author: Osterhaus, J., Makar, J., dissenting.

text:
    Bonita BRINSON, Appellant/Cross-Appellee, v. HOSPITAL HOUSEKEEPING SERVICES, LLC, and Broadspire, Appellees/Cross-Appellants.
    No. 1D17-505
    District Court of Appeal of Florida, First District.
    June 22, 2018 Rehearing Denied February 12, 2019
    Paul M. Anderson of Anderson & Hart, P.A., Tallahassee, for Appellant/Cross-Appellee.
    Gwen G. Jacobs of Bennett, Jacobs & Adams, P.A., Tampa, for Appellees/Cross-Appellants.
   Osterhaus, J.,

Bonita Brinson failed two illegal-drug tests after falling and injuring her shoulder on the job at the hospital. She later sought workers' compensation benefits, but was denied by her employer-carrier because of the failed tests. See § 440.09(3), Fla. Stat. (2017). Ms. Brinson challenged the denial of benefits. But because she failed to rebut the statutory presumption attributing her injury primarily to the influence of drugs, see § 440.09(7)(b), we affirm the Judge of Compensation Claims' decision to deny benefits.

I.

Ms. Brinson was working as a housekeeper at a hospital when towards the end of her shift, she fell and dislocated her left shoulder. After the accident, a housekeeping supervisor transported Ms. Brinson to a local medical clinic where she provided a urine sample pursuant to her employer's post-accident, drug-testing policy. She failed the tests by testing positive for the presence of marijuana metabolites on two tests, an immunoassay test and a confirmatory gas chromatography mass spectrometry test.

When the employer hired Ms. Brinson, she signed a stipulation acknowledging the employer's drug testing policy, which said:

I have been fully advised that if I am injured on the job, regardless of how minor the injury may seem, I am to report that injury to my supervisor. All employees that are injured are subject to a drug test.

(Emphasis in original.) She also signed a "Drug Free Awareness" policy at work acknowledging that she "may be asked to provide (if there is reasonable suspicion ...) body substance samples ... to determine whether illicit or illegal drugs ... have been or are being used."

Because of the positive tests, the employer-carrier denied Ms. Brinson's subsequent claim for workers' compensation benefits.

II.

When an injured employee tests positive for drugs after an accident, like Ms. Brinson did, Florida's workers' compensation law "presume[s] that the injury was occasioned primarily ... by the influence of the drug upon the employee." § 440.09(7)(b), Fla. Stat. And it does not compensate for the injury. § 440.09(3), Fla. Stat. The law allows the injured employee, however, to rebut the statutory presumption denying compensation by presenting clear and convincing evidence that the "influence of the drug did not contribute to the injury." § 440.09(7)(b), Fla. Stat.

Ms. Brinson attempted to rebut the statute's presumption with the testimony of two expert witnesses, but failed to do so. Her strategy didn't include trying to establish an external cause for her injury. She didn't argue, for example, that she'd been tripped by a careless doctor, or pushed by an unruly patient. See, e.g., Hall v. Recchi Am. Inc. , 671 So.2d 197, 201 (Fla. 1st DCA 1996) (finding no relationship between a positive drug test and the workplace accident "because the uncontradicted testimony established that the industrial accident ... resulted from a co-worker tripping and jabbing him in the back of the head with a screed"). She also didn't argue that the marijuana in her system was merely inactive residue of some fairly recent usage. Id. at 199-200 (noting that the JCC found no impairment where a positive drug test resulted from the use of marijuana five days before the workplace accident). Arguments along these lines, if true in her case, might have rebutted the statutory presumption.

Instead, Ms. Brinson's argument for rebutting the statutory presumption focused on attacking the limits of drug testing itself and the Workers' Compensation Act's reliance upon drug testing results. Her two doctor witnesses claimed that the drug tests only detect the presence of drug metabolites, but do not conclusively indicate that drugs are active in the bloodstream or have caused impairment. According to these experts, Ms. Brinson may not have been impaired despite her positive test results. The first doctor, Dr. Goff, testified to having no opinion on whether the drugs in Ms. Brinson's body contributed to her injury. He didn't know whether the positive tests correlated with real-life behavioral effects: "I have no knowledge of the correlation between [the drug test's] cut-off levels and clinical state of effects of the drug on an individual's behavior." According to his testimony, a positive drug test "doesn't tell us if the drug is active [versus inactive] in the bloodstream." The testimony of the second witness, pharmacologist Dr. Lazaridis, was much the same. She testified that the drug tests given to Ms. Brinson measured inactive metabolites, but didn't speak "to whether or not the patient is under the influence." On cross-examination, Dr. Lazaridis said that she could not say that "the levels [Ms.] Brinson had in her drug test were insufficient to cause any [behavioral] effects of marijuana on the date of her accident." She continued: "[T]here are other tests that are more focused on acute intoxication of an individual, [so] I couldn't say that it did [affect her behavior] or I couldn't say that it didn't." In response to another question, Dr. Lazaridis agreed that she could not "say today that [Ms. Brinson] definitely did not smoke on the date of her accident."

Thus Ms. Brinson's witnesses left open the question of whether she was under the influence when the accident occurred. They didn't know whether the drugs in her system contributed to her injury, and so failed to testify effectively for purposes of rebutting § 440.09(7)(b)'s presumption. Because their testimony didn't present clear and convincing evidence that the "influence of the drug did not contribute to the injury," as required by § 440.09(7)(b), Ms. Brinson failed to rebut the presumption.

We acknowledge the dissent's dissatisfaction with the probative limits of drug testing, as well as its up-to-date, drug-testing research. The bottom line here is that Ms. Brinson's witnesses could not say that her drug use did not contribute to her injury. We disagree that an exclusionary rule should be applied with respect to Ms. Brinson's two failed drug tests. She consented to the tests. And the Workers' Compensation Act doesn't forbid employers like this one from drug-testing after a workplace accident. Specifically, Florida law allows employers to drug test employees after an accident whether they operate a proper "drug-free workplace program" or not. See, e.g. , Gustafson's Dairy, Inc./Prof'l Adm'rs. Inc. v. Phillips , 656 So.2d 1386, 1387-88 (Fla. 1st DCA 1995) (applying the presumption in favor of an employer who drug-tested an employee after a workplace accident, even though that employer did not satisfy drug-free workplace program requirements). For employers qualifying as drug-free workplaces, the statute expressly allows "reasonable-suspicion drug testing" on the basis that "an employee has caused, contributed to, or been involved in an accident while at work." See § 440.102(1)(n)5., (4)(a)2., Fla. Stat. The freedom to drug-test under these circumstances is no different for non-drug-free workplace employers: "This section ... does not abrogate the right of an employer under state law to conduct drug tests, or implement employee drug-testing programs." § 440.102(7)(e), Fla. Stat. See also Laguerre v. Palm Beach Newspapers, Inc. , 20 So.3d 392, 394 (4th DCA 2009) ("An employer who elects not to operate a drug-free workplace program ... is not prohibited from conducting drug testing, as the statute expressly provides.").

Consistent with its statutory prerogative, Ms. Brinson's employment agreement and the employer's drug testing policy established the employer's program allowing it to drug-test Ms. Brinson after the accident. As described earlier, Ms. Brinson's employer had an express and bold-written policy of drug testing "all" injured employees after an accident, which Ms. Brinson accepted. Cf., § 440.102(1)(n) 5., (4)(a)2. Fla. Stat. (allowing reasonable-suspicion drug testing on the basis of being "involved in an accident while at work"). Ms. Brinson's testimony demonstrated that she fully understood this policy. She acknowledged that her employer "had a drug free policy" with employees; that she'd been drug-tested in the past when she applied for the job; that she could be drug-tested again in the future; and that she "had no objection" in this case to providing a urine sample after her accident and injury. For these reasons, we don't agree with the dissent's view that the drug testing here was unauthorized or illegal, or that the results of Ms. Brinson's failed drug tests should be excluded.

III.

Accordingly, we AFFIRM the order denying benefits for the workplace injury.

Lewis, J., concurs; Makar, J., dissents with opinion.

Makar, J., dissenting.

Near shift's end, Bonita Brinson was cleaning hospital rooms when she slipped and fell, dislocating her shoulder, as she rushed to alert the nurse's station that a patient had coded and was not breathing. Her workplace injury was compensable, but her employer denied coverage after a single two-step urine test-administered by the emergency medical center before it would undertake evaluating her injury-returned positive for inactive marijuana metabolites. She challenges the denial of coverage, arguing that the drug test was unauthorized and, alternatively, that she rebutted the statutory presumption-required for positive drug tests-that that her injury "was occasioned primarily ... by the influence of the drug upon" her. § 440.09(7)(b), Fla. Stat. (2018).

First, no authority exists for administering the drug test in Brinson's case. By statute, her employer may require a drug test of an injured employee only "if the employer has reason to suspect that the injury was occasioned primarily ... by the use of any drug, as defined in this chapter, which affected the employee to the extent that the employee's normal faculties were impaired" as to the accident in question. § 440.09(7)(a), Fla. Stat. (2018) (emphasis added). No evidence exists that the "reason to suspect" requirement was met as to Brinson, who exhibited no signs of impairment at any point prior to or after the workplace accident. Her supervisor testified that Brinson showed no signs of impairment and no evidence suggests that anyone else in the workplace had a suspicion that she might be drug-impaired or that her normal faculties were affected by drug use (only her politesse was questioned).

The employer asserts that all its employees injured in the workplace must be drug tested before they may receive any medical care, which is inconsistent with its written policy that states:

Using or being under the influence of drugs or alcohol on the job may pose serious safety and health risks. To help ensure a safer and healthful working environment, job applicants and team members may be asked to provide (if there is reasonable suspicion or justifiable cause ) body substance samples (such as urine and/or blood) to determine whether illicit or illegal drugs and/or alcohol have been or are being used.

The emphasized portions, which are consistent with the statutory "reason to suspect" standard, reflect that there must be reasonable suspicion of on-the-job drug-impairment before drug testing is justified. A workplace injury-without more-is a legally insufficient basis to impose drug testing on an employee under section 440.09(7) or the employer's written policy, both of which require reasonable suspicion, which did not exist as to Brinson. The testing of Brinson was thereby unauthorized under section 440.09(7)(a), negating the employer's reliance on the statutory presumption of intoxication in section 440.09(7)(b) (discussed further below).

