author:
PER CURIAM. TAYLOR, J.,
      MAY, J.,

text:
    Cameshia BYRD, Appellant, v. BT FOODS, INC. d/b/a Wendy’s Coral Springs, a Florida corporation, Appellee.
    No. 4D07-5065.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 2009.
    Rehearing Denied Feb. 22, 2010.

      Keith M. Stern of Shavitz Law Group, P.A., Boca Raton, for appellant.
    Aaron R. Resnick of the Law Offices of Aaron Resnick, P.A., Miami Beach, and Joshua B. Speetor of Perlman, Yevoli & Albright, P.L., Fort Lauderdale, for appel-lee.
   PER CURIAM.

Cameshia Byrd sued her employer, BT Foods, Inc. d/b/a Wendy’s Coral Springs (BT Foods), claiming that the employer discriminated against her when it terminated her from her cashier position because she had the Human Immunodeficiency Virus (HIV). The jury found for BT Foods. In this appeal from the final judgment on the jury verdict, Byrd contends that the trial court abused its discretion in admitting into evidence the “no reasonable cause” determination letter issued by the Broward County Civil Rights Division (BCCRD). We agree and reverse.

The Factual Dispute

Byrd began working as a cashier for Wendy’s Restaurant in Coral Springs in November 2003. When she was hired, she informed her supervisor, Rose Johnson, that she was HIV positive. Shortly thereafter, Johnson conveyed this information to the general manager, Lynzell Hicks, who, in turn, told one of the restaurant owners, Thomas Miko. During the seven-month period that Byrd worked at the restaurant, she often missed work due to HIV-related symptoms or side effects from, her antiviral medication. However, after presenting discharge papers from her doctor or hospital, she was always allowed to return to work. This practice was consistent with BT Foods’ “no call/no show” policy: an employee who fails to call or show up for work has to present a doctor’s note or some similar documentation to excuse an absence.

Byrd testified that she became ill in June 2004. On June 17, 2004, she went to the office of her primary doctor, Gary Richmond, M.D. There, she was seen by the nurse, Vernon Appleby, who gave her a doctor’s note so she could return to work. Appleby testified at trial, authenticating the note. Byrd testified that because she was not feeling well, she asked her former boyfriend, Gregory Handberry, to take the note to her supervisor, Rose Johnson, so she could put her back on the schedule. Handberry testified that Johnson refused to accept the note, calling it a fake. The next day, Byrd went to the restaurant to personally deliver the note to Johnson. Johnson again refused it and told her that she would not be permitted to resume working until she brought in a “harder note” to place in her file. Byrd decided to speak with the general manager, Lynzell Hicks. She testified that she met with Hicks and showed him the note. During the meeting, she also spoke on the phone with the owner, Thomas Miko. According to Byrd, Miko told her to bring him proof of her HIV status. She complied by submitting her lab results. Based on her conversations with Hicks and Miko, Byrd believed that she would be allowed to return to work. She called several times and even showed up for work dressed in her Wendy’s uniform, but she was not put back on the schedule. She thought she had been fired from her position.

BT Foods representatives gave a different account of Byrd’s departure from Wendy’s. Rose Johnson testified that Byrd did not give her a doctor’s note. Instead, she gave her a small slip of paper with only a phone number on it and told Johnson that she would have to call Byrd’s doctor. Johnson refused to call the doctor or accept the paper; she told Byrd to bring her a suitable doctor’s note, as she had done before. Even though Byrd never produced a doctor’s note, Johnson followed her general manager’s instructions to place Byrd back on the work schedule for three more weeks. According to Johnson, Byrd never returned to work. She testified that Byrd was a good worker and that they would have taken her back had she brought in a doctor’s note.

Proceduml History

Agency Level

In August 2004, Byrd filed a charge of discrimination against BT Foods with the Broward County Civil Rights Division (BCCRD), an agency authorized to conduct investigations for the Equal Employment Opportunity Commission (EEOC). She alleged that BT Foods discharged her from her cashier position because of her HIV condition and violated the Americans with Disabilities Act of 1990, the Florida Civil Rights Act (Chapter 760), and the Broward County Human Rights Act. After completing its investigation of the charge, the BCCRD concluded that there was not reasonable cause to believe that BT Foods discriminated against Byrd based on her HIV condition. The agency issued a “Notice of Determination” letter stating its finding as follows:

NOTICE OF DETERMINATION
Having examined the finding and the record presented, I conclude that there is NO REASONABLE CAUSE to believe there was a violation of the Bro-ward County Human Rights Act or the Americans with Disabilities Act.

Attached to the notice was a document titled “Rationale for the Determination.” It briefly summarized the results of the investigation and stated, in pertinent part:

RATIONALE FOR THE DETERMINATION
The Broward County Civil Rights Division has completed its investigation of the above-entitled charge. The Charging Party has alleged the Respondent discriminated against her on the basis of disability in the area of employment in violation of Title VII of the Civil Rights Act of 1964, as amended, and the Bro-ward County Human Rights Act. The Respondent denied it discriminated against the Charging Party and provided an answer to the charge and supporting documents. Based on this information and the results of additional investigation, including information provided by relevant witnesses, the Bro-ward County Civil Rights Division finds no reasonable cause.

The following is the basis for this conclusion:

Reasonable Accommodation
Generally, a disabled person’s requested accommodation must address a limitation caused by the disabling condition. The evidence does not indicate the Charging Party’s unexcused absence from work during the third and fourth weeks of June was related to an illness associated with her physical impairment. Thus, the Respondent had no duty to excuse the Charging Party’s absence as a reasonable accommodation.
Discharge
The evidence indicates that Respondent has a policy “If you NO CALL / NO SHOW, you will be required to have a note from an emergency room, etc., or you will be terminated.” The evidence suggests the Charging Party provided only a phone number on a piece of paper with no doctor or clinic name. The fact the Respondent was willing to rehire the Charging Party if she produced medical verification for her absence further supports the conclusion the Respondent discharged the Charging Party because she did not produce a note from a doctor’s office or hospital and not because of her medical condition.

On January 25, 2005, the EEOC issued a notice of dismissal, which summarily stated that “based upon its investigation, the EEOC is unable to conclude that the information obtained established violations of the statutes.”

Trial Proceedings

After receiving the no cause letter of determination, Byrd brought suit in Bro-ward County Circuit Court against BT Foods and owner Thomas Miko. Her amended complaint alleged HIV discrimination and contained three counts: (1) violation of the Florida Omnibus AIDS Act, section 760.50(3)(b), Florida Statutes; (2) violation of the Florida Civil Rights Act, section 760.10(l)(a); and (3) intentional infliction of emotional distress. The trial court entered final summary judgment in favor of the defendants on all counts. On appeal, we affirmed summary judgment as to the intentional infliction of emotional distress count and all counts against the individual defendant, Thomas Miko, but we reversed summary judgment as to the statutory claims. See Byrd v. BT Foods, Inc., 948 So.2d 921 (Fla. 4th DCA 2007).

Byrd proceeded to trial on her statutory discrimination claims. Before trial, she filed a motion in limine to preclude admission of the EEOC Dismissal and Notice of Rights and the BCCRD Notice of Dismissal and Notice of Determination. She argued that these dismissal forms and the Notice of Determination were highly misleading and unduly prejudicial, and that they were too conclusory in nature to provide any meaningful probative value. She objected to the “NO REASONABLE CAUSE” statement, written in capital letters in the Notice of Determination, and expressed concern that “because these are the conclusions of a governmental agency, the jury is likely to give it more weight than is appropriate.” After argument on the motion, the trial judge denied the motion and announced at the beginning of trial that he was going to allow introduction of the “EEOC finding in this case.”

According to Byrd, the no reasonable cause determination “became a centerpiece of BT Foods’ defense from the beginning of its opening statement and throughout virtually the entire trial.” For instance, at one point during closing argument, counsel for BT Foods told the jury:

[Miko] allowed his employees to meet with the EEOC investigator without an attorney and answer whatever questions they wanted. She got a chance to meet with him, Keith Stern was representing her during part of that process.
They provided all the documents you saw here today, including Nurse Apple-by’s note, and you know what, what did we find out? After a four-month investigation by the EEOC, no reasonable cause, and let me read to you why. Number one, the evidence does not indicate the charging party’s unexcused absence from work during the third and fourth weeks of June was related to an illness associated with an impairment. That’s pretty true, because she wouldn’t go to the hospital.
Discharge. The evidence indicates the respondent has a policy if you no-call/no-show, you’ll be required to have a note from the emergency room or you will be terminated. The evidence suggests charging ... party provided only a phone number on a piece of paper with no doctor or clinic name. Sound familiar?
The fact the respondent was willing to rehire the charging party if she produced medical verification for her absence further supports the conclusion the respondent discharged the charging party because she did not produce a note from a doctors’ office or hospital and not because of her medical condition.

In his rebuttal argument, plaintiffs counsel argued:

They talk about the EEOC. They interviewed only Rose Johnson, November 8th, 2004. You can see the records. They asked her 21 questions, 21 questions. Is that a game? Mr. Miko was never interviewed or questioned. Mr. Hicks was never interviewed or questioned. Mr. Fettner was never interviewed or questioned.
They verified that Nurse Appleby’s note was correct, but they didn’t do anything about it. They’re not a Court, they’re not a jury. A one-person investigation in four months asked 21 questions. It’s meaningless.

The jury returned a verdict against Byrd, finding that her employment at Wendy’s was not terminated by the defendant. The jury also found that Byrd was not handicapped within the meaning of the Florida Civil Rights Act.

Discussion of Legal Issues

This appeal presents an issue which appears to be one of first impression under Florida law: whether the administrative findings and conclusions of the EEOC or a similar enforcement agency are admissible in a subsequent jury trial de novo under the Florida Civil Rights Act (FCRA) or similar state statutes. The parties have relied exclusively on federal ease law in their analyses. Generally, because FCRA is patterned after Title VII and related federal statutes and regulations, courts construe FCRA in conformity with Title VII and the Americans with Disabilities Act (ADA). However, state evidence codes control evidentiary questions presented in state court. This is so even where federal claims are litigated, unless the state rules would affect substan-five federal rights. See Shotwell v. Donahoe, 207 Ariz. 287, 85 P.3d 1045, 1048 (2004) (declining to apply federal law to admissibility of EEOC determination letter).

