author: KELLUM, Judge.

text:
    Mohammad SHARIFI v. STATE of Alabama
    CR-14-1349
    Court of Criminal Appeals of Alabama.
    September 9, 2016 Rehearing Denied December 9, 2016 Certiorari Denied May 19, 2017
    Alabama Supreme Court 1160229
    Mickey Joe Gentle, Huntsville; and Robert B. Tuten, Huntsville, for appellant.
    Luther Strange, atty. gen., and Richard D. Anderson, asst. atty. gen., for appellee.
   KELLUM, Judge.

Mohammad Sharifi appeals the circuit court's summary dismissal of his petition for postconviction relief filed pursuant to Rule 32, Ala. R. Crim. P., in which he attacked his capital-murder conviction and sentence of death.

In 2005, Sharifi was convicted of capital murder for the murders of Sarah Kay Smith Sharifi, his estranged wife, and Derrick Brown by one act or pursuant to one scheme or course of conduct. See § 13A-5-40(a)(10), Ala. Code 1975. By a vote of 10-2, the jury recommended that Sharifi be sentenced to death for his capital-murder conviction. The trial court followed the jury's recommendation and sentenced Sharifi to death. This Court affirmed Sharifi's conviction and death sentence on appeal. Sharifi v. State, 993 So.2d 907 (Ala.Crim.App.2008). The Alabama Supreme Court denied certiorari review, and this Court issued a certificate of judgment on May 16, 2008. The United States Supreme Court denied certiorari review on November 3, 2008. Sharifi v. Alabama, 555 U.S. 1010, 129 S.Ct. 491, 172 L.Ed.2d 386 (2008). The facts of Sharifi's crime are set out fully in our opinion in Sharifi v. State and need not be repeated here.

On May 3, 2009, Sharifi filed the instant Rule 32 petition, raising several claims, including claims of ineffective assistance of counsel. Sharifi's appellate counsel prepared the petition on Sharifi's behalf, but Sharifi submitted the petition pro se. On May 29, 2009, Sharifi filed a pro se amendment to his petition, raising additional claims. In July 2009, Sharifi procured counsel to represent him in the Rule 32 proceedings, and counsel filed a motion for leave to amend the petition. The State then filed a motion requesting that the circuit court set a date for the filing of the amended petition. The circuit court did not rule on either motion, and counsel did not file an amended petition.

In February 2012, Sharifi procured new counsel to represent him in the proceedings, and in August 2012 that counsel moved for a 90-day enlargement of time in which to amend the petition, which the circuit court granted. Counsel filed an amendment to the petition on November 30, 2012, raising additional claims. The State filed an answer and a motion to dismiss Sharifi's petition and amendments on March 14, 2013. On December 30, 2013, counsel filed a reply to the State's response, a motion for leave to again amend the petition, and an amendment to the petition.

In May 2014, Sharifi once again procured new counsel to represent him in the proceedings, and in September 2014 new counsel filed a motion for an evidentiary hearing. We note that between August 2012 and April 2015, while represented by counsel, Sharifi filed 11 pro se amendments to his petition, numerous pro se motions, and a pro se reply to the State's response. In August 2013, upon motion of the State, the circuit court struck Sharifi's pro se filings received as of that date, with the exception of his initial petition and amendment filed in May 2009, and directed Sharifi to refrain from filing any further pro se pleadings. In December 2014, the circuit court, noting that Sharifi had ignored its August 2013 directive to not file any further pro se pleadings, issued an order directing that any pro so filings by Sharifi be forwarded to his attorney and not be included as part of the official court file. In April 2015, noting that Sharifi had continued to file pro se pleadings since December 2014, the circuit court issued a second order directing that any pro se filings by Sharifi be forwarded to his attorney and not be included as part of the official court file and striking additional pro se pleadings that Sharifi had filed between October 2014 and April 2015.

On June 26, 2015, the circuit court issued an order denying Sharifi's December 30, 2013, motion for leave to amend his petition; striking all of Sharifi's pro se pleadings filed as of that date with the exception of Sharifi's original petition filed in May 2009 and his pro se amendment also filed in May 2009; and summarily dismissing Sharifi's petition and amendments. Sharifi did not file a postjudgment motion. The circuit court specifically noted in its order that it was considering only Sharifi's original May 2009 petition, the May 2009 pro se amendment, and the 2012 amendment filed by counsel. Therefore, in disposing of this appeal, we do not consider those pro se filings struck by the circuit court. As did the circuit court, we consider only Sharifi's original petition, his May 2009 amendment, and his 2012 amendment.

"[W]hen the facts are undisputed and an appellate court is presented with pure questions of law, that court's review in a Rule 32 proceeding is de novo." Ex parte White, 792 So.2d 1097, 1098 (Ala.2001). "However, where there are disputed facts in a postconviction proceeding and the circuit court resolves those disputed facts, '[t]he standard of review on appeal ... is whether the trial judge abused his discretion when he denied the petition.' " Boyd v. State, 913 So.2d 1113, 1122 (Ala.Crim.App.2003) (quoting Elliott v. State, 601 So.2d 1118, 1119 (Ala.Crim.App.1992) ). "On direct appeal we reviewed the record for plain error; however, the plain-error standard of review does not apply to a Rule 32 proceeding attacking a death sentence." Ferguson v. State, 13 So.3d 418, 424 (Ala.Crim.App.2008). "It is well settled that 'the procedural bars of Rule 32 apply with equal force to all cases, including those in which the death penalty has been imposed.' " Nicks v. State, 783 So.2d 895, 901 (Ala.Crim.App.1999) (quoting State v. Tarver, 629 So.2d 14, 19 (Ala.Crim.App.1993) ). Moreover, with limited exceptions not applicable here, the general rule is that this Court may affirm a circuit court's judgment if it is correct for any reason. See Bryant v. State, 181 So.3d 1087, 1100 (Ala.Crim.App.2011) ; Moody v. State, 95 So.3d 827, 833 (Ala.Crim.App.2011) ; and McNabb v. State, 991 So.2d 313, 333 (Ala.Crim.App.2007), and the cases cited therein.

Rule 32.7(d), Ala. R. Crim. P., authorizes the circuit court to summarily dismiss a petitioner's Rule 32 petition

"[i]f the court determines that the petition is not sufficiently specific, or is precluded, or fails to state a claim, or that no material issue of fact or law exists which would entitle the petitioner to relief under this rule and that no purpose would be served by any further proceedings ...."

I.

Initially, we point out that Sharifi does not pursue on appeal many of the claims he raised in his petition and amendments. It is well settled that this Court "will not review issues not listed and argued in brief." Brownlee v. State, 666 So.2d 91, 93 (Ala.Crim.App.1995). " '[A]llegations ... not expressly argued on ... appeal ... are deemed by us to be abandoned.' " Burks v. State, 600 So.2d 374, 380 (Ala.Crim.App.1991) (quoting United States v. Burroughs, 650 F.2d 595, 598 (5th Cir.1981) ). "[C]laims presented in a Rule 32 petition but not argued in brief are deemed abandoned." Ferguson v. State, 13 So.3d 418, 436 (Ala.Crim.App.2008). Those claims Sharifi raised in his petition and amendments but does not pursue on appeal are deemed abandoned and will not be considered by this Court.

II.

Sharifi first reasserts on appeal the claim from his petition that his trial counsel were ineffective for not raising an objection at trial to the State's use of its peremptory strikes on the ground that the strikes violated Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and J.E.B. v. Alabama, 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994).

In Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court articulated two criteria that must be satisfied to show ineffective assistance of counsel. A defendant has the burden of showing (1) that his or her counsel's performance was deficient and (2) that the deficient performance actually prejudiced the defense. To establish prejudice, "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id."The likelihood of a different result must be substantial, not just conceivable." Harrington v. Richter, 562 U.S. 86, 112, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). Furthermore, "a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." 466 U.S. at 689.

Rule 32.3, Ala. R. Crim. P., states that "[t]he petitioner shall have the burden of pleading and proving by a preponderance of the evidence the facts necessary to entitle the petitioner to relief." Rule 32.6(b), Ala. R. Crim. P., states that "[t]he petition must contain a clear and specific statement of the grounds upon which relief is sought, including full disclosure of the factual basis of those grounds. A bare allegation that a constitutional right has been violated and mere conclusions of law shall not be sufficient to warrant any further proceedings." As this Court noted in Boyd v. State, 913 So.2d 1113 (Ala.Crim.App.2003) :

" 'Rule 32.6(b) requires that the petition itself disclose the facts relied upon in seeking relief.' Boyd v. State, 746 So.2d 364, 406 (Ala.Crim.App.1999). In other words, it is not the pleading of a conclusion'which, if true, entitle[s] the petitioner to relief.' Lancaster v. State, 638 So.2d 1370, 1373 (Ala.Crim.App.1993). It is the allegation of facts in pleading which, if true, entitle[s] a petitioner to relief. After facts are pleaded, which, if true, entitle the petitioner to relief, the petitioner is then entitled to an opportunity, as provided in Rule 32.9, Ala. R. Crim. P., to present evidence proving those alleged facts."

913 So.2d at 1125.

"The burden of pleading under Rule 32.3 and Rule 32.6(b) is a heavy one. Conclusions unsupported by specific facts will not satisfy the requirements of Rule 32.3 and Rule 32.6(b). The full factual basis for the claim must be included in the petition itself. If, assuming every factual allegation in a Rule 32 petition to be true, a court cannot determine whether the petitioner is entitled to relief, the petitioner has not satisfied the burden of pleading under Rule 32.3 and Rule 32.6(b). See Bracknell v. State, 883 So.2d 724 (Ala.Crim.App.2003). To sufficiently plead an allegation of ineffective assistance of counsel, a Rule 32 petitioner not only must 'identify the [specific] acts or omissions of counsel that are alleged not to have been the result of reasonable professional judgment,' Strickland v. Washington, 466 U.S. 668, 690, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), but also must plead specific facts indicating that he or she was prejudiced by the acts or omissions, i.e., facts indicating 'that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.' 466 U.S. at 694, 104 S.Ct. 2052. A bare allegation that prejudice occurred without specific facts indicating how the petitioner was prejudiced is not sufficient."

