text:
    STATE of Florida, Department of Corrections, Appellant, v. Carolann BRACEWELL and Ted Jeter, Appellees.
    CASE NO. 1D16-149
    District Court of Appeal of Florida, First District.
    Opinion filed May 19, 2017
    Rehearing Denied July 13, 2017

      Jeffrey Slanker and Robert J. Sniffen of Sniffen & Spellman, P.A., Tallahassee, for Appellant.
    Marie A. Mattox and Erika Esan Goodman of Marie A. Mattox, P.A., Tallahassee, for Appellees.
   PER CURIAM.

The Florida Department of Corrections (DOC) appeals a final judgment in favor of Carolann Bracewell and Ted Jeter (Appel-lees) following a jury trial on their complaint for violation of the Florida public sector Whistle-blower’s Act (FWA). Appel-lees alleged that DOC terminated their employment in retaliation for complaints they made to DOC’s Office of the Inspector General (OIG) concerning one of its inspectors. Acknowledging that the decision makers at DOC who terminated Ap-pellees’ employment did not harbor any retaliatory animus, Appellees proceeded under a cat’s paw theory of liability to hold DOC vicariously liable for the biased actions of the OIG inspector. On appeal, DOC argues that the trial court erred in denying DOC’s motions for a directed verdict and for judgment in accordance with motion for directed verdict. Because we agree with DOC that the cat’s paw theory of liability is inapplicable in this case as a matter of law, we reverse and remand for the trial court to enter judgment in favor of DOC.

I.

Jeter was the Warden at Jackson Correctional Institution (JCI) and Bracewell was the Assistant Warden. In July of 2011, two inmates sought medical attention from JCI’s infirmary. The inmates were kept in the infirmary over the weekend and were admitted to a hospital the following Monday. Following one of the inmate’s complaint alleging he had received poor medical treatment, the OIG assigned inspector Julie Mader to investigate the matter.

Soon thereafter, Appellees complained several times to Mader’s supervisors about the way she was conducting the investigation and also accused her of HIPAA violations and improperly accessing the driving records and history of Jeter and his brother. As a result of Appellees’ complaints, the OIG removed Mader from the investigation in December of 2011 and assigned two new inspectors, Louis Cordova and Michael Harrison, to the on-going investigation. Although Mader was no longer permitted to actively participate in the investigation, she did confer with Cordova and Harrison and provided them with clerical assistance, including typing summaries -of recordings of witness interviews for the final investigative report. Mader had interviewed some witnesses by the time Cordo-va and Harrison took over the investigation, but the majority of the interviews were conducted by the new inspectors who also interviewed Appellees. In addition, Cordova. and Harrison were responsible for reviewing the accuracy of all witness interview summaries prepared by Mader before they were included in the final report. ,

Through- their investigation,. Cordova and Harrison determined that Appellees, along with other DOC employees, committed numerous violations of DOC policies. The general content, specific findings, and final conclusions of the report were reached solely by Cordova and Harrison. The report did not include disciplinary recommendations for any of DOC’s employees.

In March of 2012, Cordova and Harrison submitted their report to the then-Secretary of the DOC, Kenneth Tucker, Deputy DOC Secretary Michael Crews and Assistant DOC Secretary over Institutions Tim Cannon reviewed the OIG’s report and made recommendations to Secretary Tucker. Secretary Tucker was the decision maker who determined what, if any, tangible employment action would be taken against DOC employees who were found to have violated DOC policies. Ultimately, Secretary Tucker terminated Appellees’ employment in May of 2012.

Appellees filed a civil complaint against DOC alleging a single violation of the FWA. Because there was no evidence of retaliatory bias by those DOC .employees who were involved in the decision to terminate Appellees (namely, Secretary Tucker, Deputy Secretary Crews, and Assistant Secretary Cannon), Appellees relied on the cat’s paw theory alleging that DOC was vicariously liable for the biased actions of OIG inspector Mader. Appellees claimed that Mader harbored retaliatory bias against them for reporting her misconduct during the investigation and that she acted with the intent to cause DOC to terminate Appellees by influencing the OIG’s final report. Thus, according to Appellees, Mad-er’s.bias should be imputed to DOC decision makers because DOC relied on the OIG’s tainted investigation when making the final decision to terminate Appellees.

DOC moved for a directed verdict at the close of Appellees’ case and again at the close of all evidence. Regarding the cat’s paw theory, DOC argued that in order to find liability, the law required the decision maker to “rubber-stamp” the recommendations of the individual with the biased retaliatory motive, and there was no evidence that Mader or anyone at the OIG made any disciplinary recommendations. The trial court denied both motions. The jury returned a verdict in favor of Appel-lees, and DOC moved for a new trial and for judgment in accordance with the motions for directed verdict. In addition to its previous arguments regarding the cat’s paw theory, DOC argued that the replacement of Mader with inspectors Cordova and Harrison removed any potential taint and that even if the cat’s paw theory could apply, there was no evidence that the alleged actions of Mader were the proximate cause of Appellees’ termination. Relying on Staub v. Proctor Hospital, 562 U.S. 411, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011), DOC also argued that none of the OIG employees were Appellees’ supervisors or had the authority to take any tangible employment action, against Appellees, and OIG’s investigation was- independent from DOC’s decision makers. The trial court denied those motions as well.

II.

This Court reviews denials of motions for directed verdicts and motions for judgment in accordance with motions for directed verdict de novo. New Jerusalem Church of God, Inc. v. Sneads Cmty. Church, Inc., 147 So.3d 25, 28 (Fla. 1st DCA 2013). The evidence must be viewed in the light most favorable to the non-moving party and every reasonable conclusion must be construed favorably to the non-movant. Johnson v. Swerdzewski, 935 So.2d 57, 60 (Fla. 1st DCA 2006).

III.

The FWA makes it unlawful for an employer to retaliate against an employee because the employee has engaged in conduct protected by the statute. Robinson v. Dep’t. of Health, 89 So.3d 1079, 1081 (Fla. 1st DCA 2012) (citing §§ 112.3187(8)(a); 112.31895, Fla. Stat.). At trial, Appellees did not contend that the decision makers in this case — Secretary Tucker, Deputy Secretary Crews, and Assistant Secretary Cannon — -were personally motivated by retaliatory animus in their decision to terminate Appellees. Rather, Appellees’ position was that Mader used these decision makers as a “cat’s paw” to effectuate her retaliatory intent.

The “cat’s paw” metaphor derives from a seventeenth-century French fable involving a conniving monkey who convinces a cat to reach into a fire to retrieve roasting chestnuts. The cat burns its paws in the process and the monkey escapes unscathed with the chestnuts. In the employment law context, cat’s paw liability refers to a situation in which a biased subordinate, who lacks decisionmaking power, “clearly causes the tangible employment action, regardless of which, individual actually signs the employee’s walking papers.” Llampallas v. Mini-Circuits, Lab, Inc., 163 F.3d 1236, 1249 (11th Cir. 1998). “In other words, by merely effectuating or ‘rubber-stamp[ing]’ a discriminatory employee’s ‘unlawful design,’ the employer plays the credulous cat to the malevolent monkey and, in so doing, allows itself to get burned — i.e., successfully sued.” Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 272 (2d Cir. 2016) (citation omitted).

Relatively recently, ;the United States Supreme Court approved the application of the cat’s paw theory in an employment discrimination case involving the Uniformed Services Employment and Reemployment Rights Act of 1994 (“USERRA”), 38 U.S.C. § 4311, a statute “very similar to Title VII.” Staub v. Proctor Hosp., 562 U.S. 411, 417, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011). In Staub, the Court considered “the circumstances under which an.employer may be held liable for employment discrimination based on the discriminatory animus of an employee who influenced, but did not make, the ultimate employment decision.” Id. at 413, 131 S.Ct. 1186. Applying general principles of agency law, the Court held that a plaintiff may establish cat’s paw liability under USERRA “if a supervisor performs an act motivated by [discriminatory] animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate employment action.” Id. at 422, 131 S.Ct. 1186 (footnote omitted).

A.

As a threshold matter, DOC argues that it cannot be held hable in this case under a cat’s paw theory of liability because Mader did not hold a supervisory role relative to Appellees. In support of its position, DOC emphasizes that the Supreme Court expressly limited its holding in Staub to the discriminatory acts of a supervisor as the proverbial monkey. 562 U.S. at 422 n.4, 131 S.Ct. 1186 (noting that “[w]e express no view as to whether the employer would be liable if a co-worker, rather than a supervisor, committed a discriminatory act that influenced the ultimate employment decision”). To be precise, the Court actually left the question open for another day. The issue of which biased employees may subject their employer to cat’s paw liability has been percolating in the lower federal courts since with no definitive consensus emerging.

B.

In evaluating the vicarious liability of an employer under the cat’s paw theory, the Court in Staub was guided by general principles of agency law. 562 U.S. at 421, 131 S.Ct. 1186. The Court elaborated on the limiting principles of agency law by noting that an employer is liable under cat’s paw causation only “when the supervisor acts within the scope of his employment, or when the supervisor acts outside the scope of his employment and liability would be imputed to the employer under traditional agency principles.” Id. at 422, 131 S.Ct. 1186 n.4 (citing Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 758, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)). In Ellerth, the Court had previously defined the bounds of vicarious liability in Title VII cases as encompassing employer liability for the acts of its employees holding supervisory positions or other actual power to make tangible employment decisions. Id. at 762, 118 S.Ct. 2257 (holding that “[a]s a general proposition, only a supervisor, or other person acting with the authority of the company,” can undertake a tangible employment action).