There are two main evidentiary issues applicable to admission of EEOC determinations: 1) the hearsay nature of the determination letter, and 2) the balancing of the letter’s probative value against its prejudicial effect. Federal courts have admitted EEOC determination letters despite their hearsay character under the federal public records exception to the hearsay rale. See Chandler v. Roudebush, 425 U.S. 840, 864, n. 39, 96 S.Ct. 1949, 48 L.Ed.2d 416 (1976) (noting that the prior administrative findings made on the plaintiffs claims of racial discrimination are admissible at trial under Fed.R.Evid. 803(8)(C)). However, Florida’s public records exception under Florida Statute 90.803(8) is narrower than the federal rule in that it omits a hearsay exception for “factual findings resulting from an investigation made pursuant to authority granted by law....”

In this case, Byrd did not object to the hearsay nature of the no cause determination letters; she argued that the probative value of the letters was substantially outweighed by the danger of unfair prejudice under section 90.403, Florida Statutes. Section 90.403 provides, in pertinent part, that:

Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of issues, misleading the jury, or needless presentation of cumulative evidence.

The federal cases cited by the parties have focused on the federal counterpart to this provision.

As previously noted, there appear to be no Florida cases on point. Federal courts afford the trial court discretion in determining whether a reasonable cause determination letter is admissible under the federal Rule 403 balancing test. See Shotwell, 85 P.3d at 1049 (surveying federal law). The Eleventh Circuit considers an EEOC determination “ordinarily admissible.” Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1288 (11th Cir.2008). Quoting Smith v. Universal Services, Inc., 454 F.2d 154, 157 (5th Cir.1972), the court rationalized that EEOC reports are “highly probative” due to the training and expertise of the EEOC investigators who compiled them, and that to exclude them would be “wasteful and unnecessary.”

Howevei*, many federal trial courts, after more closely scrutinizing these reasonable cause determination letters, have concluded that the letters are inherently prejudicial. See Cambra v. Rest. Sch., 2005 WL 2886220 (E.D.Pa. Nov. 2, 2005) (citing cases). We agree with the reasoning of these courts that a jury may find it hard, if not impossible, to independently evaluate the evidence presented by the parties after being informed that the EEOC has already investigated the claim and determined that reasonable cause does or does not exist to believe that unlawful discrimination has occurred. As the Eleventh Circuit recognized in Bar-field, admission of an EEOC report may present the danger of creating unfair prejudice in the minds of the jury, who unlike a judge, may not be aware of “the limits and vagaries of administrative determinations” and are not as equipped to assign the appropriate weight to the report. Barfield v. Orange County, 911 F.2d 644, 651 (11th Cir.1990); see also Cambra (noting that where the EEOC letter resolves credibility determinations, it treads on territory that “falls within the province of the jury,” and that presenting the jury with evidence that another fact-finder found testimony not credible will “unfairly influence the jury in this determination.”); Harris v. Mississippi Transp. Com’n, 2008 WL 5427795 (S.D.Miss. Dec. 30, 2008) (suggesting that the letter invades the province of the jury to determine from the evidence whether discrimination was proven and stating that “[t]he jury may give undue weight to the EEOC’s conclusion, rather than determining afresh from the evidence presented the ultimate issue of discrimination”).

Given the evidentiary hurdles that reasonable cause determination letters face in an employment discrimination trial, these letters may seldom pass the test of admissibility. We conclude, however, that such evidentiary rulings, in the first instance, are best left to the discretion of the trial judge. In this case, we find that the trial court abused its discretion in admitting the determination letter, because the conclusory nature of the BCCRD’s determination letter left it with little probative value when compared to the substantial prejudicial effect it may have had on the jury’s ultimate assessment of Byrd’s credibility and the pivotal determination as to whether Byrd had indeed provided a doctor’s note to her employer. Moreover, we cannot say that the erroneous admission of the BCCRD’s determination letter was harmless. Several courts have reasoned that similar conclusory administrative determination letters, i.e., those which do little more than take sides, enjoy particularly low probative value, but possess especially high dangers of unfair prejudice. See, e.g., Rudy v. Miami-Dade County, 15 Fla. L. Weekly Fed. D124, 2002 WL 368599 (S.D.Fla. Feb. 5, 2002); Abebe v. City of Waterloo, Iowa, No. C98-2074 MJM, 2000 WL 34030862 (N.D.Iowa Sept. 7, 2000); Lee v. Executive Airlines, Inc., 31 F.Supp.2d 1355 (S.D.Fla.1998). Such was the case here, and Byrd’s pretrial motion in limine, pursuant to Florida Statute section 90.803, should have been granted.

Accordingly, we reverse and remand this cause for a new trial.

Reversed and Remanded.

STEVENSON J., concurs.

TAYLOR, J., concurs in result with opinion.

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

TAYLOR, J.,

concurring in result.

I agree that the trial court reversibly erred in admitting the no reasonable cause letter in this case because its minimal probative value was substantially outweighed by its potential for prejudice. However, I would go further and rule that such determination letters are per se inadmissible in employment discrimination jury trials.

Although federal circuit courts usually leave the decision whether to admit these determination letters to the trial courts, I see no point in requiring courts to make a case-by-case assessment of their admissibility. The low probative value of these letters will invariably be outweighed by the unfair prejudice, confusion, and delay that will result from their admission. For that reason, we should decline to follow the federal courts’ balancing approach and opt instead for a per se rule that will result in uniform decisions on these letters. Applying a “bright line” rule that removes these letters from the jury’s consideration is preferable, in my view, because the EEOC’s opinion on whether an employer has discriminated against a plaintiff creates insurmountable prejudice in the minds of the jury.

Moreover, I am not persuaded by the reasoning of some federal courts that the training and expertise of EEOC investigators make their determinations highly probative. On the contrary, perceptions about the agency’s authority and superior knowledge render its reports highly prejudicial. A report from the EEOC that discrimination has or has not occurred will unfairly influence the jury in deciding that ultimate question. Allowing the report into evidence amounts to “admitting the opinion of an expert witness as to what conclusions the jury should draw, even though the jury had the opportunity and the ability to draw its own conclusions from the evidence presented.” Cambra v. Rest. Sch., No. Civ. A 04-2688, 2005 WL 2886220 (E.D.Pa. Nov. 2, 2005) (quoting Johnson v. Yellow Freight System, Inc., 734 F.2d 1304, 1309 (8th Cir.1984)); see also Rudy v. Miami-Dade County, 15 Fla. L. Weekly Fed. D124, 2002 WL 368599 (S.D.Fla. Feb. 5, 2002). Indeed, the Eleventh Circuit acknowledged this potential for prejudice in Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1288 (11th Cir. 2008). There, although the court approved admission of the EEOC determination letter, it noted that the district court was careful to explain to the jury the purpose and character of an EEOC determination and “instructed the jury to guard against the improper use of this evidence.” Id.

Another reason to exclude reasonable cause determination letters is that their admission often results in undue delay and waste of time. These are additional factors that courts must consider in a Rule 403 balancing analysis. See Coleman v. Home Depot, Inc., 306 F.3d 1333, 1346-47 (3d Cir.2002) (finding that the trial court properly excluded the EEOC determination after weighing undue delay and waste of time against its low probative value). EEOC reasonable cause letters generally repeat many of the facts that both parties will attempt to prove at trial. Cambra, 2005 WL 2886220 at *4. When an EEOC determination letter is admitted, the party with the unfavorable result must spend considerable time and effort challenging the basis for the investigator’s opinions and conclusions. “This will result in a significant trial within a trial that will include a comparison of the evidence considered by the EEOC and the evidence submitted at trial, an attack on the conclusions reached, and presentation of the different standards that might be applicable.” McNeal v. Kans. City Ry., No. 05CV791, 2007 WL 1237934 at *2 (W.D.La. April 27, 2007). “The ‘trial’ of the EEOC determination letter would be an undue waste of time, and it would present significant opportunity for juror confusion.” Id.

Furthermore, the Florida Civil Rights Act provides some support for adoption of a per se rule of inadmissibility of reasonable cause determination letters. The Act contains a provision which states that “[t]he commission’s determination of reasonable cause is not admissible into evidence in any civil proceeding, including any hearing or trial, except to establish for the court the right to maintain the private right of action,” See § 760.11(5), Fla. Stat. (2008). I believe that this provision in our civil rights law reflects the legislature’s intent that a trial be a fresh re-examination of the facts surrounding a claim of discrimination, independent of the agency’s findings.

Because I agree with the majority that the trial court erred in admitting the no reasonable cause determination letters in this case, I concur in the reversal and remand of this cause for a new trial.

MAY, J.,

concurring in part and dissenting in part.

I concur in the majority’s conclusion that rulings on the admissibility of reasonable cause determination letters in employment discrimination cases are best left to the discretion of the trial judge, who has the unique vantage point to weigh the competing factors of probative value and prejudicial effect. This is particularly important as the facts and circumstances of each case will vary greatly. I dissent however from the majority’s conclusion that the trial court abused its discretion in admitting the letter in this case.

Most federal circuits have adopted the moderate approach of allowing the trial court discretion when determining the admissibility of determination letters. See, e.g., Davignon v. Hodgson, 524 F.3d 91, 112-13 (1st Cir.2008); Cooper v. Carl A. Nelson & Co., 211 F.3d 1008, 1018 (7th Cir.2000); Paolitto v. John Brown E. & C, Inc., 151 F.3d 60, 63-66 (2d Cir.1998); Williams v. Nashville Network, 132 F.3d 1123, 1129 (6th Cir.1997); EEOC v. Manville Sales Corp., 27 F.3d 1089, 1095 (5th Cir.1994); Hall v. W. Prod. Co., 988 F.2d 1050, 1057-58 (10th Cir.1993); Johnson v. Yellow Freight Sys., Inc., 734 F.2d 1304, 1309-10 (8th Cir.1984); Walton v. Eaton Corp., 563 F.2d 66, 75 (3d Cir.1977). Those courts that have addressed the issue, as it relates to reasonable or probable cause determinations, have likewise allowed trial courts the same discretion. See, e.g., Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1288 (11th Cir.2008); Tulloss v. Near N. Montessori Sch., Inc., 776 F.2d 150, 153-54 (7th Cir.1985); Cox v. Babcock & Wilcox Co., 471 F.2d 13, 15 (4th Cir.1972); Smith v. Universal Servs., Inc., 454 F.2d 154 (5th Cir.1972).

Similarly, state courts that have addressed the issue have come down on the side of discretion and have avoided a bright line rule of either admissibility or inadmissibility. See, e.g., Shotwell v. Donahoe, 207 Ariz. 287, 85 P.3d 1045 (2004); Cantu v. City of Seattle, 51 Wash.App. 95, 752 P.2d 390, 391-92 (1988); Michail v. Fluor Mining & Metals, Inc., 180 Cal. App.3d 284, 225 Cal.Rptr. 403 (1986). And, they have done so based upon good authority, the Supreme Court of the United States. See Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 170, 109 S.Ct. 439, 102 L.Ed.2d 445 (1988) (“[Pjortions of investigatory reports otherwise admissible under Rule 803(8)(C) are not inadmissible merely because they state a conclusion or opinion. As long as the conclusion is based on a factual investigation and satisfies the Rule’s trustworthiness requirement, it should be admissible along with other portions of the report.”).