Had Brinson's employer adopted a statutorily-defined drug-free workplace program, it would have more latitude to drug test injured employees, perhaps even Brinson. See § 440.102, Fla. Stat. (entitled "Drug-free workplace program requirements"). For instance, such employers may impose statutorily-defined "reasonable-suspicion drug testing," which-for purposes of the drug-free workplace program only-"means drug testing based on a belief that an employee is using or has used drugs in violation of the employer's policy drawn from specific objective and articulable facts and reasonable inferences drawn from those facts in light of experience." § 440.102(1)(n), Fla. Stat. "Among other things, such facts and inferences may be based upon" six non-exclusive statutory factors, one being information that an employee "has caused, contributed to, or been involved in an accident while at work ." Id. (emphasis added). The highlighted factor gives program-compliant employers leeway to require drug-testing of employees simply because they were "involved" in workplace accidents.

But the employer here jettisoned its attempt to establish a drug-free workplace program, which explains why some of its employment documents (such as Brinson's application and the employer's "Drug Free Awareness" policy) required drug testing for all workplace accidents, which would be allowable only under section 440.102, Florida Statutes. For this reason, the employer had no authority to rely on those documents to test Brinson (absent a "reason to suspect" drug use); nor did it have authority to apply the more flexible standard for "reasonable suspicion drug-testing" in section 440.102(1)(n). Employers cannot take advantage of section 440.102's benefits-including more flexible drug-testing-without first establishing a fully compliant drug-free workplace program; even ones in substantial compliance are ineligible. See Gustafson's Dairy, Inc./Prof'l Adm'rs, Inc. v. Phillips , 656 So.2d 1386, 1388 (Fla. 1st DCA 1995). Doing so gives them an advantage to which they aren't entitled. For like reason, the statutory statement that "[t]his section [establishing requirements for drug-free workplace programs] ... does not abrogate the right of an employer under state law to conduct drug tests, or implement employee drug-testing programs," does not apply to employers without compliant programs, and thereby has no application in this case. § 440.102(7)(e), Fla. Stat. (2018). Only employers with compliant drug free workplace programs get its benefit.

On this point, no statute or case says that employers subject to Chapter 440, but without drug-free workplace programs, have unlimited power to require any type of employee drug-test at any time. The existing legislative framework-which takes away employees' common law rights and replaces them with statutory ones-created a system that balanced employees' rights as to drug testing vis-a-vis rights of employers who need to ensure safe workplaces. This case upsets that balance, giving employers carte blanche to do as they want. An employer without a program, of course, may conduct drug testing under state law, as section 440.09(7)(a) makes clear, but it must comply with standards, such as the "reason to suspect" requirement for drug-testing after a workplace injury. Intermixing the drug-free workplace statute, section 440.102, with the general drug-testing statute, section 440.09(7), creates confusion and thwarts the important legislative protections for drug testing of employees. Plus, why adopt a drug-free workplace program when its more lenient drug-testing standards have now been extended judicially to non-compliant employers?

Second, Brinson-like similarly situated injured employees with inactive metabolites in their system-couldn't have done anything more than she did to rebut the statutory presumption "that the injury was occasioned primarily by the intoxication of, or by the influence of the drug upon, the employee." § 440.09(7)(b), Fla. Stat. Beyond no evidence of impairment or recent drug use and no suspicion of either, Brinson presented unrebutted and supportive expert medical testimony that was fully consistent with the medical literature on marijuana detection and impairment. The JCC found the testimony to be "somewhat speculative," but he failed to explain how, which was error given the scientific testimony was unrefuted and uncontroversial.

At a minimum, the expert testimony and scientific evidence at trial debunked the widespread misconception that testing positive for marijuana use necessarily correlates with intoxication or influence at the time of the accident . To the contrary, as her expert explained, the drug test that Brinson was required to take detects only inactive metabolites, the presence of which proves only that the employee-at some indeterminate and potentially distant point in the past-had marijuana in her system; it does not itself prove, or even infer, impairment at the time of the test or the accident. Unlike blood-alcohol tests, which quantify the amount of alcohol present and translate it with scientific precision into predicted levels of impairment and risk, no such test exists for marijuana impairment. In contrast, a test for active metabolites-which would have to be done contemporaneously with the alleged injury-has some potential of correlating with impairment because active metabolite levels decline by 80-90% within an hour of ingestion; the period of marijuana impairment is almost equally short-lived (typically a few hours thereafter), as Brinson's evidence established.

The oddity is that a positive test revealing inactive metabolites-as here-creates a rebuttable presumption that a workplace "injury was occasioned primarily by the intoxication of, or by the influence of the drug" even though the test has no correlation or predictive power as to whether intoxication, influence, or impairment existed at the time of the injury. And no chemical test for marijuana impairment exists, making it scientifically impossible for employees to directly overcome the premise of the presumption, which is that they were intoxicated or drug-influenced at the time of the accident. They are left with presenting evidence-as did Brinson-that they weren't impaired; had full use of their mental and physical faculties; that the drug test itself proves nothing as to impairment; and that any alleged drug use did not contribute to their injury. In this case, the evidence in support of Brinson was entirely one-sided, easily overcoming the statutory presumption, entitling her to relief.

All this said, marijuana intoxication is a serious matter of public health and a workplace safety concern that employers face daily. The confluence of lawful marijuana use (medical in Florida, medical/recreational elsewhere), the lack of scientific standards or chemical tests for marijuana impairment, and the interplay of federal enforcement policy make the future application of workplace drug tests challenging, to say the least.

      We decline to evaluate the dissent's original appellate research for purposes of resolving this case. See Jacksonville Elec. Auth. v. Dep't of Revenue , 486 So.2d 1350, 1354 n.10 (Fla. 1st DCA 1986) ("The inherent problem in reliance on original appellate research in what is essentially an evidentiary quest is that the appellate court does not have the benefit of the adversarial search for and scrutiny of the available information. It therefore appears inappropriate for an appellate court to rely on its own factfinding, without adversarial crosschecks ....").

      Regarding exclusion, we see no statutory or case-related basis for applying an exclusionary rule on the basis of requiring visible or other signs of impairment in addition to an accident. Test results have long been used in workers' compensation cases (and § 440.09(7)(b)'s presumption has been applied) in the absence of additional impairment evidence. See, e.g. , European Marble Co. v. Robinson , 885 So.2d 502, 504-505 (Fla. 1st DCA 2004) (recognizing that employers could use properly administered drug-test results from hospital tests conducted for medical purposes after an auto accident); Temp. Labor Source v. E.H. , 765 So.2d 757, 759 (Fla. 1st DCA 2000) (acknowledging that an emergency room drug test in the absence of other employer-originated suspicion could underlie an employer's § 440.09(7)(b) -based defense).

      Brinson was a difficult patient. Unclear is whether it was due to her untreated shoulder pain, a gruff personality, or the fact that Brinson's supervisor intervened by personally taking her from the hospital emergency room (where she was awaiting treatment) to a company-authorized medical clinic solely for the drug-testing, which resulted in the immediate denial of any medical treatment.

      Brinson's urine was not given for medical purposes related to her dislocated shoulder, making her situation unlike cases where hospital staff does blood testing for urgent medical reasons associated with immediate treatment of major or catastrophic injuries, which can result in loss of the statutory presumption unless administrative rules on drug-testing policies, procedures, and methods are followed. See European Marble Co. v. Robinson , 885 So.2d 502, 503 (Fla. 1st DCA 2004) (employee "sustained life-threatening injuries to the left side of his head"); Temp. Labor Source v. E.H. , 765 So.2d 757 (Fla. 1st DCA 2000) (catastrophic injury from leg amputation).

      Nor could it rely on the more stringent evidentiary standard that employees must meet under section 440.09(7)(b) ) ("If the employer has implemented a drug-free workplace , this presumption may be rebutted only by evidence that there is no reasonable hypothesis that the intoxication or drug influence contributed to the injury.") (emphasis added).

      For instance, the employee in Gustafson's Dairy injured her arm when it got "caught in a machine," resulting in a drug test, which may have been done for medical purposes or, alternatively, was done because there was "reason to suspect" that she was impaired; it might have been done consensually or due to an unchallenged employer policy. The case simply doesn't say. Likewise, the Fourth District's holding in Laguerre v. Palm Beach Newspapers, Inc. , 20 So.3d 392 (Fla. 4th DCA 2009), was that an employee could not pursue a wrongful discharge claim set forth in the drug-free workplace program statute because the employer had not met the program requirements.

      See, e.g., U.S. Dep't of Transp., Nat'l Highway Traffic Safety Admin., Marijuana-Impaired Driving: A Report to Congress 13 (July 2017) [hereinafter Marijuana-Impaired Driving ].

      Id. at 13. The report notes that studies show that most drivers who smoke marijuana "typically drive slower, follow cars at greater distances, and take fewer risks than when sober.... In contrast, subjects dosed with alcohol typically drive faster, follow at closer distances, and take greater risks." Id. at 12.

      See also id. at 5. See generally What are marijuana effects? , Nat'l Inst. on Drug Abuse , https://www.drugabuse.gov/publications/research-reports/marijuana/what-are-marijuana-effects (last updated Feb. 2018) ("Although detectable amounts of THC [tetrahydrocannabinol] may remain in the body for days or even weeks after use, the noticeable effects of smoked marijuana generally last from 1 to 3 hours, and those of marijuana consumed in food or drink may last for many hours."); Am. Psychiatric Ass'n, Diagnostic and Statistical Manual of Mental Disorders 516-17 (5th ed. 2013) (DSM-V) ("Cannabis Intoxication") ("Intoxication develops within minutes if the cannabis is smoked but may take a few hours to develop if the cannabis is ingested orally. The effects usually last 3-4 hours, with the duration being somewhat longer when the substance is ingested orally."). These authoritative materials are consistent with the record evidence and involve matters not in dispute. Unlike thirty years ago, when a panel of our Court felt that researching legislative history on appeal was verboten, Jacksonville Elec. Auth. v. Dep't of Revenue , 486 So.2d 1350, 1354 n.10 (Fla. 1st DCA 1986) ("It therefore appears inappropriate for an appellate court to rely on its own factfinding, without adversarial crosschecks, in determining the legislative intent .") (emphasis added), the modern online availability of authoritative sources has enabled the judiciary to become better educated on all manner of topics, which is permissible unless an appellate court has its decision turn on a disputable adjudicative factual finding that is not supported in the record (absent the finding being from an incontestable source, e.g., judicial notice).

      Marijuana-Impaired Driving , at 13.

