text:
    Jason BLOCH, Appellant, v. Marcia DEL REY, et al., Appellees.
    No. 3D16-2004.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 2016.

      Greenspoon Marder, and Joseph S. Geller, Fort Lauderdale; Benedict Kuehne; Kozyak, Tropin & Throckmorton and Thomas A. Tucker Ronzetti, for appellant.
    Zumpano Castro and Robert H. Fernandez; Gunster and Angel A. Cortiñas and Jonathan H. Kaskel, for appellees.
    Before SALTER, EMAS and FERNANDEZ, JJ.
   EMAS, J.

INTRODUCTION

Jason Bloch appeals from an order granting Marcia Del Bey’s motion to dismiss Bloch’s claims for declaratory and injunctive relief, as well as an order granting judgment on the pleadings in favor of Stand Up to Violence and Jorge Alberto Balleste on Bloch’s claim for injunctive relief. For the reasons that follow, we affirm in part and dismiss in part.

FACTS

Jason Bloch is an incumbent circuit court judge and was a retention candidate for the Circuit Court, Eleventh Judicial Circuit, Group 9 judicial election held on August 30, 2016. Marcia Del Rey sought to challenge Bloch for that seat, and Del Rey filed the required paperwork and paid the required filing fee prior to the qualifying date of May 6, 2016. The Florida Division of Elections certified Del Rey as a qualified candidate for the Group 9 seat.

On August 10, 2016, more than three months after the qualifying date, only twenty days before election day, and only five days before the commencement of early voting in Miami-Dade County, Bloch filed an action for declaratory and injunc-tive relief against Del Rey, asserting Del Rey was not constitutionally qualified to be a candidate for judicial office because she had “refused and failed to accurately provide the mandatory full and public disclosure” of financial interests by failing to accurately report her income from 2015 and had faded to disclose each source of her income. In addition, Bloch alleged that Del Rey made material misrepresentations and omissions in political advertisements and was the beneficiary of express advocacy by Stand Up to Violence, an electioneering communications organization, whose chairperson is Jorge Alberto Bal-leste. Stand Up to Violence and Balleste were also named as defendants, together with the Miami-Dade County Supervisor of Elections and Secretary of State.

The three-count complaint sought (I) a declaration from the court that Del Rey was not constitutionally qualified to be a candidate for the office she was seeking; (II) an injunction removing Del Rey from the ballot for her failure to comply with the financial disclosure requirement and requiring the Secretary of State to declare Del Rey not qualified to be a candidate for circuit court judge and to notify voters of same, and to direct the Supervisor of Elections not to count any votes cast for her; and (III) an injunction prohibiting Stand Up to Violence and Balleste from continuing to expend funds by engaging in express advocacy in support of Del Rey.

On August 15, 2016, Bloch served the summons and complaint upon Del Rey, Stand Up to Violence and Balleste. Del Rey filed a motion to dismiss Counts I (declaratory relief) and II (injunctive relief) for failure to state a cause of action, asserting she had met all constitutional eligibility requirements established by the Florida Constitution, and had complied with all statutory requirements to qualify as a judicial candidate. Del Rey further argued that the trial court was without authority to remove her from the ballot based solely on alleged irregularities in the qualifying papers she had filed, and further, that any such “irregularities” had been cured by her filing an amendment to her financial disclosure on August 18, 2016.

Stand Up to Violence and Balleste filed a motion for judgment on the pleadings as to Count III (injunctive relief), asserting that Stand Up to Violence was organized as a political committee, not an electioneering communications organization, and therefore, it was allowed to engage in political advertising containing express advocacy, and to make direct contributions to candidates. They also contended that the communications from Stand Up to Violence (attached as exhibits to the complaint) did not contain any express advocacy and that one of the exhibits (which does appear on its face to contain express advocacy) was not reviewed and approved prior to final publication. Finally, Stand Up to Violence asserted that the Florida Elections Commission, and not the court, has jurisdiction over alleged violations of chapter 106, Florida Statutes.

The trial court held a hearing on August 25 and 26, and thereafter, granted both motions. As to the motion to dismiss, the court determined that Bloch should have exhausted his administrative remedies with the Florida Commission on Ethics before seeking relief in the court and that he offered no valid reason for the extraordinary relief he sought in the court. The court further found that Del Ray had substantially complied with the financial disclosure requirements. As to the motion for judgment on the pleadings filed by Stand Up to Violence and Balleste, the court found that Bloch had failed to exhaust his administrative remedies against those parties by not filing a complaint with the Florida Elections Commission.

This appeal followed and this court has granted Bloch’s motion for expedited consideration.

ANALYSIS

We review de novo the trial court’s orders on Bloch’s claims for injunc-tive relief against Del Rey, Stand Up to Violence and Balleste. See Walker v. Figarola, 59 So.3d 188, 190 (Fla. 3d DCA 2011); Thompson v. Napotnik, 923 So.2d 537 (Fla. 5th DCA 2006). As to the declaratory action, we ordinarily review an order dismissing such a claim under an abuse of discretion standard. See Acad. Express, LLC v. Broward Cty., 53 So.3d 1188 (Fla. 4th DCA 2011); Basik Exports & Imports, Inc. v. Preferred Nat. Ins. Co., 911 So.2d 291 (Fla. 4th DCA 2005); Palumbo v. Moore, 777 So.2d 1177 (Fla. 5th DCA 2001). However, to the extent that the dismissal is based upon a legal determination, our review is de novo. See, e.g., Angelo’s Aggregate Materials, Ltd. v. Pasco Cnty., 118 So.3d 971 (Fla. 2d DCA 2013).

We first address the order which entered judgment on the pleadings as to Count III in favor of Stand Up to Violence and Balleste. In that count, Bloch sought injunctive relief against Stand Up to Violence and Balleste, enjoining them from engaging in express advocacy in support of Del Rey and her campaign for circuit court judge. Given that the campaign has concluded and the election has already been held, the grounds upon which injunctive relief was sought are now moot. Even if we were to conclude that the trial court erred in granting judgment on the pleadings on Count III, a reversal and remand would be futile under these circumstances. See Solares v. City of Miami, 23 So.3d 227 (Fla. 3d DCA 2009); Rubin v. Addison Reserve Country Club, Inc., 126 So.3d 1189 (Fla. 4th DCA 2012). We therefore decline to reach the merits of this claim and dismiss this portion of the appeal.

Turning to the declaratory and injunc-tive relief claims filed by Bloch against Del Rey, we affirm the trial court’s dismissal order and find Bloch’s arguments are without merit, as Del Rey substantially complied with the statutory qualifying requirements set forth in section 105.031, Florida Statutes (2016).

As a preliminary matter, the issue before us involves compliance with the statutory requirements to qualify as a candidate for judicial office, rather than the constitutional requirements of eligibility to hold judicial office. See Burns v. Tondreau, 139 So.3d 481 (Fla. 3d DCA 2014) (discussing the separate and distinct differences between a candidate’s constitutional eligibility for office and the statutory requirements to qualify to run for office). See also Norman v. Ambler, 46 So.3d 178 (Fla. 1st DCA 2010) (same). And while the qualifying paperwork at issue in this case (“Form 6, Full and Public Disclosure of Financial Interests”) was created by the Florida Commission on Ethics to implement the provisions of Art. 2, Section 8 of the Florida Constitution (“Ethics in Government”) , the precise issue before us is whether Del Rey complied with the requirements as set forth in section 105.031, such that she qualified to run as a candidate for judicial office.

Section 105.031 establishes the statutory requirements and deadlines for an individual to qualify as a candidate for judicial office. The statute mandates, inter alia, payment of a qualifying fee (or submission of a petition), and execution and submission of certain oaths and documents. For our' purposes, the relevant provisions are found in subsections (5)(a)5, (5)(b), and (6) which provide:

105.031. Qualification; filing fee; candidate’s oath; items required to be filed
(5) Items required to be filed.—
(a) In order for a candidate for judicial office or the office of school board member to be qualified, the following items must be received by the filing officer by the end of the qualifying period:
5. The full and public disclosure of financial interests required by s. 8, Art. II of the State Constitution or the statement of financial interests required by s. 112.31f5, whichever is applicable. A public officer who has filed the full and public disclosure or statement of financial interests with the Commission on Ethics or the supervisor of elections pri- or to qualifying for office may file a copy of that disclosure at the time of qualifying.
(b) If the filing officer receives qualifying papers that do not include all items as required by paragraph (a) prior to the last day of qualifying, the filing officer shall make a reasonable effort to notify the candidate of the missing or incomplete items and shall inform the candidate that all required items must be received by the close of qualifying. A candidate’s name as it is to appear on the ballot may not be changed after the end of qualifying.
(6) Notwithstanding the qualifying period prescribed in this 'section, a filing officer may accept and hold qualifying papers submitted not earlier than 14 days prior to the beginning of the qualifying period, to be processed and filed during the qualifying period.

Pursuant to the requirements of section 105.031, the Florida Commission on Ethics promulgated a form entitled “Form 6 Full and Public Disclosure of Financial Interests.” It is this form which must be filled out, executed, sworn to and filed with the Division of Elections prior to the end of the qualifying period. There is no dispute that Del Rey in fact filled out and executed the Form 6, which was notarized and filed with the Division of Elections prior to the end of the qualifying period. Bloch contends, however, that the Form 6 filed by Del Rey was materially incomplete, inaccurate or misleading, and that, as a result, Del Rey did not qualify as a candidate for judicial office. We find this argument without merit.

The Form 6 requires each candidate, inter alia, to:

a) List their net worth;
b) Describe each asset in excess of $1000 and state the value of each such asset;
c) Describe each liability in excess of $1000, listing the name and address of the creditor, and state the amount of each such liability;
d) Describe each primary source of income over $1000, listing the name and address of the source, and the amount of income received; and
e) Describe each secondary source of income, including the name of the business entity, the major source of that business’ income, and the address and principal business activity of that source.

