author: PER CURIAM. COHEN, J., COHEN, J.,

text:
    Todd BUCHANAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D12-4934
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 1, 2014
    Todd Buchanan, Bristol, pro se.
    James S. Purdy, Public Defender, and George D.E. Burden, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

SAWAYA and EVANDER, JJ., concur.

COHEN, J.,

concurs specially, with opinion.

COHEN, J.,

concurring specially.

Todd Buchanan appeals his judgment and sentence entered after a jury found him guilty of two counts of attempted manslaughter, two counts of aggravated battery, and one count of shooting a deadly missile into an occupied building. He argues that we should reverse and remand for resentencing in front of a different trial judge because his 105-year prison sentence constitutes a vindictive sentence.

The issue of whether a sentence is vindictive is a question of law subject to de novo review. Baxter v. State, 127 So.3d 726, 734 (Fla. 1st DCA 2013). The phrase “vindictive sentence” is a legal concept that is, theoretically, devoid of any pejorative connotation. In determining whether a presumption of vindictiveness applies, we must examine the totality of the circumstances, including whether the trial judge initiated plea discussions or departed from his or her role as neutral arbiter. Wilson v. State, 845 So.2d 142, 156 (Fla. 2003). A judge may not depart from this neutral role by urging the defendant to accept the State’s plea offer or implying that the sentence imposed will hinge on the defendant’s future procedural choices, such as exercising the right to a trial. Id. If the trial judge initiates a plea offer or advocates acceptance of the State’s plea offer, “these actions alone may give rise to a presumption of judicial vindictiveness that would shift the burden to the State to produce affirmative evidence on the record to dispel the presumption.” Id.; Simplice v. State, 134 So.3d 555, 557 (Fla. 5th DCA 2014); accord State v. Warner, 762 So.2d 507, 513-15 (Fla. 2000) (holding that trial judges are prohibited from initiating plea dialogue and must not state or imply alternative sentencing possibilities that hinge upon the defendant’s future procedural choices).

The trial judge’s actions in this case perfectly exemplify a scenario that gives rise to a presumption of vindictive sentencing. Before trial, the following colloquy took place:

[THE COURT]: So you have six counts that will put you at a minimum of 25 and maximum of life. I’m not telling you you’re going to get life in prison, but please don’t be surprised if you do. Life in prison in Florida means you will die in prison. You will never be a free man again. You will get convicted in this courtroom, this week or whenever this trial is over and you will—you will not be going home.
All right. I made an offer from the bench to your attorney and I understand you don’t want it, but I want to hear it from you, so you can’t later say that you didn’t know about it if you get life. How old are you now?
[BUCHANAN]: Thirty-two.
[THE COURT]: All right. I made an offer to your attorney of 30 years, 25-year [minimum mandatory], with five years on top of that, so it would be—you would do about 29 years, but you would at least have a light at the end of the tunnel, where you would be free and you would not spend the rest of your life in prison. You would actually get out and be a free man after that. If you get sentenced to life in prison, you will never get out. You will die in prison.
[BUCHANAN]: Right.
[THE COURT]: That means your parents will be gone, your family will be gone and you’re going to still be in prison. It’s my understanding that your attorney said you don’t want to take the 30 years and that’s fine. We have a lot of people turn that down. There is no going back once the jury comes in; do you understand that?
[BUCHANAN]: Yes, I do.
[THE COURT]: In other words, a young man—one day in here, ... he had a ten-year offer on an armed robbery with a firearm and he turned it down. He went to trial and he is going to die in prison. Now he’s serving life.
[BUCHANAN]: Right.
[THE COURT]: He could have been out in ten years. It’s nay understanding you don’t want any deals, you want to take your chances with th'e jury?
[BUCHANAN]: Right.

The judge’s prediction was remarkably accurate: Buchanan was convicted and sentenced to 105 years in prison—essentially a life sentence.

In my view, considering the totality of the circumstances, the judge’s plea offer and subsequent sentencing give rise to a presumption of vindictiveness. The trial judge participated in, and possibly initiated, plea discussions.- Additionally, a large disparity exists between the plea offer and ultimate sentence imposed. The issue then becomes whether the State has rebutted that presumption. The trial court listened to overwhelming evidence presented at trial. What became apparent at trial, which was not apparent in either the information or the arrest report, was that when Buchanan shot blindly into a bar, he endangered the lives of twenty-five to thirty people. The trial judge specifically noted this fact in his remarks at sentencing, and it explains the imposed sentence, In sum, I believe that the presumption of vindictiveness was rebutted.

      . Iam unable to determine whether the trial judge initiated the plea discussion because the conversation wherein the judge made the thirty-year plea offer to Buchanan’s counsel cannot be found in the record. See Warner, 762 So.2d at 514 ("A record must be made of all plea discussions involving the court.”). In coming to my conclusion that the totality of the circumstances gives rise to a presumption of vindictiveness, I have considered the fact that there is no record of the plea discussions with the trial judge and Mr. Buchanan's lawyer. See Baxter, 127 So.3d at 734-35 (noting that the existence of off-the-record plea discussions should be considered as part of the overall analysis in determining whether a presumption of vindictiveness exists).

      . Buchanan’s assertion that the trial judge was aware of the facts and circumstances of the case when he made the thirty-year offer is not supported by any citation to the record.


source: Caselaw Access Project

author: PER CURIAM. HARRIS, C.M., Senior Judge, HARRIS, C.M., Senior Judge,

license: Public Domain

text:
    Donnell LITTLES, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D13-2337
    District Court of Appeal of Florida, Fifth District.
    Decision filed August 15, 2014
    James S. Purdy, Public Defender, and Steven N. Gosney, of Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

SAWAYA and ORFINGER, JJ., concur.

HARRIS, C.M., Senior Judge,

dissents, with opinion.

HARRIS, C.M., Senior Judge,

dissenting.

I respectfully dissent.

Florida has, of course, an adversarial system of justice. In the criminal context, the defendant with considerable rights is pitted against the State with considerable resources. A neutral judge is in the middle protecting the rights of both parties. It has worked very well for us.

The following are the material facts in this dispute. Mr. Littles pled no contest to various charges and the judge set a sentencing date. At sentencing, the State sought to enhance Littles’s sentence under the Habitual Felony Offender provision but failed to arrange for a fingerprint expert. Littles refused to concede that the prints on the proffered judgments were his. The prosecutor announced to the judge that she would like for Littles to swear under oath that the prints were not his before she went to the trouble of getting a handwriting expert. Defense counsel objected, arguing that proof of identity was the State’s burden and that the defendant should not be compelled to incriminate himself. Since the State was not prepared to prove up the previous judgments at the sentencing hearing and did not request a continuance, the judge should have proceeded to sentence Littles without the enhancement.

Instead, since the prosecutor and the judge may have been of the opinion that the Fifth Amendment rights do not apply at sentencing, the judge, after warning Littles of the consequences of perjury, called him to the stand and required him to answer concerning his prior convictions. However, the Fifth Amendment still applies at sentencing. See Mitchell v. United States, 526 U.S. 314, 325, 119 S.Ct. 1307, 143 L.Ed.2d 424 (1999) (“stating that where sentence has yet to be imposed, court has already rejected proposition that incrimination is complete once guilt has been adjudicated, ... and we reject it again today”), (quoating Estelle v. Smith, 451 U.S. 454, 462, 101 S.Ct. 1866, 68 L.Ed.2d 359 (1981))). Littles admitted that the prints on the proffered judgments were his.

The prosecutor, perhaps after talking to her office, became aware that Littles’s rights against self-incrimination indeed continue through sentencing and advised the judge that she was uncomfortable going forward since a proper objection had been made, and yet, the court required Littles to testify. The State, in effect, agreed that it had not properly proved identity and failed to move for a continuance. Had the judge, acting impartially, it could have sentenced Littles without considering the unproved proffered judgments. Instead, this is what happened:

THE COURT: What you could do, at this point, I’ve asked you if there is anything further. You could say, ‘Yes, I would like to call a fingerprint expert And then, I’d say, “Are they available?” And then you’ll say, “May I have a continuance to get them here?”
And I’ll say, ‘Yes.”
STATE: Well, that’s what I’ll do, Judge. I just didn’t want to—that’s what I want to do at this point.

A court should not be so invested in the State’s proving identity that the court, in effect, makes the motion for continuance which permits the state to do that.

It is not surprising that the Littles withdrew his objection to the continuance. The continuance itself is not the issue on appeal; nor is the issue of whose prints are on the proffered judgment. The issue appealed is whether the judge, by improperly requiring Littles to testify over objection and by directing the prosecutor on how to apply for a continuance and then pre-an-nouncing his decision, departed from the role of a neutral magistrate. I agree that the judge did, and I would reverse with instruction to sentence Littles without the HFO enhancer.


author: PER CURIAM. COHEN, J. COHEN, J.,

text:
    Jeramie Lawrence EICHHORN, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D14-2528
    District Court of Appeal of Florida, Fifth District.
    Decision filed May 8, 2015
    J. Michael Blackstone, of J. Michael Blackstone, P.A., Crystal River, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

SAWAYA and BERGER, JJ., concur.

COHEN, J.

dissents, with opinion.

COHEN, J.,

dissenting.

Jeramie Eichhorn appeals the denial of his Florida Rule of Criminal Procedure 3.850 motion for postconviction relief. I would reverse and remand for a new trial.

Eichhorn was charged and convicted of two counts of sexual battery on a child under the age of twelve and one count of lewd and lascivious exhibition. He is currently serving a sentence of life imprisonment on the sexual battery charges and a concurrent fifteen-year sentence on the exhibition charge. Eichhorn raised a number of grounds in his motion, most of which were disposed of summarily. Two grounds were set for an evidentiary healing. Those two related grounds alleged ineffective assistance of counsel. The claims centered on the advice Eichhorn’s defense attorney gave him regarding a plea offer of five years in the Department of Corrections, and on the attorney’s failure to advise him regarding the admission of evidence from a Williams rule witness.