Given that standard, I cannot agree that the trial court abused its discretion in this case. Section 90.803, Florida Statutes (2008), provides for the admission of a determination letter as a public record unless there is a showing of untrustworthiness. There was no such showing in this case. In fact, the plaintiff admitted most of the file generated by the administrative proceeding. It objected only to the admission of the determination letter.

In addition, the majority oveiiooks a significant reality in this case — the admission of the determination letter was harmless. See State v. DiGuilio, 491 So.2d 1129 (Fla.1986). Here, the determination letter contained the following information.

RATIONALE FOR THE DETERMINATION

The Broward County Civil Rights Division has completed its investigation of the above-entitled charge. The Charging party has alleged the Respondent discriminated against her on the basis of disability in the area of employment in violation of Title VII of the Civil Rights Act of 1964, as amended, and the Bro-ward County Human Rights Act. The Respondent denied it discriminated against the Charging Party and provided an answer to the charge and supporting documents. Based on this information and the results of additional investigation, including information provided by relevant witnesses, the Bro-ward County civil Rights Division finds no reasonable cause.

The following is the basis for this conclusion:

Reasonable Accommodation
Generally, a disabled person’s requested accommodation must address a limitation caused by the disabling condition. The evidence does not indicate the charging Party’s unexcused absence from work during the third and fourth weeks of June was related to an illness associated with her physical impairment. Thus, the Respondent had no duty to excuse the Charging Party’s absence as a reasonable accommodation.
Discharge
The evidence indicates the Respondent has a policy “If you NO CALL/NO SHOW, you will be required to have a note from an emergency room, etc., or you will be terminated.” The evidence suggests the Charging Party provided only a phone number on a piece of paper with no doctor or clinic name. The fact the Respondent was willing to rehire the Charging Party if she produced medical verification for her absence further supports the conclusion the Respondent discharged the Charging Party because she did not produce a note from a doctor’s office or hospital and not because of her medical condition.

(Emphasis added). The determination letter concludes that the employer discharged the employee because she did not produce a note from a doctor’s office as required by the employer’s “NO CALL/NO SHOW” policy. Yet, the jury actually found that the employer had not terminated the employee. The first question on the verdict form asked the following:

1. That CAMESHIA BYRD’s employment at Wendy’s Coral Springs was terminated by the Defendant?

The jury answered “NO.” Thus, it is difficult, if not impossible, to conclude that the admission of the determination letter affected the jury’s verdict because it came to the completely opposite conclusion.

For these reasons, I concur in part and dissent in part. I concur in the adoption of the abuse of discretion standard as it applies to the admission of determination letters. Using this standard, I find no abuse of discretion and would affirm the final judgment.

      . 29 C.F.R. § 1601.19(a) provides that: "Where the Commission completes its investigation of a charge and finds that there is not reasonable cause to believe that an unlawful employment practice has occurred or is occurring as to all issues addressed in the dcter-ruination, the Commission shall issue a letter of determination to all parties to the charge indicating the finding. The Commission's letter of determination shall be the final determination of the Commission.”

      . The Florida Omnibus Aids Act, Fla. Stat. § 760.50, prohibits employers from discharging an employee or otherwise discriminating against any employee on the basis of knowledge or a belief that the employee has HIV.

      . The Florida Civil Rights Act, Fla. Stat. § 760.01 et seq., prohibits employers from discharging or otherwise discriminating against any employee with a "handicap” because of the employee’s "handicap.”

      . We reject BT Foods’ position that Byrd failed to preserve this issue by later stipulating to admission of the entire EEOC file, including the determination letters. See Sheffield v. Superior Ins. Co., 800 So.2d 197 (Fla. 2001) (holding that “once a trial court makes an unequivocal ruling admitting evidence over a movant's motion in limine, the mov-ant's subsequent introduction of that evidence does not constitute a waiver of the error for appellate review”). However, because the trial court's ruling was limited to allowing admission of the EEOC’s findings or determination from its investigation, Byrd's failure to make contemporaneous objections when other portions of the EEOC file were introduced at trial waived any error for appellate review as to those documents.

      . The employer’s position appears to have shifted between the EEOC proceeding and the civil trial. While the EEOC interpreted the employer as having discharged Byrd for cause due to her failure to provide a note, the jury was persuaded that her failure to return to work with a doctor’s note meant that Byrd quit her employment. However, it is clear that both found for the employer based on the central foundational issue of whether Byrd, in fact, provided the doctor's note. Because the EEOC's rejection of Byrd’s position may very well have influenced the jury on this critical issue, we cannot conclude that the erroneous introduction of the EEOC determination letter was harmless.

      . Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2003-2003-17; see also Vickers v. Fed. Express Corp., 132 F.Supp.2d 1371 (S.D.Fla.2000).

      . See Tourville v. Securex, Inc., 769 So.2d 491, 492 n. 1 (Fla. 4th DCA 2000); McCaw Cellular Cmmcns of Fla., Inc. v. Kwiatek, 763 So.2d 1063 (Fla. 4th DCA 1999).

      . Federal Rule of Evidence 803 states:
      (8) Public records and reports. Records, reports, statements, or data compilations, in any form, of public offices or agencies, setting forth (A) the activities of the office or agency, or (B) matters observed pursuant to duty imposed by law as to which matters there was a duty to report, excluding, however, in criminal cases matters observed by police officers and other law enforcement personnel, or (C) in civil actions and proceedings and against the Government in criminal cases, factual findings resulting from an investigation made pursuant to authority granted hy law, unless the sources of information or other circumstances indicate lack of trustworthiness.

        (emphasis added).
      Florida Statutes Section 90.803 provides:
      (8) Public records and reports. — Records, reports, statements reduced to writing, or data compilations, in any form, of public offices or agencies, setting forth the activities of the office or agency, or matters observed pursuant to duty imposed by law as to matters which there was a duty to report, excluding in criminal cases matters observed by a police officer or other law enforcement personnel, unless the sources of information or other circumstances show their lack of trustworthiness. The criminal case exclusion shall not apply to an affidavit otherwise admissible under s. 316.1934 or s. 327.354.

      . The FCRA does not have a per se rule on inadmissibility for a "no reasonable cause” determination. But this can be attributed to the Act's unique structure providing that "no reasonable cause” determinations will be decided only administratively and not become subject to a subsequent jury trial. However, as the unique facts of this case demonstrate, where multiple statutory rights are sought simultaneously, that design may not always hold true. Had the legislature contemplated this situation, it probably would have adopted the same per se rule of exclusion for "no reasonable cause” determinations that it provided for "reasonable cause” determinations, as a matter of fairness to the parties.


source: Caselaw Access Project

author: GROSS, C.J.

license: Public Domain

text:
    The FLORIDA INSURANCE GUARANTY ASSOCIATION, INC., Appellant, v. SHADOW WOOD CONDOMINIUM ASSOCIATION, a Florida not-for-profit corporation, Appellee.
    No. 4D09-378.
    District Court of Appeal of Florida, Fourth District.
    Dec. 2, 2009.
    Rehearing Denied Feb. 22, 2010.

      Philip E. Ward, Jeffrey T. Kuntz, Roland E. Schwartz, and Evan D. Appell of GrayRobinson, P.A., Fort Lauderdale, and John A. Kirst, Jr. of GrayRobinson, P.A., Orlando, for appellant.
    Mitchell B. Haller and Keith J. Lambdin of Katzman Garfinkel Rosenbaum, LLP, Maitland, for appellee.
   GROSS, C.J.

Florida Insurance Guaranty Association, Inc. (“FIGA”) timely appeals a non-final order denying its request to compel an appraisal under an insurance policy. We affirm, holding that the insolvent insurance company, FIGA’s predecessor, failed to comply with the notice requirement of section 627.7015(2), Florida Statutes (2005), so that the insured was not required to submit to the loss appraisal process.

On October 15, 2005, Southern Family Insurance Company issued an insurance policy to Shadow Wood Condominium Association that included coverage for hurricane damage. On October 24, 2005, Hurricane Wilma struck South Florida and Shadow Wood sustained damage to covered property. Shadow Wood timely submitted a claim for the damages to Southern Family.

In 2006, Southern Family became insolvent, thus triggering FIGA’s obligation to provide a mechanism for the payment of covered claims. See §§ 631.50-.70, Fla. Stat. (2005) (the “Florida Insurance Guaranty Association Act”). At the time of its insolvency, Southern Family failed to make any payments to Shadow Wood for covered losses. In March, 2007, FIGA paid $308,690.43 to Shadow Wood; this payment was based on FIGA’s own determination of the value of the damages at that time. Shadow Wood did not file a sworn proof of loss or execute a release as a prerequisite to payment.

In March, 2008, Shadow Wood retained a lawyer to pursue further payments under the Southern Family policy. In April, 2008, Shadow Wood filed an action against FIGA for breach of the policy. One of FIGA’s 39 affirmative defenses claimed that “FIGA has demanded [an] Appraisal and this action should be stayed until the Appraisal process is completed.” FIGA’s first demand for an appraisal came after its answer and affirmative defenses were filed. On June 19, 2008, FIGA filed a motion to compel the appraisal process and to stay the action until it was completed. FIGA did not “wholly dispute coverage,” only the “amount of covered loss.” The trial court denied FIGA’s motion on January 21, 2009.

This case turns on the applicability of section 627.7015, Florida Statutes (2005), to the terms of the Southern Family policy. Section E.2. of the Coverage Part of the policy applies this statutory appraisal “condition”:

2. Appraisal
If we and you disagree on the value of the property or the amount of the loss, either may make written demand for an appraisal of the loss. In this event, each party will select a competent and impartial appraiser. The two appraisers will select an umpire. If they cannot agree, either may request that selection be made by a judge of a court having jurisdiction. The appraisers will state separately the value of the property and amount of loss. If they fail to agree, they will submit their differences to the umpire. A decision agreed to by any two will be binding. Each party will:
a. Pay its chosen appraiser; and
b. Bear the other expenses of the appraisal and umpire equally.
If there is an appraisal, we will still retain our right to deny the claim.

A separate section of “Commercial Property Conditions” states that “[n]o one may bring a legal action against [the insurer] under this Coverage Part unless: 1. There has been full compliance with all of the terms of this Coverage Part[.]”

Two things are notable. The appraisal is not binding and the policy places the additional expense of the appraisal process upon the insured as a condition of filing a lawsuit.