Hyde v. State, 950 So.2d 344, 356 (Ala.Crim.App.2006).

In his petition, Sharifi alleged the following with respect to this claim:

"The removal of even one juror for a discriminatory reason requires reversal and a new trial. Ex Parte Carter, 627 So.2d 1030, 1032 (Ala.1993). At Sharifi's trial, the state used 20 of 25 strikes to remove females from the jury and used 6 strikes to remove black jurors. See Supplemental Clerk's Record at 19-40 and R. 905-08.
"Intent may be proven by disparate impact where all or most of the challenges were used to strike (women) from the jury. Batson v. Kentucky, [476 U.S. 79,] 106 S.Ct. 1712, 1721 (1986) and Miller-El v. Cockrell, [537 U.S. 322,] 123 S.Ct. 1029 (2003). In Sharifi's case, the prosecutor used 20 of 25 strikes to remove women. Hence, Madison used 80% of their strikes to remove women and used 6 strikes to remove black jurors.
"In addition, a pattern in the use of peremptory strikes by a prosecutor and by his office is relevant in considering and assessing the strength of a prima facie case of discriminatory use of peremptory strikes. Ex parte Bird, 594 So.2d 676, 681 (Ala.1991), and Miller-El v. Cockrell, [537 U.S. 322,] 123 S.Ct. at 1036-37. In Bird, the Court found that Montgomery County had a history of Batson violations. Id. At the time of Bird, 4 out of 7 cases from Montgomery County had already been reversed due to Batson violations. See also Eagle v. Linahan, 279 F.3d 926 (11th Cir.2001) (counsel ineffective for failing to appeal adverse Batson ruling where State used 8 of 9 strikes to remove blacks and trial court denied based on percentage of blacks that actually served); Cochran v. Herring, 43 F.3d 1404 (11th Cir.1995) (evidence of 7 out of 14 black jurors struck along with district attorney's informal policy of striking jurors because of their race made a prime facie Batson case); Ex parte Branch, 526 So.2d 609, 623 (Ala.1987) (citing Swain [v. Alabama, 380 U.S. 202 (1965),] for consideration of state's past conduct in using strikes to remove black jurors).
"The State's strikes and the Madison County cases listed below show a pattern and practice of the State ... violating J.E.B. / Batson. See Moore v. State, 661 So.2d 770 (Ala.Cr.App.1994) ( Batson violated and then Moore received a new trial where the State again used 3 of 7 strikes to remove blacks. The trial court ignored the fact that Madison had violated Batson at the first trial and held Moore failed to make a prima facie case). Moore v. State, 677 So.2d 828 (Ala.Cr.App.1996) ; Rieber v. State, 663 So.2d 985, 990-91 (Ala.Cr.App.1994) (Madison struck 4 blacks. Court found both parties violated Batson ); Gordon v. State, 587 So.2d 427 (Ala.Cr.App.1990) (struck 6 of 7 blacks and claimed white defendant lacked standing to object), on remand, 591 So.2d 149 (Ala.Cr.App.1991) ( Batson violated); Smith v. State, 756 So.2d 892, 915 (Ala.Cr.App.1997) (Madison accused of improperly striking significant number of women and blacks, but counsel failed to object so inadequate record); Baker v. State, 683 So.2d 1, 6 (Ala.Cr.App.1995) (struck sole black juror-no record so court could not analyze); Bone v. State, 706 So.2d 1291, 1298-99 (Ala.Cr.App.1997) (defendant raised Batson but failed to articulate how and why so waived); Wilson v. State, 690 So.2d 449 (Ala.Cr.App.1995) (Madison used 9 of 15 strikes to remove blacks but held insufficient prima facie case); Freeman v. State, 586 So.2d 1013 (Ala.Cr.App.1991) (struck 5 of 7 blacks; remanded, but held race neutral explanations even though some were group stereotypes); Click v. State, 695 So.2d 209, 219-20 (Ala.Cr.App.1996) (state struck 4 blacks but held race neutral); and White v. State, 587 So.2d 1218, 1222 (Ala.Cr.App.1990) (removed 2 two black jurors).
"Finally, "Evidence that 'jurors in question share(d) only this one characteristic-their membership in the group-and that in all other respects they (were) as heterogeneous as the community as a whole.' " Ex Parte Branch, 526 So.2d at 622. "For instance, 'it may be significant that the persons challenged, although all black, include both men and women and are a variety of ages, occupations, and social or economic conditions.' ... indicating that race was the deciding factor." Id. at 622.
"The women and black jurors struck by the State shared only the one characteristic of their membership in the gender or racial group; in all other respects they were as heterogeneous as the community as a whole. They were a variety of ages, occupations, social and economic conditions.
"Jurors 220 and 122 had high school educations, while jurors 159 and 172 had masters degrees. (C. Supp. 459, 283, 327, 371). Juror 101 was an independent, juror 237 was a Democrat, and Juror 248 was a Republican. (C. Supp. 226, 523, 578). Juror 213 was a Missionary Baptist, juror 172 a Methodist, juror 93 a Catholic and juror 241 unaffiliated. (C. Supp. 446, 369, 215, 534). Juror 58 worked for NASA, juror 211 was a nurse, jurors 241 and 247 were students, juror 180 was an electrical engineer and juror 93 was a housewife. (C. Supp. 114, 434, 533, 555, 390, 214).
"Hence, a prima facie case of gender and racial discrimination against the State exists. However, trial counsel provided ineffective assistance of counsel by failing to object and preserve the record on this issue. Therefore, Sharifi is entitled to a hearing on his prima facie case of gender and racial discrimination."

(C. 53-56.)

This claim was not pleaded with sufficient specificity to satisfy the requirements in Rule 32.3, Ala. R. Crim. P., and Rule 32.6(b), Ala. R. Crim. P. Sharifi alleged that the State used 20 of its 25 strikes against women and 6 of its 25 strikes against blacks, but he failed to allege the composition of the venire or the petit jury. See Carruth v. State, 165 So.3d 627, 639 (Ala.Crim.App.2014) ("To be sufficiently specific, a petition, at a minimum, should indicate the ultimate composition of the petit jury. Although Carruth did allege a number of facts in his petition, he still fell short of the specificity requirement in Rule 32.6(b), Ala. R. Crim. P., by failing to disclose the racial composition of the jury that was ultimately selected.").

Sharifi also alleged that the Madison County District Attorney's Office has a history of racial and gender discrimination. However, only one of the cases Sharifi cited involved gender discrimination, and there was no finding in that case that any gender discrimination actually occurred. The remaining cases cited by Sharifi involved racial discrimination but they are attenuated, having occurred a decade before Sharifi's trial. See McCray v. State, 88 So.3d 1, 24 (Ala.Crim.App.2010) (noting that, when the history of discrimination is attenuated, "this factor, based on the passage of time, does not establish a prima facie case of ... discrimination").

Sharifi further alleged that the struck jurors shared only the characteristics of gender and/or race, but instead of pleading specific facts to support this assertion, Sharifi simply listed a single characteristic that differed for various jurors that were struck, without even identifying which of those jurors were women and which were African-Americans. Sharifi alleged that jurors no. 220, 122, 159, and 172 had differing education levels; that jurors no. 101, 237, and 248 had differing political views; that jurors no. 213, 172, 93, and 241 had different religious affiliations; and that jurors no. 58, 211, 241, 247, 180, and 93 had differing occupations.

"However, there is almost always going to be some variance among prospective jurors who are struck; therefore, this alone does not establish heterogeneity of the struck veniremembers so as to support an inference of discrimination. The question, as noted in both Ex parte Branch[, 526 So.2d 609 (Ala.1987),] and Ex parte Trawick, [698 So.2d 162 (Ala.1997),] is whether the struck jurors shared only the characteristic at issue."

McCray, 88 So.3d at 20. Sharifi's limited factual pleadings in this regard simply do not indicate that the struck jurors shared only the characteristic of gender and/or race.

Sharifi failed to plead sufficient facts indicating that the State violated either Batson or J.E.B. when exercising its peremptory strikes and, thus, failed to plead sufficient facts indicating that his trial counsel were ineffective for not raising a Batson and/or J.E.B. objection at trial. Therefore, summary dismissal of this claim in Sharifi's petition was proper.

III.

Sharifi also contends on appeal that he is actually innocent of the crime. However, Sharifi did not raise an actual-innocence claim in his petition or amendments. "The general rules of preservation apply to Rule 32 proceedings." Boyd v. State, 913 So.2d 1113, 1123 (Ala.Crim.App.2003). A Rule 32 petitioner cannot raise on appeal a postconviction claim that was not included in his or her petition or amendments. See Arrington v. State, 716 So.2d 237, 239 (Ala.Crim.App.1997) ("An appellant cannot raise an issue on appeal from the denial of a Rule 32 petition which was not raised in the Rule 32 petition."). Therefore, this claim was not properly preserved for review and will not be considered by this Court.

IV.

Sharifi next reasserts on appeal the claim from his petition that he was denied his right to confront and to cross-examine his accusers when, he said, the autopsy reports on the victims were admitted into evidence without the testimony of the medical examiner who had performed the autopsies. This claim, however, was raised by Sharifi on direct appeal from his conviction and sentence and was decided adversely to him by this Court. See Sharifi, 993 So.2d at 928-32. Therefore, this claim is, as found by the circuit court, precluded by Rule 32.2(a)(4), Ala. R. Crim. P., because it was raised and addressed on appeal, and summary dismissal of this claim was proper.

V.

Sharifi also contends on appeal that his trial counsel were ineffective for not objecting at trial to the State's allegedly violating Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose: evidence relating to DNA testing, a photograph regarding ballistics testing, the names of other suspects, and a receipt for the purchase of ammunition.

In his petition, Sharifi raised the substantive claim that the State violated Brady by allegedly not disclosing the above evidence. However, he did not allege that his trial counsel was ineffective for not raising this particular Brady claim at trial. A substantive claim that the State violated Brady is different than a claim that trial counsel was ineffective for not raising a Brady claim at trial. In its order, the circuit court found that Sharifi's substantive Brady claim was precluded by Rules 32.2(a)(3) and (a)(5), Ala. R. Crim. P., because it could have been, but was not, raised and addressed at trial and on appeal. In his brief on appeal, Sharifi does not dispute the circuit court's finding. Rather, Sharifi argues that because his substantive Brady claim was precluded, his trial counsel were ineffective for not having raised it at trial. However, because Sharifi did not raise this specific claim of ineffective assistance of counsel in his petition or amendments, this claim was not properly preserved for review and will not be considered by this Court. See Arrington v. State, 716 So.2d 237, 239 (Ala.Crim.App.1997) ("An appellant cannot raise an issue on appeal from the denial of a Rule 32 petition which was not raised in the Rule 32 petition.").

