author: DOHERTY, P.A., Associate Judge.

text:
    Katherine STRONG, Appellant, v. Cynthia UNDERWOOD and Stephen R. Underwood, Appellees.
    Case No. 5D17-3586
    District Court of Appeal of Florida, Fifth District.
    Opinion filed June 21, 2019 Rehearing Denied July 15, 2019
    Michael M. Brownlee, of The Brownlee Law Firm, P.A., Orlando, for Appellant.
    Kristin A. Norse, Stuart C. Markman, of Kynes, Markman & Felman, P.A., Tampa, for Appellees.
   DOHERTY, P.A., Associate Judge.

On July 11, 2010, Cynthia Underwood was driving her motorcycle when she collided with a sport utility vehicle driven by Katherine Strong. Mrs. Underwood and her husband, Stephen R. Underwood, sued Ms. Strong, alleging that Ms. Strong had negligently operated her vehicle, thereby causing the collision and severely injuring Mrs. Underwood. Mr. Underwood sought loss of consortium damages. The case proceeded to trial solely on the issue of liability. The jury found Ms. Strong fifty percent at fault. She raises several issues on appeal, one of which is dispositive. We agree with Ms. Strong that the trial court erred in refusing to admit a medical record containing a statement made by Mrs. Underwood to her treating physician concerning how the accident occurred. We reverse for a new trial on liability.

At trial, the parties vigorously contested liability, with each asserting the other caused the accident by crossing the road's center line. In support of her position, Ms. Strong sought to admit a medical record from one of Mrs. Underwood's treating physicians, Dr. Michael Cheatham. During a pretrial deposition, Dr. Cheatham testified that according to his medical record, he examined Mrs. Underwood the day after the accident. At that time, he recorded the following entry in the medical record:

Ms. Underwood is a 44-year-old white female who was the helmeted rider of a motorcycle that was involved in a crash yesterday. She states that one of the tires on her motorcycle blew, and she collided head-on with the SUV at an unknown rate of speed.

Dr. Cheatham had no independent recollection of Mrs. Underwood or his conversation with her. He agreed the statement could have been made directly to him or one of several other doctors and that it was "more likely than not" that Mrs. Underwood made the statement to a member of the trauma team. In any event, Dr. Cheatham testified that he would not normally write " 'she states' unless a patient ... verbalize[d] [the statement] to" him. The trial court excluded the statement as inadmissible hearsay, finding the source of the statement was unknown. As a result, Dr. Cheatham did not testify at trial and neither the statement nor the medical record was introduced at trial.

This Court reviews a trial court's decision on the admissibility of testimony under an abuse of discretion standard. Dorsey v. Reddy , 931 So. 2d 259, 266 (Fla. 5th DCA 2006). That discretion, however, is limited by the rules of evidence. Bank of N.Y. Mellon v. Johnson , 185 So. 3d 594, 597 (Fla. 5th DCA 2016). Furthermore, "the question of whether evidence falls within the statutory definition of hearsay is a matter of law, subject to de novo review." Deutsche Bank Nat'l Tr. Co. v. Alaqua Prop. , 190 So. 3d 662, 664 (Fla. 5th DCA 2016) (quoting Burkey v. State , 922 So. 2d 1033, 1035 (Fla. 4th DCA 2006) ).

Ms. Strong argues that Mrs. Underwood's statement should have been admissible as the admission of a party-opponent contained in a business record. She further argues the source of the statement was known because the medical record indicates the statement came from Mrs. Underwood. We agree.

The following hearsay exceptions to the Florida Evidence Code apply:

90.803 Hearsay exceptions; availability of declarant immaterial.- The provisions of s. 90.802 to the contrary notwithstanding, the following are not inadmissible as evidence, even though the declarant is available as a witness:
....
(6) RECORDS OF REGULARLY CONDUCTED BUSINESS ACTIVITY.-
(a) A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, opinion, or diagnosis, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity and if it was the regular practice of that business activity to make such memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness ....
....
(18) ADMISSIONS.-A statement that is offered against a party and is:
(a) The party's own statement in either an individual or a representative capacity[.]

§ 90.803(6)(a), (18)(a), Fla. Stat. (2016).

Medical records are admissible under the business records exception. Love v. Garcia , 634 So. 2d 158, 159-60 (Fla. 1994). Therefore, Dr. Cheatham's medical record was admissible. Whether Mrs. Underwood's hearsay statement contained within the medical record was admissible is a separate matter. A patient's statements contained within medical records are admissible, provided the statements themselves fall under a separate hearsay exception. See, e.g. , Otis Elevator Co. v. Youngerman , 636 So. 2d 166, 167 (Fla. 4th DCA 1994) (holding plaintiff's statements in medical record admissible as statements made for purposes of medical diagnosis and treatment); Wilkinson v. Grover , 181 So. 2d 591, 593-94 (Fla. 3d DCA 1965) (holding statement in medical record admissible as admission by party-opponent). The statement at issue here indicated the accident occurred after one of the tires on Mrs. Underwood's motorcycle blew, causing her to collide with Ms. Strong's vehicle. Ms. Strong sought to use this statement against Mrs. Underwood at trial. Accordingly, as it was Mrs. Underwood's statement and offered against her, it falls within the hearsay exception set forth at section 90.803(18)(a), Florida Statutes.

Although the statement was an admission by a party-opponent and contained within a medical record, the trial court found the statement inadmissible because it believed the source of the statement was unknown. In making this finding, the trial court primarily relied on Andreaus v. Impact Pest Management, Inc. , 157 So. 3d 442, 444-45 (Fla. 2d DCA 2015). The court's reliance on Andreaus is misplaced.

In Andreaus , the plaintiff's medical records contained a statement that she slipped and fell on a puddle of water, rather than on pesticide, as she later claimed in her complaint. 157 So. 3d at 443. Importantly, and unlike the instant case, there was no evidence in the record that the plaintiff had made the statement contained in the medical records, the plaintiff denied making the statement, and there was no witness who could testify about who made the statement. Id. The Second District held the statement was inadmissible hearsay because the source of the statement was unknown. Id. at 445. Unlike the situation in Andreaus , here, the medical record itself states the source of the statement was Mrs. Underwood: "Mrs. Underwood is a 44-year-old white female who was the helmeted rider of a motorcycle that was involved in a crash yesterday. She states that one of the tires on her motorcycle blew ...." (Emphasis added). Further, Dr. Cheatham testified he dictated and signed the medical report after examining Mrs. Underwood and would not normally write " 'she states' unless a patient ... verbalizes [the statement] to" him. As such, there is evidence Mrs. Underwood made the statement.

We reject the Underwoods' argument that the statement was not admissible because it may have been transmitted through another member of the hospital staff to Dr. Cheatham, creating a double hearsay problem. "[A] statement is not rendered inadmissible merely because it passed through two declarants." Johnson v. State , 969 So. 2d 938, 949 (Fla. 2007). Rather, the statement will be admissible as long as each level of hearsay is covered by an exception. Gosciminski v. State , 994 So. 2d 1018, 1026 (Fla. 2008). Here, irrespective of which trauma team employee actually took Mrs. Underwood's statement, the conveyance of the statement to Dr. Cheatham would have occurred between two employees of the same company in the course of business. Dr. Cheatham would then have prepared the report "from information transmitted by[ ] a person with knowledge" of the statement. See § 90.803(6), Fla. Stat. (2016). As such, even if the statement was not made directly to Dr. Cheatham, each layer of hearsay is covered by the business records exception.

We also reject the Underwoods' arguments that the statement is unsupported by corroborating evidence, untrustworthy, and unfairly prejudicial. The lack of corroborating evidence that the accident was caused by a tire blowout goes to the weight of the statement, not its admissibility. See, e.g. , Gore v. State , 599 So. 2d 978, 983 (Fla. 1992) (noting that although defendant's admission seemed to conflict with other evidence, this was matter "to be considered by the jury in evaluating the weight," not admissibility of testimony). Additionally, there is no requirement that a party admission be trustworthy to be admissible. See Ring Power Corp. v. Condado-Perez , 219 So. 3d 1028, 1034 (Fla. 2d DCA 2017) (citing Metro. Dade Cty. v. Yearby , 580 So. 2d 186, 188 (Fla. 3d DCA 1991) ). Furthermore, medical records are considered inherently trustworthy unless their trustworthiness is challenged. Phillips v. Ficarra , 618 So. 2d 312, 313 (Fla. 4th DCA 1993). The Underwoods have not demonstrated the medical record is untrustworthy. The statement is likewise not unfairly prejudicial. Its high probative value as a contradiction of Mrs. Underwood's subsequent version of the accident is not substantially outweighed by the danger of unfair prejudice. See § 90.403, Fla. Stat. (2016) ("Relevant evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice ....").