It was this imposition of additional costs on an insured that the legislature sought to address in section 627.7015. Subsection (1) sets forth the purpose of the statute:

There is a particular need for an informal, nonthreatening forum for helping parties who elect this procedure to resolve their claims disputes because most homeowner’s and commercial residential insurance policies obligate insureds to participate in a potentially expensive and time-consuming adversarial appraisal process prior to litigation. The procedure set forth in this section is designed to bring the parties together for a mediated claims settlement conference without any of the trappings or drawbacks of an adversarial process.

§ 627.7015(1), Fla. Stat. (2005) (emphasis added). Subsection 627.7015(2) requires the insurer to “notify all first-party claimants of their right to participate in the mediation program under” section 627.7015 “[a]t the time a first-party claim within the scope of this section is filed.” § 627.7015(2), Fla. Stat. (2005). If an insurer fails to comply with the section 627.7015(2) notice requirement, then

the insured shall not be required to submit to or participate in any contractual loss appraisal process of the property loss damage as a precondition to legal action for breach of contract against the insurer for its failure to pay the policyholder’s claims covered by the policy.

§ 627.7015(7), Fla. Stat. (2005). The purpose of the statute was to use the mediation process to encourage an inexpensive and speedy resolution of insurance claims “prior to commencing the appraisal process, or commencing litigation.” § 627.7015(1), Fla. Stat. (2005). Because the statute applies to consumer related claims — to claims arising out of “homeowner’s and commercial residential insurance policies” — the statute requires the insurer to notify the consumer of the availability of the mediation.

Southern Family did not give the section 627.7015 notice at the time Shadow Wood filed its claim shortly after Hurricane Wilma. FIGA is bound by Southern Family’s failure to give the section 627.7015 notice, so that section 627.7015(7) applies. Under section 631.57(l)(b), Florida Statutes (2005), FIGA is “deemed the insurer to the extent of its obligation on the covered claims, and, to such extent, shall have all rights, duties, defenses, and obligations of the insolvent insurer as if the insurer had not become insolvent.” Reading section 631.57(l)(b) together with section 627.7015, it does not appear that the legislature intended to excuse FIGA from the notice requirement. This makes sense, because, in cases where an insurer’s insolvency brings FIGA into the picture, there will typically have been a substantial delay since the insured experienced a loss, so that elimination of a non-binding appraisal process as a “precondition to legal action” would avoid further cost and delay. § 627.7015(7), Fla. Stat. (2005).

FIGA attempts to avoid the application of section 627.7015 by citing to a line of cases where courts have refused to hold FIGA liable for the misdeeds of a defunct insurer, beyond those arising out of an insurance policy. Thus, in Williams v. Florida Insurance Guaranty Association, Inc., 549 So.2d 253, 254 (Fla. 5th DCA 1989), the fifth district refused to hold FIGA responsible for the negligence of an insurance agent for failing to advise the insured to obtain a different policy than the one actually issued. Williams is inapplicable here, since the application of section 627.7015 does not impose liability on FIGA, beyond the coverage of the policy, for the misconduct of Southern Family. See Fernandez v. Fla. Ins. Guar. Ass’n, Inc., 383 So.2d 974, 975 (Fla. 3d DCA 1980) (observing that the legislature, in creating FIGA, “was careful to restrict its potential liability ... conceiming its vicarious responsibility for the acts of the companies it succeeds”). Rather, the statute sets up a procedural mechanism affecting access to the court system.

Finally, we reject FIGA’s contention that the appraisal process here is not a “precondition to legal action” within the meaning of subsection 627.7015(7). FIGA requested a stay in the circuit court. The basis for the stay is the policy language that requires an insured to comply with policy conditions to “bring a legal action” against the insurer. FIGA sought to stay the case until the contractual loss appraisal process was completed. In the circuit court, FIGA thus treated the appraisal requirement as a “precondition to legal action,” which meant that the action could not continue until the precondition was satisfied. See also Fla. Ins. Guar. Ass’n, Inc. v. Devon Neighborhood Ass’n, Inc., — So.3d - (Fla. 4th DCA 2009).

Because FIGA is bound by Southern Family’s failure to notify Shadow Wood of the availability of mediation, we hold that Shadow Wood was not required to submit to the loss appraisal process sought by FIGA.

Affirmed.

DAMOORGIAN and GERBER, JJ„ concur.

      . We agree with FIGA that its request for an appraisal for the first time in the affirmative defense did not amount to a waiver of its right to an appraisal. See Fla. Ins. Guar. Ass'n v. Castilla, 18 So.3d 703, 705 (Fla. 4th DCA 2009); Wilson v. Federated Nat'l Ins. Co., 969 So.2d 1133 (Fla. 2d DCA 2007).

      . We also note that FIGA failed to give the section 627.7015 notice when it took over the claim from Southern Family. We do not therefore decide whether such a notice would have complied with the statute.


author: PER CURIAM.

text:
    Jillian HICKEN, Appellant, v. James DeBEUGRINE, Director, Agency for Persons with Disabilities, Appellee.
    No. 1D09-2790.
    District Court of Appeal of Florida, First District.
    Dec. 10, 2009.
    Walter R. Carfora, St. Petersburg, for Appellant.
    John Beranek of Ausley & McMullen, Tallahassee; John Newton, General Counsel, Agency for Persons with Disabilities, and Karl David Acuff, Senior Attorney, Tallahassee, for Appellee.
   PER CURIAM.

The order on appeal which denied appellant’s request for a formal administrative hearing is quashed. The cause is remanded to the Agency for further proceedings consistent with Moreland v. Agency for Persons with Disabilities, 19 So.3d 1009 (Fla. 1st DCA 2009) and the order of the United States District Court in Washington v. DeBeaugnne, 658 F.Supp.2d 1332 (N.D.Fla.2009).

KAHN, LEWIS, and WETHERELL, JJ., concur.


text:
    ASSOCIATED RECEIVABLES FUNDING OF FLORIDA, INC., Appellant, v. Michael MOECKER, et al., Appellee.
    No. 5D08-4353.
    District Court of Appeal of Florida, Fifth District.
    Dec. 18, 2009.
    Amy J. Winarsky of Marcadis & Associates, Tampa, for Appellant.
    Linda C. Hankins of Lowndes, Drosdick, Doster, Kantor <& Reed, Orlando, for Ap-pellee.
   PER CURIAM.

Appellant, Associated Receivables Funding of Florida, Inc., appeals an order denying its motion for relief from judgment. We reverse.

In 2003, Appellant obtained a $395,000 consent judgment against Commerce Thru Digital Technology (“Commerce”) and one of its officers, Michael A. Rivers (“Rivers”), in Rivers’ individual capacity. In 2004, Commerce became unable to pay its debts and executed an assignment for benefit of creditors to Michael Moecker (“Moecker”). The assignment required Moecker to liquidate Commerce’s assets, collect all claims and demands, and pay and discharge in full the debts and liabilities owed by Commerce. Moecker filed a petition for assignment for benefit of creditors, and notified Commerce’s creditors of the proceedings. Notably, the petition did not name Rivers as a party. Appellant received notice of the proceedings and filed a proof of claim based on the 2003 judgment it had obtained.

Moecker and Rivers reached a compromise wherein Rivers agreed to purchase all of Commerce’s assets. Moecker sought court approval of the compromise, indicating that his investigation did not reveal any assets that could be liquidated to the net benefit of creditors. He further stated that approval would preclude any of Commerce’s creditors from pursuing claims against Commerce’s successor-in-interest, IBSG, based on any claim the creditor had against Commerce. The motion defined IBSG, however, to include Rivers in his individual capacity. Thus, approval of the compromise between Moecker and Rivers sought not only to preclude claims against Commerce, but also claims against Rivers individually. Appellant was served with the motion, but did not file an objection.

The court approved the compromise and sale of assets in 2006. The order approving the compromise included the following:

3. As a result of the foregoing, all creditors and interested parties ... are hereby barred from pursuing any and all alleged claims of any nature whatsoever against any persons and/or entities included in the definition of “IBSG” as set forth in the Motion, to the extent said claims are based on, relate to, or in any manner derive from any claim regarding [Commerce].

(Emphasis supplied). The court discharged Moecker and closed the case.

Almost two years later, Appellant filed a motion for relief from judgment under Florida Rule of Civil Procedure 1.540(b)(4). It claimed that the order was void because the trial court lacked jurisdiction over Appellant’s claim against Rivers individually. It argued that although it was a “party of interest to said action by way of a claim it filed against Commerce, ... [Appellant] did not submit the debt against Rivers to the jurisdiction of the court....” We agree.

A court cannot determine matters not the subject of appropriate pleadings. See Connell v. Capital City Partners, LLC, 932 So.2d 442, 443 (Fla. 3d DCA 2006) (at hearing on motion to dismiss, court went beyond determination of motion and thus violated due process). The jurisdictional pleadings in this case were insufficient to put Appellant on notice that the court might enjoin Appellant from collecting its judgment against Rivers, a non-party to the assignment. See N.C. v. Anderson, 882 So.2d 990, 993 (Fla.2004) (due process requires fair notice and real opportunity to be heard). Here, simply because Appellant was on notice of the motion to approve the compromise and sale of Commerce’s assets, it was not on notice that these proceedings extended beyond claims against Commerce. By purporting to extinguish Appellant’s claims against a non-party, the court denied Appellant’s due process rights. Appellant is entitled to relief from the judgment pursuant to rule 1.540.

REVERSED AND REMANDED.

PALMER, TORPY and EVANDER, JJ., concur.

      . An assignment for the benefit of creditors is an alternative to bankruptcy that allows a debtor to voluntarily assign its assets to a third party who then liquidates the assets to satisfy creditors' claims. Hillsborough County v. Lanier, 898 So.2d 141, 143 (Fla. 2d DCA 2005).


author:
WEBSTER, J.
      BENTON, J.,

text:
    Jessie Ray TEAGUE, Appellant, v. STATE of Florida, Appellee.
    No. 1D09-874.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.

      Jessie Ray Teague, pro se, Appellant.
    Bill McCollum, Attorney General, and Jennifer J. Moore, Assistant Attorney General, Tallahassee, for Appellee.
   WEBSTER, J.

Appellant seeks review of a final order denying his motion to correct an illegal sentence, filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Because we conclude that appellant’s motion was facially insufficient, we affirm.

Appellant was convicted of two counts of sale of cocaine within 1,000 feet of a school and two counts of possession of cocaine within 1,000 feet of a school. He received consecutive habitual felony offender sentences for the sale counts.