      Expert testimony based on scientific evidence established that it was "highly unlikely" that Brinson's alleged drug use would have contributed to her injury. If Brinson's evidentiary burden is-as the "bottom line" of this case establishes-that her witnesses must say with certainty that "her [alleged] drug use did not contribute to her injury," the statutory presumption becomes irrebuttable and thereby unconstitutional. Recchi Am. Inc. v. Hall , 692 So.2d 153 (Fla. 1997) (section 440.09(3)'s then-existing conclusive presumption that injury in drug-free workplace was caused by claimant's intoxication due to positive drug test violates due process), affirming , Hall v. Recchi Am. Inc. , 671 So.2d 197 (Fla. 1st DCA 1996).

      DSM-V, at 517 ("Functional Consequences of Cannabis Intoxication") ("Impairment from cannabis intoxication may have serious consequences, including dysfunction at work or school, social indiscretions, failure to fulfill role obligations, traffic accidents, and having unprotected sex. In rare cases, cannabis intoxication may precipitate a psychosis that may vary in duration.").

      See State Marijuana Laws in 2018 Map, Governing , http://www.governing.com/gov-data/state-marijuana-laws-mapmedical-recreational.html (last visited May 10, 2018).

      See generally Stacy A. Hickox, Drug Testing of Medical Marijuana Users in the Workplace: An Inaccurate Test of Impairment , 29 Hofstra Lab. & Emp. L.J. 273, 335 (2012) (surveying the medical and legal issues related to medical marijuana users in the workforce).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Juan N. ESPINOSA, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-135
    District Court of Appeal of Florida, Third District.
    Opinion filed September 20, 2018
    Juan N. Espinosa, in proper person.
    Pamela Jo Bondi, Attorney General, and Jeffrey R. Geldens, Assistant Attorney General, for appellee.
    Before ROTHENBERG, C.J., and FERNANDEZ and SCALES, JJ.
   PER CURIAM.

Juan N. Espinosa appeals a denial of a post-conviction motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800. Espinosa raised four issues to the trial court and raises those same four issues, plus an additional one, on appeal. We affirm, and issue an order to show cause.

Espinosa was convicted and sentenced in two cases involving burglary. In case number F02-13719, he was convicted of burglary of an unoccupied dwelling and sentenced to forty years in prison, with a thirty-year minimum mandatory sentence as a Violent Career Criminal and a fifteen-year minimum mandatory sentence as a Prison Releasee Reoffender. He was also convicted of criminal mischief and petit theft with sentences to run concurrently with the burglary sentence. This Court affirmed his direct appeal in Espinosa v. State, 905 So.2d 139 (Fla. 3d DCA 2005) (table).

In case number F02-14356, Espinosa was convicted of burglary and sentenced to forty years in prison, with a thirty-year minimum mandatory sentence as a Violent Career Criminal and a fifteen-year minimum mandatory sentence as a Prison Releasee Reoffender. He was also convicted of grand theft and was sentenced to fifteen years in prison with a ten-year minimum mandatory sentence as a Violent Career Criminal. He was designated a Habitual Offender. This Court affirmed his direct appeal in Espinosa v. State, 888 So.2d 642 (Fla. 3d DCA 2004) (table).

In the trial court and in the instant appeal, Espinosa makes the following four arguments: (i) he was entitled to a separate hearing to determine whether he met the criteria to be enhanced as a Violent Career Criminal; (ii) he was not afforded sufficient notice prior to enhanced sentencing; (iii) proof of his earlier convictions for enhancement purposes was inadequate; and (iv) the State failed to prove his earlier convictions through fingerprinting. On appeal, Espinosa adds a fifth argument: the trial court's denial of his rule 3.800 motion was error because the trial court failed to attach the necessary record excerpts to its order.

We have reviewed Espinosa's arguments and conclude that they are without merit. In addition to Espinosa's two direct appeals, he has filed in this Court twenty-one post-conviction appeals and petitions in the past fourteen years. In his first two post-conviction appeals, Espinosa prevailed in having his sentencing either re-examined or adjusted. In Espinosa v. State, 916 So.2d at 48, this Court reversed a post-conviction order and remanded the case to the trial court to examine whether Espinosa was entitled to additional credit for jail time served. In Espinosa v. State, 937 So.2d at 754, this Court partially reversed a post-conviction order, determining, upon State concession, that Espinosa's sentences in case number F02-14356 should run concurrently rather than consecutively. Perhaps emboldened by these early successes, Espinosa subsequently filed multiple petitions and appeals. They have been to no avail.

Lastly, Espinosa argues that the trial court erred by failing to attach materials to the order on appeal that refute Espinosa's claim for relief. It was, however, Espinosa's burden, not that of the trial court or the State, to supply record excerpts that demonstrate his entitlement to relief under rule 3.800. Cox v. State, 221 So.3d 723, 725 (Fla. 3d DCA 2017).

ORDER TO SHOW CAUSE

Accordingly, Espinosa is hereby directed to show cause, within forty-five days of this opinion, as to why he should not be prohibited from filing any further pro se appeals, petitions, motions or other pleadings related to his criminal convictions in circuit court case numbers F02-13719 and F02-14356.

If Espinosa does not demonstrate good cause, we will direct the Clerk of this Court not to accept any such filings unless they have been reviewed by, and bear the signature of, a licensed attorney in good standing with the Florida Bar.

Additionally, and absent a showing of good cause, any further and unauthorized filings by Espinosa will subject him to appropriate sanctions, including the issuance of written findings forwarded to the Florida Department of Corrections for its consideration of disciplinary action, including the forfeiture of gain time. See § 944. 279(1), Fla. Stat. (2018).

Affirmed. Order to show cause issued.

      Espinosa v. State, 210 So.3d 62 (Fla. 3d DCA 2016) (table); Espinosa v. State, 185 So.3d 536 (Fla. 3d DCA 2015) ; Espinosa v. State, 3D15-898; Espinosa v. State, 150 So.3d 1153 (Fla. 3d DCA 2014) (table); Espinosa v. State, 121 So.3d 1050 (Fla 3d DCA 2013) (table); Espinosa v. State, 121 So.3d 558 (Fla. 3d DCA 2013) (table); Espinosa v. State, 108 So.3d 1100 (Fla. 3d DCA 2013) (table); Espinosa v. State, 99 So.3d 522 (Fla 3d DCA 2011) (reversed on procedural ground); Espinosa v. State, 88 So.3d 948 (Fla. 3d DCA 2012) (table); Espinosa v. State, 77 So.3d 1268 (Fla. 3d DCA 2011) (table); Espinosa v. State, 68 So.3d 908 (Fla. 3d DCA 2011) (table); Espinosa v. State, 997 So.2d 1168 (Fla. 3d DCA 2009) ; Espinosa v. State, 967 So.2d 918 (Fla. 3d DCA 2007) (table); Espinosa v. State, 965 So. 2d 137 (Fla. 3d DCA 2007) (table); Espinosa v. State, 955 So.2d 579 (Fla. 3d DCA 2007) (table); Espinosa v. State, 946 So.2d 27 (Fla. 3d DCA 2006) (table); Espinosa v. State, 937 So.2d 754 (Fla. 3d DCA 2006) ; Espinosa v. State, 916 So.2d 47 (Fla. 3d DCA 2005). Twice this Court granted Espinosa a belated appeal: Espinosa v. State, 3D18-06 and Espinosa v. State, 965 So. 2d 137 (Fla. 3d DCA 2007) (table).

      In his petitions and appeals, Espinosa has run the gamut of subject matter. The State, in its answer brief, points out that Espinosa has started to become repetitious. For example, Espinosa's argument in this case that he received insufficient notice that the State intended to use prior convictions to enhance his sentencing in cases F02-13719 and F02-14356 has already been rejected in Espinosa v. State, 967 So.2d 918 (Fla. 3d DCA 2007) and Espinosa v. State, 185 So.3d 536 (Fla. 3d DCA 2015).


author: LAMBERT, J.

text:
    James MOBLEY, Appellant, v. STATE of Florida, Appellee.
    Case No. 5D16-4340
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 19, 2018
    James S. Purdy, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Lori N. Hagan, Assistant Attorney General, Daytona Beach, for Appellee.
   LAMBERT, J.

James Mobley was convicted after trial of sale of cocaine within 1000 feet of a public park, in violation of section 893.13(1)(c)1., Florida Statutes (2014). This statute provides, in pertinent part, that a "defendant must be sentenced to a minimum term of imprisonment of 3 calendar years." The trial court orally pronounced Mobley's sentence as seven years in the state prison "with the first 36 months day-for-day minimum mandatory." This "day-for-day" language is the sole topic of this appeal.

Mobley argues that by directing the first thirty-six months of his sentence be served "day-for-day," the trial court has improperly precluded him from being eligible for gain-time to which he may otherwise be entitled to under section 944.275, Florida Statutes, during the mandatory minimum portion of his sentence. Mobley asserts that when the Legislature intends to prohibit a defendant from being eligible for gain-time during the service of a mandatory minimum term of imprisonment, it uses explicit language to that effect, see Mastay v. McDonough , 928 So.2d 512, 514 (Fla. 1st DCA 2006), and that section 893.13(1)(c)1., under which he was sentenced, lacks this limiting language. We agree. See Melvin v. State , 177 So.3d 648, 650 (Fla. 1st DCA 2015) (striking the day-for-day provision from mandatory minimum sentence after comparing the language from sections 316.1935(6), 775.087(2)(a), and 784.07(3), that require the imposition of mandatory minimum prison sentences and also specifically provide that a defendant "is not eligible for statutory gain-time under [ section] 944.275 or any form of discretionary early release, other than pardon or executive clemency, or conditional medical release under [section] 947.149, prior to serving the minimum sentence" to the statute under which the defendant was sentenced that does not have similar language).

Here, Mobley was sentenced under section 893.13(1)(c)1. This statute does not contain explicit language precluding eligibility for statutory gain-time prior to serving the mandatory minimum sentence, leading us to conclude, as the First District did in Melvin and Mastay , that the Legislature did not intend to prohibit gain-time from being awarded regarding the mandatory minimum portion of Mobley's sentence. The trial court, by its "day-for-day" sentence pronouncement, has affected Mobley's ability to receive this gain-time, which it lacks authority to do. See Shupe v. State , 516 So.2d 73, 73 (Fla. 5th DCA 1987) ("[A] trial court is without authority to prevent gain time [as] the award of gain time, pursuant to section 944.275, Florida Statutes, is solely within the province of the Department of Corrections."). The remedy is to strike the language or to treat it as surplusage. See Miller v. State , 882 So.2d 480, 481 (Fla. 5th DCA 2004) ("If, in sentencing, a court attempts to bar or grant gain time, such language has been treated as surplusage or stricken." (citing Shupe , 516 So.2d at 73 ; Singletary v. Coronado , 673 So.2d 924, 924 (Fla. 2d DCA 1996) ) ).

