author: MILLER, J.

text:
    Francisco QUINONES, Appellant, v. The STATE of Florida, Appellee.
    No. 3D17-1769
    District Court of Appeal of Florida, Third District.
    Opinion filed April 24, 2019
    Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before SALTER, LINDSEY, and MILLER, JJ.
   MILLER, J.

Appellant, Francisco Quinones, was convicted of dealing in stolen property in violation of section 812.019(1), Florida Statutes, and providing false verification of ownership to a pawnbroker, in violation of section 539.001(8)(b), Florida Statutes. On appeal, Quinones contends: (1) the evidence was insufficient to support the denial of his motion for judgment of acquittal; and (2) the trial court erred in allowing questioning regarding his explanation for possession of the stolen property at issue. For the reasons set forth below, we affirm.

Less than ten days after two items of jewelry, inscribed with the victim's given name, surname, and nickname, were stolen during a move to a new residence, Quinones, who was unknown to the victim, used the jewelry as collateral to obtain a $ 440.00 loan from a pawnshop. During the transaction, appellant presented photographic identification, and signed and fingerprinted the requisite state-approved pawnbroker transaction form, confirming ownership of the items. Law enforcement officers involved in the routine review of local pawnbroker transactions noted the personalized nature of the jewelry and easily made contact with the victim. Quinones was just as swiftly identified through his photographic identification and fingerprint, and was detained for questioning. After waiving his Miranda rights, Quinones denied ever possessing or pawning the jewelry.

Under these facts, we find the trial court did not err in denying the motion for judgment of acquittal, as competent, substantial evidence, apart from mere unexplained possession, supported the verdict of the jury. Specifically, witness testimony established that both jewelry items were stored together and engraved with personalized markings. These factors, combined with Quinones's possession of both items, jointly, in close proximity to the time of the deprivation of ownership, and his demonstrated effort to dispose of the items through a second-hand market in which goods tend to be undervalued, were sufficient to allow the trier of fact to infer that Quinones knew or should have known the jewelry was stolen. See § 812.022(2), Fla. Stat. (2018) ("[P]roof of possession of property recently stolen, unless satisfactorily explained, gives rise to an inference that the person in possession of the property knew or should have known that the property had been stolen."); Blackmon v. State, 121 So.3d 535, 550 (Fla. 2013) ("The reasonableness of the defendant's explanation is generally a question of fact for the jury.") (quoting Smith v. State, 742 So.2d 352, 355 (Fla. 5th DCA 1999) ); Kittles v. State, 897 So.2d 517, 519 (Fla. 4th DCA 2005) ("[Defendant's] explanation that his sister had given him the stolen jewelry was patently unreasonable in light of the markings on the rings and his possession of the items within no more than eighteen hours of the burglary."); Wilson v. State, 884 So.2d 74, 76 (Fla. 2d DCA 2004) (significant discrepancy at trial between defendant's testimony and a detective's testimony undermined defendant's credibility so that his explanation for possession of stolen property was "arguably reasonable" and not "patently reasonable"); Haugabrook v. State, 827 So.2d 1065, 1069 (Fla. 2d DCA 2002) (finding defendant's explanation for possession of stolen property was not patently reasonable, thereby requiring jury resolution); T.S.R. v. State, 596 So.2d 766, 767 (Fla. 5th DCA 1992) ("[U]nexplained possession of recently stolen property is not only sufficient to support a theft conviction but when burglary necessarily occurs as an adjunct, the inference of guilt from the unexplained possession of recently stolen goods also supports a conviction for the burglary."); Coleman v. State, 466 So.2d 395, 397 (Fla. 2d DCA 1985) ("[The defendant], whose credibility was impeached by his admission that he had been convicted of three prior felonies, was found trying to sell the stolen items just a few hours after they had been stolen. To accept [the defendant's] explanation, it would have to be assumed that someone went to the trouble to steal the sailboat parts from fenced-in premises and yet discarded them in a dumpster shortly thereafter. Moreover, [the defendant] provided no corroboration for his statement that he was in the junk business. The jury was entitled to conclude that [the defendant's] explanation was unsatisfactory."); cf. Valdez v. State, 492 So.2d 750, 752 (Fla. 3d DCA 1986) (reversing conviction where the defendant offered an "unrefuted, exculpatory, and not unreasonable explanation of his possession of" the stolen items) (quoting R.A.L. v. State, 402 So.2d 1337, 1337 (Fla. 3d DCA 1981) ).

We further conclude that reference to the appellant's post- Miranda statements did not improperly shift the burden of proof. See State v. Young, 217 So.2d 567, 571 (Fla. 1968), cert. denied, 396 U.S. 853, 90 S.Ct. 112, 24 L.Ed.2d 101 (1969) ("It can be seen, therefore, that the rule of evidence respecting possession of recently stolen goods is no different, in kind, from the rule respecting the probative value of any other circumstantial evidence. Flight, concealment, resistance to a lawful arrest, presence at the scene of the crime, incriminating fingerprints-the whole body of circumstantial evidence relevant in a given case-are all incriminating circumstances which the jury may consider as tending to show guilt if evidence thereof is allowed to go to the jury unexplained or unrebutted by evidence of exculpatory facts and circumstances."); see also Walker v. State, 896 So.2d 712, 713 (Fla. 2005) (finding that in a prosecution for burglary, an instruction on inferences arising from proof of unexplained possession of recently stolen property did not violate the defendant's right to remain silent or impermissibly shift the burden of proof).

Affirmed.

      Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    K.S., Mother of J.R., D.R. and B.-C.A., Children, Appellant/Cross-Appellee, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee/Cross-Appellant.
    Case No. 5D18-3209
    District Court of Appeal of Florida, Fifth District.
    Opinion filed April 23, 2019
    K.S., Brooksville, Appellant/Cross-Appellee, pro se.
    Kelley Schaeffer, Appellate Counsel, Department of Children & Families, Children's Legal Services, Bradenton, for Appellee/Cross-Appellant.
    Thomasina F. Moore, Statewide Director of Appeals, and Sara Elizabeth Goldfarb, Senior Attorney, Appellate Division, Florida Statewide Guardian ad Litem Office, Tallahassee, for Guardian ad Litem.
   PER CURIAM.

The mother, K.S., has filed a belated appeal of a final judgment of termination of parental rights. See, e.g. , In re E.H. , 609 So. 2d 1289, 1290-91 (Fla. 1992) (holding that mother was entitled to belated appeal due to ineffective assistance of counsel in failing to timely file notice of appeal). Because the record supports the trial court's finding that the Department of Children and Families proved, by clear and convincing evidence, all necessary elements for termination of parental rights, we affirm. See L.F. v. Dep't of Child. & Fams. , 888 So.2d 147, 148 (Fla. 5th DCA 2004) ("Where a trial court has found that there is clear and convincing evidence supporting a termination of parental rights, such findings enjoy a presumption of correctness and will not be overturned unless clearly erroneous and lacking evidentiary support.").

AFFIRMED.

EVANDER, C.J., WALLIS and HARRIS, JJ., concur.

      Given our disposition of the mother's appeal, we find it unnecessary to address the issues raised on cross-appeal.


text:
    Pamela Christina LEGGETT, Appellant, v. In re: ADOPTION OF GVLP & SELP, Appellee.
    No. 3D18-2040
    District Court of Appeal of Florida, Third District.
    Opinion filed April 24, 2019.
    Pamela Leggett, in proper person.
    Alan I. Mishael, P.A., and Alan I. Mishael, Miami Beach, for appellee.
    Before FERNANDEZ, LOGUE, and MILLER, JJ.
   PER CURIAM.

Affirmed. See § 63.182(1), Fla. Stat. (2018) ("[A]n action or proceeding of any kind to vacate, set aside, or otherwise nullify a judgment of adoption or an underlying judgment terminating parental rights on any ground may not be filed more than [one] year after entry of the judgment ..."); Martin v. Adoption of L.M.D., 64 So.3d 758, 758 (Fla. 3d DCA 2011) ("Florida's statute of repose strictly limits motions to vacate adoption orders to one year. There are no exceptions."); see also D.M.T. v. T.M.H., 129 So.3d 320, 328-29 (Fla. 2013) ("Parental rights, which include the love and affection an individual has for his or her child, transcend the relationship between two consenting adults, and we see nothing in this record that makes either [woman] an exception that places those rights in one to the exclusion of the other. It is unknown what caused these two women to cross the proverbial line between love and hate, but that is a matter between [them]. Their separation does not dissolve the parental rights of either woman to the child, nor does it dissolve the love and affection either has for the child.") (quoting T.M.H. v. D.M.T., 79 So.3d 787, 802-03 (Fla. 5th DCA 2011) ); In re Adoption of D.P.P, 158 So.3d 633, 639 (Fla. 5th DCA 2014) ("[I]t would be unconscionable to allow [the mother] to invoke the jurisdiction of this court for the sole purpose of creating a parent-child relationship between [her child] and [her partner] and then to allow her to destroy that same relationship because her relationship with [her partner] has ended.").


text:
    James RODRIGUEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1830
    District Court of Appeal of Florida, Third District.
    Opinion filed April 24, 2019
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Kayla H. McNab, Assistant Attorney General, for appellee.
    Before EMAS, C.J., and FERNANDEZ and LINDSEY, JJ.
   PER CURIAM.

James Rodriguez appeals from a judgment and sentence following a jury trial in which he was found guilty of trafficking in cocaine. On appeal, Rodriguez asserts that the trial court committed reversible error in overruling his objections to certain statements made by the State in its rebuttal closing argument. A trial court's rulings on comments made during closing argument are generally reviewed for an abuse of discretion. Braddy v. State, 111 So.3d 810 (Fla. 2012). However, if the trial court overruled the defense's contemporaneous objections, and we determine that the comments were indeed improper, we apply a harmless error standard of review. Snelgrove v. State, 921 So.2d 560, 568 (Fla. 2005). This standard places "the burden on the state, as the beneficiary of the error, to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict or, alternatively stated, that there is no reasonable possibility that the error contributed to the conviction." Ibar v. State, 938 So.2d 451, 466 (Fla. 2006) (quoting State v. DiGuilio, 491 So.2d 1129, 1135 (Fla. 1986) ).