Having concluded the trial court erred in excluding the statement, we must determine whether the error was harmless. Error below will be deemed harmless if the beneficiary of the error can prove "that there is no reasonable possibility that the error contributed to the verdict." See Special v. W. Boca Med. Ctr. , 160 So. 3d 1251, 1256 (Fla. 2014) (citing State v. DiGuilio , 491 So. 2d 1129, 1135, 1139 (Fla. 1986) ). The error in excluding the statement in this case was not harmless.

As noted, liability was vigorously contested at trial, with each party claiming the other crossed the center line. Witness credibility was crucial. Had Mrs. Underwood's medical record statement been introduced, it would have called into question her trial version of the accident that Ms. Strong's vehicle crossed the road's center line, whereas she never left her lane. Accordingly, the statement goes to the heart of the controversy and the Underwoods cannot demonstrate there is no reasonable possibility the error contributed to the verdict. Had the jury heard this statement, it likely would have affected Mrs. Underwood's credibility and the credibility of her version of the accident. The exclusion of the statement, therefore, constitutes reversible error. See Ring Power Corp. , 219 So. 3d at 1032-35 (holding that failure to admit statement made by plaintiff contained in medical records was reversible error because statement directly contradicted plaintiff's version of accident).

The medical record and Mrs. Underwood's statement fall within hearsay exceptions. There is no evidence the medical record is untrustworthy. The statement is not unfairly prejudicial, and exclusion of the statement was not harmless, given the hotly contested issue of liability. Accordingly, the trial court erred in excluding Mrs. Underwood's statement in the medical record and Ms. Strong is entitled to a new trial on liability.

REVERSED and REMANDED.

BERGER and GROSSHANS, JJ., concur.

      The Underwoods cite Castillo v. State , 955 So. 2d 1252, 1254 (Fla. 1st DCA 2007), for the proposition that medical records should be excluded when they are not trustworthy. But in Castillo , the medical record was not trustworthy because it was created by a nurse who was not qualified to complete the record. 955 So. 2d at 1254. There is no evidence here that Dr. Cheatham was unqualified to complete the record.

      Ms. Strong also challenges the trial court's granting of a motion in limine that excluded the investigating officer from testifying about statements made by two witnesses. In granting the motion, the trial court precluded the officer from testifying about the witnesses' statements in the context of the officer's accident investigation and his opinion about the cause of the accident. We find no error in the trial court's ruling limiting the officer's investigation testimony in this context. We note, however, that the trial court did not, and was not requested to, address use of the witnesses' statements as rebuttal or impeachment evidence, which may have been permissible pursuant to existing case law. See Stewart v. Draleaus , 226 So. 3d 990 (Fla. 4th DCA 2017) (holding that Florida's Accident Report Privilege, section 316.066(4), Florida Statutes (2016), does not prohibit impeachment of witnesses to accident using their prior inconsistent statements); see also Sottilaro v. Figueroa , 86 So. 3d 505 (Fla. 2d DCA 2012) (same).


source: Caselaw Access Project

author: EMAS, C.J.

license: Public Domain

text:
    Cheyenne GONZALEZ, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-479
    District Court of Appeal of Florida, Third District.
    Opinion filed June 21, 2019.
    Carlos J. Martinez, Public Defender, and James Odell, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Kayla Heather McNab, Assistant Attorney General, for appellee.
    Before EMAS, C.J., and MILLER and LOBREE, JJ.
   EMAS, C.J.

Following a jury trial, Cheyenne Gonzalez was convicted of grand theft (a third-degree felony) and sentenced to five years in prison followed by five years' probation. On appeal, Gonzalez contends that the trial court erred in denying his motion for judgment of acquittal, in which he requested that the third-degree felony grand theft charge be reduced to second-degree misdemeanor petit theft, because the State failed to present competent substantial evidence that the value of the stolen property exceeded the felony threshold of $300 under section 812.014(2)(c) 1, Florida Statutes (2017). We agree with Gonzalez, reverse the judgment and sentence, and remand for the trial court to enter an amended judgment for second-degree petit theft, a second-degree misdemeanor. The court shall also conduct a new sentencing hearing, as the current sentence exceeds the statutory maximum for second-degree petit theft. We expedited this appeal upon motion of Gonzalez, and direct the trial court to act with all deliberate speed on remand.

FACTS

The victim was dining at a restaurant when Gonzalez stole her Louis Vuitton Neverfull purse. The purse, which was less than a year old, contained the victim's iPhone 6, Gucci Wallet, and keys. The victim testified to the original purchase price of the purse ($1,500) and the wallet ($700).

During direct examination, the State asked the victim: "[B]ased off your knowledge and research that you conducted, what would be the cost to obtain or to replace the purse?" Gonzalez objected on hearsay grounds and the trial court judge overruled the objection, stating the victim could answer "based on her experience." The victim responded: "I did actually look on eBay to see where to resell the purse, what that might cost, and that is around a thousand dollars retail value." In like manner, and again over objection, the victim testified how she determined the replacement value of the wallet, which she said would be "about $400."

After the State rested, Gonzalez moved for judgment of acquittal on the grand theft charge, contending that the State failed to establish the $300 value threshold to prove felony grand theft, requiring that the charge be reduced to second-degree petit theft. The trial court denied the motion.

Gonzalez was convicted of grand theft. The court sentenced Gonzalez to a five-year mandatory minimum as a habitual violent felony offender followed by five years of probation. Gonzalez renewed his motion for judgment of acquittal which was also denied. This appeal follows.

STANDARD OF REVIEW

While a trial court's decisions on admission of evidence are generally reviewed for an abuse of discretion, "whether a statement is hearsay is a matter of law and is subject to de novo review on appeal." Cannon v. State, 180 So. 3d 1023, 1037 (Fla. 2015). Denial of a motion for judgment of acquittal is likewise reviewed de novo. Pagan v. State, 830 So. 2d 792, 803 (Fla. 2002).

ANALYSIS AND DISCUSSION

In a theft prosecution, the degree of the crime is generally based on the value of the stolen property. Here, the State charged Gonzalez with grand theft, a third-degree felony requiring proof that the value of the stolen items was $300 or more, but less than $5000. See § 812.014(2)(c), Fla. Stat. To prove the value of the stolen items, the State introduced evidence of the stolen items' replacement cost. In doing so, the State improperly relied on the victim's search of eBay sales listings for purses comparable to her Louis Vuitton Neverfull purse. The trial court erred in permitting the introduction of this evidence over the defense's hearsay objection.

" 'Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." § 90.801(1)(c), Fla. Stat. (2018). There is no question that the victim's testimony about a comparable purse's sale price displayed on eBay was intended to prove the truth of the matter asserted: that the actual worth or market value of the property was the sale price listed online. F.T. v. State, 146 So. 3d 1270, 1273 (Fla. 3d DCA 2014) ; see also Phillips v. State, 141 So. 3d 702, 705 (Fla. 4th DCA 2014) (noting: "[T]he victim's reliance on hearsay evidence from websites resembles a witness's reliance on hearsay evidence from a catalog or contacts with non-witnesses ....") The victim's testimony was therefore inadmissible hearsay and Gonzalez's objection should have been sustained.

Because the only relevant evidence on the value of the property at the time of theft was inadmissible hearsay, the trial court erred in denying the original motion for judgment of acquittal. Leggett v. State, 237 So. 3d 1144, 1147 (Fla. 3d DCA 2018).

Theft of property valued at more than $300 but less than $5,000 is grand theft of the third degree. See § 812.014(2)(c) 1., Fla. Stat. " 'Value' [of the stolen property] is defined as 'the market value of the property at the time and place of the offense or, if such cannot be satisfactorily ascertained, the cost of replacement of the property within a reasonable time after the offense.' " Bruce v. State, 276 So.3d 1, 2019 WL 2121652 (Fla. 4th DCA May 15, 2019) (quoting § 812.012(10)(a)(1), Fla. Stat. (2016) ). "Because the value of the stolen items is an essential element of the offense, the value must be established beyond a reasonable doubt." A.D. v. State, 30 So. 3d 676, 677 (Fla. 3d DCA 2010).

The State can establish value by direct testimony from a witness with personal knowledge of the stolen property's fair market value at the time of the theft. See K.W. v. State, 13 So. 3d 90, 91 (Fla. 3d DCA 2009) (holding: "Where a witness has personal knowledge regarding the stolen property, the value of the property may be established by direct testimony of its fair market value"); Bloodsaw v. State, 994 So. 2d 378 (Fla. 3d DCA 2008). As a general rule, "an owner of property is considered to be qualified to testify as to the fair market value of that property at the time of theft." K.F. v. State, 746 So. 2d 493, 494 (Fla. 1st DCA 1999) ; see also A.G. v. State, 718 So. 2d 854 (Fla. 4th DCA 1998).

