text:
    Latoya BEAN, et al., Appellants, v. UNIVERSITY OF MIAMI d/b/a Miller School of Medicine, et al., Appellees.
    Nos. 3D16-2221 & 3D16-2195
    District Court of Appeal of Florida, Third District.
    Opinion filed August 1, 2018
    Creed & Gowdy, P.A. and Bryan S. Gowdy (Jacksonville), for appellant Latoya Bean.
    Center for Constitutional Litigation, PC and Robert S. Peck (Fairfax Station, VA); and Grossman Roth Yaffa Cohen, P.A., and Neal A. Roth, Coral Gables, and Rachel Wagner Furst, for appellant Fernando Vallecillo, Jr.
    White & Case LLP, Raoul G. Cantero, and David P. Draigh, Miami; Fowler White Burnett, P.A., Christopher E. Knight, Miami, and Marc J. Schleier, for appellees.
    Before EMAS, FERNANDEZ and LUCK, JJ.
   LUCK, J.

In 2011, the legislature expanded the immunity in sections 768.28(9)(b) and (10)(f) of the Florida Statutes to cover nonprofit independent universities that agree to provide patient services at government teaching hospitals as part of an affiliation agreement. Ch. 11-219, § 3, at 3345-47, Laws of Fla. Such universities and their employees, the amendment provided, would be treated as agents of the government teaching hospital, and covered by the immunity in section 768.28, to the extent they were providing patient services consistent with the affiliation agreement.

Pursuant to sections 768.28(9)(b) and (10)(f), the University of Miami Leonard M. Miller School of Medicine entered into an affiliation agreement with the Miami-Dade County Public Health Trust - the government agency that operates Jackson Memorial Hospital. The university, based on the expanded immunity, moved to dismiss the lawsuits of two plaintiffs that were allegedly injured by university doctors who treated them at Jackson hospital. The plaintiffs responded that the amendments to section 768.28 unconstitutionally expanded sovereign immunity; violated the plaintiffs' rights to equal protection, due process, access to courts, and a jury trial; and unconstitutionally pledged the state's credit to a private university. The trial courts found that the expanded immunity did not violate the Florida Constitution. We agree, and affirm the judgments for the university and its doctors.

FACTUAL BACKGROUND AND PROCEDURAL HISTORY

Case Number 16-2195: Fernando Vallecillo

Fernando Vallecillo was born with a benign tumor on the right side of his face. In January 2014, he went to the university's medical school for an ear-nose-and-throat consultation. There, Vallecillo was referred to Dr. Jason Salsamendi at the university's radiology department. Dr. Salsamendi recommended that Vallecillo have an "embolization procedure." On February 27, 2014, Vallecillo went to Jackson to have the surgery. Dr. Mohammad Elhammady, the surgeon, performed the embolization procedure despite evidence that Vallecillo was not amendable to it. As a result of the surgery, Vallecillo was blinded in his right eye.

Vallecillo sued Dr. Elhammady, the university, and Jackson (the trust) for medical negligence. The university and Dr. Elhammady answered the complaint, and alleged as an affirmative defense that they were improper defendants because they were "entitled to immunity from liability and suit under Florida Statutes §§ 768.28(9)(a) and (10)(f)."

In response to the immunity defense, Vallecillo filed a separate complaint for declaratory judgment against the university and Dr. Elhammady. Vallecillo alleged that he had sued the university and Dr. Elhammady for medical negligence, and they "specifically raise[d] sovereign immunity as an affirmative defense" under sections 768.28(9)(b) and (10)(f) of the Florida Statutes. Vallecillo alleged that the provisions violated his Florida and federal constitutional rights to equal protection under the law, due process, access to the courts, the right to trial by jury; the prohibitions against special laws and using the state's taxing power and credit to aid corporations; and the limitations on extending sovereign immunity to private companies. The university and Dr. Elhammady answered and denied the allegations in Vallecillo's declaratory judgment complaint.

The parties filed cross-motions for summary judgment, and after a hearing, the trial court denied Vallecillo's motion for summary judgment and granted summary judgment for the defendants. The trial court concluded that "[t]he undisputed facts establish that Defendants, a Miller School of Medicine faculty member, and the University itself, fall under the ambit of Fla. Stat. Secs. 768.28(9) and (10)(f)," and are therefore, "entitled to sovereign immunity." Vallecillo has appealed.

Case Number 16-2221: Latoya and Noah Bean

In January 2012, Latoya Bean was pregnant, and went to Dr. Nelson Adams for prenatal care. During her prenatal visits between January and June, Bean had indications of preeclampsia (high blood pressure, trace albumin, and elevated protein, creatinine, and liver enzymes). Those indications continued on June 12, when she was finally prescribed medication. As the indications of preeclampsia continued the next day, Bean was admitted to Jackson hospital.

On June 18, while still in the hospital, Bean's baby showed signs of fetal distress. Dr. Rebekah Valthaty administered Misoprostol to induce birth, even though Misoprostol had not been approved by the Food and Drug Administration for that purpose and the instructions warn that using it could result in birth defects, premature birth, and uterine rupture. After the Misoprostol was administered, the baby's heartbeat was "non-reassuring," and Bean had indications of "placental abruption and/or fetal compromise."

Still, the doctors waited hours before performing a C-section. Noah Bean was born in the early morning hours of June 19. Baby Noah "required aggressive resuscitation to include stimulation, suctioning and placement on CPAP." He was "limp and suffering significant respiratory failure, requiring intubation." "[A] head ultrasound revealed grade II intraventricular hemorrhage consistent with an anoxic/hypoxic injury." Noah died on the evening of his birth.

Latoya Bean, on behalf of herself and her son, sued the university and Bean's doctors for medical negligence. The university and doctors moved to dismiss the complaint because they were "immune from suit under Section 768.28(9)(a) and 768.28(10)(f), Florida Statutes, as agents of the Public Health Trust of Miami-Dade County d/b/a Jackson Memorial Hospital." Bean argued in response that sections 768.28(9) and (10)(f) violated the Florida Constitution because the sections: were unauthorized extensions of sovereign immunity to a private enterprise; violated her rights to equal protection and due process; improperly used the state's taxing power and credit for a private enterprise; and were impermissible special laws.

The trial court granted the defendants' motion to dismiss, concluding that Bean's complaint "establish[ed] that the moving Defendants are entities and/or individuals entitled to immunity from suit under Fla. Stat. Secs. 768.28(9) and (10)(f)." This appeal followed. On the parties' motion, we consolidated Vallecillo and Bean's appeals for oral argument.

STANDARD OF REVIEW

"The question of statutory immunity is a legal question that we review de novo." Limones v. Sch. Dist. of Lee Cty., 161 So.3d 384, 393 (Fla. 2015). "The constitutionality of a statute is a pure question of law" also "subject to de novo review." City of Fort Lauderdale v. Dhar, 185 So.3d 1232, 1234 (Fla. 2016).

DISCUSSION

In 2011, the legislature amended section 768.28, "Waiver of sovereign immunity in tort actions," to "expand[ ] sovereign immunity" by "providing that certain colleges and universities that own or operate a medical school[,] or any of its employees or agents providing patient services pursuant to a contract with a teaching hospital are agents of the teaching hospital and are immune from certain liability for torts." Ch. 11-219, Title, at 3343, Laws of Fla. The legislature did this by amending subsection (9) and adding subsection (10)(f).

Subsection (9) provides that "[n]o officer, employee, or agent of the state or of any of its subdivisions shall be held personally liable in tort or named as a party defendant in any action for any injury or damage suffered as a result of any act, event, or omission of action in the scope of her or his employment or function." § 768.28(9)(a), Fla. Stat. (2017). The legislature amended the definition of "officer, employee, or agent" to include "any nonprofit independent college or university located and chartered in this state which owned or operates an accredited medical school, and its employees or agent, when providing patient services pursuant to paragraph (10)(f)." Id. § 768.28(9)(b) 2. The new paragraph (10)(f) defined what it meant to be a nonprofit independent university which operates an accredited medical school providing patient services.

[A]ny nonprofit independent college or university located and chartered in this state which owns or operates an accredited medical school, or any of its employees or agents, and which has agreed in an affiliation agreement or other contract to provide, or permit its employees or agents to provide, patient services as agents of a teaching hospital, is considered an agent of the teaching hospital while acting within the scope of and pursuant to guidelines established in the affiliation agreement or other contract.

Id. § 768.28(10)(f).

Months after the legislature amended 768.28, the University of Miami entered into an affiliation agreement with Miami-Dade County's Public Health Trust, which operates and maintains Jackson Memorial Hospital. The affiliation agreement provided that the university's medical school, and the school's faculty, employees, and agents, would provide patient services at Jackson hospital as agents of the trust and under the trust's sole and exclusive control.

There is no factual dispute that the university and its employees and agents met the requirements of sections 768.28(9)(b)

and (10)(f). The parties agree that the university is a "nonprofit independent college or university located and chartered in this state which owns and operates an accredited medical school." The parties agree that Jackson is a teaching hospital. The parties agree that the university and the trust entered into an affiliation agreement. And the parties agree that university employees and agents performed patient services at Jackson pursuant to the affiliation agreement.

