text:
    GATOR BORING & TRENCHING, INC., Appellant, v. WESTRA CONSTRUCTION CORP., a Florida corporation; Travelers Casualty and Surety Company of America, a Connecticut company; and Tampa Electric Company, Appellees.
    No. 2D15-5453.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 2016.

      Charles P. Young of Emmanuel, Sheppard & Condon, Pensacola, for Appellant.
    George E. Spofford, IV, and William F. McFetridge, IV, of GrayRobinson, PA, Tampa, for Appellees Westra Construction Corp. and Travelers Casualty and Surety Company of America.
    No appearance for Appellee Tampa Electric Company.
   WALLACE, Judge.

Gator Boring & Trenching, Inc. (Gator), seeks appellate review of an adverse partial summary judgment on claims that it asserted for breach of contract against Westra Construction Corp. (Westra) and for the recovery on a lien transfer bond against both Westra and its surety, Travelers Casualty and Surety Company of America (Travelers). The issues we are called upon to decide raise complex questions about our jurisdiction and the propriety of the entry of summary judgment in favor of Westra and Travelers on their defense that the lien filed by Gator was fraudulent within the meaning of the Construction Lien Law. We dismiss Gator’s appeal in part, reverse the orders granting the partial summary judgment in part, grant certiorari relief, and quash in part the orders under review.

I. THE FACTUAL AND PROCEDURAL BACKGROUND

Westra contracted with Tampa Electric Company (TECO) to build a fourteen-mile long pipeline in Polk County. Westra subcontracted the horizontal directional drill portion of the project passing under the Alafia River to Gator. When Gator entered into the subcontract, it apparently believed that the scope of the work would require it to drill exclusively or primarily through sand. After commencing the work, Gator found that completion of its portion of the project required it to drill through a substantial amount of rock. The necessity to drill through rock instead of sand substantially increased the cost of the contracted work to Gator. After Gator completed its portion of the project, Westra and TECO did not pay Gator all of the monies that it claimed were due. Gator timely filed a claim of lien in the Public Records of Polk County, Florida.

The total amount of the claim that Gator asserted against Westra and Travelers on its construction lien was $889,792.70. Of this amount, $676,556.90 represented the damages that Gator claimed as a result of the additional costs incurred by it in drilling through the unanticipated rock formation. The remainder, $213,235.80, was for balances due on invoices and amounts for retainage that Gator claimed were unpaid under its subcontract.

In count I of its first amended complaint, Gator sued Westra for breach of contract based upon Westra’s alleged failure to pay Gator for the work it had performed under its subcontract with Wes-tra. The amount claimed by Gator on its breach of contract claim against Westra was $1,031,869.65. The amounts sought by Gator for the alleged breach of contract in count I of its complaint included the additional cost of drilling through rock instead of sand as well as other amounts that Gator claimed to be due and unpaid. A detailed analysis of the additional amounts claimed by Gator on count I is not pertinent to our consideration of the issues in this case.

After Gator filed its lien to secure recovery of the amounts it claimed against Wes-tra and TECO, Westra promptly transferred the lien to a bond underwritten by Travelers. In count II of the first amended complaint, Gator sought to recover the $889,792.70 from Westra and Travelers on the lien transfer bond.

Westra and Travelers filed a motion for partial summary judgment on count I and for dismissal of count II of Gator’s first amended complaint to the extent that those counts sought damages or relief based upon Westra’s failure to pay for the additional work that Gator allegedly performed as a result of the changed conditions at the job site. In the motion, Wes-tra argued that partial summary judgment should be granted on count I because Gator’s subcontract precluded Gator from receiving additional money from Westra merely because the work was more difficult and costly than anticipated. Westra asserted that, as a matter of law, Gator accepted the risk of changed site conditions because its contract did not include a changed conditions clause. Furthermore, Westra relied on the provisions in the contract documents that it claimed expressly stated that Gator had investigated the site, accepted the risk that conditions might be different than anticipated, and would not be entitled to additional compensation if the work turned out to be more difficult and costly than expected.

Westra and Travelers raised as their twelfth affirmative defense in their amended affirmative defenses to Gator’s first amended complaint their claim that Gator’s lien was fraudulent and unenforceable under section 713.31(2), Florida Statutes (2013). Based upon this affirmative defense, Westra and Travelers asserted in their motion for partial summary judgment that count II should be dismissed upon the entry of a judgment on Gator’s changed conditions claim in count I. They argued that Gator’s lien was fraudulent and unenforceable because the lien included $676,556.90 for the changed conditions claim, for which Gator could not properly recover.