Upon our review of the Form 6 filed by Del Rey, we hold that the trial court properly determined that Del Rey substantially complied with the requirements of Form 6 and section 105.031. Del Rey’s Form 6 set forth four sources of primary income and their individual amounts. Combined, these amounts totaled $210,500 in reported income. Del Rey later revised her reported income by filing an amended form, prescribed by the Commission on Ethics as Form 6X. The Form 6X reveals that the total amount of income from the same primary sources was revised to reflect a total of $243,554, a net change of $33,054 in her reported income from these sources.

Notably, a review of Del Rey’s Form 6X also reveals that Del Rey’s net worth, description and value of assets, description and amount of liabilities, and secondary sources of income remained unchanged from that reported in her original Form 6.

Bloch’s arguments to the contrary notwithstanding, we conclude that the Form 6 was in substantial compliance with the qualifying requirements, and the revisions contained in the Form 6X do not establish that Del Rey failed to meet the requirements to qualify as a candidate for judicial office. See Siegendorf v. Stone, 266 So.2d 346 (Fla.1972); Browning v. Young, 993 So.2d 64 (Fla. 1st DCA 2008). Compare § 112.3144, Fla. Stat. (8)(a) (when a complaint is filed with the Commission on Ethics related to the filing of full and public disclosure of financial interests, and the alleged violation is only “an immaterial, inconsequential, or de minimis error or omission, the commission may not take any action on the complaint other than notifying the filer of the complaint. The filer must be given 30 days to file an amended full and public disclosure of financial interests correcting any errors.”) Because we hold that Del Rey substantially complied with the requirements for full and public disclosure of financial interests, and that Del Rey properly qualified as a judicial candidate, we do not address the trial court’s alternative basis for dismissal.

Affirmed in part and dismissed in part.

      . Judicial campaigns are nonpartisan, and judicial elections are held on the date set for primary elections in partisan campaigns. See § 105.051(l)(b), Fla. Stat. (2016). Where more than two judicial candidates are running for the same office, and no candidate receives a majority of the votes cast, a runoff between the two candidates receiving the highest number of votes is held on the general election date. Id. In the instant case, there were only two candidates for this judicial seat, and thus the winner was determined in the primary election held on August 30, 2016.

      . See http://www.miamidade.gov/releases/ 2016-08-12-elections-early-voting-monday. asp. (site last visited October 20, 2016) (announcing August 15-28, 2016 as the early-voting period for the primary election); § 101.657(d), Fla. Stat. (2016) (authorizing county supervisors of elections to establish early-voting periods). In fact, Bloch’s suit was filed after the Supervisor of Elections had already begun sending vote-by-mail ballots to those electors voting by mail, see § 101.6103, Fla. Stat. (2016).

      . The Miami-Dade County Supervisor of Elections and the Secretary of State were named only in their representative capacities.

      . The record below evidenced that, by the time Bloch served the summons and complaint on the defendants, more than 90,000 Miami-Dade County electors had already cast vote-by-mail ballots or had voted in early voting.

      . It was later established below that Stand Up to Violence is in fact a political committee, not an electioneering communications organization. Bloch subsequently amended his complaint to accurately reflect the status of this organization.

      . On August 30, Del Rey received the most votes and the Supervisor of Elections certified that Del Rey was elected to office. Del Rey’s six-year term is scheduled to begin on January 3, 2017.

      . We note that all parties have acknowledged that the Florida Elections Commission has the authority to investigate violations of Florida’s campaign financing laws. See section 106.25, Fla. Stat. (2016). However, given our disposition of this claim, we need not and therefore do not reach the question of whether the FEC has exclusive jurisdiction under these circumstances, or whether Bloch was required to exhaust administrative remedies before seeking relief in circuit court.

      . Article II, Section 8 of the Florida Constitution, entitled “Ethics in government” provides in pertinent part:
      A public office is a public trust. The people shall have the right to secure and sustain that trust against abuse. To assure this right:
      (a) All elected constitutional officers and candidates for such offices and, as may be determined by law, other public officers, candidates, and employees shall file full and public disclosure of their financial interests.
      (b) All elected public officers and candidates for such offices shall file full and public disclosure of their campaign finances.
      (c)Any public officer or employee who breaches the public trust for private gain and any person or entity inducing such breach shall be liable to the state for all financial benefits obtained by such actions. The manner of recovery and additional damages may be provided by law.

      (f) There shall be an independent commission to conduct investigations and make public reports on all complaints concerning breach of public trust by public officers or employees not within the jurisdiction of the judicial qualifications commission.

      (l) Full and public disclosure of financial interests shall mean filing with the custodian of state records by July 1 of each year a sworn statement showing net worth and identifying each asset and liability in excess of $1,000 and its value together with one of the following:
      a. A copy of the person’s most recent federal income tax return; or
      b. A sworn statement which identifies each separate source and amount of income which exceeds $1,000. The forms for such source disclosure and the rules under which they are to be filed shall be prescribed by the independent commission established in subsection (f), and such rules shall include disclosure of secondary sources of income.

      . Fla. Admin. Code R. 34-8.001 (2016) provides:
      The Commission on Ethics has the responsibility pursuant to Article II, Section 8(i)l, Florida Constitution, to prescribe forms for disclosure of income sources and ¿mounts and the rules under which such forms are to be filed, which rules shall include disclosure of secondary sources of income. In addition, the Commission is authorized by Section 112.3147, F.S., to prescribe forms required for use in making the disclosures required by Article II, Section 8, Florida Constitution, and by Section 112.322(9), F.S., to adopt rules interpreting the disclosures established by Article II, Section 8, Florida Constitution. The forms for full and public disclosure shall be prescribed in accordance, with the rules of this chapter and adopted by reference in Chapter 34-7, F.A.C.

      . Del Rey indicated in her Form 6 that she was reporting her 2015 income based upon her 2014 Federal tax return, and that she had received an extension for the filing of her 2015 return. In her Form 6X, Del Rey indicated that she was filing the amended form to include income reported in her 2015 return.

      . See Fla. Admin. Code R. 34-8.009 (2016) (prescribing the use of Form 6X created by the Commission on Ethics, and further providing: "A person may amend his or her full and public disclosure of financial interests to add to or modify the information reported on the form as originally filed at any time after filing the disclosure form.”)

      . In addition, Del Rey’s Form 6 had listed one of the primary sources of income as “Puerto Rico” with an address of “Caguas, P.R.” This was amended in the Form 6X to reflect the name of the source of income as "Lakeside Resorts,” and listed a street address in Puerto Rico.

      .Whether ironic or merely notable, Bloch also filed a Form 6X after the qualifying date of May 6, 2016, in which he amended the information contained in his original Form 6. In his Form 6X, Bloch added one previously-unreported asset (valued at $35,000), one previously-unreported liability (valued at $6475.48), four previously-unreported primary sources of income and one previously-unreported secondary source of income (resulting in net reduction of $98,891 in reported income). The combination of these amended items resulted in a change of $28,525 in the net worth previously reported by Bloch in his Form 6.

      . Although Bloch's complaint alleged that Del Rey failed to report other assets in her Form 6, it was later established that these assets were in fact owned by Del Rey’s mother, whose name is also Marcia Del Rey.

      . Specifically, we do not reach the question of whether Bloch was required to exhaust administrative remedies before seeking declaratory and injunctive relief in circuit court. We note, however, that on August 30, 2016, Bloch filed a complaint with the Florida Commission on Ethics. See also Norman v. Ambler, 46 So.3d 178, 181-82 n. 5 and accompanying text (Fla. 1st DCA 2010) (deciding appeal on other grounds but noting that, as a general proposition, "the doctrine of exhaustion of administrative remedies precludes judicial intervention where available administrative remedies can afford the relief a litigant seeks;” observing further, and in dicta; "The Commission on Ethics plainly had authority to act before the primary election and, at least once administrative remedies had been exhausted, the courts could have ordered the filing officer to take any action the law required.”) See also Flo-Sun, Inc., v. Kirk, 783 So.2d 1029 (Fla.2001) (discussing the doctrine of primary agency jurisdiction which, under principles of deference, policy and comity, permits a trial court to refrain from exercising its jurisdiction over the issues presented until such time as the issue has been ruled upon by the agency).


source: Caselaw Access Project

author: SHEPHERD, J.

license: Public Domain

text:
    Shericka WILLIAMS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-2853.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 2016.
    Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellee.
    Before SHEPHERD, ROTHENBERG and SCALES, JJ.
   SHEPHERD, J.

The issue in this case is whether section 316.066(4) of the Florida Statutes (2012), which excludes from evidence in any civil or criminal trial statements made by a “person involved in an [automobile] crash ... to a law enforcement officer for the purpose of completing a crash report[,]” confers any benefit on Shericka Williams, the appellant in this case, who fled the scene of an automobile crash that resulted in death. For the reasons discussed in State v. Ferguson, 405 So.2d 294 (Fla. 4th DCA 1981) and Cummings v. State, 780 So.2d 149 (Fla. 2d DCA 2001), which we acknowledge treated earlier versions of the same statutory scheme, we hold that the accident privilege in section 316.066(4) does not confer any benefit or privilege on a person who abandons her duty to remain at the scene of any automobile accident which results in death, and who chooses instead to leave the scene of an accident, contrary to section 316.027(l)(b) of the Florida Statutes (2013).

For this reason, we approve the decision of the trial court which correctly denied Williams’ dispositive motion to dismiss the statements made by her concerning the automobile crash in this case after she fled from the scene, and affirm the conviction and sentence for fleeing the scene of an accident.

Affirmed.


author: PER CURIAM.

text:
    M.B., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2096.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 2016.
    Carlos J. Martinez, Public Defender, and Billie Jan Goldstein, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Marlon J. Weiss, Assistant Attorney General, for appellee.
    Before WELLS, EMAS and LOGUE, JJ.
   PER CURIAM.

Affirmed. See L.L. v. State, 189 So.3d 252 (Fla. 3d DCA 2016); R.C. v. State, 192 So.3d 606 (Fla. 2d DCA 2016).


text:
    DADE COUNTY POLICE BENEVOLENT ASSOCIATION, INC., Appellant, v. MIAMI-DADE COUNTY, Florida, Appellee.
    No. 3D15-2459.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 2016.
    Andrew M. Axelrad, for appellant.
    Abigail Price-Williams, Miami-Dade County Attorney, and Eric A. Rodriguez and William X. Candela, Assistant County Attorneys, for appellee.