The issue in this case, then, is not whether the university and its doctors met the requirements of sections 768.28(9)(b) and (10)(f). They did. Instead, the issue is whether sections 768.28(9)(b) and (10)(f) violate the Florida Constitution. Can the legislature constitutionally expand immunity to the university and its employees and agents? (No, says Vallecillo and Bean.) Do sections 768.28(9)(b) and (10)(f) violate Vallecillo and Bean's rights to equal protection, due process, access to the courts, and trial by jury? (Yes, they say.) And did the legislature unconstitutionally lend the university the benefit of the state's credit and taxing power? (Yes, says Vallecillo and Bean.) We will go through each of Vallecillo and Bean's claims that sections 768.29(9)(b) and (10)(f) violate the Florida Constitution.

Article X, Section 13 of the Florida Constitution

Article X, section 13 of the Florida Constitution provides that "[p]rovision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating." Fla. Const. art. X, § 13. Vallecillo and Bean contend that the legislature cannot constitutionally expand immunity to the university and its employees and agents because they are not state actors subject to state control, they are not funded by the state, and the state is not on the hook for their liability.

We disagree. The Florida courts, state and federal, have extended section 768.28 immunity to private companies and their employees where there is a sufficient degree of control retained or exercised by the state entity. Here are three examples. In Stoll v. Noel, 694 So.2d 701 (Fla. 1997), the Florida Supreme Court extended section 768.28 immunity to doctors and their professional associations that provided medical services to a state-run children's medical clinic in Broward County. Id. at 702-04. In Horn v. Volusia County, No. 6:08-CV-18-ORL-19DAB, 2008 WL 977179 (M.D. Fla. Apr. 9, 2008), the Florida federal district court extended section 768.28 immunity to a prison doctor and his company that treated county jail detainees. Id. at *1, 6. And in G4S Secure Solutions (USA), Inc. v. Morrow, 210 So.3d 92 (Fla. 2d DCA 2016), the Second District Court of Appeal extended section 768.28 immunity to a prison transportation company that transported prisoners from one facility to another. Id. at 93-95.

As the Florida Supreme Court explained, the question of whether an independent contractor is an "officer, employee, or agent of the state" under section 768.28(9)(a)"turns on the degree of control retained or exercised by" the state entity contracting with the private company. Stoll, 694 So.2d at 703. "One who contracts to act on behalf of another and subject to the other's control except with respect to his physical conduct is an agent and also an independent contractor." Id. (quotation omitted).

To determine the degree of control, we look to the contract between the private company and the state agency, and any statutes or regulations that govern the relationship between the two. See Horn, 2008 WL 977179, at *6 (reviewing three provisions of the contract between Prison Health Services and the county to conclude that the private company was an agent of the state); Stoll, 694 So.2d at 703 (reviewing the contract between the doctors and children's medical services and the Department of Health and Rehabilitative Services regulations to conclude that the doctors were agents of the state); G4S Secure Sols., 210 So.3d at 94-95 (reviewing the contract between the prisoner transport company and the county to conclude that the company was an agent of the under section 768.28(9) ). In conducting this review, Florida courts have found some private companies and employees to be under the state's control such that they are agents of the state for section 768.28(9) immunity purposes, while other private companies have been found not to be controlled by the state and therefore not agents for section 768.28 immunity. Compare Stoll, 694 So.2d at 703-04 (concluding that private doctors and their professional associations were agents of Children's Medical Services), with Jaar v. Univ. of Miami, 474 So.2d 239, 245 (Fla. 3d DCA 1985) (concluding that university was not immune because the unambiguous terms of its contract with the public health trust did not create an agency relationship).

We conducted this agency analysis under almost identical facts in Jaar. There, as here, the plaintiff was injured at Jackson hospital by a University of Miami faculty member and three of the university's medical residents who were providing medical services to Jackson patients pursuant to an affiliation agreement between the university and the hospital. Jaar, 474 So.2d at 241. The injured plaintiff sued the faculty member, the three medical residents, and the university, alleging medical negligence. Id. The defendants all claimed they were agents of the trust and immune under section 768.28(9). Id. We agreed as to the university faculty member and medical residents. Id. at 244.

The contracts between [the faculty member] and the University and between the University and the Trust set forth the duties and obligations of the parties and define their legal relationships. [The faculty member] is employed by the University as a full-time medical faculty member. The University assigned [him] to head the hospital's burn unit pursuant to the terms of contracts between the University and the Trust. The contracts require the University to provide medical care to hospital patients and to supervise residents in their treatment of patients.
The University assumes additional responsibility in the treatment and care of fee paying patients. The indemnification clause contained in the contract provides Trust indemnification of the University for claims arising out of the treatment of non-paying patients. Conversely, the indemnification clause establishes the parties' intent to delegate sole responsibility to the University for the care of paying patients, such as [the plaintiff].

Id. at 242-43 (footnotes omitted). Because the faculty member and the residents were the trust's "employees or agents and [ ] their negligent treatment of [the plaintiff] was performed within the scope of their employment," we concluded they were "entitled to immunity from liability." Id. at 244 (citing § 768.28(9)(a), Fla. Stat.).

As to the university, we agreed it "would be immune only if it were an agent of the Trust." Id. at 245 (emphasis added). But we found the university was not an agent of the trust because

[t]he relationship between the University and the Trust is created by the clear and unambiguous terms of their contracts which, as a matter of law, demonstrate the absence of an agency relationship between them. The University and the Trust are two independent entities joined for the purpose of providing health and medical services to the public. Section 1 of the[ir Basic Affiliation Agreement], entitled "Autonomous Nature of Public Health Trust," and ensuing sections specify that neither party acts as agent for the other. In addition, the contract provisions render each party liable for its proportionate share of the parties' joint expenses, and demonstrate the parties' intent to refrain from entering an agency relationship.

Id. (footnotes and citation omitted). "Thus," we said, "the University is not entitled to benefit from sovereign immunity protections." Id. at 246.

If nothing had changed since 1985, then that would end the matter for section 768.28 immunity purposes. The university doctors who treated Vallecillo and Bean pursuant to the affiliation agreement would be agents of the trust, and therefore, entitled to the immunity protections under sections 768.28(9)(b) and (10)(f). The university would not be an agent of the trust because the trust would not have retained or exercised a sufficient degree of control to trigger section 768.28(9) immunity.

But in 2011, the university and the trust entered into a new affiliation agreement governing their relationship. The 2011 agreement provided that:

• "the University and any faculty member ... or other employee or agent of the University while acting pursuant to this Agreement does so as an agent of the Trust under the sole direction of and under the full control of the Trust."
• "the Trust shall exclusively exercise all powers of governance, operation, management and control, including ... providing a single standard of medical care ...."
• the trust's powers included "[d]etermining and monitoring any and all activities and the manner of their performance and operation which shall take place in the Jackson Hospital System, including determining who shall provide Patient Services to patients and who shall supervise and train Residents of the Trust."
• the trust's powers included "[p]rescribing and enforcing all policies, Bylaws, Rules and Regulations."
• university faculty members and employees and agents are "to provide Patient Services as agents of the Trust pursuant to this Agreement and pursuant to Trust Guidelines under the Trust's direction and control."
• the trust is "responsible for delivering all Patient Services" to Jackson hospital patients and "classifies each patient according to funding status in accordance with its policies and procedures."
• the trust "[s]hall have final authority and responsibility for admitting patients within the Jackson Health System in compliance with existing laws."
• the trust "shall have sole authority and responsibility to allocate resources within the Jackson Health System."
• the trust "[s]hall ... have final and absolute authority over all care and treatment provided to patients, and can refuse to allow a course of treatment for any patient for medical, policy, or budgetary reasons."
• the trust "[s]hall have responsibility for and authority to supervise, train, and assign Resident Physicians to provide care to patients."
• while the university and its employees and agents are providing patient services at Jackson hospital pursuant to the agreement, they "shall act solely for the Trust and not for the University."
• the university's education of its students and medical research while at Jackson is "subject to the policies, Bylaws, Rules and Regulations of the Trust."
• the trust "retain[s] and exercise[s] full and exclusive authority to credential, appoint, reappoint, revoke, modify, suspend, and terminate clinical privileges and membership" on the trust medical staff.
• "the President of the Trust shall have final and exclusive authority to appoint all Chiefs of Service."

As to the university doctors sued by Vallecillo and Bean, nothing has changed for them. Just as they were employees and agents of the trust in Jaar, 474 So.2d at 244 ("As employees or agents of the Trust, Dr. Ward and the residents are entitled to immunity from liability."), they were agents of the trust while providing patient services to Vallecillo and Bean. If anything, the 2011 agreement gave the trust more control over the university doctors and employees. Compare id. at 242-43 & nn.2-6 (the affiliation agreement in Jaar ), with (R.368-82) (the 2011 affiliation agreement).