VI.

Finally, Sharifi contends that he was denied due process and access to the courts during the Rule 32 proceedings. As best we can discern, Sharifi argues that the circuit court was required to accept the allegations in his petition as true and to afford him relief because the State did not file its answer and motion to dismiss within 30 days of the filing of his original petition. Sharifi also appears to argue that, once the State filed its allegedly untimely answer and motion to dismiss and pleaded grounds of preclusion, the circuit court was required to hold a hearing on the State's answer and motion to dismiss to allow him to present evidence and argument to disprove the preclusions asserted by the State. Sharifi maintains that because the circuit court did not hold a hearing on the State's answer and motion to dismiss, he "was not given ample notice to formulate arguments and to present evidence to disprove the existence of any ground of preclusion." (Sharifi's brief, p. 25.)

Neither of these arguments was presented to the circuit court by written objection, in Sharifi's reply to the State's answer and motion to dismiss, or in a timely postjudgment motion. See Loggins v. State, 910 So.2d 146, 149 (Ala.Crim.App.2005) (recognizing a motion to reconsider as a valid postjudgment motion in the Rule 32 context). As noted previously in this opinion, "[t]he general rules of preservation apply to Rule 32 proceedings." Boyd v. State, 913 So.2d 1113, 1123 (Ala.Crim.App.2003). Because Sharifi did not present either of these issues to the circuit court, they were not properly preserved for review and will not considered by this Court.

VII.

Based on the foregoing, the judgment of the circuit court summarily dismissing Sharifi's Rule 32 petition is affirmed.

AFFIRMED.

Windom, P.J., and Welch, Burke, and Joiner, JJ., concur.

      Appellate counsel stated in the petition that preparing the petition on Sharifi's behalf was "his last action on behalf of Mr. Sharifi," after which he was "terminating his relationship with Mr. Sharifi." (C. 142.)

      In the November 2012 amendment to his petition, Sharifi alleged that the State had failed to disclose the following evidence related to the DNA testing that was performed: (1) copies of autorads, with the opportunity to examine the originals; (2) copies of laboratory books; (3) copies of quality-control tests run on material utilized; (4) copies of reports by the testing laboratory issued to the proponent; (5) a written report by the testing laboratory setting forth the method used to declare a match or non-match, with actual size measurements, and mean or average size measurement, if applicable, together with standard deviation used; (6) a statement setting forth observed contaminants, the reasons therefor, and tests performed to determine the origin and the effects thereof; (7) if the sample is degraded, a statement setting forth the tests performed and the results thereof; (8) a statement setting forth any other observed effects or laboratory errors, the reasons therefor and the effects thereof; (9) chain of custody documents; (10) a statement by the testing lab, setting forth the method used to calculate the allele frequency in the relevant population; (11) a copy of the data pool for each locus examined; and (12) a certification by the testing lab that the same rule used to declare a match was used to determine the allele frequency in the population. See Turner v. State, 746 So.2d 355, 361 n. 8 (Ala.1998).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Armando RIVAS, Petitioner, v. The BANK OF NEW YORK MELLON, Respondent.
    No. SC17-1934
    Supreme Court of Florida.
    [March 22, 2018]
    Armando Rivas, pro se, Boynton Beach, Florida, for Petitioner
    Nancy M. Wallace of Akerman LLP, Tallahassee, Florida, Adam G. Schwartz of Akerman LLP, West Palm Beach, Florida, and William P. Heller of Akerman LLP, Fort Lauderdale, Florida, for Respondent
   PER CURIAM.

This case is before the Court on the petition of Armando Rivas to invoke this Court's discretionary jurisdiction based on express and direct conflict. We have considered the jurisdictional briefs and portions of the record deemed necessary to reflect jurisdiction under article V, section 3(b)(3) of the Florida Constitution and hereby deny the petition.

Due to his numerous meritless and inappropriate filings in this Court pertaining to his foreclosure proceedings in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, during the pendency of his petition for jurisdiction in this case, Rivas was directed to show cause why he should not be barred from filing in this Court any future pro se pleadings, motions, or other requests for relief pertaining to his foreclosure proceedings in the Fifteenth Judicial Circuit. Rivas has filed a response to the order to show cause.

After considering Rivas's response, we conclude that it fails to show cause why he should not be sanctioned. Rivas has compiled a history of pro se filings in this Court that were devoid of merit or inappropriate for review.

Accordingly, the Clerk of this Court is hereby instructed to reject any future pleadings, petitions, motions, documents, or other filings submitted by Armando Rivas pertaining to his foreclosure proceedings in the Circuit Court of the Fifteenth Judicial Circuit, in and for Palm Beach County, Florida, unless such filings are signed by a member in good standing of The Florida Bar. Counsel may file on Rivas's behalf if counsel determines that the proceeding may have merit and can be brought in good faith.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, QUINCE, CANADY, POLSTON, and LAWSON, JJ., concur.

      In 2017, Rivas filed five other actions in this Court against The Bank of New York Mellon, four of which were filed in November alone. See Rivas v. Bank of New York Mellon , No. SC17-2099, 2018 WL 1020505 (Fla. Feb. 22, 2018) (review dismissed); Rivas v. Bank of New York Mellon , No. SC17-2098, 2017 WL 5983898 (Fla. Dec. 1, 2017) (review dismissed); Rivas v. Bank of New York Mellon , No. SC17-2043, 2017 WL 6031779 (Fla. Dec. 6, 2017) (petition transferred to district court); Rivas v. Bank of New York Mellon , No. SC17-1682, 2017 WL 4161262 (Fla. Sept. 20, 2017) (unpublished) (review dismissed); Rivas v. Bank of New York Mellon , No. SC17-203, 2017 WL 2569934 (Fla. June 14, 2017) (unpublished) (review dismissed). Rivas filed two additional actions in this Court against The Bank of New York Mellon in 2018. See Notice of Appeal to the Florida Supreme Court, or Alternatively, Notice to Invoke Discretionary Jurisdiction of the Florida Supreme Court at 1, Rivas v. Bank of New York Mellon , No. SC18-253 (Fla. Feb. 9, 2018); Rivas v. Bank of New York Mellon , No. SC18-138, 2018 WL 1151800 (Fla. Mar. 5, 2018) (review denied).

      See State v. Spencer , 751 So.2d 47, 48 (Fla. 1999) (stating that a court must first provide notice and an opportunity to respond before sanctioning a litigant and prohibiting litigant from future pro se filings).

      In recent years, we have imposed comparable sanctions on other litigants whose pro se filing practices have exhibited their disregard for abusing the scarce judicial resources of this Court. See, e.g. , Riethmiller v. Riethmiller , 133 So.3d 926 (Fla. 2013) ; McCutcheon v. State , 117 So.3d 769 (Fla. 2013) ; James v. Tucker , 75 So.3d 231 (Fla. 2011) ; Johnson v. Rundle , 59 So.3d 1080 (Fla. 2011) ; Steele v. State , 14 So.3d 221 (Fla. 2009) ; Pettway v. McNeil , 987 So.2d 20 (Fla. 2008).


author: LABARGA, C.J. CANADY, J., dissenting. POLSTON, J., dissenting.

text:
    Monica A. GUTIERREZ, etc., et al., Petitioners, v. Jose Luis VARGAS, M.D., etc., et al., Respondents.
    No. SC15-1924
    Supreme Court of Florida.
    [March 22, 2018]
    Marvin Kurzban and Jed Kurzban of Kurzban, Kurzban, Weinger, Tetzeli & Pratt, P.A., Miami, Florida; and Bambi G. Blum of Bambi G. Blum, P.A., Miami, Florida, for Petitioner
    Dinah Stein and Erik P. Bartenhagen of Hicks, Porter, Ebenfeld & Stein, P.A., Miami, Florida; and Ilisa W. Hoffman of Ilisa W. Hoffman, P.A., Coral Gables, Florida, for Respondent
   LABARGA, C.J.

Petitioner Monica A. Gutierrez ("Monica"), together with her parents Javier and Monica E. Gutierrez (collectively "Petitioners"), seeks review of the decision of the Third District Court of Appeal in Vargas v. Gutierrez , 176 So.3d 315 (Fla. 3d DCA 2015), on the ground that it expressly and directly conflicts with decisions of other district courts of appeal on a question of law. We have jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the reasons explained herein, we hold the trial court did not abuse its discretion when it allowed Monica's treating physicians to testify during trial as to their diagnostic opinions and permitted Petitioners to present rebuttal testimony from a second pathology expert. We further hold that any prejudice attributable to comments made during Petitioners' closing argument was insufficient to warrant a new trial. We therefore quash the decision of the Third District with respect to those issues.

BACKGROUND

This case arises out of a medical malpractice action brought by Petitioners against Respondent, Jose Luis Vargas, M.D. (Dr. Vargas). Dr. Vargas served as Monica's pediatrician from shortly after her birth in August 2000 until she was six years old. Petitioners claimed that, during that time, Dr. Vargas negligently failed to diagnose Monica with a chronic kidney disease known as C1q nephropathy, which severely damaged Monica's kidneys and forced her to undergo a kidney transplant in May 2007. Dr. Vargas contended Monica suffered not from C1q nephropathy but from membranoproliferative glomerulonephritis (MPGN), an acute kidney disease which could not have been diagnosed sooner. The parties relied heavily on expert testimony concerning pathology, pediatrics, and kidney disease to support their cases. During pretrial proceedings, the trial court entered a uniform order providing "[e]ach party is limited to one (1) retained expert per specialty. No other expert testimony shall be permitted at trial." The case went to trial in August 2012, and a mistrial was declared after three days. After a second, fourteen-day trial in April 2013, a jury awarded Petitioners $3,831,476 in damages. Petitioners then moved for additur, which Dr. Vargas accepted, and the trial court entered a final judgment award of $4,101,476. Dr. Vargas moved for a new trial on the issue of liability only, and the trial court denied the motion.