Upon our review of the record, including a review of the closing arguments made by the State and the defense, we conclude that most of the complained-of comments were not improper and were in fair reply to defense counsel's closing argument. See, e.g., Williams v. State, 225 So.3d 349 (Fla. 3d DCA 2017). To the extent that any of the State's comments were improper and objections were erroneously overruled by the trial court, we conclude any such error was harmless.

Affirmed.


author: SCALES, J.

text:
    Victor Allan CLARK, Appellant, v. CELEBRITY CRUISES, INC., etc., et al., Appellees.
    No. 3D18-1233
    District Court of Appeal of Florida, Third District.
    Opinion filed April 24, 2019
    Alvarez, Feltman, & DaSilva, PL, and Paul B. Feltman, for appellant.
    Coffey Burlington, P.L., and Jeffrey B. Crockett and Paul J. Schwiep, for appellees.
    Before SCALES, LINDSEY and HENDON, JJ.
   SCALES, J.

Victor Allan Clark, the plaintiff below, appeals a non-final order granting Celebrity Cruises, Inc. and Royal Caribbean Cruises Ltd.'s, the defendants below, motion to dismiss Clark's First Amended Complaint. Because we conclude the trial court did not err, as a matter of law, in finding that venue lies in the Turks and Caicos Islands based on the mandatory forum selection clause contained within Clark's independent contractor agreement, we affirm. See Antoniazzi v. Wardak, 259 So.3d 206, 209 (Fla. 3d DCA 2018) ("The trial court's construction of the forum selection clause is subject to de novo review.").

Clark was employed by a staffing agency (Caribbean Staffing Solutions) to work - on an independent contractor basis - as an art auctioneer for Park West Galleries, Inc. on cruise ships. Clark alleges that he was injured, on two separate occasions, while moving artwork on cruise ships separately owned and operated by the two appellee cruise lines. The First Amended Complaint alleges claims against the cruise lines for general maritime law negligence (counts I and IV); general maritime law unseaworthiness (counts II and V), and general maritime law failure to provide maintenance and cure (counts III and VI).

Citing this Court's decision in Durkovic v. Park West Galleries, Inc., 217 So.3d 159 (Fla. 3d DCA 2017), the appellees moved to dismiss the instant action based on the mandatory forum selection clause contained within Clark's independent contractor agreement with the staffing agency, of which the appellees were intended third-party beneficiaries. At the hearing on the appellees' motion, the trial court found that, based on Durkovic, venue lies in the courts of the Turks and Caicos Islands. We agree.

In Durkovic, this Court considered a similar independent contractor agreement with the same staffing agency, containing the same mandatory forum selection clause and the same release provision at issue here. There, this Court affirmed the dismissal of the plaintiff's personal injury action against Park West Galleries, Inc. (also an intended third-party beneficiary of the independent contractor agreement), holding that the action must be brought in the Turks and Caicos Islands. Id. at 159-60. That the instant action alleges claims against the appellee cruise lines only is of no matter. We find that, under Durkovic, the trial court correctly dismissed the instant action because venue lies in the Turks and Caicos Islands.

Affirmed.

      Because the subject order is a non-final order that "concern[s] venue," we have jurisdiction. Fla. R. App. P. 9.130(a)(3)(A).

      The independent contractor agreement's mandatory forum selection clause provides, in relevant part, that "any and all legal proceedings ... arising from or relating to this Agreement ... shall be brought only in a court in the Turks & Caicos Islands."

      The independent contractor agreement's "Indemnification, Hold Harmless, and Release" provision ("release provision") provides, in relevant part, that Clark "irrevocably and unconditionally releases ... all cruise ships and cruise lines on which [Clark] performs services ... from and against any past, present or future loss, claim, damage, or liability of any kind or nature whatsoever arising from [Clark's] activities in connection with this Agreement." The release provision further provides that the release includes "claims for personal injuries," "claims under the Jones Act," "claims for maintenance and cure," and "claims for unseaworthiness." The release provision supports the trial court's conclusion that the appellees are intended third-party beneficiaries of the independent contractor agreement. The trial court did not reach the issue of, and we express no opinion on, whether the release provision exculpates the appellees. See footnote 5, infra .

      Clark filed his original complaint against the appellee cruise lines and Park West Galleries, Inc. When Park West Galleries, Inc. moved to dismiss the complaint against it based on Durkovic, Clark filed the First Amended Complaint against the appellee cruise lines only.

      We express no opinion as to the merits of, or defenses to, Clark's claims. This includes, as noted in footnote 3, supra , the validity and enforceability of the subject release provision. As we stated in Durkovic, "the courts of the Turks and Caicos Islands are capable of deciding the choice of law issues, determining whether the contractual provisions limiting liability and recovery are operative, and applying the Jones Act, if appropriate." 217 So.3d at 160.


text:
    T.M., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-894
    District Court of Appeal of Florida, Third District.
    Opinion filed April 24, 2019
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Special Assistant Public Defender, and Luis A. Arguelles and Eric Rojo Dotel, Certified Legal Interns, for appellant.
    Ashley Moody, Attorney General, and Sandra Lipman, Assistant Attorney General, for appellee.
    Before SALTER and FERNANDEZ, JJ., and LEBAN, Senior Judge.
   PER CURIAM.

T.M. appeals a withhold of adjudication for throwing a deadly missile and for second-degree criminal mischief. The sole issue on appeal is whether the trial court abused its discretion in sustaining the State's objection to the introduction into evidence of an audio recording of the victim's 911 calls, under the excited utterance hearsay exception. The juvenile argues that this was harmful error. Finding no abuse of discretion, we affirm.

On appeal, a ruling on the admissibility of evidence is reviewed for abuse of discretion. Daniels v. State, 634 So.2d 187, 192 (Fla. 3d DCA 1994). In this case, the trial court was within its discretion in precluding introduction of the recording based on the lack of authentication for this evidence.

Audio recordings may be played for the jury "if the audible parts are relevant, authenticated, and otherwise properly admissible." Odom v. State, 403 So.2d 936, 940 (Fla. 1981). The audio can be authenticated and admitted if the party speaking on the recording testifies that the audio is an accurate representation of the conversation. McCoy v. State, 853 So.2d 396, 403 (Fla. 2003) ("Nothing more than this confirmation, by a participant in the conversation, that the tape fairly and accurately memorialized the discussion at issue is required to properly authenticate the recording.").

In the present case, the court excluded the recording because it was presented at trial on a disc containing three recordings of three separate calls with different content in each. The victim had previously listened to a digital recording of the particular call he had made to the 911 operator, but had not listened to the contents of the disc offered for admission by the defense. The victim was not asked to testify that the version on the disc was the same recording he had heard previously. After realizing the victim's uncertainty about the contents of the disc, defense counsel indicated that he had "another way to go about doing this." The subsequent questioning was directed to the victim's eyewitness account, thus abandoning authentication of the audio recording itself as a prerequisite to its admission into evidence.

Affirmed.


author: LINDSEY, J.

text:
    Jeffrey EPSTEIN, Appellant, v. Jean-Luc BRUNEL, individually, and MC2 Model & Talent Miami, LLC, Appellees.
    No. 3D18-1997
    District Court of Appeal of Florida, Third District.
    Opinion filed April 24, 2019
    Link & Rockenbach, P.A., and Scott J. Link, and Kara Berard Rockenbach (West Palm Beach), for appellant.
    Joe Titone (Pompano Beach), for appellees.
    Before EMAS, C.J., and SCALES, and LINDSEY, JJ.
   LINDSEY, J.

Appellant, Jeffrey Epstein, defendant below, appeals a non-final order, which determined service of process was proper and ordered Epstein to file an answer or response to the complaint filed by Appellees, Jean-Luc Brunel ("Brunel") and MC2 Model & Talent, LLC ("MC2"), plaintiffs below, within 20 days. Because Brunel and MC2 did not strictly comply with the service of process requirements, we reverse.

I. JURISDICTION

The issue before us is whether service of process on Epstein was valid. See Fla. R. App. P. 9.130(a)(3)(C)(i) (authorizing appellate review of non-final orders determining jurisdiction of the person); Philip J. Padovano, 2 Fla. Prac., App. Prac. § 24:6 (2018 ed.) ("As used in Rule 9.130(a)(3)(C)(i), jurisdiction of the person refers exclusively to the validity of service of process or the applicability of the long arm statute."). As such, we have jurisdiction.

II. BACKGROUND

In January 2015, Brunel and his modeling agency, MC2, sued Epstein for damages that allegedly resulted from notoriety and bad publicity generated by criminal charges that had been brought against Epstein involving allegations of unlawful sexual contact with a minor. According to the complaint, after criminal charges were filed against Epstein, "Plaintiffs were widely implicated in the media as being 'linked' to Epstein. These false stories caused both Plaintiffs a tremendous loss of business."

Brunel and MC2 attempted to serve Epstein at his residential address in New York, but Epstein successfully moved to quash service. On October 5, 2016, the trial court ordered Brunel and MC2 to serve Epstein within 120 days or the case would be dismissed without prejudice.

Epstein lives on Little St. James, a private island in the Virgin Islands. However, Brunel and MC2 did not attempt to serve Epstein on Little St. James. Instead, they served Jeanne Brenna, who Brunel and MC2 claim is an office supervisor at Epstein's Virgin Islands business address, on November 17, 2016. In response, Epstein's counsel promptly notified counsel for Brunel and MC2 that the attempted service was, from their perspective, invalid under Florida law.

Thereafter, Brunel and MC2 made no further attempts to serve Epstein, and on March 16, 2017, moved in the trial court for a ruling on service of process. Epstein maintained that service was improper and sought to dismiss the case. Brunel and MC2 filed a second motion for a ruling on service of process on October 16, 2017, and Epstein again responded in opposition. The trial court held a hearing on September 14, 2018, and on September 17, it entered the order now under review, which denies Epstein's motion to dismiss and orders him to file his answer or response within 20 days. This timely appeal followed.

III. ANALYSIS

Ordinarily, service of process is governed by section 48.031(1)(a), Florida Statutes (2018), which provides as follows:

(1)(a) Service of original process is made by delivering a copy of it to the person to be served with a copy of the complaint, petition, or other initial pleading or paper or by leaving the copies at his or her usual place of abode with any person residing therein who is 15 years of age or older and informing the person of their contents. Minors who are or have been married shall be served as provided in this section.