      Before LAGOA, EMAS and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Florida Educ. Ass’n v. Wojcicki, 930 So.2d 812, 813 (Fla. 3d DCA 2006) (recognizing that “Part II of Chapter 447 of the Florida Statutes provides an exclusive method for resolving labor disputes between public employers and public employees .... Under this part, jurisdiction over labor activities is preempted in favor of PERC if the activities involved are arguably covered by Part II of Chapter 447.”); Browning v. Brody, 796 So.2d 1191, 1192-93 (Fla. 5th DCA 2001) (holding that case law “interpreting the jurisdictional scope of the [Public Employees Relations] Act has broadly included, as falling within PERC’s exclusive jurisdiction, those activities which ‘arguably’ constitute unfair labor practices as defined by section 447.501 ‘or the type of labor matter or dispute within the contemplation of Part II, Chapter 447’ ”) (quoting Maxwell v. School Bd. of Broward Cty., 330 So.2d 177, 180 (Fla. 4th DCA 1976)). See also Miami Ass’n of Firefighters Local 587 v. City of Miami, 87 So.3d 93 (Fla. 3d DCA 2012) (holding that even where a complaint containing allegations of unfair labor practices presents issues of constitutional dimension, PERC has exclusive jurisdiction and the complaint is subject to dismissal).


author: SUAREZ, C.J.

text:
    Kristine E. RODRIGUEZ, Appellant, v. REEMPLOYMENT ASSISTANCE APPEALS COMMISSION, et al., Appellees.
    No. 3D16-569.
    District Court of Appeal of Florida, Third District.
    Oct. 26, 2016.
    Kristine E. Rodriguez, in proper person.
    Cristina A. Velez, Tallahassee, for appel-lee Reemployment Assistance Appeals Commission.
    Before SUAREZ, C.J., and WELLS and SCALES, JJ.
   SUAREZ, C.J.

Appellant Kristine Rodriguez appeals the Reemployment Assistance Appeals Commission’s dismissal of her appeal from an appeals referee’s decision that she was not entitled to unemployment benefits. We affirm.

The record establishes that the disqualification decision was issued on November 19, 2015. Appellant was properly notified of the decision and was properly advised of her right to appeal within 20 calendar days of the decision. Appellant did not request review until January 19, 2016, a date well past the time for appeal. On January 28, 2016 Appellant was ordered to show cause why her appeal should not be dismissed. Appellant was again properly advised that she should respond to the order within 10 calendar days. Appellant failed to respond to that order and, as a result, on February 23, 2016 her appeal was dismissed by the Commission on February 23,2016.

Because Appellant let the time periods for both the appeal and the show cause order run, we affirm the dismissal of her appeal.

Affirmed.

      . In her Initial Brief Appellant discusses a separate order which required her to repay benefits already paid. However, that order is not the subject of this appeal and we do not address the substance of that order.


author: LAGOA, J.

text:
    The BANK OF NEW YORK MELLON, etc., Appellant/Cross-Appellee, v. POKER RUN ACQUISITIONS, INC., Appellee/Cross-Appellant.
    Nos. 3D13-2379, 3D13-2607.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2016.

      Liebler Gonzalez & Portuondo and J. Randolph Liebler, Tricia J. Duthiers, and Adam M. Topel, for appellant/cross-appel-lee.
    Cohen, Ruiz P.A. and Mario M. Ruiz, for appellee/cross-appellant.
    Before SHEPHERD, LAGOA, and EMAS, JJ.
   LAGOA, J.

Appellant/Cross-Appellee, the Bank of New York Mellon, etc. (“the Bank”), appeals from an Amended Final Judgment Determining Amounts Due and Owing (“Amended Final Judgment”) and an Order on Plaintiffs Motion for Rehearing and to Alter or Amend Judgment. The Bank argues that the trial court did not possess jurisdiction to enter the Amended Final Judgment after it filed a Notice of Voluntary Dismissal. Appellee/Cross-Ap-pellant, Poker Run Acquisitions, Inc. (“Poker Run”), appeals from the Amended Final Judgment and an order denying its motion for prevailing party attorneys’ fees and costs. Poker Run asserts that the trial court erred in awarding the Bank additional interest in the Amended Final Judgment, and that the trial court erred in denying its motion for prevailing party attorneys’ fees and costs.

Based on Pino v. Bank of New York, 121 So.3d 23 (Fla.2013), we are compelled to reverse and vacate the Amended Final Judgment as the Bank’s Notice of Voluntary Dismissal divested the trial court of jurisdiction. Because the trial court lacked jurisdiction to enter the Amended Final Judgment, we also vacate the trial court’s order denying Poker Run’s motion for prevailing party attorneys’ fees and costs.

I. FACTUAL & PROCEDURAL HISTORY

In June 2008, Poker Run sued the Bank’s borrower, Alvaro Gorrín (the “Borrower”), for breach of an unlimited personal guaranty (the “Guaranty Case”). The trial court entered final summary judgment in favor of Poker Run and the Borrower appealed. While the appeal was pending, Poker Run executed on various assets of the Borrower, including the real property (the “Property”) at issue in this matter. Poker Run took title to the Property pursuant to a sheriffs deed recorded on May 6, 2010.

On July 20, 2010, the Bank filed a Complaint against the Borrower seeking to foreclose on its $2,360,000.00 mortgage lien recorded against the Property (the “Foreclosure Case”). Poker Run moved to intervene. On October 8, 2010, the trial court granted Poker Run’s motion and ordered the Bank to provide Poker Run payoff figures limited to the amount due when the sheriffs deed was filed. On October 20, 2010, the- Bank filed an Amended Complaint naming Poker Run as the sole defendant and owner of the Property. Pursuant to an order entered April 6, 2011, Poker Run ultimately tendered payment to the Bank in the amount of $2,581,227.15, which the Bank rejected.

On November 23, 2011, while the Foreclosure Case was pending, this Court reversed the final summary judgment in the Guaranty Case and remanded for a new trial. See Gorrin v. Poker Run Acquisitions, Inc., 77 So.3d 739 (Fla. 3d DCA 2011).

On February 10, 2012, the Bank filed a Second Amended Complaint in the Foreclosure Case re-naming the Borrower as a defendant. Poker Run denied the Bank’s claimed damages and asserted various affirmative defenses. The trial court then transferred the Foreclosure Case to the same division as the Guaranty Case.

On February 11, 2013, the trial court held a pretrial hearing in the Guaranty Case, which the Bank attended. At that hearing, Poker Run raised concerns regarding the sale of the Property, including the pendency of the Foreclosure Case. Two days later, the trial court entered a Closing Order in the Guaranty Case requiring Poker Run to pay the Bank the full amount of its claimed payoff upon the sale of the Property. The Closing Order also “reserve[d] jurisdiction to adjudicate Poker Run’s or [the Borrower’s] claim ... that the amount due is less.” The Property was then sold and the Bank accepted $3,033,089.65 from the sale as its payoff. The Bank subsequently filed a motion to vacate the Closing Order, contending that it was not present when the Closing Order was entered. The trial court found that the Bank, as a non-party in the Guaranty Case, lacked standing to file the motion to vacate.

On March 26, 2013, the Bank filed a Notice of Voluntary Dismissal (the “Notice”) in the Foreclosure Case. Poker Run filed a Motion to Strike the Notice, arguing that the Bank could not accept the payoff from the Property’s sale in the Guaranty Case and then deprive the trial court of jurisdiction to adjudicate Poker Run’s claims. On April 15, 2013, the trial court held a bench trial in the Foreclosure Case. The Bank contended that the trial court’s reservation of jurisdiction in the Guaranty Case Closing Order did not survive the Notice filed in the Foreclosure Case. Poker Run argued that the Bank was not entitled to keep the full payoff amount it received from the sale of the Property. In its May 15, 2013 Final Judgment, the trial court found that it maintained jurisdiction in the Foreclosure Case pursuant to its reservation of such in the Guaranty Case’s Closing Order. The trial court ruled that the Bank was required to remit to Poker Run $435,934.30 of the payoff amount.

On May 24, 2013, the Bank filed a motion for rehearing, arguing that the Final Judgment contained mathematical errors pertaining to the payoff amount the Bank was required to remit to Poker Run. The trial court granted the motion for rehearing and entered an Amended Final Judgment on August 15, 2013, which corrected the calculation errors, but did not otherwise modify the Final Judgment. The Bank appealed. Poker Run filed a motion for attorneys’ fees and costs, contending that it was the prevailing party under section 57.105(7), Florida Statutes (2013). The trial court denied Poker Run’s motion, and Poker Run appealed.

II. ANALYSIS

A. The Bank’s Appeal

The Bank argues that the trial court erred in proceeding with trial in the Foreclosure Case and ultimately entering the Amended Final Judgment because it was divested of jurisdiction when the Bank filed its Notice. Based on Pino v. Bank of New York, 121 So.3d 23 (Fla.2013), we agree. In Pino, the Florida Supreme Court noted that “[t]he voluntary dismissal serves to terminate the litigation, to instantaneously divest the court of its jurisdiction to enter or entertain further orders that would otherwise dispose of the case on the merits, and to preclude revival of the original action.” Id. at 32.

There are some limited exceptions to the rule articulated in Pino. For example, a distinction exists between a party filing a simple voluntary dismissal with prejudice and an order by the trial court dismissing an action but reserving jurisdiction or incorporating the parties’ settlement agreement. As this Court has previously explained:

There is a difference between presenting a settlement agreement to the trial court for approval prior to dismissal of an action and cases where the parties voluntarily dismiss the action without an order of the court pursuant to Florida Rule of Civil Procedure 1.420. A voluntary dismissal under rule 1.420(a) divests the trial court of continuing jurisdiction over the case. However, where the parties, prior to dismissal, present a settlement agreement to the trial court for approval and the trial court enters an order of dismissal predicated on the parties’ settlement agreement, the trial court retains jurisdiction to enforce the terms of the settlement agreement.