Dr. Vargas appealed to the Third District Court of Appeal, asserting that the trial court erred by denying his motion for directed verdict because Petitioners' evidence was insufficient to prove he proximately caused Monica's injury. Vargas , 176 So.3d at 321-22. Dr. Vargas also contended he was entitled to a new trial on liability because the trial court had erroneously allowed Petitioners to present testimony from multiple expert witnesses in the same area of specialty in violation of a pretrial order, and because Petitioners' counsel made improper comments during closing arguments. Id. at 322, 326. The Third District affirmed the trial court's denial of Dr. Vargas's motion for directed verdict, but reversed and remanded for a new trial "based on the plaintiffs' violation of the 'one expert per specialty' rule and for materially misrepresenting evidence in closing arguments." Id. at 318.

Petitioners sought review from this Court, arguing that the Third District's decision conflicts with Cantore v. West Boca Medical Center, Inc. , 174 So.3d 1114 (Fla. 4th DCA 2015), and other cases, because it improperly limits the testimony of treating physicians and rebuttal experts. In Cantore , the Fourth District held in part "that the jury should hear from a plaintiff's treating physicians-as in more than one, when there are more than one involved-regarding their care, recommendations, and medical decision-making." Id. at 1119 (citing Ryder Truck Rental, Inc. v. Perez , 715 So.2d 289, 290 (Fla. 3d DCA 1998) ). Petitioners also argue that the Third District erred in holding that Petitioners' closing arguments "mischaracterized the evidence, were highly improper, and materially prejudiced Dr. Vargas." Vargas , 176 So.3d at 327.

This review follows. A trial court's decision not to grant a new trial is reviewed for abuse of discretion. Brown v. Estate of Stuckey , 749 So.2d 490, 497-98 (Fla. 1999). The issue of whether a district court's decision on appeal "was contrary to the standards set forth by this Court ... presents a pure question of law, and our review is de novo." Van v. Schmidt , 122 So.3d 243, 252 (Fla. 2013).

THE "ONE EXPERT PER SPECIALTY" ORDER

The Third District held the trial court abused its discretion by denying Dr. Vargas's motion for a new trial after it allowed Petitioners to call "not one, but four separate pathologists at trial to testify regarding the timing and diagnosis of [Monica's] disease." Vargas, 176 So.3d at 320 (emphasis removed). As the district court notes, the trial court had limited each party to one retained expert per specialty by pretrial order. Id.

During trial, Petitioners offered the deposition testimony of Dr. Victor Pardo, a pathologist who examined a biopsy of Monica's kidneys before the transplant. Petitioners also presented Dr. Philip Ruiz, a pathologist who examined Monica's native kidneys after they were removed. Petitioners also presented two expert witnesses to testify with respect to the pathology of Monica's condition: Dr. Arthur Cohen testified during Petitioners' case-in-chief and Dr. Byron Croker testified as Petitioners' rebuttal expert. Each of these four pathologists testified that Monica suffered from C1q nephropathy and gave an opinion as to the timing of the disease's progression. The Third District held the trial court abused its discretion by failing to enforce its pretrial order, and granted a new trial "because the plaintiffs were able to call four expert pathologists ... and each pathologist was permitted to give his opinion on the nature and duration of Monica's illness, which unfairly prejudiced Dr. Vargas, who was limited to only one pathology expert on that subject." Id. at 322.

A trial court's enforcement of its own pretrial order is reviewed for abuse of discretion, and reversal is appropriate only when the affected party can clearly show the abuse resulted in unfair prejudice. Binger v. King Pest Control , 401 So.2d 1310, 1313 (Fla. 1981). We hold that admitting the testimony of Dr. Pardo and Dr. Ruiz did not violate the pretrial order because they testified as Monica's treating physicians, not as expert witnesses. We further hold the trial court did not abuse its discretion by allowing Dr. Croker to testify in rebuttal.

Treating Physicians

Testimony given by treating physicians blurs the boundary between fact testimony and expert testimony because treating physicians and expert medical witnesses both possess "scientific, technical, or other specialized knowledge" which informs their testimony. § 90.702, Fla. Stat. (2017). Because of this specialized knowledge, an expert is permitted to render an otherwise-impermissible opinion about the evidence where such an opinion is helpful to the jury. § 90.703, Fla. Stat. (2017) (expert witness may give opinion or inference on ultimate issue); see also Estate of Murray v. Delta Health Group, Inc. , 30 So.3d 576, 578 (Fla. 2d DCA 2010) (expert may testify to ultimate issue, but may not "render an opinion that applies a legal standard to a set of facts"). Experts assist the jury by testifying "regard[ing] a technical matter of which the jury [does] not have basic knowledge." State Farm Mut. Auto. Ins. Co. v. Bowling , 81 So.3d 538, 540 (Fla. 2d DCA 2012). Conversely, we have held that expert testimony should be excluded when the facts testified to "were within the ordinary experience of the jurors and did not require any expertise beyond the common knowledge of the jurors" to form a reasoned judgment of the facts. Johnson v. State , 393 So.2d 1069, 1072 (Fla. 1980).

While an expert witness assists the jury to understand the facts, a treating physician testifies as a fact witness "concerning his or her own medical performance on a particular occasion and is not opining about the medical performance of another." Fittipaldi USA, Inc. v. Castroneves , 905 So.2d 182, 186 (Fla. 3d DCA 2005). This necessarily involves testifying with regard to the exercise of the treating physician's specialized medical knowledge as applied to other facts of the case, namely the plaintiff's symptoms. A treating physician is a fact witness, and testifies to past facts based on personal knowledge. Those facts involve a technical matter about which the jury lacks basic knowledge, see Bowling , 81 So.3d at 540-41, but they are facts nonetheless. The treating physician's perception of the plaintiff's symptoms, their diagnostic opinion, and their recommendation of a particular treatment are all facts in issue. An expert witness testifies with the benefit of hindsight, whereas a treating physician does not. See Ryder Truck Rental, Inc. v. Perez , 715 So.2d 289, 290-91 (Fla. 3d DCA 1998) ("Treating physicians do not acquire their 'expert knowledge for the purpose of litigation but rather simply in the course of attempting to make [their] patient well.' ") (alteration in original) (quoting Frantz v. Golebiewski , 407 So.2d 283, 285 (Fla. 3d DCA 1981) ) ).

Treating physicians are limited to their medical opinions as they existed at the time they were treating the plaintiff, while an expert may form new opinions in order to help the trier of fact decide the case. See Tetrault v. Fairchild , 799 So.2d 226, 227-28 (Fla. 5th DCA 2001) (ordering a new trial where treating physician gave opinion testimony based on MRIs he had not seen during treatment). Although a treating physician may possess the same qualifications as an expert witness, treating physicians form medical opinions in the course of rendering treatment and may therefore testify to the fact that they formed those opinions, and explain why they did so, provided such testimony is otherwise admissible. See Ryder , 715 So.2d at 290-91. For example, Dr. Vargas is also a pediatrician and has specialized technical knowledge beyond the ordinary experience of a lay juror. Neither party contends, however, that the "one expert per specialty" rule prevents Dr. Vargas from testifying as to the facts of how and why he diagnosed Monica or recommended a particular course of treatment, despite the involvement of his medical opinion in such testimony. Similarly, it was permissible for Dr. Pardo and Dr. Ruiz to testify in their capacities as Monica's treating physicians in order to allow the jury to determine the ultimate issue presented by the case in light of all the relevant facts.

A witness's ability to testify as a treating physician is predicated on the witness's having provided the plaintiff with the medical treatment which is the subject of the witness's testimony. In its decision below, the Third District held that Dr. Pardo should be considered an expert witness rather than a treating physician because he "never saw or administered care to Monica or spoke directly to Dr. Paredes." Vargas , 176 So.3d at 319. Similarly, the Third District also held Dr. Ruiz should not be considered a treating physician because "[s]imilar to Dr. Pardo, Dr. Ruiz did not ever see or administer care or treatment to Monica, did not communicate with Dr. Paredes, and did not offer an opinion as to the cause, identity, or duration of Monica's kidney disease." Id. The Third District further explained that Dr. Pardo and Dr. Ruiz testified during trial to findings they had not made during Monica's treatment, and "the first time the doctors had rendered these opinions was during their testimony at trial." Id. at 325.

As the term suggests, a physician becomes a "treating physician" when the physician participates in treatment: that is, when the physician applies medical knowledge and judgment to render care or assist with care. The concept of "treatment" in modern medicine is very broad. Patients with complex or long-term medical problems may be treated by teams composed of several physicians, each with a different specialty, all of whom play an essential role in the patient's care. Pathologists are such specialists. A pathologist studies "all aspects of disease, but with special reference to the essential nature, causes, and development of abnormal conditions, as well as the structural and functional changes that result from the disease processes." Stedman's Medical Dictionary 1442 (28th ed. 2006) (defining "pathology"). Even though a pathologist may never see the patient in person, they may still be liable for medical malpractice committed against that patient. See Hickman v. Emp'rs' Fire Ins. Co. , 311 So.2d 778, 779 (Fla. 4th DCA 1975) (malpractice case against pathologist who, examining patient's gallbladder, "negligently failed to notice the attached bile duct" which a surgeon had negligently removed along with the gallbladder); see also Variety Children's Hosp. v. Osle , 292 So.2d 382 (Fla. 3d DCA 1974) (malpractice case against pathologist who negligently commingled tissue samples, resulting in injury).

