text:
    Karaka Andreau CAMPBELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D13-3178.
    District Court of Appeal of Florida, Third District.
    July 13, 2016.
    Rehearing Denied Oct. 17, 2016.

      Carlos J. Martinez, Public Defender, and Jeffrey Paul DeSousa, Assistant Public Defender, for appellant.
    Pamela Jo Bondi, Attorney General, and Brent J. Kelleher, Assistant Attorney General, for appellee.
    Before ROTHENBERG, LAGOA, and SALTER, JJ.
   LAGOA, J.

Karaka Andreau Campbell (“Campbell”) appeals from the trial court’s order denying his pro se motion for a Nelson hearing as legally insufficient. While we agree that the trial court erred in failing to conduct a preliminary Nelson inquiry and denying Campbell’s motion in chambers, we nonetheless affirm as Campbell’s claim became moot when he accepted new counsel prior to trial. Sweet v. State, 624 So.2d 1138 (Fla.1993). Accordingly, we affirm the trial court’s order.

1. FACTUAL & PROCEDURAL HISTORY

The State charged Campbell with two counts of burglary of an occupied dwelling stemming from an August 11, 2012, incident where he attempted to enter automobiles parked on private property. On June 24, 2013, Campbell filed a motion for a Nelson hearing, seeking to discharge his assistant public defender, Akivia Bass-aragh (“Bassaragh”), and have new counsel appointed. The motion reads in full as follows:

Comes now Karaka Campbell, defendant, pro se, pursuant to the Sixth Amendment to the United States Constitution and moves the court for a Nelson Hearing an [sic] determination considering ineffective assistance of counsel. In support thereof defendant states the following:
(1) That trial counsel has failed to protect defendants [sic] procedural safeguards and constitutional rights by failing to investigate and assert plausible lines of defenses to wit:
Counsels [sic] waiver and failure to file a motion to dismiss pursuant to Fla. R.Crim. P. 3.191(c)(4) [sic].
(2) That defendant has standing to move for dismissal of charges and counsel’s failure to timely file the 3.191(c)(4) [sic] motion is considered a waiver.
Wherefore defendants [sic] prays the court will conduct a Nelson in order to determine whether counsel has waived rights afforded to him and whether counsels [sic] representation is in accordance with the Sixth Amendment to the U.S. Constitution.

On June 28, 2013, the trial court denied Campbell’s motion for a Nelson hearing in chambers as “legally insufficient.” During the five-month period between the denial of Campbell’s motion and the start of Campbell’s trial, Bassaragh conducted discovery and filed pretrial motions on Campbell’s behalf, including a demand for speedy trial in both August 2013 and November 2013. On December 3, 2013, the first day of Campbell’s trial, assistant public defenders Robert Valdes (“Valdes”) and Elsa Hernandez (“Hernandez”) replaced Bassaragh and represented Campbell during his trial and subsequent proceedings. Notably, Campbell proceeded to trial without voicing any objection to Valdes or Hernandez. A jury found Campbell guilty of both counts of burglary and Campbell was sentenced to fifteen years and one day in state prison. This appeal followed.

II. ANALYSIS

Campbell asserts that the trial court’s summary denial of his motion for a Nelson hearing as legally insufficient is per se reversible error. Specifically, Campbell claims that his motion presents a legally sufficient claim of ineffective assistance of counsel that the trial court was obligated to investigate. We review

whether a trial court conducted an adequate Nelson inquiry for an abuse of discretion. Generally, the trial court’s ruling may also be reviewed to determine whether the error was harmless. However, a court’s failure to conduct any preliminary Nelson hearing is per se error such that a harmless error test does not apply.

Torres v. State, 42 So.3d 910, 912 (Fla. 2d DCA 2010) (citations omitted).

In Hardwick v. State, 521 So.2d 1071, 1075 (Fla.1988), the Florida Supreme Court adopted Nelson as the proper standard when a defendant maintains that appointed counsel is ineffective and requests that new counsel be appointed. Nelson requires that

where a defendant .,. makes it appear to the trial judge that he desires to discharge his court appointed counsel, the tidal judge, in order to protect the indigent’s right to effective counsel, should make an inquiry of the defendant as to the reason for the request to discharge.

Nelson, 274 So.2d at 258.

The mere expression of a desire to discharge appointed counsel necessitates an inquiry “as to the reason for the request to discharge.” Id.; see also Marti v. State, 756 So.2d 224, 229 (Fla. 3d DCA 2000) (“Clearly, Nelson contemplates an immediate dialogue with a defendant who makes the motion.”). Where the reason for the desired discharge is counsel’s alleged incompetence, the court “should make a sufficient inquiry of the defendant and his appointed counsel to determine whether or not there is reasonable cause to believe that the court appointed counsel is not rendering effective assistance to the defendant.” Nelson, 274 So.2d at 259. “It is at this point that the extent of the inquiry will be governed by the specificity of the defendant’s claim as to his lawyer’s incompetence.” Marti, 756 So.2d at 229 (citing Lowe v. State, 650 So.2d 969 (Fla. 1994)). Significantly, however, a trial court need not make a Nelson inquiry where a defendant merely expresses dissatisfaction with his attorney or makes generalized complaints about defense counsel’s trial strategy. Morrison v. State, 818 So.2d 432, 440 (Fla.2002).

In the present case, Campbell took issue with the fact that his public defender had not filed a motion to dismiss under Florida Rule of Criminal Procedure 3.190(c)(4). On its face, the motion cited Nelson and requested substitute counsel because Campbell believed his current trial counsel was ineffective. That ineffectiveness, according to Campbell, stemmed from counsel’s representation — specifically, counsel’s failure to file the motion to dismiss. Campbell’s motion for a Nelson hearing was facially sufficient, as it made a clear and unequivocal statement that Campbell wished to discharge his appointed counsel based on a detailed claim of incompetence. See Malone v. State, 852 So.2d 412, 416 (Fla. 5th DCA 2003) (holding that trial court’s duty to perform Nelson inquiry was triggered by defendant’s request for substitute counsel based on counsel’s failure “to file certain requested motions”). Therefore, the trial court did err in failing to conduct a Nelson inquiry and denying Campbell’s motion in chambers.

Nevertheless, the Florida Supreme Court held in Sweet that even when the defendant had unequivocally requested discharge of appointed counsel and the trial court failed to conduct a Nelson hearing following the request, “the failure was rendered moot by [defendant’s] subsequent acceptance of and satisfaction with new counsel.” 624 So.2d at 1141 (citing Scull v. State, 533 So.2d 1137, 1139-41 (Fla.1988) (failure to adequately inquire into request to discharge attorney rendered moot by defendant’s subsequent expressions of satisfaction with attorney’s performance)); accord Thompson v. State, 174 So.3d 453, 457 (Fla. 1st DCA 2015) (adopting holding in Sweet). We are not persuaded by defense counsel’s attempt to distinguish Sweet at oral argument. In Sweet, the defendant ultimately proceeded to trial with a different attorney, and at his sentencing he spontaneously announced his satisfaction with counsel’s performance. 624 So.2d at 1141. Therefore, while the defendant in Sweet unequivocally requested discharge of his prior counsel at a pretrial hearing, and the trial court failed to conduct an adequate Nelson inquiry, the Supreme Court concluded that the trial court’s error was rendered moot by the defendant obtaining subsequent representation from new counsel. Id. Indeed, the Siveet Court stressed that even where the trial court did make an adequate inquiry into the reason for the defendant’s dissatisfaction with a different, prior attorney, “if the trial court had erred in its handling of this proceeding, the same analysis would apply ... and any error would have been rendered moot.” Id. at n. 2.

The purpose of Campbell’s Nelson motion was to obtain new counsel. At trial, Campbell was represented by two public defenders — other than Bassaragh. Campbell, therefore, received the relief he previously requested, despite the trial court’s error. Our review of the record confirms that Campbell never brought any complaints regarding his new counsel to the trial court’s attention. “[Campbell] cannot now complain after the fact when he received an unfavorable verdict.” Thompson, 174 So.3d at 457. Because Campbell’s motion was rendered moot by his subsequent acceptance of and satisfaction with new counsel, we affirm.

Affirmed.

      . Nelson v. State, 274 So.2d 256 (Fla. 4th DCA 1973).

      . Rule 3.191(c)(4) does not exist.

      . Campbell was represented by assistant public defender Julia Izquierdo, rather than by Bassaragh, at hearings held on September 9th and 10th, 2013.

      . See also, e.g., Sexton v. State, 775 So.2d 923, 931 (Fla.2000) (defendant’s disagreement with attorney’s trial strategy and preparation did not support contention that attorney was incompetent); Dunn v. State, 730 So.2d 309, 311 (Fla. 4th DCA 1999) (“[A] trial court does not err in failing to conduct an inquiry where the defendant does not make an unequivocal request for counsel's discharge or a formal allegation of incompetence, but merely expresses dissatisfaction with his counsel.”).

      . At oral argument, defense counsel asserted that Sweet would only be applicable to a situation where a defendant filed a motion for a Nelson hearing concerning his or her counsel, but subsequently expressed satisfaction with the same counsel. However, the facts of Sweet do not involve the same counsel. The Florida Supreme Court in Sweet explicitly stated, "Sweet ultimately proceeded to trial in May of 1991 with a different attorney, and at his sentencing Sweet spontaneously pronounced his satisfaction with counsel's performance.” 624 So.2d at 1141 (emphasis added).


source: Caselaw Access Project

author: EMAS, J.

license: Public Domain

text:
    Alfred Ivan MURCIANO, M.D., Appellant, v. STATE of Florida, Agency for Health Care Administration, Appellee.
    No. 3D15-2092.
    District Court of Appeal of Florida, Third District.
    Aug. 31, 2016.
    Rehearing Denied Oct. 27, 2016.