At the postconviction hearing, Eich-horn’s defense attorney, David Rodriguez, testified, along with Eichhorn and his mother. On the issues critical to the claims raised in the motion for postconviction relief, their testimony was fairly consistent.

Rodriguez believed, and continued to believe as of the date of the hearing, that the State had a weak case, and that Eichhorn would be acquitted. He unequivocally communicated this to both Eichhorn and his mother:

[Eichhorn’s postconviction attorney]: Would it be fair to say, Mr. Rodriguez, that you believed he’d be found not guilty?
[Rodriguez]: Absolutely.
[Eichhorn’s postconviction attorney]: And did you convey that to them?
[Rodriguez]: Absolutely. I don’t deny that at all.
[Eichhorn’s postconviction attorney]: And should a client believe in the veracity of his attorney?
[Rodriguez]: Absolutely. I would hope so—
[Eichhorn’s postconviction attorney]: [D]id you convey your confidence in this case and your lack of confidence that the [S]tate could get a conviction to Mr. Eichhorn?
[Rodriguez]: Sure. Absolutely. I don’t deny that at all ....
[Eichhorn’s postconviction attorney]: Okay. And Mr. Eichhorn had every reason in the world to believe you, right?
[Rodriguez]: Again, I would hope that he would trust my opinion, sure.

The trial judge focused on Rodriguez’s testimony that he did not “guarantee” he would win; however, that is certainly the impression that he gave his client. Both Eichhorn and his mother testified that Rodriguez told them that there was “no way” they should take the five-year plea offer made by the State, and that the offer revealed that the State had no case. Although Rodriguez denied making those statements, he could not actually recall the State having made a five-year plea offer. When asked whether he had told Eichhorn that he would be going home at the end of the trial, Rodriguez was again unable to recall, but said that it was possible. Perhaps Rodriguez’s memory might have been refreshed had he availed himself of the opportunity to review his file. But, despite repeated requests for its production, Rodriguez failed to produce the file, conveniently claiming that it had been misplaced.

At the time Rodriguez was painting a picture of freedom for Eichhorn, Rodriguez knew that the victim was available for trial. And despite failing to obtain a pretrial ruling on the competency of the victim to testify, he was confident that “the child was not competent to testify .... I did not believe it and to this day and all due respect to the—to the judge, I do not believe, and I’ll sit here on the stand and tell you right now, that that child was ... not competent to testify.”

Additionally, Rodriguez failed to obtain a pretrial ruling on the admissibility of certain Williams rule evidence; yet he communicated to Eichhorn that he “didn’t think the Court was going to grant the Williams rule and allow [the Williams rule witness] to testify.”

The testimony of Eichhorn and his mother was generally consistent with Rodriguez’s. Both Eichhorn and his mother testified that Rodriguez had unequivocally advised Eichhorn that he would be acquitted of all charges. Both testified that they were not informed that the Williams rule witness would testify until trial, which Rodriguez denied.

It is not our function to reweigh the evidence. Still, the evidence in this case is uncontroverted that, while the word “guarantee” might not have been used, that was the import of the advice given. Additionally, despite failing to obtain a pretrial ruling on the victim’s competency, under the mere belief that the victim was not competent to testify, Rodriguez conveyed to Eichhorn that the court would not allow the victim to testify. Despite failing to obtain a pretrial ruling on the Williams rule evidence, Rodriguez advised Eichhorn that the prior allegations would not come into evidence. Rodriguez’s actions resulted in his client turning down a five-year offer, and instead serving a life sentence in prison. Even if the trial judge completely rejected the testimony of Eichhorn and his mother, as he appears to have done, the testimony of Rodriguez alone reflects ineffective assistance of counsel.

The testimony, taken as a whole, reflected serious deficiencies and misadvice. In denying the motion for postconviction relief, the trial judge ignored the import of the witnesses’ testimony, and instead focused on the answers to questions that the judge himself posed to Rodriguez.

The trial court made a credibility determination, believing Rodriguez rather than Eichhorn and his mother. At the time of the hearing, Rodriguez had been suspended indefinitely from the practice of law by the Florida Bar for a pattern of conduct reflecting dishonesty and obstruction of the disciplinary process. The trial judge was aware of the suspension and should have been aware that such emergency suspensions are rare and reflect serious concerns about a lawyer’s character. Apparently that did not trouble the judge. Subsequently, the Florida Bar disbarred Rodriguez for misconduct involving dishonesty, fraud, deceit, or misrepresentation.

The facts of this case present a quintessential example of ineffective assistance of counsel. Accordingly, I would reverse the conviction.

      . Williams v. State, 110 So.2d 654 (Fla. 1959).

      . No objection was raised either below or on appeal to the trial judge’s questioning of the witness. This questioning elicited evidence not covered by the prosecutor, which the trial judge relied upon to deny the motion.


text:
    Roderick HALES a/k/a Roderick Hayles, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D15-2657
    District Court of Appeal of Florida, Fifth District.
    Decision filed April 22, 2016
    Roderick M. Hales, Daytona Beach, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

LAWSON, C.J., and BERGER, J., concur.

COHEN, J.,

concurs specially, with opinion.

COHEN, J.,

concurring specially.

This Court rarely takes time to write opinions in cases involving postconviction relief under Florida Rule of Criminal Procedure 3.850 due to the substantial volume of such appeals. A great majority of these cases are affirmed per curiam, without an opinion. When we do write, it is usually only to reverse the trial court for an error in its decision—correcting a flaw in the trial court’s reasoning or a procedural failing.

In the instant case, though, I wish to acknowledge the thorough analysis detailed in the trial court’s order denying Appellant’s motion. The petition was accompanied by voluminous attachments and alleged eleven grounds of ineffective assistance of counsel based on the allegedly deficient performance of two different attorneys. All but one of Appellant’s claims were summarily denied. The order and attachments in this case are a model of how such summary denials should be handled. I concur with the majority in finding no error and affirming.


author: PER CURIAM. ORFINGER, J., ORFINGER, J.,

text:
    Richard Scott BATTERSON a/k/a Scott Batterson, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    Case No. 5D14-3744
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 17, 2016

      Amy S. Tingley, Robert J. Stovash, Matthew J. Pearce and Kirsten D. Blum, Sto-vash, Case & Tingley, P.A., Orlando; Michael J. Snure and William R. Ponall, of Snure & Ponall, P.A., Winter Park; and Fritz Scheller, of Fritz Scheller, P.L., Orlando, for Appellant/Cross-Appellee.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant Attorney General, Daytona Beach, for Ap-pellee/Cross-Appellant.
   PER CURIAM.

AFFIRMED.

SAWAYA and BERGER, JJ., concur.

ORFINGER, J.,

dissents, with opinion.

ORFINGER, J.,

dissenting.

Richard Scott Batterson appeals his conviction of bribery in violation of section 838.015(1), Florida Statutes (2013). Because I believe the State failed to prove that Batterson solicited or accepted a benefit, an essential element of the offense, I would reverse his conviction. Thus, I respectfully dissent.

Florida law makes bribery a criminal offense. Specifically, section 838.015(1) makes it a crime for a public servant to corruptly request, solicit, accept, or agree to accept for himself or another, any pecuniary or other benefit not authorized by law with an intent or purpose to influence the performance of the public official’s public duties. Section 838.014(1), Florida Statutes (2013), defines “benefit” to mean a “gain or advantage, or anything regarded by the person to be benefited as a gain or advantage, including the doing of an act beneficial to any person in whose welfare he or she is interested, including any commission, gift, gratuity, property, commercial interest, or any other thing of economic value not authorized by law.”

Batterson argues that the trial court erred in denying his motion for judgment of acquittal. In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Pagan v. State, 830 So.2d 792, 803 (Fla. 2002). Generally, an appellate court will not reverse a conviction that is supported by competent, substantial evidence. Id. In moving for a judgment of acquittal, a defendant admits the facts stated in the evidence adduced, and every conclusion favorable to the adverse party that can be reasonably drawn from the evidence. Reynolds v. State, 934 So.2d 1128, 1145 (Fla. 2006). There is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact can find the existence of the elements of the crime beyond a reasonable doubt. Pagan, 830 So.2d at 803. An appellate court’s review is limited to whether the evidence the State presented in its case in chief was legally sufficient. Robinson v. State, 936 So.2d 1164, 1166 (Fla. 1st DCA 2006).

Because we view the evidence in the light most favorable to the State, the facts are quoted directly from the State’s answer brief:

