author: NORTHCUTT, Judge.

text:
    EAST AVENUE, LLC, Sarasota Land.com, Inc., and Mark Pierce, Appellants, v. INSIGNIA BANK, Appellee.
    No. 2D 12-94.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2014.

      John H. Myers, Sarasota, for Appellants.
    Derrick Maginness of Norton, Ham-mersley, Lopez & Skokos, P.A., Sarasota, for Appellee.
   NORTHCUTT, Judge.

We treat this appeal as a proceeding seeking a writ of certiorari, and we grant the writ. As we will explain, the brevity of this ruling belies the complexity of the issues that underlie it.

In this case East Avenue, LLC; Sarasota Land.com., Inc.; and Mark Pierce (collectively referred to as East Avenue) have attempted to appeal an amended summary final judgment for damages entered against them on three counts of a multiple-count complaint. But they are named as defendants in factually and legally interrelated counts that remain pending in the circuit court. For this reason, under traditional rules of finality the judgment at hand is not final or appealable. See S.L.T. Warehouse v. Webb, 304 So.2d 97 (Fla.1974).

That much is fairly straightforward. The wrinkle here is that the judgment contains language authorizing execution. Thus, strict application of the S.L.T. Warehouse finality criteria would leave East Avenue exposed to enforcement of the judgment at a time when it cannot obtain review of it and, importantly, it cannot shield its assets from execution by posting an appellate supersedeas bond. This kind of circumstance has been addressed in a small body of district court case law that variously espouses three distinct approaches to it. Added to this mix are two Florida Supreme Court decisions that, while not directly resolving the issue, are intertwined with it.

The first of the pertinent supreme court cases is McGurn v. Scott, 596 So.2d 1042 (Fla.1992), receded from in part, Westgate Miami Beach, Ltd. v. Newport Operating Corp., 55 So.3d 567 (Fla.2010). In that case the trial court entered a money judgment that was final in all respects save for a reservation of jurisdiction to determine prejudgment interest. The First District dismissed the appeal for lack of jurisdiction because the judgment was not final for appellate purposes. McGum v. Scott, 573 So.2d 414 (Fla. 1st DCA 1991).

The supreme court acknowledged that the trial court could not enter a final damages judgment while reserving jurisdiction to adjudicate prejudgment interest. McGum, 596 So.2d at 1044. But it disagreed with the First District’s decision to dismiss the appeal. • “The judgment’s appearance as a final order upon which execution could have issued placed McGurn in a procedural quandary,” the court wrote. Id. “If the judgment were considered an interlocutory order, McGurn would be unable to exercise his right to both an appeal and a supersedeas to stay the enforcement of the judgment. Yet, the order granted Scott the right to let execution issue against McGurn’s property.” McGum, 596 So.2d at 1044-45.

Further, the court observed, if McGurn had not appealed the order when he did, he might have lost the opportunity to do so at a later date. This observation was based on Third District holdings that a nonfinal order that has. “the attributes of a ‘true’ final judgment” is “deemed to have taken on the characteristic of such a judgment” and requires review by immediate appeal. 596 So.2d at 1045 (quoting Del Castillo v. Ralor Pharmacy, Inc., 512 So.2d 315, 319 (Fla. 3d DCA 1987), and citing Pointer Oil Co. v. Butler Aviation of Miami, Inc., 293 So.2d 389 (Fla. 3d DCA 1974)). Ultimately, the supreme court held that because the order in McGum “appeared final in most respects and stated that execution could issue,” it would be “deemed a final order requiring review by immediate appeal.” 596 So.2d at 1045.

The supreme court revisited McGurn in Westgate Miami Beach, Ltd. v. Newport Operating Corp., 55 So.3d 567 (Fla.2010). The Westgate court receded from McGum’s holding that trial courts could not enter final judgments while reserving jurisdiction to award prejudgment interest. Henceforth, trial courts could properly reserve jurisdiction to determine prejudgment interest in the same manner as they could reserve jurisdiction to award attorney’s fees and costs. However, “[bjeeause of the procedural quandary recognized in McGum,” the court expressly declined to recede from McGum’s treatment of a judgment that authorizes execution but reserves jurisdiction to award prejudgment interest as a final appealable order. 55 So.3d at 575.

When announcing its decision, the West-gate court noted that it had considered other options. One of them was to treat an appeal from an otherwise final judgment that reserved jurisdiction on the prejudgment interest issue as a premature appeal under Florida Rule of Appellate Procedure 9.110(£ j. But the court rejected this option for several reasons, including that under this approach the defendant still could be left in the position of being precluded from obtaining review while unable to protect its assets from execution. The court also rejected this solution because “the district courts are in disagreement as to whether an appeal from a judgment that authorizes execution upon a defendant’s assets can be considered premature for purposes of appeal.” 55 So.Bd at 575-76 (footnote omitted).

The cases cited by the supreme court in the footnote we omitted above are a microcosm of three districts’ differing views about the reviewability of such orders. See Westgate, 55 So.3d at 576 n. 10. Thus, in Raymond James & Associates, Inc. v. Godshall, 851 So.2d 879, 880-81 (Fla. 1st DCA 2003), the First District dismissed as premature the appeal of a judgment that authorized execution while reserving jurisdiction to adjudicate the plaintiffs related claim for additional damages. The court rejected the appellant’s assertion that such an order should be “deemed final” under McGum because, it said, McGum was limited to review of orders reserving jurisdiction to award prejudgment interest. Godshall, 851 So.2d at 880; see also Conti v. B & E Holdings, LLC, 61 So.3d 1272 (Fla. 1st DCA 2011); Couch v. Tropical Breeze Resort Ass’n, 867 So.2d 1219 (Fla. 1st DCA 2004).

appeal, the premature notice of appeal shall be considered effective to vest jurisdiction in the court to review the final order. Before dismissal, the court in its discretion may permit the lower tribunal to render a final order.

Notably, the First District’s treatment of these orders as nonfinal and nonap-pealable leaves the hapless appellant in the very quandary that the supreme court endeavored to rectify in McGurn and West-gate: the appellant is unable to obtain review or a supersedeas of the order while the judgment creditor is able to pursue its collection by execution. This, certainly, was the reason for this court’s observation in Lombardo v. Haige, 971 So.2d 1037, 1040 (Fla. 2d DCA 2008), that “[w]e have considerable doubt about the correctness of [the Godshall ] holding because we cannot fathom how one can wait to appeal an order upon which execution can enter.”

The Third District has pursued an altogether different course. As mentioned in the McGum opinion, the Third District considers otherwise nonfinal judgments that are final in form to be final for purposes of invoking its appellate jurisdiction. See Del Castillo, 512 So.2d at 319. However, honoring the traditional prohibition against piecemeal review, it treats the issuance of a nonfinal order in final form as error because this forces the debtor to prematurely take an appeal — and thus to seek piecemeal review — in order to protect the debtor’s rights. It summarily reverses the judgment insofar as it is final in form and remands with instructions to enter an interlocutory order on the issues decided to date. It leaves any appellate issues related to the merits to be determined in a later appeal from the final judgment in the case. Molina v. Watkins, 824 So.2d 959, 964 (Fla. 3d DCA 2002); see also Investacorp, Inc. v. Evans, 88 So.3d 248 (Fla. 3d DCA 2011); Hugh F. Culverhouse, Jr., P.A. v. Barth, 699 So.2d 795 (Fla. 3d DCA 1997).

This approach has much to recommend it. It permits the judgment debtor to appeal the judgment and post a supersede-as bond to protect against execution, and it avoids piecemeal review of the case. But it suffers from a significant flaw: appeals from final judgments are plenary. As such, the scope of review includes any ruling that occurred prior to the filing of the notice of appeal. Fla. R.App. P. 9.110(h). By routinely limiting its review to the offending form of the appealed orders and deferring review of the merits, the Third District effectively treats them as appealable nonfinal orders even though no such nonfinal appeal has been authorized by the supreme court in rule 9.130. Arguably, this encroaches on the supreme court’s exclusive power to designate which nonfinal orders may be appealed.

More basically, it is not entirely clear whether it is proper to entertain appeals from orders that are final merely in form but not in substance. If the McGum court had actually adopted this view as a general proposition, the jurisdictional issue before it would have been easily resolved on that basis, and there would have been no need for the Westgate court to be concerned about the district courts’ disagreement over whether such an order is encompassed by the premature appeal rule. Moreover, the traditional test of finality is substantive. Especially considering that appellate jurisdiction turns on this substantive inquiry, it is questionable whether it can be evaded by a simple trick or happenstance of form.

We conclude that the most efficacious and conceptually defensible approach to orders such as these was proposed, if not fully explored, in our Lombardo decision. 971 So.2d 1037. Lombardo was filed as a second-tier certiorari proceeding, but we treated it as one seeking mandamus to compel reinstatement of a circuit court appeal that had been incorrectly dismissed as untimely. Id. at 1039. The county court order that was the subject of the appeal was an executable judgment for attorney’s fees and costs entered prior to the final judgment in the case. We posited that even if the First District’s Godshall was correct in holding that such orders are not appealable partial final judgments, an order permitting execution before the entry of a final judgment would be reviewable by certiorari. Ultimately, we issued a writ of mandamus directing the circuit court to reinstate the proceeding and to then consider whether the proper mechanism for reviewing the order was by certiorari. Id. at 1040.

Thus, Lombardo suggested two possible avenues for obtaining review of orders such as the one at issue here. First, without deciding the question, it posited that the order might be a partial final judgment, see id., consistent with the Third District’s view that orders that are final in form, at least insofar as they permit execution, are final for appellate purposes. But, as we have noted above, there are significant unanswered questions about the propriety of that approach.

The other suggestion we made in Lom-bardo was that an executable judgment entered prior to rendition of the final judgment is reviewable by certiorari. See id. More recent developments in the Florida Supreme Court compel us to qualify this observation insofar as it is taken to mean that certiorari may be employed to review the merits of the nonfinal judgment. In 2012 the supreme court rejected the notion that certiorari may be invoked simply because there are strong policy reasons for permitting interlocutory review. “On the other hand, if strong policy reasons favor interlocutory review, this Court will direct that the categories of appealable non-final orders be expanded by amendment to the rules and not by expanding use of the common law writ of certiorari.” Citizens Prop. Ins. Corp. v. San Perdido Ass’n, Inc., 104 So.3d 344, 353 (Fla.2012); see also Keck v. Eminisor, 104 So.3d 359 (Fla.2012). It is clear, then, that we may not premise the exercise of our certiorari power on a policy determination that a judgment debtor whose assets are exposed to execution should not have its ability to obtain review of the judgment delayed.