Dr. Pardo and Dr. Ruiz may never have stood at Monica's hospital bedside, but they assisted with Monica's care by investigating the pathology of her condition and diagnosing the disease based on those investigations. Furthermore, although the Third District correctly states that Dr. Ruiz "examined Monica's kidney only after Dr. Paredes had already determined that Monica's kidneys could not be saved and after Monica's kidneys were removed," 176 So.3d at 325, Dr. Ruiz performed his examination for the purpose of identifying and diagnosing the disease from which Monica suffered, in order to ensure she continued to receive the proper treatment and that the disease which caused her native kidneys to fail would not harm her transplanted kidney. The timing of his examination in no way alters the purpose for which it was done. Had Dr. Ruiz negligently failed to diagnose a disease process which later harmed Monica's transplanted kidney, he himself could have been liable for providing deficient medical care. See Hickman , 311 So.2d at 779 (pathologist negligently examined gallbladder which had already been removed from patient); see also Osle , 292 So.2d at 383 (pathologist negligently mixed samples of cysts after cysts were surgically removed from patient). Therefore, Dr. Pardo and Dr. Ruiz were among Monica's treating physicians, and their testimony as to the facts of their treatment of Monica did not violate the trial court's limitation on expert witness testimony.

Not all medical opinions formed by a treating physician are automatically admissible, however. "It is entirely possible that even a treating physician's testimony could cross the line into expert testimony." Fittipaldi USA , 905 So.2d at 186 n.1 ; see also Lion Plumbing Supply, Inc. v. Suarez , 844 So.2d 768, 771 (Fla. 3d DCA 2003) (noting there is no "black letter rule whereby the testimony offered by a treating practitioner is never considered for purposes of a one-expert-per-side limitation"). If a treating physician testified to a medical opinion formed for the purpose of litigation rather than treatment, then the mere fact that the physician once treated the plaintiff would not prevent that doctor from being considered an expert witness. See Fairchild , 799 So.2d at 228 (treating physician was expert witness because he "was called by the plaintiff not to testify to his 'care and treatment' of plaintiff but to render an opinion as a neuroradiologist based upon his review of MRIs supplied to him in plaintiff's counsel's office"). Again, the determination turns on the role played by the witness: if the treating physician gives a medical opinion formed during the course and scope of treatment in fulfillment of their obligation as a physician, then the physician is a fact witness, albeit a highly qualified one. If, however, the treating physician gives an opinion formed based on later review of medical records for the purpose of assisting a jury to evaluate the facts in controversy, the physician acts as an expert witness, and should be considered as such. See Suarez , 844 So.2d at 771 (holding it is improper for a treating physician to "serve[ ] as a conduit to place specialist testimony before the jury, or offer[ ] medical opinions based on specialist reports" when testifying as a lay witness rather than an expert).

Although Dr. Vargas argues, and the Third District assumed, that Dr. Pardo and Dr. Ruiz formed their diagnostic opinions in preparation for trial rather than for purposes of treatment, the record does not support this conclusion. Dr. Pardo testified that his pathology study of Monica's kidneys showed "proliferative glomerulonephritis with C1q deposits." He also testified as to his estimate of how long Monica's condition had taken to develop, and made clear that he formed this conclusion as part of his pathology study. The questions asked during his deposition were limited to the pathology study of Monica's kidney tissue that he himself had conducted, and were not based on later review of other records. Dr. Ruiz's testimony was also limited to his own pathology study of Monica's tissue. Dr. Pardo and Dr. Ruiz testified to the facts of their participation in Monica's treatment, which necessarily included their diagnostic reasoning and conclusions. Therefore, Dr. Pardo and Dr. Ruiz were fact witnesses rather than additional expert witnesses.

Cumulativeness

Although treating physicians do not necessarily fall within the scope of a "one expert per specialty" limitation, their testimony may nevertheless be excluded if it is cumulative. As the Fifth District Court of Appeal has explained, the Florida Evidence Code

expressly requires a trial judge to exercise reasonable control over the presentation of the evidence so as to avoid the needless consumption of time, and ... relevant evidence is inadmissible if its probative value is substantially outweighed by a needless presentation of cumulative evidence. Furthermore, Florida Rule of Civil Procedure 1.200(b)(4) specifically provides that at a pretrial conference, a trial court may consider and determine a limitation on the number of expert witnesses.

Woodson v. Go , 166 So.3d 231, 233 (Fla. 5th DCA 2015). There is no exception for medical malpractice cases. Id. As the rule suggests, cumulativeness alone is not sufficient grounds to exclude evidence: the probative value of the evidence must be "substantially outweighed" by the danger of "needless presentation of cumulative evidence." § 90.403, Fla. Stat. (2017) (emphasis added); see also Delgardo v. Allstate Ins. Co. , 731 So.2d 11, 16 (Fla. 4th DCA 1999) ("The real issue facing the trial court was whether a witness will offer testimony that unnecessarily duplicates the testimony of another witness, in which case the trial court has discretion to limit or exclude it."). Courts should exercise their discretion to avoid the needless waste of time through unnecessary presentation of cumulative evidence. Woodson , 166 So.3d at 233.

In Delgardo , the Fourth District Court of Appeal determined the testimony of one orthopedic surgeon was not cumulative to the testimony of a second orthopedic surgeon, both of whom had treated the plaintiff. 731 So.2d at 11-12. The trial court had not entered a pretrial order limiting each side to one expert per specialty. Id. at 14. Instead, the district court reviewed a trial court's order granting a new trial on the grounds that the testimony of the two surgeons was cumulative and repetitive. Id. In holding that the testimony of the two surgeons was not cumulative, the Fourth District explained:

While two proposed witnesses of the same medical specialty might indicate the possibility of cumulative evidence, the real question is whether they will testify to cumulative opinions based on the same facts. Clearly a party is not necessarily guilty of calling duplicative witnesses simply because she calls two witnesses of the same medical specialty. The testimony of the second surgeon in this case establishes rather clearly that his evidence was based in part on the same facts and evidence as the first's but also in part on new facts and evidence . Therefore as a matter of law it was not cumulative.

Id. at 16. This explanation illustrates the difference between cumulative testimony, which courts have discretion to exclude, and relevant confirmatory testimony, which they do not. See Special v. W. Boca Med. Ctr. , 160 So.3d 1251, 1259 (Fla. 2014) (holding that courts have no discretion to exclude relevant evidence that is otherwise admissible). The two treating surgeons in Delgardo both testified to the same medical conclusion, but did so based on separate facts gleaned from their independent examinations of the plaintiff during the course of treatment. 731 So.2d at 12-13. Although the testimony of one surgeon tended to confirm the conclusions of the other, neither surgeon engaged in improper bolstering, nor was one's testimony cumulative to the other's. Id. at 16.

In the present case, the trial court did not abuse its discretion when it concluded that the testimony of Dr. Pardo and Dr. Ruiz, though confirmatory, did not rise to the level of unnecessary cumulativeness. Each pathologist based his testimony on a separate review of different slides made from biopsy material collected at different times. Although their respective testimony expressed similar conclusions, Dr. Pardo and Dr. Ruiz each testified to their personal observations "based in part on the same facts and evidence ... but also in part on new facts and evidence." Delgardo , 731 So.2d at 16 (emphasis removed). Therefore, their testimony was not cumulative. Furthermore, for the reasons discussed above, their testimony was not cumulative to the testimony of Petitioners' pathology experts: Dr. Pardo and Dr. Ruiz testified to what they observed and concluded during Monica's treatment. Dr. Cohen and Dr. Croker, in contrast, testified to opinions formed based on the review of not just the evidence available to Monica's treating pathologists, but other evidence in the case as well. Although Petitioners' fact witnesses and expert witnesses testified to similar conclusions, this does not render their testimony cumulative.

Petitioners' Rebuttal Witness

The Third District also held the testimony of Dr. Croker, Petitioners' sole rebuttal witness, was improper:

In rebuttal, rather than recalling Dr. Cohen to address portions of Dr. Craver's testimony he had not addressed, the plaintiffs called a fourth expert pathologist witness, Dr. Croker, to testify about three of the slides Dr. Craver[, Dr. Vargas's pathology expert,] had examined.
This rebuttal testimony was largely unnecessary, totally cumulative, and served only to bolster the testimony of the plaintiffs' three prior expert pathologists, as Dr. Cohen had already given his opinion about the nature and timing of the disease.

176 So.3d at 326. Trial courts have broad discretion to admit rebuttal testimony, and "a trial court abuses that discretion when it limits non-cumulative rebuttal that goes to the heart of the principal defense." Mendez v. John Caddell Constr. Co. , 700 So.2d 439, 440-41 (Fla. 3d DCA 1997).

As we have explained, Dr. Croker was not Petitioners' fourth expert pathology witness: Dr. Pardo and Dr. Ruiz did not testify as experts, but as treating physicians. Dr. Croker's testimony was not cumulative to Dr. Cohen's testimony because Dr. Croker testified exclusively about evidence which Dr. Cohen did not address in his testimony. See Delgardo , 731 So.2d at 16 (testimony is not cumulative if it is based on evidence not discussed by prior testimony). Specifically, Dr. Croker discussed photographs of pathology slides taken by Dr. Cohen in his review of the case. In his testimony during Petitioners' case-in-chief, Dr. Cohen discussed some-but not all-of the photos he had taken. The defense pathology expert, Dr. Randall Craver, discussed the remaining photographs during Dr. Vargas's case-in-chief. On rebuttal, Dr. Croker discussed only the photographs introduced during Dr. Craver's testimony. This second set of photographs was only introduced in Dr. Vargas's case-in-chief, and Dr. Cohen did not discuss those photographs at all. Therefore, Dr. Croker's testimony was not cumulative to Dr. Cohen's testimony.

Furthermore, Dr. Croker's testimony did not improperly bolster Dr. Cohen's testimony. Improper bolstering occurs when an expert testifies on direct examination that some other authority not subject to cross-examination, such as another expert whom the witness consulted or a secondary treatise, agrees with the testifying expert's opinions. See Linn v. Fossum , 946 So.2d 1032, 1039 (Fla. 2006) ("[A]n expert is not permitted to testify on direct examination that the expert relied on consultations with colleagues or other experts in reaching his or her opinion."). This prohibition applies "the general rule that it is improper on direct examination to introduce evidence to support the credibility of a witness" to the testimony of expert witnesses. Id. The reasons for this rule are twofold: first, such testimony "indicates a group consensus based on hearsay that would not be conveyed by testimony that the expert relied on records, tests, or reports from ... medical providers directly involved in the diagnosis or treatment of the patient." Id. Second, "[t]he opposing party is unable to cross-examine the nontestifying experts who participated in the consultation[,]" and "there is no way for the trial court to assess whether the consulting expert, upon whom the testifying expert relied in whole or in part, is herself qualified or had a proper foundation." Id. In other words, "opinion testimony by consensus is essentially immune to challenge" and is therefore inadmissible. Id. Here, nothing in Dr. Croker's testimony indicates that he consulted with Dr. Cohen about the truth or accuracy of his conclusions, and none of Dr. Croker's testimony references Dr. Cohen's analysis of the evidence. Dr. Croker gave his own independent opinion and did not bolster the testimony of Dr. Cohen.