However, the State did not introduce such testimony in the instant case. Instead, the State attempted to prove fair market value consistent with the Florida Supreme Court's decision in Negron v. State, 306 So. 2d 104 (Fla. 1974), receded from on other grounds, Butterworth v. Fluellen, 389 So. 2d 968 (Fla. 1980). In Negron, the Court established an alternative method for proving fair market value. As later described by the Court in State v. Hawthorne, 573 So. 2d 330, 332 (Fla. 1991) :

In Negron, this Court held that if the value of property is an essential element of a crime, then that value should be based upon the market value of the property at the time of the crime. 306 So. 2d at 108. This Court also announced four factors which the trier of fact can consider in ascertaining market value in such a case: (1) original market cost; (2) manner in which the item was used; (3)
the general condition and quality of the item; and (4) the percentage of depreciation. Id.

In this case, the State presented evidence regarding only the first Negron factor: original market cost. As Gonzalez pointed out in his motion for judgment of acquittal, the State presented no evidence on the manner in which the items were used; their general condition and quality; or the percentage of depreciation. Under these circumstances, the absence of this evidence is fatal to the State's case.

Value is not established "when the State presents mere evidence of the purchase price of the stolen item but no evidence establishing the condition, quality, age, or depreciation of the item at the time it was stolen." Bagnara v. State, 189 So. 3d 167, 171-72 (Fla. 4th DCA 2016) (quotation omitted); compare Walker v. State, 191 So. 3d 949 (Fla. 4th DCA 2016) (holding there was insufficient evidence to establish value where the victim testified that the year-old laptop was purchased for $800, but the State presented no evidence on manner in which the stolen laptop was used, its general condition, or the percentage of depreciation), and Carter v. State, 238 So. 3d 362, 364 (Fla. 1st DCA 2017) (holding there was insufficient evidence to establish value where the State offered "[t]estimony approximating the value of [stolen electronics]" but no evidence about the condition and depreciation of the property), with K.W. v. State, 983 So. 2d 713, 715-16 (Fla. 2d DCA 2008) (holding that there was sufficient evidence to establish value where the phone was only three months old at the time of theft and the State presented evidence of the phone's purchase price and its "brand new" condition at the time of the theft).

The State's reliance on replacement cost evidence was also misplaced because the State never offered evidence that it was impossible to establish the market value of the items. See A.D., 30 So. 3d at 678 (holding: "Replacement cost ... is not appropriate under the theft statute unless the State first presents evidence that the market value could not be satisfactorily ascertained. This step [is] necessary to justify the value of the loss being ascertained by the cost of replacement of the property") (quotation omitted); E.G. v. State, 180 So. 3d 1152 (Fla. 4th DCA 2015) (holding that the State was not entitled to rely on replacement cost of stolen phone because it presented no evidence that the market value of the phone could not be satisfactorily ascertained). Therefore, the victim's testimony regarding the replacement cost of the purse and wallet could not establish value even if that testimony had been admissible.

The only admissible evidence of value in the instant case was the victim's testimony of the original purchase price of the purse ($1,500) and wallet ($700). This was simply insufficient to prove value for purposes of the offense of grand theft. The State therefore failed to introduce any evidence of value of the property at the time of the theft, failed to satisfy Negron's alternative method for proving fair market value, and improperly relied upon hearsay evidence of replacement cost.

In the alternative, the State contends that it established the felony threshold for fair market value because the fair market value "is so obvious as to defy contradiction." For this proposition, the State relies on Sylvester v. State, 766 So. 2d 1223 (Fla. 5th DCA 2000) which, in turn, relied on the Second District's holding in Jackson v. State, 413 So. 2d 112 (Fla. 2d DCA 1982). A brief review of these cases is necessary to understand why Sylvester is not applicable.

In Jackson, the Second District observed that the legislature, in 1977, amended the theft statute to provide an alternative way to determine value in a theft prosecution:

(b) If the value of property cannot be ascertained, the trier of fact may find the value to be not less than a certain amount; if no such minimum value can be ascertained, the value is an amount less than $100.

The Jackson court concluded that the amendment "intended, in limited or unusual circumstances, to broaden the manner of proof of 'minimum' value to enable the trier of fact to determine degrees of theft." Id. at 114.

The Jackson court continued:

In those unusual circumstances where the minimum value of an item of property is so obvious as to defy contradiction, the better rule seems to be that relied upon by the Supreme Court of Illinois in People v. Tassone, 41 Ill.2d 7, 241 N.E.2d 419 (1968). In Illinois it was necessary to prove the value of property stolen was in excess of $150 to constitute a felony. In Tassone the defendant was charged with the felony theft of "a tractor trailer and one lot of merchandise, of the value of more than $150." Id. 241 N.E.2d at 422. No evidence of value was offered. In affirming the defendant's adjudication of guilt, the Illinois Supreme Court said:
It is true that in this case there was no direct proof of value. However, it has been well recognized that judicial notice may be taken of the fact that property has some value, although the courts have been reluctant to take notice of any specific value. ( People v. Kurtz, 37 Ill.2d 103, 224 N.E.2d 817 ; People v. Price, 81 Ill.App.2d 111, 225 N.E.2d 453 ; People v. Kelly, 66 Ill.App.2d 204, 214 N.E.2d 290.) We see no valid reason why notice may not be taken in a case such as this that the property has a value of over $150. Courts do not operate in a vacuum; they are presumed to be no more ignorant than the public generally, and will take judicial notice of that which everyone knows to be true. ( Owens v. Green, 400 Ill. 380, 394, 81 N.E.2d 149.) To say that it is not common knowledge that a large tractor and trailer are worth more than $150 is to close our eyes to reality. We do not take judicial notice of the exact value of the property but we do take notice that it is worth more than $150.

Id. at 114-15 (quotation and citations omitted).

In 2000, the Fifth District followed Jackson's reasoning in Sylvester, the case relied upon by the State here. Sylvester was convicted of third-degree grand theft, for stealing, inter alia: a two-to-three-year old 25-inch Zenith television, a video camera purchased three years earlier for $600, and a tennis bracelet purchased four years earlier for $2500. Sylvester, 766 So. 2d at 1223. Sylvester contended that the trial court erred in denying his motion to reduce the offense to misdemeanor petit theft because the State failed to introduce evidence of the property's value, or evidence regarding the condition and quality of the stolen items or their replacement value or depreciation. The Fifth District affirmed the conviction for felony grand theft, holding that "[t]he items having a combined value in excess of $300 is 'so obvious as to defy contradiction.' See Jackson v. State, 413 So. 2d 112, 114-115 (Fla. 2d DCA 1982)." Sylvester, 766 So. 2d at 1224.

However, eleven years later, in Marrero v. State, 71 So. 3d 881 (Fla. 2011), the Florida Supreme Court overruled Jackson-the very case upon which the Sylvester decision was based. In Marrero, the Florida Supreme Court held:

In Jackson v. State, 413 So. 2d 112, 114 (Fla. 2d DCA 1982), the Second District interpreted section 812.012(9)(b), Florida Statutes (1979), to allow a defendant to be found guilty of theft of property valued at $100 or more "absent any specific proof of value by the state ... when, by the very nature of the property stolen, reasonable persons could not doubt that its value exceeded $100." The Jackson court did note, however, that "[i]n doing so, we stress the fact that this should occur only in those rare instances when the minimum value is undisputable and the jury cannot ascertain a specific value from the evidence or lack of evidence before it." Id. (emphasis supplied).
Jackson improperly breathes an extremely broad interpretation of a narrow statutory provision into the criminal theft statute. Section 812.012(10)(b) provides that "[i]f the value of property cannot be ascertained , the trier of fact may find the value to be not less than a certain amount." (Emphasis supplied.) A plain reading of this criminal theft provision reveals that a jury is only allowed to determine a minimum value instead of an actual value if the value of property cannot be ascertained. Jackson replaces the requirement that the value of the stolen property be impossible to ascertain with a completely unrelated condition of the State's failure to present evidence of value (although capable of valuation) and jurors "could not doubt that its value exceeded" the required amount. See Jackson, 413 So.2d at 112. This misinterpretation of the criminal theft statute is not supported by any authority whatsoever and in fact runs contrary to the plain language of the criminal theft statute and the criminal mischief statute. We therefore disapprove of Jackson's disregard of the impossibility prerequisite articulated in section 812.012(10)(b).

Id. at 888-89.

While it is true that the Marrero decision expressly overruled only Jackson, it is also true that Sylvester cannot survive Marrero's holding, given that Sylvester is expressly premised on Jackson.

We reverse the judgment and sentence for grand theft and remand this cause to the trial court to enter an amended judgment for second-degree petit theft, a second-degree misdemeanor. The court shall also hold a new sentencing hearing, at which Gonzalez has a right to be present and represented by counsel. The trial court shall thereafter enter an amended sentence, as the current sentence exceeds the statutory maximum for second-degree petit theft. The trial court is directed to act with all deliberate speed in complying with these directions on remand.

      Gonzalez was sentenced as a habitual felony offender pursuant to section 775.084(4), Florida Statutes (2017), which requires a minimum mandatory sentence of five years.