Still, we continue to believe that certio-rari is available to review the form of an order, if not its underlying merits, insofar as it permits execution prior to rendition of an appealable final judgment. This notion does not rest on a policy determination that a litigant should be permitted an immediate review of an order if the order exposes the litigant’s assets to execution. Rather, it is premised on the question of whether an order properly may subject a litigant to execution at a time when the trial court litigation is incomplete and there is no available appellate remedy.

In order to employ certiorari to review a nonfinal order,

the appellate court must focus on the threshold jurisdictional question: whether there is a material injury that cannot be corrected on appeal, otherwise termed as irreparable harm. See Allstate Ins. Co. v. Boecher, 733 So.2d 993, 999 (Fla.1999) (using both terms when discussing this requirement). Assuming this requirement is met, the court must then determine whether the decision below departed from the essential requirements of law — something that is more than just a legal error. See Williams [v. Oken], 62 So.3d [1129, 1133 (Fla. 2011)] (“In granting writs of common-law certiorari, the district courts of appeal should not be as concerned with the mere existence of legal error as much as with the seriousness of the error.” (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 528 (Fla.1995))).

San Perdido, 104 So.Bd at 351.

We can easily see that the order at issue here satisfies the two jurisdictional prongs of the certiorari test. By subjecting East Avenue to execution at a time when it has no appellate remedy and therefore cannot protect its assets by filing a supersedeas bond, the order places it in the very quandary that drove the supreme court’s decision in McGum. That a judgment debtor in such circumstances suffers a material injury that cannot be remedied by appeal from a final judgment was the very reason that, in the prejudgment interest context, McGum permitted the order to be treated as final for appellate purposes even though it was not truly final under the S.L.T. Warehouse test. And it was for this same reason that the Westgate court left that aspect of McGum intact.

The remaining question is whether the order at issue departed from the essential requirements of law insofar as it permitted execution prior to rendition of a truly appealable final judgment in the case. We conclude that it did.

Permitting execution prior to completion of the litigation before the trial court has long been characterized as improper by the appellate courts. Thus, in McGum the supreme court considered it improper for the trial court to issue an executable damages judgment while reserving the issue of prejudgment interest for later determination. See596 So.2d at 1044 (“It is improper for a trial judge to render an order which in all respects appears to be an ordinary final money judgment, but which leaves the determination of prejudgment interest for future adjudication.”). The reason was that an award of prejudgment interest was not ancillary to the subject matter of the litigation, as are attorney’s fees and costs awards, but was an element of the damages at issue in the case. Id. at 1044.

By definition, the same is true of any partial judgment that is not final under the S.L.T. Warehouse test because it resolves counts that are legally or factually interrelated with counts that remain pending. As the Del Castillo court stated:

As a general rule, a final judgment is deemed to be rendered, almost as a matter of definition, only when the court has disposed of the entire controversy in question. Just because this is the theoretical case, it is therefore improper to render an order in the form of an ordinary final money judgment, while con-tradictedly and simultaneously leaving an issue for future adjudication.

512 So.2d at 318-19 (footnotes omitted) (citations omitted); see also Pointer Oil, 293 So.2d at 390; Liberman v. Rhyne, 248 So.2d 242 (Fla. 3d DCA 1971); Fontainebleau Hotel Corp. v. Young, 162 So.2d 303 (Fla. 3d DCA 1964).

That this impropriety exceeds the level of mere legal error is evident in the unwonted lengths to which the supreme court in McGum and Westgate went to afford relief to the judgment debtor in the prejudgment interest context, i.e., by “deeming” such an order to be final and appeal-able even though it did not meet the test of finality. As we have observed, the seriousness of the error and the quandary it poses for the debtor are equally destructive outside the prejudgment interest context.

We are obliged to treat a request for an improper remedy as if the correct remedy had been requested. See Fla. R.App. P. 9.040(c). Therefore, we treat this appeal as a proceeding for a writ of certiorari. We grant the writ and quash the order under review.

In so doing, we commend to the circuit court the McGum court’s observations about the proper kind of order that should be entered when adjudicating less than the entire cause:

[A] trial court may issue an interlocutory order specifying the amount of damages that are no longer in controversy and directing that further proceedings resolve the remaining issues. Only when the remaining issues are decided should a final order encompassing all of the damages, including those from the interlocutory order, be entered. Therefore, if it is desirable to determine prejudgment interest damages separate from the determination of other damages, the trial court may issue an interlocutory order setting forth the damages already determined. This would in effect liquidate those damages, if not already liquidated, and interest on those damages would start to accrue.

McGum, 596 So.2d at 1044. Similarly, Florida Rule of Civil Procedure 1.510(d), which provides for a summary judgment on less than the entire action, states:

(d) Case Not Fully Adjudicated on Motion. On motion under this rule if judgment is not rendered upon the whole case or for all the relief asked and a trial or the taking of testimony and a final hearing is necessary, the court at the hearing of the motion, by examining the pleadings and the evidence before it and by interrogating counsel, shall ascertain, if practicable, what material facts exist without substantial controversy and what material facts are actually and in good faith controverted. It shall thereupon make an order specifying the facts that appear without substantial controversy, including the extent to which the amount of damages or other relief is not in controversy, and directing such further proceedings in the action as are just. On the trial or final hearing of the action the facts so specified shall be deemed established, and the trial or final hearing shall be conducted accordingly.

(Emphasis supplied.) See also Molina, 824 So.2d at 964.

Petition for writ of certiorari granted; judgment quashed.

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

      . Florida Rule of Appellate Procedure 9.110(Z) provides:
      (Z) Premature Appeals. If a notice of appeal is filed before rendition of a final order, the appeal shall be subject to dismissal as premature. However, if a final order is rendered before dismissal of the premature

      . Florida Rule of Appellate Procedure 9.315(b) provides for summary reversals as follows:
      (b). Summary Reversal. After service of the answer brief in appeals under rule 9.110, 9.130, or 9.140, or after service of the reply brief if a cross-appeal has been filed, the court may summarily reverse the order to be reviewed if the court finds that no meritorious basis exists for affirmance and the order otherwise is subject to reversal.

      . We acknowledge that this court has treated as final and appealable a premature judgment that was final in form, citing Del Castillo. Rollins Fruit Co. v. Wilson, 923 So.2d 516 (Fla. 2d DCA 2005). However, the judgment at issue there was a premature judgment for attorney’s fees, which as McGum noted, are considered ancillary to and therefore incidental to the main adjudication. Thus, arguably it did not present the same jurisdictional concerns as a judgment that adjudicates a substantive claim while leaving legally or factually interrelated claims pending. In contrast, in Norris v. Paps, 615 So.2d 735 (Fla. 2d DCA 1993), we treated a final foreclosure judgment as nonfinal where the trial court had severed the defendants’ compulsory counterclaim for later determination. We reviewed the foreclosure judgment by certiorari.


source: Caselaw Access Project

author: SILBERMAN, Judge.

license: Public Domain

text:
    The JARBOE FAMILY AND FRIENDS IRREVOCABLE LIVING TRUST and Thomas R. Clark, as Trustee of the Jarboe Family and Friends Irrevocable Living Trust, Appellants, v. Betty SPIELMAN; Ronald E. Jarboe; Richard A. Jarboe; The Ronald E. Jarboe Irrevocable Living Trust a/k/a The Ronald Jarboe Irrevocable Living Trust; Guy Jarboe as Trustee of the Ronald E. Jarboe Irrevocable Living Trust a/k/a The Ronald Jarboe Irrevocable Living Trust; 16217 Shelbyville Road, LLC, a Kentucky limited liability company; and 708 Flatrock Road, LLC, a Kentucky limited liability company, Appellees.
    No. 2D13-148.
    District Court of Appeal of Florida, Second District.
    Jan. 17, 2014.
    Rehearing Denied Feb. 14, 2014.

      Jesse R. Butler and Michael P. Murphy of Dickinson & Gibbons, P.A., Sarasota, for Appellants.
    Suzanne Youmans Labrit, William P. Cassidy, and Nicole Deese Newlon of Shutts & Bowen LLP, Tampa, for Appel-lee Betty Spielman.
    No appearance for remaining Appellees.
   SILBERMAN, Judge.

The Jarboe Family and Friends Irrevocable Living Trust (the Trust) and Thomas R. Clark as Trustee (the Trustee) seek review of the order denying their motions to dismiss an impleader complaint which was filed in proceedings supplementary. We reverse because the trial court applied the wrong law in determining whether plaintiff Betty Spielman had established in personam jurisdiction over these nonresident defendants.

The underlying case involved a lawsuit filed by Spielman against Ronald E. Jar-boe which resulted in a final judgment for $754,720.40 against Jarboe. In an attempt to collect on the judgment, Spielman filed a motion for proceedings- supplementary and two separate motions to implead third parties. The court granted Spielman’s motions, and Spielman filed an impleader complaint naming both the Trust and the Trustee among the third-party defendants. In the unsworn complaint, Spielman alleged that the Trustee facilitated the fraudulent transfer of property from Jar-boe to the Trust as part of Jarboe’s attempt to delay, hinder, or defraud Spiel-man.

The complaint contained the following jurisdictional allegations regarding the Trust and the Trustee:

7. Impleaded Defendant The Jarboe Family and Friends Irrevocable Living Trust is a Kentucky trust corporation and owns property in Florida, Kentucky, Georgia, Ohio, and elsewhere. Implead-ed Defendant The Jarboe Family and Friends Irrevocable Living Trust received this property through a fraudulent transfer from Defendant Ronald Jarboe and/or Ronald Jarboe is the alter ego of Impleaded Defendant The Jarboe Family and Friends Irrevocable Living Trust.
8. Impleaded Defendant Thomas Clark is the Trustee of the Jarboe Family and Friends Irrevocable Living Trust and, upon information and belief, is believed to be a citizen of Kentucky. Impleaded Defendant Thomas Clark facilitated the fraudulent transfer of assets from Ronald Jarboe to The Jarboe Family and Friends Irrevocable Living Trust.