Accordingly, we strike from the record the "day-for-day" provision of the sentence imposed and affirm Mobley's sentence, as modified.

Sentence AFFIRMED, as modified; STRIKE "day-for-day" provision from the record.

COHEN, C.J., and EVANDER, J., concur.

      Mobley has not challenged his conviction.


text:
    Ashatia WINTERS, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-1462
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 5, 2018
    Ashatia Winders, pro se.
    Pamela Jo Bondi, Attorney General Tallahassee, and, Marjorie Vincent-Tripp, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion shall be filed with the trial court and be treated as the notice of appeal from the August 31, 2017, judgment and sentence rendered in Case No. 2012-CF-004925 in the Circuit Court in and for Orange County, Florida. See Fla. R. App. P. 9.141(c)(6)(D).

PETITION GRANTED.

ORFINGER, HARRIS and GROSSHANS, JJ., concur.


author: EDWARDS, J.

text:
    Courtney ROBERTS and Carol Roberts, Appellants, v. PNC BANK, N.A., Appellee.
    Case No. 5D17-2840
    District Court of Appeal of Florida, Fifth District.
    Opinion filed October 19, 2018
    Michael Saracco, of Saracco Law, Cocoa, for Appellants.
    William L. Grimsley, N. Mark New, II, and Kimberly Held Israel, of McGlinchey Stafford, Jacksonville, for Appellee.
   EDWARDS, J.

Appellants, Courtney and Carol Roberts, appeal the trial court's order imposing sanctions against them (fifty percent) and their attorney (fifty percent) in accordance with section 57.105, Florida Statutes (2015). Appellants and their attorney failed to preserve the issue for appeal, as they entered into a stipulated final judgment which set forth the entitlement to and amount of the sanctions that were imposed. See Pac. Nat'l Bank, N.A. v. Home Tower Condo., Inc. , 174 So.3d 565, 567 (Fla. 4th DCA 2015). Additionally, Appellants' argument that the trial court erred by imposing sanctions against their attorney is not properly before this court because the attorney did not individually appeal and failed to include himself as an appellant. See Faddis v. City of Homestead , 157 So.3d 447, 453 (Fla. 3d DCA 2015). We affirm the trial court's well-written, detailed order imposing sanctions, which is supported by competent, substantial evidence. We deny Appellants' motion for appellate attorney's fees and grant Appellee's. Additionally, Appellants' counsel, Michael A. Saracco, is hereby ordered to show cause within ten days why this court should not sanction him for making what appears to be a blatant, material misrepresentation in his brief regarding the trial court's findings on the sanctions motion.

The trial court awarded the sanctions because Appellants and their counsel persisted in asserting a defense that they knew or should have known was not supported by facts or law. Specifically, Appellants attempted to defend against the underlying mortgage foreclosure action by asserting that the debt represented by the note had been paid and that the note had been assigned to the Courtney Roberts Trust. However, there was no evidence to support that claim. Appellee, PNC Bank, N.A., served a section 57.105(1) safe harbor notice demanding that defense be withdrawn; Appellants refused to do so. After the safe harbor time period expired, PNC filed its sanctions motion with the court.

The trial court held a post-trial hearing on PNC's section 57.105(1) motion and noted that Appellants and their counsel had repeatedly asserted the defense of payment/assignment in the answer, discovery responses, deposition testimony, and in several demands for dismissal of the foreclosure action. The trial court determined that Appellants' defense was implausible, frivolous, and that their refusal to withdraw the defense after receiving PNC's safe harbor letter was unsupportable. Specifically, the trial court found that Appellants' defense was not supported by any documentary evidence and that the testimony of Appellant Courtney Roberts was internally inconsistent and not credible. The trial court also found that Appellants' purported handwriting expert, Curt Baggett, "lacked the credentials, experience, and qualifications to testify" regarding the questioned assignment document. Additionally, the trial court noted that "Mr. Baggett has a long history of being rejected as an expert by numerous courts in many jurisdictions" and was referred to in at least one decision as a "charlatan." The trial court remarked that Mr. Baggett's difficulties were easily discoverable with a simple internet or legal database search and further noted that prior to trial, attorney Saracco was already "aware of Mr. Baggett's less than stellar credentials as a handwriting expert and the findings of numerous courts that Mr. Baggett was not a competent expert."

As far as setting the date by which Appellants and their counsel should have withdrawn the unsupportable, frivolous defense, the trial court looked to the record. The trial court found that on October 26, 2015, PNC gave Appellants a copy of the report its handwriting expert, Thomas Vastrick, prepared. That report expressed Vastrick's opinion that the purported assignment/indorsement document was not authentic, and was entirely contrived, that the questioned document never existed as an original document, and that the supposed handwritten entry of "Courtney Roberts Trust" was a cut and paste job. After reciting this detailed history, the trial court included in its order granting the sanctions motion its specific finding that "Mr. Saracco and his clients should have known by October 26, 2015 that the Defendants' endorsed note defense was not supported by the material facts and contradicted by overwhelming evidence." Accordingly, the trial court found PNC was entitled to section 57.105 sanctions from October 26, 2015, forward for having to litigate and defend against the "endorsed note" defense.

The parties then entered into a stipulated final judgment that set forth the specific amounts of attorney's fees, costs, and interest to be awarded to PNC and against Appellants and attorney Saracco as section 57.105 sanctions. As noted above, by entering into this stipulated final judgment without reserving any right to appeal, Appellants and attorney Saracco waived appellate review. Because attorney Saracco did not individually appeal or include himself as an appellant, he waived any right to appellate review of his fifty-percent share of the sanctions awarded to PNC.

Finally, even if we ignore these waivers, the trial court's order is supported by competent, substantial evidence and sets forth very specific findings as to the unsupported nature of the defense and a date by which Appellants and their counsel knew the defense should have been withdrawn. Accordingly, we affirm the trial court's order, grant Appellee's motion for appellate attorney's fees, and deny Appellants' motion.

We must now address what appears to us to be a blatant, material misrepresentation of the record by attorney Michael A. Saracco. On page seventeen of Appellants' amended initial brief, which he authored, attorney Saracco makes the following statement:

The trial court failed to make a specific finding that Roberts or its counsel knew or should have known that Roberts claim was not supported by material facts.

Contrary to this statement, on page eight of the sanctions order, the trial court explicitly stated:

After considering the above stated history of this case, the Court finds that Mr. Saracco and his clients should have known by October 26, 2015 that the Defendants' endorsed note defense was not supported by the material facts and contradicted by overwhelming evidence.

On page nine of the sanctions order the trial court further stated, "The defense should have been withdrawn upon the realization that it was not supportable and was, in fact, frivolous." On that same page, the trial court again specifically stated that the defense was not supportable, was frivolous, and "that Mr. Saracco and his clients should have known by October 26, 2015 that the defense of the 'endorsed Note' was not supported by the material facts."

Appellants' misstatement, set forth above, was quoted and described as being "patently false" and "outrageous" in Appellee's answer brief, which laid out the same passages from the trial court's order that we referenced. Attorney Saracco seemingly passed on what most would have taken as an opportunity to set the record straight, as he chose not to file a reply brief or otherwise correct that misstatement. Accordingly, we order Michael A. Saracco to show cause in writing within ten days from the date this opinion issues as to why this court should not sanction him for making what appears to be a blatant, material misrepresentation in the brief that he filed with this court and for failing to correct the misrepresentation when it was clearly and forcefully brought to his attention by opposing counsel.

AFFIRMED.

ORFINGER and EVANDER, JJ., concur.

      In stark contrast to Mr. Baggett, the trial court found Mr. Vastrick to be well-credentialed, well-trained, and credible in explaining his analysis and conclusions regarding the phony document upon which Appellants and their attorney relied.

      The same misstatement was previously set forth on page seventeen of Appellants' original initial brief, which was stricken for failure to comply with the Florida Rules of Appellate Procedure.


author: SCALES, J.

text:
    IDS PROPERTY CASUALTY INSURANCE COMPANY, Appellant, v. MSPA CLAIMS 1, LLC, etc., Appellee.
    No. 3D17-1170
    District Court of Appeal of Florida, Third District.
    Opinion filed October 24, 2018
    White & Case LLP, and Raoul G. Cantero, David P. Draigh and Zachary B. Dickens, Miami; Ramón A. Abadin, for appellant.
    MSP Recovery Law Firm, and John H. Ruiz, Arlenys Perdomo, Miami and Frank C. Quesada, for appellee.
    Russo Appellate Firm, P.A., and Elizabeth K. Russo, Miami and Paulo R. Lima, for Property Casualty Insurers Association of America as amicus curiae.
    Before EMAS, SCALES and LUCK, JJ.
   SCALES, J.

Defendant below, IDS Property Casualty Insurance Company (IDS), appeals a non-final order granting the motion of plaintiff MSPA Claims 1, LLC (MSPA) to certify a plaintiff class consisting of Florida's thirty-seven Medicare Advantage Organizations. MSPA is a claims-recovery assignee of Florida Healthcare Plus, now a defunct Medicare Advantage Organization. Below, MSPA alleged that IDS, an insurer under Florida's Motor Vehicle No-Fault Law (PIP), failed to reimburse MSPA for conditional payments made by MSPA's assignor, Florida Healthcare Plus, on behalf of Florida Healthcare Plus's Medicare enrollees who were also covered under an IDS automobile insurance policy.

In January of 2014, M.A., an enrollee of Florida Healthcare Plus and an IDS insured, was injured in an automobile accident. Florida Healthcare Plus paid M.A.'s medical costs in the amount of $87,491.

On April 15, 2014, Florida Healthcare Plus assigned to La Ley Recovery Systems the rights to seek reimbursement from primary payers. On December 1, 2014, La Ley Recovery Systems assigned its rights to MSP Recovery, LLC. On February 11, 2015, MSP Recovery assigned its rights to MSPA. Thus, MSPA held the baton and sent a demand letter to IDS for reimbursement. IDS responded that it did not owe any payment to MSPA because M.A. had exhausted PIP benefits (i.e., IDS already had met its financial obligation under M.A.'s PIP policy). In March of 2016, MSPA sued IDS for those medical payments made by Florida Healthcare Plus that allegedly should have been paid by IDS. In its suit, MSPA sought class certification for all similarly situated Medicare Advantage Organizations.