Albert v. Albert, 36 So.3d 143, 147 (Fla. 3d DCA 2010) (citations omitted).

Contrary to Poker Run’s assertion, however, the Closing Order in the separate Guaranty Case does not fall within an exception to Pino for purposes of the Foreclosure Case. The Closing Order in the Guaranty Case was not a settlement agreement entered in the Foreclosure Case. Indeed, the Closing Order was not entered in the Foreclosure Case, and it did not otherwise purport to reserve the trial court’s jurisdiction to take any further action in the Foreclosure Case. In fact, the trial court subsequently concluded that the Bank could not challenge the Closing Order because the Bank had not been made a party to the Guaranty Case. The trial court, therefore, could not rely on its inherent powers to enforce, in the Foreclosure Case, the Closing Order entered in the Guaranty Case, since once the Bank’s Notice was filed, the trial court was immediately divested of jurisdiction in the Foreclosure Case and no exception to Pino applied.

We note that it is clear from the record that the trial court intended to enter the Closing Order in both the Guaranty and Foreclosure Cases. As the trial court stated at the hearing on Poker Run’s Motion to Strike the Bank’s Notice:

The bottom line is [the Property] closed with the Court reserving jurisdiction to address the outstanding claims that Poker Run are [sic] asserting are due and owing.
The bottom line is they can’t handle both claims. You can’t have it where I order that the case — that the property be closed subject to certain circumstances, take advantage of that closing, and now say well, because you closed we’re not making a claim anymore. That’s not fair.
But there was a lot going on and we did it on Monday and we brought you back on Wednesday. Everybody was trying to get it closed because it was in everybody’s economic interest to get it closed.
So it seems to me that in 10-39316 [the Foreclosure Case], notwithstanding that fact that the order [Closing Order] was entered in the '08 case [Guaranty Case], it should have been — if I’d been on top of things — this should have been an order entered in 10-39316 [the Foreclosure Case] in an abundance of caution
Pursuant to the Court’s order, I reserve jurisdiction to adjudicate the affirmative defenses, the amount due and owing that I ordered. I think it’s clear from the order that I ordered that the Bank be paid the most amount it could be paid, so that it would feel comfortable releasing the lien. The reservation by the Court survives the voluntary dismissal, I believe, because of the specific circumstances that motivate the voluntary dismissal.

We are sympathetic to the trial court— this was clearly an oversight and not an intention to insulate the Foreclosure Case from the effect of the Closing Order. Nonetheless, because the Guaranty and Foreclosure Cases maintained their separate existences, cf. Santiago v. Mauna Loa Invs., LLC, 189 So.3d 752 (Fla.2016), the Closing Order in the Guaranty Case cannot be imported into the Foreclosure Case such that an exception to Pino would apply in the Foreclosure Case.

While we are therefore compelled to reverse, we note that Poker Run is not without a remedy. The sole reason the Bank received $3,033,089.65 from the sale of the Property was that the Closing Order directed the payment to be made, and it is undisputed that the trial court anticipated a subsequent adjudication of the Bank’s and Poker Run’s dispute over how much the Bank was ultimately entitled to receive. Nothing in the record before us precludes Poker Run from filing a separate suit against the Bank seeking repayment for the sums Poker Run alleges the Bank is not entitled to keep. Presumably, that action would be transferred to the same division of the trial court that handled both the Foreclosure and Guaranty Cases in an effort to conserve judicial resources.

B. Poker Run’s Cross-Appeal and Consolidated Appeal

In its cross-appeal, Poker Run argues that it was error for the trial court in the Amended Final Judgment to award the Bank $2,707,155.45, which included $141,516.67 in interest and $56,000.00 in insurance charges incurred during the period from December 1, 2009 to June 30, 2011. Poker Run argues this was error, and that the Bank was only entitled to the amount Poker Run tendered, $2,581,227.15. Because as we noted in Section A supra, the Notice divested the trial court of jurisdiction, the trial court’s Amended Final Judgment must be vacated.

The same rationale dictates our resolution of the issue raised in Poker Run’s consolidated appeal. Poker Run’s motion for attorneys’ fees and costs asserted that Poker Run was the prevailing party at trial. Because the Notice divested the trial court of jurisdiction, the trial court’s order denying Poker Run’s motion for attorneys’ fees and costs must be vacated.

III. CONCLUSION

Because the Foreclosure Case terminated when the Bank filed its notice of voluntary dismissal, the trial court was without jurisdiction to take any further action in that matter. We therefore reverse and vacate the Amended Final Judgment. We further vacate the trial court’s order denying Poker Run’s motion for attorneys’ fees and costs as that order was entered after the filing of the Bank’s notice of voluntary dismissal.

Reversed and Remanded.

      . On remand, the trial court ruled that the Property would remain in Poker Run’s possession due to the Borrower’s attempt to fraudulently transfer the Property during Poker Run’s execution. On June 24, 2013, the trial court entered final judgment in favor of Poker Run. This Court affirmed the final judgment in Gorrin v. Poker Run Acquisitions, Inc., 163 So.3d 1207 (Fla. 3d DCA 2015) (table).

      . The Bank re-named Gorrín as a defendant in the Foreclosure Case as a result of this Court's reversal of the final judgment in the Guaranty Case.

      . In August of 2012, the trial court had entered an order appointing a receiver in the Guaranty Case. That order required Poker Run to immediately turn over possession of the Property to the Receiver and allowed the Receiver to list the Property for sale.

      . In its Objections to the Closing Documents regarding the sale of the Property, Poker Run objected to the closing statement requiring a payoff in full of the Property’s mortgage. Specifically, Poker Run asserted that ”[t]he appropriate amount of the mortgage payoff is precisely the issue being litigated before this Court in ... (the "Foreclosure Action”), where Poker Run has argued (and Judge Cohen Lando previously ruled) that the amount due to the Bank is hundreds of thousands of dollars less than what is claimed. However, the closing statement, received yesterday, requires payment in full of the entire amount claimed by the Bank, which effectively adjudicates the Foreclosure Action without a trial.”

      .The Closing Order also contains the following language:
      1. Bank of N.Y. Mellon shall be paid the amount it claims is due at closing, but the court reserves jurisdiction to adjudicate Poker Run’s or [the Borrower’s] claim ... that the amount due is less, and if appropriate to order said Bank to return any overpayment, or disputed amount.
      2. Bank of N.Y. Mellon, shall upon receipt of payment of the amount it claims due, shall issue a voluntary dismissal with prejudice of its foreclosure action, with the court to reserve jurisdiction as noted above in part 1, shall discharge its lis pendens and provide a Satisfaction of Mortgage.

        . The Amended Final Judgment corrected the payoff amount owed by the Bank to Poker Run from $435,934.30 to $325,934.20.

      . To note, counsel for the Bank at the hearing on Poker Run’s Motion to Strike the Notice did ultimately acknowledge that the reason for filing its Notice was because it had received the $3,033,089.65 payoff pursuant to the Closing Order:
      [THE BANK]: We voluntarily dismissed the action.
      THE COURT: Because you were paid.
      [THE BANK]: Correct.
      THE COURT: Not because you lost interest.
      [THE BANK]: That happens too sometimes. But no, not in this case.
      THE COURT: So the question is that the bank was paid. And how much the bank was paid, I think it’s part of the reserved jurisdiction of the Court. And that part survives the voluntary dismissal, and the case should not be closed on the adjudication on the amount outstanding pursuant to the Court’s reservation.

      . We express no opinion regarding the merits of such a suit.


author: SCALES, J. SHEPHERD J.,

text:
    G4S SECURE SOLUTIONS USA, INC., etc., Appellant, v. Taliya GOLZAR, Appellee.
    No. 3D14-2588.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2016.

      Hicks, Porter, Ebenfeld & Stein, P.A., and Mark Hicks, Dinah Stein and Shannon Debus-Horn; Kenny Nachwalter, P.A., and Jeffrey T. Foreman and Victoria Wilson, for appellant.

      The Ferraro Law Firm, P.A., and David A. Jagolinzer; O’Quinn Stumphauzer & Sloman, and Jeffrey H. Sloman and Christopher E. Gottfried, for appellee.
    Before SHEPHERD, ROTHENBERG and SCALES, JJ.
   SCALES, J.

Appellant, defendant below, G4S Secure Solutions USA, Inc. (“Wackenhut”) appeals a final judgment rendered after a jury verdict in favor of Appellee, plaintiff below, Taliya Golzar (“Golzar”). Because Florida’s impact rule precludes recovery of damages in tort cases for emotional distress absent any physical injury, we reverse.

I. Facts

A. Wackenhut hires Owens as a security officer

Wackenhut is a private security company providing security services throughout the United States, including Miami-Dade County. In November of 2008, Eric Owens (“Owens”) submitted an employment application for a position as a security guard with Wackenhut. A Wackenhut human resources manager interviewed Owens, and following the interview, Wacken-hut hired Owens as a security officer. Owens successfully passed Wackenhut’s training program, drug screening, and medical examination, and received the applicable security guard licenses from the State of Florida. In Owens’s employment application he marked the “no” box in response to a question asking whether Owens had any criminal convictions.

Wackenhut, through a subsidiary, also performed a background check on Owens, which revealed that Owens had been convicted in California for a misdemeanor disorderly conduct charge in 2004, but the background check revealed no details about the offense. Wackenhut never asked Owens why he had not disclosed the offense on his employment application, and Wackenhut did not attempt to obtain any of the paperwork from Owens’s 2004 California conviction. As it was later revealed, the specific offense for which Owens was convicted under California’s disorderly conduct statute was prowling and peeking into an inhabited building.

B. The incident

In June of 2010, Wackenhut assigned Owens to its security account for Old Cutler Bay, a residential community in Miami-Dade County. At around 2:40 a.m. on August 15, 2010, while Owens was on patrol duty in Old Cutler Bay, Owens used his cellular phone to record a video of Golzar, who was about to enter her senior year in high school, in a state of undress. Golzar observed Owens’s hand holding up his cellphone pressed on her window and, being quite alarmed at the sight, banged on the window and alerted others in her home of the incident.