      Akerman LLP and Katherine E. Gid-dings and Michael J. Larson, Tallahassee; Holland & Knight and Rodolfo Sorondo, Jr., for appellant.
    Tracy Cooper George, Tallahassee, Chief Appellate Counsel, for appellee.
    Before LAGOA, EMAS and LOGUE, JJ.
   EMAS, J.

Alfred Ivan Murciano, M.D. (“Dr.Murci-ano”) appeals an amended order of the Agency for Health Care Administration (“AHCA”), requiring him to repay AHCA $1,265,741.45 for Medicaid overpayments, following a peer review audit. We affirm, and hold, on the central issue raised, that AHCA correctly construed the statutory definition of “peer” under section 409.9131(2)(c), Florida Statutes (2013).

BACKGROUND

Dr. Murciano is a physician, licensed to practice medicine in Florida. He specializes in pediatrics, has a subspecialty in infectious diseases, and is an authorized Medicaid provider. Dr. Murciano does not have an offiee practice, and provides services solely in a hospital setting, specifically in neonatal and pediatric intensive care units in hospitals in Miami-Dade, Broward and Palm Beach Counties.

Prior to January 2013, AHCA conducted an audit of Dr. Murciano’s claims for Medicaid reimbursement for the period of September 1, 2008 through August 31, 2010. As part of the audit process, Dr. Murciano was required to submit documentation in support of the services he had provided and billed for during the relevant time period. That documentation was then reviewed preliminarily by a reviewing nurse. Thereafter, AHCA’s peer review coordinator assigned, from a list of physician peer reviewers who contract with AHCA for this purpose, Dr. Keith O’Hern to conduct a “peer review” of Dr. Murciano’s documentation. At the conclusion of the peer review and audit, AHCA determined Dr. Murciano had been overpaid by Medicaid for his services in the amount of $1,051,992.99. AHCA sought repayment of this amount, along with a fine of $210,398.60 and the audit costs of $3,349.86, for a total of $1,265,741.46.

Following AHCA’s determination, Dr. Murciano requested a formal administrative hearing pursuant to section 120.569, Florida Statutes (2013). AHCA referred the matter to the Division of Administrative Hearings (“DOAH”), which was assigned to Administrative Law Judge Todd P. Resavage (“the ALJ”). The formal hearing took place on January 21, 2014, and May 22, 2014. Thereafter, the ALJ issued its Recommended Order, recommending AHCA dismiss its Final Audit Report. Specifically, and of significance, the ALJ found, in its “Conclusions of Law,” that Dr. Murciano’s peer review was conducted by a physician (Dr. O’Hern) who did not meet the statutory definition of “peer” as required by Florida law for a determination of overpayment, and that therefore, AHCA’s case must be dismissed.

AHCA filed timely exceptions to the ALJ’s Recommended Order, asserting that Dr. O’Hern was a peer of Dr. Murciano as defined by section 409.9131 and further, that the ALJ was required to defer to AHCA’s interpretation of the term “peer” as this was a conclusion of law. AHCA also asserted it was reversible error to dismiss the entire case because a portion of the overpayment determination (forty-four per cent, according to AHCA) was based upon Dr. Murciano’s failure to provide any supporting documentation for certain claims, which, under the statutory framework, requires no peer review at all. AHCA requested that the Recommended Order be set aside and that the matter be remanded to DOAH for a de novo hearing.

Thereafter, AHCA’s agency clerk remanded the matter back to the ALJ, finding the ALJ departed from the essential requirements of the law by concluding Dr. O’Hern did not meet the definition of a peer under section 409.9131; by failing to give deference to AHCA’s interpretation of the statute; and by failing to make specific factual findings on the claims at issue. The agency clerk also issued a “partial final order,” specifically finding that Dr. O’Hern was Dr. Murciano’s “peer” as defined by Florida law “because he too has a Florida medical license, is a pediatrician and had an active practice at the time he reviewed [Dr. Murciano’s] records.”

On July 24, 2014, and again on August 18, 2014, the ALJ declined the remand, finding that there were no “exceptional circumstances” for remand, and reaffirmed his previous recommendation that AHCA issue a final order dismissing the Final Audit Report.

In response, AHCA filed a petition for writ of mandamus in the First District Court of Appeal (Case No. 1D14-3836), asserting there were exceptional circumstances for AHCA’s remand because the ALJ refused to make necessary factual findings based solely on his erroneous conclusion that Dr. O’Hem did not meet the definition of “peer” under section 409.9131(2)(c). Further, AHCA argued that its interpretation of the term “peer” was reasonable and should have been given deference. AHCA requested the First District to order the ALJ to perform his legal duty on remand to make the requested findings of fact and conclusions of law.

The First District, treating the petition as one for review of non-final agency action pursuant to section 120.68(1), Florida Statutes (2014), agreed with AHCA that the ALJ departed from the essential requirements of law by failing to make factual findings on all of the contested Medicaid claims, but declined to reach the substantive question of whether the ALJ should have deferred to AHCA’s interpretation of the word “peer,” and whether the determination that some of the Medicaid claims were not supported by sufficient documentation must be made by a “peer.” State v. Murciano, 163 So.3d 662 (Fla. 1st DCA 2015).

On remand, the ALJ again found that Dr. O’Hern was not a “peer” of Dr. Murci-ano (this time, the ALJ’s finding was located under “Findings of Fact” rather than under “Conclusions of Law,” where it had been located in its previous order), and accordingly, the ALJ found that an appropriate peer review was not conducted before formal proceedings were initiated, as required by section 409.9131(5)(b). However, recognizing the directives set forth in the First District’s opinion, the ALJ nevertheless made findings of fact as to the claims of overpayment. In doing so, the ALJ determined that AHCA “established a prima facie case of overpayment and proved, by a preponderance of the evidence, that [Dr. Murciano] was overpaid in the amount claimed in the Final Audit Report [$1,051,992.99].” The ALJ further determined that AHCA was entitled to costs and to impose an administrative fine of $6,000. The ALJ’s ultimate recommendation was that AHCA issue a final order finding Dr. Murciano was overpaid, and therefore that he is liable for reimbursement to AHCA.

After exceptions to the Recommended Order on Remand were filed, AHCA issued its Amended Final Order, requiring Dr. Murciano to repay $1,051,992.99 plus interest, a fine and costs. AHCA found that the issue of whether O’Hern was a statutorily-defined peer was a conclusion of law over which AHCA has substantive jurisdiction, and that therefore AHCA could reject the ALJ’s determination on that issue. AHCA again determined that Dr. O’Hern was a peer of Dr. Murciano as defined by statute. AHCA also rejected the other exceptions raised by Dr. Murci-ano.

This appeal followed. Dr. Murciano contends that AHCA erred in finding that Dr. O’Hern was Dr. Murciano’s peer, as statutorily defined, and that AHCA erred in reversing the ALJ’s contrary determination. Dr. Murciano asserts that because this was a question of fact, it was within the sole province of the ALJ. Further, Dr. Murciano argues because the required peer review was not performed by a statutorily-qualified peer, he should not be required to pay the overpayment and this court should reverse with directions to AHCA to enter an order dismissing AHCA’s Amended Final Order.

AHCA argues that the question of whether Dr. O’Hern was a peer, as statutorily defined, is a question of law and one within its purview as the agency administering the law, and therefore, that it is not required to give any deference to the ALJ’s determination on this issue. Further AHCA argues that the plain language of the statute supports its reasonable interpretation, and that based on this and the ALJ’s other factual findings, this court should affirm the Amended Final Order.

ANALYSIS

The central question raised by this appeal is whether AHCA erred in determining that Dr. O’Hern met the statutory requirements of a “peer” under section 409.9131(2)(b). To the extent that this involves questions of fact, this court must “review[ ] the agency’s findings of fact to determine whether they are supported by competent, substantial evidence in the record.” United States Blood Bank, Inc. v. Agency for Workforce Innovation, 85 So.3d 1139, 1142 (Fla. 3d DCA 2012) (citing section 120.68(7)(b), Fla. Stat. (2011)). However, to the extent this involves a question of law, we review the issue de novo but, in doing so, this court must give “great deference to the agency’s interpretation of the statutory policy it is to administer ... [and] be moved to intervene only by clearly erroneous interpretations of a statute or findings of fact not supported by competent substantial evidence.” Bethesda Healthcare Sys., Inc. v. Agency for Health Care Admin., 945 So.2d 574, 576 (Fla. 4th DCA 2006). See also Brennan v. City of Miami, 146 So.3d 119, 123 (Fla. 3d DCA 2014) (holding that “[i]f the agency’s interpretation is ‘within the range of possible and reasonable’ interpretations, it is not clearly erroneous and should be affirmed”); C.D. v. Agency for Persons with Disabilities, 95 So.3d 383, 384 (Fla. 3d DCA 2012) (holding that “[a]n agency’s conclusions of law are reviewed de novo, however, ‘an agency’s interpretation of a statute it is charged with enforcing is entitled to great deference’ ”) (internal quotations omitted).

Under section 120.57(1)(Z), Florida Statutes (2015), after the ALJ has submitted a recommended order, AHCA “may reject or modify the conclusions of law over which it has substantive jurisdiction.” When doing so, “the agency must state with particularity its reasons for rejecting or modifying such conclusion of law ... and must make a finding that its substituted conclusion of law ... is as or more reasonable than that which was rejected or modified.” Id. However, as to the ALJ’s findings of fact, AHCA may not reject or modify those findings “unless the agency first determines from a review of the entire record, and states with particularity in the order, that the findings of fact were not based upon competent substantial evidence or that the proceedings on which the findings were based did not comply with essential requirements of law.” Id.

We conclude that the question presented — whether Dr. O’Hern is a “peer” of Dr. Murciano — as statutorily defined, is ultimately a legal question. While this ultimate legal determination is informed by underlying facts (which the ALJ would be in the best position to adjudicate), the facts material to the resolution of this issue are not in dispute. It is undisputed that Dr. O’Hern was:

- Of the same specialty (board certified in pediatrics);
- Licensed under the same chapter; and
- In active practice.