Following a hearing on September 26-27, 2016, the trial court certified the class. The trial court found that MSPA's motion satisfied the class-certification requirements of Florida Rule of Civil Procedure 1.220 with respect to numerosity, commonality, typicality, adequacy of representation, predominance and superiority. The trial court determined that MSPA was authorized to represent the class of claimants defined as: Medicare Advantage Organizations that "made payment(s) for medical services, treatment and/or supplies subsequent to December 2, 2009," for which IDS was responsible and for which IDS either failed to pay on behalf of its insured or failed to reimburse the Medicare Advantage Organizations or their assignees.

We reverse the trial court's order, adopting the analysis in the recently issued opinion of this Court in Ocean Harbor Casualty Insurance Company v. MSPA Claims I, LLC, No. 3D17-392, 261 So.3d 637, 2018 WL 4608794 (Fla. 3d DCA Sept. 26, 2018). As in Ocean Harbor, in this case, MSPA has failed to establish that common issues predominate over individual issues. Porsche Cars of N. Am., Inc. v. Diamond, 140 So.3d 1090, 1095-96 (Fla. 3d DCA 2014). To quantify the claims of the putative class members will require a comprehensive and distinct analysis of each underlying PIP claim and automobile accident. Such analysis will necessarily include, at a minimum, the amounts paid by IDS, the payees of IDS, whether such payments exhausted the insureds' PIP benefits, the amounts paid by Florida Healthcare Plus, and the payees of Florida Healthcare Plus. Plainly, this is one of those cases where merely proving entitlement to reimbursement from IDS for payments made by Florida Healthcare Plus on behalf of M.A., in no way proves the cases of the other class members. Id. at 1096 ("Common issues predominate when ... the proof offered by the class representatives will necessarily prove or disprove the cases of the absent class members.").

In this case, individual issues overcome the common issues of the putative class, and the "predominance requirement is not satisfied when the claims involve factual determinations which are unique to each plaintiff." Volkswagen of Am., Inc. v. Sugarman, 909 So.2d 923, 924 (Fla. 3d DCA 2005). As the opinion in Ocean Harbor explains: "[P]ayment under Florida no-fault law proceeds on a factually intensive bill-by-bill and case-by-case basis." Ocean Harbor, No. 3D17-392, 261 So.3d 637, at *23.

We reverse as well on the alternate ground of standing, an issue not addressed in the Ocean Harbor case. MSPA was the third assignee of Florida Healthcare Plus (the Medicare Advantage Organization that was allegedly entitled to reimbursement). The record indicates that the first assignment and the two subsequent assignments required the approvals of Florida Healthcare Plus. These approvals did not occur until the Receiver for Florida Healthcare Plus entered into a settlement agreement with the three assignees on June 1, 2016. MSPA filed its amended complaint in this case on March 8, 2016, several months prior to the Receiver's approval. MSPA's standing must exist at the inception of its case; the settlement agreement cannot exhume standing. Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic, 913 So.2d 1281, 1285 (Fla. 2d DCA 2005) ; see also MSPA Claims 1, LLC v. Infinity Auto Ins. Co., 204 F.Supp.3d 1346, 1347 (S.D. Fla. 2016) (concluding in a case paralleling the instant case that MSPA lacked standing because MSPA did not hold a valid assignment from Florida Healthcare Plus due to lack of assignments approvals); MSPA Claims 1, LLC v. United Auto. Ins. Co., 204 F.Supp.3d 1342, 1345 (S.D. Fla. 2016) (same).

The trial court relied on MSP Recovery LLP v. Allstate Insurance Co., 835 F.3d 1351 (11th Cir. 2016) to determine MSPA's standing. AllState is a case related in subject matter to the instant case and involved, among others, MSPA and IDS. In AllState, though, IDS took a different approach from that of the instant case in attacking MSPA's standing. IDS argued in AllState that MSPA's private cause of action against IDS (and other primary payers of PIP benefits) was barred by the federal anti-assignment statute, 41 U.S.C. § 6305(a). In rejecting this argument, the Eleventh Circuit held that 41 U.S.C. § 6305(a) would bar only the transfer of Florida Healthcare Plus's Medicare contract itself (or an interest in that contract) to MSPA. Id. at 1358.

In the instant case, IDS has based its standing attack not on the federal anti-assignment statute, but rather, on the validity of the assignments themselves. The AllState holding, therefore, is unavailing to MSPA to thwart the different standing challenge asserted by IDS in this case.

For these reasons, we reverse the order granting class certification.

Reversed and remanded for proceedings consistent with this opinion.

      Medicare Part C allows Medicare enrollees the option of receiving their benefits from a State-licensed, private health care plan known as a Medicare Advantage Organization. The federal Centers for Medicare and Medicaid Services (CMS) contracts with and pays to the Medicare Advantage Organization a flat fee per enrollee. The Medicare Advantage Organization must pay the same Medicare Part A and B benefits to its enrollees as Medicare would do. In practice, the Medicare Advantage Organization stands in the shoes of Medicare, though it assumes a financial risk in the event the cost of the enrollee's care exceeds the CMS flat fee.

      §§ 627.730 -627.7405, Fla. Stat. (2016).

      We use M.A.'s initials because the parties seek to protect M.A.'s privacy in this appeal.

      The PIP insurer is the primary payer for medical expenses incurred as a result of an automobile accident. §§ 627.730-7405, Fla. Stat. (2015). The Medicare Advantage Organization, on behalf of Medicare Part C enrollees, is the secondary payer. § 42 U.S.C. 1395y(b)(2)(A)(ii). At times, as in this case, the secondary payer will pay for its enrollee's medical care and seek reimbursement from the primary payer up to and including the $10,000 PIP limit. Medicare authorizes the secondary payer to make conditional payment when the primary payer "has not made or cannot reasonably be expected to make payment with respect to the item or service promptly." 42 U.S.C. § 1395y(b)(2)(B)(i).


author: Forst, J.

text:
    BLUEFIELD RANCH MITIGATION BANK TRUST, Appellant, v. SOUTH FLORIDA WATER MANAGEMENT DISTRICT and Florida Department of Transportation, Appellees.
    No. 4D16-3023
    District Court of Appeal of Florida, Fourth District.
    October 31, 2018
    Thomas E. Warner, Dean A. Morande, Matthew Z. Leopold, and Michael D. Sloan of Carlton Fields Jorden Burt, P.A., West Palm Beach, for appellant.
    Marc Peoples, Assistant General Counsel of Department of Transportation, Tallahassee, for appellee Florida Department of Transportation.
    Susan Roeder Martin, West Palm Beach, for appellee South Florida Water Management District.
    CORRECTED OPINION
    ON MOTION FOR REHEARING AND MOTION FOR CLARIFICATION OR CORRECTION
   Forst, J.

We deny the Florida Department of Transportation's motion for rehearing, but grant the South Florida Water Management District's motion for clarification or correction. We thus withdraw our previously issued opinion and substitute the following.

Appellant Bluefield Ranch Mitigation Bank Trust ("Bluefield") sought to challenge the South Florida Water Management District's ("District") issuance of a permit to the Florida Department of Transportation ("FDOT") for a road-widening project. The District dismissed Bluefield's petition for a formal administrative proceeding ("petition") with prejudice, determining Bluefield lacked standing to challenge the permit. The District's decision was based on its determination that the only injury specifically alleged by Bluefield was economic. We disagree, and conclude that Bluefield has demonstrated standing beyond mere economic injury. We thus reverse the District's dismissal order and remand for a formal administrative proceeding on Bluefield's petition.

Background

The District is a government entity created under Chapter 373, Florida Statutes, which has the responsibility to conserve, protect, manage, and control water resources within its geographic boundaries. See §§ 373.016, .036, Fla. Stat. (2016). Bluefield is a privately-owned mitigation bank, established pursuant to section 373.4136, Florida Statutes, for the purpose of operating and managing the Bluefield Ranch Mitigation Bank. Mitigation banking is the practice in which a mitigation bank sells "credits" in exchange for conducting environmental enhancement and preservation to offset unavoidable adverse impacts to the wetlands and to other property within its mitigation service area caused by development or construction projects requiring a permit from the District. See §§ 373.403(19), .4136(1), Fla. Stat.

At the time of receiving a mitigation bank permit, a mitigation bank is granted a certain number of mitigation credits. § 373.4136(4), Fla. Stat. Each credit is a unit of measure representing the increase in ecological value to offset adverse impacts within the bank's service area. See § 373.403(20), (21), Fla. Stat. A mitigation bank sells its credits to the permittee of the proposed project, who applies them to meet its mitigation requirements. Bluefield is a permitted mitigation bank, with property situated within the service area and regional watershed of the project at issue. Mitigation service areas can overlap, and mitigation service areas for two or more mitigation banks may be approved for a regional watershed. § 373.4136(6), Fla. Stat.

FDOT applied for a permit, which the District issued, for its project to widen a section of State Road 710/Beeline Highway. Per the permit, FDOT was required to purchase mitigation credits as a means of offsetting the environmental impact to the wetlands from the road-widening project. FDOT purchased some of the required mitigation credits from Bluefield, but most of the mitigation was to be provided by Dupuis Reserve ("Dupuis").

In its petition challenging the use of mitigation credits from Dupuis, Bluefield argued that Dupuis did not meet certain statutory criteria to be considered for mitigation on the project. Therefore, FDOT was required to consider Bluefield for the mitigation credits that would otherwise be provided by Dupuis. The petition asserted that Bluefield has standing to challenge FDOT's permit because, as a mitigation bank, it has a substantial interest in the enforcement of statutory compliance for mitigation within its service area and within the same regional watershed as the project. That "substantial interest," the petition contends, is to prevent environmental harm caused by unlawful mitigation. Bluefield further argued that it had standing because, as a landowner in the affected area, it has a substantial interest in the protection of the environment and the continued restoration, enhancement, and preservation of wetlands within its regional watershed and service area.

The District dismissed Bluefield's petition with prejudice, concluding that Bluefield failed to (and could not) allege facts demonstrating it had substantial interests (other than purely economic interests) that would be affected by the issuance of the permit. On appeal, Bluefield requests a reversal of the dismissal and an opportunity to present its challenge at an administrative hearing.