Appellant asserted in his motion that the two sale convictions occurred during a single criminal episode because the two sales were 14 minutes apart and were made to the same person on the same day, and at the same location. Accordingly, he contended that the consecutive habitual offender sentences were illegal pursuant to Hale v. State, 630 So.2d 521, 524-25 (Fla.1993), which held that, once sentences for multiple offenses committed during a single criminal episode have been enhanced by resort to an habitual offender statute, the sentences may not then be further increased by imposing them consecutively. As support for his factual assertions, appellant cited only to the probable cause affidavit which was a part of the arrest report. The trial court denied the motion on the ground that the two sales occurred 14 minutes apart and, therefore, as a matter of law, they constituted separate criminal episodes.

“The proper analysis to determine whether offenses arise from the same criminal episode requires consideration of the following factors: 1) whether separate victims are involved; 2) whether the crimes occurred in separate locations; and 3) whether there has been a temporal break between the incidents.” Vasquez v. State, 778 So.2d 1068, 1070 (Fla. 5th DCA 2001). Accord Woods v. State, 615 So.2d 197, 199 (Fla. 1st DCA 1993). It is not clear whether the trial court considered all of these factors. However, we need not decide whether the trial court correctly applied the applicable law because appellant’s motion was facially insufficient, and we may affirm for that reason. See generally In re Estate of Yohn, 238 So.2d 290, 295 (Fla.1970) (an appellate court must affirm a lower court’s decision if it is supported by any theory, regardless of the reasons stated in the order or judgment); Landis v. Allstate Ins. Co., 546 So.2d 1051, 1053 (Fla.1989) (same, quoting from Yohn).

A motion made pursuant to Florida Rule of Criminal Procedure 3.800(a) is facially sufficient only if it alleges: (1) the movant is serving an illegal sentence; (2) the error appears on the face of the record; and (3) how and where the record demonstrates entitlement to relief. Lauramore v. State, 949 So.2d 307, 308 (Fla. 1st DCA 2007) (citing Baker v. State, 714 So.2d 1167 (Fla. 1st DCA 1998)). Here, appellant cited only to the probable cause affidavit which was a part of the arrest report to support his assertion that the sentences were illegal. However, because rule 3.800(a) is limited to correction of sentencing errors that can be resolved as a matter of law without an evidentiary hearing, State v. Callaway, 658 So.2d 983, 988 (Fla.1995), and police reports and their contents generally constitute inadmissible hearsay, Burgess v. State, 831 So.2d 137, 141 (Fla.2002), a rule 3.800(a) motion may not be predicated on information contained in such a document, even if it is a part of the record. Id. at 139. Accord Theophile v. State, 967 So.2d 948, 949 (Fla. 1st DCA 2007) (stating that “[i]t is well established that a facially sufficient Hale claim cannot be based on a police report or any other type of hearsay information that is not subject to cross examination”). Accordingly, appellant’s motion was facially insufficient.

In appropriate circumstances, a motion made pursuant to rule 3.800(a) that is facially insufficient may be treated as having been made pursuant to Florida Rule of Criminal Procedure 3.850. See Hall v. State, 643 So.2d 635, 636 (Fla. 1st DCA 1994) (on motion for rehearing). However, we need not engage in such an endeavor here because any such motion would be time-barred.

Because appellant’s motion was facially insufficient, we affirm.

AFFIRMED.

ROBERTS, J., concurs; BENTON, J., dissents with opinion.

BENTON, J.,

dissenting.

The scholarly majority opinion does not reject the notion that a single criminal episode gave rise to appellant’s convictions, and judiciously leaves open the possibility that a subsequent, better pleaded motion may ultimately afford appellant relief on this basis. But it affirms the denial of relief in the present case on what I view as an unwarranted application of the “tipsy coachman rule”: The court affirms because a technical defect in the motion appellant filed below meant the trial court was not under a duty to reach the merits of his claim. Even accepting the majority’s premise, the trial court did in fact reach the merits of the claim and decide the case on that basis. Because, in my judgment, the trial court decided the merits incorrectly, I would reverse and remand.

Absent circumstances not present in this case, discrete sales to different buyers of different portions of a seller’s store of cocaine constitute separate offenses for double jeopardy purposes, no matter how close in time they occur. See Richardson v. State, 969 So.2d 535, 537-38 (Fla. 1st DCA 2007). As the majority opinion explains, however, the question the trial court decided in the present case is not whether more than a single criminal offense was proven but whether more than a single “criminal episode” occurred, within the meaning of Hale v. State, 630 So.2d 521, 524-25 (Fla.1993). I disagree with the trial court’s conclusion that appellant’s sale of cocaine to the same individual, albeit in two lots, should be viewed as two distinct criminal episodes just because fourteen minutes separate the transfers. I would therefore remand for reconsideration of all pertinent facts of record, taking into account all of the circumstances identified as germane in Hale and its progeny. See Woods v. State, 615 So.2d 197, 199 (Fla. 1st DCA 1993); Vasquez v. State, 778 So.2d 1068, 1070 (Fla. 5th DCA 2001). On this basis, I respectfully dissent.


text:
    Tarrus Hakeem KELLY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-5714.
    District Court of Appeal of Florida, First District.
    Dec. 22, 2009.
    Tarrus Hakeem Kelly, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BARFIELD, WOLF, and LEWIS, JJ„ concur.


author: WARNER, J.

text:
    WESTCO, INC., a Florida corporation, Petitioner, v. SCOTT LEWIS’ GARDENING & TRIMMING, INC., a Florida corporation, a/k/a Scott Lewis Gardening & Trimming, Inc., Scott P. Lewis, individually, and Carol J. Lewis, individually, Respondents.
    No. 4D09-2388.
    District Court of Appeal of Florida, Fourth District.
    Dec. 30, 2009.
    Rehearing Denied Feb. 15, 2010.

      John G. White and Michael J. Napoleone of Richman Greer, P.A., West Palm Beach, for petitioner.
    Jack Scarola and Patrick E. Quinlan of Searcy Denney Scarola Barnhart & Ship-ley, P.A., West Palm Beach, for respondent Scott Lewis Gardening and Trimming, Inc.
    Scott P. Lewis and Carol J. Lewis, West Palm Beach, pro se.
   WARNER, J.

Westco, Inc. (‘Westco”), a non-party to litigation pending in the trial court between Botánica Landscaping, LLC (“Bota-nica”) and Scott Lewis’ Gardening & Trimming Inc. (“SLGT”), petitions for a writ of certiorari to quash the trial court’s order compelling it to produce an Asset Purchase Agreement between Xerox Corporation and Amici LLC, of which Westco is a member. Westco claims confidentiality and an invasion of a right of privacy. Because the trial court did not conduct a hearing to balance the equities between the need for confidentiality and disclosure and did not conduct an in camera review of the document, we grant the petition.

More than a decade ago, SLGT and Nical of Palm Beach, Inc. (“Nical”), two landscaping companies, began a commercial dispute which has resulted in many prior appearances in this court. The parties ultimately entered into a settlement agreement, incorporated into a final judgment, which included a permanent injunction prohibiting Nical from communicating and interfering with SLGT’s clients.

Botánica subsequently purchased Nical’s business. Upon the sale of Nical’s assets, Nical moved to dissolve the permanent injunction. When that motion was denied, Botánica filed its own lawsuit against SLGT and Scott and Carol Lewis, seeking a declaration that it is not bound by the settlement agreement, final judgment, and permanent injunction. In this lawsuit, allegations have been made that the individuals involved in Botánica are the same individuals involved in Nical. This may violate the permanent injunction in the first suit.

During discovery, SLGT learned that Botánica had received financing from Westco for its purchase of Nical. SLGT served Westco with a subpoena duces te-cum for deposition calling for a broad array of corporate documents in Florida. Westco filed objections to the subpoena as well as a demand that the deposition be taken in New York where Westco had its principal office. SLGT filed a motion to compel the production of documents and deposition in Florida. The court granted SLGT’s motion. It did not rule on West-co’s other objections to the production of documents.

Westco immediately moved for a protective order limiting the scope of the required production, claiming that some of the documents were confidential and privileged. Prior to securing a ruling on its motion, Westco filed a notice of compliance and produced 110 pages of documents. Some of the pages contained redactions to protect private and confidential information. It also filed a privilege log, reciting the documents it claimed were privileged. SLGT then moved to compel further compliance with its subpoena duces tecum. At the hearing, SLGT told the court that it wanted one document — an Asset Purchase Agreement between Xerox Corporation, as buyer, and Amici LLC, as seller. Westco is a member of Amici LLC. Westco was unaware at the hearing that this was the sole relief sought, and its attorney was not prepared to state whether there was an objection to it. The trial court granted the motion to compel. Westco filed an emergency motion for protective order arguing that the Asset Purchase Agreement was a .confidential document, protected by various confidentiality provisions in the agreement itself. The emergency motion was denied, and petitioner seeks certiorari review of both orders.

Certiorari review is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings and effectively leaving no adequate remedy on appeal. Harley Shipbuilding Corp. v. Fast Cats Ferry Serv., LLC, 820 So.2d 445, 448 (Fla. 2d DCA 2002). Orders improperly requiring the disclosure of trade secrets or other proprietary information often create irreparable harm and are thus appropriate for certiorari review.

When confidential information is sought from a non-party, the trial court must determine whether the requesting party establishes a need for the information that outweighs the privacy rights of the non-party. See Berkeley v. Eisen, 699 So.2d 789 (Fla. 4th DCA 1997). “[T]he party seeking discovery of confidential information must make a showing of necessity which outweighs the countervailing interest in maintaining the confidentiality of such information.” Higgs v. Kampgrounds of Am., 526 So.2d 980, 981 (Fla. 3d DCA 1988).

A trial court departs from the essential requirements of law in ordering production of confidential information without conducting an in camera review to determine whether the assertion of privilege is valid. See Gazerro v. Crane, 890 So.2d 446 (Fla. 4th DCA 2004); Docutek Imaging Solutions, Inc. v. Copyco, Inc., 869 So.2d 1291 (Fla. 4th DCA 2004); Premiere Lab Supply, Inc. v. Chemplex Indus., Inc., 791 So.2d 1190, 1190 (Fla. 4th DCA 2001); Am. Exp. Travel Related Servs. v. Cruz, 761 So.2d 1206, 1208-09 (Fla. 4th DCA 2000); Austin v. Barnett Bank of S. Fla., N.A., 472 So.2d 830, 830 (Fla. 4th DCA 1985) (“Where a claim of privilege is asserted, the trial court should hold an in camera inspection to review the discovery requested and determine whether assertion of the privilege is valid.”). Because the trial court did not conduct a balancing of interests analysis and failed to conduct an in camera inspection of the agreement to determine whether the privilege was valid, it departed from the essential requirements of law.

