author: MORRIS, Judge.

text:
    M.B., Appellant, v. S.P., M.D., and CDMG, P.A., Appellees.
    No. 2D12-3136.
    District Court of Appeal of Florida, Second District.
    Oct. 18, 2013.

      William H. Rogner of Hurley, Rogner, Miller, Cox, Waranch & Westcott, P.A., Winter Park, for Appellant.
    Mark Hicks and Erik P. Bartenhagen of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, for Appellees.
   MORRIS, Judge.

M.B. appeals a final judgment entered in favor of S.P. and CDMG in her medical malpractice action. M.B. contends that the trial court erred by failing to allow her to introduce evidence that S.P. had repeatedly failed the board certification exam and by failing to disqualify itself and/or grant a mistrial after M.B. discovered that the trial judge wrote a derogatory note about M.B. We affirm on the issue of S.P.’s board certification failures because such evidence was not relevant. However, we agree that M.B. is entitled to a new trial due to the trial judge’s conduct below.

I. Background

In June 2009, M.B. was referred to S.P. after complaining to her primary care physician of unusual cramping and pain and irregular bleeding. S.P. determined that M.B. needed a hysterectomy and ultimately performed a laparoscopically assisted vaginal hysterectomy in July 2009. M.B. returned to the hospital five days after the procedure complaining of acute abdominal pain and discomfort. Tests revealed M.B. had a blocked ureter. Surgery could not be immediately performed due to inflammation. As a result, M.B. had to have a nephrostomy tube inserted, which allowed for urine to drain into an external collection bag, thereby bypassing the damaged ureter. M.B. had to wear the nephrosto-my tube for a three-month period, and during that time, she suffered severe diarrhea, nausea, and vomiting. Eventually, M.B.’s damaged ureter was successfully repaired. However, M.B. testified at trial that she still suffers from dull pain, has increased frequency of urination, and wets herself every night.

There was no dispute that the injury to M.B.’s ureter was a result of the hysterectomy. The issue of negligence was not premised on the fact that M.B.’s ureter was injured during the surgery. Rather, the issue was based on whether S.P.’s failure to conduct one of several tests postop-eratively to check the integrity of M.B.’s ureter, over and above S.P.’s standard visual inspection, constituted negligence. In her complaint, M.B. alleged that she suffered an injury during the hysterectomy as a result of S.P.’s negligence. She further alleged that CDMG, as S.P.’s employer, was vicariously liable for S.P.’s negligent acts.

II. The issue of S.P.’s repeated board certification exam failures

Prior to trial, S.P. filed a motion in limine seeking to prohibit testimony of his repeated failures to pass the board certification exam. The motion was granted. During the trial, M.B. proffered testimony from S.P. acknowledging that it took him seven years to pass the exam and that he passed the written portion of the exam on the fourth try and the oral portion on the third try. Subsequently, S.P. presented expert testimony from two physicians and elicited from both witnesses that they were board certified by the American Board of Obstetrics and Gynecology. After each witness, M.B. renewed her motion to admit evidence of S.P.’s board certification exam history. M.B. also proffered testimony from a deposition of one of S.P.’s expert witnesses wherein the physician opined that a repeated failure to pass a board certification exam could be important to him in determining whether the operating physician was competent. However, the trial court denied the motions, and when M.B. attempted to renew the motion to admit the evidence the following day, the trial court refused to consider it, despite M.B.’s assertion that she had case law to support her position.

We review a trial court’s decision to exclude evidence for abuse of discretion. Dessaure v. State, 891 So.2d 455, 466 (Fla.2004).

The trial court was within its discretion in granting S.P.’s motion in limine prior to trial. Evidence of S.P.’s repeated failures of the board certification exam was not relevant to the issue of his purported negligence in performing the hysterectomy. See, e.g., Campbell v. Vinjamuri, 19 F.3d 1274, 1276-77 (8th Cir.1994) (“[A] person’s performance on a written or oral examination is not determinative of one’s ability to meet the standard of care required on a specific occasion.”); Gipson v. Younes, 724 So.2d 530, 532 (Ala.Civ.App. 1998) (holding that the failure of a physician to pass a test “is irrelevant to the issue.of his negligence in a malpractice case” (citations, omitted)); Marsingill v. O’Malley, 58 P.3d 495, 501 (Alaska 2002) (“[C]ourts generally disfavor admission of evidence showing that a defendant failed board certification tests when that evidence is affirmatively offered to prove lack of professional knowledge or skill.”); Jackson v. Buchman, 338 Ark. 467, 996 S.W.2d 30, 34 (1999) (“[T]he ability or inability to pass examinations has no bearing on the issue of one’s ability to meet the appropriate standard of care on a specific occasion.”); Williams v. Mem’l Med. Ctr., Inc., 218 Ga.App. 107, 460 S.E.2d 558, 560 (1995) (agreeing that the failure of a physician to pass board certification and licen-sure exams “has little if any relevance to the issue of whether the physician complied with the standard of care required in his treatment in a given case” (citation omitted)), abrogated on other grounds recognized by Mullins v. Thompson, 274 Ga. 366, 553 S.E.2d 154 (2001); Dorsey v. Nold, 362 Md. 241, 765 A.2d 79, 84 (2001) (“[T]he general rule is that ‘a physician’s inability to pass a medical board certification exam has little, if any, relevance to the issue of whether the physician complied with the standard of care required in his or her treatment of a patient.’ ” (quoting Gipson, 724 So.2d at 531-32)); Beis v. Dias, 859 S.W.2d 835, 839 (Mo.Ct.App. 1993) (“A physician’s inability to pass certification and licensure examinations does not make probable his negligent performance of a specific procedure.”).

But M.B. argues here that because S.P. testified as an expert, the issue of his repeated failures of the board certification exam was relevant to his credibility as an expert. And if S.P. had, in fact, testified as an expert, case law indicates that such evidence would be relevant and admissible. See, e.g., Marsingill, 58 P.3d at 501 (noting that such evidence could be brought out in cross-examination or rebuttal to counteract “affirmative defense evidence introduced to show a special degree of skill, knowledge, or relevant expertise”); Jackson, 996 S.W.2d at 35 (“Evidence of a physician’s lack of board certification may be used to impeach the physician’s credibility as an expert witness.”); Gipson, 724 So.2d at 532 (recognizing that where physician defendant testifies as an expert, the fact that he failed a board certification exam is relevant to his credibility); Babikian v. Mruz, 353 Ill.Dec. 831, 956 N.E.2d 959, 964 (Ill.App.Ct.2011) (recognizing that where a physician testified he met the standard of care in treating the plaintiff, evidence of his lack of board certification would have been admissible); Rockwood v. Singh, 258 Ill.App.3d 555, 196 Ill.Dec. 708, 630 N.E.2d 873, 875 (1993) (recognizing that where a physician testifies as an expert, “evidence as to his age, practice, and like matters relating to his qualifications as an expert is admissible”); McCray v. Shams, 224 Ill. App.3d 999, 167 Ill.Dec. 184, 587 N.E.2d 66, 69 (1992) (holding that where defendant physician testified that he regarded himself as a specialist in the relevant field and he testified about the examination, diagnosis, and treatment of the plaintiff and the reasons why he picked one treatment over another, the issue of his failure to pass board certification exam was relevant); Ward v. Epting, 290 S.C. 547, 351 S.E.2d 867, 872-73 (App.1986) (holding that where physician was asked about separate licensure for specialty, she testified as to routine surgical and recovery room procedures in addition to the circumstances of the case, and she gave her opinion within a reasonable degree of medical certainty as to how the plaintiff was injured, the fact that she was not board certified related to her credibility as an expert witness); Dorsey, 765 A.2d at 84 (recognizing that a physician’s failure to pass a board certification exam is relevant to his or her qualifications as an expert and is therefore admissible where the physician testifies as an expert).

However, in this case, S.P. could only be said to have provided limited expert testimony, if any. S.P. never directly opined that he met the requisite standard of care nor did he opine within a reasonable degree of medical certainty as to the cause of M.B.’s injuries. Rather, during cross-examination, S.P. was asked whether he agreed his actions were below the standard of care required, and he responded that he disagreed with that assertion. In Campbell, the defendant physician provided an almost identical response, and the Eighth Circuit held that this response did not render evidence of the physician’s repeated board certification failures relevant. 19 F.3d at 1277 n. 2. We agree with that reasoning. A physician’s general testimony about his education, training, professional experience, and license to practice in the relevant state is very different from evidence about routine operating room procedures and opinions to a reasonable degree of medical certainty. See Rockwood, 196 Ill.Dec. 708, 630 N.E.2d at 875 (holding that where physician did not testify about routine operating room procedures or offer opinions to a reasonable degree of medical certainty, his testimony “was not used to show the standards of medical care associated with such surgery[ ] but[,] rather, was used to relate to the jury what occurred before, during, and after the surgery” and that therefore, the circuit court correctly barred evidence of his board certification status); Beis, 859 S.W.2d at 839 (holding that where physician’s testimony was limited to his education, training, professional experience, and license to practice medicine in Missouri and physician did not offer evidence of his intellect, grades, superior ability to pass examinations, special licenses, or academic honors, his failure to pass the board certification exam was not relevant).

S.P. did not testify about any special expertise, special licenses, or academic honors he received. And while he did testify about some matters of routine, that testimony, when viewed in context, reflects that he was explaining why he did or did not do certain things while treating M.B. Consequently, we find that S.P. merely related what happened before, during, and after the surgery, and therefore, we hold that his testimony did not make his repeated failures of the board certification exam relevant.

Citing Dorfman v. Schwabl, 777 So.2d 427 (Fla. 5th DCA 2000), M.B. also asserts that S.P. opened the door to the evidence once he qualified his expert witnesses by eliciting testimony about their board certification. We are not persuaded by that argument. In Dorfman, the defendant physician’s motion in limine was granted prior to trial, thereby preventing the plaintiff from introducing evidence of the physician’s repeated failure of the board certification exam. However, during trial, the defendant physician’s counsel raised the issue of the plaintiffs expert’s having failed the board certification exam. The Fifth District determined that at that point, it was proper for the trial court to permit the evidence of the defendant physician’s repeated failures of the board certification exam because the testimony of the physicians was going to be compared and the defendant physician was tacitly asking the jury to discount the plaintiffs expert’s testimony. Id. at 428.