Brunel and MC2 did not attempt to serve Epstein at his "usual place of abode" in the Virgin Islands. Instead, they attempted substitute service pursuant to section 48.031(2)(b) :

(b) Substitute service may be made on an individual doing business as a sole proprietorship at his or her place of business, during regular business hours, by serving the person in charge of the business at the time of service if two attempts to serve the owner have been made at the place of business.

(Emphasis added).

It is well-established in Florida that the service of process requirements must be strictly complied with. See, e.g., Ingenieria y Exportacion de Tecnologia S.L. v. Freytech, Inc., 210 So.3d 211, 213 (Fla. 3d DCA 2016) ("Strict construction of, and compliance with, statutes governing service of process is required." (quoting Bennett v. Christiana Bank & Trust Co., 50 So.3d 43, 45 (Fla. 3d DCA 2010) ) ); Robles-Martinez v. Diaz, Reus & Targ, LLP, 88 So.3d 177, 179 (Fla. 3d DCA 2011) ("Service made under the substitute service provisions of section 48.031, Florida Statutes, must be strictly complied with, and these provisions are to be strictly construed.").

Here, service of process was improper because Brunel and MC2 did not strictly comply with section 48.031. In order for substitute service to be made under section 48.031(2)(b), an individual must be doing business as a sole proprietorship. Brunel and MC2 concede that Epstein is not the owner of a sole proprietorship, so substitute service under 48.031(2)(b) is unavailable.

Brunel and MC2 attempt to excuse strict compliance by arguing that the legislature could not have contemplated a lifestyle like Epstein's. But Brunel and MC2 never tried to serve Epstein at his place of abode. Moreover, as explained in cases that Brunel and MC2 themselves rely on, even if Epstein were avoiding service, there are other methods of substitute service that would perhaps be more applicable here. See Delancy v. Tobias, 26 So.3d 77, 79 (Fla. 3d DCA 2010) (holding that service pursuant to section 48.181(1), which allows for substitute service on residents who conceal their whereabouts, was proper where plaintiff made a showing of diligent inquiry to ascertain defendant's whereabouts); Hull v. Lending House, Inc., 19 So.3d 404 (Fla. 3d DCA 2009) (finding record evidence that service of process by publication pursuant to section 49.021 was appropriate because defendant's residence was inaccessible and the process server could not gain access by any reasonable means).

IV. CONCLUSION

Because Brunel and MC2 failed to strictly comply with the service of process requirements, we reverse the order on appeal and remand for entry of a dismissal, without prejudice.

Reversed and remanded with instructions.

      Service was improper for a number of other reasons. For instance, even if Epstein were doing business as a sole proprietorship, section 48.031(2)(b) requires two attempts to serve the owner at the place of business before serving the person in charge. The process server's affidavit reflects that only one attempt was made to serve Epstein.

      In his memorandum in opposition to Brunel and MC2's motion for ruling on service of process, Epstein claims that service of process on Little St. James was possible:
      The motion and notice filed by Plaintiffs assert that service is impossible on Little St. James, because this is a private island. Such assertion is absurd on its face, as service of process takes place routinely on private property. Little St. James is one of several residential cays in the U.S. Virgin Islands. The mode of transportation to such cays may be by boat rather than car, but certainly service of process is possible on any of them. Access to such cays by boat is commonplace in the U.S. Virgin Islands, and Little St. James is well-identified and easily located on any map. As is evident from the photograph of Little St. James provided by Plaintiffs in connection with their motion, the Island features a sizable dock by which those arriving by boat may access the Island. That dock effectively serves as the front door to Little St. James, and as with any private residence, there was absolutely nothing preventing a process server from proceeding to the front door and inquiring of Mr. Epstein. Access to Little St. James was certainly available in this case and should have been attempted, but never was.

      The trial court's October 5, 2016 Order granted Plaintiffs 120 days to serve Epstein. The Order further stated that if Plaintiffs failed to serve Epstein within the 120 days, the case would be dismissed without prejudice.


author: HENDON, J.

text:
    D.D., a juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1307
    District Court of Appeal of Florida, Third District.
    Opinion filed April 24, 2019
    Carlos J. Martinez, Public Defender, and Stephen J. Weinbaum, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Christina L. Dominguez, Assistant Attorney General, for appellee.
    Before SCALES, LINDSEY, and HENDON, JJ.
    ON PARTIAL CONFESSION OF ERROR
   HENDON, J.

D.D., a juvenile, appeals from the trial court's order revoking his probation for violating conditions of his probation and imposing a new term of probation with conditions. We reverse and remand for the entry of an order consistent with the trial court's oral pronouncements.

The State filed an amended affidavit and petition for violation of probation, alleging that D.D. violated several conditions of his probation. At the violation of probation hearing, the State called two witnesses-D.D.'s case manager at the school D.D. attends and D.D.'s juvenile probation officer. At the conclusion of the hearing, the trial court orally ruled that the State established by a preponderance of the evidence that D.D. willfully and substantially violated the conditions of his probation by failing to submit to a random drug test, failing to comply with his curfew, failing to attend school as required, and failing to follow school rules.

Following its oral pronouncements, the trial court entered a written order that did not specify the conditions of probation that D.D. violated, but merely stated that D.D. had "violated the terms of the Probation program, to wit: Non Law Violation." The trial court revoked D.D.'s probation, and entered a new disposition order withholding adjudication and placing D.D. on probation once again with new conditions. D.D.'s appeal followed.

D.D. argues that the trial court erred by finding that he violated conditions of his probation where the finding was based solely on hearsay. We disagree.

"While hearsay that is normally inadmissible in a criminal trial may be admitted in [violation of probation] proceedings, it may not constitute the sole basis for finding a violation of probation." M.A.L. v. State, 110 So.3d 493, 498 (Fla. 4th DCA 2013) ; see also A.J.D. v. State, 842 So.2d 297, 298 (Fla. 3d DCA 2003) ("It is clear that hearsay is admissible in revocation proceedings, however, it cannot be the sole basis for revocation.").

Based on our independent review of the transcript of the violation of probation hearing, the trial court's oral rulings that D.D. violated certain conditions of his probation were not based solely on hearsay. Rather, the State introduced sufficient non-hearsay evidence to sustain the trial court's oral pronouncement as to D.D.'s violation of the terms of his probation, including the witnesses' testimony as to what they personally observed and statements made by D.D. to his case manager at the school D.D. attends. See Ruise v. State, 43 So.3d 885, 886-87 (Fla. 1st DCA 2010) ("Hearsay is admissible in a probation or community control violation proceeding, but probation or community control may not be revoked solely on the basis of hearsay evidence. Revocation may, however, be based solely upon hearsay evidence that falls within an exception to the hearsay rule.") (citations omitted). Thus, we conclude that the evidence presented at the violation of probation hearing was sufficient to sustain the trial court's oral pronouncement that D.D. violated specific conditions of his probation. However, based on the State's proper confession of error, we reverse the order under review as it fails to specify the conditions that D.D. violated, and we remand for the entry of a written order specifying the conditions of probation it found that D.D. violated. See T.M. v. State, 233 So.3d 1275, 1275 (Fla. 3d DCA 2017) (holding that "the law is well-settled: if the trial court revokes a juvenile's probation, the court is required to render a written order setting forth the conditions of probation that were violated. If no such written order was rendered, it is appropriate to remand the case to the trial court for entry of an appropriate order").

Reversed and remanded.


text:
    The STATE of Florida, Appellant, v. Dolores FREIXA, Appellee.
    No. 3D18-1150
    District Court of Appeal of Florida, Third District.
    Opinion filed April 24, 2019
    Ashley Moody, Attorney General, and Natalia Costea, Assistant Attorney General, for appellant.
    Carlos J. Martinez, Public Defender, and Howard K. Blumberg, Special Assistant Public Defender, and Luis A. Arguelles and Eric Rojo Dotel, Certified Legal Interns, for appellee.
    Before EMAS, C.J., and SCALES, and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See State v. Lewars, 259 So.3d 793 (Fla. 2018) (explaining that section 775.082(9)(a)(1), Fla. Stat. (2012), unambiguously supports the conclusion that "release from a county jail does not satisfy the 'released from' element of the statute's [prison release reoffender] definition").


text:
    George M. SAFIRSTEIN, Appellant, v. DEPARTMENT OF HEALTH, BOARD OF MEDICINE, Appellee.
    No. 3D18-633
    District Court of Appeal of Florida, Third District.
    Opinion filed April 24, 2019
    Sanchez-Medina, Gonzalez, Quesada, Lage, Gomez & Machado LLP, and Roland Sanchez-Medina, Jr., for appellant.
    Christine E. Lamia, Chief Appellate Counsel (Tallahassee), for appellee.
    Before SALTER, LINDSEY, and HENDON, JJ.
   HENDON, J.

Dr. George M. Safirstein ("Safirstein") appeals the decision of the Department of Health Board of Medicine ("Board") to revoke his license to practice medicine in Florida. We affirm.

Safirstein was a licensed physician in Florida, practicing at Synergy Integrative Health and Med Spa / Optimal Health Age Management Centers in Hallandale Beach, Florida. Safirstein was administratively charged with medical malpractice in a twenty-one count complaint filed by the Board. The administrative complaint addressed Safirstein's treatment of seven patients over the course of two years, and recites twenty-one counts alleging that Safirstein failed to meet the prevailing standard of care in his treatment of these patients, failed to perform necessary physical examinations on these patients, inappropriately prescribed controlled substances to these patients, and failed to maintain complete and legible medical records justifying the course of treatment for these patients. Subsequent to a finding of probable cause, Safirstein returned an election of rights form in which he did not dispute the material allegations contained in the administrative complaint. He elected to move forward with an informal hearing which would allow him to present mitigating factors to the Board. The election was also signed by his attorney, Mr. Medina, who had been actively representing him in the underlying investigation.

The informal hearing was scheduled for Friday, February 2, 2018, and Safirstein does not dispute that he received notice of the hearing. On Monday, January 29, 2019, four days prior to the hearing, Safirstein's attorney emailed the Board enquiring about obtaining a continuance based on Safirstein's health, but provided no details. The following morning, the Board's Administrator responded, and asked that Safirstein file a formal request for continuance or a waiver of appearance, and suggested sending documentation from Safirstein's physician indicating why Safirstein could not travel from Hallandale Beach to Orlando for the hearing.