Carolyn Johnson, a lobbyist who formerly lived in Orlando, was in Orlando for work on July 18, 2013, and called Batterson, Chris Dorworth, and several other people to get together for happy hour at CaddyShanks. Once there, she talked with Batterson about him being on the [Orlando-Orange County] Expressway Authority Board, and him possibly becoming vice chairman. Batterson was “bragging” about it.
Mark Callahan has worked as an engineer in central Florida since 1986, and the companies that he has worked for have had contracts with the Expressway Authority. He is a project manager, and also serves as a client/service manager; it is his responsibility to get to know the clients, understand what they are looking for and the type of projects they have coming up. His current employer, CH2M Hill, had a contracts [sic] with the Expressway Authority, one of which was the Wekiva Parkway contract. He understands the procedure for obtaining contracts with the Expressway Authority. The Authority staff handles most of the procurement process, then the staff recommends to the board, and the board votes and approves.
Callahan has contacts with the board members for a number of reasons. He introduced himself to Batterson after Batterson was appointed as a board member to the Expressway Authority, and indicated a willingness to meet with Batterson to discuss any questions he may have had related to the Wekiva Parkway project. Callahan had gotten in touch with Batterson maybe four or five times after Batterson was appointed to the Authority board.
On July 18, 2013, Callahan sent Bat-terson an email about “catching up,” and Batterson invited him to “swing by” CaddyShanks that night. Callahan wanted to discuss a new member that had been appointed to the board, Marco Pena. Batterson was at CaddyShanks when Callahan arrived, as was Chris Dorworth. Callahan sat next to Batter-son.
Batterson asked Callahan if his company would be interested in having the general consulting contract (GEC) for the Expx-essway Authority. The GEC is a large and prestigious contract that is coveted in their industry. It was the type of contract that Callahan’s firm would be very interested in. Callahan told Batterson that a firm called Atkins already had the contract, and asked how he would make a change. Batterson indicated that he was extremely confident that he would become chairman of the Expressway Authority. Batterson was bold and confident, almost puffed up about becoming chairman. Batterson:
[c]ontinued on, said that I’ll be chairman. He indicated that Marco Pena was appointed by the Governor and that was a person he had recommended to the Governor’s office to be appointed and that Marco was his boy, was the terminology I recalled he used, and he went on further and indicated that Mr. Dorworth, who was sitting across the table, was very close to Ananth Persaud, and Ananth Per-saud is the Secretary of the Florida D.O.T. and that Mr. Dorworth also was dating, at least, at that time, a young lady named Rebecca Hammond who worked for Florida Department of Transportation and worked directly with Mr. Persaud, as well, and as well [sic] Noranne Downs, who was the Assistant Secretary for Florida D.O.T. and was a board member of the Orlando Expressway Authority.
Callahan explained the relationships between all of the people he had mentioned. Dorworth was dating Hammond, who worked for DOT, and Noranne Downs was a board member of the Expressway Authority. It takes three board votes to approve a contract.
At that point it was Callahan’s belief that Batterson could control the board. Callahan believed that Batterson would vote, that Marco Pena was his voter, and that through Chris Dorworth, they could somehow align Noranne Downs’s vote. At first he was thinking how could this happen, but it became increasingly clear to him that it could. In his thirty years as an engineer, Callahan has never had a board member come up to him and offer him a contract.
As the conversation continued and it became clear to Callahan that Batterson seemed to have the ability to collect votes at the board level, Batterson indicated that he had some firms he would like Callahan to “put on the team” if they were to go after the general contract. It became concerning to Callahan because he had never really had a public servant ask him to put specific people on teams. It is not generally how they operate, and he indicated to Batterson that they would have to review each firm and make sure they were qualified. Generally, Callahan’s firm has firms they have worked with in the past, and staff level at the client (Expressway Authority) will also indicate which firms are doing a good job, and they assemble team members from that. But no staff or board members had ever told him who to put on the team.

(Citations omitted). The State subsequently filed an information, alleging that Bat-terson “corruptly request[ed] or solicit[ed] MARK CALLAHAN, for himself or another, any pecuniary or other benefit not authorized by law; to wit: the hiring of, subcontracting with or participation by individuals, firms or other entities suggested] by RICHARD SCOTT BATTER-SON a/k/a SCOTT BATTERSON in a consulting contract .,.. ”

At the trial, the court instructed the jury that to prove the crime of bribery, the State was required to prove four elements beyond a reasonable doubt:

(1) RICHARD SCOTT BATTERSON was a Public Servant.
(2) RICHARD SCOTT BATTERSON requested or solicited from MARK CALLAHAN the hiring or inclusion of individuals, firms, or other entities of RICHARD SCOTT BATTERSON’s choosing as employees or subcontractors or participants in a consulting contract or other arrangement approved or awarded by Orlando-Orange County Expressway Authority to CH2M Hill[.]
(3) The the [sic] hiring or inclusion of individuals, firms, or other entities of RICHARD SCOTT BATTERSON’s choosing was something of value, benefit, or advantage to RICHARD SCOTT BATTERSON or person in whose welfare RICHARD SCOTT BATTERSON was interested, which was not authorized by law.
(4) The request or solicitation was made with the intent of corruptly being influenced in the performance of some act that
MARK CALLAHAN believed to be:
a. within the official discretion of RICHARD SCOTT BATTERSON, or
b. in violation of a public duty of RICHARD SCOTT BATTERSON, or
c. in performance of public duty of RICHARD SCOTT BATTERSON
OR
RICHARD SCOTT BATTERSON represented as being
a. within his official discretion, or
b. in violation of his public duty, or
c. in performance of his public duty.

The evidence, viewed in the light most favorable to the State, supports the jury’s conclusion that Batterson was a public servant and solicited Callahan to include certain unidentified firms in a consulting contract to be awarded by the Expressway Authority. However, the evidence is woefully lacking that Batterson, or someone in whose welfare he was interested, stood to gain some benefit or advantage from such an arrangement.

The State argues that whether “Batter-son obtained a benefit is an issue of intent and therefore should be left to the fact-finder to resolve.” I disagree, because such an analysis improperly conflates the intent element of the crime with the benefit element. Benefit and corrupt intent are two separate and distinct elements of the crime, and the State must prove each beyond a reasonable doubt. The existence of a benefit is not an issue of intent, although I agree that if there was evidence that Batterson stood to benefit from such an arrangement, the determination of corrupt intent is a question for the jury. See State v. Flansbaum-Talabisco, 121 So.3d 568, 571 (Fla. 4th DCA 2013).

The State argues that when Batterson told Callahan that he had some firms that he would like Callahan to “put on the team,” the “only inference that can be drawn from this evidence was that Batter-son intended to receive a benefit.” To me, that is a leap too far. We might speculate that one of the unnamed firms that Batter-son wanted to “put on the team” was providing some benefit to him. However, we could also speculate that Batterson was merely interested in seeing that disadvantaged businesses or local contractors be given a fair shot at the subcontracts that would, of necessity, be entered into by Callahan’s firm. But speculation is not proof and criminal convictions must not be based on speculation. Straughter v. State, 384 So.2d 218, 219 (Fla. 3d DCA 1980). I would reverse Batterson’s conviction.

      . More precisely, section 838.015(1), Florida Statutes (2013), provides:
      (1) "Bribery” means corruptly to give, offer, or promise to any public servant, or, if a public servant, corruptly to request, solicit, accept, or agree to accept for himself or herself or another, any pecuniary or other benefit not authorized by law with an intent or purpose to influence the performance of any act or omission which the person believes to be, or the public servant represents as being, within the official discretion of a public servant, in violation of a public duty, or in performance of a public duty.


author: PER CURIAM. LAMBERT, J., LAMBERT, J.,

text:
    COLLINS ASSET GROUP, LLC, Appellant, v. Luisa LEE, Appellee.
    Case No. 5D15-1544
    District Court of Appeal of Florida, Fifth District.
    Decision filed June 17, 2016
    Mark E. Pollack, of Pollack & Rosen, P.A., Coral Gables, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED.

BERGERand WALLIS, JJ., concur.

LAMBERT, J.,

concurring specially with opinion.

LAMBERT, J.,

concurring specially.

Appellant, filed a one-count complaint against Appellee, seeking money damages for the non-payment of a promissory note. Appellee failed to respond to the complaint, and a clerk’s default was entered against her upon Appellant’s motion. Appellant took no further action and the case sat dormant for approximately four months until the trial judge entered an order directing Appellant to file a status report within thirty days, if Appellant had not otherwise noticed the case for trial. The order was mailed directly to the attorney who had filed the motion for default and contained a caveat that an unexcused failure to comply with the order could lead to sanctions, including dismissal of the action.

Appellant or, more particularly, Appellant’s counsel did not comply with this order. The trial court thereafter entered the order on appeal, which dismissed the entire action. This final order was mailed directly to the attorney who filed the motion for default.

Eight days after this final order was rendered, Appellant, now through the attorney who filed the complaint, filed an unverified “Motion for Rehearing and/or Motion for Relief from Order,” unaccompanied by affidavits, arguing excusable neglect for failing to respond to the order to file a status report. In this motion, counsel basically states that: (1) the case should not be dismissed for lack of prosecution; (2) the court or the clerk of court sent the order to a different attorney in the firm; (3) although the law firm received the order, counsel who filed the rehearing motion had not seen it; and (4) the ease had not been previously tasked to him to take action. Counsel also provided the untimely status report. The trial judge denied the motion without a hearing.

Whether Appellant’s motion was brought pursuant to rule 1.530 or 1.540, the abuse of discretion review standard applies. See Kelly v. BankUnited, FSB, 125 So.3d 981, 981 (Fla. 4th DCA 2013) (stating a trial court’s denial of relief from a final judgment for excusable neglect is reviewed for abuse of discretion). I conclude that the trial judge did not abuse her discretion in denying the “Motion for Rehearing and/or Motion for Relief’ from the final order. “Excusable neglect must be proven by sworn statements or affidavits. Unsworn assertions of excusable neglect are insufficient.” Geer v. Jacobsen, 880 So.2d 717, 720 (Fla. 2d DCA 2004) (quoting DiSarrio v. Mills, 711 So.2d 1355, 1356 (Fla. 2d DCA 1998)). Furthermore, unless the motion and supporting affidavits state a claim of “colorable entitlement to relief,” an evidentiary hearing on the motion is not required. Richards v. Crowder, 191 So.3d 524 (Fla. 4th DCA 2016) (citations omitted). Here, Appellant’s motion was insufficient as it was neither a sworn statement nor accompanied by an affidavit. Additionally, the allegations in Appellant’s motion, whether sworn to or not, and the facts described therein and set forth above do not establish a colorable entitlement to relief.

Lastly, the final order of dismissal was imposed as a sanction. When such an order is rendered due to an attorney’s failure to adhere to a filing deadline, the Florida Supreme Court has adopted a set of six factors that trial courts should consider before dismissing the action. See Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla. 1993). The trial judge is also required to make express findings as to these factors in the dismissal order or judgment. Bank of N.Y. Mellon v. Depiero, 178 So.3d 552, 553 (Fla. 1st DCA 2015). In the present case, the judge did not make these findings. However, Appellant waived this potential issue by not raising it in the initial brief. See City of Miami v. Steckloff, 111 So.2d 446, 447 (Fla. 1959) (“[Pjoints covered by a decree of the trial court will not be considered by an appellate court unless they are properly raised and discussed in the briefs.”); Anheuser-Busch Cos. v. Staples, 125 So.3d 309, 312 (Fla. 1st DCA 2013) (holding that an appellate court is “not at liberty to address issues that were not raised by the parties” (citations omitted)).