Subsequently, in Vance v. Ball State University, the Court answered the question left unresolved by Ellerth: “who qualifies as a ‘supervisor’ in a case in which an employee asserts a Title VII claim for workplace harassment?” — U.S. —, 133 S.Ct. 2434, 2439, 186 L.Ed.2d 565 (2013). The Court held that

an employer may be vicariously liable for an employee’s unlawful harassment only when the employer has empowered that employee to take tangible employment actions against the victim, i.e., to effect a “significant change in employment status, such as hiring, firing, failing to promote, reassignment with significantly different responsibilities, or a decision causing a significant change in benefits.”

Id. at 2443 (quoting Ellerth, 524 U.S. at 761, 118 S.Ct. 2257). In setting the legal background for its analysis, the Court noted that “an employer is directly liable for an employee’s unlawful harassment if the employer was negligent with respect to the offensive behavior,” and that courts generally apply that rule “when a co-worker harasses the plaintiff.” Id. at 2441. When a supervisor is the harasser, different rules apply and “an employer may be vicariously liable.” Id. (emphasis omitted). In its analysis, the Court noted that its decision in EUerth recognized that “ ‘most workplace tortfeasors are aided in accomplishing their tortious objective by the existence of the agency relation,’ and consequently ‘something more’ is required in order to warrant vicarious liability.” Id. at 2447-48. The Court explained its position that negligence was the more appropriate claim when the harassing employee is not a supervisor as follows:

The ability to direct another employee’s tasks is simply not sufficient. Employees with such powers are certainly capable of creating intolerable work environments, ..., but so are many other coworkers. Negligence provides the better framework for evaluating an employer’s liability when a harassing employee lacks the power to take tangible employment actions.

Id. at 2448 (internal citation to dissent omitted). In response to the plaintiffs contention that the Court’s definition of supervisor status would “encourage employers to attempt to insulate themselves from liability for workplace harassment by empowering only a handful of individuals to take tangible employment actions,” the Court explained:

As an initial matter, an employer will always be liable when its negligence leads to the creation or continuation of a hostile work environment. And even if an employer concentrates all decision-making authority in a few individuals, it likely will not isolate itself from heightened liability under Faragher and Ellerth. If an employer does attempt to confine decisionmaking power to a small number of individuals, those individuals will have a limited ability to exercise independent discretion when making decisions and will likely rely on other workers who actually interact with the affected employee. Under those circumstances, the employer may be held to have effectively delegated the power to take tangible employment actions to the employees on whose recommendations it relies.

Id. at 2452 (citations omitted) (emphasis added).

Turning back to the case at hand, Appel-lees have not directed this Court to any case of precedential value that has extended the outer contours of vicarious liability beyond a supervisor or a subordinate with authority to recommend or take tangible employment action. As persuasive authority for their position, Appellees rely on an unreported decision by the United States District Court for the Middle District of Alabama to support their argument that cat’s paw liability is appropriate in this case. See Shirley v. Hyundai Motor Mfg. Ala., LLC, No. 2:15cv346-WHA, 2016 WL 3007139 (M.D. Ala. May 24, 2016). In that case, the plaintiffs co-worker complained of racial discrimination to Hyundai’s Team Relations Department. Id. at *2. That department conducted an investigation and prepared a memo confirming the co-worker’s allegations, but it did not make any disciplinary recommendations. Id. The memo was reviewed by the head of the Human Resources Department who then decided to demote the plaintiff. Id. at *3. Relying on the cat’s paw theory, the plaintiff alleged that the memo was drafted by a biased non-supervisory investigator within the Team Relations Department who manipulated the head of the Human Resources Department into taking disciplinary' action against the plaintiff. Id. at *4. Although the court denied a summary judgment motion for the employer, there is no analysis of agency principles of liability and the decision does not mention the Supreme Court’s decision in Statib. See id. at *6. Nor is there any discussion of the organizational hierarchy or interrelationship between the two departments at Hyundai, though it appears that they were within the same chain of command. Id.

IV.

Applying the cat’s paw theory of liability to the facts of this case would” require us to stretch the bounds of existing authority in a manner that would arguably have no limiting principles. While Mader was involved in the investigation of Appel-lees’ misconduct at some level, she was not Appellees’ supervisor, she did not have apparent or delegated authority to take tangible employment action against Appel-lees, and she was not empowered by DOC or the OIG to make findings of fact or recommendations regarding Appellees’ discipline. Stated differently, there was nothing provided by Mader. for DOC to rubber-stamp or blindly follow, and therefore any retaliatory animus that she possessed could not have resulted in vicarious liability to DOC under the cat’s paw theory. Because the trial court erred in denying DOC’s motions, we reverse and remand the case for entry of a judgment in favor of DOC. This ruling renders moot the remaining'issue on appeal.

REVERSED and REMANDED.

WOLF, RAY, and MAKAR, JJ., CONCUR.

      . Both parties submit that the standard in Staub is instructive in this case because the FWA is analyzed in accordance with Title VII. However, neither party addressed the extent to which the Supreme Court's decision in University of Texas Southwestern Medical Cen

        ter v. Nassar, — U.S. —, 133 S.Ct, 2517, 186 L.Ed.2d 503 (2013), holding that but-for causation is the standard for proving retaliation in a Title VII case, alters the analysis in a cat’s paw case.

      . We specifically do not address whether an employer may be held liable for an employee’s retaliatory intent, regardless of the employee's role within the organization, under a negligence-based approach to cat’s paw liability. See Vasquez v. Empress Ambulance Serv., Inc., 835 F.3d 267, 273-74 (2d Cir. 2016) (holding that an employer may be liable under Title VII “when, through its own negligence, the employer gives effect to the retaliatory intent of one of its — even low-level— employees”). Such a theory was not advanced in this case.


source: Caselaw Access Project

author: SCALES, J.

license: Public Domain

text:
    GIBRALTAR PRIVATE BANK & TRUST, Petitioner, v. Walter SCHACHT, Respondent.
    No. 3D17-814
    District Court of Appeal of Florida, Third District.
    Opinion filed May 24, 2017

      Shook, Hardy & Bacon LLP, and Daniel B. Rogers, for petitioner.
    Weil Quaranta, P.A., and Ronald Weil, and Mary Olszewska, for respondent.
    Before ROTHENBERG, SCALES and LUCK, JJ.
   ON MOTION TO RELINQUISH JURISDICTION

SCALES, J.

The parties move this Court to relinquish jurisdiction to allow the lower court to enter a stipulated, amended order that would vacate the trial court’s earlier order, rendering this certiorari proceeding moot. For the following reasons, we treat the motion to relinquish jurisdiction as a motion seeking an extension of time for respondent to file a response to the petition, and grant same.

In March 2017, the trial court entered a non-final order compelling the deposition of Gibraltar Private Bank & Trust’s corporate representative. Gibraltar, the defendant below, argues that the trial court’s March 2017 order requires the disclosure of privileged and protected information, Gibraltar filed a petition with this Court seeking certiorari review of the trial court’s March 2017 order.

We ordered the plaintiff, Walter Schacht, to file a response. Prior to Schacht filing any response, the parties jointly filed the instant motion with this Court requesting that we relinquish jurisdiction to allow the lower court to enter a stipulated, amended order.

We decline to adjudicate the parties’ motion to relinquish jurisdiction because the motion is unnecessary. While a trial court is without jurisdiction to vacate a non-final order which has been appealed, a party’s filing of a certiorari petition challenging an interlocutory discovery order does not divest the trial court of jurisdiction. See Curry v. State, 880 So.2d 751, 755-56 (Fla. 2d DCA 2004). Absent a stay, the filing of such a petition has no effect on the lower court’s ability to proceed to adjudicate the case. Id. at 756.

The parties’ motion seeks a relinquishment for forty-five days to allow the trial court to revisit its March 2017 order. In light of the above, we treat the parties’ motion as seeking a forty-five day extension of time for Schacht to file his response to Gilbratar’s petition, and grant same. If the trial court enters an amended order rendering its March 2017 order moot, then Gilbralter should simply file a notice of dismissal of its certiorari petition as contemplated in Florida Rule of Appellate Procedure 9.350(b).

Motion for extension of time granted.

      . Soles v. Soles, 536 So.2d 367 (Fla. 1st DCA 1988) (concluding that the lower court exceeded its concurrent jurisdiction in clarifying and modifying a non-final order after the appellant had filed a notice of appeal of the non-final order); see also Fla. R, App. P. 9.130(f) ("In the absence of a stay, during the pen-dency of a review of a non-final order, the lower tribunal may proceed with all matters, including trial or final hearing, except that the lower tribunal may not render a final order disposing of the cause pending such review absent leave of the court.”).


author: Warner, J.

text:
    DFG GROUP, LLC., a Florida Limited Liability Company d/b/a The Gardens; Heritage Manor of Memorial Park, Inc., a Florida corporation; and Memorial Park of Boca Raton, Inc., a Florida corporation, Appellants, v. Mark S. STERN, Appellee.
    No. 4D16-2590
    District Court of Appeal of Florida, Fourth District.
    May 24, 2017

      David C. Borucke of Cole, Scott & Kis-sane, P.A., Tampa, and Lee M. Cohen and Ian Koven of Cole, Scott & Kissane, P.A., West Palm Beach, for appellant DFG Group, LLC.
    David H. Charlip of Charlip Law Group, LC, North Miami, for appellee.
   Warner, J.

Appellant DFG Group challenges the trial court’s order approving a class action with appellee as the class representative in this litigation over alleged violations of the Florida Deceptive and Unfair Trade Practices Act (“FDUTPA”) in connection with the purchase of mausoleum crypts. §§ 501.201-.213, Fla. Stat. (2012). Appellant claims that appellee lacks standing to be a class representative as it made no representations to him to give rise to any liability, and it is not liable for FDUTPA violations by its predecessor. We agree and reverse.