It is further undisputed that Dr. O’Hern was not of the same subspecialty as Dr. Murciano: while Dr. Murciano was board certified in the subspecialty of pediatric infectious diseases, Dr. O’Hern was not. Dr. O’Hern had no board certification in infectious diseases, although he did com-píete a one-year fellowship in infectious disease in 1978, during his training at the University of Florida. Dr. O’Hern also treated a number of pediatric patients for infectious diseases during his thirty-seven-year medical career.

Therefore, in construing the statutory provision in question, and the application of that statute to the undisputed facts, all that remains is the legal determination of whether, under the statute and these undisputed facts, Dr. O’Hern is, “to the maximum extent possible, of the same specialty or subspecialty.”

As stated above, section 409.9131(2)(b) defines a “peer” as follows:

“Peer” means a Florida licensed physician who is, to the maximum extent possible, of the same specialty or subspe-cialty, licensed under the same chapter, and in active practice.

Dr. Murciano contends, in effect, that the only reasonable interpretation of the statute requires a conclusion that Dr. O’Hern is not a “peer” because he is not of the same specialty and subspecialty as Dr. Murciano. We do not agree. To adopt the statutory construction urged by Dr. Murciano would ignore the plain language of the statute, and violate a fundamental principle of statutory construction:

It is a fundamental principle of statutory interpretation that legislative intent is the “polestar” that guides this Court’s interpretation. We endeavor to construe statutes to effectuate the intent of the Legislature. To discern legislative intent, we look “primarily” to the actual language used in the statute. Further, “[w]hen the statute is clear and unambiguous, eourts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent.” Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla.2005).

Borden v. East-European Ins. Co., 921 So.2d 587, 595 (Fla.2006) (internal citations omitted).

We find no ambiguity in the statutory language employed by the Florida Legislature. We conclude that the statutory language “of the same specialty or subspecialty” denotes a disjunctive application. The use of the word “or” in a statute is generally construed in the disjunctive, and normally indicates that alternatives were intended. Sparkman v. McClure, 498 So.2d 892, 895 (Fla.1986); Piper Aircraft Corp. v. Schwendemann, 564 So.2d 546, 548 (Fla. 3d DCA 1990). Applying this general rule to the plain language of section 409.9131(2)(b), we hold that Dr. O’Hern was a “peer,” as he was, to the maximum extent possible, of the same specialty or subspecialty as Dr. Murciano.

We do not ignore Dr. Murciano’s argument that a peer who is both a board certified specialist in pediatrics and a board certified subspecialist in infectious diseases might be more desirable as a peer reviewer for Dr. Murciano. And while the statute would permit the use of a peer reviewer who is of the same specialty and subspecialty, the statute does not require it. If such were a requirement, the Legislature would have utilized different statutory language; for example, it might have provided:

“Peer” means a Florida licensed physician who is, to the maximum extent possible, of the same specialty and, if applicable, of the same subspecialty, licensed under the same chapter, and in active practice.

Given the plain and unambiguous statutory language used, we must presume that the Legislature said what it meant and meant what it said, and conclude that AHCA’s interpretation of the statute, and its application to the undisputed material facts in this case, was “within the range of possible and reasonable interpretations.” Brennan, 146 So.3d at 123.

CONCLUSION

In light of our holding that the determination below was a legal one, and our further holding that the statutory construction was reasonable, AHCA was authorized to reject the ALJ’s legal conclusion that Dr. O’Hern was not a peer under the statute. See § 120.57(l)(i) (providing that AHCA may “reject or modify the conclusions of law over which it has substantive jurisdiction.”); Pub. Employees Relations Comm’n v. Dade Cwty. Police Benevolent Ass’n, 467 So.2d 987, 989 (Fla. 1985) (holding Public Employees Relations Commission, and not the hearing officer, has ultimate authority to administratively interpret applicable statute, and that the Commission has the authority to overrule a statutory interpretation made by one of its hearing officers).

Affirmed.

      . Under section 409.9131(5)(b), Florida Statutes (2013), in determining that a Medicaid overpayment has been made to a physician, AHCA must ”[r]efer all physician service claims for peer review when the agency’s preliminary analysis indicates that an evaluation of the medical necessity, appropriateness, and quality of care needs to be undertaken to determine a potential overpayment, and before any formal proceedings are initiated against the physician, except as required by s. 409.913.”
      Pursuant to section 409.913 l(2)(b), a "peer” is defined as follows:
      "Peer” means a Florida licensed physician who is, to the maximum extent possible, of the same specialty or subspecialty, licensed under the same chapter, and in active practice.

      . AHCA’s Final Audit Report indicated one portion of this amount was due to the fact that Dr. Murciano's documentation supported a “lower level of office visit than the one for which [he] billed and received payment,” and the other portion was due to the fact that Dr. Murciano failed to submit any documentation for certain services for which he billed and received payment from Medicaid.

      . AHCA also determined that "the First District Court of Appeal supported the Agency's conclusions on this issue by finding that 'the ALJ departed from the essential requirements of law in declining AHCA’s second request to make factual findings on all of the contested claims in light of AHCA’s legal conclusion that Dr. O’Hem met the statutory definition of 'peer.' ’ ” We reject this contention. The issue of whether Dr. O’Hem was a statutorily-qualified peer was not reached by the First District, which determined only that the ALJ had a non-discretionary, ministerial duty to make findings of fact given AHCA’s determination that Dr. O'Hern was a statutorily-qualified peer. See State v. Murciano, 163 So.3d at 665.

      . According to the American Board of Medical Specialties, pediatrics is a specialty for which a medical doctor may become board certified; pediatric infectious diseases is a subspecialty for which one may also become board certified. See ABMS Guide to Medical Specialties, available at http://www.abms.org/ member-boards/specialty-subspecialty-certificates/ (last visited August 8, 2016).

      . For example, AHCA might determine that under the circumstances of a particular audit, it might be more appropriate for the peer reviewer and doctor to be of the same specialty, rather than of the same subspecialty. Further, the statutory language "to the maximum extent possible” provides some deference to AHCA to implement its peer review process and exercise its discretion, given that it must select its peer reviewer from a finite list of medical professionals who contract with AHCA to perform peer reviews. See § 409.913l(5)(b), Fla. Stat. (2013) (requiring AHCA to refer all physician service claims for peer review before any formal proceedings may be initiated against the physician). See also McKenzie Check Advance of Fla., LLC v. Betts, 928 So.2d 1204, 1215-16 (Fla.2006) (observing that, although the courts are the final authority on the interpretation of a statute, courts "can benefit from an agency's unique combination of technical knowledge and practical experience,” which is why "deference usually will be accorded an administrative agency’s interpretation of matters entrusted by statute to its discretion or expertise”)(additional citations omitted).


author: WELLS, Judge.

text:
    Stephen C. ROSE, Appellant, v. Meredith SONSON and Jennifer Sonson, as Co-Personal Representatives of the Estate of Stephen R. Sonson, Appellees.
    No. 3D15-371.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 2016.
    Rehearing Denied Oct. 18, 2016.

      Billbrough & Marks and Geoffrey B. Marks; Luis E. Barreto, for appellant.
    Holland & Knight and Rodolfo Sorondo, Jr., Lee P. Teichner and Frances G. De La Guardia, for appellees.
    Before WELLS, SHEPHERD and SCALES, JJ.
   WELLS, Judge.

In this probate action, Stephen C. Rose, the putative child of the decedent Stephen Sonson, appeals from a final order granting the co-personal representatives of the Sonson estate’s motion to dismiss with prejudice Rose’s amended counter-petition for paternity. We affirm for three reasons: first, because by the time Rose’s petition was filed, his paternity claim had already been extinguished by section 95.11(3)(b) of the Florida Statute (1986), the applicable statute of limitations; second, because the 2009 amendment to section 732.108(2)(b) of the Florida statutes, which eliminated application of section 95.11(3)(b) to paternity determinations in probate proceedings relating to intestate succession, does not apply retroactively; and, third, even if the 2009 amendment to section 732.108(2)(b) were retroactive in application, it could not breathe new life into Rose’s previously extinguished claim.

The facts are relatively undisputed. Rose was born out of wedlock in New York State on December 25, 1964. At the time Rose was born, and until October 1986 when section 742.011 of the Florida Statutes was amended, only the mother of a child born out of wedlock could bring suit to establish paternity. See § 742.011, Fla. Stat. (1982) (“Amy woman who shall be pregnant or delivered of a child may bring proceedings in the circuit court, in chan-eery, to determine the paternity of such child.”); Ch. 86-220, § 150, at 1723, Laws of Fla. (amending section 742.011 to permit, in addition to mothers, both putative children and putative fathers to bring paternity actions). While Rose’s mother told him at a young age that Stephen Sonson was his father, she did not attempt to have Sonson’s paternity established in Florida either before Rose attained majority on December 25, 1982, or before section 742.011 was amended in 1986.

In 1986, and at the same time that section 742.011 was amended to allow both putative children and putative fathers to bring suit to establish paternity, section 95.11(3)(b) of the Florida Statutes was amended to impose a four year time limit to “run[ ] from the date the child reaches the age of majority” on such actions. Ch. 86-220, § 139, at 1716, Laws of Fla. While only a short time remained under this provision for Rose to bring suit to establish paternity, he did not do so.

Sonson died intestate on June 21, 2012, leaving behind two daughters, Meredith Sonson and Jennifer Sonson, and a son, Adam Sonson. On January 29, 2013, as co-personal representatives for Sonson’s estate, the daughters filed a petition for administration of Sonson’s intestate estate in probate court. Rose appeared and filed a counter-petition to determine beneficiaries, claiming to be a surviving son of the decedent and therefore a rightful beneficiary of the estate.