Based on the foregoing, I agree that affirmance is appropriate.

      . The attorney who filed the complaint and the attorney who filed the motion for default are partners in the same law firm.

      . Florida Rule of Civil Procedure 1.530 provides for the filing of motions for rehearing and rule 1.540 pertains to motions to vacate final judgments or final orders. Neither rule was cited in the motion.


author: PER CURIAM.

text:
    Samuel JONES, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D17-0614
    District Court of Appeal of Florida, First District.
    Opinion filed March 31, 2017.
    Samuel Jones, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, and Kaitlin Weiss and Virginia Hams, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

Appellant seeks review of the circuit court’s January 31, 2017, Order Denying Defendant’s Motion to Correct Illegal Sentence. Because appellant’s direct appeal of judgment and sentence is pending, the trial court was without jurisdiction to rule on appellant’s motion. See Buckhalter v. State, 168 So.3d 348 (Fla. 1st DCA 2015).

Accordingly, we quash the order denying appellant’s motion.

WOLF, MAKAR, and M.K. THOMAS, JJ., CONCUR.


author: SILBERMAN, Judge.

text:
    SYBAC SOLAR, GMBH, f/k/a Sybac Solar, AG, a Foreign Corporation, Petitioner, v. 6TH STREET SOLAR ENERGY PARK OF GAINESVILLE, LLC, Respondent.
    Case No. 2D16-2624
    District Court of Appeal of Florida, Second District.
    Opinion filed April 5, 2017

      Michael M. Brownlee and J. Brock McClane of Fisher Rushmer, P.A., Orlando, and John H. Adams, Cecily M. Welsh, and Alan Bookman, of Emmanuel Sheppard & Condon, Pensacola, for Petitioner.
    Daniel A. Fox and Benjamin W. Hardin, Jr., of Hardin & Ball, P.A., Lakeland, for Respondent.
   SILBERMAN, Judge.

Sybac Solar, GMBH, seeks certiorari review of an order granting a motion to compel deposition filed by 6th Street Solar Energy Park of Gainesville, LLC. 6th Street sought to depose Christian Rauten-berg as Sybac’s corporate representative in furtherance of 6th Street’s counterclaim for defamation against Sybac based on Rautenberg’s alleged statements. We conclude that it was a departure from the essential requirements of the law to require Rautenberg to testify as Sybac’s corporate representative regarding matters on which the two have adverse interests. Accordingly, we grant the petition.

In December 2012, Sybac filed a complaint against 6th Street to recover approximately $6 million Sybac allegedly loaned 6th Street to develop a solar power plant in Gainesville. In April 2015, 6th Street served a notice of deposition on Sybac seeking to depose a corporate representative pursuant to Florida Rule of Civil Procedure 1.310(b)(6) (2011). Sybac produced two representatives, Konstantin Sassen and Laura Tyson, who testified for over two days. 6th Street then noticed Rautenberg for deposition as a corporate representative. In November 2015, Rau-tenberg testified as the corporate representative but on advice of counsel refused to answer any questions pertaining to a meeting held on December 20, 2013. Statements Rautenberg allegedly made at this meeting are the subject of a separate defamation action filed by one of 6th Street’s founding partners against Rautenberg individually and against Sybac for vicarious liability.

In December 2015, 6th Street filed an amended counterclaim in this case adding a defamation count against Sybac in which it asserted that Rautenberg made the alleged defamatory statements on December 20, 2013, as an agent of Sybac. Sybac answered the counterclaim and filed affirmative defenses. Among other things, Sy-bac asserted that it did not approve the December 20, 2013, meeting; that it did not ratify any statements Rautenberg made at the meeting; and that Rauten-berg was not acting as Sybac’s agent when he allegedly made the defamatory statements.

6th Street filed a motion to compel in which it requested, among other things, that Rautenberg be compelled to give a deposition as corporate representative of Sybac and answer deposition questions regarding the December 20, 2013, meeting. After a hearing in April 2016, the trial court granted the motion to compel, ordered Rautenberg to appear for a continued deposition as Sybac’s corporate representative, and required Rautenberg to answer “[a]ll questions in any way concerning” the December 20, 2013, meeting. This petition for certiorari followed.

To be entitled to certiorari relief, “[a] petitioner must establish (1) a departure from the essential requirements of the law, (2) resulting in material injury for the remainder of the trial (3) that cannot be corrected on postjudgment appeal.” Barker v. Barker, 909 So.2d 333, 336 (Fla. 2d DCA 2005) (quoting Parkway Bank v. Fort Myers Armature Works, Inc., 658 So.2d 646, 648 (Fla. 2d DCA 1995)). The last two elements are jurisdictional and must be addressed before this court can reach the merits of the petition. Id.

Generally speaking, orders compelling depositions often result in material injury that cannot be corrected on appeal, or irreparable harm, because once the information is released, any damage cannot be undone. Univ. of W. Fla. Bd. of Trs. v. Habegger, 125 So.3d 323, 325 (Fla. 1st DCA 2013); Horne v. Sch. Bd. of Miami-Dade Cty., 901 So.2d 238, 240 (Fla. 1st DCA 2005). This case involves irreparable harm arising from the intended use of Rautenberg’s deposition testimony as Sy-bac’s corporate representative to bind Sy-bac. See Carriage Hills Condo., Inc. v. JBH Roofing & Constructors, Inc., 109 So.3d 329, 335 (Fla. 4th DCA 2013) (“When a Rule 1.310(b)(6) deposition is properly noticed and conducted, the testimony of the designee ‘is deemed to be the testimony of the corporation itself.’” (quoting State Farm Mut. Auto. Ins. Co. v. New Horizont, Inc., 250 F.R.D. 203, 212 (E.D. Pa. 2008))).

On the merits, Sybac argues that the circuit court departed from the essential requirements of the law by failing to apply “the plain and unambiguous language” of rule 1.310(b)(6) granting a corporation the sole authority to designate its corporate representative. Sybac claims that rule 1.310(b)(6) does not authorize the deposing party to unilaterally name a person to testify on behalf of the corporation, especially when that person has adverse interests to the corporation.

Rule 1.310(b)(6) circumscribes the procedure for noticing the deposition of a corporation as follows:

In the notice a party may name as the deponent a public or private corporation, a partnership or association, or a governmental agency, and designate with reasonable particularity the matters on which examination is requested. The organization so named shall designate one or more officers, directors, or managing agents, or other persons who consent to do so, to testify on its behalf and may state the matters on which each person designated will testify. The persons so designated shall testify about matters known or reasonably available to the organization. This subdivision does not preclude taking a deposition by any other procedure authorized in these rules.

(Emphasis added.) The substance of this rule was taken from an amendment to Federal Rule of Civil Procedure 30(b)(6), which is rule 1.310(b)(6)’s federal counterpart. Carriage Hills, 109 So.3d at 334. Under these rules, the party seeking to depose a witness must describe the subject for examination with reasonable particularity. The corporation must then produce a witness to testify regarding this subject matter. Id.

The corporation is not required to designate “the witness with the ‘most knowledge”’ of the designated subject matter; indeed the witness is not required to have any personal knowledge whatsoever. Id. And there may be a good reason why a corporation does not produce the most knowledgeable witness for deposition. Id. at 335. For example, the person with the greatest knowledge of the subject matter “may not totally embrace the corporation’s position.” Id. Instead, the corporation is required to prepare the designated witness to testify regarding the designated subject matter. Id. at 334. The rule thus “streamlines the discovery process and gives the corporation being deposed more control by permitting it to select and prepare a witness to testify on its behalf.” Id. at 335.

That said, the corporation does not have sole control over which of its corporate officials may be deposed. See Racetrac Petroleum, Inc. v. Sewell, 150 So.3d 1247, 1252 (Fla. 3d DCA 2014); Plantation-Simon, Inc. v. Bahloul, 596 So.2d 1159, 1160-61 (Fla. 4th DCA 1992). Rule 1.310(b)(6) expressly states that the procedures therein are not exclusive: “This subdivision does not preclude taking a deposition by any other procedure authorized in these rules.” As further explained in the committee notes to rule 1.310(b)(6)’s federal counterpart:

This procedure supplements the existing practice whereby the examining party designates the corporate official to be deposed. Thus, if the examining party believes that certain officials who have not testified pursuant to this subdivision have added information, he may depose them. On the other hand, a court’s decision whether to issue a protective order may take account of the availability and use made of the procedures provided in this subdivision.

Plantation-Simon, 596 So.2d at 1160 (quoting Fed. R. Civ. P. 30(b)(6) advisory committee’s note to 1970 amendment).

Therefore, even though a corporation has the sole responsibility for choosing its corporate representative under rule 1.310(b)(6), the deposing party is not necessarily limited to deposing only that witness. Racetrac Petroleum, 150 So.3d at 1252; Plantation-Simon, 596 So.2d at 1161. But the deposing party does not have the unilateral authority to select the corporate representative who shall testify on behalf of the corporation. Racetrac Petroleum, 150 So.3d at 1252; Chiquita Int’l Ltd. v. Fresh Del Monte Produce, N.V., 705 So.2d 112, 113 (Fla. 3d DCA 1998); Plantation-Simon, 596 So.2d at 1161. Instead, the deposing party’s request to depose a specific corporate representative is subject to the circuit court’s discretion to issue a protective order. Racetrac Petroleum, 150 So.3d at 1252; Plantation-Simon, 596 So.2d at 1161-62.

Accordingly, the trial court was not bound by Sybac’s selection of Sassen and Tyson as Sybac’s corporate representatives or 6th Street’s request to depose Bautenberg as Sybac’s corporate representative. Instead, the trial court should have considered whether, as argued by Sybac, Bautenberg’s interests were so adverse to Sybac’s that he would not be an appropriate corporate spokesperson. Based on Sybac’s defense to 6th Street’s defamation counterclaim, Bautenberg’s interests appear to be directly adverse to those of Sybac, and he was therefore an inappropriate spokesperson for the corporation. See Sanders v. Circle K Corp., 137 F.B.D. 292, 294 (D. Ariz. 1991) (denying a motion to compel the deposition of a named corporate representative because he was accused of sexual harassment and discrimination and it was in his interest to argue that he acted in the course and scope of his employment while it was in the employer’s interest to argue he was not).