      Under section 812.014(c) 1.: "It is grand theft of the third degree and a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084, if the property stolen is ... [v]alued at $300 or more, but less than $5,000."

      The state does not dispute that the hearsay issue is preserved for appeal.

      The State attempts, unsuccessfully, to distinguish Morrill v. State, 268 So. 3d 160 (Fla. 4th DCA 2019) (holding that the State failed to provide competent evidence on fair market value of stolen necklace where a declarant referenced non-specific "internet" sources to establish value via replacement cost evidence) from this case on the basis that, here, the victim identified eBay as a specific source. This is a distinction without difference. Whether a statement qualifies as hearsay does not depend on whether the witness repeating the out of court statement can identify the original declarant.

      Indeed, in Marrero the Florida Supreme Court ended its opinion by noting: "We also disapprove of Jackson v. State and the other decisions in this context that apply a 'life experience' exception to requiring proof of value." 71 So. 3d at 891 (emphasis added).


author: PER CURIAM.

text:
    Robert A. STOK, Petitioner, v. TURNBERRY 12G, LLC, etc., et al., Respondents.
    No. 3D19-600
    District Court of Appeal of Florida, Third District.
    Opinion filed June 26, 2019
    Stok Kon + Braverman, and Robert A. Stok and Natasha Shaikh (Fort Lauderdale), for petitioner.
    Quintero Broche, P.A., and Juan P. Broche, for respondent Turnberry 12G, LLC.
    Before SALTER, LOGUE, and GORDO, JJ.
   PER CURIAM.

We grant the petition and quash the parts of the order allowing subpoenas directed to a law firm seeking records of third parties that are claimed to be protected by the third parties' attorney client privileges. We similarly quash the parts of the order allowing subpoenas seeking the medical records of third parties that are claimed to violate the third parties' right to privacy. The trial court order indicates that these objections were overcome simply by requiring a confidentiality order. Without the trial court establishing a method to review and determine which, if any, of these materials were so privileged, the order reflects a departure from the essential requirement of law. Patrowicz v. Wolff , 110 So. 3d 973, 974 (Fla. 2d DCA 2013) (citing Snyder v. Value Rent-A-Car , 736 So. 2d 780, 782 (Fla. 4th DCA 1999) ) ("The failure to address whether a claimed privilege applies prior to ordering the disclosure of documents is a departure from the essential requirements of the law.").

Otherwise, we deny the petition for certiorari. Subpoenas for materials other than the medical records of third parties and the records of the law firm may issue. This part of our order is without prejudice to the subpoenaed party or other party with a lawful claim of a privilege from filing objections and a privilege log. All other documents responsive to the subpoenas shall be produced.

Granted in part and denied in part.


text:
    Edward ROBINSON, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-0509
    District Court of Appeal of Florida, Third District.
    Opinion filed June 26, 2019
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Linda Katz, Assistant Attorney General, for appellee.
    Before SCALES, LINDSEY and LOBREE, JJ.
   PER CURIAM.

Affirmed. See Franklin v. State, 258 So.3d 1239 (Fla. 2018).


text:
    Lynnette OLIVA, Appellant, v. CHRISTIANA TRUST, Appellee.
    No. 3D18-2301
    District Court of Appeal of Florida, Third District.
    Opinion filed June 26, 2019.
    Lynnette Oliva, in proper person.
    Gilbert Garcia Group, P.A., and Albert A. Zakarian (Tampa), for appellee.
    Before EMAS, C.J., and LOGUE and SCALES, JJ.
   PER CURIAM.

Affirmed. See § 45.031, Fla. Stat. (2018) ; IndyMac Fed. Bank FSB v. Hagan, 104 So. 3d 1232, 1236 (Fla. 3d DCA 2012) (holding: "Florida case law is clear that the substance of an objection to a foreclosure sale under section 45.031(5) must be directed toward conduct that occurred at, or which related to, the foreclosure sale itself"); Mody v. Cal. Fed. Bank, 747 So. 2d 1016, 1017-18 (Fla. 3d DCA 1999) (holding: "In order to vacate a foreclosure sale, the trial court must find: (1) that the foreclosure sale bid was grossly or startlingly inadequate; and (2) that the inadequacy of the bid resulted from some mistake, fraud or other irregularity in the sale.")


text:
    Eddy LEAL, P.A., Appellant, v. Orlando BENITEZ, Jr., Appellee.
    No. 3D18-1541
    District Court of Appeal of Florida, Third District.
    Opinion filed June 26, 2019
    Eddy Leal, P.A., and Eddy Leal, for appellant.
    León Cosgrove, LLP, and Scott B. Cosgrove, Miami and Jeremy L. Kahn, for appellee.
    Before FERNANDEZ, MILLER, and LOBREE, JJ.
   MILLER J.

Upon careful review of the record, we conclude that appellant has failed to demonstrate any abuse of discretion by the lower tribunal in denying its motion for continuance of the evidentiary hearing upon its charging lien. See Stern v. Four Freedoms Nat'l Med. Servs., Co., 417 So. 2d 1085, 1086 (Fla. 3d DCA 1982) ("The granting or denying of a motion for continuance is within the discretion of the trial judge and a gross or flagrant abuse of this discretion must be demonstrated by the complaining party before this court will substitute its judgment for that of the trial judge.") (quoting Edwards v. Pratt, 335 So. 2d 597, 598 (Fla. 3d DCA 1976) ); see also Fisher v. Perez, 947 So. 2d 648, 650 (Fla. 3d DCA 2007) (In addition to the requirements imposed under Florida Rule of Civil Procedure 1.460, a party seeking a motion for continuance due to the unavailability of a witness must show: "(1) prior due diligence to obtain the witness's presence; (2) that substantially favorable testimony would have been forthcoming; (3) that the witness was available and willing to testify; and (4) that the denial of the continuance would cause material prejudice.") (quoting State v. J.G., 740 So. 2d 84, 85 (Fla. 3d DCA 1999) ).

Accordingly, we affirm.

Affirmed.

      Here, the lack of prejudice is particularly evident, as appellant is actively pursuing an authorized, alternative remedy. See Attias v. Faroy Realty Co., 609 So. 2d 105, 106 (Fla. 3d DCA 1992) ("We know of no rule which prevents the attorney from abandoning the charging lien and proceeding against the former clients on ordinary contract principles.").


author: HENDON, J.

text:
    GEICO GENERAL INSURANCE COMPANY, Appellant, v. STEINGER, ISCOE & GREENE-II, P.A., Appellee.
    No. 3D18-1280
    District Court of Appeal of Florida, Third District.
    Opinion filed June 26, 2019.
    Young, Bill, Boles, Palmer, Duke & Thompson, P.A., and B. Richard Young, Adam A. Duke, and Cody S. Pflueger, for appellant.
    Steinger Iscoe & Greene, P.A., and Todd L. Baker (Fort Lauderdale); Burlington & Rockenbach, P.A., and Andrew A. Harris (West Palm Beach), for appellee.
    Before SALTER, SCALES, and HENDON, JJ.
   HENDON, J.

GEICO General Insurance Company ("GEICO") appeals from a final judgment finding it negligent in failing to protect its claimant's former law firm's charging lien, holding GEICO jointly and severally liable for that firm's attorney's fees. We affirm.

Aniushka Monsalve ("Monsalve") filed a claim against GEICO's insured, and hired the law firm of Steinger, Iscoe & Greene-II, P.A. ("SIG") to negotiate with GEICO. SIG entered into negotiations with GEICO on Monsalve's behalf. Monsalve then discharged SIG and hired Litigation Law, P.A. to continue negotiating with GEICO. In October 2014, SIG sent a notice and claim of attorney's charging lien to GEICO, Monsalve, and Litigation Law, to protect its right to its quantum meruit fees up until the time Monsalve discharged SIG from representing her.

That charging lien requested that no settlement disbursements be made by any defendant or insurer until the lien has been resolved. Further, the charging lien requested that SIG's name should appear on any checks from any defendant or insurer to the claimant Monsalve. It is undisputed that GEICO received notice of SIG's charging lien. GEICO later sent Litigation Law a letter memorializing SIG's lien, and enclosed a copy of the lien. Eventually, GEICO agreed to settle Monsalve's claim for $175,000.00. GEICO mailed a copy of the settlement to Litigation Law, and enclosed a release memorializing the terms of the settlement that Monsalve was to execute and return to GEICO. Further, GEICO's cover letter to Litigation Law directed that law firm to hold the settlement check in its escrow account until Monsalve returned the executed release document. None of that happened. GEICO sent the settlement check to Litigation Law and did not include SIG as a payee. Litigation Law then disbursed the settlement funds to Monsalve without notice to any of the parties, and Monsalve did not execute the release prior to depositing the check.