Analysis

In reviewing agency determinations on issues which do not require special agency expertise, such as standing, we accept the allegations in the petition as true, and are not required to give any deference to the agency's legal conclusions. See S. Broward Hosp. Dist. v. State, Agency For Health Care Admin. , 141 So.3d 678, 680-81 (Fla. 1st DCA 2014). As such, we review whether a party has standing de novo. See Mid-Chattahoochee River Users v. Fla. Dep't of Envtl. Prot. , 948 So.2d 794, 796 (Fla. 1st DCA 2006) ; see also Save Our Creeks v. State of Fla. Fish & Wildlife Conserv. Com'n , 112 So.3d 128, 129-30 (Fla. 1st DCA 2013) (an agency's dismissal of a petition for an administrative hearing is reviewed de novo).

A. The Agrico test for standing

Bluefield asserts that it has standing under the Florida Administrative Procedure Act ("FAPA"), which defines "party," in pertinent part, as:

Any other person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party.

§ 120.52(13)(b), Fla. Stat. (2016).

A two-part test to determine standing to participate in an administrative proceeding under this subsection of FAPA was established in Agrico Chemical Co. v. Department of Environmental Regulation , 406 So.2d 478 (Fla. 2d DCA 1981). The Agrico test looks to whether there is an injury in fact with sufficient immediacy, and a substantial injury of the type which the proceeding is designed to protect. Id. at 482. The first element pertains to the degree of injury and the second element deals with the nature of the injury. Id.

It is well established that mere economic interests and the general interests of citizens are insufficient to establish standing. See Mid-Chattahoochee River Users , 948 So.2d at 796-99 ; City of Sunrise v. S. Fla. Water Mgmt. Dist. , 615 So.2d 746, 748 (Fla. 4th DCA 1993). The reason, in part, is because we seek to "limit unwarranted use of judicial resources in challenges involving discretional decisions of legislative bodies." Rosenzweig v. Dep't of Transp. , 979 So.2d 1050, 1053 (Fla. 1st DCA 2008). However, we are also cognizant that "one of the major legislative purposes of the Administrative Procedure Act was the expansion of public access to the activities of governmental agencies." Id. (citing Fla. Home Builders Ass'n v. Dep't of Labor , 412 So.2d 351, 352-53 (Fla. 1982) ).

Agrico 's intent was not to preclude participation by parties who stand to be affected by the actual and foreseeable results of agency action. See Peace River/Manasota Reg'l Water Supply Auth. v. IMC Phosphates Co. , 18 So.3d 1079, 1082-83 (Fla. 2d DCA 2009) ("[S]tanding is a legal concept that requires a would-be litigant to demonstrate that he or she reasonably expects to be affected by the outcome of the proceedings, either directly or indirectly." (quoting Hayes v. Guardianship of Thompson , 952 So.2d 498, 505 (Fla. 2006) ) ). Instead, Agrico 's intent was to "preclude parties from intervening in a proceeding where those parties' substantial interests are totally unrelated to the issues that are to be resolved in the administrative proceedings." Mid-Chattahoochee River Users , 948 So.2d at 797 (citing Gregory v. Indian River Cty. , 610 So.2d 547, 554 (Fla. 1st DCA 1992) ). Examples of parties that have been "preclude[d] from intervening in a proceeding" per this Agrico "substantial interest" test are Mid-Chattahoochee River Users , 948 So.2d at 797, and City of Sunrise , 615 So.2d at 748 -two cases where the petitioners lacked standing for alleging mere economic injury, and not the kind of injury for which the proceeding was designed to protect, namely, the protection and conservation of water and related land sources.

B. Bluefield's alleged "injury"

Addressing transportation projects with unavoidable impact to wetland areas, the Florida Legislature expressed its intent that "mitigation to offset the adverse effects of these transportation projects be funded by [FDOT] and be carried out by the use of mitigation banks and any other mitigation options that satisfy state and federal requirements in a manner that promotes efficiency, timeliness in project delivery, and cost-effectiveness." § 373.4137(1), Fla. Stat. To effectuate this intent, FDOT "must consider using credits from a permitted mitigation bank" and "must consider the availability of suitable and sufficient mitigation bank credits within the transportation project's area." § 373.4137(2)(c), Fla. Stat. (emphases added). Once it has met its "must consider" obligation, FDOT can "purchase credits for current and future use directly from a mitigation bank, purchase mitigation services through the water management districts or the Department of Environmental Protection, conduct its own mitigation, or use other mitigation options that meet state and federal requirements." § 373.4137(3)(a), Fla. Stat.

To qualify as a permitted mitigation bank, thereby qualifying for "must consider" status, a mitigation bank is obligated to provide reasonable assurance that it will meet applicable statutory and regulatory standards, including its ability to manage and improve the mitigation service area, and maintain the financial ability to do so, into perpetuity. See § 373.4136(1), Fla. Stat. As such, a mitigation bank provides assurance that there is "a substantial likelihood that the project will be successfully implemented." Metro. Dade Cty. v. Coscan Fla., Inc. , 609 So.2d 644, 648 (Fla. 3d DCA 1992).

Here, Bluefield's petition alleges that using Dupuis for mitigation violated the section 373.4135(1)(b) prohibition of the use of property previously purchased for conservation. Bluefield maintains that Dupuis was previously purchased by the District with funding reserved for conservation projects and was already being utilized for conservation purposes and thus disqualified for "must consider" status.

The petition further contends that Dupuis has not provided the appropriate reasonable assurances for the mitigation of this project that are required by the statutory provisions governing this process.

Particularly, Bluefield contends Dupuis failed to meet the public interest criteria set forth in section 373.414(a), such as whether the use of the Dupuis acreage would "adversely affect the public health, safety, or welfare or the property of others," including Bluefield's own regional watershed and service area.

Whether Dupuis is qualified to be considered for the project's mitigation is a disputed question of fact on the merits of Bluefield's petition. We take Bluefield's petition as true for the purposes of reviewing the District's dismissal. Whether Bluefield will be successful on the merits is irrelevant to our inquiry. See Palm Beach Cty. Envtl. Coal. v. Fla. Dep't. of Envtl. Prot. , 14 So.3d 1076, 1078 (Fla. 4th DCA 2009).

C. Bluefield's "substantial interest"

Assuming Dupuis is not qualified to provide mitigation on the project, the question becomes whether Bluefield has a substantial interest in challenging the permit issued by the District to FDOT, in order to contest the latter's choice of Dupuis to be the recipient of the majority of the mitigation.

Mere economic injury is not enough, but when a party alleges "economic injury, in combination with other factors, [it] may provide a basis for standing in an administrative proceeding." Fla. Police Benevolent Ass'n, Inc. v. Fla. Dep't. of State, Div. of Licensing , 450 So.2d 283, 284 (Fla. 1st DCA 1984) (citing Fla. Med. Ass'n v. Dep't of Prof'l Reg. , 426 So.2d 1112, 1115 (Fla. 1st DCA 1983) ); see also Ybor III, Ltd. v. Fla. Hous. Fin. Corp. , 843 So.2d 344, 346 (Fla. 1st DCA 2003).

In Ybor , a housing developer (Ybor) and its competitor applied for limited funding to provide affordable housing in Florida. Id. at 345. Ybor's application was denied and its competitor's was accepted. Id. Ybor's petition challenged its competitor's accepted application, and asserted that its competitor's application was scored in a manner inconsistent with the agency's mandate. Id. Ybor argued that, if its competitor's application had been properly scored, then Ybor, rather than the competitor, would have been entitled to the funding. Id.

Taking the petition as true, the First District held that Ybor had a substantial interest in ensuring that the agency was "provid[ing] and promot[ing] the public welfare by administering the governmental function of financing ... housing ... in Florida." Id. (quoting §§ 420.504(1), .502(7), Fla. Stat.). "Common sense and logic dictate that if such a program of economic incentives ... is to succeed, the process of determining who is qualified ... must be administered fairly, honestly, and consistently according to the rules that [the agency] is charged with implementing." Id. at 346. If Ybor lacked standing, "[a]n agency could act fraudulently, illegally, arbitrarily, dishonestly, or inconsistently with impunity." Id.

Following the logic of Ybor , an economic interest in the outcome does not disqualify Bluefield from standing. Bluefield, like Ybor, is a for-profit company. The purpose of the statute in Ybor was to provide affordable housing through financing affordable housing to low income applicants, provided by private companies that were the recipients of government grants. The purpose of the statute at issue here is the protection of water resources and the ecosystem through the use of mitigation, funded by the sale of mitigation credits. Bluefield's interests are greater than purely economic: mitigation banks were created and are regulated for the very purpose of mitigating the adverse impacts to wetlands caused by construction and development. Bluefield argues that, by choosing an unlawful mitigation option, FDOT and the District are subverting the statutory scheme. Bluefield is a mitigation bank located within the same regional watershed and service area as the project, creating a substantial interest in the enforcement of statutory compliance for mitigation for this project.

Another case applicable to the instant situation is Town of Palm Beach v. State Department of Natural Resources , 577 So.2d 1383 (Fla. 4th DCA 1991). There, we reversed an agency determination that certain property owners did not have a substantial interest in an agency's eventual determination that certain landscaping activities on the beach were outside of its jurisdiction, thereby not requiring a permit. Id. at 1384-85. The petitioning parties included the Town of Palm Beach, which owned Phipps Ocean Park within 1000 feet of the condominium and alleged that the Park would suffer damage if the landscaping activity continued, and Dave Darwin, who owned a property within 1000 feet of the condominium and alleged that his property would be damaged by the continued disruption of the dune system. Id. at 1385. We found that both of these petitioners had a substantial interest in challenging the agency's determination because

the statute and administrative proceedings are designed to protect the entire beach/dune system of the state of Florida, and [the petitioners] allege that [the landscaping activities] will harm the dune system in the area of [the condominium's] property. Therefore [the petitioners] have made sufficient allegations to meet the test of standing under Agrico and are entitled to a hearing to present evidence to support their allegations of standing.

Id. at 1388.

As in Town of Palm Beach , the distance from the petitioning party to the point of environmental damage (here, the FDOT road-widening project) was sufficiently close that the harm alleged can be reasonably expected. That is to say, Bluefield, like the petitioners in Town of Palm Beach , are within the "zone of interest" of the proposed environmental permit. See Vill. of Key Biscayne v. Dep't of Envtl. Prot. , 206 So.3d 788, 790 (Fla. 3d DCA 2016) (citing Hamilton Cty. Bd. of Cty. Comm'rs v. State Dep't of Envtl. Regulation , 587 So.2d 1378 (Fla. 1st DCA 1991) ). An argument of potential environmental injury to Bluefield's conservation acreage is reasonable based on Bluefield's location within the same regional watershed and mitigation service area. That is not to say that mitigation banks within a service area will have standing to challenge a permit on that fact alone, but Bluefield is also located in close proximity to the project within the same regional watershed, and it could reasonably be affected by the issuance of a permit to allow Dupuis, without the statutory compliance required, to provide mitigation in the same service area and regional watershed.