The initial complaint, which was not filed as a class action, alleged that appellee, Mark S. Stern, through his companion, purchased a crypt in Heritage Manor Memorial Park of Boca Raton in 1999. At the time, Stern alleged that representatives of Heritage Manor made several material representations to him: 1) the North Sanctuary was designated and reserved only for the burial or encrypting of the remains of persons of the Jewish faith; 2) the North Sanctuary construction was to include certain materials and/or design elements; and 3) the interior crypts and niches sold as “chapel view” in the North Sanctuary would remain as “chapel view” crypts and niches.

After Stern’s purchase, Heritage Manor sold the cemetery to DFG Group, d/b/a “The Gardens.” Thereafter, Stern made several visits to the cemetery over the years and discovered that not all persons buried in the North Sanctuary appeared to be of the Jewish faith; the North Sanctuary was being redesigned and did not include the same design elements represented to him at his purchase; and his crypt no longer had a chapel view.

Although he had negotiated the right to sell his crypt back to Heritage Manor in his purchase contract (a provision unique to his agreement), Stern sued Heritage Manor and DFG in 2012 for FDUTPA violations and violations of the Funeral, Cemetery, and Consumer Services Act. The complaint alleged various misrepresentations, all of which were made by Heritage Manor representatives. The deceptive acts concerned marketing that the North Sanctuary of the Mausoleum was to be exclusively Jewish; the sanctuary was intended to be “beautiful” with specific attributes (stained glass, high ceiling, inlaid with gold leaf); and the “chapel view” for which he and class members paid a premium would remain a chapel view. Sometime after the filing of the complaint, Heritage Manor settled with Stern and ceased to be a party to the proceedings.

Three years later, Stern moved to amend his complaint to allege a class action and for class certification, seeking to represent the class. After a hearing, the trial court certified three subclasses to include “[a]ll natural persons and business entities who purchased a crypt or niche from DFG Group, LLC or its predecessor based upon deceptive or unfair representations” related to the North Sanctuary being dedicated to..the Jewish faith, being built with certain design elements, and maintaining the “chapel view” of certain crypts and niches.

DFG appeals from this order. Initially, DFG • contends that Stern lacks standing to bring a class action against it because it made no representations to Stern, nor did Stern purchase any crypts from DFG. Further, DFG contends' that it did not assume any FDUTPA liability in its asset purchase agreement with Heritage. The issue of standing is reviewed de novo. See Sosa v. Safeway Premium, Fin. Co., 73 So.3d 91, 116 (Fla. 2011). We agree that Stern lacks standing.

“The standing of the class representative is a threshold inquiry that must be addressed and answered in determining commonality and typicality of a class,” Neighborhood Health P’ship, Inc. v. Fischer, 913 So.2d 703, 706 (Fla. 3d DGA 2005). Where the purported class representative has no live claim against the defendant, the class should not be certified. Id.; see also Olen Props. Corp. v. Moss, 981 So.2d 515, 517 (Fla. 4th DCA 2008); United Auto. Ins. Co. v. Diagnostics of S. Fla., Inc., 921 So.2d 23, 25 (Fla. 3d DCA 2006).

“[A] consumer claim for damages under FDUTPA has three elements: (1) a deceptive act or unfair practice; (2) causation; and (3) actual damages.” Rollins, Inc. v. Butland, 951 So.2d 860, 869 (Fla. 2d DCA 2006), Stern did not purchase any crypt from DFG. DFG. made no representations to him to induce him to enter into a purchase contract. Therefore, he suffered no injury caused by representations made by DFG. Wooden v. Bd. of Regents of the Univ. Sys. of Ga., 247 F.3d 1262, 1288 (11th Cir. 2001) (“[J]ust as a plaintiff cannot pursue an individual claim unless he proves standing, a plaintiff cannot represent a class unless he has standing to raise the claims of the class he seeks to represent.”).

In addition, DFG has no liability for any possible FDUTPA claim Stern may have had against Heritage, In Bernard v. Kee Manufacturing Co., 409 So.2d 1047 (Fla. 1982), the court established the requirements to impose liability on a successor for the liabilities of a selling predecessor:

The vast majority of jurisdictions follow the traditional corporate law rule which does not impose the liabilities of the selling predecessor upon the buying successor company unless (1) the successor expressly or impliedly assumes obligations of the predecessor, (2) the transaction is a de facto merger, (3) the successor is a mere continuation of the predecessor, or (4) the transaction is a fraudulent effort to avoid liabilities of the predecessor.

Id. at 1049; see also Caplan v. 1616 E. Sunrise Motors, Inc., 522 So.2d 920, 921 (Fla. 3d DCA 1988) (purchaser of an automobile dealership was not liable for Lemon Law violations of its predecessor- because none of the exceptions to the general rule of successor liability as set forth in Bernard were present).

In this case, the purchase and sale contract between Heritage and DFG constituted an asset purchase agreement. In it, DFG agreed to assume the contractual liabilities of.Heritage as well as the development of the cemetery. None of the exceptions to the general rule against successor liability listed in Bernard were present. Thus, while DFG may be liable for any violations of the contract between Stern and Heritage, it did not assume liability for any torts or. fraudulent misrepresentations made by Heritage.

Because Stern lacks standing to pursue FDUTPA claims against DFG, the trial court erred in granting class certification and class representative status. We thus reverse the order of the trial court and remand for further proceedings.

Gross and Forst, JJ., concur.


author: PER CURIAM.

text:
    Leo RAINS, Appellant, v. James C. BANKS, Appellee.
    CASE NO. 1D16-1166
    District Court of Appeal of Florida, First District.
    Opinion filed May 25, 2017.
    Rehearing Denied July 11, 2017
    Leo Rains, pro se, Appellant.
    No appearance, for Appellee.
   PER CURIAM.

AFFIRMED. Cf. DeGregorio v. State, 205 So.3d 841 (Fla. 2d DCA 2016) (reversing denial of petition upon unsworn pleadings; remanding for evidentiary hearing to determine if counsel had turned over all records); Radford v. Brock, 914 So.2d 1066 (Fla. 2d DCA 2005) (reversing dismissal of petition prior to response and without sworn evidence; remanded for further proceedings).

WOLF, RAY, and BILBREY, JJ., CONCUR.


author: SALTER, J.

text:
    WEST FLAGLER ASSOCIATES, LTD., Appellant/Cross-Appellee, v. The STATE of Florida, Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering, Appellee, and Hartman and Tyner, Inc., and H & T Gaming, Inc., Appellees/Cross-Appellants.
    No. 3D16-2255
    District Court of Appeal of Florida, Third District.
    Opinion filed May 31, 2017.

      Akerman LLP and Katherine E. Gid-dings and Kristen M. Fiore (Tallahassee), and Gerald B. Cope, Jr., and Tamara S. Malvin (Fort Lauderdale), for Appellant/Cross-Appellee.
    Jason Maine, General Counsel, and Che-vonne Christian, Assistant General Counsel, and Dwight O. Slater, Chief Appellate Counsel (Tallahassee), for appellee Department of Business and Professional Regulation, Division of Pari-Mutuel Wagering.
    Rutledge Ecenia and J. Stephen Menton and Gary R. Rutledge and Tana D. Storey and Gabe F.V. Warren (Tallahassee), for appellees/cross-appellants Hartman and Tyner, Inc. and H & T Gaming, Inc.
    Before ROTHENBERG, SALTER and FERNANDEZ, JJ.
   SALTER, J.

West Flagler Associates, Ltd. (“West Flagler”), appeals an order of the Department of Business and Professional Regulation’s Division of Pari-Mutuel Wagering (“DPMW”) concluding that DPMW was “unable to answer” West Flagler’s amended petition for a declaratory statement. Two entities which sought leave to intervene in the administrative proceeding (Hartman and Tyner, Inc., and H & T Gaming Inc.) cross-appeal DPMWs denial of their motion to intervene as moot.

We reverse and remand DPMW’s order with directions to consider and rule upon both West Flagler’s amended petition and the cross-appellants’ motion to intervene, We decline West Flagler’s request to render a “complete determination” (Florida Rule of Appellate Procedure 9.040(a)) of the legal issues in West Flagler’s amended petition.

Background and Procedural History

West Flagler holds a pari-mutuel permit to conduct greyhound racing in Miami-Dade County. Under a separate license, West Flagler also operates slot machine gaming in the County. The greyhound racing facility, known as Magic City Casino, qualified as an “eligible facility” for the slot machine gaming under the 2004 Florida constitutional amendment authorizing slot machines, article X, section 23, and the legislation implementing the amendment, section 551.102(4), Florida Statutes (2016).

West Flagler also holds a pari-mutuel permit to operate a jai alai fronton in Miami-Dade County. Before implementing a business plan to substitute jai alai operations for the greyhound racing at the Magic City Casino facility, West Flagler sought a declaratory statement from DPMW that the jai alai facility would remain qualified as an “eligible facility” for slot machine operations. In its amended petition to DPMW, West Flagler inquired:

Question 1: Whether West Flagler’s facility located at 450 NW 37th Avenue, Miami, Florida, 33126, must continue to run the same type of racing or gaming that first qualified the facility to become an “eligible facility” pursuant to section 551.102(4), Florida Statutes.
Question 2: Whether, pursuant [to] section 551.102(4), Florida Statutes, West Flagler may discontinue the operation of greyhound races and instead operate a full schedule of jai alai performances in order to maintain its “eligible facility” status to continue to conduct slot machine operations.

The cross-appellants, essentially competitors through their Mardi Gras Casino and Racetrack entities, sought leave to intervene in opposition to West Flagler’s amended petition. West Flagler opposed the motion to intervene.