Following a hearing, the trial court entered an order granting the motion for partial summary judgment without elaboration. Thereafter, Gator filed a motion for clarification, pointing out that in the motion for partial summary judgment, Westra sought partial summary judgment on Gator’s changed conditions claim, which was included in count I, and that Westra and Travelers sought dismissal of count II based on their claim that Gator’s lien was exaggerated as a matter of law. Gator stated that the parties had conflicting interpretations about the effect of the trial court’s order and requested that the trial court clarify its ruling.

The trial court entered an order granting the motion for clarification. The order stated that the motion for partial summary judgment was granted based on the argument that Gator could not recover any additional monies on its changed conditions claim. The trial court amended its prior order to include additional findings and rulings as follows: (1) that the subcontract did not include a differing site conditions clause; (2) that Gator assumed the risk of the differing site conditions; (3) that Gator’s $889,792.70 lien included a claim for $676,556.90 as compensation for the differing site condition claim; (4) that Gator exaggerated its lien in the amount of $676,556.90 for the claim for differing site conditions, which was not a minor amount; (5) that Gator did not present evidence that it had consulted with legal counsel or disclosed to counsel all material facts before filing the lien; (6) that the lien recorded in the Polk County Public Records was dismissed; (7) that the clerk was directed to release the lien transfer bond provided by Travelers; and (8) that count II of the amended complaint was dismissed. Gator timely appealed both orders.

II. THE QUESTION OF JURISDICTION

A. Introduction

The pleadings reflect that the two orders on appeal have effectively disposed of the only claim involving Travelers, which was alleged in count II of the first amended complaint. However, count I includes claims for other damages against Westra in addition to the claim based on the changed site conditions. These claims remain pending. Also, Westra filed a counterclaim under section 713.31 (2)(c) for the alleged fraudulent lien against Gator that is unaffected by the orders under review. With these facts concerning the state of the pleadings in mind, we must consider the question of our jurisdiction separately as it relates to the claims asserted against Travelers and Westra.

B. Travelers

Florida Rule of Appellate Procedure 9.110(k) provides as follows:

Except as otherwise provided herein, partial final judgments are renewable either on appeal from the partial final judgment or on appeal from the final judgment in the entire case. A partial final judgment, other than one that disposes of an entire case as to any party, is one that disposes of a separate and distinct cause of action that is not interdependent with other pleaded claims. If a partial final judgment totally disposes of an entire case as to any party, it must be appealed within 30 days of rendition.

Because the trial court’s orders completely dispose of all claims involving Travelers, we have jurisdiction to review Gator’s appeal from the dismissal of count II as a partial final judgment in accordance with rule 9.110(k). See Behavioral Healthcare Options, Inc. v. Charter Behavioral Health Sys. of Tampa Bay, Inc., 727 So.2d 1135, 1136 (Fla. 2d DCA 1999) (holding that the dismissal of the claims brought by a professional association against appellees was a final appealable order under rule 9.110(k) because no other counts remained in which the association was a party). Accordingly, we will address the orders dismissing count II in favor of Travelers as a final order on appeal.

C.Westra

The trial court’s orders are nonfi-nal and nonappealable to the extent that they grant a partial summary judgment in favor of Westra on count I (on the changed conditions claim) and count II because those claims are interrelated with the remaining claims against Westra under count I and Westra’s counterclaim for an alleged fraudulent lien. See id. (holding that an order of dismissal as it related to claims that were interrelated with the claims remaining against a party was non-final and nonappealable); see also East Ave., LLC v. Insignia Bank, 136 So.3d 659, 661 (Fla. 2d DCA 2014) (noting same); Merkle v. Home Shopping Network, Inc., 916 So.2d 841, 843 (Fla. 2d DCA 2005) (noting same). Thus, we must dismiss Gator’s appeal to the extent it challenges the trial court’s partial summary judgment concluding that Gator cannot recover under count I on its changed conditions claim against Westra as a matter of law.

The analysis concerning Gator’s appeal from the trial court’s rulings in favor of Westra on count II is more complicated. As noted above, the trial court dismissed count II based upon its finding that Gator had exaggerated its lien by including $676,556.90 in damages alleged on its changed conditions claim that was asserted in count I. In its order, the trial court dismissed Gator’s lien, directed the clerk to release the lien transfer bond provided by Travelers, and dismissed count II seeking a recovery against the lien transfer bond.