As to the university, the 2011 agreement retained and exercised a degree of control sufficient to make the university the trust's "agent" for section 768.28(9)(a) immunity. Just as in Stoll, the university agreed to abide by the trust's bylaws, rules, and regulations. See 694 So.2d at 703 ("CMS requires each consultant, as a condition of participating in the CMS program, to agree to abide by the terms published in its HRS Manual and CMS Consultant's Guide which contain CMS policies and rules governing its relationship with the consultants."). Just as in Stoll, the university agreed that the trust was responsible for providing patient services; had final authority over all care and treatment; and "could refuse to allow a course of treatment for any patient for medical, policy, or budgetary reasons." See id. ("The HRS Manual and the Consultant's Guide demonstrate that CMS has final authority over all care and treatment provided to CMS patients, and it can refuse to all a physician's consultant's recommended course of treatment of any CMS patient for either medical or budgetary reasons."). Just as in Horn, the university agreed that the trust set the standard of care, and had the authority to prescribe bylaws, rules, and regulations. See 2008 WL 977179, at *6 ("Section 2.05 is entitled "Standard of Care" and requires PHS to meet or exceed several standards of care, including the Florida Model Jail Standards."). Just as in Horn, the university agreed that the trust would determine the activities and manner in which patient services were performed at Jackson hospital. See id. ("[T]he state has authority over the scope of [Prison Health Services'] work."). And just as in G4S, the university agreed that the trust would supervise the training of medical residents; the university would teach its students consistent with trust rules and regulations; and the trust had the authority to deny privileges to any university doctor. See 210 So.3d at 94 (The county "has the ability to have a G4S employee fired at will." The county "conducts the training of G4S employees, and the employees are trained according to [county] procedures.").

Perhaps the biggest difference between the affiliation agreement in Jaar, and the 2011 affiliation agreement, is that the 2011 agreement is clear that the university is the trust's agent. In Jaar, the bilateral agreement "specif[ied] that neither party acts as agent for the other." 474 So.2d at 245. And the agreement repeatedly "demonstrate[d] the parties' intent to refrain from entering an agency relationship." Id.

The 2011 affiliation agreement has the opposite intent. The agreement provided that "the University ... while acting pursuant to this Agreement does so as an agent of the Trust," and "the University ... [is] deemed to be [an] agent[ ] of the Trust pursuant to this agreement and Trust Guidelines in accordance with F.S. Section 768.28." The Florida Supreme Court found a similar acknowledgment of an agency relationship as support for its conclusion that the private company was an agent of the state under section 768.28. See Stoll, 694 So.2d at 703 ("Our conclusion is buttressed by HRS's acknowledgement that the manual creates an ageny relationship between CMS and its physician consultants ...."); see also Horn, 2008 WL 977179, at *6 ("Section 2.03 of the contract demonstrates that the parties expressly intended to create an agency relationship, apparently for the very purpose of bringing PHS and Dr. Hager under the protection of section 768.28(9).").

The 2011 agreement showed that the trust retained and exercised a degree of control over the university such that it created an agency relationship. Because the university was the trust's agent for purposes of providing patient services at Jackson hospital, the legislature's decision to expand immunity in sections 768.28(9)(b) and (10)(f) to cover the university as the trust's agent is consistent with Stoll, and does not violate article X, section 13 in the Florida Constitution.

Article I, Sections 2 and 9

The Florida Constitution provides that "[a]ll natural persons, female and male alike, are equal before the law," and "[n]o person shall be deprived of life, liberty or property without due process." Fla. Const. art. I, §§ 2, 9. These are, in order, our state's equal protection and due process clauses. Vallecillo and Bean contend that sections 768.28(9)(b) and (10)(f) violate the equal protection and due process clauses because they are nothing more than an unconstitutional cap on medical malpractice damages, and the statutes treat medical malpractice plaintiffs differently depending on whether they are treated by trust or university doctors.

We rejected the same equal protection and due process arguments in Jaar:

We find no merit in appellants' argument that due process and equal protection considerations preclude the application of sovereign immunity to shield the doctors from liability in this cause. Florida courts have ruled the immunity statute constitutional when applied to a physician who, within the scope of his governmental employment, negligently caused injury to another.

474 So.2d at 244. The Florida Supreme Court and the other district courts have also rejected due process and equal protection challenges to section 768.28 immunity. See Cauley v. City of Jacksonville, 403 So.2d 379, 387 (Fla. 1981) ("[W]e hold that the statute clearly relates to a permissible legislative objective and is neither discriminatory, arbitrary, nor oppressive in its application. The statute does not violate the right to due process .... It provides a fair means of recovery against governmental entities for the negligent acts of their employees and officials. For the reasons expressed, we affirm the trial court and uphold the constitutional validity of section 768.28(5), Florida Statutes (1977)."); Campbell v. City of Coral Springs, 538 So.2d 1373, 1375 (Fla. 4th DCA 1989) ("We also find no merit in appellants' claim that the statute is unconstitutional as a denial of equal protection. The legislature has the discretion to place limits and conditions upon the scope of the sovereign immunity waiver."); Jetton v. Jacksonville Elec. Auth., 399 So.2d 396, 399 (Fla. 1st DCA 1981) ("As to due process, we are not prepared to find that the legislature had no rational basis for imposing a $50,000 recovery limit if that limit was considered sufficient to permit full recovery in the vast majority of the cases.... For the same reasons we find no violation of equal protection, there being a rational relationship between the statutory classifications of tort victims and the object of the legislation." (footnote and citations omitted) ). We must follow Jaar until it has been overruled by the en banc court or the Florida Supreme Court. See State v. Washington, 114 So.3d 182, 188-89 (Fla. 3d DCA 2012) ("This panel is not free to disregard, or recede from, that decision; only this Court, sitting en banc, may recede from an earlier opinion.").

Article I, Section 21

The Florida Constitution provides that "[t]he courts shall be open to every person for redress of any injury, and justice shall be administered without sale, denial or delay." Fla. Const. art. I, § 21. Vallecillo contends that sections 768.28(9)(b) and (10)(f) unconstitutionally restrict access to the courts by placing a cap on damages.

The Florida Supreme Court and the other district courts have rejected access-to-court challenges to section 768.28 immunity. See Cauley, 403 So.2d at 387 ("[W]e hold that the statute clearly relates to a permissible legislative objective and is neither discriminatory, arbitrary, nor oppressive in its application. The statute does not violate the right to ... access to the courts .... It provides a fair means of recovery against governmental entities for the negligent acts of their employees and officials. For the reasons expressed, we affirm the trial court and uphold the constitutional validity of section 768.28(5), Florida Statutes (1977)."); State Dep't of Corrs. v. Koch, 582 So.2d 5, 8 (Fla. 1st DCA 1991) ("[S]everal courts have examined the constitutionality and scope of § 768.28(9), Florida Statutes, and have found that § 768.28(9) did not abolish the right of an injured person to sue and recover based on the liability of a negligent employee; it merely required that the action be maintained against the public employer as the sole, substitute defendant."); Campbell, 538 So.2d at 1374 ("[P]laintiffs have failed to show that they would have had a right to bring this action prior to adoption of the declaration of rights in the Florida Constitution. In any event, section 768.28(9)(a) does not abolish causes of action. Rather, the statute reasonably arranges and restricts the classes of potential defendants based on the nature of the claims as part of an overall statutory scheme."); White v. Hillsborough Cty. Hosp. Auth., 448 So.2d 2, 3 (Fla. 2d DCA) ("Appellant forcefully argues that she has been deprived of her right to "redress of any injury" guaranteed by Article I, section 21, of the Florida Constitution.... In effect, appellant's cause of action has been limited by a cap of $50,000 per claimant/$100,000 per occurrence.

While this is a matter of concern, it is not a sufficiently compelling reason to render the statute unconstitutional. As discussed in Kluger [v. White, 281 So.2d 1 (Fla. 1973) ], even where a cause of action is reduced, as opposed to being destroyed, it is not essential that the legislature provide a substitute remedy." (footnote and citation omitted) ), cause dismissed, 443 So.2d 981 (Fla. 1983), cited in Jaar, 474 So.2d at 244 ("Florida courts have ruled the immunity statute constitutional when applied to a physician who, within the scope of his governmental employment, negligently caused injury to another."). We must follow Cauley until the Florida Supreme Court overrules it. See State v. Lott, 286 So.2d 565, 566 (Fla. 1973) ("[T]he District Courts of Appeal follow controlling precedents set by the Florida Supreme Court."); Hoffman v. Jones, 280 So.2d 431, 440 (Fla. 1973) ("[A] District Court of Appeal does not have authority to overrule a decision of the Supreme Court of Florida.... [T]he decision of this Court shall prevail until overruled by a subsequent decision of this Court.").

Article I, Section 22

The Florida Constitution provides that "[t]he right of trial by jury shall be secure to all and remain inviolate." Fla. Const. art. I, § 22. Vallecillo contends that the limit on damages in section 768.28 unconstitutionally deprives him of his right to have a jury determine damages.

The Florida Supreme Court has rejected a right-to-jury-trial challenge to section 768.28 immunity. See Cauley, 403 So.2d at 387 ("While the section does limit recovery allowable against municipalities, it substantially broadens recovery allowable against state governmental entities generally.... In conclusion, we hold that the statute clearly relates to a permissible legislative objective and is neither discriminatory, arbitrary, nor oppressive in its application. The statute does not violate the right to ... jury trial .... It provides a fair means of recovery against governmental entities for the negligent acts of their employees and officials. For the reasons expressed, we affirm the trial court and uphold the constitutional validity of section 768.28(5), Florida Statutes (1977)."). We are, again, bound by Cauley until the Court tells us otherwise.

Article VII, Section 10

The Florida Constitution provides that "[n]either the state nor any county, school district, municipality, special district, or agency of any of them, shall ... give, lend or use its taxing power or credit to aid any corporation, association, partnership or person." Fla. Const. art. VII, § 10. While there are some exceptions, the Constitution generally bans "the assumption by the public body of some degree of direct or indirect obligation to pay a debt of the third party." State v. Hous. Fin. Auth. of Polk Cnty., 376 So.2d 1158, 1160 (Fla. 1979). Vallecillo and Bean contend that sections 768.28(9)(b) and (10)(f) violate this provision by lending the state's taxing power and credit to a private university.