The Trust and the Trustee filed motions to dismiss the impleader complaint for lack of personal jurisdiction along with an affidavit of the Trustee. In the affidavit, the Trustee averred that the Trust was created and administered in Kentucky. Among other things, the Trustee denied that the Trust owns property located in Florida, conducts business in Florida, or committed any tortious acts in Florida. The Trustee asserted that “the Trust has been properly maintained as a separate legal entity in the State of Kentucky.” The Trustee also challenged personal jurisdiction over him, stating that he is a resident of Kentucky who administers the Trust through his offices in Kentucky. The Trustee denied that he did acts that would subject him to the jurisdiction of a Florida court.

Spielman filed a memorandum in opposition to the motion to dismiss along with the deposition of Ronald E. Jarboe, the judgment debtor. Spielman argued that the deposition and other documents established jurisdiction “by virtue of the fraudulent transfers of assets made in the State of Florida to the trust in conjunction with Defendant Jarboe’s own admission during deposition about the transfers to [the Trustee and the Trust].”

At the hearing on the motions to dismiss, the Trust and the Trustee argued that Florida’s long-arm statute and the Florida Supreme Court’s decision in Venetian Salami governed the issue of personal jurisdiction. The Trust and the Trustee asserted that, under this authority, the filing of the Trustee’s affidavit shifted the burden of proving personal jurisdiction to Spielman. And the Trust and the Trustee asserted that Spielman failed to meet this burden of proof because she did not file a counter-affidavit establishing the basis for personal jurisdiction.

Spielman disagreed that Florida’s long-arm statute and Venetian Salami apply in proceedings supplementary. Spielman argued that the only allegations required to meet the jurisdictional pleading requirements were those setting forth a facially sufficient cause of action for proceedings supplementary under section 56.29, Florida Statutes (2011). Spielman asserted that the impleader complaint’s allegations that the Trust and the Trustee transferred property to delay, hinder, or defraud Spiel-man satisfied this requirement. Spielman alternatively asserted that Jarboe’s deposition refuted the factual allegations in the Trustee’s affidavit.

The trial court agreed with Spiel-man’s primary argument and entered an order denying the motion to dismiss. The court did not discuss Florida’s long-arm statute or Venetian Salami but reasoned as follows:

Upon reviewing the allegations in the Impleader Complaint, documentation in the court file, the response to the motions of Ms. Spielman, and argument of counsels [sic], this Court concludes that it is clear and obvious that the allegations of transfers made to delay, hinder, or defraud Ms. Spielman are sufficient to provide jurisdiction in this Court for proceedings supplementary under section 56.29.
Without any doubt, this Court has personal jurisdiction over the Jarboe Family Trust and Trustee Clark. The motions to dismiss are denied.

We conclude that, as to in personam jurisdiction over nonresident defendants, this reasoning is erroneous.

This court has observed that section 56.29(1) requires that a judgment creditor seeking to initiate proceedings supplementary “have an unsatisfied judgment and file an affidavit averring that the judgment is valid and outstanding.” Fundamental Long Term Care Holdings, LLC v. Estate of Jackson, 110 So.3d 6, 8 (Fla. 2d DCA 2012), review denied, 118 So.3d 220 (Fla.2013). Once a judgment creditor establishes entitlement to proceedings supplementary by this process, third parties may be joined in the proceedings by im-pleader. Id.

The procedural requirements of section 56.29 have been referred to as “jurisdictional prerequisites for proceedings supplementary.” See Mejia v. Ruiz, 985 So.2d 1109, 1112 (Fla. 3d DCA 2008). And courts have recognized that the satisfaction of the procedural requirements of section 56.29 allows personal jurisdiction to be obtained over an impleaded defendant. See, e.g., Estate of Jackson, 110 So.3d at 11 (holding that a court does not lack personal jurisdiction over an impleaded defendant on the basis of insufficient service of process if the plaintiff complies with the procedural requirements of section 56.29); Exceletech, Inc. v. Williams, 579 So.2d 850, 852-53 (Fla. 5th DCA 1991) (en banc) (addressing the procedure to add third-party defendants in proceedings supplementary and holding that impleaded defendants are “entitled to no more” than notice of the judgment creditor’s allegations via either order to show cause or third-party complaint and the opportunity to be heard by an impartial decision maker), approved, 597 So.2d 275 (Fla.1992).

However, neither section 56.29 nor the above-cited cases address the specific question presented here: whether a Florida court may exercise in personam jurisdiction over a nonresident third-party defendant through impleader absent a basis for personal jurisdiction under Florida’s long-arm statute. As has been noted, long-arm jurisdiction is a separate species of jurisdiction from that which is dependent upon pleadings or other procedural happenings. See Judge Scott Stephens, Florida’s Third Species of Jurisdiction, 82 Fla. B.J. 10, 11 (Mar. 2008) (discussing the differences between subject-matter jurisdiction, in personam jurisdiction, and “procedural jurisdiction”). Indeed, at least two Florida courts have addressed the issue of in personam jurisdiction over nonresident third-party impleader defendants by applying Florida’s long-arm statute as set forth in Venetian Salami See, e.g., Tabet v. Tabet, 644 So.2d 557, 559 (Fla. 3d DCA 1994); Neff v. Adler, 416 So.2d 1240, 1243-44 (Fla. 4th DCA 1982), superseded by statute on other grounds, Standard Prop. Inv. Trust, Inc. v. Luskin, 585 So.2d 1099 (Fla. 4th DCA 1991). Thus, the Trust and the Trustee correctly argue that the issue of in personam jurisdiction in this case must be determined in accordance with the procedures explained in Venetian Salami.

Here, the Trust and the Trustee filed a motion to dismiss, asserting that they are nonresident defendants and are not subject to the long-arm jurisdiction of a Florida court. They filed a supporting affidavit in accordance with the procedure established in Venetian Salami. Spielman filed a memorandum in opposition to the motion. She did not file a supporting affidavit, but she filed Jarboe’s deposition and argued that the deposition and other documents establish jurisdiction.

In determining that it had jurisdiction, it appears that the trial court relied solely on Spielman’s allegations that Jarboe had fraudulently transferred property. The court did not address the assertions contained in the affidavit filed by the Trust and the Trustee that they did not engage in conduct that would subject them to the long-arm jurisdiction of a Florida court. While Spielman argued that jurisdiction existed and asserted that Jarboe’s deposition supported the exercise of jurisdiction, the trial court did not follow the procedures outlined in Venetian Salami to resolve the question of long-arm jurisdiction. Accordingly, we reverse and remand with directions for the court to reevaluate the issue of in personam jurisdiction raised in the motion to dismiss under Florida’s long-arm statute as set forth in Venetian Salami.

Reversed and remanded.

VILLANTI and WALLACE, JJ., Concur.

      . § 48.193, Fla. Stat. (2011).

      . Venetian Salami Co. v. Parthenais, 554 So.2d 499 (Fla. 1989).

      . The Venetian Salami court set forth the following procedure for nonresident defendants to challenge in personam jurisdiction under Florida’s long-arm statute:
      Initially, the plaintiff may seek to obtain jurisdiction over a nonresident defendant by pleading the basis for service in the language of the statute without pleading the supporting facts. By itself, the filing of a motion to dismiss on grounds of lack of jurisdiction over the person does nothing more than raise the legal sufficiency of the pleadings. A defendant wishing to contest the allegations of the complaint concerning jurisdiction or to raise a contention of minimum contacts must file affidavits in support of his position. The burden is then placed upon the plaintiff to prove by affidavit the basis upon which jurisdiction may be obtained. In most cases, the affidavits can be harmonized, and the court will be in a position to make a decision based upon facts which are essentially undisputed.... [When the affidavits cannot be harmonized,] the trial court will have to hold a limited evidentiary hearing in order to determine the jurisdiction issue.
      554 So.2d at 502-03 (citations omitted).


author: BLACK, Judge.

text:
    CITIZENS PROPERTY INSURANCE CORPORATION, a Florida government entity, Petitioner, v. Gary TRAPEO, Respondent.
    No. 2D13-2078.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2014.
    Rehearing Denied April 1, 2014.

      Kara Berard Rockenbach and Kristi Bergemann Rothell of Methe & Rocken-bach, P.A., West Palm Beach, for Petitioner.
    Amy S. Farrior and Raymond T. Elli-gett, Jr. of Buell & Elligett, P.A., Tampa; and Michael A. Giasi and Matthew R. Dan-ahy of Danahy & Murray, P.A., Tampa, for Respondent.
   BLACK, Judge.

Citizens Property Insurance Corporation (“Citizens”) seeks certiorari review of the trial court’s order denying it a stay pending neutral evaluation of the sinkhole claim that forms the basis for the underlying lawsuit. Citizens argues that the statute governing neutral evaluation mandates a stay of court proceedings and that the statutory right to neutral evaluation cannot be waived by participating in litigation. Based on the nature of the order on review and the relief requested, we treat Citizens’ petition as one for writ of certiorari, in part, and writ of mandamus, in part. The petition is granted.

I. Background

Citizens issued an insurance policy to Gary Trapeo in 2009. The policy was effective from December 2009 through December 2010. As the result of 2010 sinkhole damage to the property and a dispute between Citizens’ retained engineer and Mr. Trapeo’s retained engineer as to the appropriate remedial action, Mr. Trapeo filed a lawsuit against Citizens in March 2012. In December 2012, after engaging in discovery, Citizens filed a request for neutral evaluation with the Department of Financial Services (“Department”) pursuant to section 627.7074(4), Florida Statutes (2012). Section 627.7074 is titled “Alternative procedure for resolution of disputed sinkhole insurance claims.” The statute defines and establishes the right to neutral evaluation along with the procedures for neutral evaluation. “Neutral evaluation” is defined as “the alternative dispute resolution provided in s. 627.7074.” § 627.706(2)(b).

Citizens also filed a “Notice of Automatic Stay” with the trial court, advising the court that it had filed its request for neutral evaluation with the Department and that section 627.7074 mandated a stay of the court proceedings “pending completion of the neutral evaluation and for 5 days after the filing of the neutral evaluator’s report with the court.” See § 627.7074(10).

In response, Mr. Trapeo filed a “Response and Objection to Defendant’s Notice of Stay of Litigation Pending Completion of Neutral Evaluation and Memorandum of Law.” Mr. Trapeo alleged that Citizens “waived its right to demand participation in [the Department’s] neutral evaluation program based upon its denials contained within its Answer, its assertion of Affirmative Defenses and its participation in this litigation for approximately ten (10) months.” In the memorandum of law, Mr. Trapeo argues that “Citizens failed to protect and safeguard its contractual right to neutral evaluation” and that “it has waived such right to participate in such process.”