As noted above, the dismissal of count II in favor of Westra is nonfinal and nonap-pealable under the traditional rules of finality of judgments because interrelated claims remain pending against or by Wes-tra. However, we conclude that Gator is entitled to certiorari review of this issue because Gator might be subject to irreparable harm if it were required to wait until the end of the litigation to appeal this issue. See East Ave., 136 So.3d at 661 (granting certiorari review on an appeal from a nonfinal order awarding a partial summary judgment for damages and authorizing execution on the judgment because the appellant would otherwise be “exposed to enforcement of [a] judgment at a time when it cannot obtain review of it [or] ... shield its assets ... by posting an appellate supersedeas bond”). If we affirm the trial court’s order dismissing count II in favor of Travelers and releasing the bond, Gator would lose the benefit of a recovery under the bond on that claim if we later reversed the dismissal of count II in favor of Westra. In that circumstance, Gator would be without a remedy on the bond. Accordingly, we may review under our certiorari jurisdiction the trial court’s dismissal of count II in favor of Westra. See id at 665; see also Fla. R. App. P. 9.040(c) (“If a party seeks an improper remedy, the cause shall be treated as if the proper remedy had been sought; provided that it shall not be the responsibility of the court to seek the proper remedy.”)

III. DISCUSSION

A. Consideration of the Partial Summary Judgment as to Travelers

Although the trial court stated that it was dismissing count II of the first amended complaint seeking to recover on the lien transfer bond, the trial court actually granted a summary judgment on this count. The legal analysis of count II involved application of the law to summary judgment facts, not just the allegations in the first amended complaint, and was more like a summary judgment than a dismissal.

The function of a motion to dismiss a complaint is to raise as a question of law the sufficiency of the facts alleged to state a cause of action. For the purpose of passing upon a motion to dismiss the Court must assume all facts alleged in the complaint to be true. Consequently a motion to dismiss a complaint must be decided on questions of law and questions of law only.
On the other hand a motion for summary judgment ... raises only questions of [f|aet and must be decided upon evidence and not pleadings.
The purpose of a motion to dismiss is to ascertain if the plaintiff has alleged a good cause of action. The purpose of a motion for summary judgment is to determine if there be sufficient evidence to justify a trial upon the issues made by the pleadings. They thus serve entirely different functions.

Connolly v. Sebeco, Inc., 89 So.2d 482, 484 (Fla.1956).

We review a final order granting summary judgment de novo. Smith v. Frontier Commc’ns. Int'l., Inc., 805 So.2d 975, 977 (Fla. 2d DCA 2001). On a motion for summary judgment, the moving party must show that there are no genuine issues of material fact and that it is entitled to summary judgment as a matter of law. Cerron v. GMAC Mortg., LLC, 93 So.3d 456, 457 (Fla. 2d DCA 2012). Until the moving party meets this burden, there is no duty on the nonmoving party to demonstrate the existence of a genuine issue of material fact. Smith, 805 So.2d at 977. Further, “[i]f the record reflects the existence of any genuine issue of material fact, or the possibility of any issue, or if the record raises even the slightest doubt that an issue might exist, summary judgment is improper.” Cook v. Bay Area Renaissance Festival of Largo, Inc., 164 So.3d 120, 122 (Fla. 2d DCA 2015) (quoting Schmidt v. State Farm Mut. Ins. Co., 750 So.2d 695, 698 (Fla. 2d DCA 2000)).

With respect to remedies for fraud or collusion in a construction lien, section 713.31 provides, in pertinent part, as follows:

(2)(a) Any lien asserted under this part in which the lienor has willfully exaggerated the amount for which such lien is claimed ... or in which the lienor has compiled his or her claim with such willful and gross negligence as to amount to a willful exaggeration shall be deemed a fraudulent lien.
(b) It is a complete defense to any action to enforce a lien under this part, or against any lien in any action in which the validity of the lien is an issue, that the lien is a fraudulent lien; and the court so finding is empowered to and shall declare the lien unenforceable, and the lienor thereupon forfeits his or her right to any lien on the property upon which he or she sought to impress such fraudulent lien. However, a minor mistake or error in a claim of lien, or a good faith dispute as to the amount due does not constitute a willful exaggeration that operates to defeat an otherwise valid lien.
(c) An owner against whose interest in real property a fraudulent lien is filed, or any contractor, subcontractor, or sub-subcontractor who suffers damages as a result of the filing of the fraudulent hen, shall have a right of action for damages occasioned thereby. The action may be instituted independently of any other action, or in connection with a summons to show cause under s. 713.21, or as a counterclaim or cross-claim to any action to enforce or to determine the validity of the lien.

(Emphasis added.) Thus, under section 713.31(2), “[a] claim of lien that overstates the amount claimed is not necessarily fraudulent, unless the exaggeration [was] made willfully.” Sam Rodgers Props., Inc. v. Chmura, 61 So.3d 432, 440 (Fla. 2d DCA 2011) (citing Sharrard v. Ligon, 892 So.2d 1092, 1097 (Fla. 2d DCA 2004)).