We conclude that it was a departure from the essential requirements of the law for the circuit court to require Bautenberg to testify as Sybac’s corporate representative regarding matters on which the two have adverse interests. Accordingly, we grant the petition for certiorari and quash that portion of the order requiring Bauten-berg to answer “[a]ll questions in any way concerning” the December 20, 2013, meeting as a corporate representative. In so doing, we note that 6th Street is not precluded from noticing the deposition of a different corporate representative in furtherance of the defamation counterclaim or from noticing the deposition of Bautenberg in his individual capacity.

Petition granted; order quashed in part.

SLEET and BADALAMENTI, JJ., Concur.


author: SALARIO, Judge. KELLY, J., VILLANTI, C.J., VILLANTI, Chief Judge,

text:
    D.H. and L.H., minor children, BY AND THROUGH their next friends and permanent guardians, R.H. and S.H., Appellants, v. ADEPT COMMUNITY SERVICES, INC.; and B.E.A.R.R., Inc., Appellees. B.E.A.R.R., Inc., Appellant, v. D.H. and L.H., minor children, by and through their next friends and permanent guardians, R.H. and S.H., Appellees.
    Case No. 2D15-304, Case No. 2D15-677
    District Court of Appeal of Florida, Second District.
    Opinion filed April 5, 2017.

      Howard M. Talenfeld and Nicole R. Coniglio of Talenfeld Law, Fort Lauder-dale; and Richard A. Filson of Filson & Penge, P.A., Sarasota, for D.H. and L.H.
    J. Robert McCormack and William J. Cantrell of Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Tampa, for Adept Community Services, Inc.
    Kevin M. Davis of Mintzer Sarowitz Zeris Ledva & Meyers LLP, Jacksonville, for B.E.A.R.R., Inc.
   SALARIO, Judge.

These related cases, consolidated for record and oral argument purposes, involve two separate challenges, brought at different stages of the underlying trial court litigation, to a complaint asserting the negligence claims of two minor children. In case 2D15-304, twin brothers D.H. and L.H. (the twins), through their grandparents, appeal from a final summary judgment in favor of Adept Community Services, Inc. and B.E.A.R.R., Inc. finding that them complaint was barred by the four-year statute of limitations applicable to negligence claims under section 95.11(3)(a), Florida Statutes (2006). In case 2D15-677, B.E.A.R.R. appeals from an order denying its motion to dismiss the complaint on statute of limitations grounds. We affirm the summary judgment because the record reflects no genuine issue of material fact that the twins’ claims accrued more than four years before they filed suit, and the tolling for minors’ claims provided by section 95.051(l)(h) is inapplicable here. That disposition makes it unnecessary to address the order denying B.E.A.R.R.’s motion to dismiss, and we dismiss that appeal as moot.

I.

The twins were born on September 12, 2005. Their mother, who is developmentally disabled, received services from Adept and B.E.A.R.R. under a Medicaid program that provides in-home support for disabled adults. The services included coordination with the Medicaid program, life-coaching, and the assistance of a live-in aid. They were intended to help her live on her own and care for her children.

Those services, sadly, did not meet their objectives. On April 11, 2006, the sheriffs office removed the twins from the mother’s custody, and a petition to shelter them based on allegations of abandonment, abuse, and neglect was filed in dependency court. See § 39.402(l)(a), Fla. Stat. (2006). The petition alleged that the twins’ mother fired her live-in aid, was incapable of caring for the twins independently, and had multiple sex partners, including one with a criminal history. The petition also alleged that the mother dropped the twins multiple times, including once in the two weeks leading up to the filing of the petition. The dependency court held a hearing and granted the petition, ordered the twins sheltered with the Department of Children and Families, and appointed a guardian ad litem to represent the twins’ best interests.

After additional proceedings, the dependency court, on May 16, 2006, adjudicated the twins dependent and placed them in the “temporary care, custody, and control” of their maternal grandparents, R.H. and S.H. (the grandparents). The court adopted a case plan intended to reunite the twins with then- mother, but the mother failed to comply with the plan and remained incapable of caring for the children on her own. As a result, on April 13, 2007, the dependency court appointed the grandparents permanent guardians for the twins and discharged the guardian ad litem.

Three and a half years later, on November 22, 2010, the grandparents filed a negligence complaint against Adept and B.E.A.R.R. in circuit court. The grandparents sued on behalf of the twins as their “next friends and permanent guardians.” In sum, they alleged that Adept and B.E.A.R.R. knew that the mother required round-the-clock help to take care of the twins yet negligently provided services that left the twins alone in the mother’s care. They alleged that the twins were fed, dressed, and bathed inappropriately—and sometimes not at all—were dropped by the mother, and suffered physical, mental, and emotional injuries as a result.

B.E.A.R.R. moved to dismiss the complaint, asserting that it was barred by the four-year statute of limitations applicable to negligence claims under section 95.11(3)(a). The trial court denied that motion without prejudice to B.E.A.R.R.’s raising the statute of limitations issue again by way of motion for summary judgment.

The parties took thorough discovery, which included the depositions of the grandparents. Their testimony reflects that even before the twins were removed from their mother’s care, they were aware of Adept’s and B.E.A.R.R.’s roles in assisting the mother and that the twins had been abused and neglected while in their mother’s care. The results of that abuse and neglect became more evident after the twins were removed from their mother’s custody and the grandparents observed physical and psychological injuries to the children. The grandfather testified that as of May 19, 2006—the date the Department produced comprehensive behavioral health assessments on the twins noting developmental delays and anxiety problems due to abuse and neglect by the twins’ mother— he knew about some of the twins’ injuries and attributed them to the negligence of Adept and B.E.A.R.R.

B.E.A.R.R. filed a motion for summary judgment, in which Adept later joined, arguing, among other things, that the twins’ negligence claims were barred by the four-year statute of limitations. In substance, they argued that the twins’ mother and the grandparents were both aware of the twins’ injuries more than four years before suit was filed and could have brought an action on their behalves within the four-year limitations period but failed to do so. The twins disputed both the legal capacity of the mother and of the grandparents to sue on the twins’ behalf and the mother’s and grandparents’ knowledge of the alleged invasion of the twins’ legal rights. The court denied the motion in an unelabo-rated order.

Adept and B.E.A.R.R. filed motions for reconsideration. They argued that the grandparents were able to sue on the twins’ behalf as next friends at any time after they became aware of the twins’ injuries and their connection to the alleged negligence of Adept and B.E.A.R.R., which they contended was no later than April or May 2006. As a result, they argued, the twins’ November 2010 negligence complaint was time-barred. The trial court agreed and entered a final summary judgment in favor of Adept and B.E.A.R.R. The twins, through their grandparents, timely appealed.

II.

We review the trial court’s grant of summary judgment in case 2D15-304 de novo. Green v. APAC-Fla., Inc., 935 So.2d 1231, 1233 (Fla. 2d DCA 2006). The question presented is whether the trial court was correct that there is no genuine issue of material fact as to whether the twins’ negligence claims were barred by the statute of limitations. See Fla. R. Civ. P. 1.510(c). The twins argue that there are genuine issues of material fact both as to when their claims accrued for limitations purposes and whether the period of limitations was tolled until the grandparents were appointed the twins’ permanent guardians on April 13, 2007.

The questions of when a cause of action accrues for limitations purposes and whether a limitations period has been tolled are legally distinct. The question of accrual is concerned with determining the date upon which the statute of limitations begins to run—i.e., the date upon which the plaintiff may bring an action on the claim asserted. See Hearndon v. Graham, 767 So.2d 1179, 1184-85 (Fla. 2000) (citing State Farm Mut. Auto Ins. Co. v. Lee, 678 So.2d 818, 821 (Fla. 1996)); see also § 95.031. The question of tolling, in contrast, is concerned with determining whether, after a plaintiffs cause of action has accrued, an applicable statute suspends the running of the limitations period for a defined length of time. See Hearndon, 767 So.2d at 1185; see also § 95.051. When a tolling statute is applicable, the time during which the statute of limitations has been tolled is excluded from the determination of whether the claim was brought within the required time after the cause of action accrued.

The twins’ complaint was filed on November 22, 2010, and asserts solely claims for negligence. The statute of limitations for negligence claims is four years. § 95.11(3)(a). For their suit against Adept and B.E.A.R.R. to be timely, therefore, either (1) their claims must have accrued on or after November 23, 2006, or (2) if they accrued earlier, in order for the limitations period to have allowed for a timely filing in 2010, it must have been tolled for at least as long as the time between the date the claims accrued and November 23, 2006. Consistent with the law’s recognition that accrual and tolling are analytically distinct inquiries, we analyze each possibility separately.

A.

We turn first to the question of accrual. Under Florida law, unless another statute applies, “[a] cause of action accrues when the last element constituting the cause of action occurs.” § 95.031(1).

1.

Both parties assert that a cause of action alleging negligence accrues when the plaintiff knows, or through the exercise of diligence should know, of the invasion of his or her legal rights. See D.B. v. CCH-GP, Inc., 664 So.2d 1094, 1095 (Fla. 2d DCA 1995) (citing Keller v. Reed, 603 So.2d 717, 719 (Fla. 2d DCA 1992)). From there, they reason that when a minor’s negligence claim is at issue, the cause of action accrues when an adult with authority to sue on the minor’s behalf knows or should know of the minor’s injury and its connection to the defendant’s negligence. See S.A.P. v. Dep’t of Health & Rehab. Servs., 704 So.2d 583, 586 (Fla. 1st DCA 1997) (“Similarly, here, the statute could not begin to run against the minor child until a parent, guardian, or next friend knew or reasonably should have known of facts which supported the child’s cause of action.”); see also Drake v. Island Cmty. Church, Inc., 462 So.2d 1142, 1144 (Fla. 3d DCA 1984) (holding that minor’s negligence claim does not accrue until an adult capable of bringing the action knows of the invasion of the minor’s legal rights). Agreeing on these principles, the parties’ arguments are directed to disputing when the grandparents acquired the authority to sue on the twins’ behalf and when they knew or should have known of the invasion of the twins’ legal rights.