In addition to the response, Mr. Trapeo filed a “Motion to Prevent the Retroactive Application of Florida Statutes 627.706 through 627.7074” and a motion to determine the constitutionality of section 627.7074. Neither of these motions is included in the records provided to this court but both are discussed in the transcript of the hearing on the objection to notice of stay. Only the former is relevant to our review.

At the hearing on the stay issue, Mr. Trapeo argued that Citizens waived its right to neutral evaluation based upon its participation in the circuit court litigation. Mr. Trapeo acknowledged that neutral evaluation is not only a contractual process but also statutory and that Citizens’ request was made pursuant to statute. He nonetheless argued that participation in neutral evaluation is a right that can be waived by litigating a case in court. Citizens countered with the argument that neutral evaluation is a statutory right which cannot be waived. It argued that neutral evaluation is unlike arbitration in that it is not an “opt out” of litigation. Citizens’ counsel also stated that he objected to his required presence at the hearing because the case should have been automatically stayed. Finally, Citizens argued that Mr. Trapeo’s analogizing waiver of neutral evaluation to a defendant waiving his right to jury trial was inapplicable because a criminal defendant must knowingly do so and in this case Citizens did not knowingly waive any right.

At the close of the hearing, the trial court specifically ruled that “like contractual rights, constitutional rights or anything else, [statutory rights] can be waived. And, in this case, by participating in discovery pursuant to the litigation [the right to neutral evaluation] was, in fact, waived.” The court “sustained the objection to neutral evaluation.” The written order provides that Mr. Trapeo’s objection is sustained “as [Citizens] waived its right to neutral evaluation when it participated in litigation” and that “the right to neutral evaluation, like any statutory or contractual right, can be waived and that waiver did occur in the instant action.”

II. Statute

Mr. Trapeo’s arguments and the court’s ruling confuse the central issue. First, Mr. Trapeo’s objection was to the stay but his argument centered on Citizens’ ability to request or participate in neutral evaluation. Second, the court’s order purports to sustain the objection to the stay but it also finds that neutral evaluation has been waived. As a result, the 2011 amendments to the neutral evaluation statute are intertwined with the issues presented in Citizens’ petition for writ of certiorari. Therefore before reaching the issues directly before us, we must consider whether the 2009 or 2012 version of section 627.7074 is applicable to this case.

Section 627.7074 was enacted in 2006 and substantially amended in 2011. The relevant amendment for our purposes was to the stay provision of the statute. Previously, section 627.7074 provided: “Any court proceeding related to the subject matter of the neutral evaluation shall be stayed pending completion of the neutral evaluation.” § 627.7074(11), Fla. Stat. (2006); see ch. 2006-12, § 29, Laws of Fla. (2006). Effective May 17, 2011, the stay provision was renumbered to section 627.7074(10) and substantively provided: “Regardless of when noticed, any court proceeding related to the subject matter of the neutral evaluation shall be stayed pending completion of the neutral evaluation and for 5 days after the filing of the neutral evaluator’s report with the court.” § 627.7074(10) (emphasis added); see ch. 2011-39, § 27, Laws of Fla. (2011).

Mr. Trapeo argues that the 2009 version of section 627.7074 is applicable in determining whether waiver occurred because Citizens issued his insurance policy in 2009. He also contends that Citizens was required to request neutral evaluation “at the beginning of the case” and that its failure to do so amounted to waiver. Citizens contends that the 2012 amended version containing the phrase “regardless of when noticed” is applicable.

“ ‘[T]he statute in effect at the time an insurance contract is executed governs substantive issues arising in connection with that contract.’ ” Menendez v. Progressive Express Ins. Co., Inc., 35 So.3d 873, 876 (Fla.2010) (quoting Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla.1996)). However, procedural issues are governed by the laws in effect at the time the issues arise, for example, at the time suit is filed or at trial. See generally Alamo Renti-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1358 (Fla.1994) (“Procedural or remedial statutes ... are to be applied ... to pending cases.”); Sottilaro v. Figueroa, 86 So.3d 505, 508 n. 1 (Fla. 2d DCA 2012) (“[T]he issue on appeal is a procedural issue; thus, the statute in effect at the time of the trial is the applicable statute.”); Butler v. Bay Ctr./Chubb Ins. Co., 947 So.2d 570, 572 (Fla. 1st DCA 2006) (“[Procedural or remedial changes to law apply without regard to the date of a claimant’s accident.”).

Section 627.7074 contains both procedural and substantive aspects. The right to neutral evaluation is clearly substantive. State Farm Fla. Ins. Co. v. Buitrago, 100 So.3d 85, 88 (Fla. 2d DCA 2012) (quoting Morejon v. Am. Sec. Ins. Co., 829 F.Supp.2d 1258, 1260-61 (M.D.Fla.2011) (“Section 627.7074 provides a substantive right of parties to have a neutral evaluator review the claim and render a nonbinding report before the matter is adjudicated by a court .... [T]he statute is substantive rather than procedural inasmuch as it will not impact in any manner Plaintiffs’ method of proceeding with litigation once the condition precedent of neutral evaluation is met.”)). However, the means by which neutral evaluation occurs are procedural. And although not expressly stated, this court has viewed the stay subsection of the statute as procedural: “[T]he stay provision is sufficiently intertwined with substantive provisions so that it is not an unconstitutional violation of separation of powers.” Cruz v. Cooperativa De Seguros Multiples De Puerto Rico, Inc., 76 So.3d 394, 398 (Fla. 2d DCA 2011).

Staying litigation is a means to enforce neutral evaluation and “serve the legislative purpose underlying the statutory requirement of neutral evaluation.” Morejon, 829 F.Supp.2d at 1260. Section 627.7074(10) does not create new rights or impede existing rights; it is not substantive. And procedural statutes “should be applied to pending cases in order to fully effectuate the legislation’s intended purpose.” Smiley v. State, 966 So.2d 330, 334 (Fla.2007). Thus, the amended version of the stay provision of section 627.7074 applies to a lawsuit filed after its effective date and until and unless a procedural change is made during the pendency of the lawsuit. See Sottilaro, 86 So.3d at 508 n. 1.

III. Certiorari

In reviewing an interlocutory order in a certiorari proceeding, this court must first determine whether the lower court’s ruling causes “material injury for the remainder of the trial” which “cannot be corrected on postjudgment appeal,” giving this court certiorari jurisdiction. Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995). Provided the jurisdictional prongs are met, we next consider whether the lower court departed from the essential requirements of the law. Buitrago, 100 So.3d at 88 (citing Fassy v. Crowley, 884 So.2d 359, 363 (Fla. 2d DCA 2004)). “[T]he law is clear that certiorari relief is intended to be available only in very limited circumstances .... ” Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So.3d 712, 722 (Fla.2012). “It is only in exceptional cases, such as those where the lower court acts without or in excess of jurisdiction, or where the interlocutory order does not conform to the essential requirements of law” that certio-rari relief is appropriate. Kauffman v. King, 89 So.2d 24, 26 (Fla.1956). The failure to conform to the essential requirements of the law has often been rephrased as “a violation of a clearly established principle of law resulting in a miscarriage of justice.” See, e.g., Custer Med. Ctr. v. United Auto. Ins. Co., 62 So.3d 1086, 1092 (Fla.2010); Combs v. State, 436 So.2d 93, 95 (Fla.1983).

A. Jurisdiction

The majority of Citizens’ petition for writ of certiorari addresses the court’s failure to recognize the mandatory nature of the statute’s stay provision. However, although the denial of the stay is based upon the court’s finding that neutral evaluation has been waived, the denial itself does not meet the jurisdictional prongs of certiorari review. If neutral evaluation were to proceed in the absence of a stay, either party could still seek to introduce the neutral evaluator’s report in the circuit court case. See § 627.7074(13) (“The neutral evaluator’s written recommendation, oral testimony, and full report shall be admitted in any action, litigation, or proceeding relating to the claim or to the cause of action giving rise to the claim.”). The only damage would be the potential for increased costs and protracted litigation, and this is tacitly acknowledged by Citizens in its petition. Cf. Cruz, 76 So.3d at 397-98 (dismissing petition for writ of certiorari where motion to lift stay was denied and no irreparable harm had been shown). And “the continuation of litigation and any ensuing costs, time, and effort in defending such litigation does not constitute irreparable harm. Thus, the use of certiorari review is improper in such an instance.” Rodriguez v. Miami-Dade Cnty., 117 So.3d 400, 405 (Fla.2013).

To the extent that the trial court’s order in this case attempts to prohibit neutral evaluation through its finding that Citizens waived its right to the process, the order meets the jurisdictional prongs for certiorari review. See Buitrago, 100 So.3d at 88. “[T]he circuit court’s prohibition [of neutral evaluation under section 627.7074] materially harms [the petitioner] for the remainder of the proceedings by preventing it from participating in a neutral evaluation process, the results of which could favor [the petitioner].” Id.

B. Departure from the law

While “certiorari jurisdiction cannot be used to create new law where the decision below recognizes the correct general law and applies the correct law to a new set of facts to which it has not been previously applied[,] ... [t]his does not mean ... that clearly established law consists only of prior judicial precedent.” Nader, 87 So.3d at 723. As reiterated in Nader,

[the supreme court has] held that “ ‘clearly established’ law can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law.” Accordingly, a district court may grant a writ of certiorari after determining that the decision is in conflict with the relevant statute, so long as the legal error is also “sufficiently egregious or fundamental to fall within the limited scope” of certiorari jurisdiction.

Id. (quoting Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003)). Further, denial of a statutorily mandated process may be grounds for certiorari relief. See Williams v. Oken, 62 So.3d 1129, 1135-36 (Fla.2011) (discussing the holdings of Globe Newspaper Co. v. King, 658 So.2d 518, 519-20 (Fla.1995)).

