author: SUAREZ, C.J. ROTHENBERG, J.

text:
    Thomas AMADOR, Appellant, v. The SCHOOL BOARD OF MONROE COUNTY, Florida, Appellee.
    No. 3D14-39
    District Court of Appeal of Florida, Third District.
    Opinion filed May 24, 2017
    Rehearing Denied August 23, 2017

      Herdman & Sakellarides and' Branden Vicari (Clearwater), for appellant.
    Vernis & Bowling of the Florida Keys, P.A. and Dirk M, Smits and Theron C. Simmons, for appellee.
    Before SUAREZ, C.J., and ROTHENBERG and LAGOA, JJ.
   SUAREZ, C.J.

Thomas Amador appeals from the final order of the School Board of Monroe County rejecting the findings of fact and conclusions of law of the Administrative Law Judge (“ALJ”) and terminating Ama-dor’s employment. We reverse. The record shows that the findings of fact and conclusions of law of the Administrative Law Judge were supported by competent, substantial evidence. As such, the School Board cannot override the findings and conclusions of the Administrative Law Judge.

In January 2012, the Superintendent of Schools for Monroe County filed an administrative Complaint against Thomas Ama-dor. The complaint did not allege any violation of, nor did it attach a copy of, the applicable collective bargaining agreement (“CBA”), The administrative Complaint instead alleged violations of two School Board of Monroe County (“School Board”) policies, policy item 4120, Employment of Support Staff, and policy item 4210, which lists-Standards of Ethical Conduct, Section 4120 provides a description of what constitutes a “regular” vs “support” employee and how the Superintendent is to regulate that employment. Policy 4210 establishes standards of ethical conduct “for all support members in the District who have direct access to students.” The Complaint .alleged that Amador violated policy 4120 by “willful violation of the policies of the School Board, including School Board Policy 4210 .... ” Regarding policy 4210, the Superintendent specifically alleged Ama-dor violated items (I), (L), and (Q).

Policy 4210 by its own terms, applies only to Support Staff Members who have direct access to students. Policy item 4210 (I) provides that a support staff member may not use institutional privileges for personal gain or advantage; Policy item 4210 (L) provides that the support staff member must maintain honesty in all dealings; Policy item 4210 (Q) provides that the support staff member may not submit fraudulent information on any document in connection with employment. The Superintendent alleged in the Complaint that Amador violated these specific ethical standards by failing to log accurate work hours and work locations thereby stealing time, inappropriately ' using a District-owned vehicle for personal use (only one incident was documented), and providing fraudulent information in vehicle use/mileage logs, again by failing to log accurate hours and travel locations.

Amador timely requested a formal administrative hearing, and the matter was referred to the Division of Administrative Hearings (“DOAH”). At the hearing, the ALJ admitted evidence, and heard argument and testimony from both parties. The ALJ issued an Order recommending dismissal of the Complaint because there was no record evidence of the terms or provisions of an applicable collective bargaining agreement. In the alternative, the ALJ recommended dismissal, specifically finding that no evidence was produced at the hearing to prove that Amador had “direct access” to the students as was required in order to have the provisions of Policy 4210 apply to him. The ALJ stated specifically:

Absence of record evidence concerning .the terms of the collective bargaining agreement required the dismissal of the Complaint. The undersigned further concluded, in the alternative, that dismissal of the Complaint was warranted in light of Petitioner’s failure to demonstrate the applicability of School Board Policy 4210—a policy that, by its express terms, applies only to support staff members with direct access to students. (No evidence was adduced during the final hearing that would support a finding that Respondent had such direct access.) In light of these deficiencies, the undersigned found it unnecessary—and therefore declined—to make specific findings concerning the underlying factual allegations.

And,

The record is devoid of evidence that Respondent has direct access to students, and the nature of Respondent’s position (an air-conditioning mechanic) does not permit the undersigned to infer as much; therefore, Petitioner has failed to demonstrate that Respondent is subject to the proscriptions of School Board Policy 4210.
6. In light of these unique circumstances—i.e., Petitioner has not proceeded against Respondent under the terms of the collective bargaining agreement (as it should have), but rather, under a school board policy that applies only to employees that have direct access to students—it is unnecessary to reach the merits of the underlying allegations of misconduct. Petitioner bears the burden of proof in this proceeding.

Because of the lack of evidence of the CBA or “direct access,” the ALJ choose not to address the factual allegations in the Complaint. The ALJ recommended that the Complaint against Amador be dismissed and Amador be immediately reinstated to his job. The School Board remanded the Recommended Order to DOAH with instructions that the ALJ make findings of fact and reach the merits based on the record evidence submitted by the parties, and submit an Amended Recommended Order based on those findings of fact.

On remand, the ALJ reviewed the entire record and transcripts from the previous hearing and found, once again, that the record was devoid of any evidence that Amador’s air-conditioning mechanical employment afforded him “direct access” to students as that phrase is used in School Board policy 4210. The ALJ concluded that

Assuming for the sake of argument that the CBA’s omission from the record is of no consequence, the rule under which Petitioner seeks to discipline Respondent (School Board Policy 4210) applies, by its express terms, only to support employees who have direct access to students. The record is devoid of evidence that Respondent has such access, and the nature of his position (an air-conditioning mechanic) does not permit the undersigned to infer as much. Petitioner has, therefore, failed to demonstrate that Respondent is subject to the proscriptions of School Board Policy 4210.

Regarding the fraudulent documentation allegation, the ALJ further concluded that the record evidence,

demonstrates, at most, that Respondent maintained inconsistent and incomplete records, took a late break on one occasion, and spent an extra 15 minutes away from the work site on a day— October 18, 2011, the date of his grievance hearing—when no repair tasks were to be performed. Petitioner has not proven, however, that these acts, while arguably insubordinate (a charge not brought in this proceeding), were fraudulent, dishonest, or constituted a misuse of institutional privileges for personal gain or advantage.

Once again, the ALJ recommended that the School Board enter a Final Order dismissing the administrative complaint and reinstating Amador. The Superintendent submitted exceptions to the Recommended Order and the Recommended Order on Remand arguing, based on the same record and facts as the ALJ, that the ALJ had arrived at the wrong factual and legal conclusions. Amador filed a response. The Monroe County School Board rejected the ALJ’s Recommended Order and findings of fact and granted all of the exceptions filed by the Superintendent and terminated Amador’s employment.

We review the Board’s final order pursuant to section 120.68, Florida Statutes (2014). The Board may not reject a hearing officer’s findings unless it first determines that they were not based on competent, substantial evidence, or that the proceedings before the hearing officer did not comply with the essential requirements of law. See McMillan v, Broward Cnty. Sch. Bd., 834 So.2d 903 (Fla. 4th DCA 2003); Gross v. Dep’t of Health, 819 So.2d 997 (Fla. 5th DCA 2002). Furthermore, when determining whether to reject or modify the findings of fact in a recommended order, the agency is not permitted to weigh the evidence, judge the credibility of the witnesses, or interpret the evidence to fit its ultimate conclusions. Gross, 819 So.2d at 1001. “In summary, if there is competent substantial evidence to support the findings of fact in the record ... the agency may not reject them, substitute its findings, or make new findings.” Id. Furthermore, factual issues susceptible of ordinary methods of -proof that are not infused with policy - considerations are the prerogative of the hearing officer as the finder of fact; it is the hearing- officer’s function to consider all the evidence presented, resolve conflicts, judge credibility of witnesses, draw permissible inferences from the evidence, and reach ultimate findings of fact based on competent, substantial evidence. Tedder v. Fla. Parole Comm’n, 842 So.2d 1022, 1025 (Fla. 1st DGA 2003). Thus, if the evidence presented supports two inconsistent findings, as it did in this case, it is the ALJ’s role to decide the issue one way or the other, and the agency may not reject the ALJ’s finding or otherwise interpret the evidence to fit its desired ultimate conclusion unless there is no competent, substantial evidence from which the finding could reasonably be inferred. See id.; Bridlewood Grp. Home v. Agency for Persons with Disabilities, 136 So.3d 652, 657 (Fla. 2d DCA 2013).

in its exceptions to the Recommended Order and Recommended Order on Remand from the ALJ, the School Board concluded that, given the same record evidence, the ALJ arrived at incorrect legal conclusions. On the same record, it concluded that Amador did have “direct access” to the students and concluded that Amador’s actions demonstrated willfulness, fraud, and intent to steal where, by contrast, based on the same record, the ALJ concluded that the evidence more likely reflected sloppy recordkeeping. Where reasonable people can differ about the facts, however, an agency is bound by the hearing officer’s reasonable , inferences based on the conflicting inferences arising from the evidence, Greseth v. Dep’t of Health &. Rehab. Servs. 573 So.2d 1004, 1006-1007 (Fla. 4th DCA 1991). See Resnick v. Flagler Cnty. Sch. Ed., 46 So.3d 1110, 1112-13 (Fla. 5th DCA 2010) (“In a fact-driven case such as, this, where an employee’s conduct is at issue,, great weight is given to the findings of the [ALJ], who has the opportunity to hear the witnesses’ testimony and evaluate their credibility.”); Stinson v. Winn, 938 So.2d 554, 555 (Fla. 1st DCA 2006) (“The [ALJ] is entitled to rely on the testimony of a single witness even if that testimony contradicts the testimony of a number of other witnesses.”).

Further,

[w]e recognize the temptation for agencies, viewing the evidence as a whole, to change findings made by a hearing officer that the agency does not agree with. As an appellate court, we are sometimes faced with affirming lower tribunal rulings because they are supported by competent, substantial evidence even though, had we been the trier of fact, we might have reached an opposite conclusion. As we must, and do, resist this temptation because we are not the trier of fact, so too must an agency resist this temptation since it is not the trier of ordinary factual issues not requiring agency expertise.

Heifetz v. Dep’t of Bus. Regulation, Div. of Alcoholic Beverages & Tobacco, 475 So.2d 1277, 1282 (Fla. 1st DCA 1985). We would add that this is not a case where an agency requires deference based on its own expertise; such deference is not applicable to disciplinary proceedings based on an alleged breach of a broad standard of conduct, such as Amador is alleged to have violated. See Gross, 819 So.2d at 1004. Thus, upon careful review of the entire record we conclude that competent substantial evidence supports the ALJ’s findings and recommendation, We -reverse the School Board’s Final Order and remand for entry of an order adopting the ALJ’s Recommended Order on Remand.