The party asserting that a claim of lien is fraudulent bears the burden of proving that the lien is fraudulent. Sam Rodgers Props., 61 So.3d at 439-40. Further, “a finding of a fraudulent lien by a trial court is not a discretionary matter. As with any other contested issue, the lienor’s intent and good or bad faith in filing a lien must be based on competent substantial evidence in the record.” Delta Painting, Inc. v. Baumann, 710 So.2d 663, 664 (Fla. 3d DCA 1998); see also Sam Rodgers Props., 61 So.3d at 440 (recognizing that “[a] lienor’s good or bad faith in filing a lien must be based on competent, substantial record evidence”). Thus, in order to be entitled to summary judgment on count II, Travelers had to establish that there remained no genuine issue of material fact that Gator had willfully overstated the amount claimed in its lien as a matter of law. Travelers failed to meet this burden.

Here, Travelers did not establish the lack of any genuine issue of material fact on its defense that Gator’s hen was fraudulent. Rather, Travelers argued, and the trial court accepted, that Gator’s lien was fraudulent and unenforceable based upon a misapplication of the law. The sole basis asserted by Travelers for its fraudulent lien defense was that Gator lost on its claim against Westra for additional expenses resulting from its encounter with the unanticipated rock in the path of its drilling operation. Because Gator included an amount for this claim in its lien, Travelers argued, the lien was exaggerated as a matter of law. Travelers did not point to any record evidence to establish that Gator willfully exaggerated its lien by intentionally including amounts that were not recoverable or that it included an amount for changed site conditions in bad faith. Rather, it argued that because Gator’s lien included $676,556.90 on its claim for additional work caused by changed conditions, the trial court’s grant of a summary judgment on that claim automatically established that the lien was fraudulent and unenforceable.

In concluding that the lien was fraudulent and unenforceable as a matter of law, the trial court apparently accepted the foregoing argument. It further found that $676,556.90 was not a minor amount when the total amount of the lien was $889,792.70. See § 713.31(2)(b) (“[A] minor mistake or error in a claim of lien ... does not constitute a willful exaggeration that operates to defeat an otherwise valid lien”). In addition, the trial court observed that “Gator did not present any evidence that Gator consulted with legal counsel and disclosed all material facts to counsel prior to filing the lien.” See Sharrard, 892 So.2d at 1097 (noting that “[a] lienor’s consultation -with counsel prior to filing a claim of lien tends to establish that the lienor acted in good faith” and “is a factor to be considered along with other pertinent factors”).

The reasoning that Gator’s lien was fraudulent as a matter of law simply because it lost on its changed conditions claim is erroneous. A “dispute between the parties as to the amount of compensation due according to the contract plan of compensation or even a dispute as to the method of compensation provided in the contract does not convert such a good faith dispute into a fraudulent lien as provided in section 713.31.” Vinci Dev. Co. v. Connell, 509 So.2d 1128, 1132 (Fla. 2d DCA 1987). Moreover, simply because a court reduces the amount of a lien does not render the lien fraudulent. Politano v. GPA Constr. Grp., 9 So.3d 15, 16 (Fla. 3d DCA 2008); see also Delta Painting, Inc., 710 So.2d at 665 (Cope, J., dissenting) (observing that “[b]y eliminating from the fraudulent lien statute good faith contract disputes and minor mistakes or errors, the Legislature intended to reserve fraudulent lien penalties for those cases where there was a willful, intentional exaggeration or assertion of a claim for which there was no good-faith basis.... [A] lien is not to be deemed fraudulent merely because it is not embodied in a written contract or change order, so long as there is a good-faith basis for the claim”).

The record and the parties’ briefs reflect that Gator’s claim that it was entitled to recover additional monies from Westra as a result of the changed site conditions was a hotly contested and complex issue involving the legal construction of Gator’s subcontract and other documents as well as an analysis of the law concerning the assumption of the risk for differing site conditions. Gator’s first amended complaint asserting its claim for damages for the changed site conditions and its claim on the lien transfer bond including those damages was filed by Gator’s attorney. Thereafter, the parties engaged in substantial discovery and legal analysis before Westra and Travelers filed their motion for partial summary judgment concerning Gator’s entitlement to payment on its changed site conditions claim. Moreover, the trial court did not find that Gator’s changed condition claim was frivolous or wholly without merit. The parties’ pleadings reflect that they had a genuine dispute about Gator’s entitlement to payment on its changed conditions claim, for which Gator was represented by counsel. In addition, the record on appeal reflects that Gator’s claim of lien was, in fact, prepared by Gator’s counsel.