Citizens correctly argues that neutral evaluation, once requested, is mandatory. The trial court’s determination that neutral evaluation was waived conflicts with the express language of the statute. “Neutral evaluation is available to either party,” “supersedes the alternative dispute resolution process under s. 627.7015,” and is “mandatory if requested by either party.” § 627.7074(2), (3), (4). The statute’s language is compulsory; it repeatedly and almost exclusively directs that acts “shall” occur. There is no waiver provision and no timeframe for requesting neutral evaluation. It is an optional but statutorily guaranteed process. That is, once the request for neutral evaluation has been filed with the Department, participation in neutral evaluation is mandatory and guaranteed. See § 627.7074(4); cf. Williams, 62 So.3d at 1135-36. Certiorari relief is appropriate because the trial court’s order purports to deprive Citizens of a statutory process to which it is entitled resulting in material harm. Cf. Williams, 62 So.3d at 1136-37. This conclusion is supported by language of the statute applicable at the time the lawsuit was filed. The 2012 statute specifically provides, “Regardless of when noticed, any court proceeding related to the subject matter of the neutral evaluation shall be stayed pending completion of the neutral evaluation and for 5 days after the filing of the neutral evaluator’s report with the court.” § 627.7074(10) (emphasis added); cf. Cruz, 76 So.3d at 398 n. 1 (“We also note that section 627.7074 does not impose a waiver or other penalty when a neutral evaluation is not completed within forty-five days. Its proviso that ‘[njeutral evaluation shall be conducted as an informal process in which formal rules of evidence and procedure need not be observed,’ § 627.7074(5), suggests that the legislature intended no sanction for failure to strictly adhere to the time period.”). The statute provides neutral evaluation as both a potential precursor to litigation and as a parallel, contemporaneous process. It is not an “either or” or “opt out of litigation” procedure, unlike contractual arbitration provisions. Cf. ch. 682, Fla. Stat. (2011) (applying to those instances where the parties have an arbitration agreement). It is also not a process that occurs as part of a civil proceeding, unlike court-ordered mediation, nor is it a presuit requirement.

There has also been a departure from the essential requirements of the law in that the circuit court acted in excess of its jurisdiction. The circuit court does not have authority over the neutral evaluation process. The Department does. Chapter 627 is part of Florida’s Insurance Code. § 624.01, Fla. Stat. (2009). And as used in the code, “department” means the Department of Financial Services. § 624.05(1). Section 624.307 provides that the Department “shall enforce the provisions of this code and shall execute the duties imposed upon” it and “shall have the powers and authority expressly conferred upon it by, or reasonably implied from, the provisions of this code.” § 627.307(1), (2). It is clear that the legislature intended that the procedure for the neutral evaluation of sinkhole claims be administered through the Department. See State Farm Fla. Ins. Co. v. Colella, 95 So.3d 891, 893 (Fla. 2d DCA 2012) (“A request for neutral evaluation is actually made to the Florida Department of Financial Services.”). The Department certifies and maintains a list of qualified neutral evaluators; receives the request for neutral evaluations; may disqualify neutral evaluators; may appoint a neutral evaluator in cases where the parties cannot agree upon one; and has adopted rules of procedure for the neutral evaluation process. § 627.7074(1), (4), (7), (18); see also SB 408 (2011), Staff analysis (Jan. 24, 2011), http://www.flsenate.gov/ Session/Bill/2011/0408/Analyses/2011s0408. pre.bi.PDF (“Section 24. Amends, s. 627.7074, F.S., which provides the procedure for the neutral evaluation of sinkhole claims administered through the Department of Financial Services (DFS).”).

The right to request neutral evaluation through the Department stems from section 627.7074(4), which has remained unchanged since 2006. Section 627.7074(4) provides that neutral evaluation is mandatory if requested by either party. Whether a party can or has waived neutral evaluation is a determination within the Department’s authority and power, as reasonably implied from the statute’s express language. As a result, the circuit court is not in a position to determine whether neutral evaluation can or has been waived. This is true despite the fact that nothing in the applicable statute addresses waiver. Cf. Asbury Arms Dev. Corp. v. Fla. Dep’t of Bus. Regulation, 456 So.2d 1291, 1293 (Fla. 2d DCA 1984).

IV. Mandamus

We convert that portion of the certiorari petition addressing the trial court’s denial of a stay to a petition for writ of mandamus and grant it. See Fla. R. App. P. 9.040(c). Citizens argues that the trial court is required to stay court proceedings related to the subject sinkhole once neutral evaluation is requested. It contends that a “plain reading of section 627.7074(10) provides for a non-discretionary, automatic stay of litigation, regardless of the stage of litigation or the extent of the parties’ litigation conduct without judicial approval,” and that “the trial court is without authority or requirement to act, whether before a lawsuit or after, to prevent the suspension of litigation.” It further argues that section 627.7074(4) supports its automatic stay position because “[fjiling a request for neutral evaluation tolls the applicable time requirements for filing suit” and the trial court is without power to order otherwise.

Mandamus relief is warranted. The language of the statute is mandatory, requiring that the court proceedings “shall be stayed pending completion of the neutral evaluation.” § 627.7074(10); see Fla. Caucus of Black State Legislators, Inc. v. Crosby, 877 So.2d 861, 863 (Fla. 1st DCA 2004) (“Because the legislature chose to use the word ‘shall’ ... the Department’s obligations are not discretionary.”). The circuit court is required to recognize the automatic stay created by section 627.7074. Staying the court proceedings is a ministerial act with no room for discretion and is also a duty imposed on the court by law. See Polley v. Gardner, 98 So.3d 648, 649 (Fla. 1st DCA 2012) (granting petition for writ of mandamus where statute governing confirmation of arbitration award contained mandatory language); cf. Lee Cnty. v. State Farm Mut. Auto. Ins. Co., 634 So.2d 250, 251 (Fla. 2d DCA 1994) (quashing writ of mandamus where action required discretion). Section 627.7074(10) is a dictate. And it provides a clear legal right as well as a duty. See Woodland v. Lindsey, 586 So.2d 1255, 1256 (Fla. 4th DCA 1991).

The notice of stay in this case was all that was necessary to effectuate the stay. Although not the issue presented to this court in Cruz, we consistently referred to the stay provision as “mandatory” and “automatic.” See 76 So.3d at 398 (“The statute reflects a legislative intent to encourage early resolution of a sinkhole claim where the parties disagree on valuation; the automatic stay and the other provisions of the statute combine to facilitate this intent.”). Further supporting the clear meaning of the statute, the Middle District “routinely stay[s] or close[s] cases pending completion of the neutral evaluation process,” treating the notice of stay as automatic or administrative. Morejon, 829 F.Supp.2d at 1261 (and cases cited therein); see, e.g., Gonzalez v. Am. Sec. Ins. Co., No. 8:11-CV-2199-T-27AEP, 2011 WL 8318490 (M.D.Fla. Oct. 7, 2011). The fact that the amended statute uses the phrase “regardless of when noticed” is also instructive. The legislature chose not to use the word “requested” or otherwise indicate that a motion for stay should be filed. Rather, the stay is to be noticed. This comports with the mandatory nature of neutral evaluation once it is requested. Finally, the 2011 amendment clarified that “[t]he mandatory stay of court proceedings pending completion of neutral evaluation is automatically lifted 5 days after the filing of the neutral evaluator’s report with the court.” SB 408, Staff analysis; cf. § 120.56(4)(b), Fla. Stat. (2011) (providing for stay of administrative proceedings during rulemaking process).

The statute also expressly states that “[n]eutral evaluation supersedes the alternative dispute resolution process under s. 627.7015.” § 627.7074(3). Section 627.7015 discusses its “nonadversarial alternative dispute resolution procedure” as a substitute for litigation where the dispute is resolved or as a precursor to litigation where it is not. See Fla. Ins. Guar. Ass’n, Inc. v. Shadow Wood Condo. Ass’n, 26 So.3d 610, 614 (Fla. 4th DCA 2009). There would be no need for neutral evaluation to supersede section 627.7015 if the two provided the same process.

V. Conclusion

Citizens’ petition for writ of certiorari is granted in part; the trial court’s order is quashed to the extent that it prohibits neutral evaluation pursuant to section 627.7074. The petition is converted, in part, to a petition for writ of mandamus and is granted. The trial court is directed to stay the circuit court proceedings pursuant to section 627.7074.

Petition granted; order quashed in part; remanded with directions.

NORTHCUTT and KHOUZAM, JJ., Concur.

      . Although Citizens does not raise the issue, the court clearly departed from the essential requirements of the law by failing to consider the factors necessary to determine waiver of a right. To prove waiver, Mr. Trapeo was required to establish "the existence at the time of the waiver of a right, privilege, or advantage; the actual or constructive knowledge thereof; and an intention to relinquish that right, privilege, or advantage." See Winans v. Weber, 979 So.2d 269, 274 (Fla. 2d DCA 2007).

      . We recognize the trial court’s concern that a notice of stay of litigation pending neutral evaluation could be filed on the eve of trial, thereby temporarily halting litigation at an inopportune time. However, the current language of the statute is clear.


author: LaROSE, Judge.

text:
    Brian CLOUGH, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-930.
    District Court of Appeal of Florida, Second District.
    Jan. 31, 2014.
    Rehearing Denied April 11, 2014.

      Matthew R. McLain of Brownstone, P.A., Winter Park, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appel-lee.
   LaROSE, Judge.

Brian Clough timely appeals the post-conviction court’s order dismissing, in part, and denying, in part, his petition for a writ of habeas corpus. See § 79.01, Fla. Stat. (2009). We have jurisdiction, see Fla. R. App. P. 9.140(b)(1)(D), and affirm. We write to address the argument that the postconviction court denied Mr. Clough due process of law by converting, without notice, his habeas petition to a postconviction motion under Florida Rule of Criminal Procedure 3.850. We review this issue de novo. See Nelson v. State, 43 So.3d 20, 28 (Fla.2010) (stating that appellate court reviews de novo a trial court’s legal conclusions made in ruling on postconviction motion).

The State charged Mr. Clough with trafficking in cannabis. See § 893.135, Fla. Stat. (2009). In January 2011, a jury convicted Mr. Clough. The trial court sentenced him to five years in prison. Mr. Clough unsuccessfully appealed his judgment and sentence to this court. Clough v. State, 100 So.3d 687 (Fla. 2d DCA 2012) (table decision). Our mandate issued in November 2012. Shortly thereafter, Mr. Clough filed his habeas petition in the Sixth Judicial Circuit, the same court in which he had been convicted and sentenced. Mr. Clough was not incarcerated within that circuit.

Mr. Clough raised five claims in his petition; each attacked the validity of his conviction. The postconviction court summarily denied his third claim, which asserted that the trial court lacked subject matter jurisdiction because a felony information based on testimony from material witnesses was not filed in the trial court. The postconviction court attached portions of the record that showed that a felony information was filed; the postconviction court also stated that the allegation of lack of sworn testimony was too speculative.