On September 29, 2014, the co-personal representatives moved to dismiss Rose’s counter-petition, claiming that the four year statute of limitations period for maintaining a paternity action had expired for the reasons set forth by the Florida Supreme Court in In re Estate of Smith, 685 So.2d 1206 (Fla.1996). Following a hearing on the motion, the trial court dismissed Rose’s counter-petition concluding: (1) that the 2009 amendment to section 732.108(2)(b) of the Florida Statutes which eliminated the four year statute of limitations previously applicable to paternity determinations could not revive Rose’s already extinguished claim; (2) that the 2009 amendment to section 732.108(2)(b) did not apply retroactively because the Florida Legislature did not express a clear intent it was to be so applied; and, (3) that any such retroactive application would constitute a violation of the decedent’s and of the co-personal representatives’ due process rights because Rose’s claim was already extinguished. For the following reasons, we agree with the trial court and affirm.

In Smith, the Florida Supreme Court considered whether the four year limitations period generally applicable by section 95.11(3)(b) barred a sixty-year-old putative daughter from bringing a section 732.108(2)(b) paternity action in probate court to establish her right to intestate succession. Smith, 685 So.2d at 1207-08. Therein, the Court expressly rejected the notion “that section 732.108(2)(b) creates a separate and distinct statutory cause of action [for determining paternity in probate courts] which begins to run upon the death of the putative father rather than when the child reaches the age of majority.” Id. at 1208 (footnote omitted). Rather, reasoning that because section 732.108(2)(b) did not expressly remove paternity adjudications brought in probate court from the provisions of section 95.11(3)(b), the Court determined that while chapter 742 recognized that paternity determinations could be made in probate proceedings, those determinations would, like all other such determinations, be subject to the general limitations period provided in section 95.11(3)(b). Id.; see § 742.10, Fla. Stat. (2016) (“Except as provided in chapters 39 and 63, this chapter provides the primary jurisdiction and procedures for the determination of páternity for children born out of wedlock. If the establishment of paternity has been raised and determined within an adjudicatory hearing brought under the statutes governing inheritance ... such adjudication ... constitutes the establishment of paternity for purposes of this chapter.”). As a consequence, the Florida Supreme Court held that because more than four years had passed since the putative daughter reached the age of majority, her paternity action in the probate court was time barred. Id.

We therefore agree with the trial court that here, as in Smith, the putative child’s paternity claim following Sonson’s death in 2012 is time barred because more than four years has passed since Rose attained majority in 1982.

We also agree with the trial court that the 2009 amendment to section 732.108(2)(b) of the Florida Statutes, which expressly eliminated application of section 95.11(3)(b) to paternity adjudications when determining intestacy succession in probate court, does not affect this outcome. See Ch. 2009-115, § 2, at 1508, Laws of Fla.; § 732.108(2)(b), Fla. Stat. (2009) (“For the purpose of intestate succession ... a person born out of wedlock ... is also a descendant of his or her father and is one of the natural kindred of all members of the father’s family, if: ... (b) The paternity of the father is established by an adjudication before or after the death of the father. Chapter 95 shall not apply in determining heirs in a probate proceeding under this paragraph.”). This is because the Florida Legislature did not make the amendment to section 732.108(2)(b) retroactive in its application and applying the 2009 amendment to that provision would not have affected the outcome in any event. This is so because by the time the 2009 amendment to section 732.108(2)(b) took effect to eliminate the limitations bar previously imposed by section 95.11(3)(b), Rose’s claim had long since expired, and as noted in Smith, “[o]nce a claim has been extinguished by the applicable statute of limitations, the claim cannot be revived because a constitutionally protected property right to be free from the claim has vested in the defendant.” Id. at 1210; see also Wiley v. Roof, 641 So.2d 66, 68 (Fla. 1994) (“Once the defense of the statute of limitations has accrued, it is protected as a property interest just as the plaintiffs right to commence an action is a valid and protected property interest.... Florida’s statute of limitations, section 95.011, bars all action unless commenced within designated times.... Once an action is barred, a property right to be free from a claim has accrued.”).

Thus, while section 732.108(2)(b) as amended in 2009 provided relief to similarly situated individuals with existing causes of action by eliminating the four year statute of limitations imposed by section 95.11(3)(b) on paternity determinations in probate proceedings to determine intestate succession going forward, this amendment provides no relief to those such as Rose whose claims had already expired by the time the amendment became law. See Smith, 685 So.2d at 1210 (“[T]he 1986 amendment [to section 95.11(3)(b) to extend the limitations period for bringing paternity actions] provides Scruggs no solace because even under its terms her claim had long since expired.”); Wiley, 641 So.2d at 68 (“The Legislature has the power to increase a prescribed period of limitation and to make it applicable to existing causes of action provided the change in law is effective before the cause of action is extinguished by the force of a pre-existing statute.”) (quoting Walter Denson & Son v. Nelson, 88 So.2d 120, 122 (Fla.1956) (emphasis supplied))).

Accordingly, we affirm the final order dismissing with prejudice Rose’s amended counter-petition for paternity.

Affirmed.

      . The Court also pointed out that while most paternity actions brought under chapter 742 “are brought in order to obtain support, any determination of paternity made in such proceedings also determines paternity for purposes of intestate succession.” Smith, 685 So.2d at 1208.

      . See, e.g., Basel v. McFarland & Sons, Inc., 815 So.2d 687, 692-93 (Fla. 5th DCA 2002) (finding that while the enacting legislation demonstrated the legislature's intent that an amendment be applied to existing causes of action, there was nothing therein establishing a clear intent that the amendment be applied retroactively); see also Metro. Dade Cty. v. Chase Fed. Hous. Corp., 737 So.2d 494, 499 (Fla.1999) (“[I]f a statute attaches new legal consequences to events completed before its enactment, the courts will not apply the statute to pending cases, absent clear legislative intent favoring retroactive application.”); Hassen v. State Farm Mut. Auto. Ins. Co., 674 So.2d 106, 108 (Fla.1996) (“It is a well established rule of statutory construction that, in the absence of an express legislative statement to the contrary, an enactment that affects substantive rights or creates new obligations or liabilities is presumed to apply prospectively.”).


author: PER CURIAM.

text:
    Datoral SMITH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D15-450.
    District Court of Appeal of Florida, Third District.
    Sept. 7, 2016.
    Rehearing Denied Oct. 17, 2016.
    Eugene F. Zenobi, Criminal Conflict and Civil Regional Counsel, Third Region, and Kristen Kawass, Assistant Regional Counsel, for appellant.
    Pamela Jo Bondi, Attorney General, and Brent J. Kelleher, Assistant Attorney General, for appellee.
    Before EMAS, LOGUE, and SCALES, JJ.
   PER CURIAM.

Affirmed. See Farina v. State, 937 So.2d 612, 622 (Fla.2006) (“[T]he trial court is required to consider all newly discovered evidence which would be admissible at trial and then evaluate the weight of both the newly discovered evidence and the evidence which was introduced at the trial. When reviewing a court’s application of the above law to a rule 3.850 motion following an evidentiary hearing, we apply the following standard of review: As long as the trial court’s findings are supported by competent substantial evidence, [we] will not substitute [our] judgment ... on questions of fact, likewise of the credibility of the witnesses ....”) (citations and quotations omitted) (emphasis deleted).


text:
    Mario COTO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1474.
    District Court of Appeal of Florida, Third District.
    Oct. 5, 2016.
    Rehearing Denied Oct. 28, 2016.

      Mario Coto, in proper person.
    Pamela Jo Bondi, Attorney General, for appellee.
    Before SALTER, EMAS, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Fla. R. Crim. P. 3.850(a)2-3, (b) (providing that a motion for post-conviction relief on a claim that the court was without jurisdiction to enter the judgment or impose sentence must be filed within two years after the judgment and sentence become final).


text:
    Christine QUINN, Appellant, v. CP FRANCHISING, LLC, Cruise Planners, Inc. (MLM Planners, Inc.) and Zenith Insurance Company, Appellees.
    CASE NO. 1D16-0257
    District Court of Appeal of Florida, First District.
    Opinion filed October 13, 2016.

      Kimberly A. Hill of Kimberly A. Hill, P.L., Port Lauderdale, for Appellant.
    Thomas F. Scully, Sarasota, for Appel-lees.
   PER CURIAM.

Claimant challenges a final order of the Judge of Compensation Claims (JCC) that found her trip and fall in a parking lot adjacent to her employer’s leased place of business did not arise out of or in the course and scope of her employment. The JCC, in a well-reasoned order, determined that none of the exceptions to the “going and coming” rule apply, and thus the injury was not compensable. We affirm. See Evans v. Holland & Knight, 194 So.3d 551 (Fla. 1st DCA 2016) (holding that parking lot neither owned, maintained, nor controlled by the employer is not part of employer’s premises for purpose of workers’ compensation).

With regard to injuries that occur off of the employer’s premises while the employee is going to or returning from her regular place of work, case law instructs that such injuries generally do not arise out of or in the course of employment and are not compensable. This rule is known as the “going and coming” rule. Doctor’s Bus. Serv., Inc. v. Clark, 498 So.2d 659, 662 (Fla. 1st DCA 1986). As stated in Ryan v. Boehm, Brown, Rigdon, Seacrest & Fischer, 673 So.2d 494, 495 (Fla. 1st DCA 1996):

As a general rule, “the hazards encountered by an employee while he is going to, or returning from, his regular place of work are not ordinarily incidental to the employment, and injuries resulting from such hazards do not arise out of and in the course of the employment.” Doctor’s Business Service, Inc. v. Clark, 498 So.2d 659, 662 (Fla. 1st DCA 1986) (en banc). This principle is generally characterized as a “going and coming” rule.

(Internal citations omitted.)

The “going and coming” rule is subject to a number of exceptions, however. Three notable exceptions are where (1) special hazards exist on the normal route; (2) the employee travels between two parts of the employer’s premises; and (3) the area where the injury occurred was used by the employer for the employer’s purposes. Id. at 496. The last listed exception is known as the “special use” rule.

