fla.2003); Solomon v. State, 69 So.3d 396 (Fla. 2d DCA 2011); Alphonso v. State, 20 So.3d 959, 960 (Fla. 4th DCA 2009). Our affirmance of Dele-gal’s second point is without prejudice to his ability to seek mandamus relief in the Leon County Circuit Court. Sullivan v. Florida Parole Comm’n, 920 So.2d 106, 107 (Fla. 2d DCA 2006) (citing Sheley v. Florida Parole Comm’n, 720 So.2d 216, 217 (Fla.1998)).

Affirmed.

GROSS, TAYLOR and CIKLIN, JJ„ concur.


text:
    April WARNER, Appellant, v. U.S. BANK NATIONAL ASSOCIATION, as Trustee for the Structured Asset Securities Corporation Mortgage Loan Trust, 2006-AM1, Appellee.
    No. 4D11-3110.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 2012.
    Philippe Symonovicz of Law Offices of Philippe Symonovicz, Fort Lauderdale, for appellant.
    Dean A. Morande and Michael K. Winston of Carlton Fields, P.A., West Palm Beach, for appellee.
   PER CURIAM.

Affirmed. See Becker v. Deutsche Bank, 88 So.3d 361 (Fla. 4th DCA 2012).

MAY, C.J., GERBER and LEVINE, JJ., concur.


author: WALSH, LISA S., Associate Judge.

text:
    George C. GRIMSLEY, Appellant, v. MOODY, JONES, INGINO & MOREHEAD, P.A., and General Motors Acceptance Corporation, a/k/a GMAC, Appellees.
    Nos. 4D11-3364, 4D11-3799.
    District Court of Appeal of Florida, Fourth District.
    Oct. 24, 2012.

      George C. Grimsley, West Palm Beach, pro se.
    Roy D. Wasson of Wasson & Associates, Chartered, Miami, and Charles A. More-head of Moody, Jones, Ingino, & More-head, P.A., Plantation, for appellee.
   WALSH, LISA S., Associate Judge.

George Grimsley (“the plaintiff’) appeals: (1) a final order dismissing his negligence'claim against General Motors Acceptance Corporation (“GMAC”), in case number 4D11-3364; and (2) a final order dismissing his claims for negligence and for three violations of the Fair Debt Collection Practices Act (“FDCPA”) against Moody, Jones, Ingino & Morehead, P.A. (the “law firm”), in case number 4D11-3799. These two appeals were consolidated for record purposes, but we now sua sponte consolidate these appeals for purposes of the opinion.

The negligence claims alleged that the law firm provided false credit information to GMAC and GMAC in turn provided false credit information to Equifax. GMAC moved to dismiss on the ground that the Fair Credit Reporting Act (“FCRA”) preempted any state law negligence claim. The law firm did not file its own motion, but joined in GMAC’s motion to dismiss.

We affirm the trial court’s dismissal of the negligence claims against GMAC and the law firm. We reverse, however, the trial court’s dismissal of three FDCPA claims against the law firm, where the law firm never moved to dismiss these claims below.

We review the trial court’s finding that federal law preempts state court action de novo. Talbott v. Am. Isuzu Motors, Inc., 934 So.2d 643, 644 (Fla. 2d DCA 2006).

The Supreme Court explained in Jones v. Rath Packing Co., 430 U.S. 519, 97 S.Ct. 1305, 51 L.Ed.2d 604 (1977) that “when Congress has ‘unmistakably ... ordained’ that its enactments alone are to regulate a part of commerce, state laws regulating that aspect of commerce must fall.” Id. at 525, 97 S.Ct. 1305 (quoting Fla. Lime & Avocado Growers, Inc. v. Paul, 373 U.S. 132, 142, 83 S.Ct. 1210, 10 L.Ed.2d 248 (1963)). Thus, when Congress explicitly states its intention to preempt state law, it may, within constitutional limits, do so.

The FCRA, 15 U.S.C. § 1681h(e), provides, inter alia:

(e) Limitation of liability
Except as provided ..., no consumer may bring any action or proceeding in the nature of defamation, invasion of privacy, or negligence with respect to the reporting of information against any consumer reporting agency, any user of information, or any person who furnishes information to a consumer reporting agency, ... except as to false information furnished with malice or willful intent to injure such consumer.

Federal courts have recognized that the FCRA preempts state negligence claims. “The FCRA preempts claims brought by consumers pursuant to state law ‘in the'nature of defamation, invasion of privacy, or negligence with respect to the reporting of information ... except as to false information furnished with malice or willful intent to injure such consumer.’ ” Parks v. Experian Credit Bureau, No. 6:09-cv-1284-Orl-19DAB, 2010 WL 457345, at *3 (M.D.Fla. Feb. 4, 2010) (citing 15 U.S.C. § 1681h(e)); see also Lofton-Taylor v. Verizon Wireless, 262 Fed. Appx. 999, 1002 (11th Cir.2008); Jordan v. Equifax Info. Servs., LLC, 410 F.Supp.2d 1349, 1355 (N.D.Ga.2006). Accordingly, the negligence claims were preempted by federal law and were properly dismissed.

However, the trial court’s order dismissing the three counts for violation of the FDCPA against the law firm must be reversed where the law firm did not independently move to dismiss these claims. GMAC filed a motion to dismiss the negligence claim. While the law firm joined in GMAC’s motion, the firm never moved to dismiss the separate FDCPA claims. The plaintiff specifically objected that the law firm “should not be able to piggyback” off of the GMAC motion because he stated different claims against the law firm. Moreover, counsel for the law firm was under the misapprehension that the three remaining claims were pled under the FCRA, not the FDCPA. The law firm never addressed the FDCPA claims either in a written motion or at the hearing. Therefore, we reverse. See SPCA Wildlife Care Ctr. v. Abraham, 75 So.3d 1271, 1275 (Fla. 4th DCA 2011) (an order adjudicating issues not raised by the pleadings, not properly noticed, and not litigated below denies fundamental due process); Boca Golf View, Ltd. v. Hughes Hall, Inc., 843 So.2d 992, 993 (Fla. 4th DCA 2003) (“ ‘An issue that has not been framed by the pleadings, noticed for hearing, or litigated by the parties’ is not an appropriate matter for a trial court’s determination.”) (quoting Gordon v. Gordon, 543 So.2d 428, 429 (Fla. 2d DCA 1989)).

The remaining issues on appeal are without merit and are affirmed.

Affirmed in part, reversed in part and remanded.

STEVENSON and CIKLIN, JJ., concur.


text:
    HOME AT LAST ADOPTION AGENCY, INC., Appellant, v. V.M., Father, Appellee.
    No. 5D12-3732.
    District Court of Appeal of Florida, Fifth District.
    Nov. 14, 2013.
    Shannon Mclin Carlyle, of The Carlyle Appellate Law Firm, The Villages, for Appellant.

      Ryan Thomas Truskoski, Special Assistant, and Lori D. Loftis and Jeffrey Deen, of Office of the Criminal and Civil Regional Counsel, Casselberry, for Appellee.
   PER CURIAM.

Home at Last Adoption Agency, Inc., (“the Adoption Agency”) appeals a final judgment dismissing its second amended petition to terminate the parental rights of Appellee, V.M., to his biological daughter. Because the trial court erroneously concluded that our prior opinion in this case precluded it from finding that Appellee had abandoned the child, we reverse.