Reversed and remanded.

LAGOA, J,, concurs.

ROTHENBERG, J.

(dissenting).

Thomas Amador. (“Amador”) .appeals from the final order issued by the State of Florida’s Division of Administrative Hearings (“DOAH”), rejecting the Administrative Law Judge’s (“ALJ”) Recommended Order on Remand. Specifically, the ALJ recommended: (1) dismissal of the administrative complaint filed against Amador under the School Board of Monroe County Bylaws and Policies and various state statutes; and (2) immediate reinstatement of Amador’s employment. Because:. (1) the complaint alleges violations of both School Board Policy 4210 and 4120; (2) the ALJ improperly limited, his review to School Board Policy 4210; and (3) the record supports termination under both School Board Policy 4210 and 4120, DOAH’s order terminating Amador’s employment should be affirmed. • ■

' The majority opinion recognizes that the complaint alleges violations of both School Board Policy 4210 and 4120. The majority opinion, however, suffers from the same infirmity as the ALJ’s Recommended Order on Remand—it' fails to address the violations of School Board Policy 4120, and limits its review to the ALJ’s.findings regarding School Board Policy 4210. For the reasons that'follow, I disagree with the majority ’ opinion’s findings regarding School Board Policy 4210, and because the majority opinion has found-no error as to DOAH’s findings regarding School Board Policy 4120, affirmance is required.

The Factual and Procedural Background

Amador was employed by the Monroe County School Board as an air conditioning mechanic from 2006 through 2012. During his employment, Amador’s performance steadily declined. The record conclusively reflects that Amador received unfavorable evaluations, reprimands, warnings, and both informal and formal discipline on a number of occasions. Specifically, Amador was counseled and disciplined numerous times for: failing to follow written procedures, policies, and directions; showing up late for work; not being at work during working hours; not keeping proper and accurate logs; and other acts of insubordination.

For example, in August’of 2008, Amador was suspended for insubordination due to belligerent and disruptive conduct. He was also suspended for three days in 2009 for leaving the workplace during work hours and for theft of time. During the 2009 disciplinary process, Amador was informed that he must notify his supervisor or secretary if he was going to be away from the workplace. In August of 2010, Amador was disciplined for failing to return to work after expiration of an approved leave. On February 8, 2011, Jeff Barrow, the Assistant Director of Facilities, sent Amador a written warning.emphasizing the need for Amador to keep accurate truck logs.and that his failure to do so would lead to disciplinary action against him. On October 6,2011, Mr. Barrow sent Amador a written memo warning Amador that he needed to “[g]et to work on time and get out to work in a timely manner.”

In January of 2012, Monroe County’s Superintendent of Schools filed an, administrative complaint seeking termination of Amador’s employment. As the majority opinion readily concedes, the complaint alleges violations under both section 4120 and section 4210, with specific references to subsection of section 4210,1, L, and Q of The School Board of Monroe County Bylaws and Policies, along with various state statutes. The complaint alleges violations “including but .not limited to: Theft of, time; inappropriate use of a District owned vehicle; Insubordination; and Fraudulent statements in required District paperwork and logs,”

Specifically the complaint alleges the following:'

Petitioner, DR. JESUS JARA, Superintendent of Schools of Monroe County, Florida, files this Administrative Complaint, pursuant to Chapters 120, 1001 and 1012, Florida Statutes (2003), Rules 6B-1.001, 6B-1.006, and 6B-4.009, Florida Administrative Code, and the Policies of the School District of Monroe County, Florida and states as follows:
6. At all times pertinent hereto, the Respondent was employed as an Air-conditioning Mechanic in the Upper Keys in the Monroe County School District.
7. On November 17th, 2011 Jeff Barrow (Respondent’s supervisor) met with Respondent, THOMAS AMADOR, to discuss allegations that he violated School Board Policy, by, including but not limited to: Theft of time; Inappropriate use of a District owned vehicle; Insubordination; and Fraudulent statements in required District paperwork and logs.
8. School Board Policy provides 4120 provides;
4120-EMPLOYMENT OF SUPPORT STAFF
Support employees include all those employees who work in noninstructional, noncontracted roles and serve at the pleasure of the School Board subject to dismissal, transfer, promotion, or resignation and the provisions of the collective bargaining agreement.
Any support staff member’s misstatement of fact material to qualification for employment or the determination of salary shall be considered to constitute grounds for dismissal.
All support personnel shall become familiar with the policies of the Board and other such policies, regulations, memo-randa, bulletins, and handbooks that pertain to their duties in the District. Any support staff member employed by the Board who shall be guilty of any willful violation of the policies of the Board shall be guilty of gross insubordination and shall be subject to dismissal or such other lesser penalty as the Board may prescribe, (emphasis added)
9. That the Respondent violated School Board Policy 4120 by willful violation of the policies of the Board, including School Board Policy 4210 and is subject to dismissal for such violation.
10. School Board Policy 4210, Entitled Standards of ethical conduct provides in relevant part;
4210—STANDARDS OF ETHICAL CONDUCT
An effective educational program requires the services of men and women of integrity, high ideals, and human understanding. The School Board expects all support staff members to maintain and promote these essentials.
Furthermore, the Board hereby establishes the following as the standards of ethical conduct for all support staff members in the District who have direct access to students:
A support staff members with direct access to students shall:
I. not use institutional privileges for personal gain or advantage.
L. maintain honesty in all dealings.
Q. not submit fraudulent information on any document in connection with employment.

Thus, as the majority opinion recognizes, the administrative complaint alleges that Amador “violated School Board Policy 4120 by willful violation of the policies of the Board, including School Board Policy 4210 and is subject to dismissal for such violation.” The allegations in the complaint charging theft of time identify two specific dates (October 18, 2011 and October 21, 2011), provide the grounds for disciplinary action, and list the prior notices Amador was given regarding this issue. Amador’s inappropriate use of District-owned vehicles is also alleged. Specifically, the complaint alleges that during the thirteen days examined, there were 205 unaccounted for miles on the truck Amador drove, the locations Amador claimed to have worked at on his truck logs did not match the locations he listed on his daily log sheets/work orders, and Amador was seen in his District-owned vehicle at locations unrelated to work. Lastly, the complaint listed the various instances of conduct constituting fraud.

Amador requested, and he received, an administrative hearing, after which the ALJ issued a recommended order. Despite the School Board’s January 19, 2012 formal written notice to Amador that he was being suspended for: (1) insubordination under section 4120; and (2) willfully violating section 4210 I, L., and Q., with a recommendation for termination, and despite the fact that the administrative complaint filed on the same date alleges the same violations with more specificity, the ALJ found that the complaint to terminate Amador’s employment was based solely on alleged violations of School Board Policy 4210. The ALJ then concluded that School Board Policy 4210 only applies to employees with direct access to students, there was no evidence that Amador had direct access to students, and thus it was unnecessary to reach the merits of the School Board’s claims. Based on these findings, the ALJ recommended dismissal of the complaint and reinstatement of Amador’s employment.

The School Board timely filed its exceptions to the recommended order. Among its exceptions, the School Board argued that the ALJ erred by: finding that School Board Policy 4210 did not apply to Amador as Amador’s duties placed him in positions where he had direct access to students; not considering School Board Policy 4120, where the complaint contained allegations and there was evidence presented regarding the violation of School Board Policy 4120; and finding that the failure to attach the collective bargaining agreement to the complaint was fatal.

Based on the School Board’s exceptions and the ALJ’s failure to consider the evidence, DOAH remanded the case back to the ALJ to rule on the merits of the underlying allegations of misconduct as required by Rule 28-106.216 of the Florida Administrative Code. On remand, rather than following DOAH’s directive and ruling on the underlying allegations of misconduct alleged in the complaint, the ALJ issued a Recommended Order on Remand which again failed to analyze the evidence under either School Board Policy 4120 or 4210 and again recommended dismissal of the complaint and reinstatement of Ama-dor’s employment. The ALJ’s recommendations on remand were based, in part, on his findings that Amador was not charged with insubordination; School Board Policy 4210 only applies to employees who have direct access to students and “[t]he record is devoid of evidence that [Amador] has such access”, and the failure to refer to or include the collective bargaining agreement as a part of the record was a fatal error.

The School Board filed its exceptions to the ALJ’s recommendations on remand. The School Board disputed the ALJ’s interpretation of “direct access” in School Board Policy 4210, identified evidence in the record showing that Amador had direct access to the students, and therefore objected to the ALJ’s finding that School Board Policy 4210 did not apply to Ama-dor. The School Board additionally excepted to the AL J’s findings that the complaint to terminate Amador’s employment was based solely on alleged violations of School Board Policy 4210 and that dismissal of the complaint was required because the collective bargaining agreement was not included in the record. Lastly, the School Board claimed that there was competent substantial evidence in the record that Amador’s conduct constituted insubordination in violation of School Board Policy 4120.

DOAH ultimately issued a final order, accepting the School Board’s exceptions and terminating Amador’s employment with the School Board of Monroe County. It is this order which Amador now appeals.

ANALYSIS

A. Does School Board Policy 4210 Apply to Amador and if so, did Amador violate this Policy?

School Board Policy 4210 sets forth the standards of ethical conduct for support staff members who have direct access to students. As previously stated, the School Board alleged that Amador violated the following standards:

I. not use institutional privileges for personal gain or advantage.
L. maintain honesty in all dealings.
Q. not submit fraudulent information on any document in connection with employment. . . '

Because “direct access” is not defined, the parties disagreed on how to apply this provision and whether the evidence established the requisite degree of student access.

Although the ALJ did not attempt to determine what “direct access” means, in his" recommended order on remand, the ALJ concluded that School Board Policy 4210 did not apply to Amador because “[t]he record is devoid of evidence that [Amador] has such Access, and the nature of his position (an air-conditioning meóhanic) does not permit the undersigned to infer as much.” Because the record does not support the ALJ’s finding on this point, DOAH did not erf by adopting the School Board’s exception to this finding.