After recording the video of Golzar, Owens fled from the Golzar home and drove back to the guardhouse in Old Cutler Bay. Shortly after Owens’s return to the guardhouse, one of Golzar’s friends drove to the guardhouse and informed Wackenhut officers of the incident. Owens returned to Golzar’s home, ostensibly to “investigate” the incident he caused. Owens misrepresented to Golzar’s family that Owens had seen a prowler and that he had called the police.

When the police did not arrive at Gol-zar’s home, Golzar’s mother phoned the police and learned that, despite Owens’s statement to the contrary, the police had not been notified of the incident. Ultimately, the police recovered Owens’s phone, which Owens had hidden in a retaining wall near his car. Owens came to the police station and confessed to videotaping Golzar on that night and on two prior occasions. Owens was immediately terminated by Wackenhut and ultimately convicted of two criminal counts of video voyeurism.

C. Golzar’s claims against Wackenhut

On November 18, 2010, Golzar filed the instant lawsuit against Wackenhut seeking both compensatory and punitive damages. Golzar claimed Wackenhut had negligently hired, retained, and supervised Owens. The basis of Golzar’s negligence claims was that Wakenhut should have known Owens had been convicted of peeking and prowling in California in 2004, and thus, Wackenhut was negligent in allowing Owens to work as a security guard in residential areas.

D. Golzar’s damages

Golzar sought compensatory, non-economic damages for the past and future emotional trauma caused by the incident. At trial, there was no evidence that Golzar had suffered any type of physical injury, and it was undisputed that Owens never touched or had any other physical contact with Golzar. Golzar did claim that, following the incident, she experienced some generalized illnesses and physical problems including weight gain, nightmares, and feelings of anxiety.

After the incident, in her senior year in high school, Golzar ran track, played soccer, and excelled academically. She was accepted at Duke University and awarded a full scholarship. At Duke, she also was involved in a number of extracurricular activities and excelled academically.

After trial, the jury returned a verdict in Golzar’s favor finding that Wackenhut had negligently hired, retained, and supervised Owens. The jury awarded Golzar $1,332,588.08 in damages.

E.Wackenhut’s motions for summary judgment and directed verdict

Prior to trial, Wackenhut moved for summary judgment on the ground that Florida’s impact rule precluded recovery of the purely non-economic damages for emotional trauma that Golzar had suffered and might suffer in the future. Wacken-hut made a similar motion for directed verdict at the conclusion of Golzar’s case in chief, and in post-trial motions. The trial court denied all of Wackenhut’s “impact rule” motions.

Wackenhut timely brings this appeal of the trial court’s order denying its Motions to Set Aside the Jury Verdict and Judgment and to Enter Judgment in Accordance with its Motion for Directed Verdict and Amended Motion for New Trial.

II. Standard of Review

When reviewing a pure question of law, such as the trial court’s denial of Wackenhut’s impact rule motions, our standard of review is de novo. Keck v. Eminisor, 104 So.3d 359, 363 (Fla.2012).

III. Analysis

The issue before this Court is whether Florida’s impact rule precludes Golzar from recovering against Wackenhut purely non-economic damages for emotional distress for the torts of negligent hiring, negligent retention, and negligent supervision.

A, The impact rule in Florida

Florida’s impact rule provides that “before a plaintiff can recover damages for emotional distress caused by the negligence of another, the emotional distress suffered must flow from physical injuries the plaintiff sustained in an impact. The rule actually requires some impact on the plaintiff, or, in certain situations, the manifestation of severe emotional distress such as physical injuries or illness.” Fla. Dep’t of Corrs. v. Abril, 969 So.2d 201, 206 (Fla.2007) (citations and internal quotation marks omitted). The policy behind Florida’s impact rule is that “compensatory damages for emotional distress are ‘spiritually intangible,’ are beyond the limits of judicial action, and should be dealt with through legislative action rather than judicial decisions,” R.J. v. Humana of Fla., Inc., 652 So.2d 360, 362 (Fla.1995).

The Florida Supreme Court has crafted limited exceptions to Florida’s impact rule, recognizing that certain torts are necessarily devoid of physical harm and are of such a nature that the only foreseeable damages resulting from those torts are emotional damages that are non-economic in nature.

For example, in Abril, the Court recognized that “... the only reasonable damages arising from a breach of [Florida’s HIV confidentiality statute] are emotional distress,... ” 969 So,2d at 207-08. Similarly, our Supreme Court has noted that Florida’s impact rule does not apply to any intentional tort such as defamation, invasion of privacy and intentional infliction of emotional distress. Rowell v. Holt, 850 So.2d 474, 479 (Fla.2003).

B. Impact rule application to the torts of negligent hiñng, negligent retention, and negligent supervision

Against this backdrop, we analyze the torts of negligent hiring, negligent retention, and negligent supervision, i.e., the three causes of action alleged against Wackenhut by Golzar. Specifically, we must determine, as a matter of first impression, whether to include these torts as limited exceptions to Florida’s impact rule. At the outset, we note that we have been provided no Florida case in which a court has not applied the impact rule to claims of negligent hiring, negligent retention, and negligent supervision.

In fact, several federal courts have applied Florida’s impact rule to preclude a plaintiffs recovery of purely non-economic damages for these torts. See Resley v. Ritz-Carlton Hotel Co., 989 F.Supp. 1442, 1449 (M.D.Fla.1997) (holding that a plaintiffs negligent retention and hiring claims failed at summary judgment because the plaintiff did not allege physical injury, thereby satisfying Florida’s impact rule); see also Jenks v. Naples Cmty. Hosp., Inc., 829 F.Supp.2d 1235, 1257-58 (M.D.Fla. 2011) (granting defendant’s summary judgment on negligent supervision and retention claim where plaintiff failed to allege an impact and failed to provide any evidence showing that emotional distress aggravated plaintiffs breast cancer); Weld v. Se. Cos., Inc., 10 F.Supp.2d 1318, 1323 (M.D.Fla.1998) (granting motion to dismiss negligent supervision cause of action for failure to state a claim where plaintiffs complaint failed to satisfy the impact rule); Degitz v. S. Mgmt. Servs., Inc., 996 F.Supp. 1451, 1462 (M.D.Fla.1998) (applying Florida’s impact rule to plaintiffs negligent retention claim and granting defendant’s summary judgment “to the extent [pjlaintiff seeks damages for emotional distress”).

Additionally, in addressing whether Florida’s impact rule applies to the tort of negligent training, this Court has expressly held that the impact rule precludes recovery for such purely non-economic damages. Miami-Dade Cty. v. Cardoso, 922 So.2d 301 (Fla. 3d DCA 2006).

C. Abril

Nevertheless, Golzar argues that the Florida Supreme Court’s decision in Abril, which post-dates our decision in Cardoso, expands by implication the exceptions to Florida’s impact rule. We do not read Abril so broadly.

In Abril, a medical lab, contracted by Florida’s Department of Corrections, faxed false HIV test results of a Department of Corrections employee in violation of Florida’s HIV confidentiality statute, section 381.004(3)(f) of the Florida Statutes. The trial court dismissed Abril’s actions seeking compensatory damages for mental anguish and emotional distress based upon Florida’s impact rule. Abril’s lawsuit was reinstated after Florida’s Supreme Court determined that violation of Florida’s HIV confidentiality statute is the type of tort for which the only reasonably foreseeable damages are emotional distress damages. Abril, 969 So.2d at 207-08.

D. Abril distinguished

While Golzar’s damages stemming from Wackenhut’s failure to properly investigate Owens’s prior California conviction are, like Abril’s damages, emotional distress damages, it can hardly be said that the only reasonably foreseeable damages from any negligent hiring, negligent retention, and negligent supervision tort are emotional distress damages.

Indeed, Florida jurisprudence is replete with examples of an employer being held liable for personal injury damages and economic damages for its negligent hiring, negligent retention, or negligent supervision. See, e.g., Tallahassee Furniture Co., Inc. v. Harrison, 583 So.2d 744 (Fla. 1st DCA 1991) (affirming a jury verdict for negligent retention where furniture deliveryman brutally attacked plaintiff in her home); Abbott v. Payne, 457 So.2d 1156 (Fla. 4th DCA 1984) (reversing order granting motion to dismiss where plaintiff sufficiently stated a cause of action for negligent hiring when a former employer broke into plaintiffs home at night and physically assaulted her); Williams v. Feather Sound, Inc., 386 So.2d 1238 (Fla. 2d DCA 1980) (reversing order granting summary judgment where condominium negligently hired a maintenance man who assaulted a tenant).

Plainly, unlike in Abril, economic damages, as well as emotional distress damages, are reasonably foreseeable when an employer fails to screen and vet an employee properly. We do not view the torts of negligent hiring, negligent retention, and negligent supervision as torts in which the only foreseeable damages are non-economic damages; therefore, we conclude that Abril is distinguishable.

a. “Merger” of Owens’s and Wakenhut’s conduct

Understandably, but without citing any precedent, Golzar urges us essentially to merge Owens’s intentional conduct (that is, his invasion of Golzar’s privacy) with Wackenhut’s negligent conduct, without differentiating between the two parties’ distinct actions. Golzar argues that when the only foreseeable damages stemming from an employee’s intentional conduct are non-economic, then Florida’s impact rule should have no applicability to the employer’s negligent conduct that facilitated the employee’s intentional conduct.

Almost by definition, however, the torts of negligent hiring, negligent retention, and negligent supervision are fundamentally distinct from the employee’s underlying, intentional wrong. Florida’s impact rule applies only to the torts of negligent hiring, negligent retention, and negligent supervision. In our view, blurring -the distinction would be the functional equivalent of imposing vicarious liability on an employer for the intentional tortious conduct of its employee. Florida courts have consistently rejected this notion. See Hennagan v. Dep’t of Highway Safety & Motor Vehicles, 467 So.2d 748, 750 (Fla. 1st DCA 1985). We do not read Abril so as to require such a “merger.”

b. Vicarious liability

Finally, Golzar suggests that Abril can be read to impose vicarious liability on an employer when it is foreseeable that the damages resulting from both (i) the employee’s intentional tort, and (ii) the employer’s negligent hiring, are purely non-economic.