We review the facts in this case to determine whether any of the exceptions are applicable. Claimant tripped and fell in a parking lot adjacent to her place of employment. The JCC reviewed photographs of the area where Claimant fell. He found the following:

The photographs depict a groove or separation between the asphalt surface of the parking lot and the concrete curb. From the photographs, this groove appears to be present throughout the parking lot wherever the concrete and asphalt meet. There appears to be nothing unusual or out of the ordinary with respect to the parking lot surface where the claimant fell. Specifically, there are no potholes, construction lines, piles of debris or hazards of that nature.

Based on the evidence, the JCC found no special hazard led to the accident, a finding correctly conceded by Claimant to be supported by competent, substantial evidence.

Thus, the issue before us is whether the employer had sufficient control of the area where Claimant fell in order for the area to be considered either part of the employer’s premises or an area that was actually used by the employer for its purposes.

In the instant case, the parking lot in question was not leased by the employer. The employer was not assigned any specific parking spaces within the lot where the fall occurred. Instead, the employer, pursuant to its lease agreement for its office space, was allotted 32 unassigned parking spaces for its non-exclusive use. While the employer paid a fee to the landlord for maintenance of the common areas of the leased premises, there is no showing that the employer exercised any control over the maintenance or how the fee was applied to the parking area.

Based on these facts, the JCC correctly found the employer had insufficient control of the parking lot either for the lot to be considered part of the employer’s premises or for the employer’s use of that lot to be considered a “special use.” The JCC stated:

In the instant case, the parking lot in question was open to and used by the public. No evidence was presented that the lot was used by the employer or its employees in any way materially different from the public in general or that the employer excluded others from it. Silva v. General Labor Staffing Services, Inc., 995 So.2d 1107 (Fla. 1st DCA 2008) (holding the “area used by the employer for his purposes” exception did not apply because there was no evidence the employer habitually used the parking lot for a special purpose, controlled it or excluded others from it. As stated by the Appellate Court in that case, the exception applies when the area is under the employer’s control or habitually used for a purpose special to the employer).

The JCC’s reasoning is supported by our recent case of Evans, 194 So.3d 551. We find the facts of that case materially indistinguishable.

AFFIRMED.

WOLF, ROWE, and MAKAR, JJ., CONCUR.


author: LAGOA, J.

text:
    Mario GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D14-2986.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2016.

      Mario Gonzalez, in proper person.
    Pamela Jo Bondi, Attorney General, and Jonathan Tanoos, Assistant Attorney General, for appellee.
    Before SUAREZ, C.J., and LAGOA, and SCALES, JJ.
   LAGOA, J.

Mario Gonzalez (“Gonzalez”) appeals from the trial court’s order denying his motion to correct illegal sentence filed pursuant to Florida Rule of Criminal Procedure 3.800 and from the trial court’s subsequent order denying his motion for rehearing. Because Gonzalez’s claim of a double jeopardy violation was not successive, we reverse with directions for the trial court to consider the double jeopardy claim on the merits.

I. FACTUAL AND PROCEDURAL HISTORY

On June 28, 2000, Gonzalez entered into a global plea to resolve eleven different cases pending against him involving charges of burglary, robbery, and grand theft. In case number 99-1668, on a charge of strong-arm robbery, Gonzalez was sentenced to thirty years with a ten year minimum mandatory sentence as a habitual violent offender (“HVO”) and to a concurrent fifteen year minimum mandatory sentence as a prison releasee reoffender (“PRR”).

In case number 99-993, Gonzalez was sentenced on two counts — count I (burglary of an unoccupied dwelling), and count II (grand theft). As to count I, Gonzalez was sentenced to thirty years with a ten year minimum mandatory sentence as an HVO, and a minimum mandatory sentence of fifteen years as a PRR. This sentence was concurrent to Gonzalez’s other sentences under the global plea. As to count II, Gonzalez was sentenced to five years as a HVO and a PRR. The sentence under Count II stated that it was “CONSECUTIVE TO ALL OTHER SENTENCES ON ALL OTHER CHARGES IN ALL OTHER CASES, including the thirty year sentence on the burglary charge in F99-993.”

In the remaining nine cases, in which the charges were all robbery, Gonzalez was sentenced to thirty years with a ten year minimum mandatory sentence as a HVO, and to a minimum mandatory sentence of fifteen years as a PRR. These sentences were concurrent to Gonzalez’s other sentences with the exception of the five year sentence on the charge of grand theft (Count II) in case number 99-993.

A. First Motion to Correct Illegal Sentence

On July 30, 2001, Gonzalez filed his first motion to correct illegal sentence in case number 99-993. He made several assertions: 1) the Prison Release Reoffender Act (the “PRR Act”) is not applicable to convictions for burglary of an unoccupied dwelling and for grand theft; 2) concurrent five-year sentences as a PRR and as an HVO for the single offense of grand theft violated the PRR Act and the trial court lacked authority to sentence a defendant to an equal sentence under the HVO statute; and 3) relying on Hale v. State, 630 So.2d 521 (Fla.1993), consecutive habitual offender sentences were improperly imposed, given that the burglary and grand theft offenses arose out of single episode. The trial court entered an order deleting Gonzalez’s PRR status and the minimum mandatory term for a PRR on count I (burglary of an unoccupied dwelling), but did not change Gonzalez’s status or his sentence for count II (grand theft).

Gonzalez subsequently appealed to this Court. See Gonzalez v. State, 854 So.2d 847 (Fla. 3d DCA 2003) (“Gonzalez I”). His initial brief included his argument under Hale, but Gonzalez subsequently filed an amended initial brief withdrawing that argument. In Gonzalez I, this Court concluded that the trial court intended to strike the PRR designation and the minimum mandatory sentences on both count I and count II, and “reversed and remanded for deletion of the PRR sentence and concomitant minimum mandatory term as to Count II.” Id. at 848.

Relevant here, Gonzalez claims that on remand from this Court’s opinion in Gonzalez I, the trial court

entered an amended re-sentencing order. As a component of the lower court’s order, rendered on October 28, 2003, the trial court ordered that count 2 of case number F99-993 was to run concurrent not only to count I of this same case, but also concurrent with all other counts in all other cases.

(emphasis added). The 2003 amended sentencing order, however, is not part of the record before this Court.

B. Second Motion to Correct Illegal Sentence

On March 1, 2013, Gonzalez filed his second motion to correct illegal sentence regarding case number 99-993. The trial court entered an order partially granting and partially denying this second motion to correct illegal sentence:

As to case number 99-993, the Clerk of the Court is hereby directed to prepare amended sentencing document that delete any reference to the defendant being sentenced as a prison release reof-fender. The amended sentence should specify that the defendant is sentenced as a habitual violent felony offender to 30 years on count I, with a 10 year minimum mandatory sentence and as to Count II is sentenced to a consecutive 5 years in prison as a habitual violent felony offender. These sentences are to run concurrent with any other sentences the defendant is serving. As to all other cases, the defendant’s Motion is denied.

(emphasis added).

On May 21, 2013, the trial court, effectuating its earlier ruling on Gonzalez’s motion, entered an order correcting Gonzalez’s sentence in case number 99-993 as follows:

THE SENTENCE AS TO COUNT 2 RUNS CONSECUTIVE TO THE SENTENCE SET FORTH AS TO COUNT 1 IN THE ABOVE STYLED CAUSE. FURTHER, THE SENTENCES IN THE ABOVE STYLED CAUSE RUNS CONCURRENT WITH OTHER SENTENCES THE DEFENDANT IS SERVING.

(emphasis added).

Gonzalez appealed to this Court, but did not submit an initial brief. This Court affirmed the trial court. See Gonzalez v. State, 129 So.3d 1077 (Fla. 3d DCA 2013) (table) (“Gonzalez II”).

Gonzalez subsequently filed a motion for rehearing before this Court, raising an argument not presented to the trial court in his second motion to correct illegal sentence — that the trial court’s order of May 21, 2013, “resulted in a violation of Gonzalez’s Constitutional right against double jeopardy, when the court ran count II of case number F99-993 consecutive to count I of that case.” Acknowledging the limited scope of argument permitted in a motion for rehearing and claiming a constitutional violation for the first time on rehearing is generally impermissible, Gonzalez explained that on August 28, 2013, one week after this Court’s affirmance in Gonzalez II, he received an “Interoffice Memorandum” from a correctional sentence specialist with the Department of Corrections, stating that his temporary release date had changed from September 25, 2025, to April 4, 2029, based upon the lower court’s May 21, 2013 order. Gonzalez attached a copy of the letter to his motion for rehearing.

In his motion for rehearing, Gonzalez argued that the lower court “violated his Fifth Amendment right against double jeopardy when it amended his sentence on May 21, 2013, to run count II of case number F99-993 consecutive to count I of that case, where the court had previously amended his sentence in 2003 that ran count II ‘concurrent’ with both count I and all other counts and cases.” For the first time, Gonzalez explained that he was informed of the 2003 amended sentencing order in a November 19, 2003, letter from his then-appellate counsel, and that he was never furnished with a copy of the 2003 amended sentencing order. Gonzalez attached a copy of the letter to his motion for rehearing. The letter from Gonzalez’s attorney states that on October 28, 2008, the trial court vacated Gonzalez’s previous sentence on count II in case number 99-993, and entered a new sentence of five years as an HVO. The letter also states that the sentence is concurrent with the sentence on count I, and concurrent with all of the other sentences he is serving.

On December 24, 2013, this Court denied Gonzalez’s motion for rehearing, in an unelaborated order.