Although SLGT attempts to show that it needs this information, we question the rationale that it uses. It is attempting to obtain a copy of a contract between Xerox and Amici LLC. There is no indication in the record that this agreement has anything to do with Botánica and Nical. SLGT attempted to make a connection by claiming that the same person who prepared the Nical sale agreement to Botáni-ca may have prepared the Xerox Asset Purchase Agreement document. SLGT also claimed that participants in Amici are also involved in Nical. Even if that were true, that hardly proves the need for production of the confidential document involving a sale of other assets among non-parties to the present lawsuit.

SLGT claims that Westco has waived the right to contest the proceeding by failing to list the Asset Purchase Agreement in the privilege log it filed. We disagree, because a privilege log is not required from a non-party producing documents. Florida Rule of Civil Procedure 1.280(b)(5) provides that when a party makes a claim that a document is privileged the “party shall make the claim expressly and shall describe the nature of the documents, communications, or things not produced or disclosed in a manner that, without revealing information itself privileged or protected, will enable other parties to assess the applicability of the privilege or protection.” (Emphasis added). In contrast, a protective order is the available remedy for non-parties. Rule 1.280(c) provides:

Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending may make any order to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense that justice requires, including one or more of the following: ... (4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters; ... (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way;

(Emphasis added). The rules clearly differentiate between parties and other persons. Because the rule requiring a privilege log applies to parties and not to non-parties, Westco did not waive its right to assert the confidentiality of its agreement by failing to list it in the privilege log. In any event, it expressly asserted its right to keep the document confidential.

We also disagree with SLGT’s argument that the petition is untimely because West-co should have filed the petition when the original motion to compel production was filed. However, it is apparent from the motion to compel and the transcript of the hearing that the issue addressed at the motion hearing was the place of the deposition, not the extent of production of documents. In fact, at the end of the first hearing the trial judge indicated that he would deal with the records issue later.

For the foregoing reasons, we grant the petition, quash the order, and direct the trial court to conduct a balancing analysis of the respondent’s need for information against the petitioner’s interest in maintaining its confidentiality. The court should conduct an in camera review of the Asset Purchase Agreement as part of its determination.

Petition granted.

STEVENSON and LEVINE, JJ., concur.

      . See Lewis v. Nical of Palm Beach, Inc., 16 So.3d 829 (Fla. 4th DCA 2009); Lewis v. Nical of Palm Beach, Inc., 24 So.3d 564 (Fla. 4th DCA 2009); Lewis v. Nical of Palm Beach, Inc., 10 So.3d 159 (Fla. 4th DCA 2009); Nical of Palm Beach, Inc. v. Lewis, 981 So.2d 502 (Fla. 4th DCA 2008); Lewis v. Nical of Palm Beach, Inc., 959 So.2d 745 (Fla. 4th DCA 2007); Nical of Palm Beach, Inc. v. Lewis, 816 So.2d 641 (Fla. 4th DCA 2002); and Nical of Palm Beach, Inc. v. Lewis, 815 So.2d 647 (Fla. 4th DCA 2002), rev. denied, 828 So.2d 388 (Fla.2002).


author: LAWSON, J.

text:
    CALHOUN, DREGGORS & ASSOCIATES, et al., Appellant, v. VOLUSIA COUNTY, Appellee.
    No. 5D09-547.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.
    Rehearing Denied Jan. 28, 2010.
    John N. Upchurch, Daytona Beach, for Appellant.
    Luis R. Guzman, Deland, for Appellee.
   LAWSON, J.

A law firm, appraisal firm and land planning company appeal a final judgment dismissing their suit to recover attorney’s fees and other costs incurred in defending two landowners against a proposed Volusia County road widening project. The County abandoned the project before settling with the property owners or filing a condemnation action against them. Reviewing the matter de novo, see Parker v. Parker, 916 So.2d 926, 928 (Fla. 4th DCA 2005), we affirm. We agree with the trial court that the eminent domain statute does not provide for the recovery of attorney’s fees and costs associated with a threatened condemnation action where no pre-suit settlement is reached and no condemnation suit is filed. Our review is limited to the four corners of the complaint, the allegations of which we accept as true. Id. Appellants alleged as follows:

In June 2006, the County sent the property owners a “Notice to Owner,” which stated, “Our research shows you own property needed for this project.” The letter listed a summary of the property owners’ rights, including, this statement: “You may receive reimbursement for reasonable attorney fees and other reasonable costs you incur for appraisal and other services associated with the County’s acquisition.” Those statements led the property owners to believe their property was being taken by the government and that they should hire an attorney.

The County’s June 2006 letter also referenced an attached brochure entitled “The Real Estate Acquisition Process.” The brochure referenced various attorney fee provisions in chapter 73, including sections 73.015 and 73.092, Florida Statutes, which, along with the letter, “clearly invite[d] the property owners to make offers to settle the compensation issues pre-suit with assurances that the costs of preparation of the experts’ reports” would be the County’s responsibility.

Later in June 2006, the property owners hired Attorney John Upchurch to represent them in the negotiations with the County, and if necessary, any condemnation litigation. Meanwhile, the County hired an appraiser and another firm, American Acquisition Group, LLC, to negotiate with the property owners. The County’s appraiser valued the property at $76,700.00.

In October 2006, the property owners received a written offer from the County for the above amount. The offer also stated, “As you have been previously notified, the County of Volusia Public Works is in the process of acquiring the needed property for the above-referenced project. A determination has been made that either a part or all of your property will be needed.” Later that same month, the County sent to the property owners a ninety-day “Letter of Assurance,” giving them at least ninety days to relocate and stating in part, “the County of Volusia Public Works Department is in the process of acquiring right of way for the above referenced project in your area.”

In November 2007, the County sent the property owners a final offer stating that the property would be submitted for condemnation proceedings if a settlement was not reached and that “[t]he County of Vo-lusia will be acquiring property owned by you for a transportation project.” The property owners questioned whether the County’s offer was sufficient so they hired experts, specifically Calhoun Dreggors & Associates and Rahenkamp Design Group, Inc., to analyze the County’s appraisal and prepare an opinion of the appropriate compensation.

On June 3, 2008 (two years after the County’s initial letter to the property owners), the County notified the property owners that it had decided not to move forward with the project and would “not be pursuing the acquisition of any interest in [their] property at this time.” When the owners requested reimbursement of their attorney’s fees and costs, the County refused.

The County conceded that the landowners had acted in good faith by hiring an attorney and experts, but argued that it was not legally obligated to reimburse them for fees and costs reasonably incurred when responding to the County’s notices and offers, made under threat of a condemnation proceeding. The trial court agreed with Appellants that perhaps fees and costs should be compensable under these circumstances, but found that they were not compensable under present Florida law.

The final judgment stated that “Chapter 73 of the Florida Statutes (2008) does not provide for an award of attorneys fees or costs incurred by landowners before the commencement of an eminent domain action in the circuit court, except in the case of pre-suit settlement.” Appellants timely appealed.

As acknowledged by both parties, attorney’s fees are generally not recoverable unless expressly authorized by a statute, rule or contract. Hubbel v. Aetna Cas. & Sur. Co., 758 So.2d 94, 97 (Fla.2000). Chapter 73, Florida Statutes, governing eminent domain actions in Florida, provides for attorney’s fee awards in three sections: 73.015, 73.091 and 73.092. Section 73.015(4) states, in pertinent part:

If a settlement is reached between the condemning authority and a property or business owner prior to a lawsuit being filed, the property or business owner who settles compensation claims in lieu of condemnation shall be entitled to recover costs in the same manner as provided in s. 73.091 and attorney’s fees in the same manner as provided in s. 73.092,....

(Emphasis added). Thus, section 73.015(4) expressly authorizes an award of attorney’s fees and costs to landowners only when “settlement is reached ... prior to a [condemnation] lawsuit being filed.” Here, Appellants allege that no pre-suit settlement occurred. Thus, section 73.015(4), by its plain language, does not authorize a recovery in this case. See Holly v. Auld, 450 So.2d 217, 219 (Fla.1984) (“[W]hen the language of the statute is clear and unambiguous ... the statute must be given its plain and obvious meaning.”); see also Deen v. Wilson, 1 So.3d 1179, 1182 (Fla. 5th DCA 2009) (discussing the principle of statutory construction “expression unius est exclusion alterius,” which means the mention of one thing implies the exclusion of another).

Section 73.091(1) states in pertinent part that: “The petitioner shall pay attorney’s fees as provided in s. 73.092 as well as all reasonable costs incurred in the defense of the proceedings in the circuit court, including, but not limited to, reasonable appraisal fees ...” (Emphasis added). This statute plainly authorizes only fees and costs “incurred in the defense of the proceedings in the circuit court.” Such proceedings are initiated by the filing of a petition. For purposes of awarding fees under this statute, this court has previously held that “[n]othing short of a petition which adheres to the statutory guidelines will commence condemnation proceedings under chapter 73.” Dep’t of Envtl. Protection v. Gibbins, 696 So.2d 888, 890 (Fla. 5th DCA 1997).

Section 73.092 primarily sets forth the methods prescribed for determining a fee award when authorized by the eminent domain statute. Subsection 73.092(1) requires the trial court to award attorney’s fees “based solely on the benefits achieved for the client” in the “eminent domain proceeding” and defines “benefits” as “the difference, exclusive of interest, between the final judgment or settlement and the last written offer made by the condemning authority before the defendant hires an attorney....” By its plain language, this subsection presumes either a settlement or suit as a precondition to the award of attorney’s fees.

Subsection 73.092(2) sets forth an alternative method for determining the amount of a compensable fee “incurred in defeating an order of taking, or for apportionment, or other supplemental proceedings, when not otherwise provided for....” By its plain language, this subsection also presumes that an eminent domain action has been filed. Appellants argue that the language “when not otherwise provided for” in this subsection should be read as authorizing attorney’s fees in any eminent-domain-related matter for which there is no other express authorization in the statute for an award of fees. However, when the clause is placed into context with the rest of the sentence, it is clear that it relates to determining the amount of fees, not the entitlement to fees.

The sentence begins with the phrase “In assessing attorney’s fees,” which indicates that the provision is dealing with the amount rather than entitlement to fees. It then identifies three situations where fees can be awarded: when they are incurred “in defeating an order of taking, or for apportionment, or other supplemental proceedings .... ” All three of these situations occur after a condemnation suit is filed.