We do not read Abril as standing for the proposition that an employer is somehow vicariously liable for the intentional tort of its employee. Importantly, in Abril, the Department of Corrections was vicariously responsible pursuant to statute for the negligence of the laboratory. 969 So.2d at 204. No such statutory undertaking is implicated in this case.

There is no indication in Abril, or in any other case cited to us, that an employer should be vicariously liable for an intentional tort of its employee committed outside the scope of employment. See Goss v. Human Servs. Assocs, Inc., 79 So.3d 127, 132 (Fla. 5th DCA 2012).

IV. Conclusion

While we are indeed sympathetic with Golzar in this case, and find Owens’s behavior to be reprehensible, in our view, these considerations are not sufficient to waive the applicability of Florida’s impact rule to the torts of negligent hiring, negligent retention, and negligent supervision. We reverse the judgment on appeal and remand -with instructions to enter final judgment in favor of Wackenhut.

ROTHENBERG, J., concurs.

SHEPHERD J.,

dissenting.

Respectfully, there is no principled reason to excuse G4S Secure Solutions USA, Inc., from responsibility for the invasion of privacy Taliya Golzar suffered in this case at the hands of one of its employees. The Florida Supreme Court has long acknowledged that the impact rule “generally is inapplicable to recognized torts in which damages are often predominantly emotional.” Kush v. Lloyd, 616 So.2d 416, 422 (Fla.1992). Included early on among those exceptions were “emotional distress damages for torts such as invasion of privacy.” Gracey v. Eaker, 837 So.2d 348, 366 (Fla. 2002) (citing Kush at 422-23). Taliya suffered an invasion of her privacy in this case. G4S had a “special professional duty” to each resident of the gated community which it was engaged to protect. See Rowell v. Holt, 860 So.2d 474, 479 (Fla.2003) (holding that a public defender owed a special professional duty to a client who had been unlawfully detained to obtain his immediate release). It was foreseeable that a security guard who had once been a Peeping Tom would engage in such conduct again. None of the legal or historically advanced policy reasons for the application of the impact rule are served by denying Taliya recovery from G4S in this case. Let me explain.

A

This is a simple negligence case. After the evidence was adduced by the parties at trial, the only viable count remaining at the close of the evidence was the negligent hiring count. It is true that our High Court has not yet approved recovery of damages in a claim for psychological trauma alone where the proximate cause of the injury was negligent hiring. The fact connotes only that such a case has not come before the Court. However, our High Court has approved the recovery of compensatory damages in a wide variety of other types of simple negligence cases where, as in the case before us, the only injury claimed was psychological trauma. See Fla. Dep’t of Corr. v. Abril, 969 So.2d 201, 204 (Fla.2007) (holding the impact rule was inapplicable in an action for negligent failure of a testing laboratory to ensure confidentiality and privacy of HIV test results); see also Holt, 850 So.2d at 481 (holding the impact rule was inapplicable to a legal malpractice case against the Office of Public Defender for failure to obtain immediate release of imprisoned client); Gracey, 837 So.2d at 352-53 (holding the impact rule was inapplicable in a negligence action against a psychotherapist, alleging breach of fiduciary and statutory duty of confidentiality to patient); Hagan v. Coca-Cola Bottling Co., 804 So.2d 1234, 1236 (Fla.2001) (creating an exception for ingestion of a contaminated food or beverage); Tanner v. Hartog, 696 So.2d 705, 708 (Fla.1997) (holding the impact rule was inapplicable to a claim of negligent stillbirth); Gonzalez v. Metro. Dade Cty. Pub. Health Trust, 651 So.2d 673 (Fla.1995) (creating an exception for negligent handling of a corpse); Kush, 616 So.2d at 423 (holding the impact rule was inapplicable to a parent’s claim for wrongful birth of their severely deformed child).

These cases establish a strong prece-dential authority for an exception in this case. All of them are cases in which the only injury suffered by the plaintiff was emotional. So it is here. At the time of the incident, Taliya was a minor who lived with her parents in Old Cutler Bay, an exclusive waterfront community located in Miami-Dade County. Years before this incident, Miami-Dade County formed Old Cutler Bay into a Security Guard Special Taxing District and contracted with G4S to provide security service. It is not disputable that G4S owed a duty to Taliya and her family to protect them from unwanted intruders and criminals who might wish to do harm to them or their property. They paid for the service. G4S’ employee, Eric Michael Owens, perpetrated a crime on Taliya. He was convicted of two counts of video voyeurism, precisely what G4S was hired to prevent.

The principal retort from the majority to this factual syllogism and mountain of supporting authority is: “[Well], we have been provided no Florida case in which a court has refused to apply the impact rule to claims of negligent hiring, negligent retention and negligent supervision.” Of course not. The reason is that the Florida Supreme Court has proceeded in this area on an ad hoc, “case-by-case basis.” Abril, 884 So.2d at 210 (“In short, the reach of the rule has been reduced on an ad hoc basis as the court has weighed the merits of applying or not applying the rule to particular circumstances.”). I can appreciate the majority’s reticence to go where our Supreme Court has not yet gone. In one respect, we are being asked to divine what the Florida Supreme Court would do if presented with the facts of our case. However, ours is an independent constitutional court, and we have a judicial responsibility to decide. See Ard v. Ard, 395 So.2d 586, 587-88 (Fla. 1st DCA 1981) (concluding that a district could not “avoid judicial responsibility” to determine whether the relationship between spousal immunity from suit, as recognized by the Florida Supreme Court, and parental immunity from suit, where the Florida Supreme Court had only acknowledged the latter by dictum). I would draw on the guidance we have and affirm the jury verdict on liability in this case.

B.

Because I would affirm the jury verdict on liability in this case, I must address G4S’ alternate argument on appeal that it is entitled to a new trial on compensatory damages or a remittitur of the award. Here, some chronology is important.

G4S timely served its Motion to Set Aside the Jury Verdict and Judgment and to Enter Judgment in Accordance with the Motion for Directed Verdict or, Alternative Motion for New Trial on May 29, 2014, fifteen days after the jury returned its verdict in this case. See Fla. R. Civ. P. 1.530(b). G4S’ Alternative Motion for New Trial did not include a request to the trial court to consider ordering a remittitur or a new trial under section 768.74 of the Florida Statutes (2014), on the ground that the verdict was “excessive.” See § 768.74(1)-(5). Nor did the Alternative Motion for New Trial seek relief on any of the longstanding common law grounds that “the verdict shocks the judicial conscience,” “the jury [was] unduly influenced by passion or prejudice,” or that the verdict was “contrary to the manifest weight of the evidence.” See Brown v. Estate of Stuckey, 749 So.2d 490, 498 (Fla.1999). Instead, G4S’ Alternative Motion for a New Trial articulated two very specific “reasons” upon which it argued “the Court should grant the Defendant a new trial ...: (1) the issue of punitive damages was improperly submitted to the jury, and (2) the statements from the website of Defendant’s sister company, G4S Compliance and Investigations ..., as well as a document labeled Wackenhut Screening Solutions’ (‘collectively Website Statements’) should have been excluded.” .(Emphasis added.) It was these two specific “errors” which G4S claimed “prejudiced” it and caused “a grossly excessive damage award”

Sixty-three days later, on July 31, 2014, G4S launched an effort to expand the reasons it had earlier stated as the grounds for a new trial, first by -serving a Motion for Leave to Amend Its Alterative Motion for New Trial, and five days after that, an Amended Motion for Leave to Amend Its Alternative Motion for New Trial. G4S’ Motion for Leave to Amend sought only to “add a request for remittitur” to its presently pending motion, citing for the first time to section 768.74, which authorizes such a motion. G4S’ Amended Motion for Leave to Amend sought to expand the scope of the original Alternative Motion for New Trial even further beyond the two specific “errors” originally asserted by invoking the remaining subsections of section 768.74, making for the first time, the general allegation that the “verdict is excessive based upon the evidence adduced at trial.” Attached to G4S’ Amended Motion for Leave to Amend was a proposed, restated Motion to Set Aside the Jury Verdict and Judgment and to Enter judgment in Accordance with the Motion for Directed Verdict or, Alternative Motion for New Trial, which recited every section of its original motion en haec verba, but now included a brand new six-page subsection III.A., seeking both remittitur and making a full-throated argument for new trial on all of the grounds that it had omitted from its original motion. The conclusion to the restated motion acknowledged that these new grounds were, in fact, “additional reasons” for granting a new trial. After reviewing Taliya’s response to the three motions, including her objection to the motions to amend on the ground of timeliness, the trial court denied all of G4S’ post-trial motions.

With respect to the two motions to amend G4S’ timely served Alterative Motion for New Trial, I believe the trial court was well within its discretion to deny the motions on timeliness grounds as urged by Taliya. A motion for remittitur under section 768.74 is “ ‘essentially a conditional motion for a new trial.’ ” See Hauss v. Waxman, 866 So.2d 768, 759 (Fla. 4th DCA 2004) (quoting Fire & Cas. Ins. Co. of Conn. v. Sealey, 810 So.2d 988, 991 (Fla. 1st DCA 2002)). Because a motion for remittitur is a conditional motion for new trial, it is subject to Florida Rule of Civil Procedure 1.530(b) and the motion must be filed within fifteen days after the jury renders the verdict. The motions in this case were served eighty-three and seventy-eight days respectively, after the jury returned its verdict.

The test for determining whether the trial court abused its discretion in denying these two motions is well established:

Discretion, in this sense, is abused when the judicial action is arbitrary, fanciful, or unreasonable, which is another way of saying that discretion is abused only where no reasonable man would take the view adopted by thé trial court. If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.

Canakaris v. Canakaris, 382 So.2d 1197, 1203 (Fla.1980) (quoting Delno v. Market Street Railway Company, 124 F.2d 965, 967 (9th Cir.1942)).