The procedural and factual history of this case is unique. Appellee married G.C. (“the mother”) in October 2009, after learning that she was pregnant with his child. Two months later, Appellee was arrested for allegedly battering his new wife. The resulting aggravated battery charge was ultimately dismissed after the mother failed to appear for Appellee’s criminal court proceedings. The mother was successful, however, in obtaining an injunction for protection against Appellee.

The child was born in April 2010. Approximately one week after the child’s birth, the mother executed a consent for adoption, placing the child in the custody of the Adoption Agency. The affidavit provided to the Adoption Agency by the mother falsely represented that she was single. The child was placed with a prospective adoptive family in Massachusetts and has continued to reside there throughout these proceedings.

Although Appellee and the mother were married at the time the child was born, the Adoption Agency initially sent information to Appellee as though he were a putative unmarried father. In May 2010, the Adoption Agency filed a petition to terminate Appellee’s parental rights and to commit the child to the Adoption Agency for adoption. The petition was filed pursuant to chapter 63, Florida Statutes (2010), and alleged, inter alia, that Appellee had been served with a notice of intended adoption plan, but had failed to register with the Florida Putative Father Registry. Thus, the petition alleged, Appellee was deemed to have surrendered his parental rights.

After learning that Appellee was, in fact, married to the child’s mother, the Adoption Agency filed an amended petition in November 2010, alleging that Appellee had abandoned the child and had rejected his parental responsibilities by physically and/or mentally abusing the mother during the pregnancy. The trial court appointed counsel to represent Appellee and an answer was filed denying “each and every allegation” of the amended petition.

Trial was held on the termination petition on June 13, 2011. At the conclusion of the trial, the court verbally advised the parties that it was going to deny the amended petition because it could not find Appellee had abandoned the child. The trial court did believe, however, that the evidence supported a finding of dependency, stating:

There is nothing that’s been presented to me that would lead me to determine that this man has been [sic] abandoned the child, nor has there been some egregious activity that would cause me to terminate his parental rights. However, it is very appropriate for a dependency.
I would order at this point — again, not hearing what some witness in the hallway is going to say — or at this point, based on the evidence that’s been presented so far, that the father would be entitled to a case plan that would include psychological evaluation, Batterers Intervention, a parenting class, obviously follow the recommendations of the psychological evaluation, pay child support, have regular and routine visitation.
I cannot find good grounds to terminate his parental rights. It doesn’t meet the criteria. And I think the biggest problem is, the mother lied to you. But I cannot find abandonment.
Any other grounds you have listed and elicited here in testimony today, did not rise to the level of termination. They do rise to the level of dependency though.

After discussion with the parties, the trial court stated that the child would remain with the prospective adoptive parents in Massachusetts, but they would be required to bring the child to Florida for visitation with Appellee every other Saturday. The visitation would be supervised by the “Eckerd Program.” The court further expressed its desire not to place the child in foster care or involve the Department of Children and Families.

Appellee filed a motion for rehearing in which he argued that the court’s adjudication of the child as dependent was improper. In support, Appellee cited section 63.089(5), Florida Statutes (2010), which provides:

If the court does not find by clear and convincing evidence that parental rights of a parent should be terminated pending adoption, the court must dismiss the petition and that parent’s parental rights that were the subject of such petition shall remain in full force under the law. The order must include written findings in support of the dismissal, including findings as to the criteria in subsection (4) if rejecting a claim of abandonment .... [T]he court must enter an order based on written findings providing for the placement of the minor.... Further proceedings, if any, regarding the minor must be brought in a separate custody action under chapter 61, a dependency action under chapter 39, or a paternity action under chapter 742.

At the hearing on Appellee’s motion, counsel for the Adoption Agency informed the trial court that since the conclusion of the trial six months earlier, Appellee had neither provided child support nor visited the child. Appellee’s counsel advised the court that no child support had been paid because there was no written order setting a support amount. Appellee’s counsel further stated that Appellee could not afford to pay for supervised visitation, but admitted that Appellee was not aware of the actual cost, nor had he sought a cost waiver.

The trial court then suggested that, given Appellee’s inaction during the previous six months, it would be appropriate for the Adoption Agency to file a second amended petition because “there may be additional grounds for termination at this time.” Specifically, the trial court stated:

Well, I’m going to order that Home at Last Adoption will be allowed to amend their pleadings to include a chapter 39 private petition for dependency and/or another termination of parental rights petition, whatever your choice is, however you choose to do that.
You could basically do both if you’d like or you could do the Chapter 39 petition for dependency. I have made my ruling as to the grounds for termination. My suggestion is there may be additional grounds for termination at this time.
I don’t know because I don’t know the details of why there’s been no support and no visitation in six months. You’ll have fifteen days to file your petition
The child will remain in the custody of Home at Last Adoption. The father will continue to have supervised visitation via the Eckerd Program because I’ve heard no substantial, competent, reliable evidence that he can’t afford it ....

On December 21, 2011, the trial court entered its written order entitled “Order of Adjudication and Findings of Fact, Order of Disposition and Case Plan Acceptance.” The order adjudicated the child dependent and denied the Adoption Agency’s request to terminate Appellee’s parental rights. The child was to remain in her current placement and the prospective adoptive parents were ordered to bring her to the Eckerd Program location, at their expense, for visitation with Appellee four hours every other Saturday. The visitation was to be supervised through the Eckerd Program with Appellee paying the cost of the supervision. Appellee was ordered to pay $200.00 per month in child support; to enter into a case plan with conditions that he have a psychiatric examination and counseling as recommended; complete parenting classes; and complete domestic violence/batterer’s intervention courses, at his expense. The court provided that there was no telephone contact with the child, but photographs may be requested.

The Adoption Agency filed a second amended petition for termination of parental rights the next day. In this pleading, the Adoption Agency alleged that Appellee had abandoned the child “as he had made no provision for the child’s support, little or no effort to communicate with the child, which situation is sufficient to evince an intent to reject parental responsibility.” The second amended petition also contained an allegation that Appellee had “failed to comply with any and all conditions ordered on June 13, 2011.” The second amended petition was personally served on Appellee as well as being served on his counsel.

Approximately three weeks after the Adoption Agency filed its second amended petition, Appellee filed a notice appealing the trial court’s December 21, 2011, order. During the pendency of that appeal, the parties proceeded to trial on the Adoption Agency’s second amended petition for termination of Appellee’s parental rights. At that trial, conducted on March 16, 2012, Appellee testified that he was living with his parents and working at the same job that he had at the time of the first trial, earning over $2,000 per month. He acknowledged that he had never paid child support, nor had he ever seen the child (who was nearly two years old by the time of the second trial). Indeed, despite being afforded the opportunity to visit the child pursuant to the trial court’s verbal directive on June 13, 2011, Appellee had not contacted the Eckerd Program about exercising his visitation rights until a few days before the second trial. The evidence further reflected that the prospective adoptive parents had provided the Adoption Agency with photographs of the child, but that Appellee had never contacted the Adoption Agency to receive these photographs. After the Adoption Agency rested its case, Appellee’s counsel stated that Ap-pellee was not going to call any witnesses and moved to dismiss the petition. The trial court requested memoranda of law from the parties and deferred ruling.