We don't see it. To qualify as an "agent of the teaching hospital," section 768.28(10)(f) requires that the university enter into "an affiliation agreement or other contract" to provide patient services to the teaching hospital. § 768.28(10)(f), Fla. Stat. The contract, section 768.28(10)(f) continues, "must provide for the indemnification of the teaching hospital, up to the limits set out in [ section 768.28 ], by the agent for any liability incurred which was caused by the negligence of the college or university or its employees and agents." Id.

The 2011 affiliation agreement between the university and the trust had such a provision. The 2011 agreement provided that

To the extent allowed by law pursuant to section 768.28(10)(f), Florida Statutes, the University shall indemnify the Trust and Miami-Dade County and their respective Trustees, Board Members, Commissioners, officers, employees, agents, agencies and instrumentalities as provided in Chapter 768, Florida Statutes for any liability incurred, which was caused by the negligence of the University or its employees and agents.
...
The University shall be responsible for providing legal representation with respect to any injury caused or alleged to have been caused by the University or the employee or agents and shall be responsible for all legal costs arising out of such representation.

Because of the indemnification requirement in the statute, which made its way into the 2011 affiliation agreement, the state's taxing power and credit was not on the line when Vallecillo and Bean were injured. The university agreed to pay (indemnify) whatever amount that was imposed on the state pursuant to section 768.28, and to pay any attorney's fees and costs that result from litigation. Sections 768.28(9)(b) and (10)(f) make it so the state will pay nothing as a result of its agreement with the university, and the state does not have to give or use its credit or taxing power to benefit a private entity. The state did not assume the private university's debt; sections 768.28(9)(b) and (10)(f) require that the financial obligation run the other way - from the state to the private university. There was no violation of article VII, section 10.

CONCLUSION

The legislature's 2011 amendments to section 768.28, contained in subsections (9)(b) and (10)(f), did not violate the sovereign immunity, equal protection, due process, access to courts, jury trial, and private debt provisions of the Florida Constitution. We affirm the summary judgment for the university and Dr. Elhammady in case number 3D16-2195, and the judgment for the university and Drs. Ahmed and Maguire in case number 3D16-2221.

Affirmed.

      Our conclusion that the university is the trust's agent when it is providing patient services pursuant to the 2011 affiliation agreement is based on the record in this case. We express no opinion on whether a new affiliation agreement between the university and the trust, or an altogether different relationship between a private university and a teaching hospital, would have the government hospital retaining and exercising the degree of control necessary to create an agency relationship that would be a constitutional expansion of section 768.28 immunity.


source: Caselaw Access Project

author: Per Curiam. Winokur, J., concurring.

license: Public Domain

text:
    DEPARTMENT OF REVENUE, ON BEHALF OF Haydie MARQUEZ, Appellant, v. Calixto Manuel LOPEZ, Appellee.
    No. 1D17-5381
    District Court of Appeal of Florida, First District.
    August 1, 2018
    Pamela Jo Bondi, Attorney General, and Toni C. Bernstein, Senior Assistant Attorney General, Tallahassee, for Appellant.
    No appearance for Appellee.
   Per Curiam.

The Department of Revenue appeals the administrative law judge's Final Administrative Support Order, in which the father, Carlos Lopez, was ordered to pay child support and retroactive child support to the mother, Haydie Marquez, on whose behalf the Department was acting to establish Lopez's support obligation to their child. See § 409.2557(1) & (2), Fla. Stat. (2017).

We dismiss this appeal for lack of standing. " 'An appeal of a wholly favorable judgment must be dismissed.' " Fla. Dep't of Envtl. Prot. v. Fla. Reemployment Assistance Appeals Comm'n , 123 So.3d 1154 (Fla. 1st DCA 2012) (quoting Dep't of Health v. Fresenius Med. Care Holdings, Inc. , 935 So.2d 636, 637 (Fla. 1st DCA 2006) ); see also Friends of Perdido Bay, Inc. v. Fla. Dep't of Envtl. Prot. , 44 So.3d 650, 651 (Fla. 1st DCA 2010) (dismissing cross-appeal, after appellants voluntarily dismissed appeal, because cross-appellants were the prevailing parties below and were neither adversely affected by any provision of the order under review nor faced any consequences by the application of the challenged statutory provision); Fla. Comm'n on Hurricane Loss Projection Methodology v. State, Dep't of Ins. , 716 So.2d 345, 346 (Fla. 1st DCA 1998) (declining to examine an administrative law judge's rationale for a ruling at the behest of the party in whose favor the administrative law judge ruled); Gen. Dev. Utils., Inc. v. Fla. Pub. Serv. Comm'n, Div. of Admin. Hearings , 385 So.2d 1050, 1051 (Fla. 1st DCA 1980) ("It is a long standing rule that a judgment or decree wholly in favor of a party may not be appealed by him, for he is not aggrieved thereby.").

DISMISSED .

Bilbrey and Jay, JJ., concur; Winokur, J., concurs with opinion.

Winokur, J., concurring.

I agree with the majority that we should dismiss this appeal because the Department of Revenue (DOR) does not have standing to challenge the Final Administrative Support Order (Order), on the ground that the Order is "wholly favorable" to DOR. See Fla. Dep't of Envtl. Prot. v. Fla. Reemployment Assistance Appeals Comm'n , 123 So.3d 1154 (Fla. 1st DCA 2012). But even if we did not dismiss this appeal for lack of standing, I would reject DOR's argument and affirm the Order.

Because Marquez, the mother of the child, was receiving Medicaid, DOR offered her their services in obtaining child support from Lopez, the father. Marquez accepted these services and DOR instituted a proceeding to establish an administrative support order on behalf of Marquez. DOR then filed a proposed administrative support order, which Lopez disputed and exercised his right to a hearing before an administrative law judge (ALJ). The caption of the hearing before the ALJ was "DEPARTMENT OF REVENUE AND HAYDIE MARQUEZ, Petitioners, vs. CALIXTO MANUEL LOPEZ, Respondent." After the hearing, the ALJ filed the Order, which ordered Lopez to pay current and retroactive child support and which offered any party "who is adversely affected" by the Order the right to appeal to this court. See also § 120.68 and 409.2563(10)(a), Fla. Stat. DOR appealed, without explaining how it, or Marquez, was "adversely affected" by this Order. Lopez did not appeal or cross-appeal.

On appeal to this court, the only argument DOR makes in its initial brief is that the ALJ erred in calculating retroactive support because it "charged [Lopez] twice" for his June 2017 income. DOR does not describe how this alleged error adversely affects it or Marquez. It appears instead that the alleged error adversely affects Lopez, who neither objected to the alleged error below, nor appealed the Order, nor even filed an answer brief.

If Lopez appealed this alleged error, this court would have rejected the appeal because he failed to preserve the error for review. See Alfred v. Dep't of Revenue , 204 So.3d 583, 585 (Fla. 4th DCA 2016). We should not ignore Lopez's lack of preservation simply because DOR raises the unpreserved error itself. See Davis v. Dep't of Revenue , 221 So.3d 790 (Fla. 2d DCA 2017) (declining to accept DOR's concession of error due to "Mr. Davis's failure to participate at any point in the proceedings below"). An appellant cannot "concede error" on behalf of the appellee when that error has never been raised by appellee. I would reject any such concession and affirm the order under review.


author: Per Curiam.

text:
    John G. MCKNIGHT, Appellant, v. Nancy L. MCKNIGHT, Appellee.
    No. 1D17-5088
    District Court of Appeal of Florida, First District.
    August 1, 2018
    E. Jane Brehany, Pensacola, for Appellant.
    Crystal C. Spencer of Spencer Law PA, Pensacola, for Appellee.
   Per Curiam.

Appellant, the former husband, challenges two aspects of the final judgment dissolving his marriage to Appellee, the former wife. We summarily reject the former husband's argument that the trial court used the wrong tax rates in determining the amount of the alimony award. However, we agree with his argument that the trial court abused its discretion by requiring him to maintain a $1 million life insurance policy to secure his alimony obligation to the former wife because there are no "special circumstances" warranting such security in this case.

"Special circumstances" include:

a spouse potentially left in dire financial straits after the death of the obligor spouse due to age, ill health and/or lack of employment skills, obligor spouse in poor health, minors living at home, supported spouse with limited earning capacity, obligor spouse in arrears on support obligations, and cases where the obligor spouse agreed on the record to secure an award with a life insurance policy.

Kotlarz v. Kotlarz , 21 So.3d 892, 893 (Fla. 1st DCA 2009) (quoting Richardson v. Richardson , 900 So.2d 656, 661 (Fla. 2d DCA 2005) ); see also Therriault v. Therriault , 102 So.3d 711, 713 (Fla. 1st DCA 2012) ; Mackoul v. Mackoul , 32 So.3d 741, 742 (Fla. 1st DCA 2010).

Here, although the former husband conceded in his post-hearing written closing argument that "he should obtain life insurance to secure the child support award," he did not agree to similarly secure his alimony obligation and the $1 million of life insurance required by the trial court is not commensurate with the former husband's remaining child support obligation. See Peters v. Blackshear , 53 So.3d 1233, 1234 (Fla. 1st DCA 2011) (requiring amount of security to bear reasonable relationship to amount of obligation). Moreover, the trial court did not find that the former wife would be left in "dire financial straits" after the former husband's death, nor would the record support such a finding because the former wife is relatively young, is in good health, has a college degree, and is gainfully employed; the minor child who is living with the former wife in the marital home at the time of the hearing will be 18 in less than two years; the former husband is not in arrears on any of his support obligations; and the former wife received a substantial equitable distribution including significant liquid assets. See Sweeny v. Sweeny , 113 So.3d 987, 989 (Fla. 5th DCA 2013) (striking requirement that husband secure his alimony obligation with a life insurance policy because wife received large equitable distribution and had the ability to work to support herself).