We conclude that the trial court erred in finding that Travelers was entitled to summary judgment on count II. In their argument on the motion for partial summary judgment on count II, Westra and Travelers relied solely on the ground that a determination by the trial court that Gator was not entitled to recover on its changed conditions claim made Gator’s claim of lien fraudulent and unenforceable. This view—which the trial court adopted—is based on an incorrect application of the law. Viewed in the light most favorable to Gator, the record reflects that the parties had a genuine dispute about Gator’s right to recover on its changed conditions claim. Travelers failed to conclusively establish that Gator willfully exaggerated the amount of its lien by including that claim. Accordingly, the trial court erred in directing the clerk to release the lien transfer bond and in dismissing count II in favor of Travelers. The question of whether Gator’s lien is fraudulent within the meaning of section 713.31 is an issue of fact that remains to be decided at trial. See J.W. Rolle Dev. Corp. v. Neuman, 910 So.2d 349, 350 (Fla. 4th DCA 2005) (holding that the question of whether a contractor had filed a fraudulent lien by willfully exaggerating the amount was an issue of fact that should not have been determined on summary judgment).

B. Consideration of the Partial Summary Judgment as to Westra

Having concluded that Gator is entitled to review by certiorari of the orders to the extent they dismiss count II in favor of Westra, we must determine whether the trial court’s ruling constituted a departure from the essential requirements of the law. See East Ave., LLC v. Insignia Bank, 136 So.3d 659, 665 (Fla. 2d DCA 2014). A departure from the essential requirements of the law means “a violation of a clearly established principle of law resulting in a miscarriage of justice.” Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla.2003). For the reasons discussed above, we conclude that the dismissal of the lien and count II in favor of Westra constituted a departure from the essential requirements of law. The trial court erroneously concluded that its granting of a summary judgment against Gator on its changed conditions claim automatically rendered its lien on that claim (as well as others) to be fraudulent and unenforceable as a matter of law when the record reflects that the parties had a genuine dispute about Gator’s entitlement to payment on its changed conditions claim. The law is clearly established that the reduction in the amount of a lien following a good faith dispute about the amount the lienor may recover under a contract does not render the lien fraudulent as a matter of law. See § 713.31(2)(b); see also Politano, 9 So.3d at 16; Vinci, 509 So.2d at 1132. Accordingly, we grant certiorari relief and quash the trial court’s orders to the extent they dismiss Gator’s lien and count II in favor of Westra.

IV. CONCLUSION

For the foregoing reasons, we dismiss Gator’s appeal as nonfinal and nonap-pealable to the extent that it seeks review of the trial court’s orders granting a summary judgment in favor of Westra on Gator’s changed conditions claim in count I. We reverse the trial court’s orders to the extent they release the lien transfer bond and dismiss count II in favor of Travelers. In addition, we grant certiorari relief to Gator and quash the trial court’s orders to the extent they dismiss Gator’s lien and claim on the hen transfer bond in count II in favor of Westra.

Dismissed in part, reversed in part, and orders quashed in part.

VILLANTI, C.J., and BLACK, J., Concur.

      . §§ 713.001-.37, Fla. Stat. (2013).

      . The facts stated in this opinion are drawn from the pleadings, the answers to interrogatories, the responses to requests for admissions, the affidavits, and the other documents in the record. We examine these facts in the light most favorable to Gator as the party against whom the partial summary judgment was entered. See Markowitz v. Helen Homes of Kendall Corp., 826 So.2d 256, 259 (Fla. 2002).

      . Various pleadings in the record report this amount as $676,556.00. However, we have referred to the amount as $676,556.90 because that is the amount reflected in the trial court's order granting clarification and because that is the amount reflected in Gator’s answers to Westra’s second interrogatories in which Gator itemized and totaled its additional costs for boring through the unforeseen rock.

      . Count III of the first amended complaint alleges an unjust enrichment claim against TECO based upon its alleged receipt of a benefit from Gator's furnishing of labor and materials for the project. Count IV alleges a claim for quantum meruit against TECO on the basis that Gator provided the requested labor and material for the benefit of TECO and that the labor and materials had a reasonable value for which TECO had failed to pay. The orders under review did not address counts III and IV, and those counts are not at issue in this case.

      . Because we are dismissing Gator’s appeal of the trial court's adverse ruling on the changed conditions claim asserted in count I of the amended complaint, we express no opinion on the merits of that claim.

      . Gator’s claim of lien bears the following statement: "This document prepared by: Charles P. Young, Emmanuel, Sheppard, & Condon, 30 South Spring Street, Pensacola, FL 32503.” Mr. Young filed the first amended complaint on behalf of Gator and represents Gator in this appeal.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Edward HAITHCOCK, Appellant, v. STATE of Florida, Appellee.
    No. 2D16-1439.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 2016.
   PER CURIAM.

Affirmed. See Stovall v. Cooper, 860 So.2d 5 (Fla. 2d DCA 2003) (en banc); Stokes v. State, 851 So.2d 788 (Fla. 2d DCA 2003); Brown v. State, 793 So.2d 27 (Fla. 2d DCA 2001).

NORTHCUTT, LaROSE, and SLEET, JJ., Concur.


text:
    Steven PURRIER, Appellant, v. STATE of Florida, Appellee.
    No. 2D16-1495.
    District Court of Appeal of Florida, Second District.
    Oct. 5, 2016.
    Steven Purrier, pro se.
   PER CURIAM.