C. Third Motion to Correct Illegal Sentence

On August 8, 2014, Gonzalez filed the instant motion to correct illegal sentence. Gonzalez made two assertions: 1) his constitutional right against double jeopardy was violated when the court amended his sentence running count I of case number 99-993 consecutive to count II, where these two counts had previously been run concurrent with one another and with all other cases, thereby resulting in an illegal sentence; and 2) relying on Grant v. State, 770 So.2d 655 (Fla.2000), that his HVO sentences are illegal because all imposed mandatory minimum terms which were shorter than the PRR sentences.

On September 30, 2014, the trial court denied the motion, stating that “[t]he defendant’s claim was denied on direct appeal, and is successive in nature.” Gonzalez filed a motion for rehearing, arguing that- his double jeopardy claim was not successive because it was first raised in his motion for rehearing in Gonzalez II, which was not a procedurally proper method by which to raise the issue, and that this Court denied that motion for rehearing without-addressing the merits. Gonzalez also asserted an issue not raised in his underlying motion — that pursuant to Hale, 630 So.2d at 521, “where crimes occur in a single criminal episode and one or both counts have been increased by HO enhancement, it is a manifest injustice to impose the sentences to run consecutively.”

On November 14, 2014, the trial court denied Gonzalez’s motion for rehearing, and granted his motion for belated appeal of the order denying his motion to correct illegal sentence entered on September 30, 2014. Gonzalez filed the present appeal, and filed an initial brief.

II. ANALYSIS

Gonzalez’s sole argument on appeal is that the trial court erred in denying ground one of his motion to correct illegal sentence as successive in nature, i.e., his double jeopardy claim. Because the record does not conclusively establish that Gonzalez’s double jeopardy claim has been previously decided on the merits, Gonzalez’s argument has merit.

As explained above, Gonzalez argues that the trial court’s May 21, 2013, order violated his constitutional protection against double jeopardy by running count II consecutive to count I in case number 99-993, when the trial court had previously, in 2003, amended and reduced his sentence to run count II concurrent with count I and all other counts and cases. Gonzalez claims that jeopardy attached to the 2003 reduction to his sentence because the State did not appeal that sentence, giving him an expectation that the 2003 sentence was final. Moreover, he had been serving the reduced sentence for nearly ten years before it was increased.

In its response, the State argues that the trial court correctly denied Gonzalez’s double jeopardy claim because Gonzalez raised the exact issue in his motion for rehearing before this Court in Gonzalez II, and that this Court should dismiss Gonzalez’s appeal under the law of the case doctrine because this Court already rejected the double jeopardy claim on the merits when we denied Gonzalez’s motion for rehearing in Gonzalez II. Contrary to the State’s argument, however, the issue of double jeopardy has never been decided on the merits by this Court.

While Florida Rule of Criminal Procedure 3.800(a) does not prohibit the filing of successive motions, the doctrine of collateral estoppel precludes successive review of a specific issue that already has been decided on the merits. See State v. McBride, 848 So.2d 287, 291 (Fla.2003) (“In barring the filing of successive repetitive 3.800 motions ... courts essentially have applied collateral estoppel principles.”); see also Harvey v. State, 78 So.3d 11, 12 (Fla. 3d DCA 2011) (“The collateral estoppel bar, however, only applies when the identical issue is raised in a prior motion and the issue is decided on the merits.”); accord Garcia v. State, 69 So.3d 1003 (Fla. 3d DCA 2011); Pleasure v. State, 931 So.2d 1000 (Fla. 3d DCA 2006). The issue, however, must have been considered and decided on the merits. For that reason, the doctrine of collateral es-toppel does not apply to bar a defendant from seeking relief when the issue presented has never been considered and decided on the merits. See Pleasure, 931 So.2d at 1002 (“For the bar of collateral estoppel to apply, the prior decision must have been on the merits.”); Williams v. State, 868 So.2d 1234, 1235 (Fla. 1st DCA 2004) (“[T]he trial court erred in denying the appellant’s claim as being barred by the doctrine of collateral estoppel as it is not clear from the record before this Court that the instant claim has ever been decided on the merits.”).

Similarly, “[i]f there was a prior decision on the merits and an affirmance on appeal, then the law of the case doctrine would also come into play.” 931 So.2d at 1002 n. 2; accord McBride, 848 So.2d at 289-90 (stating that the law of the case doctrine applies to motions filed under Rule 3.800); Swain v. State, 911 So.2d 140, 144 (Fla. 3d DCA 2005) (“As this appeal is based upon the trial court’s denial of the same claims previously raised by the defendant and affirmed on appeal on the merits, the law of the case doctrine serves as a procedural bar herein.”).

Here, although Gonzalez raised the identical double jeopardy claim in his motion for rehearing before this Court in Gonzalez II, our denial of that motion cannot be considered a decision on the merits. In Gonzalez II, Gonzalez did not submit an initial brief to this Court. After this Court affirmed, Gonzalez then filed a motion for rehearing, raising the double jeopardy argument for the first time. Because Gonzalez did not raise the double jeopardy issue before the trial court in his second motion to correct illegal sentence, nor in his appeal from the denial of that motion (having not filed a brief), the issue was not properly before us on rehearing in Gonzalez II. See Padilla v. State, 905 So.2d 248 (Fla. 3d DCA 2005) (concluding that issue was not properly before this Court on motion for rehearing where defendant did not raise issue in motion to correct illegal sentence below or on appeal). Indeed, “[a] new issue raised for the first time in a motion for rehearing is improper under Rule 9.330, and this Court will not entertain this new argument on rehearing. Cleveland [v. State, 887 So.2d 362, 364 (Fla. 5th DCA 2004)], (“No new ground or position may be assumed in a petition for rehearing.,.. This court need not entertain new argument or consider additional authority cited in support thereof.”).” Rolling v. State, No. 3D15-66, — So.3d -, -, slip op. 2, 2016 WL 4723682 at *1 (Fla. 3d DCA Aug. 17, 2016) (on rehearing).

Moreover, under these circumstances, this Court’s denial in an unelaborated order cannot be considered a decision on the merits. Compare Key v. State, 13 So.3d 1113 (Fla. 3d DCA 2009) (affirming summary denial of 3.800(a) motion where issue had already been decided in unpublished order denying motion for rehearing “on the merits”), with Plasencia v. State, 170 So.3d 865 (Fla. 2d DCA 2015) (finding that where, in prior direct appeal, defendant raised new issue in motion for rehearing and prior panel denied motion without discussion, current panel could not determine whether motion for rehearing was denied on procedural grounds or on the merits).

Because the issue of Gonzalez’s double jeopardy claim has never been decided on the merits on appeal, the law of the case doctrine does not apply to procedurally bar Gonzalez from litigating the issue below. Similarly, because Gonzalez did not raise the issue in any of his prior two motions to correct illegal sentence, the issue is also not barred by the doctrine of collateral estoppel.

Gonzalez also argues that his sentence is illegal under Hale, 630 So.2d at 521. Gonzalez did not raise this argument before the trial court in his motion to correct illegal sentence but only in his motion for rehearing, which the trial court denied. The trial court’s denial of the motion for rehearing on the Hale issue was correct, as Gonzalez presented the same issue to the trial court in his first motion to correct illegal sentence, which was granted on other grounds, and then specifically withdrew the issue in his amended initial brief to this Court in Gonzalez I. As a result, the trial court properly denied the motion for rehearing as to this issue. See McBride, 848 So.2d at 291 (stating that collateral estoppel precludes a defendant from rearguing in a successive 3.800 motion the same issue argued in a prior motion); see also Smith v. State, 685 So.2d 912, 912 (Fla. 5th DCA 1996) (“While it may be correct that Rule 3.800 does not prohibit successive motions, we hold that where, as here, a defendant raises an issue under Rule 3.800, the lower court denies relief and the defendant fails to appeal, he may not later raise the same issue in another Rule 3.800 motion.”).

Finally, the State argues that the trial court’s denial of Gonzalez’s double jeopardy claim as “successive” is harmless error because Gonzalez “may still be serving the 5-year grand theft sentence consecutive to the remaining nine robbery convictions in the other cases.” In its response, however, the State concedes that the record does not reveal whether the trial court in fact amended Gonzalez’s sentences in case number 99-993 to run concurrently, or whether he continues to serve the five year grand theft count consecutively to sentences in other cases. The State, therefore, suggests that “[rjemand may be necessary” for the trial court to make these determinations. In his reply brief, Gonzalez states that he is not averse to such a procedure.

III. CONCLUSION

Because Gonzalez’s claim that the trial court’s 2013 order resulted in a violation of his constitutional protection against double jeopardy is not barred by the doctrine of collateral estoppel or by the law of the case doctrine, we reverse the trial court’s order denying his claim and remand with directions to the trial court to consider the issue on the merits. We affirm, however, the trial court’s denial of the motion for rehearing to the extent it concerns Gonzalez’s arguments regarding Hale.

Affirmed in part, reversed in part and remanded with directions.

      . As the State points out in its response to this Court, the trial court incorrectly stated that Gonzalez’s claim was denied on direct appeal — Gonzalez has never pursued a direct appeal.

      . In his initial brief, Gonzalez did not raise ground two (the Grant issue) of his motion, and in his motion for rehearing, Gonzalez stated that he “will not pursue the issue on appeal.” Under these circumstances, the issue is deemed abandoned. See McClellion v. State, 186 So.3d 1129, 1131 n. 1 (Fla. 4th DCA 2016); Prince v. State, 40 So.3d 11 (Fla. 4th DCA 2010).


author: ROTHENBERG, J.

text:
    Victor IGWE, Appellant, v. CITY OF MIAMI, Appellee.
    No. 3D15-1307.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2016.
    Rehearing Denied Dec. 20, 2016.