For these reasons, we reverse the life insurance security requirement in the final judgment and remand for the trial court to reduce the amount of life insurance to an amount commensurate with the former husband's remaining child support obligation. We affirm the judgment in all other respects.

AFFIRMED in part; REVERSED in part; REMANDED with instructions.

Roberts, Wetherell, and Osterhaus, JJ., concur.


author: Winokur, J. B.L. Thomas, C.J., concurring.

text:
    Michael CLAYTON, Appellant, v. STATE of Florida, Appellee.
    No. 1D17-263
    District Court of Appeal of Florida, First District.
    August 1, 2018 Rehearing Denied September 4, 2018
    Andy Thomas, Public Defender, and Laurel Cornell Niles, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Daniel R. Krumbholz, Assistant Attorney General, Tallahassee, for Appellee.
   Winokur, J.

Appellant, Michael Clayton, appeals his convictions and sentences for manufacturing cannabis, a third-degree felony, and possession of drug paraphernalia, a first-degree misdemeanor. §§ 893.13(1)(a)2., 893.147(1), Fla. Stat. Clayton argues that the trial court erred in denying his suppression motion. Because we find that the trial court erred in its application of the inevitable discovery doctrine and because Clayton reserved this matter as dispositive in his plea agreement, we reverse and vacate Clayton's judgment and sentences.

I.

During the fall of 2015, Union County Sheriff's Office Deputy John Whitehead received information from an anonymous source that Clayton was growing marijuana inside his residence. Deputy Whitehead then received information from the Clay Electric Cooperative regarding the power usage in Clayton's home, which revealed that the power usage of Clayton's home was four times higher than the normal usage of a home of comparable size. Additionally, Deputy Whitehead had the power usage documents reviewed by individuals at the Drug Enforcement Agency. Deputy Whitehead concluded that Clayton was cultivating marijuana inside his residence.

Deputy Whitehead then went with others to Clayton's home to conduct a "knock and talk" investigation. Deputy Whitehead and his colleagues contacted Clayton outside in the yard, and obtained consent from Clayton to search the home. Clayton also signed a consent to search form. Afterwards, Clayton admitted to cultivating marijuana in his home and that he was the only individual residing in the residence.

The subsequent search of Clayton's residence revealed two rooms set up with lighting and marijuana plants growing in various containers. Several electrical tools were also found, which were used to run fans and lighting and other aspects of indoor marijuana cultivation.

After the State charged Clayton with manufacturing and possession, Clayton moved to suppress the evidence found in the search on the ground that his consent to search was coerced. During the suppression hearing, Deputy Whitehead testified that he advised Clayton of the probable cause that he developed that Clayton was growing marijuana in his home. Regarding Clayton's consent to search, Deputy Whitehead testified as follows:

Initially, I just requested consent to search the residence, I told him, you know, based off the facts before us, I do believe that if we presented this to a judge that there would be enough probable cause for a judge to sign it; however, obviously, that would have to be taken to the state attorney and in the judge's hand. And told him if he cooperated with us, we'd cooperate with him and that I could assure him that on this date, this event, that he would not go to jail unless, like I usually explain to everybody, unless I get inside and find dead bodies or something like that, then, you know, he would be - - charges would be filed and he would later be arrested on a warrant.

Deputy Whitehead also testified that Clayton was not free to leave during their encounter, and that no attempt was ever made to secure a search warrant because Clayton consented to the search. For his part, Clayton testified that law enforcement made it seem like he was going to be arrested if he did not consent to the search of his home.

The trial court denied the motion to suppress. The trial court concluded that Clayton's consent was coerced, but found that the inevitable discovery doctrine applied because "law enforcement had the probable cause to procure a search warrant, and were in the process of an active investigation into the existence of a cannabis cultivation operation at [Clayton]'s home." Clayton then pled to the charges, reserving his right to appeal the denial of the motion, which the trial court found was dispositive of the charges. See Fla. R. App. P. 9.140(b)(2)(A)(i).

II.

A trial court's ruling on a motion to suppress evidence presents a mixed question of law and fact. Connor v. State , 803 So.2d 598, 608 (Fla. 2001). The trial court's factual findings will be upheld if there is competent substantial evidence to support them. State v. Young , 974 So.2d 601, 608 (Fla. 1st DCA 2008). However, the trial court's application of the law to those facts is reviewed de novo . Id.

The Fourth Amendment of the United States Constitution proscribes unreasonable searches and seizures. Florida's State Constitution also protects the rights of individuals against unreasonable searches and seizures and construes the right in conformity with the Fourth Amendment and its interpretation by the United States Supreme Court. Art. I, § 12, Fla. Const.

Accordingly, warrantless searches or seizures are "per se unreasonable." Katz v. United States , 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). The warrant requirement ensures that a " 'neutral and detached magistrate' [stands] between the citizen and 'the officer engaged in the often competitive enterprise of ferreting out crime.' " United States v. Karo , 468 U.S. 705, 717, 104 S.Ct. 3296, 82 L.Ed.2d 530 (1984) (quoting Johnson v. United States , 333 U.S. 10, 14, 68 S.Ct. 367, 92 L.Ed. 436 (1948) ). Evidence obtained through an unlawful search or seizure is inadmissible. Tims v. State , 204 So.3d 536, 538 (Fla. 1st DCA 2016) (citing Herring v. United States , 555 U.S. 135, 139, 129 S.Ct. 695, 172 L.Ed.2d 496 (2009) ).

One of the recognized exceptions to the exclusionary rule is the inevitable discovery doctrine. The doctrine was adopted by the United States Supreme Court in Nix v. Williams , 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984), and has long been recognized by Florida courts. Fitzpatrick v. State , 900 So.2d 495 (Fla. 2005) ; Moody v. State , 842 So.2d 754, 759 (Fla. 2003) ; Craig v. State , 510 So.2d 857 (Fla. 1987). Under the inevitable discovery doctrine, "evidence obtained as the result of unconstitutional police procedure may still be admissible provided the evidence would ultimately have been discovered by legal means." Maulden v. State , 617 So.2d 298, 301 (Fla. 1993).

This Court addressed the applicability of the inevitable discovery doctrine in McDonnell v. State , 981 So.2d 585 (Fla. 1st DCA 2008). In McDonnell , police went to the defendant's home while investigating a theft. 981 So.2d at 587. Initially, the defendant refused to consent to a search of his home. Id. As a result, one officer left the scene to obtain a warrant. Id. While waiting for the officer to return, the defendant consented to the search after another officer asked, which led to the discovery of incriminating evidence. Id. at 588. While finding that the defendant's consent was coerced, the trial court ruled the evidence admissible because the evidence would have been discovered inevitably. Id. at 589.

On appeal, this Court affirmed. Id. at 593. We found that police were actively in the process of securing a search warrant when the warrantless search occurred. Id. While we held that "the inevitable discovery doctrine will not be applied in every case where the police had probable cause for a search warrant, but failed to get one," the focus is on "whether the police made an effort to get a warrant prior to the illegal search and whether strong probable cause existed for the search warrant." Id. (emphasis added).

In contrast, the police in King v. State , 79 So.3d 236 (Fla. 1st DCA 2012), did not attempt to secure a warrant before the defendant's home was searched. King involved an investigation into a domestic disturbance where the defendant's wife led law enforcement into the home and directed them to defendant's firearm. Id. at 237. The trial court denied suppression of the firearm because police would have inevitably discovered it. Id. We reversed, rejecting the application of the inevitable discovery doctrine and reaffirming that law enforcement must take affirmative steps to secure a warrant in order for the doctrine to apply. Id. at 238. See also Rodriguez v. State , 187 So.3d 841, 848, 849-50 (Fla. 2015) (holding that "the inevitable discovery doctrine does not apply when the prosecution cannot demonstrate an active and independent investigation," that the state must show "that a search warrant [is] being actively pursued prior to the occurrence of the illegal conduct" in order to use the inevitable discovery doctrine, and that the doctrine "cannot function to apply simply when police could have obtained a search warrant if they had taken the opportunity to pursue one.").

III.

In this context, inevitable discovery supports admission of illegally obtained evidence only when police actively sought to obtain a search warrant before searching a home. Based on that analysis, the trial court erred in denying Clayton's motion to suppress. We reject the State's attempt to distinguish this case from Rodriguez .

The State argues that the inevitable discovery doctrine permits admission here because police were engaged in an "active investigation" at the time of the illegal police conduct. In fact, Rodriguez holds that the inevitable discovery doctrine does not permit admission of illegally-seized evidence just because officers were conducting an "active investigation" at the time of the illegality, even when they have already developed probable cause for a search warrant at the time of the improper conduct. Instead, Rodriguez holds that the inevitable discovery doctrine permits admission of illegally-seized evidence only when the police misconduct occurs when "the police were in the process of obtaining a warrant prior to the misconduct." Id. at 849. Any other result would allow the exception to swallow the rule. If the inevitable discovery doctrine were applied this way, any time police have probable cause to search a home, they could do so without seeking a search warrant and the State would be permitted to introduce evidence seized in such a search by asserting that the evidence would have been discovered inevitably. Such a rule would eviscerate the warrant requirement.