In claim one, Mr. Clough contended that, because no evidence established that the Hillsborough and Pinellas County Sheriffs Offices had a mutual aid agreement authorizing the Pinellas County detectives to investigate in Hillsborough County, his arrest, conviction, and detention are illegal. Claim two asserted that law enforcement officers failed to obtain a warrant before intercepting his communication with them. Claim four contended that Mr. Clough was denied a fair trial because the State used false information to convict him. Claim five maintained that his arrest, detention, and conviction were predicated upon fraud, illegally and fraudulently collected evidence, collusion, and facts not in evidence. The postconviction court dismissed each of these claims because Mr. Clough should have raised them on direct appeal. We find no error in the merits decision reached by the postconviction court. Accordingly, we discuss the merits of the claims no further.

The significant issue posed by Mr. Clough is whether the postconviction court was required to give him notice of its intent to convert the petition to a rule 3.850 motion. According to Mr. Clough, his lack of prior notice may now preclude him from asserting the same claims or raising any new claims of which he knew at the time he filed his petition. We have not addressed this issue before; we are aware of no guiding decision by our sister districts. Mr. Clough did not raise this issue with the postconviction court, after the petition had been converted, in a motion for rehearing.

Mr. Clough argues that the lack of notice violated his right to due process of law under the Florida Constitution. See art. 1, § 9 Fla. Const. (“No person shall be deprived of life, liberty or property without due process of law .... ”). Mr. Clough argues that, to avoid any constitutional infirmity, the postconviction court should have dismissed the petition for lack of jurisdiction or, if it chose to proceed under rule 8.850, it should have given Mr. Clough notice of its intention and afforded him an opportunity to amend or withdraw his petition.

Mr. Clough acknowledges the postcon-viction court’s authority to treat his petition as a rule 3.850 motion. He concedes that he was not incarcerated in the Sixth Judicial Circuit and that rule 3.850 has subsumed many of the grounds traditionally encompassed by habeas petitions. Section 79.01 provides that a “person detained in custody” may by a writ of habeas corpus show “that he or she is detained without lawful authority,” entitling him or her to immediate release. The proper venue for these petitions is “the circuit court of the county in which the prisoner is detained.” § 79.09.

A habeas petition may not substitute as a vehicle to address issues that could have or should have been raised in a rule 3.850 proceeding. Baker v. State, 878 So.2d 1236, 1241 (Fla.2004). Rather, a petition for a writ of habeas corpus now applies only in those limited circumstances where the petitioner is not seeking to collaterally attack a final criminal judgment of conviction and sentence. Id.; see, e.g., Valdez-Garcia v. State, 965 So.2d 318, 321-22 (Fla. 2d DCA 2007) (holding that habeas corpus remedy remains available in areas including tests of pretrial detention and pretrial bond denial or excessive amount, and extradition challenges) (quoting State v. Broom, 523 So.2d 639, 641 (Fla. 2d DCA 1988)).

The legal paradigm for conversion of the petition hinges on the proper procedural vehicle for postconviction claims. The purpose of the great writ of habeas corpus is to “provide[] a constitutional remedy to assure the right to seek one’s freedom from detention whenever the law does not otherwise provide an adequate mechanism to obtain relief from illegal detention.” Valdez-Garcia, 965 So.2d at 322. A postconviction motion, not a habeas petition, is the proper mechanism to collaterally attack a judgment and sentence. Roy v. Wainwright, 151 So.2d 825, 827 (Fla.1963) (changing collateral-attack mechanism from habeas corpus petition to specific postconviction motion); Watts v. State, 985 So.2d 21, 22 (Fla. 2d DCA 2008).

Mr. Clough also recognizes that when a petitioner improperly seeks relief under section 79.01, the postconviction court may convert the petition to a rule 3.850 motion, absent a procedural bar. See Watts, 985 So.2d at 22; Curtis v. State, 870 So.2d 186, 186 (Fla. 2d DCA 2004). Mr. Clough filed his petition pursuant to section 79.01. The postconviction court properly treated it as a rule 3.850 motion because Mr. Clough was incarcerated in Gulf County and the claims raised in the petition collaterally attack his conviction and sentence. See Valdez-Garcia, 965 So.2d at 322.

However, Mr. Clough maintains that due process required that he receive prior notice of the postconviction court’s intent. With such notice, Mr. Clough argues, he could have withdrawn his petition or amended it to raise additional claims. He asserts, for example, that with notice, he could have easily amended his claims to assert ineffectiveness of counsel claims. Mr. Clough argues that any future post-conviction motion he may file will be barred as successive. See Fla. R. Crim. P. 3.850(h)(2).

We cannot agree with Mr. Clough’s prediction. A new rule 3.850 motion is not necessarily doomed to dismissal. After all, the decision to dismiss such a motion as successive is left to the postconviction court’s discretion:

A second or successive motion is an extraordinary pleading. Accordingly, a court may dismiss a second or successive motion if the court finds that it fails to allege new or different grounds for relief and the prior determination was on the merits or, if new and different grounds are alleged, the judge finds that the failure of the defendant or the attorney to assert those grounds in a prior motion constituted an abuse of the procedure or there was no good cause for the failure of the defendant or defendant’s counsel to have asserted those grounds in a prior motion.

Fla. R. Crim. P. 3.850(h)(2); see also Foster v. State, 614 So.2d 455, 458 (Fla.1992) (stating that, for a second motion alleging new and different grounds not to be dismissed as successive, the grounds asserted must not have been known and could not have been known at the time of the filing of the earlier motion and the justification for the failure to raise these grounds in the prior motion must be given).

We acknowledge that Mr. Clough’s argument is not without support. He points us to Castro v. United, States, 540 U.S. 375, 124 S.Ct. 786, 157 L.Ed.2d 778 (2003), which deals with the federal analog for postconviction relief. Mr. Castro challenged his federal drug conviction in a pro se motion for a new trial under Federal Rule of Criminal Procedure 33. Id. at 378, 124 S.Ct. 786. Because the claims were cognizable as federal habeas claims under 28 U.S.C. § 2255 (1997),- the district court recharacterized them as § 2255 claims and denied relief. Id. As here, the district court gave Mr. Castro no advance notice. Id. Mr. Castro did not challenge the recharacterization on appeal. Id. He subsequently filed what he viewed as his first § 2255 motion raising a new claim of ineffective assistance of counsel. Id. The district court concluded that this was a second § 2255 motion; it dismissed the motion because Mr. Castro had not obtained permission from the appeals court to file a second or successive § 2255 motion. Id. at 378-79, 124 S.Ct. 786. The Eleventh Circuit affirmed. Id. at 379, 124 S.Ct. 786.

The Supreme Court vacated the Eleventh Circuit’s opinion, holding, in part, that a district court’s power to recharac-terize a pro se litigant’s motion as a first § 2255 motion is limited:

[T]he district court must notify the pro se litigant that it intends to recharacterize the pleading, warn the litigant that this recharacterization means that any subsequent § 2255 motion will be subject to the restrictions on “second or successive” motions, and provide the litigant an opportunity to withdraw the motion or to amend it so that it contains all the § 2255 claims he believes he has.

Id. at 383, 124 S.Ct. 786. Mr. Clough urges a like procedure here. Two distinctions, however, are readily apparent. First, Castro is of no constitutional moment. The rule adopted by the Supreme Court is based on its supervisory powers over the federal judiciary. Id. at 382, 124 S.Ct. 786. Second, the Supreme Court adopted its rule in the context of an actually filed-and-denied successive federal habe-as petition under § 2255. In contrast, Mr. Clough seeks relief from us, anticipating what may happen if he ever decides to file a rule 3.850 motion.

We do not pass on the merits of Mr. Clough’s due process argument because ours is not an advisory role. We address concrete claims through the filter of thoughtful exposition before the trial or postconviction court. Unless and until Mr. Clough files a postconviction motion that may or may not be denied as successive, his alleged constitutional violations are theoretical. Quite simply, the issue is not ripe for review. See Anderson v. State, 18 So.3d 501, 522 (Fla.2009) (holding that a signed death warrant is necessary before a court can consider a claim that a prisoner cannot be executed due to incompetency); see also Hart v. State, 516 So.2d 58, 58 (Fla. 2d DCA 1987) (holding restitution claim premature because trial court had not entered a restitution order). We cannot examine an alleged harm that has not yet occurred and may never occur.

Accordingly, we affirm the postconviction court’s order denying, in part, and dismissing, in part, Mr. Clough’s converted rule 3.850 motion.

Affirmed.

VILLANTI and CRENSHAW, JJ., Concur.

      . As a rule 3.850 motion, the petition was timely filed and contained a proper oath. See Fla. R. Crim. P. 3.850(b), (c).

      . Mr. Clough has until sometime in November 2014 to file a rule 3.850 motion. See Fla. R. Crim. P. 3.850(b).

      . 28 U.S.C. § 2255 (1997) provided, in pertinent part, as follows:
      (a) A prisoner in custody under sentence of a court established by Act of Congress claiming the right to be released upon the ground that the sentence was imposed in violation of the Constitution or laws of the United States, or that the court was without jurisdiction to impose such sentence, or that the sentence was in excess of the maximum authorized by law, or is otherwise subject to collateral attack, may move the court which imposed the sentence to vacate, set aside or correct the sentence.

      (h) A second or successive motion must be certified as provided in section 2244 by a panel of the appropriate court of appeals to contain—
      (1) newly discovered evidence that, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing evidence that no reasonable factfinder would have found the movant guilty of the offense; or
      (2) a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court, that was previously unavailable.


text:
    Rubin SCHRON, Appellant, v. Richard NUNZIATA, as Personal Representative of the Estate of Elvira Nunziata, Deceased, Appellee.
    Nos. 2D12-5355, 2D12-5960.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2014.
    Rehearing Denied March 27, 2014.

      Stephen H. Grimes, Stacy D. Blank, and Joseph H. Varner, III, of Holland & Knight LLP, Tampa; and Barry Richard of Greenberg Traurig, P.A., Tallahassee, for Appellant.
    Isaac R. Ruiz-Carus, Bennie Lazzara, Jr., and Joanna M. Greber of Wilkes & McHugh, P.A., Tampa; and Stuart C. Markman, Kristin A. Norse, and Robert W. Ritsch of Kynes, Markman & Felman, P.A., Tampa, for Appellee.
   LaROSE, Judge.