DPMW then issued its “Order Declining Petition for Declaratory Statement,” concluding that it could not “define certain undefined terms used in both Art. X, sect. 23(a) of the Florida Constitution and in section 551.102(4), Florida Statutes.” Citing cases such as PPI v. Florida Department of Business & Professional Regulation, Division of Pari-Mutuel Wagering, 917 So.2d 1020 (Fla. 1st DCA 2006), the Order determined that DPMW could not interpret constitutional language and issues and that it was “unable to answer the questions posed in the Petition.” The Order denied the Mardi Gras entities’ motion to intervene as moot. This appeal and cross-appeal followed.

Analysis

The controlling question — whether the amended petition required an interpretation of the constitutional amendment as opposed to an interpretation of the implementing statutory and rule provisions — is an issue of law which we review de novo. Adventist Health Sys./Sunbelt, Inc. v. Agency for Health Care Admin., 955 So.2d 1173 (Fla. 1st DCA 2007). Declaratory statements permit parties to “avoid costly administrative litigation by selecting the proper course of action in advance.” Id. at 1176 (quoting Chiles v. Dep’t of State, Div. of Elections, 711 So.2d 151, 154 (Fla. 1st DCA 1998)).

DPMW acknowledges that it would have to decide the questions presented by West Flagler if the issues were presented in a license application. §§ 551.105(1), (3), Fla. Stat. (2016). In the present case, DPMW need not interpret or apply a constitutional provision. The constitutional amendment itself provided authority to the Florida Legislature to adopt legislation implementing the amendment and to-authorize agency rules for implementation. Art. X, § 23(b), Fla. Const. The Legislature did precisely that, enacting the statutory provisions regulating slot machines in Chapter 551, Florida Statutes (2016), and directing DPMW to adopt “all rules necessary to implement, administer, and regulate slot machine gaming as authorized in this chapter.” § 551.103(1), Fla. Stat. (2016).

Florida’s Administrative Procedure Act, chapter 120, Florida Statutes (2016), expressly authorizes state agencies such as DPMW to issue declaratory statements “regarding an agency’s opinion as to the applicability of a statutory provision, or of any rule or order of the agency, as it applies to the petitioner’s particular set of circumstances.” § 120.565(1). The fact that the constitutional amendment also contains terms (such as “eligible facility”) that are found within the implementing legislation or agency rules is not a legal basis for the DPMW to shirk its statutory duty.

West Flagler asks us to short-circuit DPMW by deciding the declaratory statement issues here as part of our jurisdiction to provide “a complete determination of the cause.” Fla. R. App. P. 9.040(a). We decline to do so, however, as a matter of judicial restraint and based on the statutory remedies afforded an appellant upon judicial review of final agency action. Under section 120.68(7)(c), Florida Statutes, (2016), the appellate court “shall remand a case to the agency for further proceedings” when the correctness of the agency’s action “may have been impaired by a material error in procedure or a failure to follow prescribed procedure.”

In the present case, .DPMW denied the petition as a preliminary procedural matter and never reached the merits or substance of the legal issues presented in West Flagler’s amended petition. Similarly, DPMW denied as moot the motion to •intervene . filed by the cross-appellants without ruling on the issues presented by the motion. We thus remand the case to DPMW to consider and decide the issues presented in the amended petition and in the motion to intervene.

Reversed and remanded for further proceedings in accordance with this opinion,

      . § 120.565, Fla. Stat. (2016).

      . Hartman and Tyner, Inc., holds a pari-mu-tuel wagering permit to conduct greyhound racing and inter-track wagering, and is licensed to operate a cardroom and slot machines, at the Mardi Gras Casino and Racetrack in Broward County, Florida. H & T Gaming, Inc., holds a pari-mutuel permit and license to conduct greyhound racing at Mardi Gras Casino & Racetrack in Miami-Dade County, Florida.


text:
    Matthew R. HINSON, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-2638
    District Court of Appeal of Florida, First District.
    Opinion filed May 31, 2017.
    Rehearing Denied June 19, 2017
    Matthew R. Hinson, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas H. Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant challenges the trial court’s order denying Appellant’s motion for post-conviction relief under Florida Rule of Criminal Procedure 3.850. One of Appellant’s claims is that he involuntarily entered his plea out of a well-founded fear that his counsel would be unprepared at trial. The trial court observed that it appeared from the record that counsel was prepared for trial, but the court did not conduct an evidentiary hearing on counsel’s state of preparation or attach portions of the record conclusively refuting this argument. Because this claim is colorable and not conclusively refuted by the attachments to the order, we reverse the denial of this claim and remand for further consideration of this claim only. E.g., Green v. State, 827 So.2d 1060, 1061 (Fla. 2d DCA 2002); Lanier v. State, 789 So.2d 520, 521 (Fla. 1st DCA 2001), We otherwise affirm the order.

REVERSED in part arid REMANDED.

WETHERELL, MAKAR, and KELSEY, JJ., CONCUR.


text:
    Joseph Patrick CHAMBERS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-4006
    District Court of Appeal of Florida, First District.
    Opinion filed June 1, 2017
    Rehearing Denied July 11, 2017
    Joe Hamrick, Rick Sichta, and Susanne Sichta, of the Sichta Firm, LLC., Jacksonville, for Appellant.
    Pamela Jo Bondi, Attorney General, and Thomas Duffy, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Joseph Patrick Chambers challenges his convictions and sentences for four counts of attempted second-degree murder and one count of shooting or throwing deadly missiles. As the State properly concedes, we must reverse the sentences for attempted second-degree murder because the trial court believed, based on our prior precedent, that it was required to impose the mandatory minimum sentence of twenty years for each of the attempted second-degree murder convictions consecutively pursuant to section 775.087(2)(d), Florida Statutes (the 10-20-Life.statute). The supreme court .has since held in Williams v. State, 186 So.3d 989 (Fla. 2016), that consecutive mandatory minimum terms under the 10-20-Life statute are permissible, but not mandatory. Accordingly, we remand for reconsideration of the sentences in light of Williams. In all other respects, we affirm.

AFFIRMED in part, REVERSED in part, and REMANDED.

ROWE, RAY, and M.K. THOMAS, JJ., CONCUR.


author: WINSOR, J.

text:
    ARENA FOOTBALL LEAGUE and Arena Football One, LLC, Appellants, v. Bryon BISHOP, Appellee.
    CASE NO. 1D15-5130
    District Court of Appeal of Florida, First District.
    Opinion filed June 6, 2017
    Rehearing Denied July 13, 2017

      Meredith A. Chaiken of Tenberg Chaiken, Lighthouse Point, for Appellants.
    Charles H. Leo of the Law Offices of Charles H. Leo, PA, Orlando, and Richard W. Ervin III, of Fox & Loquasto, PA, Tallahassee, for Appellee.
   WINSOR, J.

Bryon Bishop once played for the Orlando Predators in the Arena Football League (“AFL”). Although he and the team parted ways after just one season, Bishop later participated in a Predators tryout, hoping to resume his professional football career. On the second day of the two-day tryout, Bishop suffered an on-the-field injury. The issue in this case is whether the AFL must provide workers’ compensation benefits for that injury.

Bishop’s entitlement to benefits turns on whether he was an AFL employee, which turns on what we make of the “Standard Player Contract” that Bishop signed (the “Contract”). A claimant does not always need a formal employment contract to receive workers’ compensation benefits, of course, see, e.g., Jenks v. Bynum Transp., Inc., 104 So.3d 1217, 1222 (Fla. 1st DCA 2012), but the parties agree that Bishop’s claim depends on this Contract.

Bishop contends the Contract shows he was an AFL employee; the AFL contends just the opposite. The judge of compensation claims sided with Bishop, and the AFL appeals. Because the decision below turned on issues of law, our review is de novo. See BOLD MLP, LLC v. Smith, 201 So.3d 1261, 1261 (Fla. 1st DCA 2016); see also Bend v. Shamrock Servs., 59 So.3d 153, 156 (Fla. 1st DCA 2011) (noting that JCCs “may be required to interpret contracts” to determine coverage).

The Contract says that “[t]he League hires the Player as a skilled football player for employment beginning February 1, 2013 and ending August 31, 2013.” It has three signature lines: one for “Player Signature,” one labeled “Team Rep. Acknowl-edgement (Mandatory),” and one for “League Signature.” Bishop signed on the “Player Signature” line, and the Orlando Predators’ coach signed on the “Team Rep. Acknowledgement.” But the “League Signature” line remained blank. So was there a contract or wasn’t there?

Bishop offers several arguments as to why we should find there was an agreement, notwithstanding the missing signature. One argument is that no AFL signature was required because the Contract itself does not say signatures are required. This argument cannot succeed; a contract cannot be enforceable against a nonsignatory simply because it does not expressly provide that signatures are required. Cf. D.L. Peoples Grp., Inc. v. Hawley, 804 So.2d 561, 563 (Fla. 1st DCA 2002) (“Where one contracting party signs the contract, and the other party accepts and signs the contract, a binding contract results.”). A contract requires mutual assent, Gibson v. Courtois, 539 So.2d 459, 460 (Fla. 1989), and a form contract that provides it is between two parties, that includes a signature line for both parties, and that has only one party’s signature cannot — without more — demonstrate mutual assent.

Bishop points to language in the Contract that provides a mechanism for the AFL to unilaterally cancel the contract after its execution. The Contract says that “after execution,” the Contract will be filed with the AFL headquarters. The AFL’s Director of Football Operations then has “the right to disapprove this Contract” for various reasons. If the Director exercises that right, “both parties will be relieved of their respective rights and obligations under this Contract.” The Contract further provides that absent “disapproval” within seven days, approval is automatic.

No one from the AFL ever gave notice that the Contract was “disapproved.” But notwithstanding Bishop’s arguments, this does not mean the Contract was automatically approved — or that a binding agreement was formed. If the Contract had been executed, those provisions would have allowed the AFL to terminate the agreement, but that does not help us decide whether the Contract was executed in the first place. If it was not, the Contract’s “disapproval” provisions never came into play. Indeed, if there was never mutual assent — evidenced by signatures or otherwise — then those provisions, like all the Contract’s provisions, mean nothing.