The record established that Amador often maintained and repaired air conditioning units at District Schools while school was in session and while students were present. The School Board noted that the Jessica Lunsford Act and section 1012.465(1), Florida Statutes, require background ■ screening for “noninstructional school district employees or contractual personnel who are permitted access on school grounds when students are present, who have direct contact with students or who have access to or control of school funds.” The School Board therefore argued that if the Jessica Lunsford Act and section 1012.465(1) apply to Amador because his employment permits access on school grounds -when students are present, the ethical standards set forth in School Board Policy 4210 should be similarly, applied to Amador. DOAH agreed with the School Board.

The majority does not address the undisputed record evidence that Amador, who was responsible for the maintenance of air conditioning units on school grounds, had direct access to students because he worked outside and inside schools during school hours while students were present. Instead the majority merely relies on the ALJ’s conclusion that there was no evidence that Amador had direct accéss to students. However, the ALJ either ignored the undisputed evidence or concluded that working in areas while students, are present is not direct access. In either event, because working inside schools during school hours in areas where students are present obviously placed Amador in the category of employees who have direct access to students, the record did not support the ALJ’s determination. Thus, DOAH was not required to adopt this finding by the ALJ and properly adopted the School Board’s exceptions to this finding.

B. Was School Board Policy 4120 properly pled?

As the majority concedes, the answer to this question is “yes.” The complaint alleges in paragraph 7, that Jeff Barrow, Ama-dor’s supervisor, met with Amador on November' 17⅛-2011, to discuss allegations that Amador “violated School Board Policy, by, including but not limited to: Theft of time; Inappropriate use of District owned vehicle; Insubordination; and Fraudulent statements in District paperwork and logs.” Paragraph 8 of the complaint recites the relevant provisions of School Board Policy 4120, and paragraph 9 of the complaint alleges that Amador violated School Board Policy 4120;

One of the relevant provisions of School Board Policy 4120 included in the complaint specifies: :

All support personnel shall become familiar with the policies of the Board and other such policies, regulations, memo-randa, bulletins, and handbooks that pertain to their duties in the District. Any support staff member employed by the Board who shall be guilty of any willful violation of the policies of the Board shall be guilty of gross insubordination and shall be subject to dismissal or such other lesser penalty as the Board may prescribe.

(emphasis added). Further, paragraph 9 of the complaint states that Amador “violated School Board Policy 4120 by willful violation of the policies of the Board, including School Board Policy 4210 and is subject to dismissal for such violation.” (emphasis added). It is therefore clear that the complaint alleges violations of both School Board Policy 4210 and School Board Policy 4120. It is also clear that DOAH’s finding that the ALJ failed to acknowledge that Amador was subject to dismissal under School Board Policy 4120, not just 4210, is supported by the record.

C. Does a finding that Amador did not have “direct access” to the students, as required by School Board Policy 4210, have any relevance to the violations of School Board Policy 4120 alleged in the complaint?

The majority opinion makes the same mistake the ALJ made. After concluding that School Board Policy 4210 only applies to support staff with direct access to students and that Amador did not have that direct access, the ALJ and the majority have failed to address Amador’s clear violations of School Board Policy 412Q, which, unlike School Board Policy 4210, does not require direct access to students. Whereas School Board Policy 4210 limits its application to support staff with direct access to students, School Board Policy 4120 applies to all support staff.

, School Board Policy 4120 states the following:

Support employees include all those employees who work in noninstructional, noncontracted roles and serve at the pleasure of the School Board subject to dismissal, transfer, promotion, or resignation and the provisions of the collective bargaining agreement.
Any support staff member’s misstatement of fact material to qualification for employment or the determination óf salary shall be considered to constitute grounds for dismissal.
All support personnel shall 'become familiar with the policies of the Board and other such policies, regulations, memo-randa, bulletins, and handbooks that pertain to their duties in the District. Any support staff member employed by the Board who shall be guilty of any willful violation of the policies of the Board shall be guilty of gross insubordination and shall be subject to dismissal or such other lesser penalty as the Board may prescribe, (emphasis added)

There is no dispute that Amador was a support staff employee. DOAH found that Amador violated School Board Policy 4120 by willfully violating the policies of the Board and that he was guilty of gross insubordination.

D. Is there competent substantial evidence to support DOAH’s finding that Amador violated School Board Policy 4120?

As will be detailed below, Amador habitually clocked in for work late, took unauthorized breaks, and failed to keep accurate work and vehicle .logs. The evidence of these violations was unrefuted. Thus, DOAH’s finding of gross insubordination is supported by competent substantial evidence.

Mr. Barrow testified that Amador was required to clock into work by 7:00 a.m., and he was entitled to take a one-hour lunch break, commencing between the hours of 11:00 a.m. and 1:00 p.m., plus two fifteen-minute breaks to be taken at around 9:00 a.m. and 2:00 p.m. each day. Employees are permitted to leave their work area for lunch so long as they return within one hour. A lunch break taken by maintenance employees later than 1:00 p.m. requires approval from their supervisor, Jeff Barrow, and break times cannot be added to lunch time. Mr. Barrows confirmed that both the School Board’s policies and the collective bargaining agreement prohibit extending a meal break by combining the break periods, and he testified that this prohibition was discussed at meetings he had with Amador. Amador was also required to keep accurate daily work logs and vehicle logs.

The unrebutted evidence established that, although Amador was regularly advised that he needed to report to work on time, he clocked in late for work thirty-one out of the thirty-six days monitored by the School Board, between November 22, 2010 and January 27, 2011. Additionally, on October 18, 2011, a day in which Amador’s conduct was being monitored by the School Board, Amador attended a meeting in Key West that Concluded at 11:30 a.m. but Amador did not return to work until just before 4:00 p.m. to clock out for the day. Even if Amador’s explanation regarding October 18, 2011 is accepted as true, by his own admission, he took an unapproved late lunch that extended past the one-hour limit.

The unrebutted physical evidence also established that Amador failed to keep accurate work and vehicle logs. His work and vehicle logs did not match. For example, his vehicle logs for October 4, 10, and 11 of 2011 list school locations where Ama-dor had no work tasks—a fact established by the work orders and daily logs for those dates, and although Amador claimed on his daily work log for October 13, 2011 that he performed tasks at two schools, his vehicle log for that date is blank. In fact, the evidence established fifty-four unexplained discrepancies between Amador’s work logs and vehicle logs.

Each day, after clocking in for work, Amador was required to monitor the temperatures by computer for his assigned schools and then complete any paperwork associated with the repairs he had made on the previous day. The time spent on these tasks were reported on Amador’s work log. Although these tasks, together, should take less than one hour, and Ama-dor was required to document accurately the time he actually spent, his entries on every log sheet for these tasks was two hours. Additionally, the unrefuted evidence is that these log entries were photocopied.

School Board Policy 4120 required Ama-dor to be familiar with the policies and regulations that pertained to his duties. Amador’s duties included reporting for work on time, accurately reporting the time he spent on each task, keeping accurate work and vehicle logs, obtaining prior permission to take a late lunch, and limiting his lunch breaks to one hour. The unrefuted evidence is that Amador was aware of each of these requirements. He was actually previously warned and even suspended for earlier violations of these requirements. The unrefuted evidence also showed that despite prior warnings, Ama-dor regularly reported to work late and habitually did not keep accurate work and vehicle logs. Thus, DOAH’s finding of gross insubordination is supported by competent substantial evidence, and because termination of Amador’s employment is a penalty option based on a violation of School Board Policy 4120, DOAH’s order terminating Amador’s employment should be affirmed.

E. The majority’s failure to address the violations of School Board Policy 4120

The majority opinion appears to have mistakenly conflated the requirements and limiting language of School Board Policy 4210 with School Board Policy 4120 and has omitted any analysis or explanation for its reversal of the School Board’s termination of Amador’s employment based on Amador’s violations of School Board Policy 4120. The majority opinion then finds that the ALJ’s findings and recommendations are supported by competent substantial evidence, and thus the majority concludes that DOAH was required to adopt them. However, the ALJ did not address School Board Policy 4120, nor evaluate the evidence, which was mainly unrefuted, regarding the violations of School Board Policy 4120. It is therefore difficult to understand how the majority reached its conclusion that the ALJ’s findings and recommendations relevant to School Board Policy 4120 was supported by competent substantial evidence.

While I agree with the general principles regarding the adoption of a hearing officer’s findings, these general principles do not apply here where the hearing officer failed to make any findings as to the misconduct alleged in the complaint specific to School Board Policy 4120, despite DOAH’s two directives to the ALJ to make this finding.

F. Does the failure to reference the collective bargaining agreement in the complaint or include it in the record require dismissal of the complaint?

The ALJ answered this question in the affirmative. DOAH, by adopting the School Board’s exceptions, however, concluded otherwise. Although the majority has failed to address his issue, DOAH clearly reached the correct conclusion. Florida Administrative Code Rule 28-106.2015 sets forth the pleading requirements for an administrative complaint. Rule 28-106.2015 does not include the requirement to attach or reference the collective bargaining agreement in an administrative complaint. Thus, dismissal of the complaint was not required based on these arguments. Additionally, any defect in the complaint was waived by Amador.

Rule 28-106.2015 states, in pertinent part:

(4) The agency’s administrative complaint shall contain:
(a) The name of the agency, the respondent or respondents against whom disciplinary action is sought and a file number.
(b) The statutory section(s), rule(s) of the Florida Administrative Code, or the agency order alleged to have been violated.
(c) The facts or conduct relied on to establish the violation.
(d) A statement that the respondent has the right to request a hearing to be conducted in accordance with Sections 120.569 and 120.56, F.S., and to be represented by counsel or other qualified representative.

The complaint complied with each of these provisions. If Amador wished to attack the sufficiency of the complaint, then he was required to file a motion to dismiss the complaint pursuant to Florida Administrative Code Rule 28-106.204(2) within twenty days of the assignment of an ALJ in a DOAH proceeding. Because Amador failed to file a motion to dismiss the complaint, he waived the right to challenge the sufficiency of the complaint based on the failure to reference or attach the collective bargaining agreement.