Dr. Croker's testimony also was not improper rebuttal. "Rebuttal evidence explains or contradicts material evidence offered by a defendant." Britton v. State , 414 So.2d 638, 639 (Fla. 5th DCA 1982). During its case-in-chief, a plaintiff must establish a prima facie case, but is not required to anticipate possible defenses by affirmatively addressing them in its case-in-chief. See Heberling v. Fleisher , 563 So.2d 1086, 1087 (Fla. 4th DCA 1990) (holding that the plaintiff need not "disprove all anticipated defenses in its main case-that is exactly what rebuttal is supposed to accomplish"). When not cumulative, rebuttal is appropriate to discredit an opposing party's defense or to challenge the conclusions of an opposing party's expert. See Griefer v. DiPietro , 708 So.2d 666, 672 (Fla. 4th DCA 1998) (holding exclusion of rebuttal expert was improper where expert's "rebuttal testimony would have explained and contradicted material evidence offered by [defendant]").

Here, the intended effect of Dr. Croker's testimony was to discredit Dr. Vargas's expert, Dr. Craver, by showing that even the evidence upon which Dr. Craver relied supported a diagnosis of C1q nephropathy rather than MPGN. "Rebuttal to challenge the calculations of a defense expert is permissible rebuttal evidence." Id. at 672 (citing Zanoletti v. Norle Props. Corp. , 688 So.2d 952 (Fla. 3d DCA 1997) ). Therefore, Dr. Croker's testimony was permissible rebuttal, and the trial court did not abuse its discretion by admitting it.

Finally, although allowing Dr. Croker to testify did permit Petitioners to call a second expert witness in a particular specialty despite the pretrial order, the trial court did not abuse its discretion in doing so. Compliance with pretrial orders prevents the injustice and waste of resources which result when counsel resorts to trial tactics which seek to ambush opposing parties. See Binger , 401 So.2d at 1314. "Counsel who disobey a trial court order entered months earlier should not be rewarded for their conduct." Fla. Marine Enters. v. Bailey , 632 So.2d 649, 652 (Fla. 4th DCA 1994). The relevant facts of a case "should be the determining factor rather than gamesmanship, surprise, or superior trial tactics." Binger , 401 So.2d at 1313 (quoting Dodson v. Persell , 390 So.2d 704, 707 (Fla. 1980) ). Furthermore, although the enforcement of a pretrial order rests within a trial court's considerable discretion, this discretion "must not be exercised blindly" and should be applied with due consideration of possible prejudice to the parties. Binger , 401 So.2d at 1314. The Florida Rules of Civil Procedure aim "to eliminate surprise, to encourage settlement, and to assist in arriving at the truth." Id. at 1313 (quoting Spencer v. Beverly , 307 So.2d 461, 462 (Fla. 4th DCA 1975) (Downey, J., specially concurring) ). A trial court enters orders in the expectation they will be obeyed, and the parties in turn rely on the sound discretion of the trial court to ensure an orderly and fair administration of justice.

In the present case, the trial court permitted Dr. Croker to testify because Dr. Cohen was unavailable during rebuttal. The record reflects the parties knew well in advance that Dr. Cohen would be unable to return to testify on rebuttal, and there was no possibility that Dr. Vargas would be unfairly surprised by his testimony. Given Dr. Cohen's unavailability, the trial court did not abuse its discretion by permitting Dr. Croker to testify despite its pretrial order.

Accordingly, we hold the trial court did not abuse its discretion by permitting Dr. Croker, Dr. Pardo, and Dr. Ruiz to testify.

IMPROPER ARGUMENT

The Third District also determined that Petitioners' counsel had made improper comments during closing argument which misstated the evidence introduced at trial. During closing argument, Petitioners' counsel stated, "[I]f the kidneys could have been saved, this child never would have needed any of this. It [sic] would have needed some steroids, some ace [sic] inhibitors, and that's it. That's what Dr. Kaplan told you." Dr. Vargas objected that this comment was outside the evidence. The trial court overruled the objection, and instructed the jurors to "please recall and rely on [their] own recollection of the evidence." Dr. Kaplan testified during trial that, with proper diagnosis and treatment, Monica's prognosis would have been "significantly better," and that other patients with C1q nephropathy who have received such treatment "have almost universally gone on to do well and remain in remission and not require dialysis or transplant." Dr. Kaplan stated that the sooner a diagnosis was made and treatment was started, the better Monica's prognosis would have been. He also testified that patients who are correctly diagnosed in the early stages of kidney disease can be successfully treated with "medications" and that some patients "may not need to be treated with medications in stage one."

The Third District concluded that Petitioners' reference in closing argument to steroids and ACE inhibitors rather than "medications" was "particularly prejudicial, and, when combined with the cumulative expert testimony, [it] warrant[s] a new trial." 176 So.3d at 326 (emphasis added). As we have explained previously, the Third District's conclusions regarding "cumulative" expert testimony in this case were erroneous. Therefore, according to the Third District's own analysis, any prejudice arising out of this comment was insufficient by itself to warrant a new trial. We agree. However inadvisable it may have been, the single comment made by Petitioners' counsel did not have the potential to compromise the fairness of the proceeding such that a new trial would be required.

CONCLUSION

Based upon the foregoing, we hold the trial court did not abuse its discretion by permitting Dr. Pardo and Dr. Ruiz to testify as Monica's treating physicians, nor by permitting Dr. Croker to testify as a rebuttal expert in this case. We also hold that the comment made by Petitioners' counsel during closing argument does not merit a new trial. Accordingly, we quash the decision of the Third District with respect to those issues, approve the Fourth District's decision in Cantore to the extent it held a treating physician may testify regarding their care and treatment of the plaintiff, and remand the present case to the Third District for further proceedings consistent with this decision.

It is so ordered.

LABARGA, C.J., and PARIENTE, LEWIS, and QUINCE, JJ., concur.

CANADY, J., dissents with an opinion, in which LAWSON, J., concurs.

POLSTON, J., dissents with an opinion.

CANADY, J., dissenting.

The Third District's decision in Vargas v. Gutierrez , 176 So.3d 315 (Fla. 3d DCA 2015), does not expressly and directly conflict with the Fourth District's decision in Cantore v. West Boca Medical Center, Inc. , 174 So.3d 1114 (Fla. 4th DCA 2015), on the same question of law. See art. V, § 3(b)(3), Fla. Const. Because this Court lacks jurisdiction to review Vargas , I dissent.

In Vargas , the relevant issue addressed by the Third District was whether four medical professionals (pathologists) called by the plaintiffs at trial were all expert witnesses. Vargas , 176 So.3d at 322-26. This determination was important because of a pretrial order limiting each side to one expert witness per specialty area. Id. at 320. Vargas examined the different methods for distinguishing medical professionals testifying as expert witnesses from medical professionals testifying as treating physician fact witnesses. Id. at 323-25. Vargas ultimately concluded that the four witnesses all gave expert testimony and that the trial court thus abused its discretion by allowing the plaintiffs to violate the pretrial order. Id. at 322. The majority here disagrees with Vargas and instead concludes that two of the witnesses were treating physicians testifying as fact witnesses and that one of the other witnesses was properly allowed to testify as an expert witness on rebuttal. Majority op. at 624-25, 628. In doing so, the majority recognizes that a treating physician can in fact be an expert witness, depending "on the role played by the witness." Majority op. at 624. Nothing in Vargas suggests otherwise.

In Cantore , the Fourth District addressed a very specific limitation on the admissibility of "subsequent treating physician" testimony presented by defendant physicians in medical malpractice actions. The narrow issue in Cantore was whether certain hypothetical deposition testimony was proscribed by Saunders v. Dickens , 151 So.3d 434 (Fla. 2014) -namely, whether a subsequent treating physician impermissibly testified "that adequate care by the defendant physician would not have altered the subsequent care." Cantore , 174 So.3d at 1117 (quoting Saunders , 151 So.3d at 442 ). Cantore ultimately concluded that the testimony at issue was "properly admitted." Id. at 1121. In doing so, Cantore distinguished the testimony under consideration from that in Saunders , noting that, among other things, the testifying physician in Cantore specifically testified "that he would have made different recommendations " if he had been told that the patient's true condition was as the plaintiffs suggested. Id. at 1120. Cantore also distinguished the role of the testifying physician there from the role of the testifying physician in Saunders . For example, Cantore described the testifying physician as "a neutral third-party witness," unlike the subsequent treating physician in Saunders who was a defendant in the case at the time of his deposition. Id. at 1121. Cantore also described the testifying physician as an intimately involved "co-treating" physician rather than a "subsequent" treating physician. Id. at 1119. And Cantore repeatedly referred to the testifying physician as an "expert" witness. See id. at 1115, 1119-20. In fact, Cantore concluded in part that the disputed testimony was admissible because it was proper expert testimony given by an expert witness:

Objections, based on speculation and improper hypothetical, to the admissibility of Dr. Sandberg's testimony were properly overruled because as a treating physician, neurosurgeon, and expert on July 3, 2008, Dr. Sandberg was qualified to answer even questions which assumed certain facts which did not occur, as experts are allowed to do .

Id. at 1120 (emphasis added). In short, the only question of law decided by Cantore was that Saunders did not apply to the testimony presented under the very different factual circumstances in Cantore .

Vargas and Cantore undoubtedly both involve medical malpractice cases and the testimony of certain "treating" physicians, but the decisions in the two cases do not expressly and directly conflict on the same question of law. See art. V, § 3(b)(3), Fla. Const. Because this Court does not have jurisdiction to review Vargas , I dissent.

LAWSON, J., concurs.

POLSTON, J., dissenting.

The Third District Court of Appeal's decision in Vargas v. Gutierrez , 176 So.3d 315 (Fla. 3d DCA 2015), does not expressly and directly conflict with the decisions alleged by the Gutierrezes. Therefore, this Court does not have the constitutional authority to review this case, and I respectfully dissent.