But in this case, S.P. did not challenge the board certification status of M.B.’s expert witness, despite the fact that M.B.— like S.P. — qualified her expert witness by inquiring whether he was board certified. Thus there was no “tacitly asking the jury to discount” M.B.’s expert’s testimony as there was in Dorfman.

The issue of whether S.P. opened the door involves determining whether inquiring about an expert witness’s board certification renders a defendant’s board certification status relevant. We are not convinced that Dorfman fully and accurately analyzed, this issue. First, Dorf-man did not explain how it made the leap from inquiring about an expert’s lack of board certification to permitting an inquiry into a defendant’s lack of board certification. Clearly, if a defendant presents his own expert and during direct examination opens the door to questioning about board certification, then that expert’s lack of board certification is a relevant topic for the plaintiff to explore. See Nelson v. Waxman, 9 S.W.3d 601, 604 (Mo.2000) (holding that where plaintiff presented expert witness to establish that physician breached standard of care and, in establishing witness’s credentials, plaintiff inquired about board certification, plaintiff' opened the door for defendant to explore witness’s lack of board certification for specialty). But Dorfman cited no authority for its holding that the defendant physician’s lack of board certification became relevant simply because the physician inquired about an expert’s lack of board certification.

It is possible that the Dorfman court reached its holding on the basis that the defendant physician was testifying as an expert himself. However, the opinion does not make that clear. And if the defendant physician did not provide expert testimony, evidence of his repeated board certification failures would not be relevant as to either the issue of negligence or to the defendant physician’s credibility as an expert, at least according to the consensus of case law from other jurisdictions.

Moreover, the fact that the Dorfman court found no error in the trial court’s permitting an inquiry into the defendant physician’s lack of board certification does not mean that the converse is true in this ease. It simply does not follow that a trial court abuses its discretion when it decides not to permit such evidence. See Campbell, 19 F.3d at 1277 (rejecting argument that just because one court found it was not an abuse of discretion for a trial court to admit evidence of a physician’s test failures, then it was an automatic abuse of discretion not to admit such evidence).

Finally, we note that even if the trial court erred by refusing to permit an inquiry into S.P.’s repeated board certification failures, it was not reversible error. This is due to the fact that other witnesses opined that S.P. met the standard of care. Id. (concluding that admission of physician’s test failures would not necessarily have resulted in different verdict where other expert witnesses testified about whether physician met the standard of care); Jackson, 996 S.W.2d at 36 (concluding that no prejudice arose from trial court’s refusal to allow plaintiff to inquire about physician’s lack of board certification to rebut his credibility as a witness where the record reflected that several other physicians opined that defendant physician met the standard of care).

Although we hold that M.B. is not entitled to relief on this issue, we conclude that she is entitled to a new trial before a different judge due to the trial judge’s conduct as explained below.

III. The trial court’s failure to disqualify itself or grant a mistrial

During M.B.’s testimony at trial, she was asked to describe having to live with a nephrostomy tube and urine bag. M.B. began to explain but after providing some extensive details, S.P. and CDMG’s counsel interrupted and asked to approach the bench. During the bench conference, S.P. and CDMG’s counsel objected to M.B.’s. providing a narrative response and asked the trial court to “instruct the witness not to refer to incontinence.” M.B.’s counsel conceded that M.B. was providing a “long answer,” and at that point, the trial court commented, “It is. I’m bagged out.”

Later, during a sidebar, M.B.’s attorney saw a note affixed to the verdict form lying on the trial court bench. The note read: “Bag lady with shits (full of). Barfer, too.” M.B.’s counsel immediately moved for a mistrial on the basis of the note. The trial court initially acknowledged the note, then retracted and stated “I don’t have it. Gone.” But the trial court then continued by asserting that “[wjhat notes I take up here are absolutely no business of counsel’s” and that “[i]f I sit here and do crossword puzzles, it’s none of your damn business either.” The trial court then told M.B.’s counsel that if he [M.B.’s counsel] was trying to “get [the trial court] riled up ... you’re doing very well.” The trial court denied the motion for mistrial. M.B.’s counsel then moved to have the trial judge recuse himself which was also denied. After a recess, M.B. renewed her motions for mistrial and for recusal of the trial judge. At that point, the trial court stated:

The scribbles I make up here are my sarcastic comments that stay with me, they don’t go anyplace [sic] else. I am not noted for being the most outwardly friendly person in the world and I do make some fairly critical notes that nobody should have even looked at up here[ ] and they had nothing to do with anything. And nobody sees them except people who look over the top of the desk.

Eventually, the trial resumed and the jury returned a verdict in favor of S.P. and CDMG. M.B. renewed her motion for mistrial based on the trial court’s note and comments. However the motion was denied. M.B. then filed written motions for a new trial and to disqualify the trial judge. The trial court denied the motions but on the same day sent a letter to M.B.’s counsel, wherein the trial court reiterated that “what is on my bench is of no business to anyone in the courtroom” and asserting that “there was nothing said or mentioned to the jury that was inappropriate.”

In determining whether to grant a motion to disqualify, a trial court must decide whether the motion is legally sufficient, i.e., “whether the facts alleged, which must be assumed to be true, would cause the movant to have a well-founded fear that he or she will not receive a fair trial at the hands of that judge.” Gore v. State, 964 So.2d 1257, 1268 (Fla.2007) (citing Fla. R. Jud. Admin. 2.330(d)(1)); see also Chamberlain v. State, 881 So.2d 1087, 1097 (Fla.2004). “The motion to disqualify ‘must be well-founded and contain facts germane to the judge’s undue bias, prejudice, or sympathy.’” Chamberlain, 881 So.2d at 1097 (quoting Wright v. State, 857 So.2d 861, 873 (Fla.2003)). Because the issue of whether a motion is legally sufficient is a matter of law, we review the trial court’s decision de novo. See id.

Generally, the standard of review for a ruling on a motion for mistrial is abuse of discretion. Perez v. State, 919 So.2d 347, 363 (Fla.2005) (citing Goodwin v. State, 751 So.2d 537, 546 (Fla.1999)). However, where the ruling is based on an error of law, such as a judge’s failure to disqualify himself, a de novo standard applies. See Krolick v. Monroe ex rel. Monroe, 909 So.2d 910, 913 (Fla. 2d DCA 2005); Probkevitz v. Velda Farms, LLC, 22 So.3d 609, 614 (Fla. 3d DGA 2009) (both holding that where an error of law occurs in the denial of a motion for new trial, the de novo standard applies).

The motion in this case clearly met the requirements of rule 2.330(d)(1). We hold that the comments made by the trial judge, in addition to the trial judge’s written note, caused M.B. to have a well-founded fear that she would not receive a fair and impartial trial.

The very foundation of our system of justice mandates 'that judges be completely neutral and impartial. See State ex rel. Davis v. Parks, 141 Fla. 516, 194 So. 613, 615 (1939). Litigants have the right to have their cases heard in a “[calm] and dispassionate environment before an impartial judge and have their rights adjudicated in a fair and just manner.” Williams v. State, 143 So.2d 484, 488 (Fla.1962). It can hardly be said that the trial judge’s comments and note in .this case reflected a “calm and dispassionate environment.” Quite the contrary, the comments reflected a bias or prejudice against M.B., thereby rendering the entirety of the proceedings fundamentally unfair. See Alamo Reni-A-Car v. Phillips, 618 So.2d 56, 57-58 (Fla. 1st DCA 1992).

IV. Conclusion

Based on the trial judge’s conduct below, M.B. did not receive a fair trial before an impartial judge. She is therefore entitled to a new trial before a different judge. Accordingly, we reverse and remand for proceedings in conformance herewith.

Reversed and remanded.

CASANUEVA and WALLACE, JJ., Concur.

      . We use pseudonyms for all parties to protect the patient's, M.B.’s, privacy.

      . There was testimony that M.B. suffered from urine sepsis which causes vomiting. And several physicians opined that diarrhea and vomiting were a potential consequence of M.B.’s illness and surgical complications.

      . The proffer was made to preserve the record for appeal, and therefore, the trial court did not make a ruling at that point.

      . Although M.B.’s counsel used the term "re-cuse," it was clear he was seeking a disqualification of the trial judge. See Sume v. State, 773 So.2d 600, 601-02 (Fla. 1st DCA 2000) (explaining that recusal is the process whereby a trial judge removes himself, whereas disqualification is the process by which a party seeks to remove a trial judge from the case). ■ ’


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    C.B., Appellant, v. M.A., Appellee.
    No. 2D12-3834.
    District Court of Appeal of Florida, Second District.
    Oct. 18, 2013.
    Erin M. Bradford, Tampa, for Appellant.
    Allison M. Perry and Stacey A. Rickies of Law Office of Allison M. Perry, P.A., Tampa, for Appellee.
   PER CURIAM.

In the final judgment on appeal, the trial court established the paternity of the minor child born to the parties, C.B. (the Mother) and M.A. (the Father), and granted additional relief. The disputed issues at trial concerned the parenting plan and time-sharing with the minor child. On appeal, the Mother argues that the final judgment is deficient in several respects, and she requests that we reverse and remand for the trial court to reconsider the entire time-sharing plan.

The Mother argues — and the Father concedes — that the trial court erred in failing to determine a time-sharing schedule for holidays and the child’s summer vacations. The Mother’s remaining arguments are without merit and do not warrant discussion.

Accordingly, we reverse the final judgment in part and remand this case to the trial court for the entry of an amended final judgment establishing a time-sharing schedule for holidays and the child’s summer vacations. In all other respects, the final judgment is affirmed.

Affirmed in part, reversed in part, and remanded.

DAVIS, C.J., and WALLACE and KHOUZAM, JJ., Concur.


text:
    Charles ADAMS, Appellant, v. Sherry SMITH and James Smith, Appellee.
    No. 5D12-3077.
    District Court of Appeal of Florida, Fifth District.
    Oct. 18, 2013.

      Terrance A. Jones, Fleming Island, for Appellant.
    Beth M. Coleman, of Beth M. Coleman, P.A., St. Petersburg, Marian B. Rush, of the Law Office of Rush and Glassman, Gainesville, and Kelly McNeal, of McNeal Yochim, P.L., Gainesville, for Appellee.
   PER CURIAM.

Charles Adams appeals a final judgment awarding Sherry and James Smith $47,634.00 on their counterclaim, plus $11,237.50 in attorney’s fees and costs. As the final judgment is valid on its face and Appellant does not allege any error on the merits, we affirm without further elaboration. The issues Appellant seeks to raise can only be addressed by motion pursuant to Florida Rule of Civil Procedure 1.540. We do not have jurisdiction to consider Appellant’s rule 1.540 arguments in this appeal from the final judgment.