Then comes the phrase relied upon by Appellants, “when not otherwise provided for,” immediately followed by “the court shall eonsider[,]” with a list of factors to consider. These clauses also relate to determining the amount of fees, not their entitlement. In short, the clause “when not otherwise provided for” means that when the method of determining the amount of fees is “not otherwise provided for” in chapter 73, “the court shall consider” the factors that follow. For example, this second method of determining fees has been used where the condemnor files suit and later voluntarily dismisses the action, see Department of Transportation v. ABS Properties Partnership, 693 So.2d 703 (Fla. 2d DCA 1997), a situation for which entitlement to fees is established by section 73.091(1) — but no method for determining the amount of the fee award is otherwise provided for in chapter 73.

Reading the plain language of the statute, as the trial court did, and as we are required to do as well, we find that chapter 73 does not authorize an award of fees or costs in this case, where there was no pre-suit settlement and no condemnation action filed.

One other case merits discussion. Appellants argue that Department of Transportation v. Grice Electronics, 356 So.2d 7 (Fla. 1st DCA 1977) is “directly on point” and provides authority for fees incurred after the condemnor has “started the condemnation process” but before it has filed suit. Stated differently, Appellants argue that Grice allows fees to be awarded for work performed “before suit was filed but after condemnation was imminent.” The Grice decision states, in toto:

This is an interlocutory appeal from an order awarding attorneys fee in a condemnation suit. We have considered the briefs, the record, and the oral arguments by attorneys for the respective parties and find no abuse of discretion by the trial judge.
The primary contention of appellant was that the trial court erred in allowing compensation to appellee’s attorneys for woi'k performed before suit was filed but after condemnation was imminent. The trial judge did not err in so doing. See Dade County v. Brigham, 47 So.2d 602 (Fla.1950); Jacksonville Express. Auth. v. Henry G. Du Pree Co., 108 So.2d 289 (Fla.1958), and Orange State Oil Co. v. Jacksonville Expressway Auth, 143 So.2d 892 (Fla. 1 DCA 1962).

Id. The first sentence of the opinion plainly states that the matter involved an appeal from a fee award “in a condemnation suit.” Thus, even if the court in Grice upheld an award for fees incurred after suit was imminent, the entitlement to fees would not have been triggered until the condemnation suit was filed. In the instant case, of course, the County never filed suit. Thus, Grice is distinguishable.

Finally, we note that both Appellants and the County make policy arguments as to why fees and costs should or should not be recoverable in this context. Although we agree with the trial judge that Appellants arguments appear more persuasive, they are not proper considerations for an appellate court called upon to apply an unambiguous statute. Rather, these arguments should be advanced to the Legislature.

AFFIRMED.

PALMER and JACOBUS, JJ., concur.

      . The County alternatively argues that we should affirm with a finding that Appellants lack standing to pursue the action below. However, the County expressly waived standing as a potential appellate issue in the proceedings below. Accordingly, we will not address the issue on appeal.

      . The brochure also contained the following statements regarding fee reimbursement:
      The County will reimburse you for certain fees and costs you incur during the acquisition process, primarily for the services of an attorney and/or appraiser. However, the law places certain limitations on this reimbursement. If you enter into binding agreements for legal, appraisal and other services, you may be responsible for payment of any amounts exceeding what is reimbursable by law. Before you enter into binding agreements we recommend that you allow us to make our offer to you and more fully explain the reimbursement process.
      (emphasis added).

      . This conclusion is bolstered by the Legislature's description of the condemning authority in this section as “the petitioner.” When a condemning authority files its condemnation case, it is referred to in the initial and subsequent pleadings as "the petitioner.” § 73.021, Fla. Stat. (2008). Describing the party responsible for fees as the petitioner presumes that the eminent domain complaint has been filed.

      . If no written offer is made before the defendant hires an attorney, this subsection dictates that benefits be measured from the first written offer made after the attorney is hired. § 73.092(l)(a), Fla. Stat. (2008).


author: WOLF, J.

text:
    Anthony R. MORGENTHAU, Appellant, v. ESTATE OF Richard M. ANDZEL and Sanders Boyer, as personal representative of Deceased/Appellees Estate, Appellees.
    No. 1D09-3079.
    District Court of Appeal of Florida, First District.
    Dec. 31, 2009.

      Theodore C. Miloch, II, Carlos A Zum-pano, and Daniel E. Zumpano of Infante, Zumpano, Hudson & Miloch, LLC, Coral Gables, for Appellant.
    Broward Taff, Jr. of Broward Taff, Jr. Attorney, P.A., Tallahassee, for Appellees.
   WOLF, J.

Appellant asserts the trial court erred in striking his claim against an estate based on a finding the claim was untimely filed pursuant to the probate statutes. Because appellant failed to file a request for extension pursuant to section 733.702, Florida Statutes (2007), we affirm.

On January 24, 2008, a petition for administration was filed for the estate of Richard M. Andzel, Sr., who died on November 28, 2007, at the age of 50. On March 25, 2008, the personal representative of the estate filed a Notice of Filing Proof of Publication of the Notice to Creditors which attached a newspaper notice informing possible creditors of the estate that they had three months from the date of the first publishing to file any claims outstanding against the estate. The article was published on March 13, 2008. On April 13, 2009, well outside the three-month period, appellant filed a pleading entitled “Statement of Claim” alleging he was a holder of an outstanding note executed by the decedent and the personal representative was aware of the amount due appellant. Attached to the Statement of Claim was a promissory note with only the decedent’s signature and no witness attestation or notarization.

On May 8, 2009, the personal representative filed a Verified Petition for Order Striking Untimely Claim in which he asserted the first publication to creditors was published on March 13, 2008, and appellant did not file his claim until April 13, 2009, well outside the three-month filing requirement. In addition, the personal representative asserted appellant was not a known or easily ascertainable creditor of the estate.

No hearing was held on the matter, and on May 18, 2009, the trial court entered an “Order Striking Untimely Filed Claim” in which the court stated:

That the material allegations of the petition are true; that the Notice of Administration was first published on March 13, 2008, that the time for filing claims expired on June 13, 2008 and the claim by Anthony R. Morgenthau was filed on April 13, 2009; it is ORDERED AND ADJUDGED that the claim filed by Anthony R. Morgenthau on April 13, 2009, was untimely pursuant to the provisions of Section 733.702 of the Florida Probate Code.

No motion for rehearing was filed and appellant seeks review of this order.

A decision of a probate court to strike an alleged creditor’s claim against an estate is reviewed for abuse of discretion. Strudowitz v. The Cadle Co., II, Inc., 839 So.2d 876, 881 (Fla. 4th DCA 2003). However, to the extent this issue turns on statutory interpretation, the standard of review is de novo.

In the underlying action, appellant filed a Statement of Claim alleging he was a readily ascertainable creditor of the estate. A readily ascertainable creditor is entitled to prompt actual notice of a decedent’s death. § 733.212, Fla. Stat. (2007). Section 733.702, Florida Statutes (2007), governs the filing of claims against an estate and provides in pertinent part:

(1).... [N]o claim or demand against the decedent’s estate that arose before the death of the decedent .... is binding on the estate ... unless filed in the probate proceeding on or before the later of the date that is 3 months after the time of the first publication of the notice to creditors or, as to any creditor required to be served with a copy of the notice to creditors, 30 days after the date of service on the creditor ....
(3) Any claim not timely filed as provided in this section is barred even though no objection to the claim is filed unless the court extends the time in which the claim may be filed. An extension may be granted only upon grounds of fraud, estoppel, or insufficient notice of the claims period.

(Emphasis added). In addition, section 733.705, Florida Statutes (2007), requires a claimant may only bring an independent action against an estate based on an untimely claim filed pursuant to section 733.702(1) if the claimant has been granted an extension by the probate court.

Here, both parties concede the claim was untimely. However, appellant asserts because he was a readily ascertainable creditor, the probate court erred in striking the Statement of Claim. While appellant’s claim has some initial appeal, a close review of the history of the case law in this area and other pertinent case law constrains us to affirm.

Section 773.702(1) mandates a claim is untimely if it is filed either (1) outside the three month window following publication to creditors or (2) filed outside the 30 day window for responding to a notice of claim if the creditor is a readily ascertainable creditor of the estate entitled to actual notice of the claim. This provision and the issue of timeliness has a long history with both the Florida Supreme Court and the state Legislature. This history is recounted in May v. Illinois Nat. Ins. Co., 771 So.2d 1143, 1150-53 (Fla.2000), in which the supreme court stated in pertinent part:

In analyzing the nature of section 733.702, we begin with a review of Barnett Bank v. Estate of Read, 493 So.2d 447 (Fla.1986), because in that case, we were called upon to determine “whether the three-month limitation period in section 733.702 is a jurisdictional statute of nonclaim or a statute of limitations.” Id. at 448....
Upon reviewing the ... provisions of section 733.702, Florida Statutes (1983), we held that section 733.702 “is a statute of limitations.” Barnett Bank, 493 So.2d at 448. In so holding, we stated:
We fully recognize the strong public policy in favor of settling and closing estates in a speedy manner. Estate of Brown, 117 So.2d 478 (Fla.1960). However, as the facts of this case demonstrate, justice requires us to hold that section 733.702 is a statute of limitations. Valid grounds, such as estoppel or fraud, may exist that would and should excuse untimely claims. A creditor would lose the right to assert these potentially valid claims were we to hold that section 733.702 is a statute of nonclaim. Our holding that section 733.702 is a statute of limitations confirms the fact that estates and creditors must adhere to well-established practices when dealing with untimely claims....
In 1988, the Legislature amended section 733.702, Florida Statutes. See ch. 88-340, § 6, at 1805-06 ... [and] added the following pertinent language to the statute:
Any claim not timely filed as provided in this section is barred even though no objection to the claim is filed on the grounds of timeliness or otherwise unless the court extends the time in which the claim may be filed. Such an extension may be granted only in the estate administration proceeding, only after notice, and only upon grounds of fraud or estoppel. No independent action or declaratory action may be brought upon a claim which was not timely filed unless such an extension has been granted.
Id. This amendment clearly addressed the policy concerns we expressed in Barnett Bank, in that the amended language allows for an extension of the time limitation on the grounds of fraud or estoppel. Indeed, legislative history shows that the Legislature added the above-quoted language to section 733.702 in response to our decision in Barnett Bank, with the intent to make the statute “an absolute bar” to untimely filed claims, subject to an extension of the time limitation on the grounds of fraud or estoppel. See Fla. H.R. Comm, on Jud., HB 645 (1988), Staff Analysis & Economic Impact Statement 6 (April 7, 1988) (on file with comm.).
In 1989, the Legislature again amended section 733.702, Florida Statutes. See ch. 89-340, § 5, at 2178-79, Laws of Fla. Among other things, the Legislature added “insufficient notice of the claims period” as a basis for extending the time limitation under section 733.702. See id. Through this amendment, the Legislature obviously responded to the United States Supreme Court’s decision in Tulsa Professional Collection Services, Inc. v. Pope, 485 U.S. 478, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988), wherein the Court held that due process requires that actual notice of the claims period be provided to reasonably ascertainable creditors. See id. at 489-91, 485 U.S. 478, 108 S.Ct. 1340. Indeed, legislative history shows that the Legislature undertook many changes to the Florida Probate Code in response to the Pope decision. See Fla. H.R. Comm, on Jud., HB 1408 (1989), Staff Analysis & Economic Impact Statement 2, 6 (final June 15, 1989) (on file with comm.).
Based on to the amendments to section 733.702 discussed above, several district courts of appeal in Florida have determined that the statute now bars untimely claims, even in the absence of an objection, unless an extension is granted. See Comerica Bank & Trust, F.S.B. v. SDI Operating Partners, L.P., 673 So.2d 163, 166 (Fla. 4th DCA 1996) (“It is apparent that section 733.702(3) is unlike an ordinary statute of limitations in that it contains express language barring untimely claims without any necessity for the [personal representative] to object to the tardiness in filing.”) (footnote omitted); HCA New Port Richey Hospital v. Estate of Boschelli, 588 So.2d 1012, 1013 (Fla. 2d DCA 1991) (noting that since this Court decided Barnett Bank, the Legislature amended section 733.702 to make the statute “a bar to untimely filed claims, even in the absence of an objection, unless the court grants an extension ”)....