Specifically, the Third District's decision in Vargas does not conflict with the Fourth District's decision in Cantore v. West Boca Medical Center, Inc. , 174 So.3d 1114 (Fla. 4th DCA 2015). As the majority recognizes, the Third District's decision in Vargas analyzed whether disputed testimony from multiple physicians should be considered treating physician testimony or whether the testimony constituted expert witness testimony that violated the trial court's pretrial ruling that "[e]ach party is limited to one (1) retained expert per specialty." Majority op. at 620. Ultimately, the Third District held that the testimony from the four physicians was expert witness testimony that unfairly prejudiced Dr. Vargas. Vargas , 176 So.3d at 322. In contrast, the Fourth District in Cantore , 174 So.3d at 1119, held that the physician's testimony in that case was not prohibited by this Court's decision in Saunders v. Dickens , 151 So.3d 434, 442 (Fla. 2014), because the specific physician was not a "subsequent treating physician," which was at issue in Saunders , but was instead a "co-treating physician, and thus his role squarely exceeded that of a subsequent treating physician." In other words, Vargas analyzed the difference between treating physician testimony and expert physician testimony, whereas Cantore analyzed the difference between subsequent treating physician testimony and co-treating physician testimony. Because these are two different legal issues, the two decisions do not conflict.

Accordingly, I respectfully dissent.

      Respondent Dr. Vargas asks this Court to quash the Third District's decision insofar as it affirmed the trial court's denial of his motion for directed verdict. We decline to address this issue.

      The business entity under which Dr. Vargas operated his practice is also a party to this case.

      In addition to Monica's personal damages and medical expenses, Monica's parents brought a separate loss of consortium claim.

      This condition is also referred to as rapidly progressing glomerulonephritis (RPGN).

      That case is currently pending before this Court. Cantore v. W. Boca Med. Ctr., Inc. , No. SC15-1926 (Fla. reply brief filed Mar. 23, 2017).

      Petitioners were allowed to present Dr. Croker because, at that point in the trial, Dr. Cohen was unavailable to testify.

      Dr. Ana Paredes was the pediatrician who admitted Monica to Miami Children's Hospital in October 2006 and oversaw her clinical treatment.

      Although Dr. Pardo testified that he had reviewed his report and slides in preparation for giving testimony, this does not change our analysis: four years had passed between the time of Dr. Pardo's study and the taking of his deposition. Dr. Pardo testified that he performs "around 350" pathology studies each year. He did not give testimony that involved review of any materials other than those involved in his original study of Monica.

      During trial, Petitioners' counsel sought several times to elicit comment from Dr. Ruiz with respect to Dr. Pardo's pathology report, despite the fact that Dr. Ruiz had not reviewed that report in the course of treating Monica. Dr. Vargas objected each time, and the court sustained each objection on the ground that a treating physician could not comment on reports he did not review during treatment.

      Dr. Bernard Kaplan was Petitioners' expert witness in pediatric nephrology.


text:
    Michael Charles PASCHALL, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1899
    District Court of Appeal of Florida, First District.
    January 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Henry L. CURRELLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3327
    District Court of Appeal of Florida, First District.
    January 22, 2018 Rehearing Denied March 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    D.M.M., the child, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1495
    District Court of Appeal of Florida, First District.
    January 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    CITY OF JACKSONVILLE SHERIFF'S OFFICE and City of Jacksonville Risk Management, Appellants, v. Cecil A. MATTHEWS, Appellee.
    No. 1D17-1780
    District Court of Appeal of Florida, First District.
    January 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Matthew Earl SMITH, Appellant, v. Erin Brooke Smith PICOU, Appellee.
    No. 1D17-1287
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Vonchae Jarod SIMPKINS, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-145
    District Court of Appeal of Florida, First District.
    January 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Marc V. MILLER, Petitioner, v. FLORIDA COMMISSION ON OFFENDER REVIEW, Respondent.
    No. 1D17-0463
    District Court of Appeal of Florida, First District.
    January 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    D.M.M., the child, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-1500
    District Court of Appeal of Florida, First District.
    January 22, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Bryan P. DIXON, Petitioner, v. Julie L. JONES, Secretary, Department of Corrections, Respondent.
    No. 1D17-1018
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    David PEARSON and Elizabeth Pearson, Appellants, v. PARADISE BY the SEA PROPERTY OWNERS ASSOCIATION, INC., Julie K. Hilton, The Loyd Charles Hilton Jr. Qualified Trust, The Lela Griffin Hilton Qualified Personal Residence Trust, and The Loyd Charles (CHIP) Hilton, III Irrevocable Trust, Appellees.
    No. 1D16-3979
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Billie F. SHIRAH, II, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-3907
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Joshua D. FRANKLIN, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-3717
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Shawn A. TAYLOR, Appellant, v. CHURCH'S PLUMBING, LLC and Meadowbrook Insurance/Star Insurance, Appellees.
    No. 1D17-1489
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jermaine R. REED, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-0677
    District Court of Appeal of Florida, First District.
    January 26, 2018 Rehearing Denied March 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Robyn Elizabeth LANGFORD, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-5681
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Arthur MAY, Appellant, v. Marva M. CORKER, Appellee.
    No. 1D17-1515
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Lawrence Antwan CRAWFORD, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-0733
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Devon CURRIE, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-3089
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Kabir J. WARD, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4382
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    John L. LENTZ, Jr., M.D., Appellant, v. DEPARTMENT OF HEALTH, Appellee.
    No. 1D17-334
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Tiffany Frasier HOGAN, Former Wife, Appellant, v. Matthew David HOGAN, Former Husband, Appellee.
    No. 1D17-1783
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Horace S. WILLIAMS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D17-3919
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Yolanda Nicole BYRD, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2709
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Jamie Cheyene HAMM, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2532
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Larry RUSS and Donna Russ, Appellants, v. The BANK OF NEW YORK, as Trustee FOR the CERTIFICATE HOLDERS CWALT INC. ALTERNATIVE LOAN TRUST 2006-43CB, MORTGAGE PASS-THROUGH CERTIFICATES SERIES 2006-43CB, Appellee.
    No. 1D17-2032
    District Court of Appeal of Florida, First District.
    January 26, 2018 Rehearing Denied March 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    LEESBURG REGIONAL MEDICAL CENTER and Clarendon National Insurance Company/Carrier & Enstar (US) Inc./SA, Appellants, v. Patricia STEPHENS, Appellee.
    No. 1D17-2434
    District Court of Appeal of Florida, First District.
    January 26, 2018 Rehearing Denied March 1, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Charles VAUGHN, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2337
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Thomas Louis DYCUS, III, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3491
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Salina TUCKER, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2967
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Arkito Shawn BUNKLEY, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2640
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Richard Abram ADAMS, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4085
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Anthony Gerald HOLLEY, Appellant, v. Debra Ann GREEN, Appellee.
    No. 1D17-2682
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Everly S. LIPPWE, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-4243
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Bernard JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-3510
    District Court of Appeal of Florida, First District.
    January 26, 2018 Rehearing Denied March 23, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Steven SERRANO, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-2499
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    D.E., Mother of L.E. and K E., Minor Children, Appellant, v. FLORIDA DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 1D17-3976
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    Sammy GIBBS, Petitioner, v. DEPARTMENT OF CORRECTIONS, Respondent.
    No. 1D17-2654
    District Court of Appeal of Florida, First District.
    January 26, 2018 Rehearing Denied March 5, 2018
    DECISION WITHOUT PUBLISHED OPINION
   DENIED.


text:
    Darrell Lavon JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D16-4463
    District Court of Appeal of Florida, First District.
    January 26, 2018
    DECISION WITHOUT PUBLISHED OPINION
   AFFIRMED.


text:
    John W. DOBBS, Appellant, v. Julie L. JONES, Secretary, Florida Department of Corrections, Appellee.
    No. 1D17-3071
    District Court of Appeal of Florida, First District.
    January 26, 2018 Rehearing Denied March 27, 2018
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    James W. HELMS, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-1168
    District Court of Appeal of Florida, Second District.
    Opinion filed June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    J.D., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D17-0795
    District Court of Appeal of Florida, Second District.
    June 01, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    C.L., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES and Guardian ad Litem Program, Appellee/Respondent(s).
    CASE NO.: 2D17-1683
    District Court of Appeal of Florida, Second District.
    May 31, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.

Denied.


text:
    TIMES PUBLISHING COMPANY, et al., Appellant/Petitioner(s), v. Terry Gene BOLLEA, et al., Appellee/Respondent(s).
    CASE NO.: 2D15-5044
    District Court of Appeal of Florida, Second District.
    March 17, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Granted.

Quashed.


text:
    Derrick Leonard YOUNG, DOC #483856, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15--1354
    District Court of Appeal of Florida, Second District.
    Opinion filed June 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    A.M., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D15-5148
    District Court of Appeal of Florida, Second District.
    Opinion filed June 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    C.C., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-4064
    District Court of Appeal of Florida, Second District.
    Opinion filed June 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    IN the INTEREST OF Z.Y., a child.
    M.L., Appellant, v. Department of Children and Families and Guardian Ad Litem Program, Appellees.
    Case No. 2D16-5489
    District Court of Appeal of Florida, Second District.
    Opinion filed June 9, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    Vincent P. DINARDO and Maria Olarte Dinardo, Appellants, v. BAYVIEW LOAN SERVICES, LLC, Appellee.
    Case No. 2D15-5731
    District Court of Appeal of Florida, Second District.
    Opinion filed June 21, 2017.
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    AFO IMAGING, INC., as assignee of Santonio Simmons, Petitioner, v. ENTERPRISE LEASING COMPANY OF FLORIDA, LLC, Respondent.
    Case No. 2D16-5000
    District Court of Appeal of Florida, Second District.
    Opinion filed June 16, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    K. S., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D17-0995
    District Court of Appeal of Florida, Second District.
    June 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    H. F., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D17-0884
    District Court of Appeal of Florida, Second District.
    June 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    A. D. V., Appellant/Petitioner(s) v. Joseph SEEBER, Superintendent, Appellee/Respondent(s).
    CASE NO.: 2D17-1831
    District Court of Appeal of Florida, Second District.
    May 18, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    J. A., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D16-4494
    District Court of Appeal of Florida, Second District.
    May 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Gustavo RISQUEZ, Appellant/Petitioner(s), v. WELLS FARGO BANK, N. A., et al., Appellee/Respondent(s).
    CASE NO.: 2D17-1450
    District Court of Appeal of Florida, Second District.
    May 10, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Granted.


text:
    D.S., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D16-5235
    District Court of Appeal of Florida, Second District.
    April 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Jasper STUART, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D17-0243 CASE NO.: 2D17-0146
    District Court of Appeal of Florida, Second District.
    June 22, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Granted.