In analyzing this issue, it is important to separate the timeliness objection raised by Taliya in opposition to the two motions from the merits of the motions. If the trial judge properly exercised his discretion in denying the motions to amend on timeliness grounds, then it is not necessary to reach the merits of the arguments made in the motions. In my view, it is not necessary to reach the merits of the motions. A careful study of G4S’s Alternative Motion for a New Trial and proposed amendments allow but one inference: G4S was purposefully and discreetly seeking to add grounds to its Alternative Motion for New Trial that it had previously overlooked. Taliya called G4S on the tactic in her response to the post-trial motions. The trial judge expressly acknowledged the response in his order denying G4S’ post-trial motions. I do not believe it can be said that the trial court acted “arbitrarily, fancifully or unreasonably” in denying the late filed motions. See Cana-karis at 1203 (“If reasonable men could differ as to the propriety of the action taken by the trial court, then it cannot be said that the trial court abused its discretion.”).,

As to the narrow grounds that were set forth in G4S’ timely filed Alternative Motion for New Trial, I have no difficulty concluding that the trial judge properly exercised his discretion in denying the motion for new trial made on those grounds. The extensiveness of the two motions to amend suggests that G4S itself recognized the inadequacy of its own timely filed motion.

CONCLUSION

The impact rule serves the salutary purpose of limiting recovery for emotional damages “where we are most comfortable that real emotional distress has occurred.” Abril, 969 So.2d at 212. In this case, however, the majority creates an artificial impact rule limitation on a claimant’s ability to obtain redress from the entity that put in motion the instrument of a harm which has been long recognized as being compensable in our courts. I see no principled reason to apply the impact rule to the facts of this case.

      . There is no evidence that the videos were ever transferred from Owens’s phone onto a computer, uploaded to the Internet, or otherwise shared with anyone.

      . The basis for the jury’s damage award was, as Golzar’s counsel argued in closing, equal to the cumulative hourly pay that Owens would have received as a Wackenhut employee from the date of the incident until the day Owens would reach the age of sixty-five.

      .Wackenhut also made a post-trial motion pursuant to section 768.74 of the Florida Statutes seeking a remittitur of the non-economic damages awarded. Because of our decision, we need not, and do not, reach Golzar’s argument that Wackenhut’s motion for remittitur was untimely.

      . “A claim for negligent hiring arises when, before the time the employee is hired, the employer knew or should have known that the employee was unfit. Liability in these cases focuses on the adequacy of the employer's pre-employment investigation into the employee's background. Liability for negligent supervision or retention, however, occurs after employment begins, where the employer knows or should know of an employee's unfitness and fails to take further action such as investigating, discharge or reassignment.” Malicki v. Doe, 814 So.2d 347, 362 n. 15 (Fla.2002) (internal citations omitted),

      . In his compelling dissent, J. Shepherd suggests that modern Florida Supreme Court jurisprudence requires the application of the impact rule on an ad-hoc, case-by-case basis. And, because ‘‘[njone of the legal or historically advanced policy reasons for the application of the impact rule” are present, the impact rule should go into torpor in this case. While J. Shepherd might be correct in "divinfing] what the Florida Supreme Court would do if presented with the facts of our case,” we are reminded of the late economist Edgar Fiedler’s admonition: He who lives by the crystal ball soon learns to eat ground glass. We are more reticent than J. Shepherd to relegate the impact rule to the impact suggestion. Until either the Legislature or the Florida Supreme Court abrogates it, the impact rule remains essential to a plaintiff seeking recovery for emotional distress damages, i.e., in order to recover non-economic emotional distress damages, a plaintiff must show that the emotional distress flowed from physical injuries sustained in an impact. Humana of Fla., Inc., 652 So.2d at 363.

      . The majority accurately depicts the differences between negligent hiring, negligent supervision and negligent retention claims in footnote 4. The trial court directed a verdict in favor of G4S on the negligent supervision claim during trial. Taliya has not cross-appealed that ruling.

      . There are twenty such similar Security Guard Special Taxing Districts in the County, most also consisting of exclusive waterfront communities. The purpose of the special district is to share the cost for the provision of security services in the respective communities. See https://www.miamidade.gov/parks/ library/notices/special-taxing-district-security-guards.pdf (last visited June 25, 2016).

      . Under Florida law,
      A person commits the offense of video voyeurism if that person:
      (a) For his or her own amusement, entertainment, sexual arousal, gratification, or profit, or for the purpose of degrading or abusing another person, intentionally uses or installs an imaging device to secretly view, broadcast, or record a person, without that person’s knowledge and consent, who is dressing, undressing, or privately exposing the body, at a place and time when that person has a reasonable expectation of privacy.
      § 810.145(2)(a), Fla. Stat. (2012).

      .The majority draws our attention to four United States District Court cases in which the courts applied the impact rule to prohibit recovery for either negligent retention or supervision of an employee. See Maj. Op. at p. 208. However, most of them pre-date the more recent expansions of the rule cited here, and, of course, they are not binding on us. I also find puzzling the majority’s assertion at page 10 that because emotional distress damages are “[not] the only reasonably foreseeable damages from any negligent hiring, negligent retention, and negligent supervision tort,” that such a claim is barred when the harm is of a type not typically accompanied by a physical impact, such as is the case here. This would seem to be a non-sequitur.

      . These portions of the motion all relate to the impact rule- issue previously addressed.


author: SALTER, J. WELLS, J.

text:
    Ernesto VEGA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2916.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2016.
    Rehearing Denied Dec. 9, 2016.
    Ana M. Davide, for appellant.
    Pamela Jo Bondi, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before SUAREZ, C.J., and WELLS and SALTER, JJ.
   SALTER, J.

Ernesto Vega appeals the summary denial of his motion for postconviction relief under Florida Rule of Criminal Procedure 3.850. Mr. Vega’s four claims seek relief from his obligation to register as a sexual offender under section 943.0435, Florida Statutes (1997) — a statute which became effective a week after he entered his plea, but which applied to him upon his completion of a period of community control and probation in 2001. The trial court denied the claims as untimely, and we must affirm.

Facts and Procedural History

In 1997, Vega was charged with lewd and lascivious acts on a child (a girl then fourteen years of age) in violation of section 800.04, Florida Statutes (1996). The acts were allegedly committed in 1996 when Vega was 27 years old. On September 15, 1997, Vega entered a plea of guilty to the charge. On September 27,1997, the trial court entered an order withholding adjudication and placing Vega on community control for a period of one year followed by four years of probation.

Allegedly unbeknownst to Vega at the time he considered and entered his plea, the Florida Legislature’s enactment of the sexual offender registration statute, section 943.0435, Florida Statutes (1997), became effective October 1, 1997. The statute was subsequently held to apply retroactively without violating the Ex Post Facto Clause of the United States Constitution. Givens v. State, 851 So.2d 813, 814-16 (Fla. 2d DCA 2003), review denied, 917 So.2d 193 (Fla.2005).

Vega argues that he should be allowed to withdraw his plea because he did not enter it with an understanding that his name and photograph would be published and placed on the internet as a sexual offender, or that he would have additional reporting duties to the Florida Department of Law Enforcement pursuant to the post-plea statute. In its response, the State asserts that registration and reporting as required by section 943.0435 are merely collateral consequences of his plea, and that his motion was untimely.

The sworn allegations in Vega’s motion assert that the victim was his girlfriend at the time; that she became pregnant in 1996 following consensual intercourse with him; that they married in 1997 (with the consent of his girlfriend’s parents) and had a total of three children together; and that they are still together in a loving and committed relationship. Vega successfully completed his community control and probation in 2001.

Vega now alleges under oath that, as a result of the sexual offender designation, he cannot take his children to school, cannot attend school functions or ceremonies, and cannot host a birthday party for his children. He has also experienced significant difficulty obtaining employment because of his designation as a sexual offender, making it difficult to provide financial support for his family.

The trial court concluded that Vega’s motion was untimely, that no evidentiary hearing was required, and that the motion should be denied with pi’ejudice pursuant to Florida Rule of Criminal Procedure 3.850(f)(1), This appeal followed.

Analysis

In State v. Partlow, 840 So.2d 1040 (Fla. 2003), the Supreme Court of Florida considered the primary argument raised now by Vega: “The issue is whether, after being sentenced for a sexual offense pursuant to a plea of guilty or nolo contendere, a defendant may withdraw his plea as involuntary because he was not informed of the sexual offender registration requirement.” Id. at 1041. The Court held that “the sexual offender registration requirement is a collateral consequence of the plea, and therefore the failure to inform the defendant of that requirement before he entered the plea does not render the plea involuntary.” Id.

Three Justices dissented in Partlow, concluding that the failure to advise a defendant of the potentially lifelong sexual offender registration and reporting requirements of section 943.0435 may render a plea involuntary and subject to withdrawal under Florida Rule of Criminal Procedure 3.170(/,); such a failure, it was argued in the dissent, “undermines the voluntariness of the plea because the requirement is a direct rather than a collateral consequence.” Id. at 1047 (Pariente, J., dissenting). A fourth Justice urged The Florida Bar’s Criminal Procedure Rules Committee to consider an amendment to Rule 3.172 “to require courts, before accepting a plea, to inform defendants whenever the sexual offender registration applies.” Id. at 1045 (Cantero, J., concurring).

In State v. Wiita, 744 So.2d 1232 (Fla. 4th DGA 1999), the Fourth District affirmed a trial court order allowing a defendant to withdraw his plea to a sexual offense, though the plea was entered over six years before section 943.0435 became effective.

Wiita claimed that because section 943.0435 was not in effect at the time he entered his plea agreement, the reporting and publication requirements of the statute were neither contemplated nor made a part of his plea agreement. Based upon these facts, Wiita argued that good cause existed to vacate his plea because it was not entered knowingly or voluntarily.

Id. at 1233.

Wiita, though relied upon by Vega, is distinguishable in several respects. First, Wiita moved to withdraw his plea only eight months after section 943.0435 became effective. In the present case, Vega’s motion was filed almost eighteen years after the effective date of the statute, and fourteen years after he became subject to the statutory registration and reporting requirements by virtue of his completion of probation. Second, Wiita established that he and his counsel had negotiated a plea agreement based on express representations that this would allow Wiita to “avoid publicity,” an expectation eliminated six years later when Wiita “had publicity thrust upon him due to the requirements of section 943.0435....” Id. at 1235. Third, Wiita was decided four years before the Supreme Court of Florida comprehensively addressed the issue in Part-low. And finally, the Fourth District upheld the trial court’s decision in Wiita based on the “abuse of discretion” standard of review. We cannot say, based on the record in the present case, that the trial court abused its discretion.