On July 24, 2012, while the ruling on the second trial was still under advisement, this court issued its opinion on the appeal from the first trial. V.M. v. Home at Last Adoption Agency, 93 So.3d 1112 (Fla. 5th DCA 2012). We affirmed the court’s denial of the petition to terminate Appellee’s parental rights. However, we held that the trial court erred in proceeding to adjudicate the child dependent because that action was not authorized in a chapter 63 proceeding. We observed that after finding that Appellee had not abandoned the child, the trial court was required to dismiss the petition:

Section 63.089(5) is clear and unambiguous. It required the court to dismiss the petition upon finding that [Appel-lee’s] parental rights should not be terminated pending adoption. The court had no choice but to dismiss the petition, leaving [Appellee’s] parental rights intact. The statute is clear that any dependency proceedings would have to be filed separately in a dependency action pursuant to chapter 39.... The lower court’s creation of what it called a “private dependency” proceeding was error.

V.M., 93 So.3d at 1115.

After the issuance of our mandate, the trial court ultimately entered a final judgment dismissing the second amended petition for termination. The trial court expressly found that Appellee had failed to pay child support or visit the child from the date of the child’s birth through the date of the second termination trial. However, the trial court then indicated its belief, that as a result of this court’s prior opinion, Appellee “was not obligated to comply with any case plan task, including support or visitation.” The judgment concluded with the paragraph:

ORDERED AND ADJUDGED that any requirement entered by the Court after the first trial is null and void and the Father is under no legal obligation to provide support or visit the minor child. Therefore, the Father has not abandoned the child as defined in section 63.032(1), Florida Statutes, and the case is hereby dismissed.

This court did not, as suggested by the trial court, hold that Appellee was “under no legal obligation to provide support or visit the minor child.” Rather, this court determined that the trial court could not order a chapter 39 case plan in a chapter 63 termination of parental rights proceeding. Appellee has an obligation, independent of any erroneously imposed case plan requirements, to support and maintain contact with his minor child. The undisputed evidence presented at the second trial reflected that for the child’s first twenty-three months of her life, Ap-pellee did not pay any child support, despite having the ability to do so, and did not attempt to visit the child, despite having the opportunity to do so. The evidence was clearly sufficient to survive Ap-pellee’s motion to dismiss and the trial court should have determined whether, given Appellee’s failure to support or visit the child, Appellee had “evince[d] an intent to reject parental responsibilities.”

In his answer brief, Appellee contends that the Adoption Agency was “illegally” allowed to continue to prosecute this case by filing a second amended petition, given this court’s determination that the trial court should have dismissed the case after it found, at the conclusion of the first trial, that the Adoption Agency failed to prove abandonment. The record reflects that although Appellee objected to the “conversion” of the termination proceeding to a dependency proceeding, he did not object to the trial court permitting the adoption agency to file an amended petition rather than a new termination proceeding. Procedural irregularities to which no objection is made are waived. Mole v. First Fed. Sav. & Loan Ass’n, 674 So.2d 144, 145 (Fla. 5th DCA 1996); see also Williams v. Salem Free Will Baptist Church, 784 So.2d 1282 (Fla. 1st DCA 2001) (procedural error not timely raised in trial court is waived unless party asserting error can demonstrate such waiver would be denial of due process). Furthermore, to accept Appellee’s argument would needlessly put form over substance. The only apparent effect of the Adoption Agency’s filing of the second amended petition rather than a new petition is that it was not required to pay an additional filing fee. In the instant case, Appellee was personally served with the second amended petition and the case proceeded to trial in the same manner as if the Adoption Agency had filed a new case.

Appellee also argues that he never had legal custody of the child because custody was illegally given to the Adoption Agency and, accordingly, he was under no duty to pay support. We disagree. In J.C.J. v. Heart of Adoptions, Inc., 989 So.2d 32 (Fla. 2d DCA 2008), our sister court was confronted with a scenario similar to the one presented in this case. Based on the mother’s consent, Heart of Adoptions, Inc., had placed a minor child with prospective adoptive parents shortly after birth. The ensuing petition to terminate the father’s parental rights was litigated for several years. Indeed, the second trial on Heart of Adoptions, Inc.’s termination petition took place on remand after appeals that resulted in opinions from both the Second District Court of Appeal, 942 So.2d 906 (Fla. 2d DCA 2006), and the Florida Supreme Court, 963 So.2d 189 (Fla.2007).

The evidence presented at the second trial established that the father had never provided support for the child, despite having the financial ability to do so. J.C.J., 989 So.2d at 35. Furthermore, the father had never visited the child, despite being afforded the opportunity to do so by the prospective adoptive parents. Id. The trial court’s decision to terminate the father’s parental rights was affirmed. The Second District Court of Appeal found that the father’s claim that his failure to provide support for the child was primarily due to the ongoing litigation was “unconvincing.” Significantly, our sister court concluded that the existence of the ongoing litigation did not overcome the requirement that the father demonstrate full commitment to the responsibilities of parenthood. Id. at 35-36.

We similarly conclude that the placement of Appellee’s child with prospective adoptive parents did not relieve Appellee of his obligation to demonstrate his commitment to the responsibilities of parenthood. In determining whether Appellee’s efforts to support and communicate with his child were sufficient to evince a settled purpose to assume all parental duties, the trial court may, of course, consider the impact the child’s placement had on Appel-lee’s ability to visit the child or provide financial support.

We reverse the trial court’s dismissal of the adoption agency’s second amended petition for termination. On remand, the trial court is directed to reconsider the evidence in accordance with the holdings set forth in this opinion. Because the child is now three and one-half years old, the trial court is further directed to enter a final judgment on the Adoption Agency’s termination petition within forty-five days of the issuance of our mandate.

REVERSED and REMANDED.

EVANDER, COHEN and WALLIS, JJ., concur.

      . The statute was amended, effective July 1, 2012; however, the relevant language remains the same in the current statute.

      . “Abandoned” is defined in section 63.032(1) to mean:
      a situation in which the parent or person having legal custody of a child, while being able, makes no provision for the child’s support and makes little or no effort to communicate with the child, which situation is sufficient to evince an intent to reject parental responsibilities. If, in the opinion of the court, the efforts of such parent or person having legal custody of the child to support and communicate with the child are only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned. In making this decision, the court may consider the conduct of a father towards the child’s mother during her pregnancy.


text:
    Abdul MATHIN, etc., et al., Appellants, v. The BANK OF NEW YORK MELLON, etc., et al., Appellee.
    No. 5D13-2649.
    District Court of Appeal of Florida, Fifth District.
    Nov. 15, 2013.
    Peter F. Carr, Jr. and Mitzi S. Can* of the Carr Law Firm, P.A., Orlando, for Appellant.
    Michael P. Bruning of Connolly, Geaney, Ablitt & Willard, PC, West Palm Beach, for Appellee.
   ON CONFESSION OF ERROR

PER CURIAM.

Pursuant to Appellee’s confession of error, we reverse trial court’s June 19, 2013, final judgment of foreclosure and remand this cause to the trial court for further proceedings.

REVERSED and REMANDED.