On Thursday afternoon, the day before the scheduled hearing, Mr. Medina made a formal request via email for a continuance of the hearing. He again stated that Safirstein was not feeling well and had been advised not to travel. Mr. Medina offered to submit a letter from Safirstein's physician, if requested. Later that evening, the Administrator responded to Mr. Medina that the Chair had denied the request for continuance because it was untimely filed.

The Board met at the scheduled time the following day. Safirstein was not present, and Mr. Medina did not attend the hearing on Safirstein's behalf. The Board members noted that Safirstein's request for continuance was untimely filed and did not explain his ill health; and one member questioned why Safirstein's attorney did not attend on his behalf. Ultimately, the Board decided to move forward on the allegations because it was an informal hearing at which Safirstein's presence was not required, Safirstein had admitted to the factual allegations of the complaint (characterized as "egregious"), any facts in mitigation would not alter the outcome, and neither Safirstein nor his attorney had timely provided any medical reasons for his failure to attend. The Board unanimously found Safirstein in violation of the statutes cited in the complaint, and revoked Safirstein's license to practice medicine in Florida.

On appeal, Safirstein argues that the Board abused its discretion by denying his request for a continuance of the hearing based on his assertion of ill health. He contends that had the hearing been reset, he could have presented mitigating factors at the reset hearing.

Our standard of review of an agency's interpretation of a statute is de novo. Amend. VI, Art. V, § 21, Fla. Const. (declaring that appellate courts may no longer defer to an agency's statutory interpretation, and must instead apply a de novo review). The standard of review of the agency's findings of fact is that of "competent, substantial evidence." § 120.68(7)(b), Fla. Stat. (2012) ; see also De Groot v. Sheffield, 95 So.2d 912, 916 (Fla. 1957).

This was a non-evidentiary, informal hearing. Safirstein's answer admitted to the facts alleged in the twenty-one count complaint; neither the record on appeal nor the initial brief explain or specify what the "other mitigating factors" might be that could have altered the outcome of the administrative hearing. Further, Rule 28-106.210, Florida Administrative Code, provides that a continuance may be granted for good cause shown, and such requests must be made at least five days prior to the date of the scheduled hearing, except in cases of emergency. Safirstein's attorney's formal request for a continuance was untimely made one day prior to the noticed hearing; and there was no indication from Mr. Medina that Safirstein's health problem was an emergency that would justify a continuance. Counsel is presumed to know the applicable procedural rules.

The record on appeal contains competent, substantial evidence upon which the Board properly relied to find the offenses "egregious" and the sanction of revocation appropriate. See § 120.68(7)(b), Fla. Stat. (2012). Further, we find no abuse of discretion in the Board's decision to deny Safirstein's motion for continuance, and to proceed with the hearing and render its decision. See Kale v. Dep't of Health, 175 So.3d 815, 817 (Fla. 1st DCA 2015) ("A board's imposition of a penalty ... is reviewed for an abuse of discretion."); Gonzalez-Gomez v. Dep't of Health, 107 So.3d 1139, 1141 (Fla. 3d DCA 2012) ; § 120.68(7)(e), Fla. Stat. (2012) (requiring an agency's exercise of discretion to be consistent with its rules). We therefore affirm the Board's final order.

Affirmed.

      The Board is the state agency charged with regulating the practice of medicine pursuant to section 20.43, Florida Statutes, Chapter 455, Florida Statutes, and Chapter 458, Florida Statutes.

      Section 458.331(1)(t), Fla. Stat. (2012) (subjecting a licensee to discipline for committing medical malpractice as defined in section 456.50, Fla. Stat.); section 458.331(1)(q), Fla. Stat. (2012) (subjecting a licensee to discipline for prescribing, dispensing, administering, mixing, or otherwise preparing a legend drug, including any controlled substance, other than in the course of the physician's professional practice); Section 458.331(1)(m), Fla. Stat. (2012) (subjecting a licensee to discipline for failing to keep legible medical records, including, but not limited to, patient histories; examination results; test results; records of drugs prescribed, dispensed, or administered; and reports of consultations and hospitalizations, etc.).


text:
    Jonathan POWELL, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-191
    District Court of Appeal of Florida, Third District.
    Opinion filed April 24, 2019
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Linda S. Katz, Assistant Attorney General, for appellee.
    Before EMAS, C.J., and SCALES and LINDSEY, JJ.
   PER CURIAM.

Affirmed. Echevarria v. State, 271 So.3d 108, 109-10 (Fla. 3d DCA 2019) (holding that a juvenile's concurrent sentences of thirty-five years each for a homicide crime and a non-homicide crime do not violate the United States Supreme Court decision in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010) ); see Pedroza v. State, 244 So.3d 1128, 1129 (Fla. 4th DCA 2018), review granted, No. SC18-964, 2018 WL 6433136 (Fla. Dec. 6, 2018).


text:
    Jorge Luis DE DIEGO, Appellant, v. Janai BARRIOS, Appellee.
    No. 3D17-1990
    District Court of Appeal of Florida, Third District.
    Opinion filed April 24, 2019.
    Francisco J. Vargas, P.A., and Francisco J. Vargas; Giel Family Law, P.A., and Michael M. Giel (Jacksonville), for appellant.
    Isenberg Family Law Group, and Douglas Isenberg and Erica Whittler, for appellee.
    Before EMAS, C.J., and FERNANDEZ, J., and LAGOA, Associate Judge.
   PER CURIAM.

Jorge Luis de Diego ("Former Husband") appeals from two orders: (1) the trial court's order imposing an equitable lien in favor of Janai Barrios ("Former Wife") on the parties' marital home that Former Husband claims as homestead property; and (2) the trial court's order denying Former Husband's motion to disqualify the trial judge. We affirm the trial court's denial of the motion for disqualification without further discussion. However, for the reasons discussed below, we reverse the trial court's order imposing the equitable lien.

I. FACTUAL AND PROCEDURAL BACKGROUND

Former Husband and Former Wife were married in June 2004 and have two minor children from their marriage. In June 2014, Former Wife petitioned for dissolution of marriage. At the time of the dissolution, Former Husband was disabled and received Social Security income of approximately $ 850 per month, and Former Wife earned income of $ 1636 per month.

On February 23, 2016, the trial court entered a Final Judgment of Dissolution of Marriage (the "Final Judgment"), which found that the property the parties lived in during their marriage-although titled solely in Former Husband's name and purchased before the marriage-had become marital property. The trial court awarded $ 140,000-half of the marital home's appraised value of $ 280,000-to Former Wife in equitable distribution to be paid by Former Husband within ninety days of the Final Judgment. The trial court further reserved general jurisdiction "for the purposes of enforcing, construing, interpreting, or modifying the terms of [the] Final Judgment." Former Husband never appealed the Final Judgment.

Almost a year later, on February 20, 2017, Former Wife filed an unsworn Motion to Compel for Contempt and to Enforce Final Judgment (the "Motion to Enforce"), alleging that Former Husband had willfully "failed and refused to comply with the Final Judgment and pay the Former Wife" and "remained living in the home [while] the Former Wife was displaced" and that she was "unable to retain a new residence for herself and [the parties'] children without her share of the equity in the marital home." Based on these allegations, Former Wife requested that the trial court enter an order requiring Former Husband to pay Former Wife the $ 140,000 awarded by the Final Judgment within five days or, alternatively, requiring Former Husband to either refinance or sell the home to pay Former Wife. In response to the Motion to Enforce, Former Husband alleged that he was unable to pay due to his "limited resources, nominal disability income, and having no significant assets other than his homestead property" and that the trial court lacked the authority to order the sale or refinancing of the marital home, as it would improperly modify the property rights set forth in the Final Judgment and violate the Florida Constitution's homestead exemption.

On May 2, 2017, the trial court held a hearing on the Motion for Enforcement, but rescheduled the hearing for June 16, 2017, to research which forms of relief were available to Former Wife for enforcement of the Final Judgment. At the rescheduled hearing, of which this Court only has a partial transcript, the trial court found that Former Husband's failure and refusal to pay Former Wife for over a year was egregious conduct sufficient to warrant the imposition of an equitable lien on the marital home. At this hearing, however, the trial court did not take any evidence or testimony from the parties, including testimony the Former Husband sought to proffer about his alleged willingness to pay approximately a quarter of his monthly disability income to Former Wife and his inability to refinance the marital home.

The trial court subsequently entered an order granting the Motion to Enforce, except as to finding Former Husband in contempt of court. The order imposed an equitable lien on the marital home in favor of Former Wife, giving her the right to foreclose on and sell the home at a public sale unless Former Husband paid Former Wife $ 140,000 plus statutory interest within ninety days of the hearing date. The trial court additionally found Former Wife was entitled to her attorney's fees and costs based on Former Husband's egregious conduct. This appeal ensued.

II. STANDARD OF REVIEW

We review an order imposing an equitable lien on homestead property for an abuse of discretion. See Randazzo v. Randazzo, 980 So.2d 1210, 1213 (Fla. 3d DCA 2008).

III. ANALYSIS

On appeal, Former Husband contends that the trial court abused its discretion in imposing an equitable lien on the marital home he claims as homestead property. We are compelled to agree.

The Florida Constitution provides that a homestead "shall be exempt from forced sale under process of any court, and no judgment, decree or execution shall be a lien thereon." Art. X, § 4(a)(1), Fla. Const. Despite this plain and unambiguous language, case law provides that " '[h]omestead property may be subjected to equitable liens where fraud, reprehensible or egregious conduct is demonstrated.' " Randazzo v. Randazzo, 980 So.2d 1210, 1212 (Fla. 3d DCA 2008) (alteration in original)

(quoting Sell v. Sell, 949 So.2d 1108, 1112 (Fla. 3d DCA 2007) ); see also Palm Beach Savings & Loan Ass'n v. Fishbein, 619 So.2d 267, 270 (Fla. 1993) (stating "that where equity demands it this Court has not hesitated to permit equitable liens to be imposed on homesteads beyond the literal language of article X, section 4"). We are compelled to follow this precedent.