Bishop also suggests that the AFL could assent -to the Contract without signing it. It is true that parties may show assent through means other than signatures. Gateway Cable T.V., Inc. v. Vikoa Constr. Corp., 253 So.2d 461, 463 (Fla. 1st DCA 1971) (“The object of a signature is to show mutuality or assent, but these facts may be shown in other ways, for example, by the acts or conduct of the parties.”). But in this case,, the only AFL action Bishop claims showed the AFL’s assent was the AFL’s decision to let Bishop participate in the tryout. We cannot conclude that allowing a player to participate in a tryout shows assent to “hire[] the Player as a skilled football player” for the duration of a football season.

The JCC’s conclusion below — that Bishop “was under contract with [the AFL] at the time of his alleged injury” — was incorrect. Accordingly, and because there was no employer-employee relationship on the date of the injury, we reverse and remand for entry of an order denying Bishop’s claims.

REVERSED and REMANDED.

WINOKUR and JAY, JJ., concur.

      . Bishop actually suffered two separate injuries — one on each day of the two-day tryout. The judge of compensation claims rejected Bishop’s claim related to the first day’s injury, and Bishop has not challenged that ruling. We therefore do not consider that injury. Nor do we consider section 440.02(17)(c)(3), Florida Statutes (2013), which excludes professional athletes from workers’ compensation coverage. For reasons not pertinent here, the judge of compensation claims found that provision inapplicable, and no one has challenged that decision on appeal.

      . Unlike in the National Football League, in which individual team organizations employ their own players, see National Football League, Wikipedia, https://en.wikipedia.org/ wiki/NationaLFootbalLLeague (last visited May 17, 2017) [https://perma.cc/D5L6-XG4C], in the AFL, every player is a league employee. Indeed, the Contract provides that "both the Player and the League verify and certify that this Contract is only between the Player and the League, and not between the Player and his assigned team.”

      . The first sentence of the Contract makes clear that it is between two parties: the AFL and Bishop.


text:
    Laura LEWIS, Petitioner, v. DOLLAR RENT A CAR and ESIS WC Claims, Respondents.
    CASE NO. 1D16-2951
    District Court of Appeal of Florida, First District.
    Opinion filed June 9, 2017

      Jane-Robin Wender of Wender Law, P.A., Boca Raton, for Petitioner.
    Kimberly J. Fernandes of Kelly Kronen-berg, P.A., Tallahassee, for Respondents.
   PER CURIAM.

In this workers’ compensation proceeding, Petitioner/Claimant requests .certiora-ri review of an order of the Judge of Compensation Claims (JCC) granting the Employer/Carrier’s (E/C’s) motion to coha-pel her to attend a functional capacity evaluation (FCE). Because we conclude that the order departs from the essential requirements of law and would cause harm that cannot be corrected on appeal, we grant the petition and quash the order.

Claimant was involved in a compensable accident in 1989, She subsequently settled the indemnity portion of her case in 1990, but she continues to receive authorized and causally related medical care. On March 22, 2016, the E/C filed a “Motion to Compel Attendance at Functional Capacity Evaluation.” The motion asserted that an FCE had been prescribed by authorized treating physicians and that Claimant failed to attend the FCE appointment. The motion also asserted that the FCE was ordered as “medically necessary” by the treating physicians. No supporting documents were attached. Claimant subsequently filed a Petition for Benefits (PFB) on May 19, 2016, seeking prescription medication — also recommended by one of her treating doctors. An evidentiary hearing on the motion to compel was held on June 17, 2016. On the morning of the evidentiary hearing on the motion, the E/C e-filed medical records purportedly in support of its motion. The e-filed documents included medical records and a prescription with a handwritten note from the authorized treating physician indicating the FCE was “medically necessary.” At the hearing on the motion, Claimant’s counsel objected to the introduction of the medical records and documents as untimely and unauthenticated. The JCC overruled the objection on the basis that reports of authorized treating physicians may come into evidence pursuant to “F.S. 440.13” without authentication, and because there was no evidence that Claimant did not have access to the records before the hearing.

To obtain a writ of certiorari, Claimant must show that the order here is “(1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the case (3) that cannot be corrected on post-judgment appeal.” Reeves v. Fleetwood Homes of Fla., Inc., 889 So.2d 812, 822 (Fla. 2004) (citations omitted). The last two elements are generally considered together as “irreparable harm.”

We have previously held that “[i]n the context of compelled physical or psychiatric examinations, the required element of irreparable harm may be found based on the notion that once the invasive harm of the examination occurs, it cannot be undone on appeal.” Taylor v. Columbia/HCA Doctors Hosp. of Sarasota, 746 So.2d 1244, 1245 (Fla. 1st DCA 1999). Although Chapter 440 contains no reference to FCEs and no evidence was presented to explain the exact nature of the evaluation, the parties appear to agree that the FCE here will require Claimant to perform a series of endurance tests designed to determine the limits of her physical capabilities. The E/C argues that an FCE is different from other compelled physical examinations because it will not involve “invasive” medical procedures such as blood tests or x-rays. We reject this argument. For the purpose of determining irreparable harm, we have never interpreted the invasiveness of the examinations so narrowly, and our decisions have not turned on proof of the type of medical procedures that may be included as a part of the compelled exam. In the case of a compelled psychiatric examination, for example, the invasion of privacy alone may constitute irreparable harm. See, e.g., Zabik v. Palm Beach Cty. Sch. Dist., 911 So.2d 858, 859 (Fla. 1st DCA 2005) (“Certiorari review lies if the JCC orders a psychiatric IME [independent medical examination] without statutory authority.”). Because the FCE contemplated here will compel Claimant to undergo physical endurance tests, we find that Claimant has shown a material injury that cannot be remedied on appeal, which satisfies the element of irreparable harm. Additionally, because the parties are in an adversarial relationship the evaluator is essentially an expert witness for the party requesting the examination, here an FCE. See Chavez v. J & L Drywall, 858 So.2d 1266, 1268 (Fla. 1st DCA 2003).

“A departure from the essential requirements of law,” the remaining element for certiorari review, is defined as “a violation of a clearly established principle of law resulting in a miscarriage of justice.” Combs v. State, 436 So.2d 93, 96 (Fla. 1983). It is well established that a JCC has only the powers expressly provided by statute. See, e.g., McArthur v. Mental Health Care, Inc., 35 So.3d 105, 107 (Fla. 1st DCA 2010) (holding JCC has only those powers expressly provided by statute and, conversely, has no jurisdiction or authority beyond that specifically conferred by statute). This Court has previously held that a departure from the essential requirements of law occurs if the JCC orders an examination by an independent medical examiner or expert medical advisor (EMA) without the requisite statutory authority. See, e.g., Stahl v. Hialeah Hosp., 127 So.3d 1283, 1284 (Fla. 1st DCA 2013) (reversing order compelling IME where there was no dispute as required by statute); Alvarado v. Wackenhut Corp., 951 So.2d 937, 938 (Fla. 1st DCA 2007) (finding JCC departed from essential requirements of law by ordering appointment of neuropsychologist as EMA). Similarly, the FCE here cannot be compelled without proper statutory authority.

In workers’ compensation law, substantive rights are established by the date of the accident. See, e.g., Butler v. Bay Ctr./Chubb Ins. Co., 947 So.2d 570, 572 (Fla. 1st DCA 2006); Styles v. Broward Cty. Sch. Bd., 831 So.2d 212, 213 (Fla. 1st DCA 2002). Here, the parties’ substantive rights are determined by the law in effect in 1988. The 1988 statute contains no provision for an FCE per se.

Although 1988 law does not expressly provide for FCEs, Claimant may be compelled to submit to an FCE if the requisite authority is found in the statute. Section 440.13(2)(a), Florida Statutes (Supp. 1988), requires the E/C to provide Claimant with medically necessary remedial treatment, care, and attendance. Although FCEs are typically performed for occupational purposes, the JCC here found that the FCE in this case “will help the physicians in determining the future course of claimant’s treatment.” Under that circumstance, an FCE may be considered a medical benefit that the JCC could order the E/C to provide under the authority of paragraph 440.13(2)(a), if Claimant had filed a claim for the FCE. But here, it is the E/C who seeks to compel Claimant to undergo an FCE that she does not want.

In Wojick v. Department of Children & Families, 75 So.3d 362 (Fla. 1st DCA 2011), we held that the JCC lacked jurisdiction to compel a claimant’s attendance at an functional medical evaluation (FME) on three grounds: there was no pending petition for benefits, there was no statutory right to an FME per se within Chapter 440, Florida Statutes, and there was insufficient proof that the FME was “medically necessary” as that phrase is used in section 440.13(2)(a), Florida Statutes. For clarification, the rule of law in Wojick is not based on whether a prescription exists from an authorized provider for an FME, or whether an FME is medically necessary. The holding in Wo.jick is based on the absence of corresponding statutory authority for the JCC to require a claimánt to submit to medical treatment or testing outside of those instances in which the statute specifically confers such authority.

Here, there is a pending PFB. However, the existence of a pending PFB does not alleviate the absence of statutory authority to compel a claimant’s attendance at an FCE. While a JCC may have authority to compel a claimant’s attendance at an IME or before an EMA, there is no such statutory authority regarding an FCE. Additionally, the claimant always has the right to reject medical assistance (although consequences may include forfeiture of certain benefits). Id.; see also Jackson v. Columbia Pictures, 153 So.3d 349, 350 (Fla. 1st DCA 2014) (“There has never been any part of the workers’ compensation law that permits an E/C to force a claimant to. submit to treatment, nor does any provision of law brought to our attention permit this court to bodily force an injured employee to undergo unwanted medical care.”).