Several months after the funds had been disbursed, Litigation Law engaged in negotiations with SIG to resolve SIG's charging lien. When those negotiations failed, SIG filed the current action seeking recovery of its attorney's fees. After discovery, SIG voluntarily dismissed all parties but GEICO. At the conclusion of a bench trial, the trial court found GEICO negligent, held it to be jointly and severally liable for SIG's charging lien, and entered a final judgment in favor of SIG for $50,000.00.

The parties stipulated to the facts. What remains to be reviewed is whether the trial court erred by finding GEICO breached its duty to SIG for failing to protect SIG's charging lien and finding GEICO negligent as a matter of law. "The standard of review governing a trial court's ruling on a motion for summary judgment posing a pure question of law is de novo." Major League Baseball v. Morsani, 790 So. 2d 1071, 1074 (Fla. 2001).

"A charging lien is an equitable right to have costs and fees due an attorney for services in the suit secured to him in the judgment or recovery in that particular suit." Sinclair, Louis, Siegel, Heath, Nussbaum & Zavertnik v. Baucom, 428 So. 2d 1383, 1384 (Fla. 1983). To perfect a charging lien, the lienor-attorney need only demonstrate that he or she provided the parties to the litigation with timely notice of the interest. Id. at 1385. Here, it is undisputed that upon being terminated, SIG timely filed its charging lien, notifying GEICO and Litigation Law of its interest in recouping the fees earned during the course of representing Monsalvo, however briefly. Such a perfected lien is "chargeable against any person who, at the time notice of intent to claim a lien is given, holds monies or property which become proceeds of a judgment to be entered in the future." Hutchins v. Hutchins, 522 So. 2d 547, 549 (Fla. 4th DCA 1988) (emphasis added); see also Hall, Lamb & Hall, P.A. v. Sherlon Inv's. Corp., 7 So. 3d 639, 641 (Fla. 3d DCA 2009) (citing to Brown v. Vt. Mut. Ins. Co., 614 So. 2d 574, 580-81 (Fla. 1st DCA 1993) (holding that if a party has notice of an attorney's charging lien, pays out a settlement to the attorney's client, and fails to protect the attorney's interest, the paying party may be held jointly and severally liable for the attorney's fees along with the attorney's client to the extent of the settlement proceeds or other funds held)); see also Law Office of Michael B. Brehne, P.A. v. Porter Law Firm, LLC, 268 So.3d 854 (Fla. 5th DCA 2019), reh'g denied (Apr. 16, 2019) ("Because the funds are in trust, Law Office's lien has not been impaired. However, should that situation change in the future, the Insurers cannot avoid liability for the attorney's fees subject to Law Office's lien simply because it transferred the funds to a third party."). As in Sherlon Investments, GEICO as the paying party "had an affirmative duty to notify the law firm of the settlement and to protect the law firm's lien interest in the settlement proceeds." Sherlon, 7 So. 3d at 641.

We agree with the trial court that GEICO had a duty to protect SIG's attorney's lien by notifying SIG of the settlement, including SIG on the settlement check or obtaining SIG's waiver of its lien in writing, or obtaining a Hold Harmless agreement from Litigation Law. GEICO did none of these things. We therefore affirm the order finding GEICO negligent and liable for SIG's attorney's fees.

Affirmed.

      Monsalve eventually executed the release months later, but GEICO states it never received the document.


author: LINDSEY, J.

text:
    CORNER LAND, LLC, Appellant, v. ANNEX INDUSTRIAL PARK, LLC, Appellee.
    No. 3D18-2124
    District Court of Appeal of Florida, Third District.
    Opinion filed June 26, 2019
    Taylor Espino Vega & Touron, PLLC, and Alejandro Espino, and Vanessa A. Van Cleaf, for appellant.
    Armas Bertran Pieri, and J. Alfredo De Armas, and Eduardo Bertran, for appellee.
    Before SALTER, LINDSEY, and HENDON, JJ.
   LINDSEY, J.

Corner Land, LLC appeals the trial court's final judgment in an action for trespass only to the extent that the jury did not award punitive damages in Corner Land's favor. Corner Land claims it is reversible error to admit redacted stay orders into evidence. It is not.

I. BACKGROUND

Annex Industrial Park, LLC and Corner Land own adjacent properties in Hialeah, Florida. Three roads border the combined properties. Both parcels lie north of N.W. 138th Street, west of N.W. 102nd Avenue, and east of N.W. 105th Avenue. At issue in this case is a strip of land on the southern boundary of Corner Land's property, which runs parallel to N.W. 138th Street. At the time Corner Land filed suit, that strip provided the only access to the Annex Property. There was a time, however, when that strip was not the only means of access to the Annex Property.

Annex originally had direct access to its property from N.W. 138th Street. When Annex acquired its property in 2005, a bridge connected N.W. 138th Street to the Annex Property, providing for direct access from the south. In 2008, the City of Hialeah requested Annex to deed 35 feet along the southern edge of its property to the City for a right of way. The City sought to widen the canal between the Annex Property and N.W. 138th Street as well as the street itself. Annex deeded the 35 feet to the City and additionally conveyed an easement to Miami-Dade County for canal construction and maintenance.

Corner Land's predecessor executed similar agreements. Like Annex, the prior owner of the Corner Land property conveyed a similar canal easement and dedicated 75 feet of its southern boundary to the City of Hialeah. Thereafter, the City demolished the bridge providing direct access to the Annex Property and widened the canal and N.W. 138th Street. Although the City constructed a replacement bridge, the City placed the bridge just west of the Annex Property, depriving Annex of its direct access. As a result, the only access to the Annex Property was through a new road, created by the new canal bridge, on the southern boundary of the Corner Land property.

For several years, Corner Land (and its predecessors) permitted Annex to use a portion of the new road which constituted Corner Land's property. Annex required use of the new road to access the Annex Property, where it operated a truck storage business. Then, in September of 2014, Corner Land withdrew its permission and sent Annex a cease and desist letter demanding Annex discontinue use of Corner Land's property. Annex nevertheless continued to use Corner Land's property and four days after sending the cease and desist letter, Corner Land filed suit seeking damages for trespass and a permanent injunction.

Corner Land later moved for a temporary injunction seeking to enjoin Annex's use of Corner Land's property. After a three-day evidentiary hearing, the trial court granted Corner Land's motion and entered a temporary injunction precluding Annex from continuing its use of the Corner Land property. Annex subsequently moved to stay the injunction until it was able to find another method of accessing its property. Annex explained that the injunction would hinder Annex's ability to operate its storage business, potentially placing the company in financial ruin. The trial court noted the condition of unfairness that would be created and stayed enforcement of the injunction. The trial court extended the stay seven additional times over a period of 23 months before Annex finally secured access to the property along its northern border.

Based on the evidence adduced at the three-day evidentiary hearing, Corner Land additionally sought leave to add a claim for punitive damages. Corner Land argued Annex's continued use of the Corner Land property in light of the cease and desist letter warranted punitive damages. That motion was also granted. In response, Annex amended its Answer to include the affirmative defense of advice of counsel and sought to introduce the eight stay orders in support thereof.

Corner Land, expecting that Annex would seek the admission of the stay orders, filed an anticipatory motion in limine seeking to exclude all evidence related to the stay orders. Corner Land argued the orders contained hearsay and their prejudicial effect substantially outweighed their probative value. Annex, on the other hand, suggested that the stay orders were necessary to disprove Corner Land's accusations that Annex acted maliciously. The trial court judge permitted Annex to introduce the stay orders, but only after certain redactions were made. The redactions left only the date, the trial court's signature, and the length of the stay.

At trial, Annex introduced the stay orders and the injunction order with the testimony of its principal and its former counsel. Each testified regarding the effect the orders had on Annex's subsequent actions based on the counsel's advice. After both parties rested, the trial court instructed the jury that both compensatory and punitive damages were available. The jury returned a verdict awarding Corner Land $114,015.22 in compensatory damages, but found Corner Land was not entitled to punitive damages. Thereafter, the trial court entered final judgment.

This timely appeal followed.

II. STANDARD OF REVIEW

The admissibility of evidence lies in the sound discretion of the trial court and trial court decisions on the matter will be affirmed absent a showing of abuse of discretion. See, e.g., Beerman v. Rollar, 710 So. 2d 93 (Fla. 4th DCA 1998) ; see also Carter v. Brown & Williamson Tobacco Corp., 778 So. 2d 932, 943 (Fla. 2000) ("[W]here a trial court has weighed probative value against prejudicial impact ... an appellate court will not overturn that decision absent a clear abuse of discretion.").