In Randazzo, the trial court awarded the former husband the monetary value of his interest in the marital home, to be paid within ninety days of the final judgment of dissolution, in exchange for signing a quitclaim deed to transfer his interest in the home to the former wife. See id. at 1211. "However, when the 90-day deadline arrived, the [f]ormer [w]ife neither made payment nor requested an extension for good cause," and the former husband moved to enforce the judgment. Id. The trial court granted the motion, finding that the former wife's conduct was sufficiently egregious to impose an equitable lien on the marital home. Id. The former wife filed for bankruptcy and stayed the dissolution proceedings, but then sold the marital home and purchased another homestead with the proceeds. Id. Because of the former wife's conduct, the trial court imposed an equitable lien on her new homestead property. Id. This Court affirmed the equitable lien, finding that the trial court did not abuse its discretion in concluding that the former wife's conduct was sufficiently egregious to warrant an equitable lien on her new homestead. See id. at 1212-13.

Former Wife contends that based on Randazzo, the trial court was correct in finding that Former Husband's conduct was sufficiently egregious to justify the imposition of an equitable lien on the marital home. A review of the record, however, shows that the trial court's factual findings regarding Former Husband's conduct are not supported by competent, substantial evidence, but instead are based solely on allegations in Former Wife's unsworn Motion to Enforce and arguments made by the parties' counsels at the motion hearing. Indeed, the trial court did not take any sworn testimony or evidence at the hearing, nor did Former Wife file any sworn affidavit to substantiate the allegations made in her Motion to Enforce. "[W]hen an equitable lien is sought against homestead real property, some fraudulent or otherwise egregious act by the beneficiary of the homestead protection must be proven." Isaacson v. Isaacson, 504 So.2d 1309, 1310-11 (Fla. 1st DCA 1987). Because the record contains no evidence of conduct supporting the application of the judicially created exception to the constitutional homestead protection, we find that the trial court abused its discretion in imposing an equitable lien on the marital home. See Nadrich v. Nadrich, 872 So.2d 994, 995-96 (Fla. 4th DCA 2004) ("[T]he court did not make any finding that the husband is using the newly acquired homestead itself as an 'instrument of fraud' or as a means to escape his support obligation to his wife.... [T]his record lacks the particularized evidence and findings detailed there."); Partridge v. Partridge, 790 So.2d 1280, 1283-84 (Fla. 4th DCA 2001) (finding that former wife's affidavit attached to her motion for summary judgment was factually and legally insufficient to invoke the egregious conduct exception for placing an equitable lien on the homestead); cf. Radin v. Radin, 593 So.2d 1231, 1233 (Fla. 3d DCA 1992) (noting that the trial court's finding of egregious conduct was "supported by substantial competent evidence" in the record). We express no opinion as to whether Former Husband's alleged conduct rises to the level of egregiousness that might warrant the imposition of an equitable lien on his homestead property under Randazzo and other related cases.

Accordingly, we reverse the trial court's order granting Former Wife's Motion to Enforce. On remand, if the trial court reconsiders imposing an equitable lien on the marital home based on Former Husband's alleged conduct, it should make specific findings based on evidence and testimony procured at a hearing.

Reversed and remanded for further proceedings.

      The trial court found that because the "property was mortgaged in its entire value twice," Former Wife "signed and appeared on the Mortgage Note on both occasions," and "[b]oth mortgages were paid off during the parties' marriage using marital funds," the property was a marital asset.


author: EMAS, C.J. LOGUE, J. (Dissenting)

text:
    Lazaro FRESNEDO, Appellant, v. PORKY'S GYM III, INC., Appellee.
    No. 3D17-1126
    District Court of Appeal of Florida, Third District.
    Opinion filed April 24, 2019
    Eaton & Wolk, PL, and Douglas F. Eaton, Miami, for appellant.
    Law Offices of Cara Morris, PL, and Cara C. Morris (Palm Beach Gardens), for appellee.
    Before EMAS, C.J., and FERNANDEZ and LOGUE, JJ.
   EMAS, C.J.

Lazaro Fresnedo filed a complaint against Porky's Gym III, Inc., alleging he sustained serious injuries when he was knocked unconscious by another customer (Mr. Coto) who was using the gym that day on a single-day pass.

In his complaint, Fresnedo alleged that Porky's had a legal duty to ensure that it maintained its premises in a safe manner, free from dangers of which it knew or reasonably should have known, and to warn Fresnedo of any dangers of which it knew or reasonably should have known. The complaint further alleged that Porky's breached its duties to Fresnedo by allowing Mr. Coto on the premises without first obtaining the information required to issue a single-day pass; by failing to warn Fresnedo regarding Mr. Coto's behavior; and by failing to remove Mr. Coto from the facility (who allegedly displayed aggressive behavior prior to his attack on Fresnedo).

Porky's moved for summary judgment based upon the affirmative defenses of waiver and assumption of the risk, relying upon a waiver and release form signed by Fresnedo when he became a member of Porky's. Following a hearing, the trial court granted final summary judgment in favor of Porky's. This appeal followed. We review the issue de novo, Volusia County v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126 (Fla. 2000), and consider the record in a light most favorable to the non-moving party. Turner v. PCR, Inc., 754 So.2d 683 (Fla. 2000) ; Davis v. Baez, 208 So.3d 747 (Fla. 3d DCA 2016).

Exculpatory clauses, such as the one at issue here, "that purport to deny an injured party the right to recover damages from another who negligently causes injury are strictly construed against the party seeking to be relieved of liability." Gillette v. All Pro Sports, LLC, 135 So.3d 369, 370 (Fla. 5th DCA 2014). In addition, courts are required to read such clauses in pari materia, giving meaning to each of its provisions, to determine whether the intention to be relieved was made clear and unequivocal in the contract, such that an ordinary person would know what he was contracting away. See Covert v. S. Fla. Stadium Corp., 762 So.2d 938, 940 (Fla. 3d DCA 2000) ; Sunny Isles Marina, Inc. v. Adulami, 706 So.2d 920, 922 (Fla. 3d DCA 1998). See also Sanislo v. Give Kids the World, Inc., 157 So.3d 256, 260-61 (Fla. 2015) (holding: "Exculpatory clauses are unambiguous and enforceable where the intention to be relieved from liability was made clear and unequivocal and the wording was so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away"); Diodato v. Islamorada Asset Mgmt., Inc., 138 So.3d 513, 517 (Fla. 3d DCA 2014) (reiterating the "well-settled principle that [exculpatory] clauses are disfavored and are narrowly construed" and reversing summary judgment where exculpatory clause at issue was not "clear and unequivocal"

in its attempt to release defendant from liability for specific act of negligence); Gillette, 135 So.3d at 370 ; Tatman v. Space Coast Kennel Club, Inc., 27 So.3d 108, 110 (Fla. 5th DCA 2009) (noting that the wording of an exculpatory clause "must be so clear and understandable that 'an ordinary and knowledgeable person will know what he is contracting away' ") (quoting Gayon v. Bally's Total Fitness Corp., 802 So.2d 420, 421 (Fla. 3d DCA 2001) ); Murphy v. Young Men's Christian Ass'n of Lake Wales, Inc., 974 So.2d 565 (Fla. 2d DCA 2008) ; Orkin Exterm. Co. v. Montagano, 359 So.2d 512, 514 (Fla. 4th DCA 1978) (holding that because "we do not look with favor on exculpatory clauses, we must require the draftsmen of all contracts which contain them to use clear and unequivocal language totally without a hint of deceptive come-on, or inconsistent clauses").

After reviewing the waiver and release form signed by Fresnedo, we cannot say that the exculpatory clauses at issue clearly and unequivocally waived Porky's liability for the negligence alleged by Fresnedo in his complaint. We therefore reverse the final judgment and remand for further proceedings.

For its contrary position, the dissenting opinion relies exclusively on a single paragraph of the release (paragraph Four), in which Fresnedo agreed that he would "assume full responsibility for any risk of bodily injury, death or negligence of any of the clubs or otherwise while [I am] on the premises occupied by any of the clubs."

Although this single paragraph of the release relied upon by the dissent may itself be plain and clear, the release is not comprised of a single paragraph, and we must read paragraph Four together with the other paragraphs of the release to determine whether "an ordinary and knowledgeable person will know what he is contracting away." Gayon, 802 So.2d at 421.

The three paragraphs immediately preceding the paragraph relied upon by the dissent provide as follows (all emphasis added):

1. You understand that the use of the Clubs' facilities and equipment tests a person's physical limits and carries with it a potential for serious injury and/or death, such as injuries caused by weights falling, equipment malfunctioning, cables snapping, defects in or improper maintenance of equipment or premises, inadequate supervision or instruction, intentional or unintentional misuse of the equipment (by you or others), the negligent acts of others with regard to the facilities and equipment (including the actions of any employees of the Club), and other dangers inherent in strenuous physical activity. You are aware of and accept these risks. You also understand and agree that it is your sole responsibility to determine whether you are sufficiently fit and/or healthy enough to safely use the equipment and/or facilities of any of the Clubs. You affirm that you will be sufficiently fit and physically trained to use the equipment of the Clubs you choose to use.
2. In consideration of your membership with any of the Clubs, you, for yourself, and for anyone else who can claim through you, hereby release each of the Clubs, and their employees, officers, directors, and agents, from any claim (of any nature whatsoever) that you may have, now or in the future, for any injuries you incur while you are on the premises occupied by any of the Clubs, such as heart attacks, muscle strains, pulls or tears, broken bones, shin splints, heat prostration , knee/lower back/foot injuries, and any other illness, soreness or injury however caused, occurring during or after your use of the equipment or facilities of any of the Clubs, whether caused by the active or passive negligence of any of the Clubs .
3. Additionally, you, for yourself, and for anyone else who can claim through you, hereby release each of the Clubs, and their employees, Officers, directors, and agents, from any claims (of any nature whatsoever) that you may have, now or in the future, for any damage to any of your property incurred while you are on the premises occupied by any of the Clubs, whether caused by the active or passive negligence of any of the Clubs or otherwise.

The fourth paragraph reads:

4. YOU ASSUME FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE DUE TO THE NEGLIGENCE OF ANY OF THE CLUBS OR OTHERWISE WHILE YOU ARE ON THE PREMISES OCCUPIED BY ANY OF THE CLUBS.