Affirmed. See Purrier v. State, 113 So.3d 10 (Fla. 2d DCA 2013) (table decision); Purrier v. State, 52 So.3d 669 (Fla. 2d DCA 2010) (table decision); Harris v. State, 777 So.2d 994 (Fla. 2d DCA 2000).

NORTHCUTT, LaROSE, and SLEET, JJ., Concur.


text:
    Michael A. FALANA, Appellant, v. STATE of Florida, Appellee.
    No. 2D16-523.
    District Court of Appeal of Florida, Second District.
    Oct. 14, 2016.
    Michael A. Falana, pro se.
   PER CURIAM.

Michael A. Falana appeals the order summarily denying his request for documents and his motion seeking the entry of a signed judgment of conviction. We affirm the postconviction court’s order in all respects but comment only on the denial of Falana’s request for documents.

In his request for documents, Falana asked for certified copies of his May 22, 2000, judgment and sentence, a copy of the information filed against him, and a copy of the jury verdict so that he could file an application for clemency. The trial court mistakenly interpreted Falana’s request for documents to indicate that he intended to file a postconviction motion. Any applicant for executive clemency is entitled to certified copies of the information or indictment filed against him as well as his judgment and sentence, and the documents are to be furnished free of charge by the clerk of court. § 940.04, Fla. Stat. (2015); see Clayton v. State, 849 So.2d 461, 461 (Fla. 2d DCA 2003). Thus, the post-conviction court should have denied Fala-na’s request for documents without prejudice to his filing the request with the clerk of court. If the clerk fails to comply with the ministerial duty of providing Falana with the certified copies, Falana’s remedy is to file a petition for writ of mandamus in the trial court. Id.

Accordingly, we affirm the order denying Falana’s request for documents and his motion for entry of a rendered judgment without prejudice to Falana’s right to file his request for documents with the clerk of court under section 940.04. We note that under that statute, Falana is not entitled to a copy of the jury verdict free of charge.

Affirmed.

NORTHCUTT, KELLY, and CRENSHAW, JJ., Concur.


text:
    Phillip TURVEY, Appellant, v. STATE of Florida, Appellee.
    No. 2D16-1705.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 2016.
    Phillip Turvey, pro se.
   PER CURIAM.

Affirmed. See Hoover v. State, 530 So.2d 308 (Fla.1988); Long v. State, 529 So.2d 286 (Fla.1988); State v. King, 426 So.2d 12 (Fla.1982); McDonald v. State, 133 So.3d 530 (Fla. 2d DCA 2013); Dominguez v. State, 98 So.3d 198 (Fla. 2d DCA 2012); Doby v. State, 25 So.3d 598 (Fla. 2d DCA 2009); Hughes v. State, 22 So.3d 132 (Fla. 2d DCA 2009); Waiter v. State, 965 So.2d 861 (Fla. 2d DCA 2007); Steward v. State, 931 So.2d 133 (Fla. 2d DCA 2006); Shortridge v. State, 884 So.2d 321 (Fla. 2d DCA 2004); Haynes v. State, 106 So.3d 481 (Fla. 5th DCA 2013); Sanchez v. State, 979 So.2d 1004 (Fla. 3d DCA 2008); Labadie v. State, 840 So.2d 332 (Fla. 5th DCA 2003); Paul v. State, 830 So.2d 953 (Fla. 5th DCA 2002).

KHOUZAM, SLEET, and LUCAS, JJ„ Concur.


author: MORRIS, Judge.

text:
    PORT CHARLOTTE HMA, LLC, d/b/a Peace River Regional Medical Center, a Florida corporation for profit, Appellant/Cross-Appellee, v. Iala SUAREZ, individually, and as Parent and Natural Guardian of K.D.P., a minor, Appellee/Cross-Appellant.
    No. 2D15-3434.
    District Court of Appeal of Florida, Second District.
    Oct. 26, 2016.

      James E. Looper, Duane L. Cochenour, and Denise L. Dawson of Hall Booth Smith, P.C., Atlanta, Georgia, for Appellant/Cross-Appellee.
    Kimberly L. Boldt, Mario R. Giommoni, and Jeffrey D. Mueller of Boldt Law Firm, P.A., Boca Raton; Stuart N. Ratzan and Stuart J. Weissman of Ratzan Law Group, P.A., Miami, for Appellee/Cross-Appellant.
    Lincoln J. Connolly of Lincoln J. Connolly Trials & Appeals, P.A., Miami, for Amicus Curiae Florida Justice Association.
   MORRIS, Judge.