III. ANALYSIS

Corner Land argues on appeal that the trial court erred in admitting the redacted stay orders because they were unfairly prejudicial and constitute inadmissible hearsay. Corner Land relies on BDO Seidman, LLP v. Banco Espirito Santo, International, 38 So. 3d 874 (Fla. 3d DCA 2010) and Rubrecht v. Cone Distributing, Inc., 95 So. 3d 950 (Fla. 5th DCA 2012), in support of its argument. That reliance is misplaced. In those cases, the error was not in admitting the court orders themselves, but rather the judicial factual findings contained within the court order. See BDO Seidman, 38 So. 3d at 880 (citing United States v. Sine, 493 F.3d 1021, 1036 (9th Cir. 2007) ("A court judgment is hearsay 'to the extent that it is offered to prove the truth of the matters asserted in the judgment.' ... It is even more plain that the introduction of discrete judicial factfindings and analysis underlying the judgment to prove the truth of those findings and that analysis constitutes the use of hearsay." (internal citations omitted))). Here, there is no such issue. The stay orders were heavily redacted to remove any factual findings. All that remained was a signature, the date, and length of the stay or extension. Cf. Velcofski v. State, 96 So. 3d 1069, 1072 (Fla. 4th Dist. App. 2012) ("While the probative value of this evidence may have been minimal, so was any danger of unfair prejudice because the portions of the documents which had the potential of being unfairly prejudicial ... were properly redacted.").

Moreover, it was not error to permit Annex to introduce testimony regarding the effect the stay orders had on the legal advice Annex received, particularly in light of Annex's affirmative defense of advice of counsel as to Corner Land's claim for punitive damages. It is well established that a statement is not hearsay if offered to prove the effect the statement had on the listener. E.g., Jenkins v. State, 189 So. 3d 866 (Fla. 4th DCA 2015) ("Appellant's excluded testimony about what the stockade employee told him was not hearsay as those statements were being admitted to show the effect on the listener, that is, the reason Appellant left and did not register that day."); White v. State, 993 So. 2d 611 (Fla. 1st DCA 2008) ("[T]he testimony proffered by appellant was not hearsay because it was not offered 'to prove the truth of the matter asserted' .... It was, instead, offered to negate an essential element of both offenses-intent.").

IV. CONCLUSION

Accordingly, based on the foregoing reasons, we affirm the trial court's final judgment.

      Corner Land does not challenge the compensatory damages award.

      The Annex Property was additionally accessible from a dirt road immediately north of the property. However, in 2008, Annex and the prior owners of the Corner Land Property deeded the northern 35 feet of their respective properties to the City of Hialeah.

      A redacted version of the injunction order was also allowed to be introduced into evidence.


text:
    Vestalia AYLSWORTH, Appellant, v. MUTINY ON THE BAY CONDOMINIUM ASSOCIATION, INC., Appellee.
    No. 3D18-2052
    District Court of Appeal of Florida, Third District.
    Opinion filed June 26, 2019
    Aylsworth & Aylsworth, and Vestalia Aylsworth, Miami, for appellant.
    Glausier Knight, PLLC, and Charles Evans Glausier, and Melissa J. Knight, and Stan Rowe (Tampa), for appellee.
    Before EMAS, C.J., and FERNANDEZ, and MILLER, JJ.
   PER CURIAM.

Affirmed. See Deutsche Bank Nat'l Tr. Co. v. de Brito, 235 So. 3d 972, 975 (Fla. 3d DCA 2017) ("The foundation for admission of a business record may be established by a records custodian or other qualified witness, and that witness authenticating the records need not be the person who actually prepared the business records. The witness just needs to be well enough acquainted with the activity to testify that the successor business relies on those records, and that the circumstances indicate the records are trustworthy.") (internal citations omitted) (citing Bank of N.Y. v. Calloway, 157 So. 3d 1064 (Fla. 4th DCA 2015) ; Nationstar Mortg., LLC v. Berdecia, 169 So. 3d 209, 216 (Fla. 5th DCA 2015) ; Cayea v. CitiMortgage, Inc., 138 So. 3d 1214, 1217 (Fla. 4th DCA 2014) ); Progressive Express Ins. Co. v. Camillo, 80 So. 3d 394, 402 (Fla. 4th DCA 2012) ("Proof of mailing of a document to the correct address creates a presumption that the item mailed was, in fact, received.") (citation omitted); Berwick v. Prudential Prop. & Cas. Ins. Co., 436 So. 2d 239, 240 (Fla. 3d DCA 1983) ("It is presumed that mail properly addressed, stamped and mailed was received by the addressee.") (citing Brown v. Giffen Indus., Inc., 281 So. 2d 897 (Fla. 1973) ; Milros-Sans Souci, Inc. v. Dade Cty., 296 So. 2d 545 (Fla. 3d DCA 1974) ); see also Allstate Ins. Co. v. Eckert, 472 So. 2d 807, 809 (Fla 4th DCA 1985) (holding that where "no credible evidence sufficient to sustain a finding of the nonexistence of the presumed fact was introduced, the trier of fact was required to assume the existence thereof") (citing § 90.302, Fla. Stat.).


author: HENDON, J. SALTER, J. (dissenting).

text:
    Mark WALLACE, Appellant, v. COMPREHENSIVE PERSONAL CARE SERVICES, INC., et al., Appellees.
    No. 3D18-1815
    District Court of Appeal of Florida, Third District.
    Opinion filed June 26, 2019
    Stack Fernandez & Harris, P.A., and Brian J. Stack, for appellant.
    Legon Fodiman, P.A., and Todd R. Legon and William F. Rhodes, for appellee, Milton Wallace.
    Before SALTER, LOGUE, and HENDON, JJ.
   HENDON, J.

Mark Wallace ("Mark"), in anticipation of filing a petition to determine incapacity of his father, Milton Wallace ("Milton"), pursuant to sections 744.3201 and 744.331, Florida Statutes (2018), informed the probate judge of his plan to attach certain medical records from his father's personal physician, Dr. Ranjan Duara, along with the expert written opinions of three physicians specializing in the fields of neurology, psychiatry, and radiology, who did not examine Milton and rendered their opinions solely based on their review of Milton's medical records. For the reasons that follow, we conclude that the trial judge properly entered an order that (1) enjoins Mark from attaching to, or referencing in, a petition to determine incapacity the medical records of his father, Milton, and the written expert opinions rendered by the three physicians; and (2) enjoins the parties, other than Milton, and the parties' counsels and/or representatives from having ex parte communications with the examining committee that the trial court will appoint following the filing of a petition to determine incapacity.

I. Facts and Procedural History

Following the death of Milton's wife, Comprehensive Personal Care Services, Inc. ("CPCS") initiated a trust proceeding against, among others, Milton and Mark, relating to an irrevocable trust executed in 2011 by Milton and his wife. Mark filed an answer, a cross-claim, and a third-party complaint, alleging, among other things, that the third-party defendant has misled and fraudulently induced Milton, who is in his eighties, into transferring funds and assets earmarked for the irrevocable trust to the third-party defendant.

In the trust proceeding, Mark issued a subpoena for deposition duces tecum to Milton's physician, Dr. Ranjan Duara of the Mount Sinai Hospital Wien Center for Alzheimer's Disease and Memory Disorders, and a subpoena duces tecum to Dr. Duara's records custodian, seeking production of Milton's medical records. Milton objected to the subpoenas and moved for a protective order and to quash the subpoenas duces tecum.

Following a hearing, the trial court found that Mark had placed Milton's mental state at issue based on the claim of undue influence. After conducting an in camera review of Milton's medical records, the trial court entered a protective order on February 5, 2018, that provides that Milton's medical records shall be received only by certain attorneys of record in the trust proceeding; no other attorney can receive Milton's medical records without leave of court; the attorneys can share the records with their expert witnesses qualified in neurological diseases on the condition that the experts comply with the terms of the protective order; Milton's medical records cannot be used for any other purpose except in connection with the trust proceeding; there can be no further production or dissemination of Milton's medical records without leave of court; and the parties cannot file Milton's medical records with the court without leave of court. Thereafter, in a second protective order, the trial court ordered the production of other medical records, including Milton's MRIs, subject to the same restrictions set forth in the protective order entered on February 5, 2018.

Following the entry of the protective orders, Mark's counsel hired three physicians-neurologist, psychiatrist, and radiologist-to review Milton's medical records that were the subject of the protective orders and to render their opinions. Without examining Milton, the physicians submitted to Mark's counsel written reports with their various medical opinions ("medical reports").

Based on these medical reports, Mark decided that he would seek a determination that his father is incapacitated under Chapter 744 of the Florida Statutes, and to support his petition to determine incapacity, he would submit his father's medical records and the medical reports. However, as the protective orders placed restrictions on the dissemination and/or filing of Milton's medical records, Mark did not file the petition to determine incapacity, and instead sought leave of court to submit Milton's medical records and the medical reports upon the filing of a petition to determine incapacity ("motion for leave of court"). Milton objected to the motion for leave of court and filed a countermotion seeking the entry of an order prohibiting ex parte communications with members of the examining committee, when appointed.