AFFIRMED.

SAWAYA, LAWSON and WALLIS, JJ., concur.


text:
    Carlos Jerome WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4436.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2013.
    Carlos Williams, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004) (reiterating that ha-beas corpus cannot be used to litigate issues that could have been or were raised on direct appeal or in postconviction motions).

WOLF, CLARK, and MARSTILLER, JJ., concur.


text:
    David A. HARDY, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D13-3448.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2013.
    David A. Hardy, pro se, Petitioner.
    No appearance for Respondent.
   PER CURIAM.

DENIED. See Powell v. Florida Department of Corrections, 727 So.2d 1103 (Fla. 1st DCA 1999).

LEWIS, C.J., ROWE and MAKAR, JJ., concur.


text:
    James R. HASH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-4447.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2013.
    James R. Hash, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

LEWIS, C.J., ROWE and MAKAR, JJ., concur.


text:
    Johnny BROWN, Petitioner, v. FLORIDA DEPARTMENT OF CORRECTIONS, et al., Respondents.
    No. 1D13-4628.
    District Court of Appeal of Florida, First District.
    Oct. 18, 2013.
    Johnny Brown, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

LEWIS, C.J., ROWE and MAKAR, JJ., concur.


text:
    Jennifer L. STEEPROCK, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, Appellee.
    No. 5D13-1868.
    District Court of Appeal of Florida, Fifth District.
    Oct. 22, 2013.

      Jennifer L. Steeprock, Deleon Springs, pro se.
    Louis A. Gutierrez, Tallahassee, for Ap-pellee.
   PER CURIAM.

AFFIRMED. Estrada v. Unemployment Appeals Comm’n, 693 So.2d 1091 (Fla. 5th DCA 1997).

SAWAYA, PALMER and LAWSON, JJ., concur.


author: ROTHENBERG, J.

text:
    S.L. WADE, Petitioner, v. D.T. WADE, Respondent.
    No. 3D13-2317.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 2013.

      Lisa Marie Macci, P.A., and Lisa Marie Macci, Boca Raton, for petitioner.
    Marks & West, P.A., and Evan R. Marks and Carolyn W. West, Miami, for respondent.
    Before ROTHENBERG, FERNANDEZ and LOGUE, JJ.
   ROTHENBERG, J.

S.L. Wade (“Mother”) petitions this Court for a writ of certiorari to review the trial court’s sua sponte order requiring her to: (1) submit to a psychological examination with a focus on anger control under Florida Rule of Civil Procedure 1.360 and Florida Family Law Rule of Procedure 12.360; and (2) participate in the parties’ oldest child’s therapy during her timeshar-ing in Florida. For the reasons that follow, we grant the petition for writ of cer-tiorari and quash these portions of the order under review.

I. BACKGROUND

In 2008, D.T. Wade (“Father”) filed for divorce in Cook County, Illinois. In 2010, the Illinois court dissolved the parties’ marriage, but the custody and financial issues remained pending. In 2011, the Illinois court entered a final custody judgment awarding sole custody of the parties’ two minor children to the Father and parenting time to the Mother. The trial court also granted the Father’s motion to remove the children to Florida. Thereafter, in 2012, the Father petitioned the Eleventh Judicial Circuit of Florida (“the Florida court”) to register and domesticate the Illinois final custody judgment. The Florida court granted the Father’s petition, and thereafter, the Illinois court relinquished its jurisdiction as to child custody matters to the Florida court, while maintaining jurisdiction over the partiés’ financial issues.

On July 22, 2013, the Father filed in the Florida court an Emergency Motion to Suspend [the Mother’s] Timesharing (“Emergency Motion”), requesting that the Mother’s timesharing be suspended pending the results of a psychological examination under Florida Rule of Civil Procedure 1.360 and Florida Family Law Rule of Procedure 12.360, or in the alternative, requiring that the Mother’s timesharing be supervised pending the results of her psychological examination. The primary support for the Emergency Motion was the Mother’s behavior during court proceedings in Illinois on July 18 and 19, 2013, including her attempt to discharge her attorney, and her behavior outside of the courthouse in Illinois on July 19, 2013. The Father’s Emergency Motion' stated that the Mother was outside of the- courthouse sitting beneath a sign that stated: “NBA MIAMI HEAT STAR MOTHER OF HIS CHILDREN ON THE STREETS.” The Father asserted that based on the Mother’s behavior, he feared that the Mother “may do something drastic to the children or herself.” The Mother filed a response, asserting, in part, that the Father’s unverified Emergency Motion was not only factually and legally deficient, but it also was “another improper attempt to modify the Mother’s timesharing rights without due process.”

At the emergency hearing before the Florida court, the only witness who testified was Howard Rosenberg, a licensed attorney in Illinois who is the Parent Coordinator appointed by the Illinois court. Over a hearsay objection, Mr. Rosenberg testified that he was concerned with the Mother’s behavior outside of the Illinois courthouse on July 19, 2013. Mr. Rosenberg acknowledged that he did not personally observe the Mother’s behavior, but he later received videotapes of a YouTube video that captured the incident. Over the Mother’s counsel’s objections based on hearsay, relevance,-and lack of authentication, the trial court allowed the Father’s counsel to play the video for Mr. Rosenberg so that he could ascertain whether this was the YouTube video that he had viewed and to identify the Mother in the video. Thereafter, the trial court admitted the YouTube video into evidence.

The trial court then viewed the video in its entirety. The video depicts the Mother speaking to individuals who appear to be reporters in a public área in front of the Illinois courthouse. In addition to the reporters, the Mother is accompanied by individuals holding signs that state: “WHAT IS THE PRICE FOR JUSTICE?” and “NBA MIAMI HEAT STAR MOTHER OF HIS CHILDREN ON THE STREETS.” During the video, the Mother appears to be passionate and upset while discussing three main topics: an alleged settlement agreement; the interference of her parenting time both in Florida and Illinois; and her attorney allegedly dismissing, without her knowledge, a lawsuit she filed against the Father.

First, the Mother stated that the Father’s counsel filed a motion to enforce a settlement, although she had not agreed to a settlement or signed a settlement agreement. During the court proceeding held earlier that day, the Illinois court allegedly told the Mother that her counsel had agreed to the settlement, and therefore, the court would decide on Monday, July 22, 2013, whether to force the Mother to accept the agreement. Second, the Mother explained that when she arrived in Florida for her parenting time; she learned from the Father that the oldest child would be attending a basketball tournament, which would take place during her parenting time. Also, when the children were in Chicago for the Mother’s parenting time, the Father informed the Mother that he would have someone pick up the children on two of her three parenting days so that the children could play basketball for eight or nine hours each day. The Mother explained that during her timesharing with the children, she should be able to plan the children’s activities, such as visiting the children’s grandparents and a great grandmother. In addition, the Mother stated that the Parenting Coordinator, Mr. Rosenberg, told her that if she did not allow the oldest child to play basketball on those two days while in Chicago, he would recommend to the Florida court that the Mother not be able to see her children. Finally, the Mother stated that she filed a separate lawsuit against the Father, and that one of her attorneys withdrew the lawsuit without her knowledge. She later learned of the withdrawal on the internet. The YouTube video appeared to be edited, and therefore, included only a portion of the incident.

Over hearsay objection, the trial court also permitted Mr. Rosenberg to testify as to an alleged telephone conversation, initiated by the parties’ oldest child, regarding the YouTube video. Mr. Rosenberg further testified that he spoke to the Mother on the morning of July 22, 2013, and she assured him that she had no intention of being vocal around the children. Mr. Rosenberg then wrote a letter to the parties’ Illinois counsel recommending that the Mother’s parenting time should go forward.

During the hearing, Mr. Rosenberg, as the Parent Coordinator, made the following recommendations to the trial court: (1) the Mother’s summer visitation should be shortened from periods of two weeks to periods of four nights; (2) the oldest child should remain in therapy with his current therapist; (3) the Mother should participate in the oldest child’s therapy sessions in Miami; (4) the Mother should attend individual therapy; (5) the Mother and the Father should begin to directly communicate ' with each other; (6) the Mother should stop making disparaging comments about the Father in public; and (7) the Mother’s two-hour window to return the oldest child’s phone calls should be shortened to half an hour. Mr. Rosenberg clarified that he was not recommending that the Mother’s timesharing with her children be suspended, and he was not recommending that the Mother submit to a psychological evaluation because that “is not [his] job” as the Parenting Coordinator. Mr. Rosenberg testified that, in essence, he was recommending several modifications to the final custody judgment.

At the conclusion of the hearing, the Mother’s counsel moved for a “directed finding,” arguing that the Father failed to establish that the Mother’s timesharing should be suspended. The trial court ruled that, based on the YouTube video and Mr. Rosenberg’s testimony, there was insufficient evidence to support the Father’s claim to either suspend the Mother’s timesharing or the Father’s alternative claim to have the Mother’s timesharing supervised. The trial court, however, sua sponte ordered the Mother to (1) undergo a psychological evaluation with a focus on anger control under Florida Rule of Civil Procedure 1.860, and (2) participate in the oldest child’s therapy sessions while the Mother is in Miami for her parenting time.

In its written order of August 12, 2013, the trial court denied the Father’s Motion to Suspend [the Mother’s] Timesharing, thereby allowing the Mother’s scheduled parenting time with the children to occur. In fact, the court ordered that the children go home with the Mother that same day. The trial court, however, found that it had “a degree of concern about the Mother’s recent behavior, which is erratic at best and irresponsible at worst.” (Emphasis added). The order, however, does not specify the behavior' providing the basis for such concern. Further, the trial court found that it was also concerned about the Mother’s actions in front of the courthouse in Illinois because the Mother brought “her feelings regarding this litigation into the public domain.” Based on the “totality of the circumstances,” the trial court found that “good cause” existed to require the Mother to submit to a compulsory psychological evaluation with a focus on anger control. The trial court’s order, however, does not directly address the “in controversy” requirement of rule 1.360(l)(a), and its findings regarding “good, cause” are largely conclusory. The trial court also sua sponte ordered that the Mother participate in the oldest child’s therapy during her parenting time in Florida. This petition for writ of certiorari followed.