Paragraph Four does indeed provide that the member assumes "full responsibility for any risk of bodily injury [or] death due to the negligence of the clubs." However, that language cannot be read in isolation, but instead must be read and understood in light of, and together with, the language of preceding paragraphs One and Two. Those two paragraphs address the "risk of bodily injury" in much greater detail than paragraph Four, yet inexplicably do so in the specific context of:

- "the use of the Clubs' facilities and equipment [which] tests a person's physical limits and carries with it a potential for serious injury and/or death, such as injuries caused by weights falling, equipment malfunctioning, cables snapping, defects in or improper maintenance of equipment or premises, inadequate supervision or instruction, intentional or unintentional misuse of the equipment (by you or others), the negligent acts of others with regard to the facilities and equipment (including the actions of any employees of the Club), and other dangers inherent in strenuous physical activity." (Paragraph One)
- "injuries you incur while you are on the premises occupied by any of the Clubs, such as heart attacks, muscle strains, pulls or tears, broken bones, shin splints, heat prostration, knee/lower back/foot injuries, and any other illness, soreness or injury however caused, occurring during or after your use of the equipment or facilities of any of the Clubs, whether caused by the active or passive negligence of any of the Clubs." (Paragraph Two)

If (as the dissent posits) the broad language contained in paragraph Four is so plain, clear, unambiguous and all-encompassing, why would paragraphs One and Two be necessary at all? These three paragraphs (One, Two and Four), when read together, could reasonably lead a person to believe that the "risk of bodily injury [or] death" being assumed in paragraph Four refers to injuries "such as" those specifically and extensively enumerated in paragraphs One and Two-injuries which occur as a result of, or related to, "the use of the Club's facilities and equipment." Indeed, this is precisely how Mr. Fresnedo understood the language of the waiver and release form. As he explained in his declaration filed in opposition to Porky's motion for summary judgment:

[My] understanding of these forms was that I was giving up my right to pursue claims against Porky's Gym in the event that I was injured while performing the activity that I came to the gym to do, which was work out.... [B]ecause of the specificity of the release, it was my understanding that I was merely giving up the right to purse any claims against the facility if I was injured as a result of my work out.

We find the instant case similar in material respects to the Second District's decision in Murphy, 974 So.2d at 568, and the Fifth District's decision in UCF Athletics Ass'n Inc. v. Plancher, 121 So.3d 1097 (Fla. 5th DCA 2013) (quashed in part on different grounds by Plancher v. UCF Athletics Ass'n Inc., 175 So.3d 724 (Fla. 2015) ). In both cases, our sister courts held that, despite an exculpatory clause's waiver of liability for "any negligence" or "all claims," other provisions in the clauses created an ambiguity or confusion for a reasonable reader, rendering the exculpatory clause unenforceable. See also Brooks v. Paul, 219 So.3d 886 (Fla. 4th DCA 2017) (holding that although two sentences in an exculpatory clause "are broad and arguably encompass a negligence claim," because "there is additional language in the release that creates ambiguity about exactly what type of claims are being released," summary judgment was not proper.)

Reading the paragraphs of the waiver and release form together and in context, we hold that it remains in dispute whether the intention to be relieved from liability for the type of claim brought by Fresnedo is clear and unequivocal, and whether the wording is so clear and understandable that an ordinary and knowledgeable person would know that he was contracting away his right to pursue the instant claim brought by Fresnedo against Porky's.

Reversed and remanded.

FERNANDEZ, J., concurs.

LOGUE, J. (Dissenting)

I respectfully dissent. When Mr. Fresnedo joined Porky's Gym III, a fitness club, he signed a release waiving any claim of "bodily injury ... due to the negligence of ... the Clubs ... while you are on the premises." He then sued the Club, as he states in his complaint, for bodily injuries due to the negligent failure of the Club "to ensure that its premises were reasonably safe and free from dangers." Does this release bar this cause of action? The language of the release is so simple and direct that it could have no other meaning. Therefore, the trial court correctly granted summary judgment because the release signed by Mr. Fresnedo bars his cause of action for negligence against the Club.

This appeal arises out of a case in which Lazaro Fresnedo, Appellant, sued the Club for negligence. Mr. Fresnedo is a member of the Club. While working out at the Club, he was viciously attacked by another patron, who was present under a day pass. The other patron had been shadow boxing and otherwise acting erratically when he suddenly turned and punched Mr. Fresnedo, who was knocked unconscious and suffered serious personal injuries as a result. In his complaint, which is captioned "Negligence, " Mr. Fresnedo alleged the Club violated its "legal duty to ensure that its premises were reasonably safe and free from dangers." The Club moved for summary judgment contending that a release signed by Mr. Fresnedo barred his cause of action for negligence against the Club. The trial court granted summary judgment and Mr. Fresnedo appealed.

The only issue before this court is whether the language of the release signed by Mr. Fresnedo bars his cause of action as a matter of contract law. The release has nine separate numbered paragraphs, which Mr. Fresnedo individually initialed, before signing at the bottom. The separate paragraphs release different types of claims that Mr. Fresnedo might bring against the Club and required Mr. Fresnedo to indemnify the Club for damages due to his own negligence. The entire release is included in this footnote.

The parts of the release pertinent to this appeal read as follows:

RELEASE AND WAIVER OF LIABILITY PLEASE READ THE AGREEMENT CAREFULLY BEFORE SIGNING. BY SIGNING AND INITIALING BELOW YOU ARE AGREEING TO WAIVE YOUR LEGAL RIGHTS. ONCE YOU SIGN THIS DOCUMENT YOU WILL BE UNABLE TO BRING A LAWSUIT UNDER CERTAIN CIRCUMSTANCES.
* * * *
4. YOU ASSUME FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE DUE TO THE NEGLIGENCE OF ANY OF THE CLUBS OR OTHERWISE WHILE YOU ARE ON THE PREMISES OCCUPIED BY ANY OF THE CLUBS. Initials LF

Florida law disfavors this type of contract which exculpates a person from responsibility for his or her own negligence because it runs contrary to the policy behind tort law that the tortfeasors should pay for the damage they negligently inflict. "Nevertheless, because of a countervailing policy that favors the enforcement of contracts, as a general proposition, unambiguous exculpatory contracts are enforceable unless they contravene public policy." Sanislo v. Give Kids the World, Inc., 157 So.3d 256, 260 (Fla. 2015). Indeed, "[e]xculpatory clauses are unambiguous and enforceable where the intention to be relieved from liability was made clear and unequivocal and the wording was so clear and understandable that an ordinary and knowledgeable person will know what he or she is contracting away." Id. at 260-61.

Here, Mr. Fresnedo acknowledged that he was "waiving legal rights" that would render him "unable to bring a lawsuit under certain circumstances." He then went on to contract with the Club that he would "assume full responsibility for any risk of bodily injury ... due to the negligence of ... the Clubs or otherwise while you are on the premises ...." The simple truth is that there is no ambiguity in this perfectly clear language. The legislature could well decide that such releases signed by consumers are illegal. But a court would be hard pressed to fashion a rule of law requiring the release to be clearer.

Indeed, the majority opinion does not suggest the language of paragraph 4 is ambiguous. Instead, the majority discovers ambiguity in paragraph 4 only by reading it "in pari materia." "In pari materia" simply means the intent of the parties to a contract must be determined by examining the entire document: separate sentences or paragraphs cannot be taken out of context. But a simple examination of the release indicates that there is no confusion when these separate provisions are read as components of one document.

The paragraphs cited by the majority as creating confusion when read together are paragraphs 1, 2, 3, and 4. Although not a model of perfect drafting, and although some overlap occurs, these paragraphs essentially waive separate and distinct types of claims against the Club. Paragraph 1 waives bodily injuries arising from a claim that the Club failed to ensure Mr. Fresnedo was "sufficiently fit and/or healthy enough" to use the Club's gym equipment. Paragraph 2 waives bodily injuries arising from the use of the Club's gym equipment. Paragraph 3 waives damage to Mr. Fresnedo's property. Paragraph 4 waives bodily injury due to the Club's general failure to maintain the premises.

When read in pari materia, therefore, these four paragraphs are entirely consistent. Moreover, the fact that each paragraph was separately numbered and Mr. Fresnedo was required to separately initial each paragraph would signal to an ordinary and knowledgeable person that the paragraphs were waiving different types of claims.

In his affidavit cited by the majority, Mr. Fresnedo asserts he understood that the release waived only "the right to pursue any claims against the facility if I was injured was a result of my work out." That is certainly a reasonable interpretation of paragraph 2 of the release. But if the release waived only injuries from working out, the release would have stopped with paragraph 2. Mr. Fresnedo's interpretation is therefore is not a reasonable reading of the release. In fact, it is completely inconsistent with the plain language of the next paragraph, paragraph 3, that waives claims "for any damage to any of your property incurred while you are on the premises" and paragraph 4 that waives claims, as stated above, for bodily injury "due to the negligence of any of the clubs or otherwise while you are on the premises." The broad language of these provisions are not limited to damages that occur during a workout.

An ordinary and knowledgeable person agreeing to this release would understand that it did not stop at paragraph two and that the subsequent, separately numbered paragraphs dealt with matters over and above those matters in the first two paragraphs. Therefore, particularly when the release is read in pari materia, an ordinary and knowledgeable person signing this release would be on notice that the plain language of paragraph 4 released claims like the one Mr. Fresnedo brought here for bodily injuries due to the negligent failure of the Club "to ensure that its premises were reasonably safe and free from dangers."

The cases cited by the majority do not support its interpretation of the release at issue here. For example, Diodato v. Islamorada Asset Management, Inc., 138 So.3d 513, 519-20 (Fla. 3d DCA 2014) merely held that summary judgment was improperly granted when it was uncertain whether the releases applied to the activity at issue. The plaintiff was killed during a deep sea dive. The diver charter moved for summary judgment based on a release the plaintiff had signed months earlier in order to participate in "basic open water instruction," and a second release the day before the tragedy to participate in a "shallow reef dive.' " Id. at 519. Industry standards provided for a more comprehensive release which listed the additional hazards in the more dangerous deep sea dives and the plaintiff had never signed such a release.