With all of that said, one cannot help but question whether the registration and reporting requirements are not a sort of latter-day Scarlet Letter in an unusual case such as this; the offender and his victim married, have raised three children, and seek to work and attend their children’s school events twenty years after the offense. The only remedies available to such a family on this record, however, appear to be (1) a petition to remove the sexual offender registration requirement, which in this case cannot be filed before 2026, pursuant to section 943.0435(11), Florida Statutes (2016), or (2) a petition to the Clemency Board of Florida for a full pardon, pursuant to Article IV, Section 8(a), of the Florida Constitution, and Chapter 940, Florida Statutes (2016). We express no opinion as to the merits of any such petition, should one be filed.

Affirmed.

WELLS, J.

(specially concurring).

I agree with the majority’s conclusion that the order on appeal must be affirmed. I do so because Vega’s motion was untimely and because, even had it been timely filed, it would not have provided any basis for relief. This is so because, as the majority opinion confirms, the sexual offender registration requirement is a collateral consequence of a plea and because sexual offenders like Vega by law are not eligible for relief from the requirements of section 943.0435 for at least twenty-five years after release from confinement, supervision, or sanction, whichever is later. See State v. Partlow, 840 So.2d 1040 (Fla.2003); § 943.0435(11)(a), Fla. Stat. (2016).

I do not, however, question the wisdom of the registration and reporting requirements imposed by section 943.0435 as applied in this case or otherwise. The law (here section 800.04) makes it a crime for a twenty-seven year old to engage in specified sexual acts with a fourteen year old. See § 800.04, Fla. Stat. (2016), The law (section 943.0435) also requires a twenty-seven year old man, such as Vega, who engages in sex with a fourteen year old, such as the victim here, to be designated a sexual offender and to bear all of the burdens that go with it for at least twenty-five years irrespective of his good intentions at the time or his subsequent “good” behavior. See § 943.0435(11), Fla. Stat. (2016). More particularly, this law provides the means for giving notice to parents that this adult has a history of sexually abusing a child, so that those parents may decide for themselves whether to expose their children to him. § 943.0435(2)(a)2, Fla. Stat. (2016) (requiring sexual offenders to report to a sheriffs office “for registration”); § 943.043, Fla. Stat. (2016) (authorizing the department of law enforcement to notify the public through the Internet and other means of any information not confidential or exempt regarding sexual offenders). Rather than concern that this sex offender now bears a “Scarlet Letter,” I take comfort in the fact that the law has provided an avenue for parents to make their own decisions as to the care and protection of their children.

      . In 2005, Rule 3.172 was amended to add section (c)(9) to plea colloquies. That section addresses a defendant’s possible subjection in certain cases to "involuntary civil commitment as a sexually violent predator upon completion of his or her sentence.” The Rule has not been amended, however, to address sexual offender registration.

      . Registration is for the duration of the offender’s life unless he or she “has been lawfully released from confinement, supervision, or sanction, whichever is later, for at least 25 years and has not been arrested for any felony or misdemeanor offense since release,” and satisfies all other requirements of section 943.0435(1 l)(a) and (b).


text:
    Keith WROMAS, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-2848.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2016.
    Rehearing Denied Dec. 9, 2016.

      Keith Wromas, Jr., in proper person.
    Pamela Jo Bondi, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before WELLS, SHEPHERD and SCALES, JJ.
   SHEPHERD, J.

Keith Wromas appeals the denial of his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800, which in essence was a petition for removal of the requirement to register as a sexual offender under the “Romeo and Juliet Law,” section 943.04354 of the Florida Statutes (2016). Because it appears that despite two pro se attempts, the trial court has not exercised its discretion to address the merits of Wromas’ petition, we reverse.

On November 7, 2000, Wromas pled guilty to lewd and lascivious battery on a child twelve to sixteen years of age in violation of section 800.04(4), Florida Statutes (1999). The charged offense was eighteen-year-old Wromas’ consensual sexual relations with his fifteen-year-old girlfriend, as a result of which the couple conceived a child. Wromas’ conviction lead to one year of probation, and automatic designation as a sexual offender for life under section 943.0435, Florida Statutes (1999).

On July 27, 2009, Wromas wrote a letter to the trial judge, requesting to be removed from the sexual offender list under the “Romeo and Juliet Law.” Under this law, a sexual offender may petition for removal if the defendant meets certain requirements, including proving that the sexual relationship was consensual between a defendant who is not more than four years older than the victim. The trial court treated the letter as a petition for removal of Wromas’ sexual offender designation, and summarily dismissed the petition on September 9, 2009. Wromas subsequently filed the Rule 3.800 motion, which the trial court denied after receiving the State’s response. In its response, in addition to challenging the appropriateness of Rule 3.800 relief, the State argued Wro-mas’ motion should be denied because the statute prohibits more than one request for removal and Wromas’ subsequent convictions disqualify him from removal. The order denying the motion does not contain the trial court’s reason for denying relief.

The fact that Wromas’ motion incorrectly sought relief under Rule 3.800 does not warrant summary denial of Wro-mas’ request for removal of sexual offender designation under the statute. See, e.g., Barrett v. State, 965 So.2d 1260, 1261 (Fla. 2d DCA 2007) (“Article V, section 2(a) of the Florida Constitution requires that no cause be dismissed because an improper remedy has been sought. Accordingly, the trial court should have considered whether Barrett had alleged sufficient facts to warrant relief and, if so, treated his motion as if the proper remedy had been sought.”). Just as it did with Wromas’ 2009 letter, the trial court should have treated the Rule 8.800 motion as a petition for removal of the sexual offender designation.

Although the statute provides for only one petition, the summary denial of Wromas’ 2009 request for removal of designation also does not preclude considering his most recent request. § 943.04354(2)(b) (“If the court denies the motion, the person is not authorized under this section to file another motion for removal of the registration requirement.”). The 2009 request was summarily denied without a hearing or participation from the State. Thus, it would seem the court found Wro-mas’ letter to be facially insufficient and did not consider the merits of the petition. See Horton v. State, 127 So.3d 825 (Fla. 2d DCA 2013) (affirming the dismissal of petition for removal of the sexual offender designation as facially insufficient, but indicating defendant was not barred from filing a facially sufficient petition). As our sister court concluded in Martinez v. State, 111 So.3d 915, 918 (Fla. 2d DCA 2013), a defendant is entitled to have his petition considered “where the trial court knows that the statute applies and, thus, can exercise its discretion to either grant or deny relief.”

Finally, the trial court’s failure to reveal its reason for denying relief also prevents affirmance based on Wromas’ subsequent criminal record. A trial court may, within its discretion, deny a petition for removal of a sexual offender designation because of the defendant’s criminal record. See Matos v. State, 184 So.3d 1194 (Fla. 5th DCA 2015). However, the record must show that the trial court exercised its discretion in so ruling. Id. at 1195-96 (“In this current order, though, unlike in Matos I, the trial court also analyzed Matos’s petition under the second, discretionary prong.... Matos is currently serving a life sentence and has been convicted of several previous violent offenses.”). In this case, we are unable to determine whether the trial court properly exercised its discretion to deny Wromas’ petition for this reason.

Accordingly, we reverse the denial of Wromas’ petition for removal of the sexual offender designation and the concurrent registration requirement, and remand for the trial court to consider whether Wro-mas is entitled to relief given the circumstances in this case.

Reversed and remanded for further proceedings.

      . In May of 2002, Wromas admitted violating his probation and was sentenced to three years in prison in the case. As a result of subsequent convictions, Wromas presently is serving'an eighteen-year prison sentence.


author: EMAS, J.

text:
    Pamela Z. WHITE, as Personal Representative of the Estate of Willie D. Williams, Appellant, v. GREYMAR ASSOCIATES, LLC, Appellee.
    No. 3D16-617.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2016.
    Rehearing Denied Dec. 9, 2016.
    Carlos A. Ziegenhirt, for appellant.
    Mark Evans Kass, for appellee.

      Before SALTER, EMAS and FERNANDEZ, JJ.
   EMAS, J.

We affirm the trial court’s entry of partial summary judgment, as well as the subsequent final judgment of foreclosure, each entered in favor of appellee, upon its determination that appellee was a bona fide purchaser for value, and because there was no evidence establishing that, at the time appellee acquired its mortgage interest, it had constructive or actual notice of the existence of an unrecorded agreement, upon which appellant relies for the contention that appellant had a previously-acquired and outstanding interest in the property. See § 695.01(1), Fla. Stat. (2008); Gabel v. Drewrys Ltd., U.S.A., Inc., 68 So.2d 372 (Fla.1953); Warner v. Watson, 35 Fla. 402, 17 So. 654 (1895). We also find no error in the trial court’s denial of appellant’s motion to stay execution of the final judgment.

      . We note that, at the time the notice of appeal was filed, there remained unadjudicat-ed counterclaims below in lower case number 05-6744. However, appellee is not a party to those counterclaims and neither the trial court proceedings which form the basis for this appeal, nor our disposition of this appeal, affects appellant’s right to proceed on those counterclaims.


text:
    Irma A. ALVAREZ, etc., Appellant, v. LIFEMARK HOSPITALS OF FLORIDA, INC., etc., Appellee.
    No. 3D16-990.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2016.
    Ford, Dean & Rotundo, P.A., and William A. Dean and Michael J. Rotundo; Burlington <& Rockenbach, P.A. and Philip M. Burlington and Nichole J. Segal, West Palm Beach, for appellant.
    Wicker, Smith, O’Hara, McCoy & Ford, P.A., and Michael R. D’Lugo, Orlando, for appellee.
    Before SUAREZ, C.J., and LAGOA and EMAS, JJ.
   PER CURIAM.

Affirmed. See Univ. of Miami v. Echarte, 618 So.2d 189 (Fla.1993).