CONCLUSION

The ALJ failed to consider the evidence in this case despite DOAH’s specific instructions to the ALJ on remand. The ALJ’s failure to consider evidence is based on its incorrect findings that: (1) School Board Policy 4120 was not properly pled in the complaint; (2) School Board Policy 4210 could not be applied because there was no evidence that Amador had direct access to students; and (3) the School Board’s failure to reference or attach the collective bargaining agreement precluded review. However, as the majority concedes, the complaint clearly and unequivocally charged Amador with violating both School Board Policy 4210 and 4120. Second, the record evidence clearly established Amador’s direct access to students. The undisputed evidence was that Amador maintained and repaired air conditioning units inside and outside the school buildings while school was in session and with students present. Third, even if we were to conclude that DOAH erred by failing to adopt the ALJ’s findings as to School Board Policy 4210, we must still affirm the order under review because the ALJ made no findings as to School Board Policy 4120 and DOAH’S findings as to School Board Policy 4120 are supported by competent substantial evidence. Fourth, there is no requirement that the collective bargaining agreement be referenced in or attached to the complaint, and Amador waived any objection by failing to file a motion to dismiss the complaint. Accordingly, the fir nal judgment terminating Amador’s employment should be affirmed.

Although the majority appears to base its decision to reverse the final judgment upon the premise that DOAH improperly reweighed the evidence, DOAH did not reweigh- the evidence. It simply reviewed the evidence itself after the ALJ refused to do so even after DOAH instructed the ALJ to reach the merits on remand.. A “reweighing” of the evidence infers that the evidence was initially weighed by the ALJ. Since the ALJ failed to reach the merits after directed to do so on remand, he did not weigh the evidence. DOAH was therefore left with no choice but to review the record and make these determinations itself.

Accordingly,. I dissent.

      . School Board Policy 4120, Employment of Support Staff, provides, in part:
      Support employees include all those employees who work in noninstructiónal, non-contracted roles ,.. subject to dismissal transfer, promotion, or resignation and the provisions of the collective bargaining agreement, (emphasis added). 4* * *
      Any support staff member employed by the Board who shall be guilty of any willful violation of the policies of the Board shall be guilty of gross insubordination and shall be subject to dismissal or such other lesser penalty as the Board may prescribe, (emphasis added).

      . School Board Policy 4210, Standards of Ethical Conduct provides, in relevant part (specifically, subsections I, L, and Q):
      An effective educational program requires the services of men and women of integrity, high ideals, and human understanding. The School Board expects all support staff members to maintain and promote these essentials, Furthermore, the School Board hereby establishes the following as the standards of ethical conduct for all support staff members in the, District who have direct access to students: A support staff member with direct access to students shall:
      I. not use institutional privileges for personal gain or advantage.
      L. maintain honesty in all dealings.
      Q. not submit fraudulent information on any document in connection with employment.
      (emphasis added)

      . The School Board argued on appeal that the evidence can only be interpreted to conclude that Amador's job put him in “direct contact” with students pursuant to section 1012.315, Florida Statutes, Level 2 screening under the Jessica Lunsford Act, and thus Policy 4120 and 4210 applies to Amador, who works on air-conditioning and refrigeration units on/inside school grounds. We note from the record that this argument was not pled or raised below in either of the two reviews presented to the ALJ, and only mentioned for the first time in the School Board’s Exceptions to the Recommended Order on Remand. We thus decline to consider it for the first time on appeal. See Vorbeck v. Betancourt, 107 So.3d 1142, 1147-48 (Fla. 3d DCA 2012). As Florida courts have long recognized, “[i]n order to be preserved for further review by a higher court, an issue must be presented to the lower court and the specific legal argument or ground to be argued on appeal or review must be part of that presentation.” Sunset Harbour Condo. Ass'n v. Robbins, 914 So.2d 925, 928 (Fla. 2005) (quoting Tillman v. State, 471 So.2d 32, 35 (Fla. 1985)).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Felisha RAMSEY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-3111
    District Court of Appeal of Florida, First District.
    Opinion filed May 25, 2017.
    Andy Thomas, Public Defender, and Joel Arnold, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General; Daniel Krumbholz and Thomas H. Duffy, Assistant Attorneys General, Tallahassee, for Appellee.
   PER CURIAM.

AFFIRMED. See Williams v. State, 202 So.3d 917 (Fla. 4th DCA 2016) (holding that absconding from supervision is an- independent basis for tolling probation).

ROWE, RAY, and M.K. THOMAS, JJ., CONCUR.


text:
    LEON COUNTY, Florida, a Political Subdivision of the State of Florida, Appellant, v. Jan K. SEBASTIAN, Appellee.
    CASE NO. 1D17-1201
    District Court of Appeal of Florida, First District.
    Opinion filed May 25, 2017
    Michael J. Roper and Dale A, Scott of Bell & Roper, P.A., Orlando, for Appellant.
    No appearance for Appellee.
   PER CURIAM.

DISMISSED. See generally, Henderson v. Tandem Health Care of Jacksonville, Inc., 898 So.2d 1191, 1192 (Fla. 1st DCA 2005) (dismissing appeal because order requiring parties to reschedule arbitration did not determine entitlement to arbitration, which was made in earlier referral order, “and the trial court was not required to make this finding anew”).

ROBERTS, C.J., MAKAR and JAY, JJ., CONCUR.


text:
    Robert Dale PURIFOY, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D14-4007
    District Court of Appeal of Florida, First District.
    Opinion filed May 25, 2017

      Michael Ufferman of Michael Ufferman Law firm, P.A., Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Michael L. Schaub, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Robert D. Purifoy appeals his judgment and sentence for first-degree murder, attempted first-degree murder, and tampering with evidence, stemming from a shooting incident. Purifoy raises three claims on appeal: (1) the trial court erred by allowing the State to introduce into evidence Purifoy’s clothes because the warrantless taking of Purifoy’s clothes from the hospital by law enforcement officers amounted to “a meaningful interference with his constitutionally protected possessory rights” pursuant to Jones v. State, 648 So.2d 669, 675 (Fla. 1994); (2) the trial court erred by preventing the defense from having access to the video surveillance equipment that was relied upon by the State; and (3) the trial court erred by denying Purifoy’s motion for judgment of acquittal because the State did not present facts inconsistent with Purifoy’s reasonable hypothesis of innocence. We affirm the second and third issues without comment, but the first issue warrants discussion.

I.

On a June evening in 2012, Justin Stanley and Purifoy got into a fight at a nightclub, during which Purifoy threatened to kill Stanley. About five months later in the early morning hours of November 6, 2012, Stanley was in bed asleep with Amber Johnson when his security alarm went off. He woke up, grabbed his firearm from his night stand, and saw someone in the house about six feet tall wearing a Halloween mask of some type, sweatshirt, long pants, gloves, and boots. The intruder shot at Stanley in the bed, so Stanley returned fire, claiming that one of his shots hit the intruder because the intruder stumbled as he took off running. Ms. Johnson died from one of the intruder’s shots. Stanley called 9-1-1 and was taken to Sacred Heart Hospital to treat a gunshot wound to his chest and arm.

An officer responded to Sacred Heart Hospital that same morning in reference to a walk-in patient, Purifoy, who had a gunshot wound to his upper abdomen and a “graze” to his thigh. The officer observed doctors and nurses removing Purifoy’s clothes in an emergency room bay. A nurse collected the clothing and put it in a bag at the foot of the stretcher, which was typical procedure. The officer stayed with the bag of clothing until the crime scene technician arrived. Once the technician arrived, he pointed to the clothing for the technician to take, which she did. At some point, Purifoy told the nurse that he was running away from a robbery when he was .shot, and also told another law enforcement officer who questioned him at the hospital that he had been robbed.

The jury found Purifoy guilty on all three counts, and he was sentenced to life on the murder and attempted murder counts, and five years’ imprisonment on the tampering count. This appeal ensued.

II.

We review the trial court’s ruling on Purifoy’s motion to suppress as a mixed question of law and fact. Connor v. State, 803 So.2d 598, 605-08 (Fla. 2001). The standard for reviewing facts is whether competent, substantial evidence supports the trial court’s factual findings; the trial court’s application of law is reviewed de novo. Id. Both the Fourth Amendment to the United States Constitution and article I, section 12 of the Florida Constitution, protect the people of this state from “unreasonable searches and seizures” of “their persons, houses, papers and effects.” The protection afforded by our state constitution is expressly limited to that afforded under the Fourth Amendment as interpreted by the United States Supreme Court. See Bernie v. State, 524 So.2d 988 (Fla. 1988); art. I, § 12, Fla. Const. (Article I, section 12 “right shall be construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.”). “As a general rule, a warrantless search or seizure is per se unreasonable, unless the search or seizure falls within one of the well established exceptions to the warrant requirement.” Jones v. State, 648 So.2d 669, 674 (Fla. 1994).

Under the open view doctrine, “objects such as weapons or contraband found in a ‘public place’ can be seized without a warrant.” Id. at 676. Our supreme court explained that:

this situation occurs when both the officer and the contraband are in an area where the defendant has no reasonable expectation of privacy. Because privacy rights are not implicated, the seizure of property in open view is presumptively reasonable, assuming there is ‘probable cause to associate the property with criminal activity.’ ”

Id. (internal citation omitted). Under the plain view doctrine, which differs from the open view doctrine, “if police are lawfully in a position from which they view an object, if its incriminating character is immediately apparent, and if the officers have a lawful right o'f access to the object [itself], they may seize it, without a warrant.” Id. at 677.

In Jones, the Florida Supreme Court dealt with a situation similar to the instant case. Jones was involved in a truck accident and taken to the emergency room and admitted to the hospital. Id. at 672, A detective and a lieutenant were sent to the hospital to question Jones whén they realized that the owner of the truck (who was not Jones) was missing. Id. While'in Jones’ private hospital room, the officers seized a bag of clothing placed in a corner; the clothing had been removed from Jones by hospital staff after the accident and put in the bag. Id. One officer testified that he decided the clothing should be seized “because, from his experience, he believed that the evidence taken from Jones’ clothing might assist in the search for the missing man,” and he was concerned it would disappear based on a deliberate or inadvertent act. Id. at 674. Jones was convicted of first-degree murder, robbery, and grand theft of a motor vehicle. Id. at 671.