(Emphasis added).

Here, appellant filed a statement of claim past the three month filing window. As such, according to section 733.702(1), the claim was untimely as appellant did not receive actual notice of the claim and was, thus, a creditor who fell in the three month filing window following publication. See also Miller v. Estate of Baer, 837 So.2d 448, 449 (Fla. 4th DCA 2002) (holding creditors who do not receive actual notice have until the close of the three month publication window to .file a claim regardless of whether creditor asserts it was entitled to actual notice).

Further, appellant did not file a motion for extension of time to file the claim or otherwise seek an extension. All Florida cases since May dealing with the forgiveness of a timeliness issue as to a creditor’s claim where the creditor asserts he or she was a reasonably ascertainable creditor subject to actual notice reach the issue through review of the creditor’s request for an extension, not through creditor’s filing of a statement of claim. Faerber v. D.G., 928 So.2d 517, 518 (Fla. 2d DCA 2006) (reversing a trial court’s grant of creditor/appellee’s motion for extension of time to file a claim where no evidence was considered prior to the grant); Simpson v. Estate of Simpson, 922 So.2d 1027 (Fla. 5th DCA 2006) (reviewing trial court’s denial of appellant’s motion for extension of time based on the allegation he was a readily ascertainable creditor who should have received actual notice of decedent’s death); Longmire v. Estate of Ruffin, 909 So.2d 443 (Fla. 4th DCA 2005) (same); Strulowitz, 839 So.2d 876 (same); Miller, 837 So.2d at 448-50 (same).

While the Statement of Claim listed facts upon which a probate court could grant an extension, the Statement of Claim did not request an extension. Further, at no point in either the initial brief or the reply brief does appellant argue his Statement of Claim should be converted or modified to be read as a motion requesting an extension of time. The proper procedural course for untimely claims is the filing of an extension request prior to the filing of a statement of claim. § 733.702(1)-(3), Fla. Stat. (2007). Under the plain language of the statute, once appellant’s claim fell outside the three month claim period, regardless of his arguments for delay, his claim could only be considered after the probate court’s grant of an extension. Because appellant chose to file only a Statement of Claim and never requested an extension of time to file that claim, the probate court was bound by the relevant statutes to deny the claim. § 733.702(l)-(3), Fla. Stat. (2007).

Further, while appellant now argues on appeal that he should have been granted a hearing on his Statement of Claim, appellant did not request a hearing in the Statement of Claim or in any other pleading and has waived that issue for appeal. Stueber v. Gallagher, 812 So.2d 454 (Fla. 5th DCA 2002) (appellant waived claim on appeal that he should have been granted a formal hearing, rather than an informal one, by failing to request the formal hearing).

Appellant relies heavily on Burgis v. Burgis, 611 So.2d 594 (Fla. 2d DCA 1993) for the proposition that an untimely petition to require payment of a claim may be considered if the petition alleges the claimant was a readily ascertainable creditor of the estate that was not given actual notice of the claim. In Burgis, the Second District did consider and reverse a trial court’s denial of a petition to require payment of a claim which was untimely and did not ask for an extension to file the claim because the petition adequately alleged claimant was a readily ascertainable creditor subject to actual notice. Id. However, in reversing, Burgis relied solely on Florida Probate Rule 5.495 which, at the time, stated as follows:

If a creditor of the estate files a petition to extend the time for filing a claim, after the time allowed by law for presenting claims, or a petition to require payment of claim, which claim was filed after the time allowed by law for presenting claims, and the petition alleges that the creditor was known to or reasonably ascertainable by the personal representative, but was not served with a copy of the notice of administration, such petition shall specifically allege facts showing that such creditor was known to or reasonably ascertainable by the personal representative....

(Emphasis added). This rule clearly authorized a claimant to seek payment of a claim after the relevant time period for filing the claim if, in the claim, the claimant asserted he or she was a readily ascertainable creditor who had not received the required actual notice. Thus, if this rule were still in existence, reversal would be required. However, Rule 5.495 was repealed on October 1, 1991, due to the statutory addition of section 733.702 regarding timeliness of claims. In re Amendments to the Florida Probate Rules, 584 So.2d 964, 970 (Fla.1991); see also In re Estate Danese, 641 So.2d 423, 427 n.1 (Fla. 1st DCA 1994). Thus, section 733.702 controls requiring a claimant seek and receive an extension prior to the filing of a statement of claim, which appellant failed to do.

The decision of the trial court is AFFIRMED.

HAWKES C.J., and DAVIS J„ concur.


text:
    Purnima SHETH, Appellant/Cross-Appellee, v. Jiten SHETH, Appellee/Cross-Appellant.
    No. 5D08-500.
    District Court of Appeal of Florida, Fifth District.
    Dec. 31, 2009.
    Rehearing Denied Jan. 29, 2010.

      Purnima Sheth, Longwood, pro se.
    Jiten Sheth, Sanford, pro se.
   PER CURIAM.

Appellant, Purnima Sheth [“Wife”], pro se, appeals the amended final judgment of dissolution of marriage entered by the lower court after a three-day non-jury trial. Husband and Wife are both dentists. Wife filed the current petition for dissolution of marriage on May 6, 1998. This contentious case has consumed eleven years, several judges and multiple attorneys. Issues in dispute have included alimony, custody and support, equitable distribution of assets and liabilities, ownership interest in their dental practice, partition of real estate and attorney’s fees. We conclude that the record is adequate to demonstrate error on only one of the many issues raised in the appeal and cross-appeal.

We agree with Wife that the trial court erred in designating as a marital asset the Crown Bank CD # 4640, having a value of $26,198. This CD was redeemed by Wife at the time the parties’ first dissolution was filed in 1996 and the funds were used for her and the children’s living expenses. This proceeding was dismissed later in 1996.

In 1998, Wife filed a new petition for dissolution. The trial court apparently determined that the Crown Bank CD was a marital asset, based on an order in the earlier dissolution concerning temporary support that deferred classification of the proceeds of the CD, but we can find no legal basis to treat this previously liquidated CD as a marital asset in the present proceeding. See also McCants v. McCants, 984 So.2d 678 (Fla. 2d DCA 2008); Tucker v. Tucker, 966 So.2d 25 (Fla. 2d DCA 2007); Plichta v. Plichta, 899 So.2d 1283 (Fla. 2d DCA 2005); Cooper v. Cooper, 639 So.2d 153, 154-55 (Fla. 2d DCA 1994); Knecht v. Knecht, 629 So.2d 883 (Fla. 3d DCA 1993); Akers v. Akers, 582 So.2d 1212 (Fla. 1st DCA 1991).

Wife also contends on appeal that the trial court erred in dividing the retirement assets, but it appeal's this issue arises only because of the language employed in the order. The accounting spreadsheet shows Wife’s fifty percent share of Husband’s retirement account to which she is entitled is $66,314.50. This amount is not disputed by Husband. The final judgment provides:

35. In consideration of the tax deferred equalizing payment of retirement assets being $66,314.50, [Husband] shall transfer $36,472.98 as an equalizer payment in Retirement Assets to a retirement account of the Wife. This transfer contemplates the amount owed to [Wife] in such form as can be accomplished to avoid any early withdrawal penalties or tax consequences. Counsel for [Wife] and for [Husband] shall cooperate to accomplish such transfer through Qualified Domestic Relation Order if necessary. Should there be a complete absence of a vehicle by which this transfer can be accomplished from [Husband] to [Wife], then the [Husband] may transfer this sum, less the reduction of 10% for early withdrawal penalties and a 35% reduction for the taxes associated with said withdrawal.

The parties agreed at oral argument that their mutual understanding of this provision is that if these funds can be transferred to Wife through a qualified domestic relation order, there would be no tax consequences to Husband, and Wife should receive the $66,314.50. If such a transfer cannot be made, then Wife would receive the $36,472.98, representing the net present value of the retirement funds after taxes and early withdrawal penalties incurred by Husband. At oral argument, the parties advised the court that no effort to make the transfer has yet been made, but given the parties’ agreement, there appears to be no appellate issue. Accordingly, the final judgment is affirmed in all respects, save the deduction from equitable distribution to Wife of the $26,198 certificate of deposit and the addition of the value of the 1996 Toyota Corolla. We remand for amendment of the Final Judgment for this purpose.

AFFIRMED in part; REVERSED in part; and REMANDED.

GRIFFIN, COHEN, JJ, and BERGER, W, Associate Judge, concur.

      . In 1996, a prior dissolution of marriage action was filed. The case was dismissed when the parties decided to attempt to reconcile.

      . Although inclusion of this CD as part of Wife’s equitable distribution was error, the trial court did not value Wife’s car, which had been purchased with some of the proceeds of the CD, to avoid counting that asset twice. Thus, on remand, the 1996 Toyota Corolla must be allocated to Wife.


text:
    Reginald EPKINS, Petitioner, v. Edwin Curtis McMULLEN, Jr, Bryan Curtis McMullen, Linda McMullen, Timothy McCormick, Kelly McCormick, and Brenda D. Walker, Respondents.
    No. 1D09-5797.
    District Court of Appeal of Florida, First District.
    Jan. 5, 2010.
    Reginald Epkins, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DENIED. See Smartt v. First Union Nat’l Bank, 771 So.2d 1232 (Fla. 5th DCA 2000).

HAWKES, C.J, WOLF and DAVIS, JJ, concur.