In Rosenzweig , the First District used the Agrico test to determine whether a bicyclist organization had standing to challenge FDOT's interpretation of a statute specifically relating to bicycle lanes. Rosenzweig , 979 So.2d at 1053. The First District noted that the first prong of the Agrico test was satisfied because the organization's members "will not have a delineated path on which to ride their bicycles if bicycle lanes are not constructed pursuant to [FDOT's] standards." Id. at 1054. The second prong was satisfied because: "Reason dictates that a bicyclist organization ... can demonstrate that a substantial number of its members will be affected by [FDOT's] decisions relating to the construction of bicycle paths." Id. In finding the organization had standing, the First District stated that "it is clear that if anyone has the ability to challenge [FDOT's] interpretation of section 335.065, which specifically relates to bicycle lanes, it would be those seriously involved in bicycling." Id.

Similarly here, should mitigation by Dupuis be unlawful, it subjects the shared service area and regional watershed to harm, including degradation of the mitigation bank that Bluefield is entrusted to protect and manage into perpetuity. Harm to the wetlands is the injury in fact, and Bluefield has a substantial interest in ensuring compliance with the statutory scheme. Here too, it can be reasonably argued that if anyone has the ability to challenge FDOT's compliance with the "must consider" provision, it would be those permitted mitigation banks like Bluefield, which seek to challenge a permit that purportedly allows unlawful mitigation within its service area and regional watershed.

Conclusion

As set forth above, we reverse the District's dismissal, and find that the four corners of the petition adequately alleged standing because it was reasonably foreseeable that Bluefield's conservation acreage could be adversely affected by the degradation of the regional watershed and ecosystem caused by the selection of a purportedly unlawful mitigation option. We thus remand for a formal administrative proceeding on Bluefield's petition.

Reversed and remanded .

Taylor and Klingensmith, JJ., concur.

      A third proffered rationale for standing, that Bluefield had "preferred status," is rejected without further discussion or analysis.


text:
    Christopher HAGGAN, Petitioner, v. STATE of Florida, Respondent.
    Case No. 5D18-3267
    District Court of Appeal of Florida, Fifth District.
    Opinion filed November 5, 2018
    Robert Wesley, Public Defender, and Robert Adams, Assistant Public Defender, Orlando, for Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bonnie Jean Parrish, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

Christopher Haggan petitions for an emergency writ of habeas corpus, challenging his pretrial detention without bond. We grant the petition and remand for further proceedings.

Haggan was initially granted and posted bond after his arrest. However, he failed to appear at a trial management conference and the court issued a capias. Almost one month later, Haggan turned himself in and moved to set bond in a facially sufficient motion, alleging, among other things, that his failure to appear was unintentional. The next day, the trial court denied Haggan's motion without a hearing and without making any findings.

In his petition, Haggan argues that the trial court was required to hold a hearing to determine whether his failure to appear was willful, as well as whether any reasonable conditions of release would ensure his future appearances. The State agrees that the trial court should have granted a hearing on Haggan's motion.

After a defendant fails to appear, if he seeks bond and claims that his failure was unintentional, the court must hold a hearing. The court must then determine whether the failure was willful, and whether any reasonable conditions of pretrial release exist. See, e.g., Prokopishen v. State, 82 So.3d 1046, 1047 (Fla. 4th DCA 2011) (citing State v. Blair, 39 So.3d 1190, 1191 (Fla. 2010) ). Florida Rule of Criminal Procedure 3.131(c) addresses Haggan's precise situation, providing that a defendant who at first fails to appear and then "voluntarily appears or surrenders" will not be eligible for a recognizance bond if the failure to appear was "willfully and knowingly" done. In this case, the factual question of Haggan's intent remains unresolved, and the trial court will need to hear that issue to decide it. See Blair, 39 So.3d at 1194-95 ; Harvey v. State, 238 So.3d 353, 354-55 (Fla. 3d DCA 2017) (concerning defendant who was released on bond and failed to appear the day after Hurricane Irma); Prokopishen, 82 So.3d at 1047. Therefore, we grant the petition and remand for the trial court to conduct a hearing and determine whether Haggan's failure to appear was willful.

PETITION GRANTED.

TORPY, BERGER, and HARRIS, JJ., concur.


author: Per Curiam.

text:
    AMERICAN HERITAGE LIFE INSURANCE COMPANY, Petitioner, v. Norma Jo SMITH and DGT, Inc., Respondents.
    No. 1D18-844
    District Court of Appeal of Florida, First District.
    November 13, 2018 Rehearing Denied January 22, 2019
    Christopher M. Cobb and Kayla A. Haines of Jimerson & Cobb, P.A., Jacksonville, for Petitioner.
    Alexander D. Brown and Adam S. Goldman of The Concept Law Group, P.A., Fort Lauderdale, for Respondents.
   Per Curiam.

In this certiorari proceeding, Petitioner seeks review of the order allowing Respondents to amend their counterclaim against Petitioner to assert a claim for punitive damages. The scope of our review is limited to determining whether the trial court complied with the procedural requirements in section 768.72, Florida Statutes ; we do not have jurisdiction to review the sufficiency of the evidence proffered to support the punitive damages claim. See Simeon, Inc. v. Cox , 671 So.2d 158, 160 (Fla. 1996) ; Globe Newspaper Co. v. King , 658 So.2d 518, 520 (Fla. 1995) ; Munroe Health Systems, Inc. v. Estate of Gonzales , 795 So.2d 1133, 1134 (Fla. 5th DCA 2001).

Here, the trial court complied with the applicable procedural requirements. Respondents proffered evidence to support their punitive damage claim, and after a hearing, the trial court entered a thorough order finding the proffer to be sufficient to support the claim. Accordingly, the petition for writ of certiorari is DENIED .

B.L. Thomas, C.J., and Wetherell and Winsor, JJ., concur..


author: Forst, Alan O., Associate Judge.

text:
    WELLS FARGO BANK, N.A., Appellant, v. Roy F. SMITH, Jr., AS TRUSTEE under the Provisions OF a Trust Agreement dated October 25, 2005, known as the ROY F. SMITH, JR. TRUST, et al., Appellee.
    NO. 1D17-236
    District Court of Appeal of Florida, First District.
    November 20, 2018 Rehearing Denied February 12, 2019
    Michael K. Winston and Dean A. Morande of Carlton Fields Jorden Burt, P.A., West Palm Beach, for Appellant.
    R. Kyle Gavin of Liles Gavin, P.A., Jacksonville; and William R. Blackard, Jr., Jacksonville, for Appellee.
   Forst, Alan O., Associate Judge.

Appellant Wells Fargo Bank, N.A. ("the Bank") appeals a successor judge's order awarding attorney's fees and costs to appellee Roy F. Smith, Jr., as trustee of the Roy F. Smith, Jr. Trust ("the Trust"). The original judge had summarily denied the Trust's motion for fees and motion for rehearing of the order denying fees. A successor judge later awarded fees to the Trust following the Trust's successful motion to disqualify the original judge and subsequent motion seeking to vacate the original judge's orders on the motion for fees. Because the trial court lost jurisdiction after the denial of rehearing, and should have conducted an evidentiary hearing on reinstating its jurisdiction, we reverse the order on appeal and remand for further proceedings. Accordingly, it is unnecessary to address the remaining issue on appeal.

Background

After the original trial judge dismissed the Bank's underlying foreclosure case against the Trust, the Trust moved for its attorney's fees and costs. Without explanation, the original judge denied the Trust's motion. The Trust then moved for rehearing, arguing it had no notice or opportunity to be heard on the fees issue. The original judge denied this motion, again without conducting a hearing.

The following day, the Trust filed a motion for recusal and disqualification of the original judge. The Trust asserted that it had just discovered an improper ex parte communication between the Bank's counsel and the original judge, and that this communication resulted in the order denying its motion for fees. The Trust argued that the orders denying its fees motion and a rehearing should be vacated and the motion for fees should be set for a proper hearing before a different judge. One week later, the original judge granted the request for disqualification and recused himself from the case.

Citing Florida Rule of Judicial Administration 2.330(h), the Trust next filed a Motion to Find Void and/or Vacate, Rescind, Set Aside, Reconsider and/or Rehear the original judge's order denying its motion for fees and subsequent order denying rehearing. In that motion, the Trust asserted that both of the prior judge's orders were void because both were entered without notice or a hearing. A successor judge granted the Trust's motion and vacated both orders. After a hearing on the request for fees before another successor judge, an order was entered awarding fees and costs to the Trust.

Analysis

"Generally, a trial court's determination on jurisdiction is reviewed de novo." Giuffre v. Edwards , 226 So.3d 1034, 1037 (Fla. 4th DCA 2017).

The Bank argues the successor trial judge lacked jurisdiction to vacate the original judge's orders denying fees, because the case was already final at that time, and the Trust did not file a proper motion pursuant to Florida Rule of Civil Procedure 1.540. The Bank also argues the trial court lacked jurisdiction to rule on the motion for disqualification once it had denied rehearing.

We agree with the Bank that the trial court lost jurisdiction after its denial of rehearing. See Shelby Mut. Ins. Co. of Shelby, Ohio v. Pearson , 236 So.2d 1, 3 (Fla. 1970) ("Except as provided by Rules 1.530 and 1.540, Florida Rules of Civil Procedure, the trial court has no authority to alter, modify or vacate an order or judgment."); Kippy Corp. v. Colburn , 177 So.2d 193, 199 (Fla. 1965) ("[A] trial court has no authority to modify, amend or vacate a final order, except in the manner and within the time provided by rule or statute ...."); Arleo v. Garcia , 695 So.2d 862, 862 (Fla. 4th DCA 1997) ("Upon entering the order on respondent's first motion for rehearing, the trial court lost jurisdiction to rule on the second motion for rehearing and to consider the merits of the case.").

However, we conclude that the Trust's subsequent Motion to Find Void and/or Vacate, Rescind, Set Aside, Reconsider and/or Rehear the original judge's orders on fees contained sufficient allegations to be considered a rule 1.540 motion, which could reinstate the court's jurisdiction. See Fla. R. Civ. P. 1.540(b) (providing a mechanism to "relieve a party or a party's legal representative from a final judgment" based on: "(1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial or rehearing; (3) fraud ... misrepresentation, or other misconduct of an adverse party; [or] (4) that the judgment or decree is void ....").