In West Coast Elevator Co. v. Wood, 780 So.2d 321 (Fla. 1st DCA 2001), we reversed an order granting the claimant’s request for an FCE because there was “no competent, substantial evidence supporting the medical necessity of an FCE.” To clarify, West Coast Elevator does not hold that a JCC can compel an FCE if it is “medically necessary.” West Coast Elevator did not involve a motion to compel a claimant’s attendance at an FCE. The claimant in West Coast Elevator requested an FCE as part of a claim relating to a prior hearing on his entitlement to permanent total disability benefits. The FCE 'was ultimately denied for lack of proof of “medical necessity.” West Coast Elevator relates only to those circumstances where a claimant requests an FCE (therefore, logically acquiescing to attendance) as a benefit due under section 440.13(2)(a), Florida Statutes, and can demonstrate “medical necessity.” This ruling does not apply to an E/C’s attempt to force a claimant’s attendance at an FCE, or to whether the JCC has the jurisdictional power to compel such attendance, or to whether such an FCE is “medically necessary.”

Arguably, the, FCE is equivalent to an IME in this case. Section 440.25(6), Florida Statutes (1987), provides that “[a]n injured employee claiming or entitled to compensation shall submit to such physical examination by a duly qualified physician designated or approved by the deputy commissiqner[] or approved by the deputy commissioner as the deputy commissioner may require.” This subsection has been regardéd as statutory authority for requiring a claimant to submit to an IME. See Atlanta Nat’l Real Estate Tr. v. Rain, 392 So.2d 1339, 1341 (Fla. 1st DCA 1980). But the facts here do not meet the statutory requirements because (1) Claimant is neither claiming, nor is she entitled to claim, compensation (indemnity) benefits; and (2) the JCC did not designate or approve “a duly qualified physician” to conduct this FCE. The 1988 law further provides that “[i]n making an investigation or inquiry or conducting a hearing, the deputy commissioner .,. may make such investigation or inquiry, or conduct such hearing, in such a manner as to best ascertain the rights of the parties.” § 440.29(1), Fla. Stat. (1987). This provision also has been construed as authority for ordering an IME, but cannot apply in this case because the FCE was not ordered as incidental to any pending dispute or issue. See Jackson, 153 So.3d at 350 (holding compelled IME must be limited to attendant care issue pending before JCC). Thus, even assuming the FCE could be considered an IME, the requisite statutory authority does not exist.

Here, the JCC ultimately relied on the analysis in Wo.jick, where this Court addressed a similar problem with statutory authority for a compelled FME. Without deciding whether an FME is the same as an IME, the Wojick court nevertheless quashed the order because the JCC lacked jurisdiction given • that there was (1) no pending PFB; (2) no statutory authority for an FME per se within Chapter 440; and (3) insufficient proof of medical necessity. In the order on review here, the JCC applied the language in Wojick and reasoned that the requirements were met here by the undisputed medical evidence of medical necessity and the pending PFB. Significantly, the JCC did not explain where within the 1988 version of Chapter 440 he found specific statutory authority to compel an FCE. As a result, the JCC departed from the essential requirements of law because nothing in the Wojick opinion — or any other legal authority — -suggests that the jurisdictional problem there would be cured if only one or more, but not all three, of the 'deficiencies existed.

Because the JCC did not have the requisite statutory authority here, the order compelling Claimant to undergo an FCE is a departure from the essential requirements of law, which, as we have explained, will cause Claimant irreparable harm. Accordingly, we GRANT the petition and QUASH the order granting the E/C’s motion to compel.

OSTERHAUS, BILBREY, and WINOKUR, JJ., CONCUR.

      . Accordingly, she is no longer eligible for wage-loss benefits under section 440.15, Florida Statutes.

      . Due to pending PFB, no issue existed as to jurisdiction of the JCC to consider the motion.

      . Like a functional capacity evaluation, Chapter 440 does not expressly provide for a functional medical evaluation either. See Interior Custom Concepts v. Slovak, 969 So.2d 1095, 1096 (Fla. 1st DCA 2007). For purposes of the issue presented here, the analysis relating to authorization for an FME is the same as for an FCE.

      . JCCs were formerly called "deputy commissioners.”

      . Due to reversal on other grounds, we need not address Claimant’s challenges to authenticity and timeliness of medical records and documents introduced by the E/C regarding "medical necessity” of the FCE.


author: B.L. THOMAS, J.

text:
    LEVY COUNTY TRANSIT/GALLAGHER BASSETT SERVICES, Appellants, v. Antoinette KOKENZIE, Appellee.
    CASE NO. 1D16-4817
    District Court of Appeal of Florida, First District.
    Opinion filed June 14, 2017

      Christopher J. DuBois and Mary E. Cruickshank of DuBois & Cruickshank, P.A., Tallahassee, for Appellants.
    Mark N. Tipton and Daniel L. Hightower of Daniel L. Hightower, P.A., Ocala, for Appellee.
   B.L. THOMAS, J.

In this workers’ compensation case, the Employer/Carrier challenge an order awarding Claimant temporary partial disability benefits and rejecting the affirmative defense of misrepresentation under paragraphs 440.09(4)(a) and 440.105(4)(b), Florida Statutes (2014). Because the record contains competent, substantial evidence supporting the Judge of Compensation Claims’ conclusion that Claimant did not make intentional misrepresentations for the purpose of obtaining workers’ compensation benefits, we affirm that ruling. But we reverse and remand the temporary partial disability award, because the determination that the workplace injury is the major contributing cause of Claimant’s disability and need for medical care is not based on competent, substantial evidence.

Claimant reported that she injured her neck while transporting a wheelchair-bound passenger on March 13, 2015. The Employer/Carrier accepted compensability of the workplace injury and authorized medical care with Dr. Trimble, an orthopedic surgeon. Dr. Trimble ultimately opined that the major contributing cause of Claimant’s neck complaints is preexisting degeneration of the cervical spine, not the workplace injury. Dr. Lowell, another orthopedic surgeon, later provided Claimant’s medical care and recommended surgery of the cervical spine.

Claimant filed a claim for temporary partial disability benefits in light of Dr. Lowell’s surgical recommendation. The Employer/Carrier defended the claim, in part, on the ground that the workplace injury is not the major contributing cause of Claimant’s neck condition, based on Dr. Trimble’s expert opinion and the expert opinion of Dr. Rumana, the Employer/Carrier’s independent medical examiner.

Under subsection 440.09(1), Florida Statutes (2014), an employer/carrier is responsible for providing benefits only where the accidental compensable injury is the major contributing cause of any resulting injuries. Thus, Claimant bore the burden of persuasion to prove that the compensa-ble workplace injury is the major contributing cause for the need for the requested benefits. See Babahmetovic v. Scan Design Fla., Inc., 176 So.3d 1006, 1008 (Fla. 1st DCA 2015); Checkers Restaurant v. Wiethoff, 925 So.2d 348, 350 (Fla. 1st DCA 2006). In accordance with the statute, a major contributing cause is the cause that is more than 50% responsible for the injury, when compared to all other causes combined for which treatment or benefits are sought. § 440.09(1), Fla. Stat. (2014). Furthermore, major contributing cause must be demonstrated by medical evidence only, and “[p]ain or other subjective complaints alone, in the absence of objective relevant medical findings, are not compensable.” Id.

According to the Judge of Compensation Claims, Dr. Lowell opined that, “assuming Claimant’s neck has been asymptomatic since the early 2000s,” the workplace injury is the major contributing cause of the need for surgery and related disability. But Dr. Lowell never actually testified that the workplace injury is the major contributing cause of the need for cervical surgery.

Dr. Lowell testified that Claimant specifically told him that she never had any previous symptoms or treatment of the neck. Even with this history, Dr. Lowell initially indicated that the major contributing cause issue here “falls in a gray zone.” Later, after reviewing Claimant’s prior medical records, the doctor agreed that the workplace injury is not the major contributing cause of Claimant’s current condition. When asked by Claimant’s attorney if the workplace injury would be the major contributing cause of the need for surgery, assuming Claimant had some prior neck complaints but none after the early 2000s, Dr. Lowell did not directly answer the question. Instead, he stated that he “would have to conclude the accident was responsible for the new onset of symptoms,” if Claimant gave him “accurate and complete” information”; however, he said, “those conclusions [are] more difficult to render” when the information is not accurate and complete. At no point did Dr. Lowell indicate that the information necessary to make a causal connection would not include all of Claimant’s pertinent medical history. This opinion, as qualified, does not match the facts regarding Claimant’s past medical history, including her previously reported neck pain. Thus, Claimant failed to carry her burden of persuasion, as she did not show that the need for the surgery was linked to the workplace accident.

We therefore reverse the award of temporary partial disability benefits associated with the recommended medical treatment and remand for entry of an order consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

LEWIS and ROWE, JJ., CONCUR.


text:
    Edwin VELEZ, Appellant, v. COADVANTAGE, Epoch Management/CCMSI, Appellees.
    CASE NO. 1D16-5496
    District Court of Appeal of Florida, First District.
    Opinion filed June 19, 2017

      Nicholas A. Shannin of Shannin Law Firm, P.A., Orlando, and Basil A. Valdivia of Morgan & Morgan, P.A., Orlando, for Appellant.
    Bryan A. Lowe and Eric J. Netcher of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for Appellees.
   PER CURIAM.

In this workers’ compensation appeal, the claimant challenges the denial of his request for a new orthopedic physician under the one-time change statute, section 440.18(2)©, Florida Statutes (2014). We affirm.