This court held it was unclear whether the prior releases for the basic open water instruction and the shallow reef dive were intended to include the later deep sea dive. Id. at 519-20. Here there is no such ambiguity: the cause of action at issue is for the Club's violation of its "legal duty to ensure that its premises were reasonably safe and free from dangers" and the contract at issue releases and waives the "negligence of ... the Clubs ... while you are on the premises."

In Gillette v. All Pro Sports, LLC, 135 So.3d 369, 370-71 (Fla. 5th DCA 2014) and Tatman v. Space Coast Kennel Club, Inc., 27 So.3d 108, 111 (Fla. 5th DCA 2009), the release provisions did not specifically address negligence or include the words "negligence" or "negligent." Here the contract signed by Mr. Fresnedo expressly releases causes of action based on "negligence."

In Murphy v. Young Men's Christian Association of Lake Wales, Inc., 974 So.2d 565, 568-69 (Fla. 2d DCA 2008), the exculpatory language excluded "any claims based on negligence," but the appellate court reversed because the language also provided that the YMCA would take "every reasonable precaution." The court concluded that the provision was unclear because "a reasonable reader might be led to believe that the waiver of liability extends only to claims for injuries that were unavoidable 'even when every reasonable precaution' had been taken by the YMCA." Id. at 568. As discussed above, there is no such conflict in the release that Mr. Fresnedo signed.

For these reasons, the trial court got it right: Mr. Fresnedo waived the very type of negligence claim he pursued against the Club. I would affirm the trial court.

      Fresnedo sustained facial fractures as a result of the attack and underwent facial reconstructive surgery. The individual who attacked Fresnedo was later arrested and charged with a felony.

      Regarding the affirmative defense of express assumption of the risk, the Fourth District observed in Van Tuyn v. Zurich Am. Ins. Co., 447 So.2d 318, 320-21 (Fla. 4th DCA 1984) :
      For express assumption of risk to be valid, either by contract or by voluntary participation in an activity, it must be clear that the plaintiff understood that she was assuming the particular conduct by the defendants which caused her injury. Restatement of Torts, Second, § 496B, comment d. No agreement to assume unknown risks shall be inferred. Therefore, unless this plaintiff subjectively understood the risks inherent in [the activity] and actually intended to assume those risks, the defense of express assumption of risk is unavailable to the defendants.

      The release reads:
      RELEASE AND WAIVER OF LIABILITY PLEASE READ THE AGREEMENT CAREFULLY BEFORE SIGNING. BY SIGNING AND INITIALING BELOW YOU ARE AGREEING TO WAIVE YOUR LEGAL RIGHTS. ONCE YOU SIGN THIS DOCUMENT YOU WILL BE UNABLE TO BRING A LAWSUIT UNDER CERTAIN CIRCUMSTANCES.
      In order to obtain access to any of the gyms operated by Porky's Gym I, Inc., Porky's Gym II, Inc., Porky's Gym III, Inc., and Porky's Gym IV, Inc. (collectively, the "Clubs") and join any of the clubs as a member, you understand, acknowledge and agree as follows
      1. You understand that the use of the Clubs' facilities and equipment tests a person's physical limits and carries with it a potential for serious injury and/or death, such as injuries caused by weights falling, equipment malfunctioning, cables snapping, defects in or improper maintenance of equipment or premises, inadequate supervision or instruction, intentional or unintentional misuse of the equipment (by you or others), the negligent acts of others with regard to the facilities and equipment (including the actions of any employees of the Club), and other dangers inherent in strenuous physical activity. You are aware of and accept these risks. You also understand and agree that it is your sole responsibility to determine whether you are sufficiently fit and/or healthy enough to safely use the equipment and/or facilities of any of the Clubs. You affirm that you will be sufficiently fit and physically trained to use the equipment of the Clubs you choose to use. Initials LF
      2. In consideration of your membership with any of the Clubs, you, for yourself, and for anyone else who can claim through you, hereby release each of the Clubs, and their employees, officers, directors, and agents, from any claim (of any nature whatsoever) that you may have, now or in the future, for any injuries you incur while you are on the premises occupied by any of the Clubs, such as heart attacks, muscle strains, pulls or tears, broken bones, shin splints, heat prostration , knee/lower back/foot injuries, and any other illness, soreness or injury however caused, occurring during or after your use of the equipment or facilities of any of the Clubs, whether caused by the active or passive negligence of any of the Clubs. Initials LF
      3. Additionally, you, for yourself, and for anyone else who can claim through you, hereby release each of the Clubs, and their employees, Officers, directors, and agents, from any claims (of any nature whatsoever) that you may have, now or in the future, for any damage to any of your property incurred while you are on the premises occupied by any of the Clubs, whether caused by the active or passive negligence of any of the Clubs or otherwise. Initials LF
      4. YOU ASSUME FULL RESPONSIBILITY FOR ANY RISK OF BODILY INJURY, DEATH OR PROPERTY DAMAGE DUE TO THE NEGLIGENCE OF ANY OF THE CLUBS OR OTHERWISE WHILE YOU ARE ON THE PREMISES OCCUPIED BY ANY OF THE CLUBS. Initials LF
      5. YOU ARE ACKNOWLEDGE AND AGREE THAT THE CLUBS MAKE NO EXPRESS OR IMPLIED WARRANTIES OF ANY KIND REGARDING MEMBERSHIP WITH ANY OF THE CLUBS OR THE USE OF THE FACILITIES AND EQUIPMENT OF ANY OF THE CLUBS. Initials LF
      6. You agree that this Release shall be interpreted as broad and inclusive as in Permitted by law of the State of Florida and that if any portion thereof is held invalid, it is agreed that the balance shall, notwithstanding, continue in full force and effect. You have read this Release and agree that no oral representations, statements, warranties or inducements have been made to you. Initials LF
      7. You agree to indemnify and save and hold harmless each of the Clubs from any loss, liability, damage or cost any of them may incur as a result of your acts or omissions on the premises of any of the Clubs. Initials LF
      8. Any person signing below on behalf of a minor under the age of 18 hereby acknowledges that he or she has the legal capacity and authority to act on behalf of the minor and to legally bind the minor to this Release, and they agree to indemnify and hold harmless each of the Clubs for any expenses incurred, claims made, or liabilities assessed against any of them as a result of any insufficiency of legal capacity or authority to act on behalf of the minor in the execution of this Release. Initials LF
      9. I have read and voluntarily sign this Agreement and I agree that no oral representations, statements apart from what is contained in this Agreement have been made to me. Initials LF


text:
    MIAMI DADE COLLEGE, Petitioner, v. Isabel del Pino ALLEN, Respondent.
    No. 3D18-2218
    District Court of Appeal of Florida, Third District.
    Opinion filed April 24, 2019 Rehearing Denied May 22, 2019
    Allen, Norton & Blue, P.A., and Luke Savage, Coral Gables, for petitioner.
    Isabel del Pino Allen, in proper person.
    Before SALTER, LINDSEY, and MILLER, JJ.
   LINDSEY, J.

Petitioner Miami Dade College seeks certiorari review of the trial court's order denying its Motion for Protective Order, which sought to prevent Respondent Isabel del Pino Allen from deposing the College's President, Eduardo J. Padron, Ph.D. Because the trial court failed to find (1) that Allen had exhausted all discovery tools prior to seeking President Padron's deposition and (2) that the information Allen sought from President Padron was necessary and unavailable from another source, we grant the petition and quash the order under review.

I. PROCEDURAL AND FACTUAL BACKGROUND

On November 6, 2015, Allen sued the College, alleging, inter alia, that she was terminated from her position as a faculty member in violation of Florida's Whistle-blower's Act. The petition before us stems from Allen's attempt to depose President Padron in order to question him about two letters Allen sent disclosing the College's purported violations. In December 2015 and January 2016, Allen served interrogatories on the College. Allen did not direct her interrogatories to President Padron, and she did not seek information concerning the letters or President Padron's alleged personal involvement in her termination.

On February 20, 2018, Allen filed an Amended Complaint with three additional counts and four new defendants: Drs. Eduardo Padron, Lenore Rodicio, Malou Harrison, and Joy Ruff "in their respective official capacity as president of MDC, provost of MDC, president of the North Campus of MDC, and MDC's Coordinator of Equal Opportunity Programs." The College moved to dismiss the new counts and also moved to strike Padron, Rodicio, Harrison, and Ruff as defendants, arguing that there was no stated cause of action for suit against any of them. On June 26, 2018, the trial court granted the College's motion to dismiss two of the new counts (Counts II and III) without prejudice.

On July 9, 2018, Allen filed an "Amended Counts II and III of Existing Complaint," attempting to restate two of the three recently dismissed claims. Allen listed Padron, Rodicio, Harrison, and Ruff as defendants in their "official capacity." The College again moved to dismiss. According to the College, its motion to dismiss remains pending.

On September 28, 2018, Allen filed a Notice of taking Deposition, seeking a videotaped deposition of President Padron. The College filed a Motion for Protective Order, arguing that Allen could not show that President Padron had "particularized, first-hand knowledge that cannot be obtained from any other source[.]" On October 11, 2018, the trial court entered an order denying the College's motion, finding that "Dr. Pardon [sic] has particularized first-hand knowledge of material facts." The court further determined that Allen was "entitled to depose Dr. Padron as to his receipt of her letters and any knowledge he has about the circumstances surrounding her termination." Following the denial of its Motion for Reconsideration, the College petitioned this Court for certiorari review of the trial court's order denying its Motion for Protective Order.

II. ANALYSIS

A party seeking certiorari review of a non-final order must first demonstrate that the order under review would result in a material injury that cannot be corrected on appeal (often referred to as "irreparable harm"). See Miami-Dade Cty. v. Dade Cty. Police Benev. Ass'n, 103 So.3d 236, 238 (Fla. 3d DCA 2012). A finding of irreparable harm is jurisdictional and must be addressed before the merits. Id. If the jurisdictional requirement is satisfied, petitioner must then demonstrate that the trial court departed from the essential requirements of the law. Id.