TORPY, C.J, SAWAYA and COHEN, JJ., concur.


text:
    Leroy BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D13-2688.
    District Court of Appeal of Florida, Fifth District.
    Nov. 15, 2013.

      Leroy Brown, Montecello, pro se.
    No Appearance for Appellee.
   PER CURIAM.

Leroy Brown appeals from the trial court’s order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). We affirm in part and reverse in part.

In 1994, Brown was convicted of six offenses and sentenced to concurrent fifteen-year terms of imprisonment to be followed by ten years of probation. Upon his release from prison in 2005, Brown began serving the probationary portion of his sentence. In 2007, Brown violated his probation, and the trial court sentenced him to two years’ community control followed by thirteen years’ probation. In 2011, Brown violated his probation again, and the trial court sentenced him to one forty-year term of imprisonment and four fifteen-year terms, all of which were to run concurrently. Brown then filed a rule 3.800 motion, in which he argued that the trial court used an incorrect scoresheet in determining his sentence because the scoresheet reflected a two-cell bump for what he alleged was only one violation of probation. We conclude that the trial court properly rejected that argument. See Williams v. State, 594 So.2d 273, 275 (Fla.1992) (“[W]here there are multiple violations of probation, the sentence may be successively bumped to one higher cell for each violation.”).

In the trial court’s order, however, it noted another error on the sentencing scoresheet — one that was not raised by Brown in his rule 3.800 motion. Relying on Brooks v. State, 969 So.2d 238 (Fla.2007), the trial court ultimately ruled that the error was harmless because the same sentence “could have been imposed” if a correct scoresheet had been used. We conclude that the trial court should have instead allowed Brown an opportunity to file a rule 3.850 motion raising the error noted by the court. See Kelsey v. State, 97 So.3d 978, 979-80 (Fla. 1st DCA 2012) (remanding to allow defendant opportunity to raise alleged scoresheet errors in facially sufficient rule 3.850 motion and noting that if defendant’s rule 3.800 motion were treated as a rule 3.850 motion, then the “would have been imposed” test would apply)-

Accordingly, we reverse and remand with instructions for the trial court to give Brown thirty days to raise the scoresheet error in a sworn, facially sufficient rule 3.850 motion. See Burke v. State, 40 So.3d 867, 867 (Fla. 5th DCA 2010) (remanding for court to give defendant thirty days to amend rule 3.850 motion). In considering the rule 3.850 motion upon remand, the trial court must assess whether the same sentence would have been imposed had the scoresheet been correct. See Kelsey, 97 So.3d at 979.

AFFIRMED IN PART; REVERSED IN PART; and REMANDED.

EVANDER, COHEN and WALLIS, JJ., concur.


author: GRIFFIN, J.

text:
    Tory EAST, Appellant, v. STATE of Florida, Appellee.
    No. 5D12-2759.
    District Court of Appeal of Florida, Fifth District.
    Nov. 15, 2013.

      James S. Purdy, Public Defender, and Eliza Puchalski, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   GRIFFIN, J.

We find no error in either issue raised on appeal. The State properly has brought to our attention, however, that Appellant was erroneously adjudicated guilty of both burglary with a battery and a simple battery based on the same conduct. The court did not score or sentence Appellant on the battery; however, it erroneously appears on the judgment. We remand for the trial court to strike it from the judgment.

AFFIRMED; and REMANDED to correct judgment.

SAWAYA and BERGER, JJ., concur.


text:
    STATE of Florida, Appellant, v. Frederick CURRILLY, Appellee.
    No. 1D13-2810.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2013.

      Pamela Jo Bondi, Attorney General, and Brittany Ann Rhodaback, Assistant Attorney General, Tallahassee, for Appellant.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellee.
   PER CURIAM.

The State appeals the trial court’s order revoking Appellee’s probation and sentencing him to six months in the county jail, but withholding adjudication of guilt. We agree with the State that the trial court erred in withholding adjudication of guilt based on the clear and unambiguous language of section 948.06(2)(b), Florida Statutes (2011). However, we are compelled to affirm because the prosecutor failed to adequately preserve the error for appellate review.

Appellee pled guilty to child abuse. Adjudication was withheld and Appellee was placed on probation. Appellee was charged with violating his probation. He admitted the violation with the understanding that the “disposition will be determined by the court.”

At sentencing, counsel for Appellee requested a lenient sentence and told the trial judge that she had the discretion to continue to withhold adjudication of guilt. The prosecutor did not rebut this erroneous legal argument and simply requested that the judge adjudicate Appellee guilty and sentence him to three years’ imprisonment. After an off-the-record discussion, the judge sentenced Appellee to six months in the county jail and announced that she would not alter the previous withhold of adjudication. The prosecutor objected to the sentence, saying only, ‘Your Honor, just for the record, the State would object to the withhold.”

An issue is considered preserved for appellate review if the “issue, legal argument, or objection to evidence was timely raised before, and ruled on by, the trial court, and ... the issue, legal argument, or objection to evidence was sufficiently precise that it fairly apprised the trial court of the relief sought and the grounds therefor.” § 924.051(l)(b), Florida Statutes (2011) (emphasis added); see also Harrell v. State, 894 So.2d 935, 940 (Fla.2005) (“First, a litigant must make a timely, contemporaneous objection. Second, the party must state a legal ground for that objection. Third, ‘[i]n order for an argument to be cognizable on appeal, it must be the specific contention asserted as legal ground for the objection, exception, or motion below.’ ”)(fírst emphasis added and second emphasis in original). Here, the prosecutor’s generic “for-the-record” objection did not apprise the judge of the legal basis for the error and, thus, did not adequately preserve the issue for appellate review.

We reject the State’s argument that the legal basis for the prosecutor’s objection is apparent from the argument presented below; at no point during the sentencing hearing did the prosecutor argue that it is improper to withhold adjudication of guilt after a revocation of probation, nor did the State ever mention section 948.06(2)(b). Likewise, we reject the State’s argument that the error in this case is fundamental error that can be raised on appeal despite the lack of preservation below because the error is not “basic to the judicial decision under review and equivalent to a denial of due process.” Hopkins v. State, 632 So.2d 1372, 1374 (Fla.1994) (quoting State v. Johnson, 616 So.2d 1, 3 (Fla.1993)); cf. State v. Calvert, 15 So.3d 946, 950 (Fla. 4th DCA 2009) (Warner, J. concurring specially) (stating that the erroneous withholding of adjudication without the required written reasons creates an unauthorized judgment, but not an illegal judgment, and does not appear to be fundamental error under Florida law).

For these reasons, the order on appeal is AFFIRMED.

ROBERTS, WETHERELL, and MARSTILLER, JJ., concur.

      . We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(A), 9.140(c)(l)(L).

      . Section 948.06(2)(b) provides:

        If probation or community control is revoked, the court shall adjudge the probationer or offender guilty of the offense charged and proven or admitted, unless he or she has previously been adjudged guilty, and impose any sentence which it might have originally imposed before placing the probationer on probation or the offender into community control.
      (emphasis added).