In appellate case number 2D12-5355, Rubin Schron challenges a nonfinal order in which the trial court found that it had personal jurisdiction over him. We have jurisdiction. See Fla. R. App. P. 9.130(a)(3)(C)(i); Frier v. Frier, 13 So.3d 145, 146 (Fla. 1st DCA 2009) (explaining that where a trial court’s order actually makes a determination as to personal jurisdiction, the order falls within the scope of the rule allowing for an interlocutory appeal). Mr. Schron, who was impleaded into an underlying nursing home negligence case, argues that the trial court exercised personal jurisdiction over him based on inadequate pleadings, insufficient evidence, and spare due process. We reverse and remand for further proceedings.

The trial court entered an “order on order to show cause” that found personal jurisdiction over Mr. Schron. The order explicitly contemplated further judicial action. Indeed, the order provided that a final judgment would be entered by later separate order. We must reject the Estate’s suggestion that we ignore the nonfi-nal nature of the order because supplementary proceedings, see § 56.29, Fla. Stat. (2012), do not require the full panoply of due process protections as required in direct proceedings. Rule 9.130(a)(3)(C)(i) authorizes us to review nonfinal orders that determine jurisdiction over the person. Rule 9.130(f), Stay of Proceedings, provides that

[i]n the absence of a stay, during the pendency of a review of a non-final order, the lower tribunal may proceed with all matters, including trial or final hearing; provided that the lower tribunal may not render a final order disposing of the cause pending such review.

The order on appeal in case number 2D12-5355 is nonfinal. The order contains no unequivocal language of finality. See Hoffman v. Hall, 817 So.2d 1057, 1058 (Fla. 1st DCA 2002). Where, as here, some future order is contemplated, the order is nonfinal for our purposes. See id. In sum, the order is appealable under rule 9.130.

That the proceedings against Mr. Schron are supplementary is of no moment. Recently, in Fundamental Long Term Care Holdings, LLC v. Jackson-Platts, 110 So.3d 6, 7 (Fla. 2d DCA 2012), an estate claimed that nonfinal orders could not be appealed, relying heavily on cases that generally held that an order impleading a third party in supplementary proceedings was not appealable. Apparently, however, in those cases, the im-pleaded parties never sought to dismiss the proceedings for lack of personal jurisdiction. In Fundamental, we held that we had jurisdiction to review the nonfinal order pursuant to rule 9.130(a)(3)(C)(i). Fundamental, 110 So.3d at 11.

Furthermore, our record establishes that the parties submitted conflicting affidavits as to whether Mr. Schron was subject to personal jurisdiction in Florida. Where such conflict exists, the trial court must hold a limited evidentiary hearing to determine the jurisdiction issue. Venetian Salami Co. v. Parthenais, 554 So.2d 499, 503 (Fla.1989); Madonna v. Gaynor, 95 So.3d 990, 990-91 (Fla. 2d DCA 2012) (relying on Venetian Salami Co. and reversing and remanding for a proper evidentiary hearing to determine issue of personal jurisdiction; recognizing that it may be necessary for the parties to engage in discovery limited to the jurisdictional facts prior to the evidentiary hearing); WH Smith, PLC v. Benages & Assocs., Inc., 51 So.3d 577, 582 (Fla. 3d DCA 2010). And supplementary proceedings in Florida are not always merely ancillary; impleaded third parties must have an opportunity to raise defenses and protect their interests in a manner consistent with due process. Jackson-Platts v. Gen. Electric Capital Corp., 727 F.3d 1127, 1137 (11th Cir.2013) (citing Mejia v. Ruiz, 985 So.2d 1109, 1112 (Fla. 3d DCA 2008)).

The parties have constructed sweeping arguments about what should have oe-curred below and what remedy we should fashion. We decline to address those arguments. We rule on the narrow ground that there was conflicting evidence as to Mr. Schron’s amenability to personal jurisdiction in Florida; the trial court should have conducted a limited evidentiary hearing to resolve the issue. We do not foreclose the ability of the parties to raise with the trial court the nature and extent of jurisdictional discovery that may be needed on remand.

The appealable nonfinal order entered in appellate case number 2D12-5355 is reversed, and we remand the matter for further proceedings consistent with this opinion. The final judgment entered in appellate case number 2D12-5960 is vacated, and the appeal is dismissed.

VILLANTI and BLACK, JJ., Concur.

      . In the companion appeal, appellate case number 2D12-5960, Mr. Schron appeals the trial court’s supplementary final judgment holding him liable for $200 million in damages in the underlying case. We vacate the final judgment entered in 2D12-5960 and dismiss the appeal. The trial court was without jurisdiction to enter the final judgment. See Fla. R. App. P. 9.130(f); Benjamin v. Pore, 995 So.2d 543, 544 (Fla. 2d DCA 2008).

      . The patties have advised us that there are pending bankruptcy proceedings related to this case. We offer no comment as to the impact of those proceedings on this matter.


text:
    SCHOOL DISTRICT OF COLLIER COUNTY, Appellant, v. Beverly Brown FUQUA, Appellee.
    No. 2D13-602.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2014.
    Rehearing Denied March 5, 2014.

      Christopher D. Donovan of Roetzel & Andress, LPA, Naples, for Appellant.
    Beverly Brown Fuqua, pro se.
   LaROSE, Judge.

The Collier County School District (the District) appeals the final order of the Public Employees Relations Commission (PERC) that disregarded the hearing officer’s findings and recommended order regarding Dr. Beverly Brown Fuqua’s complaint alleging a violation of Florida’s veterans’-preference statutes. See §§ 295.07-295.09, Fla. Stat. (2012). We have jurisdiction. See Fla. R. App. P. 9.030(b)(1)(C). PERC improperly reweighed the hearing officer’s factual findings and substituted its own. Consequently, we reverse.

In 2012, Dr. Fuqua, already a teacher in the District, applied for a mathematics teaching position at East Naples Middle School, a Title I school. The position would require Dr. Fuqua to teach intensive mathematics to students performing poorly on the Florida Comprehensive Assessment Test (the FCAT). See § 1008.22(3)(c)(1) (providing for development and implementation of the FCAT), 1008.25(2)(b), (4) (requiring intensive instruction program for students who score below FCAT level 3 in mathematics). Dr. Fuqua served in the United States Marine Corps from 1960 to 1963. Accordingly, he claims entitlement to a veterans’ preference in state employment hiring. He is not, however, entitled to the position.

The District hired another applicant for the position; she is not a military veteran. Dr. Fuqua filed a complaint with PERC alleging that the District failed to afford him veterans’ preference. See § 295.11. PERC appointed a hearing officer who conducted an evidentiary hearing and prepared a recommended order urging dismissal of the complaint. See § 447.207(9)(c), Fla. Stat. (2012).

When a job candidate eligible for veterans’ preference challenges the employer’s hiring of a nonveteran, the candidate has the initial burden to demonstrate minimal qualifications and timely application. Thereafter, the employer must show that the hired nonveteran was more qualified. City of Deland v. Landolfi, 97 So.3d 869, 874 (Fla. 1st DCA 2012) (citing W. Coast Reg’l Water Supply Auth. v. Harris, 604 So.2d 892, 893 (Fla. 1st DCA 1992)). “More qualified” means the “applicant whose experience most closely encompasses the background an employer seeks in filling a position.” Zumwalt v. Palm Beach Cnty. Cmty. Coll, 16 FPER ¶ 12510 (1990). The job posting listed the minimal qualifications for the middle school position as (1) a bachelor’s degree in education or a related field, (2) basic computer skills, (3) Florida teacher certification, and (4) a current District employee.

The hearing officer’s recommended order explained that the school principal excluded Dr. Fuqua from consideration because, due to a flaw in the District’s online application process, Dr. Fuqua’s application did not reflect that he was a District employee. Nevertheless, the hearing officer continued on, finding that Dr. Fuqua met the minimal qualifications. Unfortunately for Dr. Fuqua, the hearing officer found another candidate to be better qualified.

The hearing officer carefully examined the candidates’ respective qualifications. Dr. Fuqua had one year of middle school experience in the District teaching mathematics. He had several months of substitute teaching experience in Massachusetts, teaching chemistry and mathematics. He was certified to teach middle school mathematics. He worked for Exxon Corporation for thirty years. He held an M.B.E. in Chemical Engineering, an M.S. in Management, a Ph.D in Chemistry, and had completed a graduate education course in mathematics teaching methods. The successful candidate earned an undergraduate degree in psychology and held a master’s degree in elementary education. She had three-and-a-half years’ teaching experience in a Title I school and, at the time of application, was teaching in the fifth grade. She was certified to teach middle school mathematics, knew the curriculum and area of instruction, and was recommended highly by her supervisor.

We acknowledge Dr. Fuqua’s impressive background. But, as the hearing officer observed, “[w]hile Dr. Fuqua’s educational background and prior job experience are not without some value in considering qualifications, the most important qualification for th[is] teaching position[ ] is prior relevant teaching experience.” He noted further that Dr. Fuqua had not explained how his prior work experience weighed in his favor. In contrast, the successful candidate’s three-and-a-half years of teaching experience exceeded that of Dr. Fuqua. Because she taught in a Title I school, she knew how to motivate students performing below grade level, which made her qualified beyond her years of experience. Indeed, her supervisor characterized her as an excellent, seasoned teacher who could “meet[ ] kids’ needs at their level, whatever level it may be, and build[ ] them up to grade level.” The hearing officer found that she was more qualified than Dr. Fu-qua and that the District did not violate the veterans’ preference law. Dr. Fuqua filed exceptions to the recommended order. See § 120.57(l)(b), Fla. Stat. (2012).

PERC’s final order adopted Dr. Fuqua’s exception disputing the factual finding that the other candidate was more qualified. PERC found that “Fuqua has significant educational credentials, experience teaching middle school mathematics, experience teaching remedial courses, and a specific certificate for teaching mathematics.... Fuqua is the only applicant with prior experience teaching middle school mathematics. The other candidate’s entire experience is in teaching elementary school students.” PERC concluded that “competent substantial evidence ... does not support the hearing officer’s decision that [the other candidate] is more qualified to teach this middle school math class.” PERC ordered the District to employ Dr. Fuqua in a middle-school mathematics or equivalent position at East Naples Middle School and compensate him for back pay. The District appealed. See §§ 447.504(1), 120.68, Fla. Stat. (2012).

The District argues that PERC improperly substituted its factual findings for those of the hearing officer. We must agree. Competent substantial evidence supported the hearing officer’s findings.