The problem with those arguments is that the premise upon which they are based has been invalidated by the supreme court. The “knew or should know” accrual rule for negligence is an expression of the delayed discovery doctrine under which a cause of action does not accrue for statute of limitations purposes until the plaintiff knows or reasonably should know of the invasion of his or her rights. See Hearndon, 767 So.2d at 1184. In Davis v. Monahan, 832 So.2d 708 (Fla. 2002), the supreme court held that the doctrine applies only when the legislature has by statute provided that it does. The court explained as follows:

The Florida Legislature has stated that a cause of action accrues or begins to run when the last element of the cause of action occurs. An exception is made for claims of fraud and products liability in which the accrual of the causes of action is delayed until the plaintiff either knows or should know that the last element of the cause of action occurred. The [ljegislature has also imposed a delayed discovery rule in cases of professional malpractice, medical malpractice, and intentional torts based on abuse.
Aside from the provisions above for the delayed accrual of a cause of action in cases of fraud, products liability, professional and medical malpractice, and intentional torts based on abuse, there is no other statutory basis for the delayed discovery rule.

Id. at 709-10 (emphasis added) (footnote omitted). The sole exception to the rule that the delayed discovery doctrine does not apply unless the legislature has so stated involves intentional torts based on childhood sexual abuse. Id. at 712 (explaining that Hearndon, which created the exception, “is limited to the specific facts in that case”).

Davis thus makes clear that unless another statute provides differently, courts applying a statute of limitations must follow the default rule codified in section 95.031(1) that “[a] cause of action accrues when the last element constituting the cause of action occurs.” See also Nat’l Auto Serv. Ctrs., Inc. v. F/R 550, LLC, 192 So.3d 498, 506 n.7 (Fla. 2d DCA 2016) (“[T]he delayed discovery doctrine is a creature of statute and generally does not apply when a statute does not provide for it.” (citing Davis, 832 So.2d at 710-12)). For that reason, the delayed discovery doctrine is not applicable to causes of action alleging ordinary negligence, as distinguished from professional or medical negligence or intentional torts based on abuse or child sexual abuse. See W.D. v. Archdiocese of Miami, Inc., 197 So.3d 584, 587-88 (Fla. 4th DCA 2016) (holding that the delayed discovery doctrine does not apply to a claim for negligence against a third party based on child sexual abuse); Cisko v. Diocese of Steubenville, 123 So.3d 83, 84-85 (Fla. 3d DCA 2013) (same); Krawchenko v. Raymond James Fin. Servs., No. 2:11-cv-409-FtM-29DNF, 2013 WL 489088, at *3 (M.D. Fla. Feb. 8, 2013) (“[T]he ’delayed discovery doctrine is not available because there is no statutory basis to apply the doctrine in negligence actions.”). The twins allege only ordinary negligence.

As a result, the grandparents’ knowledge of the alleged invasion of the twins’ rights is not pertinent to when the twins’ negligence causes of action accrued. Although cases like S.A.P. and Drake have held otherwise, those cases predate the supreme court’s decision in Davis. Under the plain language of section 95.031(1), as applied in Davis, the cause of action accrues when its last element occurs.

The last element constituting a cause of action for negligence is legally cognizable injury to the plaintiff. See Kelly v. Lodwick, 82 So.3d 855, 857 (Fla. 4th DCA 2011) (“The last element constituting a cause of action for negligence or breach of fiduciary duty is the occurrence of damages.”); Chrestensen v. Eurogest, Inc., 906 So.2d 343, 345 (Fla. 4th DCA 2005) (“[A] cause of action for negligence does not accrue for limitations purposes until the existence of redressable harm or injury has been established”). Here, the summary judgment record is clear that the twins suffered injuries from being dropped, malnourished, and bathed in excessively hot water no later than April 11, 2006—the date they were removed from their mother’s custody. See, e.g., N.G. v. Arvida Corp., 630 So.2d 1164, 1165 (Fla. 3d DCA 1993) (holding that minor’s negligence claim based on sexual abuse accrued on the date the abuser was arrested, which was the last date upon which she could have been abused). The twins assert that additional psychological injuries manifested themselves later, but the salient point is that the undisputed facts establish the existence of cognizable harm as of April 11, 2006. The causes of action thus accrued at that time. See Kelly, 82 So.3d at 858 (holding that negligence claim accrues when “injury ... in consequence of the agents’ alleged wrongful acts first was sustained” (citing City of Miami v. Brooks, 70 So.2d 306 (Fla. 1954))); Kellermeyer v. Miller, 427 So.2d 343, 346 (Fla. 1st DCA 1983) (same).

We acknowledge those cases that have held that notwithstanding the presence of cognizable injury, a minor’s cause of action cannot be deemed to have accrued until there is a person capable of bringing that cause of action on the minor’s behalf. See, e.g., Drake, 462 So.2d at 1144. This reasoning, which flows from decisions predating Davis, cannot survive that decision. If we take section 95.031(l)’s directive that a cause of action accrues when its last element occurs for what it says, as Davis contemplates, then the existence of a person who can bring the claim on the minor’s behalf is not relevant to the question of accrual. The negligence cause of action accrues when there is a cognizable injury—the last element constituting that cause of action—regardless of whether there is an adult to bring the claim. To require, as an additional condition to the accrual of a minor’s cause of action, that there also be an adult capable of bringing the claim involves inserting words into a statute that the legislature did not put there, an exercise that is foreclosed to us. See Hayes v. State, 750 So.2d 1, 4 (Fla. 1999) (“We are not at liberty to add words to statutes that were not placed there by the [ljegislature.”); FINR II, Inc. v. Hardee Cty., 164 So.3d 1260, 1264 (Fla. 2d DCA 2015) (holding that a court may not “rewrite the statute to insert an additional requirement not placed there by the legislature”).

This does not, however, leave a minor’s access to a legal remedy on an accrued cause of action without protection from the running of the statute of limitations. On the contrary, as discussed in part II.B, the legislature has specifically addressed that problem through a provision that tolls the running of the statute of limitations on the claims of unrepresented minors in specified circumstances. § 95.051(l)(h). After Davis, the relevant question with respect to a minor’s access to a legal remedy-should be whether that tolling statute applies in any given ease, not whether section 95.031(l)’s last element rule silently incorporates a requirement that there be an adult capable of bringing a minor’s claim before that claim can accrue. If that tolling statute is insufficiently protective of minors’ rights, that problem is—barring a constitutional issue, which no one here has raised—a problem of policy for the legislature to solve.

2.

Assuming for the sake of argument that the accrual law is instead as the parties have presented it—i.e., that an adult capable of bringing suit have knowledge of the invasion of the minor’s legal rights—the twins’ claims nonetheless accrued outside the limitations period. Under the parties’ view of the law, the question is whether the summary judgment record demonstrates beyond any genuine dispute the existence of a person authorized to sue on the twins’ behalves who knew or should have known of the twins’ injuries and their connection to the alleged negligence of Adept and B.E.A.R.R. more than four years before the filing of the complaint on November 22, 2010. See, e.g., S.A.P., 704 So.2d at 586; Drake, 462 So.2d at 1144.

With respect to authority to sue, Adept and B.E.A.R.R. assert that the grandparents at all times could have sued as “next friends” of the twins. In that regard, Florida Rule of Civil Procedure 1.210(b) provided in 2006 as follows:

Infants or Incompetent Persons. When an infant or incompetent person has a representative, such as a guardian or other like fiduciary, the representative may sue or defend on behalf of the infant or incompetent person. An infant or incompetent person who does not have a duly appointed representative may sue by next friend or by a guardian ad litem. The court shall appoint a guardian ad litem for an infant or incompetent person not otherwise represented in an action or shall make such other order as it deems proper for the protection of the infant or incompetent person.

(Emphasis added.)

Under the rule, a next friend may sue on behalf of a minor when the minor does not have “a representative, such as a guardian or other like fiduciary.” See also Gilbertson v. Boggs, 743 So.2d 123, 127 (Fla. 4th DCA 1999), disagreed with on other grounds by B.K. v. S.D.C., 122 So.3d 980 (Fla. 2d DCA 2013), and receded from on other grounds, Beckford v. Drogan, No. 4D16-947, 216 So.3d 1, 2017 WL 383429 (Fla. 4th DCA Jan. 27, 2017). Although there are no special requirements for service in this capacity, a next friend must be an adult of reasonable judgment and integrity whose interests do not conflict with those of the minor he or she represents. See Kingsley v. Kingsley, 623 So.2d 780, 784 (Fla. 5th DCA 1993) (“[T]he courts require that an adult person of reasonable judgment and integrity conduct the litigation for the minor as the latter’s next friend.”); cf. Gilbertson, 743 So.2d at 128 (holding that putative father was not proper next friend in paternity case because his interests conflicted with those of the minor). Neither the text of the rule nor the cases interpreting it require that a next friend be appointed by the court to sue on a minor’s behalf. See Gas-parro v. Horner, 245 So.2d 901, 905 (Fla. 4th DCA 1971) (“Florida law does not require that a next friend be ’appointed’ before he can act.”). Indeed, in an action like this one alleging negligence based upon the abuse of a minor, the Third District held that “[a]nyone who was aware of the [minor’s] predicament had the authority to and could assert the [minor’s] legal rights.” ND., 630 So.2d at 1166.