      .The State notes in its brief that the trial judge engaged in off-the-record discussions with counsel immediately prior to announcing the sentence. The State argues that it is likely that, during these discussions, the parties conferred about Appellee's sentence, including the possibility of the judge continuing to withhold adjudication, and, therefore, the State’s objection to the withhold sufficiently apprised the judge that a withhold of adjudication after a revocation of probation is improper. To the extent the State is suggesting that the objection was preserved by the off-the-record discussion, we reject this claim as speculative and without merit. See Pena v. State, 829 So.2d 289, 293 (Fla. 2d DCA 2002) (stating that an appellate court “cannot and will not rely on factual information ... that is outside [its] record.”).


text:
    Bruce Edward McCRAY, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5391.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2013.
    Nancy A. Daniels, Public Defender, and Steven L. Seliger, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Brittany Ann Rhodaback, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

In this direct appeal from his convictions for aggravated battery, kidnapping with a weapon, and two counts of sexual battery, appellant claims the trial court (1) abused its discretion in admitting collateral crime evidence; (2) abused its discretion in admitting a photograph depicting a cell phone inside appellant’s car; (3) abused its discretion in permitting the prosecutor to cross-examine appellant about his motives for testifying at trial; and (4) erred in denying appellant’s motions for judgment of acquittal. We affirm appellant’s last two claims without discussion. However, we agree the collateral crime evidence became a feature of the trial because the collateral crime evidence so overwhelmed the evidence of the charged crimes that it became an impermissible attack on appellant’s character or propensity to commit crimes. See Bush v. State, 690 So.2d 670, 673 (Fla. 1st DCA 1997). We also agree the photograph of the cell phone was irrelevant because there was no evidence that appellant took the cell phone from the victim or either of the collateral crime witnesses. Accordingly, we reverse and remand for a new trial.

AFFIRMED in part; REVERSED in part; and REMANDED for a new trial.

WETHERELL, SWANSON, and OSTERHAUS, JJ., concur.


text:
    Michael Eugene WINGATE, Appellant, v. STATE of Florida, Appellee.
    No. 1D13-0855.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2013.
    Glenn M. Swiatek, Shalimar, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Because the February 6, 2013, notice of appeal was filed more than 30 days after rendition of the December 5, 2012, judgment and sentence, this appeal is hereby dismissed as untimely. See Fla. R.App. P. 9.140(b)(3). This disposition is without prejudice to counsel filing a motion to reinstate the appeal in case number 1D12-6070.

BENTON, PADOVANO, and RAY, JJ., concur.


text:
    James N. MANUEL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-5173.
    District Court of Appeal of Florida, First District.
    Nov. 15, 2013.
    James N. Manuel, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition for writ of certiorari is denied without prejudice to seek review upon entry of a final order disposing of all grounds raised in the motion for postcon-viction relief.

BENTON, PADOVANO, and RAY, JJ., concur.


author: WALLACE, Judge.

text:
    BARTOW HMA, LLC a/k/a Bartow Regional Medical Center, Petitioner, v. Ollie J. KIRKLAND, Respondent.
    No. 2D13-674.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 2013.

      Dinah Stein, Mark Hicks, and Michael S. Hirschkowitz of Hicks, Porter, Ebenfeld & Stein, P.A., Miami; and Michael A. Petruc-celli and Paul C. Buckley of Fann & Pe-truccelli, P.A., Fort Lauderdale, for Petitioner.
    John W. Frost, II, and Lydia S. Zbrzeznj of Frost Van Den Boom & Smith, P.A., Bartow, for Respondent.
   WALLACE, Judge.

Bartow Regional Medical Center petitions for certiorari review of an order requiring it to produce certain documents in the underlying medical malpractice action brought by Ollie J. Kirkland. Bartow Regional argues that the circuit court’s order departs from the essential requirements of the law, causing it irreparable harm by requiring it to produce privileged documents and other items not subject to discovery. Bartow Regional also challenges the circuit court’s failure to perform an in camera review before making a blanket ruling on Bartow Regional’s asserted privileges and the circuit court’s imposition of sanctions on account of its good faith objections. We agree that the circuit court departed from the essential requirements of the law in making a blanket ruling on Bartow Regional’s asserted privileges and objections absent an in camera review, causing irreparable harm that is not remediable on appeal. Accordingly, we grant the petition and quash the order under review.

1. THE FACTS AND PROCEDURAL HISTORY

In the underlying matter, Ms. Kirkland sued Bartow Regional and others for alleged medical malpractice in connection with a cholecystectomy performed by Dr. Larry D. Thomas at Bartow Regional. On June 22, 2011, Ms. Kirkland served her first request for production on Bartow Regional. Some, but not all, of the requests specifically asked for documents relating to adverse medical incidents as defined by article X, section 25(a) of the Florida Constitution, or “Amendment 7.” Bartow Regional filed a motion for protective order concerning some of the requests and asserted various statutory privileges. The circuit court ordered Bartow Regional to produce “[a]ny documents which reference ‘adverse medical incident,’ no matter how titled, ... only to the extent that an ‘adverse medical incident’ is discussed” and denied Bartow Regional’s motion for protective order. On October 1, 2012, Bar-tow Regional filed in the circuit court a notice of filing privilege logs A, B, and C concerning the first request for production.

On September 6, 2012, Ms. Kirkland served her second request for production on Bartow Regional. The categories of documents requested in Ms. Kirkland’s second request for production were different than those in the first request for production, and Ms. Kirkland did not specifically reference the term “adverse medical incident” or Amendment 7 in the second request for production.

Bartow Regional produced some documents in response to the second request for production. It also asserted various objections to some of the requests, including that they were overly broad, unduly burdensome, and failed to contain reasonable limitations of time or scope. In addition, Bartow Regional asserted various common law privileges and statutory limitations on discovery to some of the requests, including that the documents requested were protected by the work product privilege and/or the peer review/risk management/quality assurance discovery limitations under sections 395.0191, 395.0198, 395.0197, 766.101, Florida Statutes (2012), and the Health Care Quality Improvement Act, 42 U.S.C. §§ 11101-11152 (“HCQIA”). Bar-tow Regional also cited to section 381.028, Florida Statutes (2012), which purports to implement and define the scope of Amendment 7.

On October 9, 2012, Bartow Regional filed a notice of filing privilege logs numbered 1, 2, and 3 in response to the second request for production. The items identified in privilege log 1 are the same as those identified in the previously filed privilege log A; the items identified in privilege log 2 are the same as those identified in the previously filed privilege log C; and the items in privilege log 3 are the same as those identified in the previously filed privilege log B. With regard to the documents listed in the privilege logs, Bartow Regional asserted the same privileges that it claimed in its response to the second request to produce.

On November 1, 2012, Ms. Kirkland served a motion to compel production of documents and for an in camera review. She sought to compel production of the documents identified in Bartow Regional’s privilege logs A, 2, and 3, and she argued that the documents were discoverable under Amendment 7. Ms. Kirkland acknowledged that she was unable to determine whether the records listed in privilege log 3 numbered 15-16 and 19-21 were protected by the attorney-client privilege, and she requested that the circuit court conduct an in camera review of those documents to make that determination.