We have jurisdiction to review the trial court's discovery order. See id. ("Orders granting discovery requests have traditionally been reviewed by certiorari because once discovery is wrongfully granted, the complaining party is beyond relief." (quoting Horne v. Sch. Bd. of Miami-Dade Cty., 901 So.2d 238, 240 (Fla. 1st DCA 2005) ) ). We therefore address the merits of the Petition-whether the trial court departed from the essential requirements of the law when it denied the College's Motion for Protective Order.

"Before requiring the head of a state agency to testify, a trial court must find: 1) the party seeking the testimony has exhausted all discovery tools in an attempt to obtain the information sought; and 2) the testimony sought is necessary and unavailable from other witnesses."

Florida Office of Ins. Regulation v. Florida Dep't of Fin. Servs., 159 So.3d 945, 947 (Fla. 1st DCA 2015) (citing Dep't of Agric. & Consumer Servs. v. Broward Cty., 810 So.2d 1056, 1058 (Fla. 1st DCA 2002) ; Dep't of Health & Rehabilitative Servs. v. Brooke, 573 So.2d 363, 371 (Fla. 1st DCA 1991) ); see also Dade Cty. Police Benev. Ass'n, 103 So.3d at 239.

Because President Padron is an agency head, the trial court was required to find (1) that Allen had exhausted all other discovery tools prior to seeking President Padron's deposition and (2) that President Padron's testimony was necessary and unavailable from other witnesses. Although the order under review found that President Padron has particularized knowledge of material facts, it is silent as to whether Allen exhausted all discovery tools or whether President Padron's testimony was necessary and unavailable from another source. Based on our review of the record, we determine that Allen did not comply with the exhaustion requirement. Moreover, Allen concedes that at least some of the information she seeks regarding President Padron's involvement was available from other witnesses. Therefore, the trial court departed from the essential requirements of the law when it denied the College's Motion for Protective Order.

In her Response to the College's Petition, Allen states that she has "concluded all other discovery," including serving two sets of interrogatories and taking depositions "of the other named defendants in the case." While it is true that Allen served two sets of interrogatories on the College, not a single interrogatory was directed to President Padron, nor did the interrogatories seek information concerning the letters that Allen sent to President Padron or President Padron's alleged personal involvement in Allen's termination. Further, Allen did not serve requests for production or any other discovery directed to President Padron concerning the letters or his knowledge of the circumstances surrounding her termination. With respect to the depositions of the other named defendants, Allen seems to concede, in her response to the College's Motion for Protective Order, that she was able to obtain some of the information she seeks from President Padron from other witnesses: "Allen has already presented ample evidence to prove that MDC and Defendant Padron violated Florida's Whistle-blower's Act ...."

In short, Allen has not shown, and the trial court did not find, that she had exhausted all other discovery tools in an attempt to obtain the information she seeks from President Padron or that the information was necessary and unavailable from another source. We therefore grant the Petition for Writ of Certiorari and quash the order under review.

Petition granted; order quashed.

SALTER, J., concurs.

MILLER, J. (specially concurring)

While I agree with the result reached by the majority, I see no principled basis for broadly invoking reference to the "apex doctrine." Thus, I write separately.

Compelling Dr. Eduardo Padron, an agency head, to appear for deposition, in his official capacity, without the requisite showing of necessity, detrimentally affects "the efficient operation of the [executive] branch and government as a whole," thus, creating material injury irremediable on postjudgment appeal. Miami-Dade Cty. v. Dade Cty. Police Benevolent Ass'n, 103 So.3d 236, 238 (Fla. 3d DCA 2012) ; see also Fla. Office of Ins. Regulation v. Fla. Dep't of Fin. Servs., 159 So.3d 945, 952-53 (Fla. 1st DCA 2015) ("The time spent preparing and testifying in this case will take away from the Insurance Commissioner's duties and responsibilities as an agency head for the state of Florida, and the precedent served by compelling him to testify will create 'a significant deterrent to qualified candidates seeking public service positions.' ") (citation omitted); City of Sterling Heights Gen. Emps.' Ret. Sys. v. Prudential Fin., Inc., No. 2:15-mc-0146 WBS AC, 2015 WL 9434782, at *2 (E.D. Cal. Dec. 24, 2015) ("[B]ecause the head of a government agency could have all of his or her time monopolized by discovery in lawsuits to which they are not even parties, if they could be compelled to testify every time the agency carried out its responsibilities," restraints on such depositions are proper.). The trial court strayed from the essential requirements of law by allowing the deposition to proceed, despite Allen's failure to demonstrate that Dr. Padron was uniquely able to provide relevant information, which could not be obtained from other sources, and that she had exhausted other means of discovery. See Dep't of Agric. and Consumer Servs. v. Broward Cty., 810 So.2d 1056, 1058 (Fla. 1st DCA 2002) ("[T]he agency head should not be subject to deposition, over objection, unless and until the opposing parties have exhausted other discovery and can demonstrate that the agency head is uniquely able to provide relevant information which cannot be obtained from other sources."); see also Pardo v. State, 596 So.2d 665, 666 (Fla. 1992) ("[I]n the absence of interdistrict conflict, district court decisions bind all Florida trial courts."); see, e.g., Siegle v. Lee Cty., 198 So.3d 773, 777 (Fla. 2d DCA 2016) ("No such contrary binding authority exists ... the circuit court's ruling ... constituted a departure from the essential requirements of the law."); State v. Walsh, 204 So.3d 169, 171 (Fla. 1st DCA 2016) ("The circuit court [engaged in profound] error by ... fail[ing] to follow binding precedent of a sibling court."). Thus, I agree certiorari relief is warranted. However, "[b]ecause '[t]his is a sufficient ground for deciding this case ... the cardinal principle of judicial restraint ... counsels us to go no further." Pintado v. Miami-Dade Cty. Hous. Agency, 20 So.3d 929, 933 (Fla. 3d DCA 2009) (Shepherd, J., concurring) (citation omitted); see also Menendez v. W. Gables Rehab. Hosp., LLC, 123 So.3d 1178, 1181 n.2 (Fla 3d DCA 2013) ("[I]f it is not necessary to decide more, it is necessary not to decide more.") (alteration in original) (quoting PDK Labs., Inc. v. U.S. D.E.A., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring) ).

Nevertheless, the majority assigns the nomenclature "apex doctrine" to the above-cited standard, and in doing so, conflates the apex doctrine, a judicially-created rule shielding upper level executives and corporate officials from discovery, with Florida's two-pronged agency-head deposition test. As a threshold matter, the apex doctrine was not relied upon in the proceedings below or advanced by the parties in their briefs. As "[a] party may not rely on this Court to make his arguments for him," sua sponte reliance upon the apex doctrine contravenes principles of judicial restraint. Rorke v. Savoy Energy, LP, 260 Mich.App. 251, 677 N.W.2d 45, 51 (2003) ; see also Wright v. City of Miami Gardens, 200 So.3d 765, 780 (Fla. 2016) (Canady, J., concurring in result only) ("It is not within the province of [this Court] to overturn the ruling of a lower court on a ground that has not been urged by the party challenging the lower court's decision.");

Miami-Dade Cty. v. Omnipoint Holdings, Inc., 863 So.2d 195, 200-01 (Fla. 2003) (holding the District Court of Appeal "exceeded the proper scope of ... review when it, sua sponte" passed on "an issue neither party raised in any phase of the proceedings."); Allan D. Vestal, Sua Sponte Consideration in Appellate Review, 27 Fordham L. Rev. 477, 494 (1958) ("When considered sua sponte ... [n]either party has had any opportunity to consider the matter, and both are now bound by res judicata grounded on considerations which represent not well reasoned positions for the litigants, but rather only the fortuitous decision of a wayward court.").

Further, numerous opinions, including those from this Court, acknowledge that the apex doctrine has yet to be adopted in Florida. See Remington Lodging & Hosp., LLC v. Southernmost House, LTD., 206 So.3d 764, 765 n.1 (Fla. 3d DCA 2016) ("No Florida appellate decision has adopted the apex doctrine."); Racetrac Petroleum, Inc. v. Sewell, 150 So.3d 1247, 1251 n.8 (Fla. 3d DCA 2014) ("The parties stipulate that Florida has not adopted the 'apex doctrine.' "); Gen. Star Indem. Co. v. Atl. Hosp. of Fla., LLC, 57 So.3d 238, 239 n.3 (Fla. 3d DCA 2011) (noting "this Court has not expressly adopted the 'apex doctrine.' "); Citigroup Inc. v. Holtsberg, 915 So.2d 1265, 1269 (Fla. 4th DCA 2005) ("[N]o reported Florida appellate court opinion has expressly adopted the [apex] doctrine."). Finally, under the apex deposition doctrine, the movant is required to append an affidavit denying knowledge of relevant facts. Holtsberg, 915 So.2d at 1270 ("[E]ven if the doctrine were to apply, the instant petition would have to be denied because [the] motion was not accompanied by the officials' affidavits denying any knowledge of relevant facts."). Here, Dr. Padron did not file such an affidavit, nor could he, according to the findings of the trial court.

Accordingly, although I agree we should grant a writ of certiorari and quash the discovery order entered below, to the extent the majority suggests existing precedent reflects the adoption of the apex doctrine, I decline to join the majority's reasoning.

      Allen did not mention these letters or President Padron in her initial complaint.

      Allen voluntarily withdrew the third new count (Count IV), which was a defamation claim against Ruff.

      The trial court made these factual findings and entered this order without conducting a hearing, evidentiary or otherwise.

      "Some state and federal courts refer to this doctrine as the 'apex' doctrine ...." Florida Office of Ins. Regulation, 159 So.3d at 950. Our application of this doctrine is limited to the issue before us involving the deposition of a governmental officer. See Dade Cty. Police Benev. Ass'n, 103 So.3d at 239 (applying the apex doctrine on certiorari to review an order requiring the mayor of Miami-Dade County to testify in an unfair labor practice proceeding); cf. Gen. Star Indem. Co. v. Atl. Hosp. of Fla., LLC, 57 So.3d 238, 239 n.3 (Fla. 3d DCA 2011) (declining to apply the apex doctrine to corporate officers but recognizing that the doctrine has been applied in Florida "in cases involving the deposition of senior state governmental officers").

      Florida's Administrative Procedures Act defines "agency head" as "the person or collegial body in a department or other governmental unit statutorily responsible for final agency action." § 120.52(3), Fla. Stat. (2018).