II. ISSUE

The Mother asserts that the trial court’s sua sponte order requiring her to undergo a psychological examination and to participate in her oldest.child’s therapy departs from the essential requirements of law where her mental condition was not “in controversy” and “good cause” was not shown as required by Florida Rule of Civil Procedure 1.360. Based on our review of the record, we agree.

III. ANALYSIS

Florida Rule of Civil Procedure 1.360(a)(1) provides that “[a] party may request any other party to submit to ... examination by a qualified expert when the condition that is the subject of the requested examination is in controversy.” Fla. R. Civ. P. 1.860(a)(1) (emphasis added). Further, an examination under rule 1.360(a) “is authorized only when the party submitting the request has good cause for the examination.” Fla. R. Civ. P. 1.360(a)(2) (emphasis added). At any hearing on the request for compulsory examination, the party submitting the request has the burden of showing that both the “in controversy” and “good cause” prongs have been satisfied. Id.; see also Schlagenhauf v. Holder, 379 U.S. 104, 118-19, 85 S.Ct. 234, 13 L.Ed.2d 152 (stating that “the trial judge ... must decide ... whether the party requesting a mental or physical examination or examinations has adequately demonstrated the existence of the Rule’s requirements of ‘in controversy and ‘good cause’ ”). There is a heightened burden of proof when the party subject to the forced examination has not voluntarily placed that issue in controversy. Schlagenhauf, 379 U.S. at 119-20, 85 S.Ct. 234.

In Paul v. Paul, 366 So.2d 853 (Fla. 3d DCA 1979), the trial court ordered the husband in a dissolution of marriage action to submit to compulsory mental and physical examinations. Id. at 853. In addressing whether the record reflects that the two prerequisites for a compulsory examination—(1) the condition that is the subject of the requested examination is “in controversy” and (2) the party submitting the request has shown “good cause” for the examination—were satisfied, this Court relied on Gasparino v. Murphy, 352 So.2d 933 (Fla. 2d DCA 1977), which stated:

The two essential prerequisites that must be clearly manifested are: (1) that petitioner’s mental condition is “in controversy” i.e. directly involved in some material element of the cause of action or a defense; and (2) that “good cause” be shown i.e. that the mental state of petitioner, even though “in controversy,” cannot adequately be evidenced without the assistance of expert medical testimony.

Id. at 935; see also Doe v. Suntrnst Bank, 32 So.3d 133, 139-40 (Fla. 2d DCA 2010) (holding that a party seeking an examination under rule 1.360 must demonstrate that the condition is genuinely in controversy and that good cause exists to order the examination); Williams v. Williams, 550 So.2d 166, 167 (Fla. 2d DCA 1989).

In Schlagenhauf, the United States Supreme Court addressed the “in controversy” and “good cause” requirements of Federal Rule of Civil Procedure 35(a), which is substantially similar to Florida Rule of Civil Procedure 1.360(a). In doing so, the Court held that the “in controversy” and “good cause” requirements

are not met by mere conclusory allegations of the pleadings—nor by mere relevance to the case—but require an affirmative showing by the movant that each condition as to which the examination is sought is really and genuinely in controversy and that good cause exists for ordering each particular examination.

Id. at 118 (emphasis added). Thus, the trial court’s sua sponte order requiring the Mother to submit to a compulsory mental examination is a departure from the essential requirements of law unless both prongs of rule 1.360 were adequately established.

A. The “In Controversy”Requirement

In addressing whether the Mother’s mental condition was “in controversy,” we note that the trial court’s written order completely fails to address this “essential prerequisite.” This alone may be sufficient to overturn the trial court’s order. See Russenberger v. Russenberger,. 639 So.2d 963, 965 (Fla.1994) (stating that the trial court should make specific findings as to both prongs under rule 1.360 before ordering a mandatory psychological evaluation). Nonetheless, we examine the Father’s Emergency Motion and the admissible evidence presented at the hearing to determine if the Mother’s mental condition was directly and genuinely in controversy.

While a parent’s emotional state is certainly relevant in making a custody determination, “the fact that custody is at issue should not alone create a reason to order a psychological evaluation.” Id.; see also Frisard v. Frisard, 453 So.2d 1150, 1152 (Fla. 4th DCA 1984) (“Mental, or psychological examinations are not automatic [in child custody disputes], - and should not be.”). A parent’s mental state is typically at issue in a custody hearing only when there are verified allegations that the parent in question is having mental problems that could substantially impact his or her ability to properly raise children. See In re G.D., 870 So.2d 235, 238 (Fla. 2d DCA 2004) (holding that in a dependency case, a parent’s mental state is not “at issue” until the State’s petition for termination of parental rights containing pertinent allegations of mental insufficiency is filed).

In his Emergency Motion, the Father asserted that he feared that the Mother “may do something drastic to the children or herself.” In support of his “fear,” the Father relied primarily on the Mother’s interaction with her attorney during the Illinois court proceedings and the Mother’s actions outside of the Illinois courthouse where she sat underneath a sign that stated: “NBA MIAMI HEAT STAR MOTHER OF HIS CHILDREN ON THE STREETS.” In addition, at the hearing, the Father admitted into evidence the YouTube video of the Mother outside of the Illinois courthouse. The video merely depicts a woman who is passionately voicing her views as to several, matters that allegedly occurred during her divorce action. This video is insufficient to place the Mother’s mental condition “in controversy.” While the Father may disapprove of this behavior, he has not properly alleged or explained how this behavior makes the Mother unfit to exercise her parenting time with the children. See Russenberger, 639 So.2d at 965 (holding that “conclusory allegations in the pleadings and argument by counsel” are insufficient to place a party’s mental state in controversy).

Moreover, on the very day that it ordered the Mother to submit to a compulsory psychological examination, the trial court also ruled that the Mother’s scheduled parenting time would take place. Thus, it appears that the trial court did not “genuinely” believe that the Mother’s mental condition was “in controversy” or that the children would be at risk if the scheduled visitation took place. Although we acknowledge that the sign erroneously suggests that the Father is allowing the mother of his children to be homeless, we conclude that the sign, in conjunction with her behavior during the Illinois court proceedings, did not demonstrate that the Mother’s mental condition was “in controversy” because it has little to do with her parental fitness.

B. The “Good, Cause” Requirement

Even if a party’s mental condition is in controversy, “[a]n examination under [rule 1.360] is authorized only when the party submitting the request has good cause for the examination. At any hearing the party submitting the request shall have the burden of showing good cause.” Fla. R. Civ. P. 1.360(a)(2) (emphasis added). The movant under rule 1.360 must make a- showing of good cause before a court may order a mental or physical examination because such examinations infringe on the subject party’s privacy rights. See Schottenstein v. Schottenstein, 384 So.2d 933, 936 (Fla. 3d DCA 1980) (“A compulsory mental examination has been traditionally deemed an invasion of privacy which- will only be tolerated upon a showing of good cause.”); Gasparino, 352 So.2d at 936 (“Under the facts and circumstances we feel that no basis has been demonstrated for the invasion of petitioner’s right of privacy.”) (emphasis added). Furthermore, in a child custody case, “[t]he showing of ‘good cause’ ... should be based on evidence that the parent has been unable to meet the special needs of the child.” Williams, 550 So.2d at 167 (quoting S.N. v. Dep’t of Health & Rehab. Servs., 529 So.2d 1156, 1159 (Fla. 1st DCA 1988)).

In Williams, the trial court, on its own motion, ordered the father to submit to a psychological evaluation and restricted the father’s visitation with his son pending the results of the evaluation. Williams, 550 So.2d at. 167. On review, the Second District Court of Appeal noted that the mother’s pleadings contained “conclusory allegations” regarding the father’s “mental stability,” and that “[c]onclusory allegations alone do not put [the father’s] mental health ‘in controversy’ nor demonstrate ‘good cause’ for submission to examination.” Id. at 168 (citing Fruh v. Dep’t of Health & Rehab. Servs., 430 So.2d 581 (Fla. 5th DCA 1983)). In concluding that the record did not demonstrate “good cause” for the court-ordered mental examination, the Second District noted that the record contained an evaluation of parties’ son, reflecting that “the child was well adjusted [sic], affectionate and attached to both parents, although the counselor expressed concern that the animosity of the parents might someday affect the child.” Id.

Here, we have a very similar case. There has been no evidence, other than the Father’s conclusory allegations in his Emergency Motion, that any of the Mother’s behavior has had, or will have, an adverse effect on the children, or that the Mother cannot meet the needs of the children. To reiterate, the trial court ordered that the children should go home with the Mother for visitation the very same afternoon that it ordered her to undergo a mental evaluation. Thus, the trial court clearly did not think there was “good cause” to believe that the Mother’s mental status jeopardized the children’s well-being. We agree that the Mother’s actions in front of the Illinois courthouse erroneously suggested that she was homeless, but this is insufficient to satisfy the “good cause” prerequisite under rule 1.360.

We conclude that the pleadings and the admissible evidence presented at the hearing do not demonstrate that the Mother’s mental condition is “in controversy” or that “good cause” exists to subject her to a compulsory mental examination, and thus, the trial court’s order departs from the essential requirements of law. Accordingly, we grant the petition for writ of certio-rari and quash the portions of the order relating to the compulsory psychological examination of the Mother and the Mother’s participation in the oldest child’s therapy.

Petition granted; order quashed in part.

      . The Mother’s petition for writ of certiorari does not address the portion of the trial court's sua sponte order requiring the parties' oldest child to remain in therapy with his current therapist. Therefore, that portion of the order is not quashed.

      . The trial court's sua sponte order does not rely on, or even refer to, Mr. Rosenberg’s alleged conversation with the parties’ oldest child regarding the YouTube video of the Mother in front of the Illinois courthouse. Even if the trial court would have relied on the alleged conversation, we would have determined that the testimony was inadmissible hearsay as it does not fall within any of the exceptions to the admission of hearsay evidence. § 90.801 (l)(c), Fla. Stat. (2013) (defining "hearsay” as "a statement, other than one made by the declarant while testifying at the trial court or hearing, offered in evidence to prove the truth of the matter asserted”); § 90.802, Fla. Stat. (2013) ("Except as provided by statute, hearsay evidence is inadmissible.”). Therefore, we would not have relied on the testimony in addressing the Mother’s petition for writ of certiorari.