It is well-settled Florida law that a pleading will be construed according to its substance rather than its form. See Estate of Willis v. Gaffney , 677 So.2d 949, 951 (Fla. 2d DCA 1996). "Thus, the character of a motion will depend upon its grounds or contents, and not on its title." Id. (citation and internal quotation marks omitted).

Here, although the Trust mistitled its motion and did not mention the proper rule, we conclude that it was in fact seeking relief under rule 1.540(b), by alleging that the original judge's orders were void. Accordingly, the motion was properly before the court and should have prompted an evidentiary hearing. See, e.g. , Cottrell v. Taylor, Bean & Whitaker Mortg. Corp. , 198 So.3d 688, 691 (Fla. 2d DCA 2016) ("Where a motion under rule 1.540(b) sets forth 'a colorable entitlement to relief,' the trial court should conduct an evidentiary hearing to determine whether such relief should be granted." (citation omitted) ).

As noted above, the Trust's motion to disqualify the original judge was filed before its Motion to Find Void and/or Vacate, Rescind, Set Aside, Reconsider and/or Rehear. The Bank is correct that the original judge lacked jurisdiction to hear this motion, and we thereby vacate the original judge's recusal order. See Nilio v. State , 143 So.3d 424, 426 (Fla. 1st DCA 2014) (holding that the petitioner's motion for disqualification "having been filed at a time when the trial court's jurisdiction had not been invoked for any other purpose, was void ab initio. "); cf. Kozell v. Kozell , 142 So.3d 891, 894 (Fla. 4th DCA 2014) (declining to exercise jurisdiction to review the order denying the husband's motion to disqualify the trial judge, "which he filed a week and a half after the court denied his motion for rehearing," but noting that the husband's motion was untimely "because the husband did not file the motion to disqualify until after the proceedings had already ended").

Conclusion

Based on the foregoing discussion, we reverse and remand with directions to conduct an evidentiary hearing on the merits of the Trust's Motion to Find Void and/or Vacate, Rescind, Set Aside, Reconsider and/or Rehear the court's orders denying the Trust's motion for attorney's fees.

Rowe and Ray, JJ., concur.

      Rule 2.330(h), "Prior Rulings," states that "[p]rior factual or legal rulings by a disqualified judge may be reconsidered and vacated or amended by a successor judge based upon a motion for reconsideration, which must be filed within 20 days of the order of disqualification, unless good cause is shown for a delay in moving for reconsideration or other grounds for reconsideration exist."


author: LAGOA, J.

text:
    Giuliana LLANSO, Appellant, v. Jose GOMEZ DE CORDOVA, Appellee.
    No. 3D18-100
    District Court of Appeal of Florida, Third District.
    Opinion filed December 19, 2018.
    Law Offices of Paul Morris, P.A., and Paul Morris, for appellant.
    Marks & West, and Carolyn W. West ; Valdespino & Associates, P.A., and Jacqueline M. Valdespino, for appellee.
    Before LAGOA, SCALES, and LINDSEY, JJ.
   LAGOA, J.

Giuliana Llanso, the former wife ("Llanso"), appeals from the trial court's order granting Jose Gomez de Cordova's, the former husband ("Cordova"), motion to strike/dismiss Llanso's motion to vacate the final judgment of dissolution of marriage (the "Final Judgment") as void. On appeal, Llanso argues that the Final Judgment, as well as orders entered subsequent to the Final Judgment, are void under Florida Rule of Civil Procedure 1.540(b)(4), as the Final Judgment was entered while an interlocutory appeal in the case was pending before this Court. We reverse the entry of Final Judgment and subsequent orders entered by the trial court, as the trial court lacked jurisdiction to render a final order disposing of the case while an appeal was pending before this Court.

I. STANDARD OF REVIEW

Generally, the standard of review for a trial court's ruling on a party's motion for relief from judgment made pursuant to Florida Rule of Civil Procedure 1.540(b) is an abuse of discretion. Nationstar Mortg., LLC v. Diaz, 227 So.3d 726, 729 (Fla. 3d DCA 2017). "However, '[a] decision whether or not to vacate a void judgment is not within the ambit of a trial court's discretion; if a judgment previously entered is void, the trial court must vacate the judgment.' " Id. (alteration in original) (quoting Wiggins v. Tigrent, Inc., 147 So.3d 76, 81 (Fla. 2d DCA 2014) ). Therefore, we review de novo a trial court's ruling on whether a judgment is void. Id.

II. FACTUAL AND PROCEDURAL BACKGROUND

Of significance to this appeal, on August 14, 2015, Llanso appealed both the trial court's order denying her Motion for Interim Partial Distribution of Marital Assets, or in the Lesser Alternative for Temporary Attorney's Fees, Suit Money, and Costs, and the trial court's order granting Cordova's Motion to Compel Sale of Real Property. On November 13, 2015, while this interlocutory appeal was still pending before this Court in case number 3D15-1894, the parties announced to the trial court that they had reached a marital settlement agreement and read into the record the detailed terms of that agreement. The parties further addressed the appeal in case number 3D15-1894 before this Court, specifically advising the trial court that:

[CORDOVA'S COUNSEL]: ... There is currently a pending appeal which will be-I will advise the 3rd DCA. My brief is due on the 16th. I will advise the 3rd DCA that the parties have reached a settlement. Therefore, the appeal that is taken will now be moot.
....
[LLANSO'S COUNSEL]: It was a-formally, we advise them it was settled. Therefore, it is moot.

On December 4, 2015, the trial court entered the Final Judgment, which incorporated and attached the November 13, 2015, marital settlement agreement. The parties, however, did not notify this Court prior to the trial court's entry of the final judgment on December 4, 2015, that the appeal was moot and should be dismissed. Instead, on December 9, 2015, five days after the entry of Final Judgment, Llanso filed a notice of voluntary dismissal of the interlocutory appeal, which this Court granted on the same date.

Subsequent to the entry of the Final Judgment, Llanso performed pursuant to the terms of the marital settlement agreement by selling the former marital home. The marital settlement agreement also provided that each party was responsible for his or her own attorney's fees and accountant fees. In addition, the trial court entered several subsequent orders stemming from the marital settlement agreement and the Final Judgment that involved liens against Llanso by two law firms formerly representing Llanso and Llanso's former financial accounting firm. On November 20, 2017, Llanso moved to vacate the Final Judgment pursuant to Florida Rule of Civil Procedure 1.540(b)(4), contending that the Final Judgment was void and a nullity because, pursuant to Florida Rule of Appellate Procedure 9.130(f), the trial court lacked subject matter jurisdiction to enter the Final Judgment during the pendency of a non-final appeal. Llanso further contended that any orders entered after the entry of the Final Judgment were void as well and had no legal force or effect. Cordova moved to strike/dismiss the motion to vacate and following a hearing, the trial court granted Cordova's motion. This timely appeal ensued.

III. ANALYSIS

Florida Rule of Appellate Procedure 9.130(f) prohibits a trial court "from entering an order disposing of a case during the pendency of an interlocutory appeal." Publix Supermarkets, Inc. v. Conte, 169 So.3d 1265, 1266 (Fla. 4th DCA 2015). Indeed, "an order entered without jurisdiction is a nullity, and cannot be considered harmless error." Dragomirecky v. Town of Ponce Inlet, 891 So.2d 633, 634 (Fla. 5th DCA 2005) ; see also Napoleonic Soc. of Am., Inc. v. Snibbe, 696 So.2d 1243, 1243 (Fla. 2d DCA 1997) (finding that final judgment entered during pendency of appellate review of a non-final order was a nullity); Cappetta v. Fields, 683 So.2d 543, 544 (Fla 3d DCA 1996). Because the trial court entered a final judgment disposing of this case before this Court dismissed the interlocutory appeal, the trial court lacked jurisdiction to enter the Final Judgment and the subsequent orders stemming from the Final Judgment, and reversal is warranted.

We are, however, sympathetic to the trial court's frustration with trial counsel. "When a pending appeal becomes moot by reason of a settlement, rule 9.350(a) requires counsel to notify the appellate court immediately by filing a signed stipulation for dismissal of the appeal." Merkle v. Guardianship of Jacoby, 912 So.2d 595, 600 (Fla. 2d DCA 2005). There is no explanation in the record as to why neither counsel for Llanso nor for Cordova immediately notified this Court of the settlement. The record is also devoid of any explanation as to why neither counsel advised the trial court that the appeal had not yet been dismissed prior to the entry of final judgment.

As our sister court has explained:

This may all sound like legal gobbledegook to some since, upon remand, the trial court can be expected to re-enter a similar final judgment. We concede that may be true, but jurisdiction is not a question a court can take or leave, and a judgment entered without jurisdiction is void.

Garcia-Lawson v. Lawson, 82 So.3d 137, 137 (Fla. 4th DCA 2012) (quoting Esposito v. Horning, 416 So.2d 896, 898 (Fla 4th DCA 1982) ).

Accordingly, we reverse the Final Judgment and subsequent orders and remand for further proceedings. Our reversal, however, is without prejudice to the trial court's re-entry of a similar final judgment and subsequent orders as the interlocutory appeal has been dismissed. See Connor Realty, Inc. v. Ocean Terrace N. Condo. Ass'n, 572 So.2d 4, 4 (Fla. 4th DCA 1990)

(reversing the trial court for entering final judgment while an appeal from a non-final order was pending and remanding for further proceedings including reinstatement of final judgment on a date subsequent to dismissal of appeal); Hirschhorn v. Superior Realty of Fla., Inc., 450 So.2d 510, 511 (Fla. 4th DCA 1984) (same).

Reversed and remanded for further proceedings.

      Rule 9.130(f) provides:
      In the absence of a stay, during the pendency of a review of a non-final order, the lower tribunal may proceed with all matters, including trial or final hearing, except that the lower tribunal may not render a final order disposing of the cause pending such review absent leave of the court.

      Indeed, at oral argument, counsel for Llanso conceded that nothing would prevent the trial court from re-entering a similar final judgment.


text:
    Anthony JEAN, Petitioner, v. STATE of Florida, Respondent.
    No. 1D18-3371
    District Court of Appeal of Florida, First District.
    December 7, 2018 Rehearing Denied February 7, 2019
    Anthony Jean, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   Per Curiam.

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

Wolf, Makar, and M.K. Thomas, JJ., concur.