At the conclusion of the hearing on the motions, the trial court entered an order denying Mark's motion for leave of court and granting Milton's countermotion prohibiting ex parte communications. The order provides that, with the exception of Milton, the parties cannot utilize or disseminate Milton's confidential medical records as set forth in the protective order entered on February 5, 2018. Further, if a petition is filed against Milton, his confidential medical records cannot be attached to, incorporated in, or referenced in the petition. Finally, the trial court ruled that, with the exception of Milton, the parties and their counsels and/or representatives cannot communicate with any member of the examining committee, when appointed. Mark's non-final appeal followed.

II. Issues

The issues before this Court are whether the trial court erred by ruling that (1) if a petition to determine incapacity is filed in a separate proceeding under Chapter 744 of the Florida Statutes, the petitioner cannot attach, incorporate, or reference Milton's confidential medical records and/or the medical reports in the petition, and (2) the parties, other than Milton, and the parties' counsels and/or representatives cannot have ex parte communications with the members of the examining committee appointed by the trial court. As we find no error, we affirm the order under review.

III. Analysis

A. Milton's medical records and the medical reports

Mark contends that the trial court erred by ruling that Milton's medical records and the medical reports cannot be attached to, incorporated in, or referenced in a petition to determine incapacity. In support of this argument, Mark suggests the members of the examining committee will not have a complete picture of Milton's alleged dementia prior to filing their written reports. We disagree.

The Florida Legislature has set forth the mechanism that must be followed in a Chapter 744 proceeding to determine that a person is incapacitated. Section 744.3201 sets forth the requirements for the filing of a petition to determine incapacity, and section 744.331 addresses the procedures that must be followed once a petition to determine incapacity is filed.

Section 744.3201 provides in its entirety as follows:

Petition to determine incapacity.-
(1) A petition to determine incapacity of a person may be executed by an adult person.
(2) The petition must be verified and must:
(a) State the name, age, and present address of the petitioner and his or her relationship to the alleged incapacitated person;
(b) State the name, age, county of residence, and present address of the alleged incapacitated person;
(c) Specify the primary language spoken by the alleged incapacitated person, if known;
(d) Allege that the petitioner believes the alleged incapacitated person to be incapacitated and specify the factual information on which such belief is based and the names and addresses of all persons known to the petitioner who have knowledge of such facts through personal observations;
(e) State the name and address of the alleged incapacitated person's attending or family physician, if known;
(f) State which rights enumerated in s. 744.3215 the alleged incapacitated person is incapable of exercising, to the best of petitioner's knowledge. If the petitioner has insufficient experience to make such judgments, the petition must so state; and
(g) State the names, relationships, and addresses of the next of kin of the alleged incapacitated person, so far as are known, specifying the dates of birth of any who are minors.
(3) A copy of any petition for appointment of guardian or emergency temporary guardian, if applicable, shall be filed with the petition to determine incapacity.

§ 744.3201 (emphasis in subsections (d) and (e) added).

To comply with section 744.3201, the person filing the petition to determine incapacity is not required to attach, incorporate, or reference the alleged incapacitated person's ("AIP") medical records or medical reports prepared in anticipation of the filing of a petition to determine incapacity. Under section 744.3201(2)(d), Mark will be required to state in the petition to determine incapacity, if filed, that he believes that his father (Milton) is incapacitated, specify the factual basis for this belief, and provide the names of persons known to Mark who have knowledge of these facts through personal observation. Based on assertions made by Mark that appear in the record before this Court, Mark has knowledge of his father's alleged frontotemporal dementia because, as claimed by Mark, his parents executed the irrevocable trust in 2011 following Dr. Duara's diagnosis in 2010 that Milton allegedly suffers from dementia. Further, Mark claims that his parents instructed their attorney to involve Mark in all aspects of their estate planning. Thus, Mark will be able to state in the petition to determine incapacity that he believes that his father suffers from frontotemporal dementia. In addition, under section 744.3201(2)(e), Mark will also be required to set forth in the petition the name and address of Milton's attending or family physician, if known. As such, Mark will be able to state in the petition to determine incapacity that Milton's physician is Dr. Duara of the Wien Center for Alzheimer's Disease and Memory Disorders at Mount Sinai Medical Center. Based on the information that Mark can provide in the petition to determine incapacity, if filed, the three-member examining committee will be apprised of Milton's alleged frontotemporal dementia and the name of Milton's physician, Dr. Duara, who will be able to shed light on Mark's assertion that Milton suffers from frontotemporal dementia.

If a petition to determine incapacity is indeed filed by Mark or another person, the procedures set forth in section 744.331 control. Within five days of the filing of a petition to determine incapacity, the trial court must appoint a three-member committee to examine the AIP, see § 744.331(3)(a), and "[e]ach member of the examining committee must file his or her report with the clerk of the court within 15 days after appointment." § 744.331(3)(e).

The procedures set forth in section 744.331 also require that at least one member of the examining committee "must have knowledge of the type of incapacity alleged in the petition." § 744.331(3)(a). Section 744.331(3)(a) also provides that "[i]f the attending or family physician is available for consultation, the committee must consult with the physician." In addition, the written report of each member of the examining committee must include his or her "assessment of information provided by the attending or family physician, if any." § 744.331(3)(g) 3. Further, section 744.331(3)(e) provides that each member of the examining committee "must have access to, and may consider," previous examinations of the AIP. § 744.331(3)(e).

Based on these procedures, at least one member of the examining committee will have knowledge of frontotemporal dementia ; each member of the examining committee will be required to consult with Dr. Duara, if available, and the reports of the examining committee members will include an assessment of any information provided by Dr. Duara; and the members of the examining committee shall have access to Milton's prior examinations. Thus, based on the procedures set forth in section 744.331, contrary to Mark's concern, each member of the examining committee should have a complete picture of Milton's alleged dementia prior to filing his or her written report.

At this point, there is no reason to believe that Dr. Duara will not provide relevant information to the members of the examining committee. Further, although Milton's counsel has vigorously challenged the release of Milton's medical records in this trust proceeding, if Mark or another person does file a petition to determine incapacity, we are confident that the straightforward procedures set forth in section 744.331 will be followed without delay by all parties. Despite the expedited nature of a proceeding to determine incapacity, if it appears that a party is unnecessarily delaying the matter, the issue can be raised on an emergency basis before the trial court addressing the petition to determine incapacity. Thus, based on the above analysis, we affirm the portion of the order under review that provides that, if a petition to determine incapacity is filed in a separate proceeding under Chapter 744, the petitioner cannot attach, incorporate, or reference Milton's confidential medical records and/or the medical reports in the petition.

If the legislature intended that the person filing a petition to determine incapacity must be permitted to incorporate into the petition the AIP's medical records and the written reports issued by physicians who did not examine the AIP and were hired by the petitioner, the legislature could have easily incorporated these provisions into the controlling statutes, sections 744.3201 and 744.331. The legislature, however, chose not to. It is not the function of this Court to expand the controlling statutes by concluding that the petitioner must be permitted to attach these documents to the petition to determine incapacity.

B. Ex parte communications with the examining committee

In ruling that the parties, other than Milton, and the parties' counsels and/or representatives cannot have ex parte communications with the members of the examining committee, when appointed, the trial court was most likely concerned with the effect that the ex parte communications would have on the members of the examining committee. Thus, we find no error in imposing such a limitation.

IV. Conclusion

Based on the above analysis, we affirm the non-final order under review.

Affirmed.

LOGUE, J., concurs.

SALTER, J. (dissenting).

I respectfully dissent. In my view of the case, the successor probate judge had no jurisdiction to (1) address a future, as-yet-unfiled, petition to determine incapacity, or (2) enjoin a prospective petitioner and counsel from (a) using or referring to "Milton Wallace's confidential medical records or any expert reports relating to those medical records" in the as-yet-unfiled guardianship case, and (b) communicating, "directly or indirectly, or in any way with any member of an examining committee should one be appointed." The injunction prepared by counsel for Milton Wallace and signed by the successor probate judge goes far beyond the scope of the protective order entered in the trust proceeding.

The underlying adversary proceeding involved a petition to enforce the terms of an irrevocable trust and marital agreement-issues primarily governed by the trust instrument and the Florida Trust Code -and not the appointment of a guardian for an allegedly incapacitated person ("AIP") under the separate Florida Guardianship Law. This is not a distinction without a difference.

Untangling the knots in this case is made more challenging by the fact that the petitioner in the trust action below, Comprehensive Personal Care Services, Inc. (CPCS), is a guardian for one of the beneficiaries of the trust in controversy, Hardy Wallace. Hardy Wallace is himself an incapacitated ward and is one of the sons of Milton Wallace and the late Patricia Wallace.