      . Florida Family Law Rule of Procedure 12.360 provides that "Florida Rule of Civil Procedure 1.360 shall govern general provisions concerning the examination of persons in family law matters, except that examinations permitted under rule 1.360(a)(1) may include ... examinations involving ... mental condition_”

      . The purported settlement agreement that the Mother addressed in the YouTube video apparently contains a "non-disparagement” clause, which provides that the Mother "shall not directly or indirectly, orally or in writing, make or release any disparaging or false communication or information, or cause or encourage others to make or release any disparaging or false communication or information regarding [the Father].” If the Mother violates this provision, the Father "may enforce this Paragraph against [the Mother], and [the Mother] shall be liable to [the Father] for payment of liquidated damages in the amount of Forty Thousand Dollars ($40,000.00) for each occurrence where a violation has been determined by a court of competent jurisdiction.” (Emphasis added). The Mother’s action of allowing someone to hold a sign over her head, which .falsely suggests that the Father has allowed the mother of his children to be homeless, is the type of disparaging or false information that would subject the Mother to pay $40,000 to the Father in damages. At this point, however, it does not warrant a compulsory psychological examination.


author: LaROSE, Judge.

text:
    FLORIDA DEPARTMENT OF REVENUE, o/b/o A.L., Appellant, v. S.B., Appellee.
    No. 2D12-1278.
    District Court of Appeal of Florida, Second District.
    Oct. 23, 2013.
    Pamela Jo Bondi, Attorney General and William H. Branch, Assistant Attorney General, Tallahassee, for Appellant.

      No appearance for Appellee.
   LaROSE, Judge.

The Department of Revenue seeks reversal of a trial court order dismissing with prejudice, for failure to join an indispensable party, its initial petition to establish paternity, child support, and for the award of other relief. The indispensable party was the child’s legal father. The Department argues that because the dismissal was for a procedural error, not on the merits, the trial court should have dismissed the petition without prejudice. We agree and reverse. See Fla. R. App. P. 9.030(b)(1)(A).

Dismissal with prejudice is a severe sanction. See Obenschain v. Williams, 750 So.2d 771, 772 (Fla. 1st DCA 2000). The trial court should grant such relief only when the pleader has failed to state a cause of action and it conclusively appears that the pleader cannot possibly amend the pleading to state a cause of action. Id. at 772-73. A dismissal with prejudice can constitute an abuse of discretion where a party may be able to plead additional facts to support its cause of action or support another cause of action under a different legal theory. Id. at 773 (citing Kapley v. Borchers, 714 So.2d 1217, 1218 (Fla. 2d DCA 1998)). Thus, the trial court should hesitate to dismiss without giving the pleading party an opportunity to amend. See Kapley, 714 So.2d at 1218.

Further, an order dismissing a pleading for lack of an indispensable party is not a merits adjudication. Millsaps v. Orlando Wrecker, Inc., 634 So.2d 680, 681 (Fla. 5th DCA 1994) (citing In re C.T.D., 623 So.2d 834, 834 n. 1 (Fla. 4th DCA 1993); Fulmer v. N. Cent. Bank, 386 So.2d 856 (Fla. 2d DCA 1980)). A dismissal for failing to join an indispensable party should be without prejudice, unless the pleader refuses to amend to add a party necessary for a determination on the merits. See Millsaps, 634 So.2d at 681.

Additionally, although not raised by the Department, it appears that the trial court may have erred in dismissing the case on the theory that the Department failed to join an indispensable party. From the record, it appears that another man was listed as the father on the child’s birth certificate. However, an order entered in 2001 vacated a judgment of paternity against that man. Another order entered in 2010 clarified that this other man was not the biological father and his name should be removed from the birth certificate.

The trial court should have entered an order of dismissal with leave to amend in order for the Department to allege the facts necessary to establish that the other man was not a necessary party to this proceeding.

We reverse and remand for further proceedings.

Reversed and remanded.

ALTENBERND and SILBERMAN, JJ., Concur.

      . This is an unusual case, in part, because the Department did not file the petition to establish paternity until shortly before the child's eighteenth birthday. The "child” is now about twenty years old.


author: NORTHCUTT, Judge.

text:
    Buddy J. EDWARDS, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-5411.
    District Court of Appeal of Florida, Second District.
    Oct. 23, 2013.
    Howard L. Dimmig, II, Public Defender, and Megan Olson, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Timothy A. Freeland, Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Judge.

A jury convicted Buddy Edwards of aggravated assault. He then pleaded no contest to four other crimes: two first-degree misdemeanors for possessing paraphernalia, and two second-degree misdemeanors for leaving the scene of an accident involving property damage and for driving while license suspended or revoked. We affirm all the issues raised on appeal. But our review of the record disclosed that the sentencing documents do not include the sentences imposed for the two second-degree misdemeanor crimes. The court orally pronounced a sentence of time served on each of them. We remand for the court to enter written sentences reflecting its oral pronouncement. Edwards need not be present for this administrative correction.

Affirmed; remanded for correction of sentencing documents.

MORRIS and BLACK, JJ., Concur.


author: LOGUE, J.

text:
    CASTLE KEY INSURANCE COMPANY, Petitioner, v. Raimundo and Eugenia BENITEZ, Respondents.
    No. 3D13-1758.
    District Court of Appeal of Florida, Third District.
    Oct. 23, 2013.

      Hamilton, Miller & Birthisel, LLP, and Miranda Lundeen Soto and Michael J. Dono, Miami, for petitioner.
    Alonso & Perez, LLP, Coral Gables, and M. Katherine Heiserman, for respondents.
    Before ROTHENBERG, FERNANDEZ, and LOGUE, JJ.
   LOGUE, J.

Castle Key Insurance Company filed this petition seeking a writ of certiorari to quash a trial court order dated June 10, 2013, which granted a motion to compel better answers to certain interrogatories filed by Raimundo and Eugenia Benitez (“the insureds”). Castle Key asserts that the trial court order departs from the essential requirements of law by requiring the production of its claims file within the context of a breach of contract action by the insureds, prior to the resolution of whether coverage exists. We agree.

Under established Florida law, “discovery which concerns only potential issues of bad faith or other purported improprieties in defending [a] claim are wholly impermissible unless and until it is determined that the policy indeed provides coverage.” Granada Ins. Co. v. Ricks, 12 So.3d 276, 277 (Fla. 3d DCA 2009); see also State Farm Fla. Ins. Co. v. Aloni, 101 So.3d 412, 414 (Fla. 4th DCA 2012) (“[W]here the issue of coverage is still unresolved at the time of the insurer’s objection to the request for discovery of its claim file, the trial court departs from the essential requirements of law in overruling the insurer’s objection.”). In considering objections to discovery requests for claims file materials, the “determinative issue” is “what type of action” the insured has brought. Nationwide Ins. Co. of Fla. v. Demmo, 57 So.3d 982, 984 (Fla. 2d DCA 2011). Where, as here, the insured

is not pursuing a bad faith claim, but rather seeks relief for breach of eon-tract[,][a] trial court departs from the essential requirements of the law in compelling disclosure of the contents of an insurer’s claim file when the issue of coverage is in dispute and has not been resolved.

Id. (citation, internal quotation, and alteration omitted).

Because the trial court order at issue directed the production of Castle Key’s “claims file” when the issue of coverage is still in dispute, the order departs from the essential requirements of law. Having determined that Castle Key’s petition is well-taken, we grant the petition, and quash the order on review.

      . The insureds assert that their interrogatories were not directed at "claims handling" material, which the insureds describe as information with regard to Castle Key’s business practices and procedures. The case law prohibiting the disclosure of "claims file” material, however, clearly encompasses items such as notes in the claims file, property loss information, and property loss notice forms, which are all specific to the handling of an individual claim. See Demmo, 57 So.3d at 984. And the insureds admit that the discovery requests at issue sought, among other items, "written communications regarding the claim” and "documents relied upon for the denial of the claim” from Castle Key’s claim file.


author: SWANSON, J.

text:
    Garrick JOHN, Appellant, v. DEPARTMENT OF CORRECTIONS, Appellee.
    No. 1D13-2609.
    District Court of Appeal of Florida, First District.
    Oct. 23, 2013.
    John Garrick, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Holly N. Simcox, Assistant Attorney General, Tallahassee, for Appellee.
   SWANSON, J.

Garrick John (“appellant”), a prisoner within the Florida Department of Corrections (“appellee”), appeals from the final order of the trial court dismissing his petition for writ of mandamus due to his failure to pay a $400 filing fee. We reverse.

On September 17, 2012, appellant filed a pro se petition for writ of mandamus in the Circuit Court for Leon County asking the court to “compel” appellee to perform its ministerial duty, in accordance with its own rules, not to charge appellant for copying documents designated for submission in criminal proceedings. Along with his petition, appellant filed an “Application for Civil Indigent Status.” Appellant erroneously utilized an application for criminal indigent status under section 27.52, Florida Statutes (striking out the word “criminal” in the title and penciling in “civil”). Nevertheless, the Clerk of the Circuit Court for Leon County correctly applied section 57.085, Florida Statutes, and, after reviewing copies of appellant’s inmate trust account for the six months preceding the filing of his petition, found appellant was not indigent and ordered him to pay the filing fee of $400 within sixty days of his determination. The clerk informed appellant that should appellant not pay the filing fee within sixty days, his petition would be forwarded to the court for dismissal.

On April 11, 2013, the trial court entered a final order dismissing appellant’s petition for failure to pay the fee. In its order, the trial court found appellant’s cause of action “is not a collateral criminal proceeding as defined by Schmidt v. McDonough, 951 So.2d 797 (Fla.2006).” Appellant does not contend otherwise; instead, the issue presented on appeal is whether the trial court erred in failing to conduct a judicial review of the clerk’s indigency determination before entering its final order of dismissal. Printed on appellant’s application for indi-gency was the following notice: “If the applicant is determined by the clerk to be Not Indigent, you may seek judicial review at your next scheduled court appearance.” On December 5, 2012 — within sixty days of the clerk’s determination — appellant filed with the court a motion and affidavit of insolvency, in which he referenced the clerk’s October 25 denial of indigent status and claimed he possessed no funds in his trust account. In the affidavit, appellant swore he had not divested himself of any property and was unable to pay the costs, and asked the court to enter an order “adjudging him insolvent.” Appellee’s primary argument asserted against appellant’s appeal is that appellant’s filing of a “mere motion attaching indigency forms,” without specifically seeking relief under section 57.082(4), Florida Statutes, was insufficient to preserve the issue because it failed to apprise the lower court that appellant was seeking review of the clerk’s determination. We disagree. As we did in Esquivel v. McDonough, 946 So.2d 104 (Fla. 1st DCA 2007), “[w]e choose to consider the issue pursuant to the rule of lenity.” Id. at 105 n. 1 (citing Cambrick v. State, 593 So.2d 613 (Fla. 2d DCA 1992) (observing that the pleadings of pro se inmates should be viewed with leniency)).