Port Charlotte HMA, LLC, doing business as Peace River Regional Medical Center (“Peace River”), appeals a final judgment entered in favor of Iala Suarez, individually and as the parent of K.D.P., in a medical malpractice action. Peace River raises nine issues on appeal, and Suarez raises two issues on cross-appeal. We find no merit in the majority of the issues raised, but we reverse the final judgment based on the trial court’s posttrial granting of a setoff on economic damages. Further, we write to express our agreement with the Fourth District’s conclusion that the statutory cap on noneconomic damages is unconstitutional.

I. FACTS

This case arises from the alleged negligence of several health care providers in connection with the obstetrical care and treatment of Iala Suarez during her pregnancy with her daughter, K.D.P. Suarez presented to Peace River three times between August 17, 2010, and August 29, 2010, with worsening symptoms of early onset preeclampsia. Preeclampsia is a common condition of pregnancy, but it is a progressive disease that is potentially life-threatening. Despite Suarez’s worsening symptoms and the increased risk of premature delivery, Suarez’s doctors did not promptly begin administering antenatal corticosteroids to enhance the development of K.D.P.’s brain and lungs. Suarez’s health care providers also failed to transfer her to a Level III facility equipped to handle a premature birth of less than 33 weeks gestational age. On August 29, 2010, K.D.P. was born at 26 weeks gestational age. K.D.P. has severe neurological impairments that render her physically unable to do basic things; she will be fully dependent on others for the rest of her life and will need 24-hour care. Suarez alleged that K.D.P.’s neurological impairments were caused by the negligence of her physicians, Peace River, and Peace River’s employees. Peace River contended that neither it nor its employees were negligent.

Prior to trial, Suarez settled with one of the physicians, Dr. Guzman. After a lengthy trial, the jury found that the negligence of both Peace River and another physician, Dr. Coffey, was the legal cause of K.D.P.’s injuries. The jury attributed 30 percent of the liability to Peace River and 70 percent of the liability to Dr. Coffey. The jury found that K.D.P. suffered total damages in the amount of $13,550,000, including $1,250,000, in non-economic damages, and that Suarez suffered total damages in the amount of $9,637,134, including $4,000,000 in noneco-nomic damages.

After trial, Peace River filed a motion to reduce jury verdict pursuant to section 766.118(3), Florida Statutes (2010), claiming that Peace River’s liability for noneco-nomic damages should be limited to $1.5 million. Suarez responded that the statutory cap on noneconomic damages is unconstitutional. The trial court denied Peace River’s motion and declined to apply the statutory cap in 766.118(3).

Peace River also filed a posttrial motion for setoff based on Suarez’s pretrial settlement with Dr. Guzman. The trial court granted Peace River’s motion and set off the economic damages against Peace River in the amount of $193,395.30. After applying the setoff to Peace River’s 30 percent liability for the total damages awarded by the jury to both Suarez and K.D.P., the trial court entered final judgment in favor of Suarez and K.D.P. and against Peace River in the amount of $6,762,744.90.

II. ANALYSIS

A. Statutory Cap on Noneconomic Damages

In denying Peace River’s request to apply the statutory cap for noneconomic damages provided for in section 766.118(3), the trial court relied on North Broward Hospital v. Kalitan, 174 So.3d 403 (Fla. 4th DCA 2015), review granted, No. SC15-1858. On appeal, Peace River contends that the statute is constitutional and that the Fourth District in Kalitan improperly extended the supreme court’s holding in Estate of McCall v. United States, 134 So.3d 894 (Fla.2014), to personal injury medical malpractice cases. Suarez responds that the trial court properly applied Kalitan, which in turn properly extended McCall to personal injury cases. The Florida Justice Association filed an amicus curiae brief in support of Suarez and K.D.P., arguing that section 766.118 is unconstitutional under Florida’s equal protection clause.

In McCall, the majority of the Florida Supreme Court held that the cap on wrongful death noneconomic damages in section 766.118 violates the equal protection clause of the Florida Constitution. 134 So.3d at 897, 901 (plurality opinion); id. at 916 (Pariente, J., concurring). The court concluded that

[t]he statutory cap on wrongful death noneconomic damages fails because it imposes unfair and illogical burdens on injured parties when an act of medical negligence gives rise to multiple claimants. In such circumstances, medical malpractice claimants do not receive the same rights to full compensation because of arbitrarily diminished compensation for legally cognizable claims. Further, the statutory cap on wrongful death noneconomic damages does not bear a rational relationship to the stated purpose that the cap is purported to address, the alleged medical malpractice insurance crisis in Florida.