Under these precedents, the grandparents could have sued as next Mends of the twins if (1) the twins did not have a representative, such as a guardian or other like fiduciary; (2) they were people of reasonable judgment and integrity; and (3) their interests did not conflict with those of the twins. The summary judgment record is clear that between April 2006 and the grandparents’ appointment as the twins’ permanent guardians in April 2007 the twins had no appointed guardian or other like fiduciary who could have filed a negligence suit on their behalves. Nor does the summary judgment record reflect any genuine dispute about the grandparents’ judgment or integrity or the conformity of the grandparents’ own interests with those of the twins. On this record, then, the grandparents had the authority to sue as the twins’ next friends as of April 2006. Cf. Fla. Dep’t of Health & Rehab. Servs. v. Powell, 490 So.2d 1043, 1044 (Fla. 2d DCA 1986) (holding that grandmother was entitled to petition for support for minor because “[w]e must certainly consider the grandmother in this case as at least ’a next friend’ “).

Relying on the First District’s decision in S.A.P., the twins argue that only a parent or legal guardian can serve as a next friend and, therefore, that the grandparents could not have sued until they were appointed the twins’ legal guardians in April 2007. The twins misread S.A.P. To be sure, that decision contemplates that a parent or legal guardian may sue as next friend, 704 So.2d at 686, but it neither held nor implied that the legal capacity to sue as next Mend is limited to parents and legal guardians; Quite the contrary, S.A.P. explicitly acknówledged that individuals other than parents or guardians may sue in that capacity. Expressing the accrual rule applicable to the claims of a minor, the First District stated that “the statute could not begin to run against [a] minor child until a parent, guardian, or next Mend knew or reasonably should have known of facts which supported the child’s cause of action.” Id. (emphasis added). And holding that the claims of the minor in that case were not time-barred, the court held that the limitations period did not begin to run on the date of accrual because “no one, no natural parent, no adoptive parent, no guardian ad litem, and no next friend, was aware” of the facts underlying the minor’s claim at that time. Id. at 687 (emphasis added). S.A.P. is thus consistent with the understanding, described above that any adult of reasonable judgment and integrity whose interests are not in conflict with those of the minor may litigate on behalf of the minor as his or her next friend.

The twins also assert that the Fifth District’s decision in Buckner v. Family Services of Central Florida, Inc., 876 So.2d 1285 (Fla. 5th DCA 2004), stands for the proposition that allowing a next Mend to assert their negligence claims would im-permissibly interfere with the duties of the Department and the dependency court. In that case, former foster parents sued the Department on behalf of a minor seeking to challenge the Department’s decisions not to approve the former foster parents’ adoption of the minor and to preclude contact between them and the minor. Id. at 1286. Recognizing that allowing the former foster parents to sue. the Department over an adoption decision as next friends of the child whose adoption placement was being determined “would mean that any former foster parent would have standing to sue DCF acting ostensibly on behalf of a dependent minor child who is or at one time had been in the foster parent’s custody,” the Fifth District held that' allowing the former foster parents to proceed “would usurp ... DCF’s statutory authority and interfere with the jurisdiction and procedures of the dependency court.” Id. at 1287 (emphasis omitted).

The twins’ assertion that Buckner abrogates a next friend’s authority to litigate the tort claims of a minor who happens to be the subject of a dependency proceeding reads that decision far too broadly. The placement of a dependent minor in an appropriate adoptive home, where called for under chapter 39, is a key function of both the Department and the dependency court. See, e.g., § 39.001(l)(h), (i). Allowing a disappointed former foster parent to use next friend status to sue the Department over an adoption decision—effectively leveraging the minor to facilitate litigation of a private grievance of the former foster parent against the Department—would understandably interfere with that purpose. The same cannot be said of allowing the close relative of a minor to litigate the minor’s tort claims against third parties based on conduct unrelated to any dependency proceeding or function.

Having established that the grandparents had authority to litigate as the twins’ next friends, we turn finally to the question of the grandparents’ notice of the twins’ injuries and connection to the alleged negligence of Adept and B.E.A.R.R. Unlike other cases where this might be a disputed fact, see Keller, 603 So.2d at 720, the facts here are sufficiently crystallized that summary judgment was warranted. During deposition, the grandfather testified that as of May 19, 2006, he knew about some of the twins’ physical and psychological injuries and attributed them to the negligence Of Adept and B.E.A.R.R. Although the twins argue that a later diagnosis of sensory disorder came in March 2007, it is not necessary that all of their injuries have materialized for their negligence causes of action to accrue. See Kelly, 82 So.3d 855; Kellermeyer, 427 So.2d 343. There is no genuine issue of material fact that someone with authority to sue on the twins’ behalves was on notice of the invasion of their legal rights no later than May 19, 2006.

B.

Having concluded that there is no genuine issue of material fact that the twins’ causes of action accrued on April 11, 2006 or, alternatively, May 19, 2006—both more than four years before they filed suit—we now consider whether the statute of limitations was tolled at any point. The twins argue that the limitations period was tolled under section 95.051(l)(h) continuously from the time their claims accrued until the grandparents were appointed their permanent guardians in April 2007. If true, that would render their complaint timely, where the tolled -four-year period would not have run until April 2011, after the November 2010 complaint was filed.

Section 95.051(l)(h) provides, in relevant part, that the limitations period is tolled by

[t]he minority or previously adjudicated incapacity of the person entitled to sue during any period of time in which a parent, guardian, or guardian ad litem does not exist, has an interest adverse to the minor or incapacitated person, ór is adjudicated to be incapacitated to sue

(Emphasis added.) There appear to bé no reported decisions interpreting this statute. Its text, however, is clear that the limitations period is tolled as to the claim of a minor when there is no (1) parent, guardian, or guardian ad litem, (2) without interests adverse to those of the minor, and (3) who has not been adjudicated incapacitated to sue.

Applying the elements of the tolling statute to the facts of this case, the twins assert that although their mother is a parent, she had interests adverse to them both by virtue of the dependency court proceedings through which her parental rights were in jeopardy and the fact that the twins’ negligence claims are based on her inability to care for them. They point out that they had no guardian until the grandparents were appointed in April 2007. And finally, they acknowledge that they had a guardian ad litem beginning on April 11, 2006, but contend that the guardian ad litem was unaware of the twins’ injuries and therefore did not request services to address those needs.

The twins’ argument concerning the guardian ad litem’s awareness of their injuries is, as a matter of statutory text, irrelevant to whether section 95.051(l)(h) applies. See Diamond Aircraft Indus., Inc. v. Horowitch, 107 So.3d 362, 367 (Fla. 2013) (“Our statutory analysis begins -with the plain meaning of the actual language of the statute .... ”). Under the plain language of the statute, the limitations period on a minor’s cause of action is not tolled when a guardian ad litem exists, except when that guardian ad litem has interests adverse to the minor or has been adjudicated incapacitated. No one asserts that either circumstance applies here; , the twins assert only that the guardian ad litem did not know about their injuries. That is not a basis for tolling. To hold that it is, we would have to add the words “or does not know of the minor’s injuries” to the statutory list of circumstances that toll the limitations period. That is an editorial prerogative that belongs to a legislature performing a policymaking function and is denied to a court performing an interpretative one. See Hayes, 750 So.2d at 4; FINR II, 164 So.3d at 1264. The twins’ reliance on section 95.051(l)(h) is therefore misplaced.

III.

The application of a statute of limitations to defeat a potentially valid legal claim will doubtless sometimes appear arbitrary or inequitable. That is especially true where minors are involved. Like other statutes, however, statutes of limitations serve valid policy objectives and have been adopted through democratic legislative processes. See Nat’l Auto., 192 So.3d at 509 (describing purposes of statutes of limitations). As a reviewing court, our function is to apply a statute of limitations as we would any other statute, in accord with its terms, whether or not we like the result.

On the summary judgment record in the trial court, there is no genuine issue of material fact that the twins’ negligence causes of action against Adept and B.E.A.R.R. accrued, at the latest, on May 19, 2006. Nor does the tolling afforded by section 95.051(l)(h) apply here under the undisputed facts. As a result, the twins’ negligence complaint, filed more than four years after the claims accrued, is barred by the four-year statute of limitations provided by section 95.11(3)(a). The trial court’s entry of final summary judgment in favor of Adept and B.E.A.R.R. was proper and is affirmed. This moots, and we therefore dismiss, B.E.A.R.R.’s appeal from the trial court’s order denying its motion to dismiss.

Case 2D15-304 affirmed; Case 2D15-677 dismissed.

KELLY, J.,

Concurs.

VILLANTI, C.J.,

Concurs specially.

VILLANTI, Chief Judge,

Concurring specially.

If the law allowed, I would reverse the summary judgment because, in my view, it constitutes fundamental error to cut off the rights of minors despite the existence of a statute designed to protect this from happening. But the law does not view things the way my paternal instincts do, and the issue I see—while raised and argued at the summary judgment hearing in the trial court below—was not raised as a basis for reversal on appeal. Therefore, I must reluctantly concur in this affirmance.

As the majority recognizes, section 95.051(l)(h) tolls the statute of limitations during “[t]he minority ... of the person entitled to sue during any period of time in which a parent, guardian, or guardian ad litem does not exist [or] has an interest adverse to the minor.” Here, there is no dispute that the twins’ only identified parent had an interest adverse to them. There is also no dispute that the twins did not have a plenary guardian until April 13, 2007, when their grandparents were appointed as permanent guardians. With the statute of limitations tolled until April 13, 2007, the complaint filed in November 2010 would have been timely.

However, the majority asserts—as did B.E.A.R.R. and Adept below—that the tolling statute does not apply because the twins had a guardian ad litem appointed on April 12, 2006. And while this is nominally true, I believe more is required to avoid the tolling statute than simply the existence of an entity called a “guardian ad litem.” The guardian ad litem in this case was appointed by the dependency court to represent the best interests of the twins in the dependency case. The guardian ad li-tem did not have plenary powers over the twins for any other matter. Cfi § 39.820(1), Fla. Stat. (2006) (providing for the guardian ad litem to be appointed to represent the best interests of the child in that proceeding). To hold that the mere existence of a guardian ad litem—even one wholly bereft of the legal authority necessary to bring the civil action in question—is sufficient to avoid the tolling statute is to elevate form over substance at the expense of the very persons the statute is intended to protect. At a minimum, there was a question of fact as to whether the guardian ad litem was authorized by that appointment to file a civil action for negligence on behalf of the twins. And that question of fact alone should have precluded entry of the summary judgment here.