Dismissal.


text:
    Jeannie M. LANDEROS, Appellant/Petitioner(s), v. The BANK OF NEW YORK, Appellee/Respondent(s).
    CASE NO.: 2D16-3040
    District Court of Appeal of Florida, Second District.
    June 07, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    T.G., Appellant/Petitioner(s) v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D17-1938
    District Court of Appeal of Florida, Second District.
    May 17, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    W. D., Appellant/Petitioner(s) v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D16-5502
    District Court of Appeal of Florida, Second District.
    April 12, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Bernard Charles JACOBS, III, Appellant/Petitioner(s), v. Kevin J. RAMBOSK, Sheriff, Appellee/Respondent(s).
    CASE NO.: 2D17-2206
    District Court of Appeal of Florida, Second District.
    June 07, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Granted.


text:
    Katrina SMITH, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D17-1598
    District Court of Appeal of Florida, Second District.
    May 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Granted.


text:
    Curtis D. FRANKLIN, Sr., Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D16-4174
    District Court of Appeal of Florida, Second District.
    May 26, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Denied as moot.


text:
    Keven Matthew HUBBARD, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D16-461
    District Court of Appeal of Florida, Second District.
    February 10, 2016
    DECISION WITHOUT PUBLISHED OPINION
   Granted.


text:
    Charles JENKINS, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D17-1673
    District Court of Appeal of Florida, Second District.
    June 29, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Granted.


text:
    Stephanie MULLINS, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D17-1631
    District Court of Appeal of Florida, Second District.
    May 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Granted.


text:
    Theophilus T. BROOKS, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D17-1642
    District Court of Appeal of Florida, Second District.
    May 19, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Granted.


text:
    Donald R. BRAILSFORD, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D17-1084
    District Court of Appeal of Florida, Second District.
    April 21, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Granted.


text:
    Earl G. BUSH, Sr., Appellant, v. STATE of Florida, Appellee.
    Case No. 2D17-904
    District Court of Appeal of Florida, Second District.
    Opinion filed August 2, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    V.B.S., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D17-0198
    District Court of Appeal of Florida, Second District.
    July 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Pamela GREENLAW, Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/respondent(s).
    CASE NO.: 2D16-5496
    District Court of Appeal of Florida, Second District.
    June 28, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Jimmie Lee WALKER, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D17-0977
    District Court of Appeal of Florida, Second District.
    April 07, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Granted.


text:
    A.B., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D17-1501
    District Court of Appeal of Florida, Second District.
    July 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    J.M., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D16-5236
    District Court of Appeal of Florida, Second District.
    July 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    S.S., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D17-0019
    District Court of Appeal of Florida, Second District.
    July 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    R.L., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D17-0791
    District Court of Appeal of Florida, Second District.
    July 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Germaine HARRIS, DC# 312157, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D16-3442
    District Court of Appeal of Florida, Second District.
    Opinion filed August 25, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    H. R., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES and AmericanKidz Adoption Services, Inc., Appellee/Respondent(s).
    CASE NO.: 2D17-1969
    District Court of Appeal of Florida, Second District.
    July 27, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    S.L., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D17-0779
    District Court of Appeal of Florida, Second District.
    July 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    L.W., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D17-0825
    District Court of Appeal of Florida, Second District.
    July 13, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Wendell Douglas MICKLER, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D17-2309
    District Court of Appeal of Florida, Second District.
    July 28, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Granted.


text:
    Jason P. REED, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D17-2054
    District Court of Appeal of Florida, Second District.
    July 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Granted.


text:
    Kelly Grant JONES, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D17-2508
    District Court of Appeal of Florida, Second District.
    July 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Granted.


text:
    D. J. B., Appellant/Petitioner(s), v. Joseph SEEBER, Superintendent, Appellee/Respondent(s).
    CASE NO.: 2D17-2504
    District Court of Appeal of Florida, Second District.
    June 23, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Granted.


text:
    Damien D. FREEMAN, Appellant, v. STATE of Florida, Appellee.
    Case No. 2D13-2779
    District Court of Appeal of Florida, Second District.
    Opinion filed September 15, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Affirmed.


text:
    C.S., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D17-2260
    District Court of Appeal of Florida, Second District.
    August 24, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    B.B., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D17-1649
    District Court of Appeal of Florida, Second District.
    August 16, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    B.B., Appellant/Petitioner(s), v. DEPT. OF CHILDREN & FAMILIES, Appellee/Respondent(s).
    CASE NO.: 2D17-1645
    District Court of Appeal of Florida, Second District.
    August 16, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Daniel A. BERNATH, Appellant/Petitioner(s), v. Robert J. LOCKETT, Appellee/Respondent(s).
    CASE NO.: 2D17-0699
    District Court of Appeal of Florida, Second District.
    October 06, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Kultar Singh GORAYA, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D17-2910
    District Court of Appeal of Florida, Second District.
    August 14, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    J.L.C., Appellant/Petitioner(s), v. Joseph SEEBER, Superintendent, Appellee/Respondent(s).
    CASE NO.: 2D17-3188
    District Court of Appeal of Florida, Second District.
    August 10, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Phillip C. BLACKWELL, Appellant/Petitioner(s), v. STATE of Florida, Appellee/Respondent(s).
    CASE NO.: 2D17-1209
    District Court of Appeal of Florida, Second District.
    June 16, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Mandamus is denied.


text:
    Jonathan PIPPIN, Appellant/Petitioner(s), v. Bob GUALTIERI, Sheriff, Appellee/Respondent(s).
    CASE NO.: 2D17-0940
    District Court of Appeal of Florida, Second District.
    October 06, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Appeal is dismissed.


text:
    M. Lynn POPE f/k/a M. Lynn Bikowitz, Appellant/Petitioner(s), v. Paul W. BIKOWITZ, Appellee/Respondent(s).
    CASE NO.: 2D16-4577
    District Court of Appeal of Florida, Second District.
    October 6, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Deandre Terrell MITCHELL, Appellant/Petitioner(s), v. DEPARTMENT OF REVENUE, O/B/O Candace Alesha WEATHERSBY, Appellee/Respondent(s).
    CASE NO.: 2D16-3919
    District Court of Appeal of Florida, Second District.
    September 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    OASIS TOWER TWO CONDOMINIUM ASSOC., INC., et al. Appellant/Petitioner(s), v. Kathleen WALSH, et al. Appellee/Respondent(s).
    CASE NO.: 2D16-5097
    District Court of Appeal of Florida, Second District.
    September 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Granted. Denied.


text:
    Reymon CHANCAY, Appellant/Petitioner(s), v. ALONSO HIGH SCHOOL, Appellee/Respondent(s).
    CASE NO.: 2D17-3486
    District Court of Appeal of Florida, Second District.
    October 6, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    David Irwin ACEVEDO, Appellant/Petitioner(s), v. U.S. BANK N.A., Appellee/Respondent(s).
    CASE NO.: 2D17-3437
    District Court of Appeal of Florida, Second District.
    October 6, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Nathalie AGENOR, et al., Appellant/Petitioner(s), v. DISTRICT FLOORING AND RESTORATION INC., et al., Appellee/Respondent(s).
    CASE NO.: 2D17-3483
    District Court of Appeal of Florida, Second District.
    September 25, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Mandamus is denied.


text:
    David L. DUNKEL, Appellant/Petitioner(s), v. Maureen A. DUNKEL, Appellee/Respondent(s).
    CASE NO.: 2D15-342
    District Court of Appeal of Florida, Second District.
    January 28, 2015
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Dennis GRESH, Appellant/Petitioner(s), v. U.S. BANK NATIONAL ASSOC. et al., Appellee/Respondent(s).
    CASE NO.: 2D17-3432
    District Court of Appeal of Florida, Second District.
    October 06, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Holli BATY, Appellant/Petitioner(s), v. Wesley EARIHEART, Appellee/Respondent(s).
    CASE NO.: 2D17-3405
    District Court of Appeal of Florida, Second District.
    October 06, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Arian ZENUNI, Appellant/Petitioner(s), v. BANK OF AMERICA, N.A., et al., Appellee/Respondent(s).
    CASE NO.: 2D17-3372
    District Court of Appeal of Florida, Second District.
    October 6, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Christina PAYLAN, M.D., Appellant/Petitioner(s), v. Lyann GOUDIE, Esq., et al., Appellee/Respondent(s).
    CASE NO.: 2D17-3404
    District Court of Appeal of Florida, Second District.
    September 28, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Denied.


text:
    Ernisa BARNWELL, Appellant/Petitioner(s), v. Rick KRISEMAN, et al., Appellee/Respondent(s).
    CASE NO.: 2D17-3359
    District Court of Appeal of Florida, Second District.
    October 6, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Denise WRIGHT, et al., Appellant/Petitioner(s), v. GREENTREE SERVICING, LLC, Appellee/Respondent(s).
    CASE NO.: 2D17-2687
    District Court of Appeal of Florida, Second District.
    October 6, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    Karen E. GORDON, Appellant/Petitioner(s), v. Charles W. GORDON, Estate of: John W. Gordon, Appellee/Respondent(s).
    CASE NO.: 2D17-2897
    District Court of Appeal of Florida, Second District.
    October 06, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.


text:
    R. J. MALLOY, Appellant/Petitioner(s), v. PITCO IND., INC., Appellee/Respondent(s).
    CASE NO.: 2D17-2949
    District Court of Appeal of Florida, Second District.
    September 20, 2017
    DECISION WITHOUT PUBLISHED OPINION
   Dismissed.