The facts are undisputed. The employer/carrier (E/C) authorized Dr. Munson with Jewett Orthopedic Clinic to treat the claimant’s compensable injury. When Dr. Munson retired in 2015, the E/C authorized Dr. Weber with Orlando Orthopaed-ics. On June 2, 2016, the claimant filed a petition for benefits (PFB) seeking a new orthopedic physician pursuant to section 440.13(2)©. After the E/C timely authorized Dr. Meinhardt, the claimant filed a second PFB seeking authorization of Dr, Murrah as his one-time change physician because Dr. Meinhardt was affiliated with the same practice group as his original orthopedic physician, Dr. Munson. The E/C responded that it had properly authorized Dr. Meinhardt as the claimant’s one-time change.

The E/C filed a motion for summary final order, and after a hearing, the Judge of Compensation Claims (JCC) granted the motion and denied the claimant’s second PFB. The JCC rejected the claimant’s argument that section 440.13(2)© “should be read to say the E/C must authorize a physician who is not professionally affiliated with ANY prior physician, hospital, or medical group who treated the claimant at any time in his case” (emphasis in JCC’s order). Instead, the JCC reasoned that the statute prohibited professional affiliation with only the immediately preceding authorized doctor, which in this case was Dr. Weber — who was undisputedly not professionally affiliated with Dr. Meinhardt. This appeal followed.

Section 440.13(2)© authorizes the claimant to request a change of physician once during the course of treatment of the com-pensable injury. Upon receiving such a request, the E/C has five days to authorize an alternative physician “who shall not be professionally affiliated with the previous physician” (emphasis added).

Here, it is undisputed that Dr. Mein-hardt was not professionally affiliated with Dr. Weber, but he was professionally affiliated with Dr. Munson through Jewett Orthopedic Clinic. Thus, resolution of this case boils down to which, physician — Dr. Weber or Dr. Munson — is “the previous physician" for purposes of section 440.13(2)©.

We agree with the JCC that Dr. Weber is “the previous physician” for purposes of the one-time change statute. That phrase clearly and unambiguously refers to a singular physician by using the definite-article “the” and the singular noun “physician.” See Golf Scoring Sys. Unlimited, Inc. v. Remedio, 877 So.2d 827, 829 (Fla. 4th DCA 2004) (“ ‘The’ is a definite article ‘used as a function word with a noun modified by an adjective or by an attributive noun to limit the application of the modified noun to that specified by the adjective or the attributive noun <[the] right answer >.’ Webster's New Collegiate Dictionary 1199 (1980 ed.). As such, ‘the’ limits that to which it refers to only one, to the exclusion of all others.”); Orange Cty. MIS Dep’t v. Hak, 710 So.2d 998, 999 (Fla. 1st DCA 1998) (holding statute’s use of definite article indicates there can be only one major contributing cause). Accordingly, when coupled with the adjective “previous,” the statute clearly and unambiguously refers to the single immediate prior authorized treating physician, which in this case was Dr. Weber.

We find additional support for this conclusion in Retailfirst Insurance Co. v. Davis, 207 So.3d 1035, 1037 (Fla. 1st DCA 2017), where we interpreted a different sentence of section 440,13(2)(f) “to reflect a legislative intent of allowing only a one-for-one exchange of physicians within the same specialty.” Viewing the statute as a whole, it makes sense that “the previous physician” is only the one being replaced by the new one-time-change physician in the one-for-one exchange described in Davis.

Finally, we have not overlooked the claimant’s argument that, pursuant to section 1.01(1), Florida Statutes, “[t]he singular includes the plural and vice versa.” However, under the plain language of that statute, this interpretive tool only applies “when context will permit,” and here, the context of the phrase “the previous physician” within the language of section 440.13(2)(f) as a whole does not permit the interpretation urged by the claimant. Indeed, the claimant’s interpretation would effectively rewrite the statute to say “a previous physician” or “the previous physicians,” thereby substantively reducing the pool of physicians that could qualify as a one-time change physician. We lack the authority to rewrite the statute in this — or any other — manner. See, e.g., Thrivent Fin. for Lutherans v. State, Dep’t of Fin. Servs., 145 So.3d 178, 182 (Fla. 1st DCA 2014) (“[T]his Court may not rewrite statutes contrary to their plain language.”) (quoting Hawkins v. Ford Motor Co., 748 So.2d 993, 1000 (Fla. 1999)).

Accordingly, for the reasons stated above, the JCC’s order is AFFIRMED.

WETHERELL, RAY, and MAKAR, JJ„ CONCUR.


author: JAY, J.

text:
    Carlis LINDSEY, III, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D15-5544
    District Court of Appeal of Florida, First District.
    Opinion filed June 19, 2017

      Andy Thomas, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Quentin Humphrey, Assistant Attorney General, Tallahassee, for Appellee.
   JAY, J.

Lindsey raises four issues in this direct appeal from his conviction and sentence for first-degree murder, burglary of a dwelling, and grand theft auto. We affirm in all respects and write only to address Lindsey’s argument that the trial court abused its discretion by denying his pretrial motion to sever the burglary charge from the murder and theft charges. Because there was a meaningful relationship between all of the charges, the trial court did not abuse its discretion in trying them together.

Florida Rule of Criminal Procedure 3.150(a) provides that “[t]wo or more offenses ... may be charged in the same indictment” when the offenses “are based on the same act or transaction or on [two] or more connected acts or transactions.” Fla. R. Crim. P. 3.150(a). If the indictments involve “related offenses” — i.e. “if they are triable in the same court and are based on the same act or transaction or on [two] or more connected acts or transactions” — they “shall be consolidated for trial on timely motion by a defendant or by the state.” Fla. R. Grim. P. 3.151(a)-(b) (emphasis added).

“[T]here must be a ‘meaningful relationship’ between or among the charges before they can be tried together.” Lugo v. State, 845 So.2d 74, 93 (Fla. 2003) (citation omitted). Practically speaking, a meaningful relationship requires that “ ‘the crimes in question must be linked in some significant way.’ ” Id. (citation omitted); see also Fletcher v. State, 168 So.3d 186, 202 (Fla. 2015). The state can establish the necessary connection by demonstrating (1) an uninterrupted crime spree or (2) a causal link irrespective of the passage of time. Ellis v. State, 622 So.2d 991, 1000 (Fla. 1993). In determining whether crimes are connected, “[c]ourts may consider whether the acts or transactions are temporally or geographically associated, the nature of the crimes, and the manner in which they are committed.” Fletcher, 168 So.3d at 202. “[E]ven where there is a significant lapse of time, if there is a causal link — one crime is used to induce the other — then consolidation is appropriate.” Id.

Because it may be difficult to determine whether separate crimes are factually related, the abuse of discretion standard applies to our review of a decision to consolidate or sever charges. Crossley v. State, 596 So.2d 447, 450 (Fla. 1992) (“We recognize that sometimes it is difficult to decide whether two separate crimes are related. For this reason, we have held that the standard of review for cases involving the consolidation or severance of charges is one of abuse of discretion.”).

Here, Lindsey claims that the trial court abused its discretion in denying his pretrial motion to sever the burglary charge because the alleged burglary occurred three days after the murder and the theft and involved an unrelated residence and an unconnected victim. However, contrary to Lindsey’s assertion, there was a meaningful relationship between the burglary, the murder, and the grand theft charges because (1) Lindsey was hiding in the burglarized residence to evade arrest for the murder and the grand theft charges; (2) bloody clothing worn by Lindsey on the night of the murder and theft was found inside the residence; (3) the stolen vehicle was found six-tenths of a mile from the burglarized residence; and (4) defense counsel conceded that the state could elicit testimony that the investigation took law enforcement to the residence, that they saw signs of forced entry, that law enforcement made contact with Lindsey inside the residence, and that they recovered evidence from the residence. Moreover, even though Lindsey argues that he was prejudiced by the presentation of the burglary charge to the jury, “some prejudice exists during any trial in which multiple offenses are tried together,” and, as recognized by the Florida Supreme Court, “this ‘garden variety’ [of] prejudice is not sufficient to justify [a] severance.” Fletcher, 168 So.3d at 203 (citation omitted).

Under these circumstances, the trial court did not abuse its discretion by denying Lindsey’s motion to sever. See id. (“After the murder, Fletcher stole her vehicle in a continued effort to avoid re-arrest.... The crimes were causally connected, and each crime committed subsequent to the escape cannot be fully understood without this context. These events were all part of a single and uninterrupted criminal spree, and occurred within a close temporal and geographic proximity. Accordingly, the crimes have a meaningful relationship, are linked in a significant way, and were properly consolidated.”); Fotopoulos v. State, 608 So.2d 784, 790 (Fla. 1992) (holding that the defendant’s motion for severance was properly denied where the charges of first-degree murder, attempted first-degree murder, solicitation to commit first-degree murder, conspiracy to commit first-degree murder, and burglary of a dwelling were clearly connected in an episodic sense and, even if there had been separate trials, evidence of each offense would have been admissible at trial of the other to show a common scheme and motive as well, as the entire context out of which the criminal action occurred); Cousin v. State, 859 So.2d 577, 579 (Pla. 5th DCA 2008) (holding that a sufficient causal link existed between the charges of carjacking, aggravated assault, attempted felony murder, and burglary of a dwelling where the first set of crimes gave the defendant a reason to flee and a motive for entering second victim’s house either to hide or lie in wait for a resident to return with a vehicle and the evidence of the first set of crimes would have been admissible in the trial on the second set of crimes).

AFFIRMED.

ROBERTS, C.J., and MAKAR, J„ CONCUR.


author: VILLANTI, Chief Judge.

text:
    Michael CLARE, M.D., and Florida Orthopaedic Institute, Petitioners, v. Maria Johnson LYNCH, Respondent.
    Case No. 2D16-4052
    District Court of Appeal of Florida, Second District.
    Opinion filed June 21, 2017.