Here, officers made no attempt to obtain a search warrant because Clayton consented to the search of his home. The trial court concluded that the officers "appeared to have ample opportunity to procure a search warrant prior to executing the search of [Clayton]'s home." The fact that officers could have obtained a search warrant does not permit admission of improperly seized evidence under the inevitable discovery doctrine.

Police who have probable cause to search a home are placed in a difficult position. They can take the time and attendant risk to secure a search warrant, or they can ask the homeowner for consent to search, "with the threat of suppression if they guess wrong," Davis v. United States , 512 U.S. 452, 461, 114 S.Ct. 2350, 129 L.Ed.2d 362 (1994), by asking for consent the wrong way. Either way, the police had probable cause to search, but will suffer suppression if they choose consent but secure it improperly. Nonetheless, the result here is necessary if we are to maintain a system where we prefer searches pursuant to warrant. See United States v. Ventresca , 380 U.S. 102, 106, 85 S.Ct. 741, 13 L.Ed.2d 684 (1965) (holding that the United States Supreme Court "strongly support[s] the preference to be accorded searches under a warrant").

IV.

The trial court ruled that Clayton's consent to search his home was coerced. Because the inevitable discovery doctrine is inapplicable, the warrantless search of Clayton's home violated his Fourth Amendment right against unreasonable searches. Since the State conceded that the suppression motion was dispositive to this case, we reverse Clayton's convictions and vacate his sentences.

REVERSED and VACATED .

B.L. Thomas, C.J., concurs with opinion; Makar, J., concurs with opinion.

B.L. Thomas, C.J., concurring.

I concur with the opinion of Judge Winokur. I write to note that intermediate courts are not "juries" which evaluate the correctness of the decisions of the Florida Supreme Court; there are only inferior courts, which are bound by law to follow the majority decisions of the higher court, although such inferior courts may urge the Florida Supreme Court to reconsider its decisions. Hoffman v. Jones , 280 So.2d 431, 434 (Fla. 1973). The applicable binding precedent in this case is Rodriguez v. State, 187 So.3d 841, 848, 849-50 (Fla. 2015). The majority in Rodriguez approved of Judge Hawkes' dissenting rationale in McDonnell v. State , 981 So.2d 585, 593 (Fla. 1st DCA 2008) (Hawkes, J., dissenting), regarding the inevitable-discovery exception to the warrant requirement. Here, the law enforcement officers possessed probable cause that would have supported the issuance of a search warrant of Appellant's home, had one been requested, based on the review of the use of the power consumption in the home which corroborated the anonymous complaint. But because the officers were not in the process of obtaining a search warrant, the evidence must be suppressed under Rodriguez .

Makar, J., concurring with opinion.

Police officers-who obtained coerced consent from Michael Clayton to enter his home where they found marijuana growing-made no attempt to get a search warrant, negating the application of Florida's inevitable discovery rule. Rodriguez v. State , 187 So.3d 841, 849 (Fla. 2015) ("We conclude that permitting warrantless searches without the prosecution demonstrating that the police were in pursuit of a warrant is not a proper application of the inevitable discovery rule."). The Florida rule lies in one tail of a distribution of state and federal court decisions reflecting wide-ranging jurisprudential camps including: (a) those that admit illegally obtained evidence where a search warrant was theoretically obtainable but not pursued; (b) those that bar such evidence because no search warrant was sought; and (c) those that focus on the extent to which an ongoing lawful search would have led to the evidence with or without a search warrant.

Rodriguez 's bright-line rule-requiring proof that pursuit of a search warrant was ongoing at the time of the illegal police conduct-was established by a 4-3 vote, the dissenters advocating a more nuanced approach, pointing to Nix v. Williams , 467 U.S. 431, 104 S.Ct. 2501, 81 L.Ed.2d 377 (1984). In Nix , the inevitable discovery exception to the exclusionary rule was adopted, requiring only that the prosecution "establish by a preponderance of the evidence that the information ultimately or inevitably would have been discovered by lawful means" to avoid exclusion. Id. at 444, 104 S.Ct. 2501. This more flexible standard was applied in Craig v. State , 510 So.2d 857, 863 (Fla. 1987), which upheld the admission of wrongfully-obtained evidence because it "would have been found independently even without the statements, by means of normal investigative measures that inevitably would have been set in motion as a matter of routine police procedure."

Neither Nix nor Craig involved the issue of whether a search warrant of a home was in the works at the time of the unlawful police conduct, distinguishing them from Rodriguez , which is not alone in adopting a bright-line rule in this context, see McMahon, supra , note 1, one that makes sense by discouraging actions that bypass the Constitution's prohibition against unreasonable searches of homes and the requirement of a warrant based on probable cause, as Judge Winokur thoroughly explains. Why bother with a search warrant in non-exigent circumstances if evidence from a warrantless intrusion can be validated after-the-fact by showing that, hypothetically, a search warrant might have been sought and obtained eventually?

That said, Rodriguez broke new ground, and the jury is still out on whether the balance its bright-line rule struck is the most sensible one in light of the purpose of the exclusionary rule (as Justice Canady's dissent in Rodriguez explained in detail). On one hand, the rule in Rodriguez fosters an incentive (perhaps even an over-incentive) to invest in standard police procedures to procure search warrants prior to or contemporaneously with ongoing investigations involving no exigencies thereby hewing more closely to constitutional norms regarding searches of homes; on the other hand, the rule in Rodriguez may prove to be costly by suppressing evidence that would be discovered by "normal investigative measures" and "routine police procedures" other than a search warrant. In this case, the investigation of Clayton consisted of only an anonymous source and high residential power bills, which courts that have addressed the issue have deemed inadequate for search warrants of homes, making at least some modicum of additional investigative work necessary to support a warrant under Rodriguez . Even under Nix and Craig the record here doesn't show that the marijuana would have inevitably been discovered by normal or routine investigative procedures. All in all, reversal of Clayton's conviction on the dispositive issue of the inapplicability of the inevitable discovery rule is proper by any standard.

      Regarding Clayton's consent, the court wrote: "In effect, [Clayton]'s choices were either (a) consent to the search of his home that evening, or (b) the officers would detain [Clayton] indefinitely while a search warrant for [his] home was secured."

      See generally Martin J. McMahon, What circumstances fall within "inevitable discovery" exception to rule precluding admission, in criminal case, of evidence obtained in violation of federal constitution , 81 A.L.R. Fed. 331 (1987 and Supp. 2018) (citing cases from state and federal jurisdictions). The Eleventh Circuit, which includes Florida, falls into this latter category. Jefferson v. Fountain , 382 F.3d 1286, 1296 (11th Cir. 2004) ("In order for evidence to qualify for admission under this exception to the exclusionary rule, there must be a reasonable probability that the evidence in question would have been discovered by lawful means, and the prosecution must demonstrate that the lawful means which made discovery inevitable were being actively pursued prior to the occurrence of the illegal conduct.").

      It wasn't a big leap because "[e]very Federal Court of Appeals having jurisdiction over criminal matters, including the Eighth Circuit in a case decided after the instant case, has endorsed the inevitable discovery doctrine." 467 U.S. at 441, 104 S.Ct. 2501.

      United States v. Clark , 31 F.3d 831, 835 (9th Cir. 1994) ; Carter v. State , 910 P.2d 619, 625-26 (Alaska Ct. App. 1996) ; State v. Benters , 367 N.C. 660, 673, 766 S.E.2d 593 (2014) ; State v. Young , 123 Wash. 2d 173, 196, 867 P.2d 593 (1994) ; State v. McPherson , 40 Wash.App. 298, 698 P.2d 563 (1985).


author: COHEN, C.J. EISNAUGLE, J., concurring in part and dissenting in part.

text:
    Sara A. BUSCHOR n/k/a Sara A. Barnes, Appellant, v. Joseph BUSCHOR, Appellee.
    Case No. 5D17-155
    District Court of Appeal of Florida, Fifth District.
    Opinion filed August 1, 2018
    Jarett A. de Paula, of David A. Vukelja, P.A., Ormond Beach, for Appellant.
    Barry P. Burnette, of Barry P. Burnette, P.A., Tavares, for Appellee.
   COHEN, C.J.

Sara Buschor ("Former Wife") appeals a Final Judgment of Modification entered in favor of Joseph Buschor ("Former Husband"), which changed the primary residence of the parties' minor child to that of Former Husband by awarding Former Husband seventy percent timesharing and denied Former Wife's petition for relocation. Former Wife argues that the timesharing modification and change in the child's primary residence violates her due process rights because Former Husband did not seek that relief in his pleadings below. Former Wife also contends that the trial court abused its discretion in denying her petition for relocation. We agree on both points and reverse.

The record confirms that Former Wife did not have notice that the trial court might change the child's primary residence or award any more than equal timesharing to Former Husband, which is the amount he requested in his petitions for modification. This lack of notice and the trial court's ruling constituted relief outside of that requested in Former Husband's pleadings in violation of Former Wife's due process rights. See, e.g., Maras v. Still, 927 So.2d 192 (Fla. 2d DCA 2006) (finding that former wife's due process rights were violated when trial court awarded relief not requested in former husband's pleading and former wife was without notice of the possible outcome).