On appeal, Jones argued that the trial court erred by denying his motion to suppress evidence that was seized from the hospital. Id. at 674-75. The State argued that the open view and plain view doctrines, among other exceptions, justified the seizure. But our supreme court rejected application of the open view doctrine because Jones’ hospital room was not a public place. Id. at 677 (Jones “had no reason to believe that third parties would enter his room to look for and seize his personal property.”). And even if the room.was a public place, the court was not convinced that “at the time of the seizure the officers had probable cause to associate the bag of clothing with criminal activity.” Id. The supreme court also rejected the plain view doctrine because “the officers had no .lawful right of access to the bag of elothing ... although the bag containing Jones’ clothing was unsealed, its contents were not apparent until [the officer] actually walked over to the bag, which was in the corner of the room, and looked into it.” Id. at 678. The court also rejected the doctrine because “the incriminating character of the clothing was not'‘immediately apparent.’ Even after [the officer] determined that the bag contained clothing, the probative value of the clothing did not become apparent until it was 'examined by an expert and the ‘mud’-was detected on Jones’ shoes and pants.” Id. at 677-78. Though the supreme court rejected the State’s arguments and found that the evidence ‘was illegally seized and the testimony relating to it should have been suppressed, it found the admission of the evidence harmless beyond a reasonable doubt based on several admissions by Jones to various culpable actions. Id. at 679.

Purifoy argues that the warrantless taking of his clothing from the hospital amounted to “a meaningful interference with his constitutionally protected posses-sory rights” in violation of the state and federal constitution, and that the State improperly relied on that evidence to obtain his convictions. The State argues that the officer had the right to seize the bag of clothing under the open view doctrine (public place + probable cause) because, under Buchanan v. State, 432 So.2d 147, 148 (Fla. 1st DCA 1983) (a pre-Jones case), before a defendant can challenge the legality of a search, he must have a reasonable expectation of privacy in that area, and there is, no reasonable expectation of privacy in a curtained-off area in a. busy hospital emergency room “where medical personnel [are] constantly walking in and out and where [a person can] expect to remain only a few hours at most.” As such, the officer could seize Purifoy’s bloody clothing—the State claims—because the emergency room bay was a public place where Purifoy had no reasonable expectation of privacy.

“A ‘search’ occurs when an expectation of privacy that society is prepared to consider reasonable is infringed. A ‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interests in that property.” Jones, 648 So.2d at 675 (quoting United States v. Jacobsen, 466 U.S. 109, 112, 104 S.Ct. 1652, 80 L.Ed.2d 85 (1984)). Although Jones involved a private hospital room, which is different than the hospital space implicated in this case, the guiding principle for seizures still stands that “to challenge a seizure, 'the defendant only need to establish that the seizure interfered with his or her constitutionally protected possessory interest. The infringement of privacy rights, while often a precursor to a seizure of property, is not necéssary to such a challenge.” Id. (emphasis added). The supreme court explained that “there clearly was a meaningful interference with his constitutionally protected possessory rights when [Jones’] effects were seized without a warrant.” Id. “Jones never gave up his possessory rights in his belongings prior to their seizure. Moreover, Jones’ clothing was returned to his immediate possession and control when it was placed in his room.” Id. The court further explained that “[b]e-cause Jones never voluntarily abandoned either his clothing or other effects, he had no reason to believe that his belongings would be turned over to police without his authorization. Even though hospital staff generally has joint access to and control of personal effects kept in a patient’s room, the staff cannot consent to the search or seizure of the effects because it has no right to mutual use of a patient’s belongings, as required.” Id. (citations omitted).

Here, even assuming that Purifoy did not have a reasonable expectation of privacy in the emergency room bay generally, which Jones explains is not necessary to such a challenge, he > never gave up his possessory rights to his clothing prior to their seizure. The bag of clothing stayed at the foot of his stretcher, and he did not abandon it or otherwise give permission for it to be taken; he did not lose his possessory' interest in his clothing simply because the clothing was in a public place. For example, when a person is in an airport, she does not lose possessory interest in luggage or a purse just because she is in a public place. This situation is different from that in Buchanan because Purifoy wasn’t hiding his clothing 'in the bag, like Buchanan was hiding drugs under the hospital mattress. And clothing,- by its very nature, is not contraband like drugs in which there is never a right to privacy. Warden, Md. Penitentiary v. Hayden, 387 U.S. 294, 311, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967) (“The seizure of contraband has been justified on the ground- that the suspect has not even a bare possessory right to contraband.”). Accordingly, Purifoy correctly argues that law enforcement meaningfully interfered with his constitutionally protected possessory rights of his clothing without a warrant.

But the State argues that the seizure of property in open view is presumptively reasonable if there is “probable cause to associate the property with criminal activity.” Jones, 648 So.2d at 676. (citing Payton v. New York, 445 U.S. 573, 587, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980)). The State claims that probable cause existed to associate the clothing with criminal activity because Purifoy .arrived at . the hospital with gunshot wounds shortly after the victim indicated in his 9-1-1 call that he may have shot the intruder, was wearing clothing with “blood on it and bullet holes,” and alleged “he was involved in a crime, albeit as a victim.”

This is sufficient. Purifoy was a self-described victim of a crime, evidence of which officers observed as hospital staff removed Purifoy’s bloody clothes prior to surgery. When the totality of the circumstances are considered, the bloody clothes are easily seen as direct evidence of a crime. That is so even if we put aside the inconsistencies about whether the clothing had bullet holes and whether the officer knew about the correlated timing of the victim’s 9-1-1 call and Purifoy’s arrival to the emergency room. Under the open view doctrine, the seizure of the bag of clothing was justified because, even though there was a meaningful interference with Puri-foy’s possessory right, there was probable cause to associate the bloody clothes with criminal activity. See Illinois v. Gates, 462 U.S. 213, 235, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (“[O]nly the probability, and not a prima facie showing, of criminal activity is the standard of probable cause.”). Law enforcement officers may not simply seize property from a person in a public place absent a showing—of the type made here—that probable cause exists that associates the property with a crime. Having determined that the open view doctrine applies, we need not address the plain view doctrine. Even if the seizure of his clothing from the hospital violated his Fourth Amendment rights, we view the error as harmless beyond a reasonable doubt given the other testimony and evidence adduced at trial. See, e.g., Bravo v. State, 65 So.3d 621 (Fla. 1st DCA 2011) (applying harmless error analysis in Fourth Amendment context).

III.

In conclusion, we find that the trial court did not err in admitting into evidence the bloody clothing in the bag taken from the stretcher in the emergency hospital bay. The judgment and sentence are affirmed.

AFFIRMED.

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


text:
    Eddie Jermain WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-1812
    District Court of Appeal of Florida, First District.
    Opinion filed May 25, 2017

      Andy Thomas, Public Defender, and David A. Henson, Winter Park, Assistant Public Defender, for Appellant.
    Pamela Jo Bondi, Tallahassee, Attorney General, and Julian E. Markham, Assistant Attorney General, for Appellee.
   PER CURIAM.

Eddie Jermain Williams seeks review of his conviction and sentence for robbery. He asserts that the court failed to determine his competency to stand trial after having reason to question whether he was competent. The state concedes that reversal is warranted. We agree and reverse.

Prior to trial, Appellant’s counsel filed a Motion to Appoint Expert(s) for Competency Evaluation, asserting that Appellant was unable to communicate with counsel about the facts of his case and understand the nature of the charges against him. The trial court appointed an expert to evaluate Appellant for competency to proceed. However, the record lacks any expert reports or findings of the trial court related to Appellant’s competency prior to trial.

“It is a due process violation to proceed against an incompetent criminal defendant.” Cotton v. State, 177 So.3d 666, 668 (Fla. 1st DCA 2015). If, after having reasonable grounds to question á defendant’s competency, “the trial court fails to hold a competency hearing or enter a written order of competency, reversal is required.” Brooks v. State, 180 So.3d 1094, 1095 (Fla. 1st DCA 2015). On remand, the trial court shall make a written determination as to whether Appellant was competent to stand trial. “If there is evidence that existed previously which supports a finding that [Appellant] was competent at the time of trial, the court may make a determination of competency, nunc pro tunc, with no change in the judgment.” Id. at 1096. If the court cannot retroactively determine Appellant’s competency at the time of the first trial, however, then it shall evaluate Appellant’s present competency and, if he is competent to proceed, conduct a new trial. See id.

REVERSED and REMANDED with directions.

WETHERELL, OSTERHAUS, and M.K THOMAS, JJ., CONCUR.


author: LOGUE, J.

text:
    City of Miami Mayor Tomás REGALADO, et al., Appellants, v. Erika VILA, et al., Appellees.
    No. 3D16-2659
    District Court of Appeal of Florida, Third District.
    Opinion filed June 7, 2017
    Rehearing Denied July 27, 2017
    Victoria Méndez, City Attorney, and Douglas A. Harrison, and Forrest L. Andrews, Assistant City Attorneys, for appellants.
    James C. Blecke, for appellees.
    Before SUAREZ, C.J., and LAGOA and LOGUE, JJ. ••
   LOGUE, J.

The City of Miami Mayor Tomás Rega-lado ¿ñd City of Miami City Manager Daniel J. Alfonso, nonparties to the underlying personal injury action, have filed a petition for writ of certiorari seeking review of the trial court’s order denying their .motions for protective order and compelling their depositions. We deny the petition.

In the underlying case, plaintiffs Erika Vila, Virmari Pettis, Maria Sosa, Barbara Weiss, and Mary Jo Weiss brought a personal injury action against defendants Lemoni Café, Inc., 3G Investment Group, Inc., Belony Alterma, and La Pizzeria Di Lemo.ni, Inc. The action arose from an October 4, 2014 incident in which several sidewalk diners at the Lemoni Café were injured when a vehicle crashed into them. Months before the incident, Lemoni Café and La Pizzeria Di Lemoni, Inc., were twice cited by the City of Miami’s Code Enforcement Board for operating an illegal sidewalk café. The citations were issued in December 2011 and March 2014. After the March 2014 citation, a Code Enforcement Board hearing, was scheduled for June 3, 2014, but it was continued and ultimately never held. Months later, the incident occurred.