Indeed, applying leniency in appellant’s case is made all the more compelling because appellant’s right to seek review of the clerk’s determination of indi-gency does not derive from section 57.082(4), which applies only to “[a] person seeking ... relief from payment of filing fees under s. 57.081 .... ” § 57.082(1), Florida Statutes. Section 57.081, Florida Statutes, the statute that allows indigent persons to seek waiver of filing fees, does not apply to prisoners “as defined in s. 57.085,” see section 57.085(1), Florida Statutes, unless the cause is found to be a collateral criminal proceeding as defined in Schmidt v. McDonough, 951 So.2d 797 (Fla.2006). As noted above, appellant does not oppose the trial court’s finding that his cause of action is not a collateral criminal proceeding. Rather, as expressed in his motion and affidavit, appellant acknowledges he is entitled only to the deferment of prepayment of the filing fee under section 57.085, were he found to be indigent. The determination of indi-gency is to be made by the clerk under the procedures stated in section 57.085(2) and (3), Florida Statutes. Yet, here, appellant was found not to be indigent, and there is no process for appellant to seek judicial review of that determination in section 57.085. Consequently, we hold basic principles of due process dictate the trial court consider appellant’s December 5, 2012, motion as one seeking review of the clerk’s determination of indigency for purposes of appellant’s “receiving a deferral of prepayment of any court costs and fees,” as provided by section 57.085(3).

Accordingly, the Order of Dismissal is reversed and the cause is remanded to the trial court with directions it review the clerk’s determination that appellant is not indigent for purposes of section 57.085. Because a year has passed since the clerk’s initial determination, on remand an updated account record should be considered; thus, the basis of the court’s decision “must be found in the six-month period preceding the court’s determination,” rather than the six months that had preceded the initial filing with the clerk. See Esquivel, 946 So.2d at 106.

REVERSED and REMANDED, with directions.

WETHERELL, and OSTERHAUS, JJ., concur.

      . For this reason, Walker v. McDonough, 967 So.2d 1134 (Fla. 2d DCA 2007), relied on by-appellee in furtherance of its argument that the issue was not preserved, is inapposite. The petition for writ of mandamus in Walker challenged the loss of gain time and, accordingly, was considered to be a collateral criminal proceeding. Id. at 1135. Consequently, the issue of Walker's indigent status was controlled by sections 57.081 and 57.082, Florida Statutes. The clerk of court found Walker not to be indigent, but instead of seeking judicial review under section 57.082(2)(e) and (4), he sought a final judgment of dismissal and appealed same to the Second District Court of Appeal. That court ruled that "the question of Walker’s indigency ha[d] not been ruled on by the trial court and ha[d] not been preserved for appeal.” Id. In contrast, in the present case, appellant filed a motion in the trial court, which, though legally awkward, was sufficient to inform the court of the fact he was seeking review of the clerk’s determination that he was not indigent.

      . We caution that a finding of indigence does not secure to appellant a deferral of payment in all cases, or the assurance that the judicial proceeding will not be dismissed for the lack of payment any fees or costs. Section 57.085(8) provides that ”[i]n any judicial proceeding in which a certificate of indigence has been issued to a prisoner, the court may at any time dismiss the prisoner's action, in whole or in part, upon a finding that:
      (a) The prisoner’s claim of indigence is false or misleading;

      (c) The prisoner failed to pay court costs and fees under this section despite having the ability to pay [.]
      (Emphasis added.)


author: OSTERHAUS, J.

text:
    CBS OUTDOOR INC. and SLG Investments, LLC, Appellants, v. FLORIDA DEPARTMENT OF TRANSPORTATION, Appellee.
    No. 1D12-5483.
    District Court of Appeal of Florida, First District.
    Oct. 23, 2013.

      Hala A. Sandridge, of Fowler White Boggs P.A., Tampa, FL; Terrence Russell and S. Carey Villeneuve of Fowler White Boggs P.A., Ft. Lauderdale, FL; Steve Diebenow and Heather Rosser of Driver, McAfee, Peck et al., Jacksonville, FL, for Appellants.
    Gregory G. Costas, Assistant General Counsel, and Kimberly Menchion, Assistant General Counsel, Department of Transportation, Tallahassee, FL, for Ap-pellee.
   OSTERHAUS, J.

In this case, we must decide whether the Florida Department of Transportation (FDOT) properly dismissed a petition for administrative hearing filed by the appellant billboard sign owners who sought process and redress under § 479.25(1), Florida Statutes (2012). We affirm FDOT’s order of dismissal because Appellants’ nonconforming signs are not entitled to redress under this section.

I.

Appellant, CBS Outdoor, Inc., owns three “nonconforming” signs (billboards) erected in 1967 along what is now Interstate 95 (“1-95”) in Jacksonville, Florida. CBS Outdoor and SLG Investments, LLC, (“Appellants”) both own land upon which the billboards are erected. Adjacent to these signs, FDOT erected a sound wall on its own property along 1-95 that will screen or obstruct the view of Appellants’ signs from the interstate.

Under Florida law, when signs become screened or blocked due to the construction of a sound barrier, the owners of some types of signs may raise the height of their signs or receive other statutorily provided remedies. See § 479.25, Fla.' Stat. Appellants believe that their signs comport with § 479.25 and must receive the process and remedies available under this law. They demanded agency action from FDOT along this line, but FDOT denied their request. FDOT’s view was that the process provided in § 479.25 did not apply to Appellants’ signs because they do not conform with certain state and federal sign requirements-they are’ “nonconforming” signs. Appellants sought an administrative hearing pursuant to § 120.57, Florida Statutes, to review FDOT’s denial of their demand for agency action under § 479.25, but FDOT dismissed the petition on standing grounds because of its view that nonconforming signs fall outside of § 479.25’s regime. Appellants then appealed.

II.

The issue Appellants raise is a matter of statutory construction subject to de novo review. Dep’t of Revenue v. Lockheed Martin Corp., 905 So.2d 1017, 1020 (Fla. 1st DCA 2005) (citing State v. Burris, 875 So.2d 408, 410 (Fla.2004)). The plain language of the statute “is the polestar that guides a court’s statutory construction analysis.” Id. (citing State v. J.M., 824 So.2d 105, 109 (Fla.2002)). But where there is ambiguity in a statute, the court is mindful of the deference due to the interpretation of the administrative agency responsible for enforcing the law. Colbert v. Dep’t of Health, 890 So.2d 1165, 1166 (Fla. 1st DCA 2004) (citing Natelson v. Dep’t of Ins., 454 So.2d 31, 32 (Fla. 1st DCA 1984)) (“[O]ur review standard over an agency’s interpretation of law is that of clearly erroneous, meaning the interpretation will be upheld if the agency’s construction falls within the permissible range of interpretations.”).

Section 479.25(1) establishes which sign owners can receive redress when the visibility of a sign is screened or blocked due to the construction of a sound barrier. It provides, in relevant part, that:

[1] The owner of a lawfully erected sign that is governed by and conforms to state and federal requirements for land use, size, height, and spacing may increase the height above ground level of such sign at its permitted location if a noise-attenuation barrier is permitted by or erected by any governmental entity in such a way as to screen or block visibility of the sign. [2] Any increase in height permitted under this section may only be the increase in height which is required to achieve the same degree of visibility from the right-of-way which the sign had prior to the construction of the noise-attenuation barrier, notwithstanding the restrictions contained in s. 479.07(9)(b). [3] A sign reconstructed under this section shall comply with the building standards and wind load requirements set forth in the Florida Building Code, [f] If construction of a proposed noise-attenuation barrier will screen a sign lawfully permitted under this chapter, the department shall provide notice to the local government or local jurisdiction within which the sign is located prior to erection of the noise-attenuation barrier. [5] Upon a determination that an increase in the height of a sign as permitted under this section will violate a provision contained in an ordinance or land development regulation of the local government or local jurisdiction, the local government or local jurisdiction shall so notify the department. [6] When notice has been received from the local government or local jurisdiction prior to erection of the noise-attenuation barrier, the department shall: [follow various procedures leading to a remedy for affected sign owners].

§ 479.25(1), Fla. Stat. (emphasis added). A sign must fall within the class of signs “lawfully erected,” “conform[ing] to state and federal requirements,” and “lawfully permitted” in order to qualify for the process and benefits available under this statute. Appellants argue that § 479.25 affords remedies to owners of conforming and nonconforming signs alike. But three sentences in § 479.25(1) — sentences 1, 4, and 5 marked above — demonstrate that their signs do not qualify for benefits and process under the statute.

Sentence 1 of § 479.25(1), says rather clearly that the owner of a sign may increase its height if the sign “conforms to [certain] state and federal requirements.” Id. In their reply brief, Appellants concede that their signs do not conform to state and federal requirements under sentence 1. But they argue instead that sentence 4 qualifies them for the statute’s process and remedies because, despite not conforming to sentence 1, their signs are “lawfully permitted under this chapter.” Appellants argue that all “permitted” signs — whether conforming or not to state and federal requirements — fall within the statute and may benefit from its process and remedy scheme.

But we disagree. Even if sentence 4 could be read as Appellants interpret it to open the statute broadly to all nonconforming signs — and FDOT vehemently disagrees on this point — the next sentence slams that door shut. Sentence 5 stands as a gatekeeper of sorts to the process discussed in sentence 6 and beyond. And it hinges additional process on a determination of whether a sign can increase in height “as permitted under this section.” (Emphasis added). Sentence 5’s “under this section” language hearkens back to sentence l’s discussion of the class of signs that may be increased in height under this section: ones that “conform! ] to state and federal requirements for land use, size, height, and spacing!.]” Id. This excludes Appellants’ signs which are nonconforming for purposes of sentence l. As such, we conclude that FDOT correctly dismissed Appellants’ petition below because their nonconforming signs cannot qualify for the benefits and process afforded under § 479.25.