Dr. Fuqua’s and the successful candidate’s backgrounds differed, thus posing a factual dispute as to who was better qualified. Deciding which candidate is more qualified is a fact question for the hearing officer. See Harris, 604 So.2d at 893; Bush v. Brogan, 725 So.2d 1237, 1239 (Fla. 2d DCA 1999). An agency may not reject or modify the hearing officer’s factual findings unless it determines from reviewing the entire record that competent substantial evidence does not support them. Lantz v. Smith, 106 So.3d 518, 521 (Fla. 1st DCA 2013); Harris, 604 So.2d at 894. If the hearing officer’s factual findings are supported by competent substantial evidence, “the agency cannot reject them even to make alternate findings that are also supported by competent, substantial evidence.” Lantz, 106 So.3d at 521 (citing Resnick v. Flagler Cnty. Sch. Bd., 46 So.3d 1110, 1112-13 (Fla. 5th DCA 2010)); Gross v. Dep’t of Health, 819 So.2d 997, 1003 (Fla. 5th DCA 2002).

Even if the record contains evidence to support PERC’s alternate finding that Dr. Fuqua was more qualified, it unquestionably contains competent substantial evidence to support the hearing officer’s finding. It was within the hearing officer’s purview to weigh the facts and reach a factual determination as to who was the better suited candidate.

PERC improperly reweighed the evidence, substituted its factual findings, and reached a different result. See § 120.57(1)(Z), Fla. Stat. (2012) (agency may not reject or modify findings of fact unless not supported by competent substantial evidence). Therefore, we reverse and remand for PERC to enter an order adopting the hearing officer’s recommended order dismissing the complaint. See Lantz, 106 So.3d at 521-22.

Reversed and remanded with instructions.

ALTENBERND and KELLY, JJ„ Concur.

      . "Title I school” is a common term for a school that qualifies under 20 U.S.C. § 6301, the purpose of which is to "meet[] the educational needs of low-achieving children in our Nation’s highest-poverty schools ... close[] the achievement gap between high- and low-performing children ... [and] hold[ ] schools, local educational agencies, and States accountable for improving academic achievement of all students.” 20 U.S.C. § 6301 (2)-(4). PERC’s final order narrowly describes Title 1 as “a federal program for students on free or reduced lunch programs.”

      . 295.07. Preference in appointment and retention
      (1) The state and political subdivisions in the state shall give preference in appointment and retention in positions of employment to:

      (c) A veteran of any war as defined in s. 1.01(14). The veteran must have served at least 1 day during a wartime period to be eligible for veterans’ preference. Active duty for training shall not be allowed for eligibility under this paragraph.

      (2) The Department of Veterans’ Affairs shall adopt rules to ensure that veterans are given special consideration in the employing agency’s selection and retention processes. The rules must include the award of point values as articulated in s. 295.08, if applicable, or, where point values are not relevant, must include procedures to ensure that veterans are given special consideration at each step of the employment selection process.

      . Some of Dr. Fuqua’s Massachusetts mathematics students were in a remedial learning program. Dr. Fuqua’s application and resume, however, did not list any experience teaching remedial mathematics; thus, the school principal would not have had this information. The hearing officer normally did not consider information not available at the hiring stage, see Hrnris v. State, Pub. Emps. Relations Com’n, 568 So.2d 475, 478 (Fla. 1st DCA 1990), but decided to consider this supplemental information because Dr. Fuqua was not granted an interview at which he could have provided it.


author: PER CURIAM. ALTENBERND, Judge,

text:
    Joshua HARRINGTON, Petitioner, v. DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Respondent.
    No. 2D13-2651.
    District Court of Appeal of Florida, Second District.
    Feb. 5, 2014.
    Eilam Isaak, Tampa, for Petitioner.
    Stephen D. Hurm, General Counsel and Judson M. Chapman, Senior Assistant General Counsel of Department of Highway Safety & Motor Vehicles, Pinellas Park, for Respondent.
   PER CURIAM.

Denied.

NORTHCUTT and LaROSE, JJ„ Concur.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I fully concur in the denial of this petition for certiorari review. I write to explain that the petitioner’s reliance on Crooks v. State, 710 So.2d 1041 (Fla. 2d DCA 1998), is misplaced. A headnote to that opinion overstates and oversimplifies the holding in the case, which I happen to have authored. Mr. Crooks was not stopped on suspicion of driving under the influence when he was weaving in his lane or otherwise driving in a fashion that suggested he was impaired. On the interstate in the middle of the afternoon, one police car pulled in behind Mr. Crooks and another pulled along the driver’s side of his vehicle. When Mr. Crooks moved his car to the right, the officers stopped him for violating section 316.089(1), Florida Statutes (1995), which requires vehicles to be driven “as nearly as practicable entirely within a single lane.” No officer in Crooks suggested that he or she believed that Mr. Crooks might be intoxicated or otherwise impaired.

I do not regard Crooks as even persuasive precedent in a case where an officer stops a car late at night because the driver is weaving in a lane and there is no basis to believe that the driver is avoiding other traffic. Even when a vehicle manages to stay within a single lane, there are patterns of driving that an experienced officer may rely upon to establish reasonable suspicion that the driver is impaired. That suspicion allows the officer to conduct a brief traffic stop to determine whether the officer has probable cause to arrest the driver for DUI.


text:
    SIAM MOTORS, INC., Appellant, v. Daniel P. SPIVEY, Appellee.
    No. 2D11-3293.
    District Court of Appeal of Florida, Second District.
    Feb. 12, 2014.

      J. Stanford Lifsey of J. Stanford Lifsey, P.A., Tampa, for Appellant.
    No appearance for Appellee.
   SILBERMAN, Judge.

Siam Motors, Inc., appeals a final judgment in its action for damages against Daniel P. Spivey that arose from repairs Siam Motors made to Spivey’s 1976 Mercedes-Benz in late 2001 and early 2002. Siam Motors contends that the trial court erred in denying its motion in limine that sought to prevent Spivey from offering any evidence at trial because he did not comply with section 559.917(4), Florida Statutes (2001), by posting a cash or surety bond. This point has no merit, as explained below. Siam Motors also contends that Spi-vey waived a written estimate. We agree and reverse the court’s final judgment to the extent it determined that Siam Motors was not entitled to collect on its November 2001 invoice of $3220.

After Siam Motors made repairs to Spi-vey’s Mercedes, Spivey wrote two checks, one for $3220 for the invoice dated November 28, 2001, and one for $379.80 for the invoice dated February 27, 2002. Spivey left with his car. When he returned home, he called his bank and stopped payment on the checks. Siam Motors sought to collect on the two bad checks and sought treble damages. Spivey filed a counterclaim for the loss of use of his car.

In the final judgment, the trial court determined that the November 2001 invoice for $3220 was not in compliance with section 559.905, which governs written estimates and disclosure statements for motor vehicle repairs. The court further determined that even if Spivey waived the initial written estimate by leaving the vehicle at the shop with its keys, Siam Motors was still required to comply with the provisions of section 559.909(5). The court found that the November 2001 invoice did not meet the statute’s requirements and thus Siam Motors could not collect for work performed as reflected in that invoice. The court observed that but for this deficiency Siam Motors would be entitled to full payment. With respect to the February 2002 invoice, the trial court determined that Siam Motors complied with all statutory requirements and thus was entitled to the invoice amount of $379.80 and treble damages. The trial court found against Spivey on his counterclaim for the loss of use of his car.

Siam Motors contends on appeal that the trial court should have granted its motion in limine and prevented Spivey from introducing any evidence at trial because he did not post a cash or surety-bond as section 559.917(4) requires. The trial court heard this motion just before trial, and the appellate record contains no transcript of the hearing. The trial court’s order denying the motion states that the court relied upon the motion, argument of counsel, and the statute in making its decision. A reading of the statute shows that it is not applicable to the present case.

Section 559.917(4) requires the posting of a cash or surety bond to obtain “any recourse under this section with respect to the motor vehicle repair shop.” § 599.917(4) (emphasis added). Section 559.917 deals with bonds to release posses-sory liens claimed under part II of chapter 713, Florida Statutes, by the motor vehicle repair shop. In the present case, Siam Motors did not retain possession of Spi-vey’s car and did not claim a lien under part II of chapter 713. Thus, the statute is inapplicable, and the trial court properly denied Siam Motors’ motion in limine.

But Siam Motors also argues that Spivey waived any written estimate required by section 559.905(1) because he delivered the car to Siam Motors when the shop was closed. See § 559.905(5). The trial court correctly stated in the final judgment that even if Spivey waived the initial written estimate by leaving the vehicle at the shop with its keys, Siam Motors was still required to comply with section 559.905(5). Section 559.905(5) states that “upon completion of diagnostic work necessary to estimate the cost of repair, the shop shall notify the customer as required in s. 559.909(1).” The trial court stated that section “559.909(1) requires a written estimate in the event that the contemplated repairs exceed the initial expectation, and requires that the customer authorize additional work to proceed.” However, the applicable portion is section 559.909(l)(c), which provides as follows:

(1) In the event that:
(c) An implied partial waiver exists for diagnostic work, as described in s. 559.905(5), and such diagnostic work has been completed,
the customer shall be promptly notified by telephone, telegraph, mail, or other means of the additional repair work and estimated cost thereof. A customer so notified shall, orally or in writing, authorize, modify, or cancel the order for repair.

Thus, section 559.909(1) allows for notification of the customer by telephone of any additional repair work and its estimated cost. Section 559.909(1) also allows the customer to orally authorize the order for repair. Therefore, the trial court misconstrued the statute when it stated that the November 2001 written invoice did not comply with the statute. In its findings of fact, the trial court found that Siam Motors called Spivey and provided him with a verbal estimate of the needed repairs to the engine. The court did not make a finding that Spivey cancelled the order for repair. Rather, the court found that after the repairs were made, Spivey test drove the car, said he was satisfied with the repairs, wrote two checks for the two invoices, and left with his car.

Even without a trial transcript, the appellate court can reverse when the trial court makes an error of law on the face of the judgment. See Mobley v. Mobley, 18 So.3d 724, 727 (Fla. 2d DCA 2009). Because the trial court interpreted section 559.909(1) to require a written estimate when one was not required under the present circumstances, we reverse the final judgment to the extent that the trial court found that Siam Motors cannot collect on the November 2001 invoice of $3220. In light of the trial court’s factual findings, on remand Siam Motors is entitled to judgment on both the November 2001 invoice and the February 2002 invoice.

Affirmed in part, reversed in part, and remanded.

CASANUEVA and MORRIS, JJ., Concur.

      . Siam Motors originally filed a small claims action in county court. Spivey filed a counterclaim and alleged damages in excess of $15,000. The action was removed to the circuit court in 2009.