As an affirmative defense, Defendants claim that the City of Miami was negligent by failing to properly maintain the roads, the intersection, and the area where the incident occurred, and by failing to control the traffic and speed of cars in that area. Plaintiffs have deposed at least seven City of Miami employees to determine whether the Mayor’s Office authorized the Lemoni Café to continue operating its sidewalk café and how Lemoni received a continuance of the June 2014 code enforcement hearing. In response to Plaintiffs’ notices to depose City of Miami Mayor Tomás Regalado and City Manager Daniel Alfonso, the City filed motions for protective orders. The motions argued that Plaintiffs cannot compel the mayor and city manager’s depositions because they failed to demonstrate that the mayor and city manager were uniquely able to provide relevant information which could not be obtained from other sources. Following a November 2016 hearing, the trial court denied the motions for protective orders and ordered that the depositions be completed. The City timely filed its petition for writ of certiorari and this court granted the City’s motion to stay the depositions.

Here, Plaintiffs seek to depose the may- or because the defendant cafés and landlord claim that after they received the citations, the mayor’s office permitted the illegal sidewalk cafés tp continue operating. Specifically, a representative for the landlord stated in deposition that a representative from the mayor’s office gave him this express permission. Plaintiffs seek to depose the city manager because after the incident, he investigated the matter to determine why the June 2014 hearing never occurred. And as the- past director of code enforcement stated in deposition, she was demoted by the city manager after the incident because she . “didn’t have the answers for why' this ease was not heard” by the Code Enforcement Board. In short, Plaintiffs seek “to discover how it was that Defendant Landlord obtained a special favor from the Mayor’s office (or possibly the City Manager) allowing the tenants to continue their illegal sidewalk cafes.”

Florida Rule of Civil Procedure 1.280(b) allows a party to discover “any matter, not privileged, that is relevant to the subject matter of the pending action” or which “appears reasonably calculated to lead to the discovery of admissible evidence.” “[Tjrial courts have broad discretion in overseeing discovery matters and in granting and denying motions for protective order.” Remington Lodging & Hosp., LLC v. Southernmost House, LTD, 206 So.3d 764, 764 (Fla. 3d DCA 2016).

We conclude that the trial court did not depart from the essential requirements of law in compelling the depositions of the mayor and city manager. Plaintiffs sought the discovery by first deposing seven City of Miami officials who presumably would have known how and why Lemoni Café’s illegal sidewalk café was permitted to continue operating after receiving two citations from code enforcement. Among these deposed' officials are the code enforcement director, a code enforcement supervisor, and a representative from the mayor’s office. But each official testified that they did not know. The City has failed'to identify a specific individual who could provide the information that Plaintiffs seek.

Petition denied.


author: LAGOA, J.

text:
    Alonso VALENCIA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-232
    District Court of Appeal of Florida, Third District.
    Opinion filed June 14, 2017
    Rehearing Denied August 21, 2017
    Alonso Valencia, in proper person.
    Pamela Jo Bondi, Attorney General, and Jill D. Kramer, Assistant Attorney General, for appellee.
    Before SUAREZ, C.J., and LAGOA and FERNANDEZ, JJ.
   LAGOA, J.

Alonso Valencia appeals the trial court’s order denying his post-conviction motion filed pursuant to Florida Rule of Criminal Procedure 3.850, or in the alternative, motion to amend judgment and sentence filed pursuant to Florida Rule of Criminal Procedure 3.800. We affirm the trial court’s order. We write only to commend the trial court on its well-written order, which facilitated this Court’s review.


text:
    COAST INVESTMENT GROUP, LLC, Appellant, v. David S. BAND, Appellee.
    Case No. 2D15-5725
    District Court of Appeal of Florida, Second District.
    Opinion filed June 16, 2017
    Brandon S. Vesely, Nicole M. Ziegler, and Shirin M. Vesely of Keane, Reese, Vesely & Gerdes, P.A., St. Petersburg; and Robert Persante, Darren M. Stotts, and Zackary Zuroweste of The Persante Law Group, P.A., Clearwater, for Appellant.
    Steven D. Hutton and Przemyslaw L. Dominko of Hutton & Dominko, PLLC, Sarasota, for Appellee.
   PER CURIAM.

Affirmed.

VILLANTI, C.J., and KELLY and BADALAMENTI, JJ., Concur.


author: SUAREZ, C.J.

text:
    JPAY, INC., Appellant, v. 10800 BISCAYNE HOLDINGS, LLC, Appellee.
    No. 3D16-1308
    District Court of Appeal of Florida, Third District.
    Opinion filed June 21, 2017
    Rehearing Denied September 15, 2017

      Law Offices of Jonathan A. Heller, PA and Jonathan A. Heller; Jay M. Levy, P.A. and Jay M. Levy, for appellant.
    The Bernstein Law Firm and Michael I. Bernstein and Brian G. Winger, for appel-lee.
    Before SUAREZ, C.J., and LAGOA and LOGUE, JJ.
   SUAREZ, C.J.

JPAY, Inc. [“JPAY] seeks to reverse a final order granting Appellee’s amended motion for summary judgment. We affirm.

In August 2007, Appellee landlord 10800 Biscayne Holdings [“Biscayne”] leased commercial office space to Appellant JPAY. The lease term was set to expire on September 14, 2015. JPAY failed to pay its rent, and vacated the premises in February 2013 prior to lease expiration. Biscayne sued JPAY for breach of the lease and sought damages for a late fee due for the January 2013 overdue rent, for failing to pay the February 2013 rent, and for continuing damages incurred by JPAY’s ‘abandonment of the lease agreement. Biscayne moved for partial summary judgment for unpaid rent through January 2014. JPAY moved for cross summary judgment claiming that the lease agreement had been terminated with Biscayne’s service of a 2013 three-day notice, and that Biscayne had retaken the leased premises thereby precluding any further recovery or acceleration of rent due under the remaining terms of the lease agreement.

At the February 12, 2014 hearing, Biscayne stated that it was not seeking, acceleration of the entire balance due under the lease, only what was due through “today.” The trial court (Arzola, J.) acknowledged that the lease had not been terminated, Biscayne was not seeking the accelerated amount, granted Biscayne’s motion for partial summary judgment as to liability for rent due from February 2013 through February, 12, 2014, and denied JPAY’s cross-motion for summary judgment. In the trial court’s February 18, 2014 Order memorializing that holding [“JPAY I”], the court did not state that the rent had been accelerated and entered judgment for rent due only through February 12, 2014, the date of the hearing. JPAY did not appeal from that order, and satisfied the judgment.

In October 2014, Biscayne filed a renewed motion for partial summary judgment seeking the unpaid rent due for each monthly breach that occurred after February 18 Order, beginning on March 1, 2014 through August 31, 2014. JPAY moved to strike on grounds that the February 18, 2014 Order was “final” and thus the trial court had no jurisdiction to hear any claim for damages accruing after that date. The trial court granted JPAY’s motion to strike for lack of jurisdiction, agreeing that the February 18, 2014 Order was a final order.

Biscayne then filed a new complaint [JPAY II] seeking damages for breach of the lease for overdue payments starting March 1, 2014 up to and including date of filing JPAY II. JPAY moved to dismiss and for final judgment, arguing that JPAY I was res judicata. At the hearing on these motions, JPAY asserted that Biscayne had requested the judgment for accelerated rent in JPAY I, and was thus precluded from seeking additional rents in JPAY II. On December 8, 2015, the trial court denied JPAY’s motions. JPAY then filed a petition for Writ of Prohibition in this Court seeking to reverse the December 8 Order, again arguing the trial court had no jurisdiction because Biscayne actually sought and got accelerated rent in JPAY

I. This Court denied the petition.

Biscayne sought final summary judgment for the full amount dué under the lease for each continuing monthly breach from filing of JPAY II through the lease expiration date of September 14, 2015. JPAY answered and also moved for summary judgment. At the April 1, 2016 hearing, the trial court entered final summary judgment in Biscayne’s favor. JPAY appeals.

ACCELERATION ISSUE:

The record is clear that Biscayne did not seek acceleration under the lease in JPAY I. The Complaints in both JPAY I and II contain no, language of acceleration, and instead set forth clear claim for damages for periods of breach of monthly rent due under the lease:

December 2014 Complaint [JPAY I]:
25. Plaintiff demands judgment in an amount to be determined at trial for rent due from March 1, 2014 through December 31, 2014, plus penalties, interest, and attorney’s fees and costs pursuant to Paragraph 22(f) of the Lease Agreement.
June 2015 Amended Complaint [JPAY II]:
14. In the First Action,. Plaintiff moved for partial summary judgment for a determination on Defendant’s liability to Plaintiff for breach of the Lease, and for rent due and owing up through February 28, 2014, as any rent due subsequent thereto had yet to accrue based on Plaintiffs retaking of the Leased Premises for the benefit of Defendant.
15. The Court in the First Action found that Defendant breached the Lease, and on February 18, 2014, entered an order awarding Plaintiff damages based on Defendant’s breach of the Lease up through February 12, 2014 (copy attached as Exhibit D).
16. Subsequent to the entry of the February 18 Order, Plaintiff continued to send Defendant monthly invoices for rent due under the Lease.
17. Plaintiff now seeks rent due under the Lease from March 1, 2014 through May 31, 2015, as well as attorney’s fees and costs due under the Lease.

The language of acceleration, is not used, and the substance of the claims clearly indicate breach of monthly installments of rent due. .