Appellants additionally assert alternative constitutional arguments that the exclusion of their nonconforming signs from § 479.25’s benefits violates due process, equal protection, and private property rights. We don’t think so. First, Appellants’ due process and equal protection arguments must fail because FDOT has offered a rational, non-arbitrary reason for excluding nonconforming signs from redress under § 479.25: federal funding. Allowing modifications to nonconforming signs could put the state’s federal highway funding at risk. The government leans hard on the states by conditioning serious money on whether they will accommodate federal aesthetic preferences along the interstate highways. See, e.g., 23 U.S.C.A. § 181(b) (providing that states not in compliance and controlling outdoor advertising will lose interstate funding at a rate of 10% per annum until brought into compliance). The states must comply with federal requirements to keep their funds flowing. Under federal rules, FDOT could lose federal funding if they allow nonconforming signs to be raised. See Fla. Admin. Code Ann. R. 14-10.007 (2012); 23 C.F.R. § 750.707 (2012).

Second, the record does not support Appellants’ takings claim at this juncture. The sound barrier in this case was constructed on FDOT’s own right of way, not on Appellants’ property. Furthermore, Florida law has not recognized the visibility of one’s signs along the interstate as a property right. While Florida law in § 479.24(1), Florida Statutes, has provided that the owner of a nonconforming sign, as defined in § 479.01(17), is entitled to just compensation “upon [FDOT’s] removal of a lawful nonconforming sign” (§ 479.24(1), Fla. Stat. (emphasis added)), Appellants in this case have not claimed that FDOT has “removed” their nonconforming signs, but only affected their visibility.

III.

In conclusion, we affirm FDOT’s order of dismissal because Appellants’ nonconforming signs are not entitled to the process and remedies provided for in § 479.25, Florida Statutes.

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

      . A letter from FDOT to the City of Jacksonville contained in the record confirms that Appellants’ signs were designated as nonconforming signs.

      . To the extent that the language of this statute is ambiguous, which both sides have conceded at points, our conclusion foreclosing the statute’s process and remedies to Appellants' signs finds support in FDOT’s own interpretation of the law that it is charged with administering. See, e.g., § 479.02, Fla. Stat. (assigning FDOT with responsibility for regulating signs and enforcing federal sign requirements). FDOT interprets § 479.25 to exclude a broader set of nonconforming signs from the scheme (see § 479.01(17), Fla. Stat.), including signs rendered nonconforming for reasons other than specified in sentence 1.

      . See also 23 U.S.C.A. § 131(a) ("The Congress hereby finds and declares that the erection and maintenance of outdoor advertising signs, displays, and.devices in areas adjacent to the Interstate System and the primary system should be controlled in order to protect the public investment in .such highways, to promote the safety and récreational value of public travel, and to preserve natural beauty.”).


author: MAKAR, J.

text:
    William Eddy WARE, Appellant, v. STATE of Florida, Appellee.
    No. 1D12-5180.
    District Court of Appeal of Florida, First District.
    Oct. 23, 2013.
    Nancy A. Daniels, Public Defender; Jamie N. Spivey, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Jay Kubica and Wesley C. Paxson, Assistant Attorneys General, Tallahassee, for Appellee.
   MAKAR, J.

William E. Ware, convicted of exposing his sexual organs and exhibiting them lewdly/lasciviously in the presence of a disabled person, claims the trial court erred in denying his request to present evidence that the victim, L.R., was subjected to a sexual battery years ago. He claims the prior sexual battery was relevant because it may have impacted L.R.’s ability to “accurately perceive and testify about a new sexual assault.” We affirm.

I.

On a seasonable May afternoon in 2011, L.R. — who has a medical condition that makes walking extremely difficult — was out and about running errands at various stores on the Westside of Jacksonville with her 22-year-old daughter. They had taken the city bus to the area, so L.R.’s daughter assisted by pushing her mom’s wheelchair from store to store. Their leisurely afternoon of familial shopping would soon end in an unpleasant way.

Earlier that day, Officer Hysler of the Jacksonville Sheriffs Office had been dispatched to handle a call of a suspicious person at a bus stop near a CVS pharmacy, whose employee phoned in the complaint. Upon arrival, the officer found Ware, who appeared “kind of out of it” and was yelling at people. The officer, who told Ware to leave the bus stop, soon left to respond to an unrelated call nearby.

Shortly thereafter, L.R. and her daughter made the last stop on their agenda, which happened to be the same CVS pharmacy. Upon finishing their day of shopping together at the CVS, they crossed the street to the bus stop to await a ride home. Ware was still there. When L.R. and her daughter arrived, he was acting in a bizarre manner, yelling at passing cars for no reason and mumbling under his breath. Feeling uneasy, they tried to direct their attention elsewhere. Ware’s strange behavior continued, however, so L.R. and her daughter began to practice gospel songs for their church choir practice that evening. Ware then asked the ladies if they were mother and daughter and what they were singing. L.R.’s daughter replied that they were singing church songs and looked away. Ware resumed his pacing back and forth between the bus stop bench and a nearby trash can into which he continually spat.

When he began “messing with the snaps on [his] shorts,” L.R. asked her daughter to move her further away from Ware, who was within only a few feet. Ware then walked to the trash can again, spat, and upon returning, stood right next to L.R. and asked her if “we could show [your] daughter how to swallow.” At that point, L.R. and her daughter decided they had enough of Ware’s crude behavior and started to leave. Ware walked back to the trash can, spat again, and approached the women, this time with his penis and testicles pulled out and fully exposed. L.R.’s daughter pushed her mom away from the bus stop as quickly as possible, back to the nearby CVS pharmacy from where the police were called a second time. Officer Hysler, who responded to the first call about Ware, arrived to find L.R. distraught and traumatized by what happened.

Ware was arrested and charged with lewd or lascivious exhibition in the presence of a disabled person and exposure of sexual organs. At trial, Ware’s counsel sought to introduce evidence that L.R. was a victim of a prior sexual battery, ostensibly to impeach her credibility by demonstrating a bias associated with this type of event or an inability to properly perceive what had occurred. The State filed a motion in limine to prevent Ware from cross-examining L.R. about the previous sexual battery. The trial court granted the motion, ruling that evidence of a prior sexual battery was irrelevant. The jury found Ware guilty of both charges. The trial court sentenced Ware to four years in prison, one year of probation, and mandatory registration as a sexual offender.

II.

A.

Ware first argues that evidence that L.R. was subject to a prior sexual battery is relevant to show bias because she “may be so traumatized by the prior sex offense that [she] may be overly sensitive to what a reasonable person might deem suspicious or threatening behavior” and that trauma may affect “what the victim ‘thinks’ [she] saw happening.” Under the abuse of discretion standard, this argument fails for several reasons. Pantoja v. State, 59 So.3d 1092, 1095 (Fla.2011) (standard for review of admissibility of evidence is abuse of discretion).

First, Ware’s core claim is that L.R.’s past experience as a victim of sexual battery makes her a potentially more sensitive victim in this case, which he views as a basis for examining her about the matter. But, in support of this point, Ware cites only Fehringer v. State, 976 So.2d 1218, 1221-22 (Fla. 4th DCA 2008), which is a “prior accusation” case, i.e., one where a defendant in a sexual battery case seeks to prove that the victim had falsely claimed rape on prior occasions or consented to the act. In such cases, it is proper to admit evidence that a victim’s “allegations that [the defendant] raped her on prior occasions is inconsistent with her continued relationship with him after.” Minus v. State, 901 So.2d 344, 350 (Fla. 4th DCA 2005). Or, as the Fourth District said in Fehringer, that such an inquiry is allowed because “[i]t may be that the prior accusations will cast doubt on the current one by, for example, being remarkably similar in content, or made against a person similar to the defendant.” 976 So.2d at 1222.

No such parallelism is found here. Ware does not claim L.R. made prior accusations of sexual battery against him or others, only that she was the actual victim of such an attack and might be overly sensitive because of it. He also makes no claim that L.R. has ever made prior accusations that are remotely similar to the exposure of genitals here. He does not claim he knew either L.R. or her daughter before their unfortunate bus stop encounter with him, nor does he claim L.R. somehow consented to his actions. The situation is like that in Pantoja, where the Florida Supreme Court found no error in excluding a prior accusation that was against a different person, involved a onetime dissimilar act, and had the possibility of misleading the jury. 59 So.3d at 1100. In short, we agree with the trial court that there would be no relevance in allowing Ware to cross-examine L.R. about her pri- or sexual battery.

Second, L.R.’s reaction to Ware’s exposure of his genitalia is not an element of either of the crimes charged or of Ware’s defenses. Whether her reaction was exaggerated, subdued, or nonchalant is legally insignificant as to whether he unlawfully exposed his genitals. Ware would be no less guilty of violating the two statutes if L.R. had remained calm and lampooned Ware’s crude behavior by laughing at him. See Ross v. State, 876 So.2d 684, 686 (Fla. 4th DCA 2004) (evidence defendant “deliberately wore short shorts that were substantially sure to lead to the exposure of his penis” sufficient to establish guilt despite argument with witness who told him to “tuck it in”). As the Florida Supreme Court in Schmitt v. State hypothetically noted, “deliberately exhibiting one’s nude body to passers-by in a shopping mall would be ‘lewd’ and ‘lascivious.’ Being stripped naked against one’s will in the same location is neither ‘lewd’ nor ‘lascivious’ because it is not intentional.” 590 So.2d 404, 410 n. 8 (Fla.1991).

Third, offenses involving the lewd exposure of sexual organs are akin to visual assault, which reflects an element of public decorum that can change as society’s norms change. As this Court has noted, this “change of attitude is illustrated by the fact that until recent times the waltz and the two-step were considered by a great many worthy and high-minded people as lewd and lascivious devices calculated to promote the works of the devil.” Duvallon v. State, 404 So.2d 196, 197 (Fla. 1st DCA 1981) (overturning conviction of woman who, protesting in front of Florida Supreme Court, wore only a placard that “allowed exposure of her bare backside and the sides of her breasts”). Ware makes no argument that his conduct does not violate societal norms. Indeed, he is in no position to complain about the fragility of his victim’s psyche; he takes his .victim as he finds her. Unlike the arresting officer in Duvallon, who “saw nothing lewd or lascivious about [the placarded protester’s] conduct,” Ware’s deplorable conduct clearly offends even contemporary norms. Ware has presented nothing to suggest that L.R.’s reaction was other than one within the bounds of reasonableness under the circumstances presented, particularly in light of L.R.’s disabled status. See State v. Kees, 919 So.2d 504, 507 (Fla. 5th DCA 2005) (requiring proof of offensiveness of defendant’s lewd and lascivious conduct in public place “would lead to absurd results.”).