Ms. Kirkland asserted in her motion that “each request in Plaintiffs Second Request for Production is carefully limited to requesting documents related to an adverse medical incident” and was thus discoverable under Amendment 7. In support of this statement, she asserted that Dr. Thomas had performed a laparo-scopic cholecystectomy on her, which he converted to an open cholecystectomy. This surgery allegedly caused her injury. Therefore, according to Ms. Kirkland, any surgery involving a conversion from lapa-roscopic to open satisfied the definition of an adverse medical incident under Amendment 7. Because all of the items she requested to be produced in her second request for production “related to Dr. Thomas[’s] converting from laparoscopic to open ... these documents ‘relate’ to an ‘adverse medical incident’ and therefore any documents responsive to these requests are covered by Amendment 7.”

On January 15, 2013, the circuit court held a hearing on Ms. Kirkland’s motion to compel. At the hearing, Bartow Regional’s counsel told the court that all of the items listed on privilege log A — and thus the items on privilege log — were produced in their entirety to Ms. Kirkland. Accordingly, the items identified on privilege logs A and 1 are no longer at issue.

Ms. Kirkland’s counsel asserted that her requests for production were limited to requests for documents containing reports of adverse medical incidents. Counsel argued that any document dealing with an adverse medical incident was discoverable and that the privileges claimed by Bartow Regional do not apply to adverse medical incidents discoverable under Amendment 7. However, counsel acknowledged that certain documents listed on the privilege logs may be protected by the attorney-client privilege. Accordingly, he asked the circuit court to conduct an in camera review with respect to those documents.

In response, Bartow Regional’s counsel argued that, in fact, not every item listed on the privilege logs contains an adverse incident report and requested an in camera inspection to determine which documents were truly adverse incident reports subject to production under Amendment 7. Counsel explained that some of the documents identified in its privilege logs contained peer review committee notes of general discussions about improving the quality of care based on empirical data but did not specifically refer to any adverse medical incident. In addition, counsel stated that in several instances the documents requested by Ms. Kirkland did not exist. But in an abundance of caution, he had listed documents that could arguably relate to her requests for production. Counsel argued that the privileges had been properly asserted, warranting an in camera review or further analysis.

Notably, counsel for both parties agreed that — albeit for different reasons — the circuit court was required to conduct an in camera review before ordering a blanket production of all of the documents in question. Nevertheless, the circuit court did not conduct such a review. Instead, the circuit court simply granted the motion to compel and allowed Bartow Regional ten days to “comply.” The circuit court also awarded Ms. Kirkland her attorney’s fees and costs for bringing the motion to compel.

Counsel for Bartow Regional asked for clarification of the court’s ruling, questioning whether it was required “to produce all of the items that are included on the two privilege logs.” The circuit court judge responded, “I’ve looked at those privilege logs attached to the motion[,] and I didn’t find anything that you shouldn’t produce if it’s containing an adverse medical report” (Emphasis added.) Counsel reiterated that several of the items included in the privilege log were not adverse incident reports and that he could show those documents in camera. The circuit court judge stated, “If you put it on the privilege log, A, B, or C, you need to produce it.” On January 10, 2013, the circuit court entered a written order that memorialized its oral ruling at the hearing.

II. THE ISSUE OF JURISDICTION

To be entitled to certiorari review, Bartow Regional must establish that the circuit court’s order departs from the essential requirements of the law and causes material injury to it throughout the remainder of the proceedings below with no adequate remedy on appeal. See Lakeland Reg’l Med. Ctr. v. Neely ex rel. Neely, 8 So.3d 1268, 1269 (Fla. 2d DCA 2009); Morton Plant Hosp. Ass’n, Inc. v. Shahbas ex rel. Shahbas, 960 So.2d 820, 823 (Fla. 2d DCA 2007).

In its petition, Bartow Regional argues that the circuit court departed from the essential requirements of the law by requiring it to produce materials that do not constitute records of adverse medical incidents, that are protected by several privileges, or both. As discussed below, we conclude that Ms. Kirkland’s requests for production may require Bartow Regional to produce privileged documents not relating to an adverse medical incident. Thus we conclude that Bartow Regional has satisfied the “threshold showing of irreparable harm necessary to invoke this court’s certiorari jurisdiction.” Columbia Hosp. Corp. of S. Broward v. Fain, 16 So.3d 236, 239 (Fla. 4th DCA 2009) (on denial of rehearing). We now turn to the issue of whether the circuit court’s order departs from the essential requirements of the law.

III. THE APPLICABLE LAW

Article X, section 25 of the Florida Constitution, or “Amendment 7,” was approved by the voters in the general election held on November 2, 2004. See Morton Plant, 960 So.2d at 823. Amendment 7 provides that “[i]n addition to any other similar rights provided herein or by general law, patients have a right to have access to any records made or received in the course of business by a health care facility or provider relating to any adverse medical incident.” Art. X, § 25(a), Fla. Const, (emphasis added).

The phrase “adverse medical incident” means medical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient, including, but not limited to,, those incidents that are required by state or federal law to be reported to any governmental agency or body, and incidents that are reported to or reviewed by any health care facility peer review, risk management, quality assurance, credentials, or similar committee, or any representative of any such committees.

Art. X, § 25(c)(3), Fla. Const, (emphasis added).

A request for Amendment 7 materials differs significantly from an ordinary discovery request, the latter being subject to objections based on overbreadth, burdensomeness, or lack of relevance. Unlike the litigant engaging generally in discovery, the party seeking access to records pursuant to the amendment gains a foothold by satisfying the threshold showing of an adverse medical incident.

Baldwin v. Shands Teaching Hosp. & Clinics, Inc., 45 So.3d 118, 124 (Fla. 1st DCA 2010) (on denial of rehearing) (citations omitted).

Under Amendment 7, a patient is “entitled to any of the hospital’s records relating to any adverse medical incident” and “[tjhere is no requirement that the records ... be relevant to any pending litigation.” Morton Plant, 960 So.2d at 825; see also Columbia Hosp., 16 So.3d at 240 (citing Morton Plant). In addition, “[w]hether the request is overly burdensome is not a relevant consideration under Amendment 7.” Morton Plant, 960 So.2d at 826; see also Columbia Hosp., 16 So.3d at 240 (citing Morton Plant). Amendment 7 also requires the hospital to protect the identity of patients, and thus an objection based on the violation of a patient’s right of privacy normally will not preclude production unless the trial court’s order requires a hospital to produce documents of other patients without redacting their private information. Morton Plant, 960 So.2d at 826.

Furthermore, Amendment 7 trumps the application of the statutory discovery protections set forth in sections 395.0191, 395.0193, 395.0197, and 766.101 to the extent that documents for which those protections are asserted contain reports of adverse medical incidents. See W. Fla. Reg’l Med. Ctr., Inc. v. See, 79 So.3d 1, 12 (Fla.2012); Fla. Hosp. Waterman, Inc. v. Buster, 984 So.2d 478, 490-92 (Fla.2008). Moreover, a patient’s entitlement to documents relating to adverse medical incidents under Amendment 7 is not preempted by federal law in the form of the HCQIA. See West Fla. Reg’l, 79 So.3d at 15-21; Columbia Hosp., 16 So.3d at 241-43. And the Supreme Court of Florida has held that the scope of Amendment 7 cannot be limited by the application of section 381.028, which purports to implement the amendment. See West Fla. Reg’l, 79 So.3d at 13-15. However, “Amendment 7 does not require production of documents relating to general policies and procedures of [health care facility peer review, risk management, quality assurance, credentials, or similar] committees or other documents that do not contain information about particular adverse medical incidents.” Morton Plant, 960 So.2d at 827.