On breach by a lessee, a lessor has the choice of three alternative courses of action: 1) the lessor may treat the lease as terminated and retake possession for his own account, thus terminating any further liability on the part of the lessee; or 2) the lessor may retake possession of the premises for the account of the lessee, holding the lessee liable for the difference between rental stipulated to be paid under the lease agreement and what, .in good faith, the lessor is able to recover from a reletting; or 3) the lessor may stand by and do nothing, holding the lessee liable for the rent due as it matures, which means all remaining rent due if there is an acceleration clause and the lessor chooses to exercise . the right to accelerate. Coast Fed. Sav. & Loan Ass’n v. DeLoach, 362 So.2d 982, 984 (Fla. 2d DCA 1978).

JPAY argues (for the third time in these proceedings) that once .the Appellee Biscayne retook the premises pursuant to the three-day notice, the lease was effectively terminated (the first option stated above). Thus, JPAY argues, accelerated rent was then due. At the hearing before Judge Arzola, Biscayne provided evidence and argument that it had retaken possession of the vacated premises on the lessee’s behalf, was able to re-let a portion of it, made good-faith effort to re-let the remaining premises without success, and did not seek the accelerated rent due under the lease. Under the case law, Biscayne is not entitled to terminate the lease and also accelerate the rent:

By retaking possession either for his own account or for the account of the lessee, a lessor loses the right to recover the full amount of remaining rental due on the basis of an acceleration clause. The two positions are inconsistent, (citations omitted) If the lessor retakes possession for the account of the lessee, two results follow. First, the lessor acquires a duty to exercise good faith in attempting to relet the premises, and second, any rentals received by the lessor as a result of the reletting must be deducted from the balance of rent due from the lessee.

Coast Fed., 362 So.2d at 984. Biscayne retook the vacated premises, made good faith efforts to re-let on JPAY’s behalf, and deducted what it got from a partial sublet from JPAY’s unpaid rents due up to the date of the JPAY I final judgment. Its actions belie an intent to accelerate.

RES JUDICATA ISSUE

JPAY I is not res judicata as to JPAY II. Under the doctrine of res judica-ta, a final judgment or decree on the merits by a court of competent jurisdiction constitutes an absolute bar to a subsequent suit on the same cause of action and is conclusive of all issues which were raised or could have been raised in the action. Wise v. Tucker, 399 So.2d 500 (Fla. 4th DCA 1981). To apply the doctrine there must be (1) identity in the thing sued for, (2) identity of the causes of action, (3) identity of the persons and parties to the action, and (4) identity of the person for or against whom the claim is made. See Pumo v. Pumo, 405 So.2d 224, 226 (Fla. 3d DCA 1981). In this case, the parties are the same, the same landlord is suing the same lessee, but the identity of the thing sued for is different: JPAY II seeks damages for a completely different set of monthly rents that had yet to accrue at the time the judgment in JPAY I was rendered. Those damages were not included in JPAY I judgment. See Gilbert v. Florida Power & Light Co., 981 So.2d 609, 614 (Fla. 4th DCA 2008) (holding that under the rule against splitting a cause of action, a new claim for damages is not barred if the underlying cause of action had not accrued at the time of filing the previous lawsuit); see also Greene v. Boyette, 587 So.2d 629, 630 (Fla. 1st DCA 1991) (holding that a suit for one installment payment does not preclude suit for a later installment).

The record clearly establishes that Biscayne was not seeking accelerated rent in JPAY I, and that Order did not grant accelerated rent. Although JPAY I is a Final Judgment, it is not res judicata as to JPAY II; the JPAY I Order only adjudicated outstanding rent due that had accrued from Appellant’s failure to pay monthly rent installments under the lease from March 2014 through the entry of the JPAY I order; there was no award for the entire amount of future rents. We therefore affirm the trial court’s order granting Biscayne’s amended motion for summary judgment.

Affirmed.

      . JPAY argued that it was an issue of fact whether Biscayne re-took the premises for its own account or for JPAY’s—but the court asked why would Biscayne be billing JPAY if it re-took for its own use:
      But what evidence have you shown me that they’ve taken this for their possession: They have specifically indicated that what they’ve done is attempted to re-let unsuccessfully, they’ve accepted rent from the subtenant, which, as a result, lessens your client's liability, and they have not utilized this for any purpose other than to re-let, They have not used it for storage, they've..not used it to throw office parties ...

      . JPAY’s estoppel argument fits under this same analysis and we reject it for those reasons.


text:
    Iraci Romao DE OLIVEIRA, Appellant, v. LUXOR AGENTES AUTONOMOS DE INVESTIMIENTOS, LTDA., a Brazilian Corporation, and Leandro Ecker, Appellees.
    No. 3D15-2621
    District Court of Appeal of Florida, Third District.
    Opinion filed June 21, 2017
    Rehearing Denied August 29, 2017
    Law Offices of Roberto Villasante and Robert Villasante, for appellant.
    Akerman LLP and Michael B. Chavies, Nancy A. Copperthwaite and llana Taba-cinic, for appellees.
    Before SALTER, EMAS, and FERNANDEZ, JJ.
   PER CURIAM.

Affirmed. See Club Med Brasil, S.A. v. Sicurella, 921 So.2d 49, 50 (Fla. 3d DCA 2006); Four Star Resorts Bahamas, Ltd. v. Allegro Resorts Mgmt. Serv., 734 So.2d 676 (Fla. 3d DCA 1999);


author: WINOKUR, J.

text:
    James CARTER, Appellant, v. STATE of Florida, Appellee.
    CASE NO. 1D16-4541
    District Court of Appeal of Florida, First District.
    Opinion filed June 27, 2017
    Rehearing Denied September 1, 2017

      James Carter, pro se, Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Appellee.
   WINOKUR, J.

James Carter appeals the denial of his motion for postconviction relief. We affirm, but write to address Cartels claim that he would have entered an open plea rather than proceeding to trial but for his counsel’s misadvice regarding the validity of his asserted defense at trial.

Carter was charged with carjacking and leaving the scene of an accident involving unattended property. Carter proceeded to trial, at which the jury found him guilty on the carjacking count. The court sentenced Carter to life as an habitual felony offender (HFO), and we affirmed. Carter v. State, 108 So.3d 1081 (Fla. 1st DCA 2013). Carter filed a motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, which the trial court summarily denied.

Carter alleged that his attorney rendered ineffective assistance for advising him that a “claim' of right” defense might be successful at .trial, when in fact “claim of right” is not a valid defense to carjacking. Because of this • alleged misadvice, Carter asserted that he refused to consider either plea negotiations involving more than ten years in prison or an open plea of guilty. He claimed that if he had been properly advised that this defense was invalid, he would have accepted a negotiated sentence of greater than ten years in prison or entered an open plea to the court. He argued that he was facing up to life in prison as an HFO and any sentence less than life would have been preferable. He alleged that there was a high likelihood that he would have been sentenced to less than life if he entered ah open plea, given that his prior record reflected only drug-related convictions with no violent crimes. The trial court denied this claim, concluding that.defense counsel advanced a valid defense.

In Morgan v. State, 991, So.2d 835 (Fla. 2008), the Flóxida Supreme Court ruled that a claim that trial counsel deficiently advised the defendant to reject a plea offer because the defendant would win the case or receive a lesser sentence if the defendant went to trial is sufficient to state a postconviction claim for ineffective assistance of counsel. In Lafler v, Cooper, 566 U.S. 166, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012), the United States Supreme Court ruled that such claims are cognizable under the Sixth Amendment, Because Lafler established a different test for proving such a claim than set forth in Morgan, the Florida Supreme Court modified the standard for such a claim, as follows:

[i]n order to show prejudice, the defendant must demonstrate a reasonable probability, defined as a probability sufficient to undermine confidence in the outcome, that (1) he or she’would have accepted the offer had counsel advised the defendant correctly, (2) the prosecutor would not have withdrawn the offer, (3) the court would have accepted the offer, and (4) the conviction or sentence, or both, under the offer’s terms would have been less severe than under the judgment and sentence that in fact were imposed.

Alcorn v. State, 121 So.3d 419, 422 (Fla. 2013).

Carter asks us to go further than Alcorn. The State never conveyed a plea offer to Carter that he rejected due to alleged misadvice. Instead, Carter alleges that he would have entered an open plea if counsel had properly advised him, and that an open plea would have resulted in a lesser sentence than he received. We hold that such a claim' is too speculative to support postconviction relief.

A claimant alleging ineffective assistance of counsel must prove’ 1) specific acts or omissions of counsel that fell below a standard of reasonableness under prevailing professional norms; and 2) a reasonable probability that, but for counsel’s errors, the result of the proceeding would have been different. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). “A reasonable probability is a probability sufficient to undermine confidence in the outcome.”.Id. at 694, 104 S.Ct. 2052. The claimant must demonstrate a likelihood of a different result that is “substantial, not just conceivable.” Harrington v. Richter, 562 U.S. 86, 112, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011). In order to sufficiently undermine the court’s confidence in the outcome, a claimant “must rely on more than mere speculation.” Derrick v. State, 983 So.2d 443, 462 (Fla. 2008). See also Connor v. State, 979 So.2d 852, 863 (Fla. 2007) (“Relief on ineffective assistance of counsel claims must be based on more than speculation and conjecture.”).

Even if we presume that counsel’s advice to proceed to trial was deficient, Carter'cannot rely on Lafler or Alcorn to establish prejudice. All four parts of the Lafler/Alcorn test involve an actual plea offer advanced to the defendant that was rejected. In such a case, it is already known that the State was willing to offer a specific plea bargain; the test involves whether the defendant would have accepted it but for the misadvice, and whether the court would have accepted the negotiated plea. Conversely, a claim that a defendant would have entered an open plea— which subjects the defendant to the same sentencing exposure as sentencing after trial—and that the court would have chosen to impose a lesser sentence than imposed after trial, is exactly the sort of “mere speculation” .that cannot support postconviction relief for ineffective assistance. For the same reason, it is difficult to envision an appropriate remedy for a defendant making such a claim: the sentencing court on remand would have the same sentencing options that were available when it imposed the post-trial sentence that the defendant actually received. For these reasons, we find that Carter’s allegation did not state a claim for postconviction relief.

AFFIRMED.

KELSEY and WINSOR, JJ., CONCUR.