Id. at 901 (plurality opinion); see id. at 919-20 (Pariente, J., concurring). The court reasoned that the statutory cap “irrationally impacts circumstances which have multiple claimants/survivors differently and far less favorably than circumstances in which there is a single claimant/survivor” because “under section 766.118, the greater the number of survivors and the more devastating their losses are, the less likely they are to be fully compensated for those losses.” Id. at 901-02 (plurality opinion); see id. at 921 (Par-iente, J., concurring). The court limited its analysis to wrongful death cases, noting that “[t]he legal analyses for personal injury damages and wrongful death-damages are not the same.” Id. at 900 n. 2 (plurality opinion).

However, in Kalitan, 174 So.3d at 404, the Fourth District considered whether, in light of McCall, “the caps on noneconomic damage awards in personal injury medi cal malpractice cases are similarly unconstitutional.” (Emphasis added.) Recognizing that “section 766.118 applies to both personal injury and wrongful death actions,” the court went on to conclude that “the section 766.118 caps are unconstitutional not only in wrongful death actionsE ] but also in personal injury suits as they violate equal protection.” 174 So.3d at 411. The court reasoned that there is no real distinction between the situation in that case—a single claimant in a personal injury case who suffers noneconomic damages in excess of the caps—and the situation in McCall—multiple claimants in a wrongful death case. Id. The court concluded that under section 776.118, “injured pai'ties with noneconomic damages in excess of the caps are not fully compensated.” Kalitan, 174 So.3d at 411.

Turning to the instant case, the trial court properly relied on Kalitan in denying Peace River’s motion to apply the statutory cap on noneconomic damages, as the opinion in Kalitan was the only district court opinion on the issue and was thus binding precedent. See Pardo v. State, 596 So.2d 665, 666 (Fla.1992) (“[I]n the absence of interdistrict conflict, district court decisions bind all Florida trial courts.”) (citing Weiman v. McHaffie, 470 So.2d 682, 684 (Fla.1985)). Further, we conclude that the Kalitan court properly applied the McCall holding to personal injury medical malpractice actions and we agree with the Fourth District on this issue.

B. Setoff Against Economic Damages

In granting Peace River’s motion for setoff, the trial court relied on section 768.81(3), Florida Statutes (2010), and D’Angelo v. Fitzmaurice, 863 So.2d 311 (Fla.2003). On cross-appeal, Suarez argues that because the legislature eliminated joint and several liability for economic damages after the D’Angelo decision, Peace River is responsible for the damages that correspond to its percentage of fault and Peace River is not entitled to a setoff based on a settlement Suarez reached with another defendant.

In D’Angelo, 863 So.2d at 314, the supreme court recognized that prior to the enactment of section 768.81, the existing setoff statutes “presuppose[d] the existence of multiple defendants jointly and severally liable for the same damages.” But in 1997, Florida enacted section 768.81(3), which read as follows:

APPORTIONMENT OF DAMAGES.— In cases to which this section applies, the court shall enter judgment against each party liable on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability; provided that with respect to any party whose percentage of fault equals or exceeds that of a particular claimant, the court shall enter judgment with respect to economic damages against that party on the basis of the doctrine of joint and several liability.

Thus, by enacting section 768.81, Florida “eliminate[d] joint and several liability for noneconomic damages and limitfed] joint and several liability for economic damages.” 863 So.2d at 314. The court held that based on the language of the statute,

it is appropriate to set off against the economic damages portion of an award against one tortfeasor in a medical malpractice action the economic damages portion of any settlement recovered from a settling tortfeasor for the same incident causing the injury where the settling tortfeasor was not included on the verdict form.

Id. at 319.

However, in 2006, the Florida Legislature amended section 768.81(3) and specifically deleted the provision applying joint and several liability to economic damages. Ch. 2006-6 at 191, § 1, Laws of Fla. The current version of this subsection now reads: “[T]he court shall enter judgment against each party on the basis of such party’s percentage of fault and not on the basis of the doctrine of joint and several liability.” § 768.81(3); see T & S Enters. Handicap Accessibility, Inc. v. Wink Indus. Maintenance & Repair, Inc., 11 So.3d 411, 412 (Fla. 2d DCA 2009) (recognizing that joint and several liability was eliminated in section 768.81(3)). Therefore, the holding in D’Angelo, which was based on specific language authorizing a setoff against economic damages on the basis of joint and several liability, does not apply in this case, and the trial court erred in applying a setoff to the economic damages awarded against Peace River.

III. CONCLUSION

We reverse the final judgment and the order granting setoff and remand for the trial court to reenter judgment in favor of Suarez without applying the setoff amount of $193,395.30. In all other respects, the rulings of the trial court are affirmed.

Affirmed in part; reversed in part; remanded.

KELLY and KHOUZAM, JJ., Concur.

      . Dr. Coffey was the on-call doctor during Suarez’s first two visits to Peace River, and he was also Suarez's treating obstetrician. This appeal does not involve Dr. Coffey, who dismissed his separate appeal of his adverse judgment in 2015.