Amendment 7 also preempts application of the work product doctrine to the extent it relates to fact work product. Lakeland Reg’l, 8 So.3d at 1269-70; see also Fla. Eye Clinic, P.A. v. Gmach, 14 So.3d 1044, 1048-49 (Fla. 5th DCA 2009). But it does not preempt application of the work product doctrine with respect to opinion work product. Fla. Eye Clinic, 14 So.3d at 1049-50. It has also been suggested that Amendment 7 does not affect the attorney-client privilege. Morton Plant, 960 So.2d at 825. Accordingly, before a determination can be made about whether and to what extent the privileges asserted by Bartow Regional apply to Ms. Kirkland’s requests for production, the threshold question of whether the documents relate to an adverse medical incident within the meaning of Amendment 7 must first be addressed.

IV. DISCUSSION

Here, Bartow Regional purportedly listed numerous documents on its privilege logs that do not constitute or necessarily contain reports of adverse medical incidents. Also, Bartow Regional purportedly identified documents in its privilege logs that are not responsive to the requests for production. Ms. Kirkland argues that all of her requests for production are limited to documents relating to adverse medical incidents. We disagree.

Contrary to Ms. Kirkland’s position, not all of the requests specifically limit production to documents including a report of an “adverse medical incident” or assert that the request is being made in the context of Amendment 7. Moreover, Ms. Kirkland’s argument that all records that concern Dr. Thomas’s conversion of a laparoscopic procedure to an open procedure necessarily concern an adverse medical incident is based upon a faulty premise. “Factors that may increase the possibility of choosing or converting to the ‘open’ procedure may include obesity, a history of prior abdominal surgery causing dense scar tissue, inability to visualize organs[,] or bleeding problems during the operation.” Society of American Gastrointestinal and Endoscopic Surgeons, Laparoscopic Gallbladder Removal (Cholecystectomy) Patient Information from SAGES (2013), http://www.sages.org/publications/patient-information/patient-information-for-laparoscopic-gallbladderremoval-cholecyst ectomy-from-sages/ (last visited October 30, 2013). Thus the possibility that the conversion from a laparoscopic procedure to an open one resulted from medical negligence in Ms. Kirkland’s case does not mean that is true in all cases of conversion. There are multiple reasons for conversion from the laparoscopic method to the open method that do not arise from “medical negligence, intentional misconduct, and any other act, neglect, or default of a health care facility or health care provider that caused or could have caused injury to or death of a patient.” Art. X, § 25(c)(3), Fla. Const.

Because we conclude that Ms. Kirkland’s requests to produce were not limited to adverse medical incidents, Bartow Regional cannot be faulted for identifying documents in its privilege logs that do not necessarily relate to an adverse medical incident. In addition, because the determination of whether a document is discoverable as one relating to an adverse medical incident is a threshold question in determining whether certain privileges apply, the circuit court should have determined whether the documents identified in the privilege logs relate to an adverse medical incident within the meaning of Amendment 7. Thus the circuit court departed from the essential requirements of the law in ordering a blanket production of all of the items identified on the privilege logs without specifically determining whether those documents relate to adverse medical incidents within the meaning of Amendment 7. See Morton Plant, 960 So.2d at 827.

V. CONCLUSION

Accordingly, we grant Bartow Regional’s petition and quash the order under review. Because the course of the discovery proceedings between the parties has developed into a procedural and evidentia-ry quagmire, we offer the following road map to guide the circuit court and the parties going forward. First, the circuit court should address whether the documents identified in privilege logs 2 and 3 contain reports of adverse medical incidents under Amendment 7; whether the privileges asserted are preempted by application of Amendment 7; or, in the case of a responsive document that is not discoverable under Amendment 7, whether the asserted privilege applies. Thereafter, the circuit court should conduct an in camera review to the extent necessary to resolve whether certain documents concern adverse medical incidents and whether and to what extent the asserted privileges apply. See Patrowicz v. Wolff, 110 So.3d 973, 974 (Fla. 2d DCA 2013) (holding that the circuit court departed from the essential requirements of the law by ordering disclosure of documents that opponent claimed were privileged without conducting an in camera inspection).

Petition granted and order quashed.

MORRIS and SLEET, JJ., Concur.

      . A cholecystectomy is a surgical procedure for the removal of the gall bladder.

      . Bartow Regional sought certiorari review of the order in this court. We denied the petition. Bartow HMA, LLC v. Kirkland, 93 So.3d 1021 (Fla. 2d DCA 2012) (table decision).

      . At the hearing, counsel further argued that one document that had been produced reflected that Dr. Thomas's conversion rate was twenty-six percent when the national average was five percent, demonstrating that Dr. Thomas was committing malpractice in his conversions.

      . The circuit court found in the order under review that "[d]uring the hearing counsel for [Bartow Regional] conceded that the objections raised in Privilege Log A were improper and produced said documents ... prior to the ... hearing.”

      . Ultimately, this court granted a stay of the underlying matter pending the resolution of Bartow Regional’s petition.

      . Because Bartow Regional apparently included some documents on its privilege logs that it contends are not responsive to the request to produce, the circuit court may wish to permit Bartow Regional to resubmit its privilege logs, listing only those documents that are clearly responsive, before undertaking any review. Of course, Ms. Kirkland could seek to compel Bartow Regional to produce any documents that she contends are responsive to the request to produce and have been improperly withheld.


author: ALTENBERND, Judge.

text:
    NEXTGEN RESTORATION INC., a/a/o Marsha Panton, Appellant, v. CITIZENS PROPERTY INSURANCE CORPORATION, Appellee.
    No. 2D12-2990.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 2013.
    Earl I. Higgins, Jr., of Anthony-Smith Law, P.A., Orlando, for Appellant.
    Kimberly A. Salmon of Groelle & Salmon P.A., Tampa, for Appellee.
   ALTENBERND, Judge.

NextGen Restoration, Inc., appeals an order dismissing its complaint against Citizens Property Insurance Corporation. We reverse.

According to the complaint, a home insured by Citizens was damaged by a water event on May 9, 2011. NextGen allegedly entered into a remediation contract with the homeowner to repair the damage. In consideration for this contract, the homeowner executed a written assignment of benefits that assigned “any and all insurance rights, benefits, and proceeds” under Citizens’ policy of insurance. When Citizens paid only a part of NextGen’s bill, NextGen filed a lawsuit alleging breach of contract.

Citizens initially responded to the action by filing a motion to dismiss. The motion to dismiss alleged only that NextGen had failed to reference the language of the insurance policy or attach a copy of that contract. Several months later, before any hearing on the motion to dismiss, Citizens filed an answer to the complaint. It admitted that it had issued a policy with an identified number insuring the relevant property, and it also admitted that the property had sustained water damage. As a third affirmative defense, it claimed that “the basis for recovery arises from an invalid assignment.” It raised other defenses, quoting the language of the relevant insurance policy.