As to the trial court's denial of Former Wife's petition for relocation, we find that the trial court did not properly consider the best interest factors set forth in section 61.13, Florida Statutes (2015), or the factors regarding relocation set forth in section 61.13001, Florida Statutes (2015). With respect to the findings the trial court did make, the record reveals those findings to be unsupported by competent, substantial evidence. The undisputed evidence presented should have resulted in the granting of Former Wife's petition for relocation.

Section 61.13001(7) expressly states that no "presumption in favor of or against a request to relocate with the child" arises simply because a "move will materially affect the current schedule of contact, access, and timesharing with the nonrelocating parent." See § 61.13001(7), Fla. Stat. Instead, when considering whether to allow a requested relocation, the court must consider all of the following factors:

(a) The nature, quality, extent of involvement, and duration of the child's relationship with the parent or other person proposing to relocate with the child and with the nonrelocating parent, other persons, siblings, half-siblings, and other significant persons in the child's life.
(b) The age and developmental stage of the child, the needs of the child, and the likely impact the relocation will have on the child's physical, educational, and emotional development, taking into consideration any special needs of the child.
(c) The feasibility of preserving the relationship between the nonrelocating parent or other person and the child through substitute arrangements that take into consideration the logistics of contact, access, and time-sharing, as well as the financial circumstances of the parties; whether those factors are sufficient to foster a continuing meaningful relationship between the child and the nonrelocating parent or other person; and the likelihood of compliance with the substitute arrangements by the relocating parent or other person once he or she is out of the jurisdiction of the court.
(d) The child's preference, taking into consideration the age and maturity of the child.
(e) Whether the relocation will enhance the general quality of life for both the parent or other person seeking the relocation and the child, including, but not limited to, financial or emotional benefits or educational opportunities.
(f) The reasons each parent or other person is seeking or opposing the relocation.
(g) The current employment and economic circumstances of each parent or other person and whether the proposed relocation is necessary to improve the economic circumstances of the parent or other person seeking relocation of the child.
(h) That the relocation is sought in good faith and the extent to which the objecting parent has fulfilled his or her financial obligations to the parent or other person seeking relocation, including child support, spousal support, and marital property and marital debt obligations.
(i) The career and other opportunities available to the objecting parent or other person if the relocation occurs.
(j) A history of substance abuse or domestic violence as defined in s. 741.28 or which meets the criteria of s. 39.806(1)(d) by either parent, including a consideration of the severity of such conduct and the failure or success of any attempts at rehabilitation.
(k) Any other factor affecting the best interest of the child or as set forth in s. 61.13.

Id. § 61.13001(7)(a)-(k). Section 61.13 provides twenty factors regarding the best interest of the child for the court to consider when modifying a timesharing agreement. Id. § 61.13(3)(a)-(t). As the parent seeking relocation, Former Wife has the burden of proving by a preponderance of the evidence that relocation is in the best interest of the child. Id. § 61.13001(8). If this initial burden is met, the burden then shifts to the nonrelocating parent, Former Husband here, to show by a preponderance of the evidence that relocation is not in the best interest of the child. Id. Granting or denying relocation based on findings that are not supported by competent, substantial evidence constitutes reversible error. E.g., Berrebbi v. Clarke, 870 So.2d 172, 173 (Fla. 2d DCA 2004).

The parties divorced prior to the birth of their child, and the parties' marital settlement agreement provided that the unborn child "shall reside primarily with the Mother." The agreement further provided that "the Father shall have liberal and frequent contact and access with the child as agreed upon by the parties, and each of the parties shall exercise the utmost of good faith and consent to all reasonable requests of the other party in connection therewith." The agreement outlined specific graduated timesharing based on the child's age.

Despite having only seen the child a handful of times over the first three months of the child's life, Former Husband filed his first supplemental petition to modify parental responsibility, visitation, or parenting plan/timesharing schedule when the child was just over three months old, requesting to alter the recently agreed-upon arrangement. That supplemental petition was resolved at mediation, and the mediated settlement agreement modified the parties' original timesharing arrangement by increasing Former Husband's routine timesharing as follows:

The Father shall be entitled to timesharing every other weekend from Saturday at 9:00 A.M. until Sunday at 6:00 P.M..... It is also agreed that the Father shall be entitled to have timesharing with the minor child each week on Tuesday from after work and in no event later than 6:00 P.M. by picking up the minor child from either the Mother or the child's child care provider and this timesharing continuing until the following morning, at which time the Father shall ensure that the minor child is either dropped to the Mother's home or to the minor child's child care provider by 9:00 A.M.

The mediated settlement agreement also provided that the parties "shall be entitled to agree on additional timesharing so long as they mutually agree."

One year after the modification order was entered, Former Husband filed a second supplemental petition for modification, requesting that the trial court modify his visitation "to provide [him] with 50% of the contact, visitation and parenting of the minor child...." In the petition, Former Husband alleged that Former Wife had engaged in alienation of affection, had him falsely arrested shortly after the modification, filed a frivolous injunction solely for the purpose of keeping Former Husband away from the child, caused Former Husband to come under investigation by the FDLE, failed to keep Former Husband apprised of information regarding the health and welfare of the child, falsely accused his wife of biting the parties' child, and caused her employer (the church daycare) to deny Former Husband the ability to visit the child at the daycare and to go online to view the child at the daycare in real time.

While Former Husband's petition was pending, Former Wife's current husband learned that his employment as a master technician in a specialized field would be coming to an abrupt end. He was given the option to continue working his same job in South Florida or Alabama. He searched for local jobs in the same industry that would offer the same benefits and similar pay so that he could continue to support his family without relocating, but found none. Given that the current husband was the primary provider for his family and that he could not find comparable employment locally that would provide insurance benefits, he felt compelled to accept the employment offer and move to South Florida out of necessity.

Consequently, Former Wife filed a motion for relocation, requesting to relocate with the child to South Florida due to financial necessity arising from her current husband's change of employment. Former Wife noticed her motion for relocation for a hearing prior to moving, and Former Husband responded by filing a motion asking the court, in part, to strike Former Wife's relocation request as improper under section 61.13001(3), Florida Statutes.

The trial court held a hearing on Former Husband's motion to strike but canceled the hearing on Former Wife's motion to relocate, instructing the parties to attempt to resolve their timesharing and parenting disputes among themselves. The next day, Former Wife filed a supplemental petition for modification of final judgment for relocation, and without obtaining a court order, moved with the parties' child to South Florida. Former Husband immediately filed a motion for contempt and return of the child, but the parties subsequently entered into a joint stipulation on temporary timesharing addressing the relocation. The temporary agreement provided the parties equal timesharing with the child on an alternating weekly basis for six months or until further order of the court, whichever occurred first. The parties agreed to exchange the child at a location equidistant from each party's home. When the temporary agreement expired, Former Wife offered to continue the same arrangement, but Former Husband refused to meet Former Wife at the previously agreed-upon location, instead demanding that Former Wife transport the child to and from his home.

Much of the trial court's rationale for denying relocation and granting Former Husband's petition for modification stems from problems the parties had with communication and visitation, which led the court to believe that Former Wife would not cooperate in allowing Former Husband liberal and frequent visitation with the child. As every judge who has presided over domestic cases knows, liberal and frequent visitation is virtually always defined. There is a good reason for that. Not to do so is to ensure that the parties will be back before the court on a regular basis.

Here, the parties voluntarily entered into a timesharing agreement modifying their initial agreement. While the modification allowed Former Husband additional visitation, the agreement defined specific visitation and allowed additional timesharing so long as the parties mutually agreed. Notwithstanding, the trial court effectively punished Former Wife for not yielding to what the evidence revealed was Former Husband's ever-increasing demands for more timesharing. Stated differently, the evidence does not support the trial court's finding that Former Wife did not go out of her way to allow more timesharing than set forth in the parties' agreement. Indeed, the collection of e-mails and text messages entered into evidence were consistent with Former Wife's testimony that she routinely allowed additional timesharing despite the fact that Former Husband was demanding and never satisfied with the extra visitation. Further, the evidence was undisputed that Former Husband repeatedly sought more and more accommodations to his requests for additional time with the child, and when Former Wife made efforts to accommodate those requests, Former Husband would violate the terms of even those agreements.

The incident that led to Former Husband's arrest for domestic battery and burglary of an occupied dwelling serves as an example of Former Husband's aggressive behavior. Pursuant to the parties' agreement, Former Husband was scheduled to have the child after work on Tuesday evenings. Because Former Husband was not working that day, he asked Former Wife to allow his visitation to begin earlier. Former Wife accommodated that request, agreeing to an earlier pickup time. Instead of arriving at the agreed-upon time, Former Husband appeared at Former Wife's home even earlier and insisted on taking the child, who was still asleep. Uninvited, he forcefully entered Former Wife's home and took the child from his room.

Former Husband also routinely removed the child from daycare without prior notice to Former Wife. Even following his arrest, Former Husband conducted pre-dawn surveillance on Former Wife's home. He would demand additional timesharing via text message, and when Former Wife did not quickly respond, would construe her delay as consent.

It is also undisputed that Former Husband would physically withhold the child from Former Wife and would insist on discussing their disputes in the presence of the child, despite Former Wife's request to desist. When asked if those "discussions" would often last thirty minutes, Former Husband, as was his penchant, was unresponsive, stating, "I wouldn't put a time frame on it." Former Husband refused to participate in a program called "Talking Parents" that would have kept a record of the parties' communications.