      Amlong & Amlong, P.A., and William R. Amlong, Karen Coolman Amlong, and Ryan C. Brenton, Fort Lauderdale, for appellant.
    Victoria Méndez, City Attorney, and Kerri L. McNulty, Assistant City Attorney, for appellee.
    Themis Law Group, LLP, and Brian Calciano, St. Petersburg; Delegal Law Offices, P.A., and T.A. “Tad” Delegal, III, Jacksonville, for National Employment Lawyers Association, Florida Chapter, as amicus curiae.
    Before SUAREZ, C.J., and ROTHENBERG and FERNANDEZ, JJ.
   ROTHENBERG, J.

Victor Igwe (“Igwe”) appeals the trial court’s entry of final summary judgment in favor of the City of Miami (“the City”), disposing of Igwe’s retaliatory discharge claim, which was brought pursuant to section 112.3187, Florida Statutes (2011) (“the Whistle-blower’s Act” or “the Act”), based on the trial court’s conclusion that Florida whistle-blower protection does not extend to individuals who report misconduct as a part of their job description. Because we conclude that the trial court erred in its determination that Igwe was precluded from whistle-blower protection on the ground that he reported the City’s misconduct while carrying out his duties as the Independent Auditor General (“IAG”) for the City, we reverse.

BACKGROUND

According to the City Charter, the position of IAG was created in order to provide independent oversight and audit functions for the City, and the IAG has a duty to report to the City Commission regarding his conclusions and financial analysis. Miami, Fla. Charter, § 48. It is undisputed that, as part of his job, Igwe disclosed to the City Commission and the City’s Mayor several instances of alleged misconduct between 2009 and 2011, including the following: (1) a report finding that the City had violated its financial integrity principles by engaging in improper inter-fund borrowing; (2) a report identifying the improper transfer of restricted Local Option Fuel Tax revenues into the City’s general fund; (3) a report identifying another improper transfer of restricted stormwater utility revenues into the City’s general fund; and (4) a report that the City was continuing to improperly transfer restricted revenues into the City’s general fund, even after the issuance of the prior reports. Igwe also issued a report to the City Commission and the City’s Audit Advisory Committee, disclosing that the City Attorney had overpaid herself.

During this time period, the United States Securities and Exchange Commission (“SEC”) and the Federal Bureau of Investigation (“FBI”) also began investigating the City. In the course of its investigation of the City’s potential securities law violations, the SEC subpoenaed Igwe to testify about the City’s alleged misconduct. Igwe complied with the SEC’s subpoena and testified. It is undisputed that Igwe’s disclosures to the SEC and the reports to the City Commission were made in accordance with Igwe’s job duties as IAG.

Thereafter, the City declined to renew Igwe’s contract as IAG. In response, Igwe filed a one-count complaint, alleging that the City retaliated against him by declining to renew his contract in response to his issuance of the written reports and cooperation and testimony before the SEC. The City moved for summary judgment, arguing that (1) Florida’s whistle-blower protection only applies to those who make voluntary disclosures of misconduct, (2) Igwe’s disclosures were not voluntary because they were required as a part of his job, and thus (3) Igwe was not protected by the Act.

The trial court entered an order granting the City’s motion for summary judgment. Specifically, the trial court found that Igwe’s disclosures were not voluntary because his disclosures consisted of “things that the job obligated him to report,” and his cooperation with outside agencies like the SEC and the FBI were also a part of his job as IAG. The trial court also found that although Florida common law does not specifically address the issue, federal law in whistle-blower cases, see Sassé v. U.S. Dep’t of Labor, 409 F.3d 773 (6th Cir.2005); Huffman v. Office of Pers. Mgmt., 263 F.3d 1341 (Fed.Cir. 2001), supports the trial court’s conclusion that “plaintiffs do not engage in protected activity by disclosing violations of law as part of them job responsibilities.” Therefore, the trial court concluded that Igwe’s disclosures are not protected by the Whistle-blower’s Act. Thereafter, Igwe timely appealed.

ANALYSIS

We review the trial court’s entry of summary judgment de novo. Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000). Summary judgment is only appropriate if there are no issues of material fact, and the moving party is entitled to judgment as a matter of law, Fla. R. Civ. P. 1.510(c), We also review the trial court’s interpretation of a statute de novo. Bay Cnty. v. Town of Cedar Grove, 992 So.2d 164, 167 (Fla.2008).

As this case involves the interpretation of a statute, it is important to bear in mind that the polestar of statutory interpretation is the Legislature’s intent. Meeks ex rel. Estate of Meeks v. Florida Power & Light Co., 816 So.2d 1125, 1131 (Fla. 5th DCA 2002), approved sub nom, BellSouth Telecomms. Inc. v. Meeks, 863 So.2d 287 (Fla.2003). Additionally, a single provision of a statute cannot be read in isolation, and it must be construed together with other provisions which relate to the same subject matter. Florida Dep’t of Highway Safety & Motor Vehicles v. Hernandez, 74 So.3d 1070, 1077 (Fla.2011) (stating that related statutory provisions should be read in pari materia). We are also mindful that statutes should not be interpreted in such a way that leads to an absurd or unreasonable result. Amente v. Newman, 653 So.2d 1030, 1032 (Fla.1995); Yeste v. Miami Herald Publ’g Co., a Div. of Knight-Ridder Neiospapers, 451 So.2d 491, 493 (Fla. 3d DCA 1984) (“We are, of course, constrained by law to give full effect to the legislative purpose behind a statute and to avoid constructions which lead to absurd or unreasonable results.”).

I. Florida’s Whistle-blower’s Act

Before we address the particular arguments raised by the City, we briefly discuss the statutory context within which the parties’ disputes appear. We begin with the construction of section 112.3187(2), which sets forth the Florida Legislature’s express intent when passing the Act:

It is the intent of the Legislature to prevent agencies or independent contractors from taking retaliatory action against an employee who reports to an appropriate agency violations of law on the part of a public employer or independent contractor that create a substantial and specific danger to the public’s health, safety, or welfare. It is further the intent of the Legislature to prevent agencies or independent contractors from taking retaliatory action against any person who discloses information to an appropriate agency alleging improper use of governmental office, gross waste of funds, or any other abuse or gross neglect of duty on the part of an agency, public officer, or employee.

§ 112.3187(2) (emphasis added).

The Act defines “agency” as “any state, regional, county, local, or municipal government entity, whether executive, judicial, or legislative; any official, officer, department, division, bureau, commission, authority, or political subdivision therein; or any public school, community college, or state university.” § 112.3187(3)(a). The Act defines “employee” as “a person who performs services for, and under the control and direction of, or contracts with, an agency or independent contractor for wages or other remuneration.” § 112.3187(3)(b). Thus, the Act was drafted with the intention of preventing the City, which falls under the definition of “agency,” from taking retaliatory action against Igwe, who falls under both the definition of “employee” and the plain meaning of “any person,” so long as the additional express requirements set forth in the Act are met. Two such requirements, which are set forth in sections 112.3187(6) and 112.3187(7), are in dispute in the instant case. We address each section in turn.

II. Igwe’s disclosures were made to the correct entity under the Act

Section 112.3187(6) identifies to whom a disclosure must be made:

TO WHOM INFORMATION DISCLOSED. — The information disclosed under this section must be disclosed to any agency or federal government entity having the authority to investigate, police, manage, or otherwise remedy the violation or act, including, but not limited to, the Office of the Chief Inspector General, an agency inspector general or the employee designated as agency inspector general under s. 112.3189(1) or inspectors general under s. 20.055, the Florida Commission on Human Relations, and the whistle-blower’s hotline created under s. 112.3189. However, for disclosures concerning a local governmental entity, including any regional, county, or municipal entity, special district, community college district, or school district or any political subdivision of any of the foregoing, the information must be disclosed to a chief executive officer as defined in s. 447.203(9) or other appropriate local official.

(emphasis added). Igwe’s disclosures concerned the City, a “local government entity.” Therefore, to comply with the this provision, he was required to make his disclosures to either the City’s chief executive officer or to another “appropriate local official.” The phrase, “other appropriate local official,” has been interpreted to mean “an official or official entity who is affiliated with the violating governmental entity and has the authority to investigate, police, manage, or otherwise remedy the violation or act by the violating governmental entity.” Rustowicz v. N. Broward Hosp. Dist., 174 So.3d 414, 424 (Fla. 4th DCA 2015) (emphasis added); see also Quintini v. Panama City Hous. Auth., 102 So.3d 688, 689 (Fla. 1st DCA 2012).

The City Commission has the authority to “investigate the financial transactions of any office or department of the city government and the official acts and conduct of any city official, and by similar investigations may secure information upon any matter.” See Miami, Fla. Charter, § 14 (emphasis added). Consequently, it is clear that the City Commission is an “appropriate local official” regarding the City’s alleged misconduct. We therefore find as a matter of law that Igwe’s disclosures to the City Commission satisfy the requirements of section 112.3187(6). Additionally, there is nothing in the statute to suggest that Igwe was thereafter prohibited from discussing his disclosures when subpoenaed by the SEC. In fact, as our analysis of section 112.3187(7) reveals, the Act expressly protects such disclosures.

III. Igwe is a protected person under the Act

Section 112.3187(7) lists precisely who may receive protection under the Act:

EMPLOYEES AND PERSONS PROTECTED. This section protects employees and persons who disclose information on them own initiative in a written and signed complaint; who are requested to participate in an investigation, hearing, or other inquiry conducted by any agency or federal government entity; who refuse to participate in any adverse action prohibited by this section; or who initiate a complaint through the whistle-blower’s hotline or the hotline of the Medicaid Fraud Control - Unit of the Department of Legal Affairs; or employees who file any written complaint to their supervisory officials or employees who submit a complaint to the Chief Inspector General in the Executive Office of the Governor, to the employee designated as agency inspector general under s. 112.3189(1), or to the Florida Commission on Human Relations!)]