       The State nolle pressed the leaving the scene count.


author: SALTER, J.

text:
    BANKERS LENDING SERVICES, INC., Petitioner, v. REGENTS PARK INVESTMENTS, LLC, Respondent.
    No. 3D17-439
    District Court of Appeal of Florida, Third District.
    Opinion filed June 28, 2017
    Rehearing Denied July 26, 2017
    Garbett, Allen & Roza and B. Elizabeth Interthal and David S. Garbett, Miami, for petitioner.
    Arnaldo Velez, Coral Gables, for respondent.
    Before SALTER, FERNANDEZ and LUCK, JJ.
   SALTER, J.

Bankers Lending Services, Inc. (“Bankers Lending”), seeks a writ of certiorari quashing an order denying Bankers Lending’s motion to require a bond as a condition for reinstatement of a lis pendens. Finding Bankers Lending’s petition well taken, we quash the order.

Procedural History

This case originated with Regents’ (the buyer’s) claim for specific performance of a contract to buy several real estate parcels from Bankers Lending. When the transaction failed to close, Regents filed its lawsuit and a lis pendens encumbering the parcels. The trial court granted Bankers Lending’s motion to discharge the lis pen-dens, but we reversed and remanded the case with an instruction to reinstate the lis pendens. Regents Park Invs. v. Bankers Lending Servs., Inc., 197 So.3d 617 (Fla. 3d DCA 2016) (“Regents I”).

On remand, the trial court granted Regents’ motion to reinstate the lis pendens, but denied Bankers Lending’s cross-motion for an evidentiary hearing to consider whether a lis pendens bond should be required and, if so, to set the amount of the bond. Bankers Lending’s petition for cer-tiorari followed.

Analysis

Regents’ response to the petition and its argument to the trial court was that Bankers Lending no longer owned the property and thus could suffer no harm. On that basis, Regents argued that the trial court should exercise its discretion and deny the motion for a lis pendens bond. Between the time the lis pendens was discharged by the trial court in February 2016 and our reversal of that order in July 2016 (Regents I, 197 So.3d at 622), a non-party lender to Bankers Lending, Infill Development Lenders, LLC (“Infill”), recorded a quitclaim deed to the parcels in dispute. The quitclaim deed, though dated July 1, 2012, was recorded by Infill in April 2016 as part of its mortgage loan and forbearance, agreement with Bankers Lending.

Citing Penabad v. A.G. Gladstone Associates, Inc., 823 So.2d 146 (Fla. 3d DCA 2002), Regents persuaded the trial court that Infill, not Bankers Lending, was the owner and no bond should be required as a condition of reinstating the lis pendens. The trial court thus granted Regents’ motion to reinstate the lis pendens as of the date filed in August 2015, but denied Bankers Lending’s cross-motion to require a lis pendens bond.

Although we have also reviewed orders granting or discharging a lis pendens, and orders relating to lis pendens bonds, as appealable non-final orders under Florida- Rule of Appellate Procedure 9.130(a)(3)(B), we. have more recently agreed with the other Florida district courts of appeal “that certiorari is the appropriate procedure for the review of such an-order.” 100 Lincoln Rd SB, LLC v. Daxan 26 (FL), LLC, 180 So.3d 134, 136 (Fla. 3d DCA 2015). Applying that standard to the case at hand, we conclude that Bankers Lending had standing to move for a lis pendens bond and.to provide proof at an evidentiary .hearing of “potential loss or damage she or he will likely incur if the notice of lis pendens is unjustified.” Licea v. Anllo, 691 So.2d 29, 30 (Fla. 3d DCA 1997); see also, Med. Facilities Dev., Inc., v. Little Arch Creek Props. Inc., 675 So.2d 915, 917-18 (Fla. 1996) (“We agree with Judge Barkdull’s statement that the property-holder defendant’s right to a bond should be conditioned upon a demonstration of the potential loss or damage the defendant will likely incur if the notice of lis pendens is unjustified.”).

The case law also recognizes, however, that the trial court has the discretion to deny a lis pendens bond in such a circumstance, rejecting “the interpretation that the statutory reference to injunctions [in section 48.23(3), Florida Statutes (1995)] requires the lis-pendens proponent to post a bond in every case.” 675 So.2d at 918. The issue presented here is whether that discretion may be exercised without affording a party an evideñtiary hearing after prospective damages have been proffered.

During the period from the filing of the original lis pendens "(August 2015) and the recordation of the deed ■■ divesting Bankers Lending of title (April 2016), the lis pendens may have caused Bankers Lending to incur loss or damage, as that was a time when Bankers Lending had “ownership rights in the property.” FCD Dev., LLC v. S. Fla. Sports Comm., Inc., 37 So.3d 905, 909 (Fla. 4th DCA 2010) (citing Penabad, 823 So.2d at 147). Further, Bankers Lending’s original motion recited (and Regents did not dispute the recital) that “[t]he parties have agreed that a separate hearing will determine the amount of the bond.” Here, after reinstating the lis pendens, the trial court summarily denied Bankers Lending’s motion for a lis pendens bond without affording Bankers Lending an evidentiary hearing to prove its prospective loss or damage resulting from the lis pendens.

Having shown a departure from the essential requirements of law that will cause material injury if the lis pendens is subsequently shown to have been unjustified, and “effectively leaving no adequate remedy on appeal,” Bankers Lending is entitled to the issuance of the writ. Martin-Johnson, Inc., v. Savage, 509 So.2d 1097, 1099 (Fla. 1987).

We grant the petition and quash the order denying Bankers Lending’s motion for a lis pendens bond. We express no opinion regarding Bankers Lending’s ability to meet its burden to prove at an evi-dentiary hearing its loss or damage likely to be incurred if Bankers Lending ultimately proves that the lis pendens was unjustified. In the event the trial court finds that a lis pendens bond is appropriate, the court may condition the continued existence and' effectiveness of the lis pen-dens upon the filing of the bond.

Petition granted; order quashed.

      . As Regents’claim was for specific performance and was not based on a “duly recorded instrument,” Regents was required by section 48.23, Florida Statutes (2015) to file a lis pendens if it wished to protect itself against the claims of non-parties.

      . Bankers Lending's counsel filed an affidavit in support of its motion for the bond regarding Bankers Lending's legal fees incurred as a result of the allegedly-wrongful lis pendens. Attorney's fees may be .considered by a trial court in setting the amount of a lis pendens bond if the court concludes that a bond is appropriate. S & T Builders v. Globe Props., Inc., 944 So.2d 302 (Fla. 2006); McMillan/Miami, LLC v. Krystal Capital Managers, LLC, 1 So.3d 312 (Fla. 3d DCA 2009).


text:
    R.J. REYNOLDS TOBACCO COMPANY, Appellant/Cross-Appellee, v. Paul R. LARKIN, Jr., and Caryn O. Newborn, etc., Appellees/Cross-Appellants.
    No. 3D16-910
    District Court of Appeal of Florida, Third District.
    Opinion filed June 28, 2017
    Rehearing Denied August 23, 2017

      Carlton Fields Jorden Burt and Benja-mine Reid, Jeffrey A. Cohen, Olga M. Vieira, and Douglas J. Chumbley; Jones Day and Michael A. Carvin (Washington, D.C.) and Jason T. Burnette (Atlanta, GA), for appellant/cross-appellee.
    Conrad & Scherer and Albert L. Frevo-la, Jr. (Fort Lauderdale); Brannock & Humphries and Celene H. Humphries and Maegen P. Luka and Thomas J. Seider (Tampa); Gordon & Doner and Gary Paige (Davie); The Alvarez Law Firm and Alex Alvarez; Gerson & Schwartz and Philip M. Gerson, for appellees/cross-appellants.
    Before ROTHENBERG, SALTER and FERNANDEZ, JJ.
   SALTER, J.

R. J. Reynolds Tobacco. Company (“RJR”) appeals a jury verdict and final judgment in favor of the husband and daughter of the late Carole Larkin regarding their claims for fraudulent concealment and conspiracy to fraudulently conceal, and the denial of RJR’s motion for new; trial on those claims. Mr. Larkin and his daughter cross-appeal the trial court order granting in part RJR’s post-trial motion for new trial. The trial court’s order, limited to the claim of product liability for a defective product and any damages regarding that claim, was based on the court’s use of the product liability “risk utility” jury instruction.

We affirm without further elaboration the issues raised by RJR in its appeal, finding no merit to ’RJR’s arguments. On the cross-appeal, we reverse the trial court’s order granting a new trial to RJR and remand with instructions to reinstate the jury verdict on the product liability claim and damages. Font v. Union Carbide Corp., 199 So.3d 323 (Fla. 3d DCA 2016).

RJR itself proposed non-standard jury instructions (Nos. 17 and 19) which included features of both the “consumer expectations” test, Restatement (Second) of Torts § 402A (Am. Law Inst. 1965), and the “risk utility” test, Restatement (Third) of Torts: Products Liability § 2 (Am/ Law Inst. 1998). RJR also proposed a special instruction (No. 10) stating that consumer expectations regarding RJR’s cigarettes were expressly preempted by federal law. Mr. Larkin and his daughter elected to proceed under the “risk utility” test, one of the two permissible legal theories and jury instructions for proving their product liability claim. In re Std. Jury Instructions in Civil Cases—Report No. 13-01 (Products Liability), 160 So.3d 869, 874 (Fla. 2015). On such a record, the trial court’s failure to instruct the jury on the consumer expectations test exclusively has not been shown to have “resulted in a miscarriage of justice,” or to have been “calculated to confuse or mislead the jury,” Font, 199 So.3d at 326.

The final judgment and the order denying the motion for new trial as to the claims for fraudulent concealment and conspiracy to fraudulently conceal are, affirmed in all respects; the order granting the motion for new trial on product liability for a defective product is reversed and remanded with directions to reinstate the jury verdict on that claim.

      . Reversal of the order does not increase the damages payable by RJR in the final judgment, as the jury’s Phase I damages verdict was a general verdict applicable to all claims other than punitive damages. See, e.g., Johnson v. Thigpen, 788 So.2d 410, 415 (Fla. 1st DCA 2001).

      . At the time the trial court , entered the order granting a new trial on this point, it did not have the benefit of our decision in Font.