      Nancy S. Paikoff of Macfarlane Ferguson and McMullen, Clearwater; and Stephen H. Sears of Macfarlane, Ferguson & McMullen, Tampa (withdrew after briefing); Mark E. McLaughlin of Beytin, McLaughlin, McLaughlin, O’Hara, Bocchi-no & Bolin, Tampa (substituted as counsel of record), for Petitioners.
    Maria Johnson Lynch, pro se.
   VILLANTI, Chief Judge.

Petitioners Michael Clare, M.D., and Florida Orthopaedic Institute (collectively “FOI”) seek a writ of certiorari directed to the trial court’s order that granted a motion for rehearing filed by respondent Maria Johnson Lynch and reinstated her medical malpractice .complaint against FOI. Because the expert affidavit submitted by Lynch did not satisfy the requirements of section 766.102(5)(a), Florida Statutes (2015), we must grant the petition and quash the trial court’s order reinstating the complaint.

. Lynch became a .patient of FOI after she broke .her toe. She underwent a .variety of treatments, including surgery, which failed to fully resolve the problems. Lynch subsequently obtained a second opinion, during which she was told that the surgery performed by Dr. Clare was unnecessary and not indicated for injuries such as hers. She then initiated presuit proceedings with FOI. In support of her claim, Lynch submitted, as the requisite “[cjorroboration of reasonable grounds to initiate medical negligence litigation” under section 766.203(2), the written affidavit of Dr. Benjamin Over-ley, D.P.M., who is a board-certified podiatrist. FOI challenged this affidavit, asserting that it did not qualify as a proper corroborating affidavit because Dr. Clare is a board-certified orthopedic surgeon— not a podiatrist. Lynch did not respond to this objection during the presuit period.

At the end. of the presuit period, FOI denied liability, and. Lynch filed suit. FOI then moved to dismiss, arguing that Lynch did not properly comply with, the presuit investigation requirements because she did not submit an expert affidavit that complied with the statutory presuit requirements. The trial court initially agreed and dismissed the complaint; however, on rehearing, the trial court essentially changed its mind, granted rehearing, and reinstated the complaint. FOI then filed this petition for writ of certiorari.

As an initial matter, we have cer-tiorari jurisdiction to review this type of order. As the First District has explained:

Certiorari review of the denial of a motion to dismiss is ordinarily unavailable. Baptist Med. Ctr. of Beaches, Inc. v. Rhodin, 40 So.3d 112, 114-15 (Fla. 1st DCA 2010) (citing Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla. 1987)). But an exception applies to cases, like this one, where a defendant asserts that an order erroneously excuses a plaintiff from complying with chapter 766’s presuit requirements. Id. Chapter 766 requires potential plaintiffs to investigate the merits of a claim and provide notice of intent to litigate before filing suit. Id. at 115. Where disputes arise regarding compliance with chapter 766’s requirements, “[c]ertiorari review is proper to review the denial of a motion to dismiss.” Goldfarb v. Urciuoli, 858 So.2d 397, 398 (Fla. 1st DCA 2003); see also Rhodin, 40 So.3d at 115; S. Baptist Hosp. of Fla., Inc. v. Ashe, 948 So.2d 889, 890 (Fla. 1st DCA 2007).

Shands Teaching Hosp. & Clinics, Inc. v. Estate of Lawson ex rel. Lawson, 175 So.3d 327, 329 (Fla. 1st DCA 2015) (en banc); see also Rell v. McCulla, 101 So.3d 878, 880-81 (Fla. 2d DCA 2012). Here, FOI asserts that the trial court’s ruling departs from the essential requirements of the law because it operates to effectively excuse Lynch from the presuit requirements of chapter 766. Therefore, we may properly review the trial court’s ruling by certiorari.

Turning to the merits, we note that chapter 766 outlines an extensive presuit procedure applicable to all actions for medical malpractice. Section 766.203 requires the claimant to conduct a presuit investigation to determine whether there are reasonable grounds to initiate a medical negligence action. As part of that presuit investigation, section 766.203(2) requires that the claimant provide “[c]orroboration of reasonable grounds to initiate medical negligence litigation,” including “submission of a verified written medical expert opinion from a medical expert as defined in s. 766.202(6).” Section 766.202(6) defines a “medical expert” as

a person duly and regularly engaged in the practice of his or her profession who holds a health care professional degree from a university or college and who meets the requirements of an expert witness as set forth in s. 766.102.

(Emphasis added.) In turn, section 766.102 sets forth the requirements for an expert witness as follows:

(5) A person may not give expert testimony concerning the prevailing professional standard of care unless the person is a health care provider who holds an active and valid license and conducts a complete review of the pertinent medical records and meets the following criteria:
(a) If the health care provider against whom or on whose behalf the testimony is offered is a specialist, the expert witness must:
1. Specialize in the same specialty as the health care provider against whom or on whose behalf the testimony is offered; and
2. Have devoted professional time during the 3 years immediately preceding the date of the occurrence that is the basis for the action to:
a. The active clinical practice of, or consulting with respect to, the same specialty;
b. Instruction of students in an accredited health professional school or accredited residency or clinical research program in the same specialty; or
c. A clinical research program that is affiliated with an accredited health professional school or accredited- residency or clinical research program in the same specialty.

(Emphasis added.) Hence, under the plain language of the applicable statutes, if the intended medical defendant is a specialist, the corroborating affidavit must come from a provider who specializes in the same specialty.

In this case, it is undisputed that Dr. Clare is a board-certified orthopedic surgeon. It is also undisputed that Dr. Over-ley is a board-certified podiatrist. While both doctors’ practices focus primarily on foot and ankle surgery, these two doctors have different training and practice in different specialties. Therefore, the affidavit from Dr. Overley could not meet the requirements of the plain language of section 766.102(5), and the noncomplying affidavit was insufficient on its face to constitute the required corroboration of reasonable grounds to initiate medical negligence litigation. Without such corroboration, Lynch’s medical malpractice action should have been dismissed. See Rell, 101 So.3d at 880-81; Shands Teaching Hosp. & Clinics, Inc., 175 So.3d at 329. By granting rehearing and reinstating Lynch’s action, the trial court departed from the essential requirements of the law.

In her petition, as she did in the trial court, Lynch argues that Dr. Clare and Dr. Overley do, in fact, practice in the same specialty because they both perform surgery on feet and ankles. She argues that their different training and different titles should not matter. However, this argument is based on nothing more than Lynch’s opinion, which cannot supplant the legislative intent evidenced by the amendments made by the legislature to section 766.102 in 2013.

Prior to 2013, section 766.102(5) provided that if the intended defendant was a specialist, the corroborating medical expert opinion had to come from a health care provider who specialized in either the same specialty or “in a similar specialty that includes the evaluation, diagnosis, or treatment of the medical condition that is the subject of the claim.” § 766.102(5)(a)(1), Fla. Stat. (2012). In addition, the statute provided that it did “not limit the power of the trial court to disqualify or qualify an expert witness on grounds other than the qualifications in this section.” § 766.102(14), Fla. Stat. (2012). Thus, under this version of the statute, the trial court had broad discretion to consider evidence concerning the proposed expert’s qualifications and either accept or reject that expert’s opinions based on that evidence.

But in chapter 2013-108, Laws of Florida, the legislature deleted the language permitting an expert from a “similar specialty” to qualify as an expert witness in a medical malpractice case. See ch. 2013-108, § 2, at 1466, Laws of Fla. The legislature also deleted the provision giving trial courts the authority to qualify an expert on grounds other than those listed in section 766.102. Id. By making these amendments, the legislature expressed its indisputable intent to preclude experts from “similar” specialties from qualifying as experts against an intended defendant practicing in a different specialty. Furthermore, the legislature also eliminated any discretion on the matter that the trial court may previously have had.

In light of these specific amendments, it is clear that the legislature intended that specialists from the “same specialty” be required as corroborating experts in medical malpractice litigation. While providers from “similar” specialties may have been previously permitted, they are not permitted any longer. And while Lynch is correct that the presuit requirements are to be interpreted liberally to provide access to the courts, see Kukral v. Mekras, 679 So.2d 278, 284 (Fla. 1996), courts are not at liberty to ignore the plain language of the statute or to add back language that was specifically deleted by the legislature. The trial court’s ruling in this case, which effectively resurrects the prior statutory language by crediting an affidavit from a provider in a “similar” specialty, constitutes a clear departure from the essential requirements of the law that cannot be countenanced.

Finally, we note that while this case was pending, the Florida Supreme Court issued its- decision in In re Amendments to the Florida Evidence Code, 210 So.3d 1231, 1239 (Fla. 2017), in which it specifically declined to adopt the “same specialty” amendment to section 766.102(5)(a) “to the extent it is procedural.” However, that decision did not address the constitutionality of the statute, see id. at 1241, and a determination of its constitutionality must wait until.the issue is properly raised and argued by the parties, see In re Amendments to the Fla. Evidence Code, 144 So.3d 536, 538 (Fla. 2014) (Pariente, J., concurring in part and dissenting in part). See also Bivins v. Rogers, 207 F.Supp.3d 1321, 1326 (S.D. Fla. 2016) (noting that a Florida Supreme Court, rules decision declining to adopt a statutory amendment to the extent it is procedural does “not vitiate or, overturn the statute” and “the statute remains the law in Florida”). Here, Lynch did not raise the constitutionality of sec-tion 766.102(5)(a)(1) in either the trial court or in her response to FOI’s petition. Therefore, resolution of that issue must wait for a case in which the issue is properly raised and argued.

For all of these reasons, we grant FOI’s petition for writ of certiorari and issue the writ, quashing the trial court’s order that reinstated Lynch’s- medical .malpractice complaint.

Petition granted.

CASANUEVA and KELLY, JJ., Concur.

      . Upon the release of In re Amendments, we ordered the parties to file a supplemental petition and a -supplemental response addressing the impact of that case on this proceeding. FOI filed a supplemental petition. Lynch did not file a supplemental response.