The trial court held a hearing on the motion to dismiss about two months after the answer had been filed. Counsel for Citizens appeared in person, and counsel for NextGen appeared by telephone. Although counsel for Citizens began its argument by addressing the ground for dismissal in its motion, i.e., the need to attach the insurance contract to the complaint, it shifted to arguing about the problems created by remediation contractors and the assignments they receive. Oddly, counsel for Citizens provided to the trial court a copy of the insurance policy to establish that the policy contained an anti-assignment clause. Counsel explained that she was going to “digress a moment” and then explained that Citizens was experiencing “an absolute crisis” with remediation companies. Counsel explained that Citizens “desperately” needed rulings and case law on these assignments and orally moved to dismiss the complaint with prejudice.

Counsel for NextGen responded, explaining that the hearing had been set on a motion to dismiss for failure to attach an insurance policy. He explained that he did not have a copy of the insurance policy that Citizens had just provided to the judge. He asked the court to limit the hearing to the motion.

After further argument, the court suggested that “it sounds as though, really, the motion to dismiss is based on a standing issue.” The court concluded that the assignment did not give NextGen standing. While counsel for NextGen continued to argue that the court had gone beyond the motion to dismiss, the participants continued to discuss the assignment. At the conclusion of the hearing, the court announced that it was dismissing the complaint “based on an invalid assignment.” Apparently concerned that a dismissal “with prejudice” might prevent NextGen from bringing an action against the homeowner, the court dismissed the complaint. The order did not provide for any right to amend the complaint because the trial court did not see a way for NextGen to cure the problem with its complaint that was based on an assignment.

NextGen appealed this order. Although Citizens maintains that this court must dismiss this appeal as from a nonfi-nal, nonappealable order, the order states: “Plaintiffs Complaint is hereby DISMISSED.” An order that dismisses a complaint without leave to amend is a final appealable order even if the order is not “with prejudice.” See Palm AFC Holdings, Inc. v. Minto Communities, Inc., 766 So.2d 436 (Fla. 4th DCA 2000).

We reverse the order because the trial court resolved the case on an issue that was not raised in the motion to dismiss and could not have been resolved on this record even if it had been raised. In actuality, Citizens was asking the trial court to grant summary judgment in its favor based on the theory briefly identified in the third affirmative defense contained in its answer. We have serious doubts that the anti-assignment clause of the insurance contract bars the assignment attached to the complaint. But the insurance contract was never placed in the record. It was not provided to NextGen’s counsel. Because it was never placed in the trial court’s record, it is not in this court’s record.

We would observe that much of Citizen’s argument on appeal addresses a provision that it maintains is in the insurance policy that is not in our record. That provision apparently prohibits an assignment of the “policy” without the written consent of Citizens. That provision of the insurance contract does not appear to prevent an assignment of benefits or proceeds owing by virtue of a claim arising under the policy. We do not reach the validity of this specific assignment of insurance benefits, but we note that other cases seem to permit assignees to bring similar actions. See, e.g., Miami-Dade Cnty. v. Associated Aviation Underwriters, 983 So.2d 618 (Fla. 3d DCA 2008); State Farm Fla. Ins. Co. v. Unlimited Restoration Specialists, Inc., 84 So.3d 390 (Fla. 5th DCA 2012).

Accordingly, we reverse and remand for further proceedings.

CASANUEVA and WALLACE, JJ., Concur.


author: MORRIS, Judge.

text:
    Marcus DAVIS, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-1912.
    District Court of Appeal of Florida, Second District.
    Nov. 15, 2013.
    Howard L. Dimmig, II, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.
   MORRIS, Judge.

Marcus Davis appeals his judgments and sentences for trafficking in cocaine between 28 and 200 grams, possession of marijuana with intent to sell or deliver, and possession of drug paraphernalia. We find no error in the trial court’s denial of his motion to suppress, and we do not address it further. However, because Davis sufficiently alleged the existence of an adversarial relationship with his counsel in his letter to the trial court, which we construe to be an amendment to his motion to withdraw plea, the trial court erred by summarily denying his motion. We therefore affirm Davis’s judgments and sentences but reverse and remand for the trial court to conduct a limited evidentiary hearing pursuant to Sheppard v. State, 17 So.3d 275, 287 (Fla.2009).

In Davis’s pro se motion to withdraw plea, he argued that “the plea offered ... was not the plea [a]greed upon [b]y the State and the Defendant” and that he “signed a plea under false pretenses and [was] led to [b]elieve it [was] the State[’]s offer.” These allegations — if taken alone — were sufficiently refuted by the written plea agreement and the plea colloquy.

However, Davis’s counsel also filed a motion to withdraw plea, asserting that Davis told counsel that “he was not properly served by undersigned counsel”; counsel also asserted that “[presumably this ... resulted in an involuntary plea being entered by Defendant.” We are not entirely convinced that such a general allegation was sufficient to warrant a Sheppard hearing. See, e.g., Davis v. State, 52 So.3d 697, 698 (Fla. 4th DCA 2010) (holding that counsel’s motion was not sufficient where counsel alleged only that counsel and appellant’s positions had become adverse); Carter v. State, 22 So.3d 793, 795 (Fla. 1st DCA 2009) (recognizing that a general allegation of a conflict with counsel is insufficient to warrant a hearing). But see Collins v. State, 68 So.3d 251, 251 (Fla. 2d DCA 2010) (holding that where appellant alleged she had not been properly represented and that counsel told her she could change her mind about plea until the very last minute, trial court should have conducted Sheppard hearing).

We need not decide that issue however because we hold that Davis’s letter to the trial court, which was filed three months after his pro se motion but two days prior to the filing of the trial court’s order denying motion to withdraw plea, should have been construed to be an amendment to the motion. We also hold that the letter contained allegations sufficient to warrant a limited evidentiary hearing. In the letter entitled “Notice of Inquiry,” Davis alleged that he entered the plea based on his counsel’s promise that he would receive a three-year sentence. Such an allegation could potentially support withdrawal of Davis’s plea. See Jones v. State, 774 So.2d 811, 812 (Fla. 2d DCA 2000).

This case is distinguishable from Alcantara v. State, 888 So.2d 758 (Fla. 2d DCA 2004), wherein this court determined that where the appellant sent two letters to the trial court alleging grounds that could have supported withdrawal of his plea, but which did not contain such a request for relief, the trial court correctly determined the letters were facially insufficient to constitute a motion to withdraw plea. In contrast, in this case, the trial court had before it two official motions to withdraw plea. Even if the motions themselves were refuted or facially insufficient, the trial court was on notice that Davis was seeking to withdraw his plea at the time Davis filed his letter with the trial court. Because the letter contained a facially sufficient allegation that could give rise to an adversarial relationship with counsel, the trial court should have conducted a Sheppard hearing.

Therefore, we affirm the judgments and sentences, but we reverse the denial of the motion to withdraw plea and remand for the trial court to follow the procedures articulated in Sheppard. See Collins, 68 So.3d at 252.

Affirmed in part, reversed in part, and remanded.

DAVIS, C.J., and BLACK, J., Concur.

      . Sheppard held that where a pro se defendant’s allegations give rise to an adversarial relationship such as counsel’s misadvice, misrepresentation, or coercion in entering the plea, the trial court should conduct a limited evidentiary hearing to determine if an adversarial relationship exists.