(emphasis added); A plain reading of the statute indicates that there are five categories of protected persons. See Rustowicz, 174 So.3d at 420-21 (“[T]he statute extends protection to five categories of employees[.]”). Each category is independent, as the list is separated by the use of semicolons and by the word “or,” which “as used in a statute, is a disjunctive article indicating an alternative.” See TEDC/Shell City, Inc. v. Robbins, 690 So.2d 1323, 1325 (Fla. 3d DCA 1997) (quoting 49 Fla. Jur.2d Statutes § 137, at 179 (1984)). A person who qualifies under any of these categories will be, by the operation of the plain language of the text, a person protected by the Act. See Rustowicz, 174 So.3d at 421-22 (holding that an audit associate, who qualified for protection under the Act because she was requested to participate in an investigation, did not need to make her disclosures in writing or on her own initiative).

Thus, Igwe is a protected person under section 112.3187(7), as his disclosures to the City Commission are covered under the category “employees who file any written complaint to their supervisory officials,” while his subsequent disclosures to the SEC are covered under the category of persons “who are requested to participate in an investigation, hearing, or other inquiry conducted by any agency or federal government entity.”

The City argues, and the trial court found, that the Act does not protect those who make disclosures as a part of their job description. Specifically, the City argues that: (1) the words “on their own initiative” in section 112.3187(7) means that any disclosures under the Act must be voluntarily offered; (2) the words “on their own initiative” apply to each of the five categories of protected persons under section 112.3187(7); (3) disclosures made while performing the duties of one’s job are not voluntary; and therefore, (4) Igwe’s disclosures were not protected by the Act, as he was required to make the disclosures in the course of doing his job as the IAG. We disagree with the City’s interpretation for several reasons.

First, we note that the City’s interpretation of “on their own initiative” runs contrary to the stated purpose of the Act, which is to prevent employers, such as the City, from taking retaliatory action against “any person” who properly discloses “improper use of governmental office, gross waste of funds, or any other abuse or gross neglect of duty on the part of an agency, public officer, or employee.” § 112.3187(2) (emphasis added). The phrase “any person” clearly encompasses those who make disclosures because it is their job to do so, and those who make disclosures even though they have no employment obligation to do so.

Second, the Florida Supreme Court has unequivocally stated that the Act is a remedial statute, and should be liberally construed in favor of granting access to protection from retaliatory actions. Irven v. Dep’t of Health & Rehabilitative Servs., 790 So.2d 403, 406 (Fla.2001) (stating that “[section 112.3187(2)] could not have been more broadly worded”); Martin Cnty. v. Edenfield, 609 So.2d 27, 29 (Fla.1992); Hutchison v. Prudential Ins. Co. of Am., 645 So.2d 1047, 1049 (Fla. 3d DCA 1994). Contrary to these authorities, the City’s interpretation of “on their own initiative” as a prerequisite rather than as an option, would be a very strict and narrow reading of the Act, which would foreclose the possibility of whistle-blower protection for a large segment of the population, and be in contravention of section 112.3187(2), which affords statutory protection against retaliatory action against “any person” who properly discloses the improper conduct to the appropriate agency.

For example, the City’s interpretation would foreclose the possibility of whistle-blower protection for those whose job it is, in whole or in part, to manage, report, or supervise governmental misconduct. Consider a manager, a foreman, or an administrator of a public or governmental agency who is tasked with supervising the employees of that entity. If such a person reports to his boss that the governmental entity is placing its employees at a substantial risk of injury due to the failure to provide these employees with the required safety equipment, then under the City’s interpretation of “on their own initiative,” he would not be protected by the Act if he was fired in retaliation for reporting the misconduct. This interpretation would be unreasonable and contrary to the express intent of the Legislature.

In summary, the City’s interpretation of the statute runs contrary to the plain meaning of the language contained in the Act and the express intent of the Legislature to protect “any person” who discloses such misconduct. It also contradicts the requirement that the remedial statute be liberally construed to favor access to the statutory remedy, and significantly limits the number of people who may seek whistle-blower protection after disclosing governmental misconduct. We therefore reject the City’s interpretation and hold that section 112.3187(7) protects those who make disclosures regarding “improper use of governmental office, gross waste of funds, or any other abuse or gross neglect of duty on the part of an agency, public officer, or employee,” even if they do so in the course of carrying out their job duties.

CONCLUSION

Based on our finding that section 112.3187(7), when read in pari materia with the rest of the statute, protects persons such as Igwe, whose job it was to make disclosures regarding improper governmental conduct, we conclude that the trial court erred by entering final summary judgment in favor of the City. We, therefore, reverse and remand for further proceedings. We find that the City’s remaining arguments are meritless, and thus we decline to discuss them further.

Reversed and remanded.

      . We do not express an opinion regarding whether Igwe suffered retaliatory action pursuant to section 112.3187(4), as that issue has yet to be decided by the court below.

      . We note that the federal case law cited to by the trial court in support of its conclusion that plaintiffs cannot avail themselves of whistle-blower protection if their disclosures were required as a part of their jobs has been superseded by statute. Balko v. Ukrainian Nat'l Fed. Credit Union, 2014 WL 1377580, at *18 (S.D.N.Y. Mar, 28, 2014) (noting that "[i]n 2012, however, Congress overruled the reasoning of those cases by [amending the federal whistleblower statute to state] that an employee is not excluded from whistleblower protection simply because her disclosure is made during the normal course of duties.”) (internal quotation omitted). Thus, we find that the trial court erred in relying on these federal cases and decline to discuss them further.


author: SCALES, J.

text:
    HSBC BANK USA, N.A., etc., Appellant/Appellee, v. Nathan FRENKEL, Successor Trustee, etc., Appellee/Appellant.
    Nos. 3D15-890, 3D15-1991.
    District Court of Appeal of Florida, Third District.
    Oct. 13, 2016.
    Rehearing Denied Oct. 28, 2016.

      Carlton Fields Jorden Burt, P.A., and Michael K. Winston and Dean A. Morande, West Palm Beach, for appellant/appellee.
    Keith D. Silverstein, P.A., and Keith D. Silverstein; Coffey Burlington P.L., and Jeffrey B. Crockett; Shoshana Kraus, for appellee/appellant.
    Before SUAREZ, C.J., and FERNANDEZ and SCALES, JJ.
   SCALES, J.

In these consolidated appeals, Nathan Frenkel as successor trustee of the Max Frenkel and Margaret Frenkel Revocable Living Trust (the “Frenkel Trust”) appeals a final judgment granting HSBC Bank USA, N.A. (the “Bank”) an equitable hen on real property owned by Frenkel Trust (3D15-890); and Bank appeals an order awarding attorney’s fees to Frenkel Trust (3D15-1991). Based on Bank’s confession of error, we reverse the trial court’s final judgment entitling Bank to an equitable lien on Frenkel Trust’s real property. Further, based on our recent decision in Florida Community Bank, N.A. v. Red Road Residential, LLC, we reverse the trial court’s order entitling Frenkel Trust to the recovery of its attorney’s fees.

In July of 2005, Margaret Frenkel executed a mortgage encumbering a condominium unit located in Miami Beach, Florida. This mortgage purported to secure a $350,000 loan made to Mrs. Frenkel by Bank’s predecessor. The mortgage contained a standard provision entitling the lender to attorney’s fees in the event the lender pursued its remedies under the mortgage. Mrs. Frenkel, however, was not the owner of the condominium unit; at all times material, the condominium was owned by Frenkel Trust. Sometime after the loan documents were executed, but prior to recordation, someone apparently tried to rectify this problem by altering the mortgage, via handwritten notations, to make it appear as though Mrs. Frenkel signed the mortgage not in her personal capacity, but as trustee for Frenkel Trust.

Bank acquired the note and mortgage and, in the year following Mrs. Frenkel’s 2007 death, filed the instant, single-count foreclosure action against Frenkel Trust. Bank did not plead entitlement to an equitable hen on Frenkel Trust’s real property, and made no claim against Mrs. Frenkel’s estate.

After a bench trial, the trial court denied the Bank’s foreclosure because of the defect in the mortgage’s execution. Specifically, the trial court found the mortgage to be unenforceable against Frenkel Trust because it was not executed by the Frenk-el Trust. The trial court, however, imposed an equitable lien in the amount of $350,000 on Frenkel Trust’s real property, requiring Bank to bring a separate action to enforce (that is, to foreclose upon) the equitable lien. The trial court denied Bank’s claim for attorney’s fees, but determined that Frenkel Trust was entitled to attorney’s fees based both on the mortgage’s fee provision and on section 57.105(7) of the Florida Statutes. Frenk-el Trust appealed the trial court’s imposition of an equitable hen. Bank appealed the trial court’s award of attorney’s fees to the Frenkel Trust. We consolidated the appeals.

Upon the Bank’s proper confession of error, we reverse that portion of the trial court’s final judgment imposing an equitable lien on Frenkel Trust’s real property. This claim was not raised in the pleadings and it was error to enter judgment for the Bank on an unpled claim. Marriott Int'l, Inc. v. Am. Bridge Bahamas, Ltd., 193 So.3d 902, 909 (Fla. 3d DCA 2015).

We also reverse that portion of the final judgment awarding attorney’s fees to Frenkel Trust. As Frenkel Trust was not a party to the mortgage containing the subject fee provision, it is therefore unable to derive the benefit of section 57.105(7)’s fee reciprocity. Fla. Cmty. Bank, 197 So.3d at 1115.

We reverse the final judgment and remand to the trial court for entry of a revised final judgment consistent with this opinion.

Reversed and remanded.

      . Fla. Cmty. Bank, N.A. v. Red Rd. Residential, LLC, 197 So.3d 1112 (Fla. 3d DCA 2016).

      . Notwithstanding the one-sided nature of the mortgage’s fee provision that entitled only the lender to prevailing party fees, by operation of law, section 57.105(7) bestows on the borrower the same entitlement to prevailing party fees. Fla. Cmty. Bank, 197 So.3d at 1115.

      . We note that the trial court did not have the benefit of our decision in the Florida Community Bank case when it adjudicated Frenkel Trust’s claim for attorney’s fees.