On one occasion, Former Husband was so disruptive at the child's daycare that other children in the class became upset and began crying. When the daycare administration responded and asked Former Husband to continue the conversation outside the presence of the young children, he refused. The daycare administration characterized Former Husband as combative, which is consistent with Former Wife's description of Former Husband's behavior.

The evidence reflected that Former Husband would ask for visitation almost every day and then complain that Former Wife would not agree to his "reasonable requests." Former Wife's obligation was to follow the timesharing schedule agreed to by the parties and adopted by order of the court. The evidence is undisputed that Former Wife did so and more, agreeing to many of Former Husband's various requests for additional timesharing. Accordingly, the basis for the trial court's decision to deny Former Wife's petition for relocation, that Former Wife would not cooperate in allowing liberal and frequent visitation, is not supported by competent, substantial evidence.

Moreover, applying the relocation criteria set forth in section 61.13001(7) and the best interest factors set forth in section 61.13(3) to the undisputed facts clearly reveals that Former Wife met her burden of proving by a preponderance of the evidence that relocation is in the best interest of the child. For example, as to section 61.13001(7)(a) and section 61.13(3)(d), it is undisputed that Former Wife had been the primary caregiver for the child since his birth, and there was no evidence that the child was not thriving in her care. Further, as detailed above, Former Wife has demonstrated that she has facilitated and encouraged a close and continuing relationship between Former Husband and the child, that she has honored the timesharing schedule agreed to by the parties and adopted by the court, and that she is more than reasonable when changes are requested, often accommodating requests for more visitation despite Former Husband's hostile attitude toward her. § 61.13(a), (c), Fla. Stat. (2015).

In addition, under section 61.13001(7)(f)-(h), the trial court recognized that relocation was a financial necessity for Former Wife and her family and that they otherwise would not be able to maintain health insurance for their blended family, including the child who is the subject of the parties' litigation. Further, if allowed to relocate, the child would attend one of the top schools in South Florida where Former Wife works as a teaching assistant. Id. § 61.13001(7)(b), (e). Moreover, Former Wife undisputedly testified that as a result of the relocation, the parties' confrontational communications have diminished, and the child's exposure to Former Husband's routine displays of hostility toward her prior to her relocation have been eliminated, providing the child a more stable environment. Regarding section 61.13001(7)(c), the record confirms that both parties are capable of timesharing despite the distance between them and that both parties are capable of, and had been successfully complying with, substitute timesharing arrangements between the time of Former Wife's relocation and the trial, a six-month period of equal timesharing that the parties facilitated without incident. In sum, Former Wife met her burden of proving by a preponderance of the evidence that relocation is in the best interest of the child. Id. § 61.13001(7)(a), (b), (c), (e), (f), (g), (h), (k).

Because Former Wife met her burden of proof, the burden then shifted to Former Husband to show by a preponderance of the evidence that relocation is not in the best interest of the child. Id. § 61.13001(8). Former Husband failed to meet his burden. While he complains that Former Wife did not agree to his "reasonable requests," suggesting that she would not foster a continuing meaningful relationship between the child and him if permitted to relocate, it bears repeating that the undisputed evidence was that Former Wife complied with the timesharing to which the parties agreed, and she allowed additional timesharing even when Former Husband demanded, instead of requested, that time. The collection of e-mails and text messages exchanged between the parties reflected as much. And while Former Wife's relocation without consent or a court order was improper (a factor the trial court should and did consider), that alone is insufficient to support the denial of relocation. See, e.g., Landingham v. Landingham, 685 So.2d 946 (Fla. 1st DCA 1996) (finding that former wife demonstrated substantial change in circumstances and that move would be in best interest of child even where former wife violated injunction by moving outside state with child).

Ultimately, the record reflects that competent, substantial evidence did not support the trial court's denial of Former Wife's petition for relocation. Rather, the trial court should have granted the request because Former Wife clearly established that the relocation served the child's best interest, and Former Husband failed to carry his burden of proving that relocation was not in the child's best interest. See, e.g., Orta v. Suarez, 66 So.3d 988, 989-1002 (Fla. 3d DCA 2011) (finding that former wife was entitled to relocate with parties' child where former wife met burden of demonstrating that relocation was in best interest of child and former husband failed to demonstrate why proposed relocation was not in child's best interest). Therefore, we reverse the final judgment changing the child's primary residence to that of Former Husband and denying Former Wife's petition for relocation. We remand with directions for the trial court to grant Former Wife's relocation request and to formulate a timesharing agreement consistent with this opinion.

REVERSED and REMANDED.

MUNYON, L., Associate Judge, concurs.

EISNAUGLE, J., concurs in part and dissents in part, with opinion.

EISNAUGLE, J., concurring in part and dissenting in part.

I agree with the majority that the modification of timesharing and change in the child's primary residence should be reversed on due process grounds. Therefore, a new trial on this issue is in order.

However, I disagree with the majority's conclusion that the trial court's denial of the relocation petition is not supported by competent, substantial evidence. Although I might well have weighed the factors differently were I the trial judge, it is not for this court to reweigh the evidence on appeal. Wraight v. Wraight , 71 So.3d 139, 142 (Fla. 5th DCA 2011) (recognizing in a relocation case that "this Court cannot reweigh the evidence considered by the trial court. We can only decide whether substantial competent evidence exists to support the trial court's decision." (citations omitted) ). In my view, the majority has reviewed the final judgment for the greater weight of the evidence rather than for competent, substantial evidence.

Without belaboring the point, the evidence at trial included, but was not limited to, testimony and evidence from which the finder of fact could conclude that:

(1) Former Wife improperly relocated with the child without authorization from the trial court;
(2) Former Wife unreasonably refused to allow Former Husband to communicate with their three-year-old child via Skype, instead of by phone, so that he could see his father and siblings;
(3) Former Wife at times would refuse to facilitate even simple phone calls between the child and Former Husband;
(4) Former Wife unreasonably limited her own communications with Former Husband, if she responded at all, demanding that he exclusively communicate with her via e-mail and refusing to communicate in person, by phone, or even text message;
(5) Former Wife sometimes failed to consult with Former Husband when choosing the child's healthcare providers; and
(6) Former Wife unreasonably declined Former Husband's requests for additional time with the child in violation of the parties' settlement agreement. For instance, Former Wife admitted at trial that she would take the child to daycare when she worked instead of permitting Former Husband to care for the child. On one such occasion, when Former Husband asked if he could care for the child during the day while Former Wife worked, Former Wife responded only by saying that she believed it was in the child's "best interest" to "fully participate full-time at the [daycare]."

This and other evidence below supported the trial court's ruling. While I readily concede that there was a host of evidence which would have permitted the trial court to grant the petition for relocation, the point here is that it is not our role to determine credibility, resolve conflicts, or weigh the evidence presented at trial. Therefore, I believe we are constrained to affirm the trial court's denial as to relocation.

Finally, as the majority notes, Former Wife argues that the most recent settlement agreement does not require her to reasonably accommodate Former Husband's requests for additional timesharing. Specifically, she argues that the parties' original agreement to exercise the "utmost good faith" in consenting to reasonable requests of the other party was modified by the Mediated Settlement Agreement.

Even if this argument were preserved, it is without merit. The original settlement agreement remained in full force and effect unless modified by the Mediated Settlement Agreement. The provision in the Mediated Settlement Agreement relied upon by Former Wife states that it replaces the parties' original timesharing plan, which is set forth in Paragraph 2E of the original settlement agreement. In contrast, the provision requiring the parties to exercise the "utmost good faith" in granting reasonable requests for additional timesharing is in Paragraph 2D of the original settlement agreement. In short, Paragraph 2D's requirement that the parties exercise the "utmost good faith" remains in full force and effect because it is found in an entirely separate provision and was not modified by the Mediated Settlement Agreement.

      Shortly after that modification order was entered, Former Wife married her current husband. Former Husband also married his current wife.

      Notably, all of the allegations made in Former Husband's petition were baseless. For example, there is no evidence in the record that Former Wife had alienated the child's affections for Former Husband. Likewise, while Former Husband blames his departure from the Mount Dora Police Department on Former Wife, he produced no evidence or documentation to support that claim. Of further interest is Former Husband's acknowledgment that his current wife "possibly" had bitten the child. Also, there was no evidence presented that Former Wife took any action to prevent Former Husband from accessing the daycare's online system or that he had been prevented from visiting the child at the daycare. As for the circumstances of his "false arrest," the same will be addressed later herein.

      Significantly, the parties' child is covered under the current husband's health insurance even though the final judgment required Former Husband to maintain health insurance for the child. Former Husband failed to do so, instead enrolling the child in what he characterized as Medicaid. As a result, the current husband covered the child through his insurance plan. The current husband also provides the insurance for his two older children from a previous marriage, as well as the newborn child he and Former Wife recently had together.

      Former Wife testified that the daily hostility Former Husband subjected her to decreased since her relocation. Former Wife also found employment as a teaching assistant at one of the top schools in Florida, which would allow the child to attend school at a discounted price.

      To the extent that the majority's opinion can be interpreted as reversing the denial of the petition for relocation based on a lack of findings by the trial court, I note that this issue was not argued in the initial brief, other than a fleeting reference buried in a heading, and is therefore waived. Cf. State v. Dougan , 202 So.3d 363, 378 (Fla. 2016) ("The State raises this argument for the first time in its Reply Brief in this Court, so it is waived.").