B.

Next, Ware argues that the prior sexual battery of L.R. “could possibly affect her ability to accurately perceive and testify about the events of this alleged offense.” Section 90.608, Florida Statutes (2012), states that any party may attack the credibility of a witness by showing a deficiency in her testimonial capacity or ability or opportunity to perceive, recall, or relate information. But Ware fails to identify any reason to suspect L.R.’s perceptive capabilities were deficient in any way. Her medical affliction does not affect her mental functions. L.R. testified that she had no vision problems that day; indeed, she had an unobstructed and closeup view of Ware’s exposed genitals. We agree with the State’s argument that no reason exists to believe that L.R.’s “ability to see, hear, and otherwise observe the events” at issue is in any way “altered by prior victimization.” Plus, her testimony was the same as that of her daughter, who also witnessed Ware’s genitalia and whose testimony was not alleged to lack credibility-

Finally, we fully agree with the State’s argument that “[e]ven if the victim’s prior sexual assault was marginally relevant, any relevance was outweighed by the inflammatory and prejudicial effect the evidence would have had on the jury.” The alleged value of the jury hearing cross-examination of L.R. about the prior sexual battery is far outweighed by the prejudice it would be apt to cause. Ware’s argument is based to some degree on the old-school, common law view — now abandoned — that evidence of a woman’s prior sexual history was relevant to her character for truthfulness. As a victim of sexual battery (versus simply being sexually active), L.R. is far removed from the applicability of even the common law view. The trial court correctly excluded cross-examination of L.R. on the sexual battery because its probative value would be substantially outweighed by the danger of unfair prejudice or confusion of issues. § 90.408, Fla. Stat. (2012). On this record, allowing cross-examination would have served no purpose other than harassment; and the wisdom of such a strategy is not apparent.

III.

In conclusion, the trial court did not err in prohibiting cross-examination of L.R. about the prior sexual battery. Accordingly, we AFFIRM.

WOLF and OSTERHAUS, JJ., concur.

      . " 'Lewd or lascivious exhibition in the presence of an elderly person or disabled person’ occurs when a person, in the presence of an elderly person or disabled person: 1. Intentionally masturbates; 2. Intentionally exposes his or her genitals in a lewd or lascivious manner; or 3. Intentionally commits any other lewd or lascivious act that does not involve actual physical or sexual contact with the elderly person or disabled person, including but not limited to, sadomasochistic abuse, sexual bestiality, or the simulation of any act involving sexual activity, when the person knows or reasonably should know that the elderly person or disabled person either lacks the capacity to consent or fails to give consent to having such act committed in his or her presence.” § 825.1025, Fla. Stat. (2013).

      . "It is unlawful to expose or exhibit one’s sexual organs in public or on the private premises of another, or so near thereto as to be seen from such private premises, in a vulgar or indecent manner, or to be naked in public except in any place provided or set apart for that purpose.” § 800.03, Fla. Stat. (2013).

      . Ware claims on appeal that the trial court did not even allow a proffer of L.R.’s prior sexual battery, but his trial counsel did make a proffer sufficient to apprise the trial court of the substance of Ware's intended cross-examination.

      . The common law view has been discredited, and is now displaced by various rules and statutes. See, e.g., Fed. R. Evid. 412; § 794.022, Fla. Stat. (2013); Charles W. Eh-rhardt, Evidence, § 404.7 (2013); see generally Rebekah Smith, Protecting the Victim: Rape and Sexual Harassment Shields Under Maine and Federal Law, 49 Me. L. Rev. 443, 454 (1997) ("Empirical research suggested that a woman’s sexual history was unrelated to her propensity to lie on the witness stand. Critics decried the defendant's use of the victim’s sexual past as a harassment device during cross-examination of the victim as outrageous and unacceptable. Unnecessarily vicious and humiliating cross-examination ‘resulted in nothing less than character-assassination in open court.’ Consequently, rules of evidence were proposed to protect victims from harassment on the stand and to limit the introduction of evidence of the victim’s sexual history.”).


author: BENTON, J.

text:
    Marvin CASTELLANOS, Appellant, v. NEXT DOOR COMPANY/AMERISURE INSURANCE CO., Appellees.
    No. 1D12-3639.
    District Court of Appeal of Florida, First District.
    Oct. 23, 2013.

      Richard A. Sicking, Coral Gables, Michael J. Winer of the Law Office of Michael J. Winer, P.A., Tampa, and Mark A. Touby of Touby, Grindal & Chait, P.L., Coral Gables, for Appellant.
    Roberto Mendez of the Law Group of Mendez & Mendez, P.A., Hollywood, for Appellees.
    Susan W. Fox of Fox & Loquasto, P.A., Orlando, and Richard W. Ervin of Fox & Loquasto, P.A., Tallahassee, for Florida Justice Association, Amicus Curiae.
    Geoffrey Bichler of Bichler, Kelley, Oliver & Longo, P.L.L.C., Maitland, for Fraternal Order of Police, Amicus Curiae.
    Kimberly A. Hill of Kimberly A. Hill, P.L., Fort Lauderdale, and Kenneth B. Schwartz of Kenneth Schwartz, P.A., West Palm Beach, for Florida Workers’ Advocates, Amicus Curiae.
    Christopher Smith, Tampa, for the Workers’ Compensation Section of the Florida Bar, Amicus Curiae.
   BENTON, J.

Constrained by the statutory formula set forth in section 440.34(1), Florida Statutes (2009), the judge of compensation claims awarded claimant’s counsel an attorney’s fee of only $164.54 for 107.2 hours of legal work reasonably necessary to secure the claimant’s workers’ compensation benefits. We do not disagree with the learned judge of compensation claims that the statute required this result, and are ourselves bound by precedent to uphold the award, however inadequate it may be as a practical matter.

The judge of compensation claims, as an executive branch adjudicator, was without authority to declare section 440.34 unconstitutional. See Barr v. Watts, 70 So.2d 347, 350-51 (Fla.1953); State ex rel. Atl. Coast Line Ry. Co. v. State Bd. of Equalizers, 84 Fla. 592, 94 So. 681, 683 (1922) (holding the “right to declare an act unconstitutional ... cannot be exercised by the officers of the executive department under the guise of the observance of their oath of office to support the Constitution”); Ariston v. Allied Bldg. Crafts, 825 So.2d 435, 438 (Fla. 1st DCA 2002) (“A JCC clearly does not have jurisdiction to declare a state statute unconstitutional or violative of federal law.”); Hensley v. Punta Gorda, 686 So.2d 724, 725 (Fla. 1st DCA 1997) (“As an administrative officer vested with only certain limited quasi-judicial powers, a judge of compensation claims does not have jurisdiction to declare a portion of the Florida Workers’ Compensation Act unconstitutional or violative of a federal statute.”).

The constitutional validity of a statute governing administrative proceedings is instead a question for the reviewing court. “Accordingly, this court has jurisdiction to consider such claims in the first instance.” Id. (citing Sasso v. Ram Prop. Mgmt., 431 So.2d 204, 207-08 (Fla. 1st DCA 1983), approved 452 So.2d 932 (Fla.1984)). See Anderson Columbia v. Brown, 902 So.2d 838, 841 (Fla. 1st DCA 2005) (“The JCC and the parties recognized that the JCC does not have jurisdiction to address the constitutionality of a statutory provision. Thus, the claimant’s opportunity to mount a constitutional challenge would be on direct appeal of the attorney’s fee order.” (citation omitted)); Grabau v. Dep’t of Health, Bd. of Psychology, 816 So.2d 701, 706-07 (Fla. 1st DCA 2002) (“The facial unconstitutionality of a statute may be raised in a district court of appeal on direct review under section 120.68, Florida Statutes, after an aggrieved party completes the administrative process. Key Haven Associated Enterprises, Inc. v. Board of Trustees of Internal Improvement Trust Fund, 427 So.2d 158, 157 (Fla.1982).”). See also Cafe Erotica v. Fla. Dep’t of Transp., 880 So.2d 181, 183 (Fla. 1st DCA 2002) (holding party need not argue the facial unconstitutionality of a statute before an administrative tribunal for the issue to be cognizable on direct appeal); Lee Cnty. v. Zemel, 675 So.2d 1378, 1381 (Fla. 2d DCA 1996) (holding that appellees should have raised their due process claims on direct appeal of the administrative order rather than filing a subsequent action in circuit court).

In reaching our decision today, we have therefore considered claimant’s arguments that section 440.34 should be deemed in violation of several constitutional provisions. Based on our precedent, however, we are bound to conclude that the statute is constitutional, both on its face and as applied. See Kauffman v. Cmty. Inclusions, Inc./Guarantee Ins. Co., 57 So.3d 919, 920-21 (Fla. 1st DCA 2011); Campbell v. Aramark & Speciality Risk Servs., 933 So.2d 1255, 1256 (Fla. 1st DCA 2006), disapproved on other grounds by Murray v. Mariner Health, 994 So.2d 1051, 1062 (Fla.2008); Lundy v. Four Seasons Ocean Grand Palm Beach, 932 So.2d 506, 509-10 (Fla. 1st DCA 2006), disapproved on other grounds by Murray, 994 So.2d at 1062; Wood v. Fla. Rock Indus. & Crawford & Co., 929 So.2d 542, 545 (Fla. 1st DCA 2006), disapproved on other grounds by Murray, 994 So.2d at 1062. In Kauffman, we recognized that section 440.34 was amended in 2009 in response to the supreme court’s decision in Murray and noted that although Murray disapproved of this court’s decisions in Lundy, Campbell, and Wood, the supreme court did not address any constitutional issues in Murray and “did not cast any doubt on the reasoning used in Lundy, Campbell, and Wood, in rejecting constitutional claims like those made herein.” 57 So.3d at 921.

In the circumstances, we certify to the Florida Supreme Court the following as a question of great public importance:

WHETHER THE AWARD OF ATTORNEY’S FEES IN THIS CASE IS ADEQUATE, AND CONSISTENT WITH THE ACCESS TO COURTS, DUE PROCESS, EQUAL PROTECTION, AND OTHER REQUIREMENTS OF THE FLORIDA AND FEDERAL CONSTITUTIONS.

The fee award is affirmed, and the question of its constitutional adequacy is certified to the supreme court.

Affirmed and question certified.

VAN NORTWICK and PADOVANO, JJ., concur.