Nevertheless, the argument concerning the guardian ad litem’s authority to act was not raised as a basis for reversal on appeal, and the concept of fundamental error has yet to be extended to allow an appellate court to correct an error that was preserved in the trial court but not raised on appeal. See Universal Ins. Co. of N. Am. v. Warfel, 82 So.3d 47, 64 (Fla. 2012) (noting that fundamental error may be used to correct errors that “reach down into the validity of the trial” and which were raised on appeal but not preserved with a contemporaneous objection in the trial court (quoting Jaimes v. State, 51 So.3d 445, 448 (Fla. 2010))). So while I believe it was fundamental error to grant summary judgment in the face of fact questions surrounding the applicability of a statute that requires the tolling of the statute of limitations for the protection of minors who have no one who can legally protect their interests, I am bound by precedent that definitively precludes such a result. Therefore, I reluctantly concur in this affirmance.

      . For the sake of accuracy, we note that on April 11, 2006, the dependency court appointed the guardian ad litem program and on June 6, 2006, appointed an individually named guardian ad litem. Because the parties have not argued that this distinction is of any legal significance to the issues in this appeal, we refer to the "guardian ad litem” for the sake of convenience.

      . Some decisions have framed the time at which the plaintiff knew or should have known of the invasion of his or her legal rights as being the time the last element of a negligence cause of action occurs. See, e.g., D.B., 664 So.2d at 1095. After Davis, that formulation is no longer valid. It is essentially a shoehorning of the delayed discovery doctrine—which applies only when the legislature says it does—into the language of the default "last element” standard of accrual.

      . The practice in the federal courts under rule 17(c) of the Federal Rules of Civil Procedure, upon which our rule 1.210(b) was modeled, is substantially similar to the principles governing the appearance of next friends stated in the text. See Fla. R. Civ. P. 1.210(b), 1967 author’s comment; Fed. R. Civ. P. 17(c); T.W. v. Brophy, 954 F.Supp. 1306, 1309 (E.D. Wis. 1996) (holding that requirement of court appointment is not applicable to a next friend and that such a person must be dedicated to the minor’s best interests and have some significant relationship with the minor); Child v. Beame, 412 F.Supp. 593, 599 (S.D.N.Y. 1976) ("The term [next friend] is broad enough to include any one who has an interest in the welfare of an infant who may have a grievance or a cause of action."); 6A Charles Alan Wright, Arthur R. Miller, and Mary Kay Kane, Federal Practice and Procedure, § 1572 (3d ed. 2016 update).

      . Based on their deposition testimony, it is quite possible that there is no genuine issue of material fact that both grandparents were aware of some of the twins’ injuries and their connection to the alleged negligence of Adept and B.E.A.R.R. on or before April 11, 2006. In light of our analysis in the text, however, it is unnecessary for us to decide that question.

      . We acknowledge the argument raised by the concurrence that the term "guardian ad li-tem” in section 95.051(l)(h) means only a guardian ad litem legally authorized to file suit on the minor's behalf, Because that argument has not been raised by the twins in this appeal, we are unable to resolve it here. See Weaver v. Weaver, 95 So.3d 1029, 1030 (Fla. 2d DCA 2012); I.R.C. v. State, 968 So.2d 583, 588 (Fla. 2d DCA 2007). We express no views on its merits other than to note that it presents a difficult question of first impression to be resolved in a case where it has been presented to us for decision by an appellant and briefed by the parties.


author: SALTER, J.

text:
    Mishko JOSIFOV, et al., Petitioners, v. Iman KAMAL-HASHMAT, etc., Respondent.
    No. 3D16-2571
    District Court of Appeal of Florida, Third District.
    Opinion filed April 5, 2017.

      Restani & Dalmanieras, P.A., and Charles M-P George and Maria E. Dalma-nieras, for petitioners.
    Podhurst Orseck, P.A., and Joel D. Eaton, for respondent.
    Before LAGOA, SALTER and FERNANDEZ, JJ.
   SALTER, J.

Loews Miami Beach Hotel Operating Co., Inc. (“Hotel”), petitions for a writ of certiorari quashing an order compelling disclosure of certain non-party identification information in surveys completed by guests at the Hotel. For the reasons which follow, we grant the petition and quash the order.

The Lawsuit

The respondent here, Iman Kamal-Hashmat, as personal representative of the estate of her late husband (“Plaintiff’), filed a complaint for damages for the tragic drowning death of her husband at the Hotel’s swimming pool in Miami Beach in December 2013. During pretrial discovery, the Plaintiff subpoenaed the Hotel’s guest survey service (a non-party) to produce:

All guest/customer surveys in any way related to the swimming pool; and/or supervision of guests using the swimming pool, at the Loews Miami Beach Hotel, located at 1601 Collins Avenue, Miami Beach, Florida, 33139, from December 2008 to the present. Please also include any other documents related to such surveys.

The Hotel objected. Initially, the trial court authorized the Hotel to redact any allegedly confidential financial or proprietary company information. The Hotel provided the Plaintiff with a spreadsheet provided by the guest survey service, but the Plaintiff moved to compel. The Hotel then received another database from the survey service containing information related to the swimming pool and extracted from the guest surveys. The Hotel informed the trial court that the database contained confidential information regarding guests; the court ordered the Hotel to produce the database with a privilege log pertaining to any information withheld from the survey responses.

The Hotel filed the database with the guest names and contact information redacted, together with a privilege log claiming that the redacted information was private and protected under Article 1, section 23, of the Florida Constitution. The Plaintiff moved to compel the production of the redacted information, and the trial court granted the motion. The Hotel then filed the petition for certiorari under consideration here.

Analysis

The names and contact information of the non-party Hotel guests who completed the surveys are constitutionally protected, private details. Rasmussen v. S. Fla. Blood Serv., Inc., 500 So.2d 533, 536 (Fla. 1987); Amente v. Newman, 653 So.2d 1030 (Fla. 1995), There is no indication on the record before us that the Plaintiffs need for information was balanced against the guests’ constitutionally protected rights of privacy.

The Plaintiff is correct that discovery of guests’ comments on the condition of the pool and its operations was appropriate. Chambers v. Loftin, 67 So.2d 220, 222 (Fla. 1953) (evidence of prior similar accidents admissible to show dangerous character of place and defendant’s knowledge of that danger). However, the Plaintiff is incorrect when she argues that she is entitled to discover the names and information of all the survey respondents because the names of potential witnesses are discoverable. It may actually develop that none of the survey respondents are witnesses.

If a survey reveals that the guest stayed at the hotel at the time when the decedent drowned, the identity of the guest would then be discoverable, as in the case of any witness. See Sovereign Healthcare of Port St. Lucie, LLC v. Fernandes, 132 So.3d 855 (Fla. 4th DCA 2013) (discovery of otherwise-protected client names and contact information is proper where they are witnesses to incident at issue); Delta Health Grp. v. Estate of Collins, 36 So.3d 711, 712 (Fla. 1st DCA 2010) (finding permissible disclosure of contact information and name of single, potential witness; precluding disclosure of other information).

The Plaintiff is also mistaken when she argues that she can have the information because the guests have no reasonable expectation of privacy in the information, having provided it to the Hotel to make reservations. When a guest makes a reservation, the information provided is not intended for dissemination to any unforeseeable, unknown third party. This is not a knowing waiver of the right to privacy. Berkeley v. Eisen, 699 So.2d 789 (Fla. 4th DCA 1997).

“[T]he party seeking discovery of confidential information must make a showing of necessity which outweighs the countervailing interest in maintaining the confidentiality of such information.” Higgs v. Kampgrounds of Am., 526 So.2d 980, 981 (Fla. 3d DCA 1988); see CAC-Ramsay Health Plans, Inc, v. Johnson, 641 So.2d 434 (Fla. 3d DCA 1994). The Plaintiff has not shown any compelling interest in disclosure of the names and contact information. See Berkeley, 699 So.2d at 789.

Here, as in Berkeley, the non-parties have not waived their privacy rights, nor have they done anything inconsistent with their reasonable expectation of privacy in the information they gave to the Hotel. That information is constitutionally protected. Id. “Privacy rights are protected without sacrificing the ability to discover legitimate information where the trial court redacts from the records all identifying information.” Id. at 792.

The trial court departed from the essential requirements of law in ordering the production of the confidential information supplied by guests completing the survey, and there is no adequate remedy on appeal. Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995). The non-party survey respondents have no remedy by direct appeal, supporting issuance of the writ. Fla. Dep’t of Health & Rehab. Servs. v. Myers, 675 So.2d 700, 701 (Fla. 4th DCA 1996).

Conclusion

The petition for certiorari is granted. The order of October 27, 2016, compelling the Hotel to produce the guest survey database with guest names and contact information intact, is quashed.

      . The Hotel is the remaining defendant below and petitioner here. Numerous other defendants/respondents were dismissed previously by Ms. Kamal-Hashmat, plaintiff below.


author: EMAS, J.

text:
    Charbel ABUD, Appellant, v. Maria Isabel SAAD and Gabriella Alegre, Appellees.
    No. 3D16-2435
    District Court of Appeal of Florida, Third District.
    Opinion filed April 5, 2017.
    Carrillo & Carrillo, Pedro R. Carrillo and Felix R. Carrillo; Arnaldo Velez, for appellant.
    Alexis Gonzalez and Gustavo Sardiña, for appellees.
    Before EMAS, LOGUE and LUCK, JJ.
   EMAS, J.

The case below involved an action for breach of contract and declaratory judgment, following an unconsummated real estate transaction between Charbel Abud (the Seller) and Maria Isabel Saad and Gabriella Alegre (the Buyers). Following discovery, both sides filed motions for summary judgment and, following a hearing, the trial court entered final summary judgment in favor of the Buyers.

Upon our de novo review, Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000), we affirm, holding that the trial court correctly determined there were no material issues of disputed fact and that, as a matter of law, the Buyers’ communications with the Seller constituted timely and proper cancellation of the contract pursuant to its terms.

Affirmed.