The Trust Issues

CPCS petitioned the circuit court to direct Milton Wallace to: fund the irrevocable trust as provided in the 2011 marital agreement; require Milton Wallace, as trustee, to identify and account for the assets required to be conveyed to the trust; allow CPCS to act to preserve the assets of the trust and marital agreement; and allow CPCS to rescind any transfers made in violation of the marital agreement and recover damages for any assets dissipated. The answer, crossclaim, counterclaim, and third-party complaint filed by the other son, Mark Wallace, also asserted claims against Milton Wallace for breach of his duties as trustee and under the marital agreement obligating Milton Wallace to transfer jointly-owned assets to the trust after his wife's death. Mark Wallace's third-party complaint also sought to recover for the alleged conversion, fraud, breach of fiduciary duty, and fraudulent conveyance of putative trust assets to a transferee who was not a member of the Wallace family or beneficiary of the trust. Those claims remain pending.

Mark Wallace issued subpoenas for Milton Wallace's neurological and mental health records as part of his claims that the transferee was exerting undue influence over Milton Wallace, then 82 years old. CPCS (on behalf of Hardy Wallace) and Mark Wallace moved the court to remove Milton Wallace as trustee (sections 736.0706 and 736.1001 of the Florida Trust Code) based on claims of undue influence relating to trust administration; they did not petition (and to this point, have not petitioned) to have Milton Wallace determined to be incapacitated (under the Florida Guardianship Law).

As described in greater detail in a separate section of this opinion, Milton Wallace's primary treating neurologist for many years was Dr. Ranjan Duara. Mark Wallace spoke with Dr. Duara, with Milton Wallace's consent, regarding his father's degenerative brain disease. It was only after the adversary proceedings regarding the trust began that Milton Wallace's counsel instructed Dr. Duara not to communicate further with Mark Wallace.

Milton Wallace then objected to the subpoenas, production of his medical records, and deposition in the trust proceeding. The predecessor probate judge entered two protective orders relating to the records, limiting disclosure of such records to the clients, counsel, and medical experts "qualified in neurological disease" and retained for the purposes of evaluating the records. The confidential records were not to be produced or disseminated to others without leave of the trial court. These orders were entered in the adversary proceeding regarding the petitions by CPCS and Mark Wallace to require Milton Wallace to fund the irrevocable trust and (thereafter) for the appointment of a special fiduciary to administer the trust.

Following an evidentiary hearing, the predecessor probate judge denied the joint motion to replace Milton Wallace as trustee of the irrevocable trust, concluding that a temporary injunction entered previously should be sufficient to protect the assets pending a trial on the merits.

Cross-Motions Regarding Use of the Medical Records in a Guardianship Case

In June 2018, Mark Wallace sought leave of court (in the adversary proceeding pertaining to the trusts-not in any existing guardianship case) to file the medical records produced by Dr. Duara and other expert medical reports as attachments to an as-yet-unfiled guardianship petition. In doing so, Mark Wallace sought to avoid a violation of the protective order entered by the predecessor probate judge relating to Dr. Duara's records in the trust case. Milton Wallace opposed any such use of the records, and he also filed a cross-motion for an injunction to preclude Mark Wallace from attaching Dr. Duara's report to a future guardianship petition. Milton Wallace's cross-motion also asked the probate court "to enter an order preventing the parties and their respective counsel from directly or indirectly having any ex parte contacts with the examining committee, with the exception of Milton of course."

The resulting injunction is the only basis for our jurisdiction here. The earlier order denying the CPCS and Mark Wallace petitions (to remove Milton Wallace as trustee and to appoint a special fiduciary to administer the trust) was a non-final order. That order by the predecessor probate judge was not appealed; the order expressly left the door open for consideration of "other potential remedies under Section 736.1001, Florida Statutes, such as, for example, ordering a trustee to account, if such relief is developed by additional or other facts and circumstances in the future and if such relief is appropriate and supported by competent substantial evidence."

The Hearing on the Cross-Motions

The cross-motions regarding a prospective guardianship petition were heard by the successor probate judge on July 11, 2018. The transcript of the hearing discloses two matters of particular concern here. First, based on an objection by counsel for Milton Wallace, the successor probate judge refused to read or consider the contents of the very medical records in contention between the parties. The court relied on the representations of Milton Wallace's counsel that a "fair and orderly process" in the prospective guardianship case required an injunction instructing CPCS, Mark Wallace, and their counsel "not to file a petition that contains any of my client's medical information or discusses it in any way whatsoever, to prohibit them from in any way communicating with this panel, should one be appointed."

Second, counsel for Milton Wallace cited to the successor judge, and argued the applicability of, this Court's guardianship opinion in Linde v. Linde, 199 So. 3d 1102 (Fla. 3d DCA 2016). Linde, however, involves an open guardianship case-not an as-yet-unfiled petition to determine incapacity-in which a ward sought to have his full capacity restored after an emergency petition was filed and a temporary guardian appointed.

In Linde, an initial petition to determine incapacity was filed under section 744.3201, Florida Statutes, and a three-person examining committee was appointed by the trial court. The trial court also appointed an emergency temporary guardian pursuant to section 744.3031, a procedure available when the court specifically finds that "there appears to be imminent danger that the physical or mental health or safety of the person will be seriously impaired or that the person's property is in danger of being wasted, misappropriated or lost unless immediate action is taken."

In that case, the ward and his wife "stipulated to the examining committee's finding of limited incapacity and to the admissibility of the examining committee's report in the guardianship proceedings." Linde, 199 So. 3d at 1103. The trial court removed the ward's rights to contract, manage property, sue, and marry. See id.

When the temporary guardian was appointed and the case was proceeding to a hearing for a permanent guardianship, the ward and his wife moved for disqualification of the assigned judge, and that motion was granted. See id. Thereafter, the ward and his wife filed a suggestion of capacity with the successor judge, seeking a restoration of the ward's rights. See id. Such a proceeding is governed by a separate section of the Florida Guardianship Law, section 744.464, within the "Termination" subpart of that law. Under that statute, entitled "Restoration to capacity," the court appoints one physician-not a three-professional examining committee-to examine the ward and report to the court.

The ward and his wife in Linde "filed an emergency petition for an injunction to prevent Temporary Guardian from communicating with the court-appointed physician," alleging that "ex parte communications between Temporary Guardian's attorneys and the examination committee had tainted the committee's report." Linde, 199 So. 3d at 1103. The court granted the injunction, but "also established a collaborative mechanism for all counsel to convene in response to any request for additional information by the independent physician." Id. The independent physician then found that the ward was capable of exercising the rights previously limited, and the court fully restored the ward's rights. See id. In the subsequent appeal, this Court affirmed the injunction based, as it was, on evidentiary issues. See id. at 1104.

Importantly, our opinion in Linde distinguishes the procedure for an initial petition for a determination of incapacity (as in the present case) from the procedure governing a suggestion of capacity (as involved in Linde ):

As the statute governing initial incapacity makes clear, each member of the examination committee must have access to prior examination reports of the incapacitated person. No such requirement is contained in the statute governing examinations of a ward conducted upon the filing of a suggestion of capacity. In fact, section 744.464(2) neither incorporates section 744.341's examination requirements, nor contains any other specific requirements for the independent physician's examination.

Id. at 1105 (original emphasis).

This Court's decision in Linde emphasized that an initial examination committee "must have access" to prior examination reports of an AIP, and not that the committee should be prohibited from reviewing such reports. Counsel for Milton Wallace relied upon an inapposite holding, regarding a different statute, and thereby led the successor probate judge into error.

Scope of the Injunction Prepared by Counsel

At the conclusion of the hearing that culminated in the written injunction order under review here, the successor probate judge still had not reviewed the medical records which Mark Wallace sought leave to attach to a future petition for a determination of incapacity. The judge's oral pronouncement granted "injunction relief to prevent the ex parte communications with the examining committee," (a committee which had not yet been appointed), but also stated that once a guardianship petition was filed, "the Court can readdress any motions you may have, but right now I believe your request for his records as well is premature, as well as a violation of the prior court order."

The written order submitted by counsel for Milton Wallace and signed by the probate judge three weeks after the hearing, however, included much more sweeping injunctive provisions and did not include the judge's suggestion that the probate court could "readdress" these matters after a petition was actually filed. The order prohibited Mark Wallace-the AIP's son with years of knowledge regarding his father's medical issues and consultations with Dr. Duara-from any ex parte communication with the members of the examining committee, and prohibited him and his counsel from "using, attaching, publishing or in any way disseminating Milton Wallace's confidential medical records except as set forth in the [protective order in the trust case]." The final paragraph of the injunction commands, "With the exception of Milton Wallace, all parties and their respective counsel and/or representatives shall not communicate, either directly or indirectly, or in any way with any member of an examining committee should one be appointed." Counsel for Milton Wallace prepared and obtained, in short, an order inimical to the text of the guardianship statute itself and our holding in Linde that the examining committee "must have access to prior examination reports of the alleged incapacitated person." 199 So. 3d at 1105 (original emphasis).

Guardianship: Medical Assessment, Not Trust Administration

The injunction under review here is, in my view, a prior restraint and "medical gag order" that is: (1) premature, given the confidentiality and protection afforded a petition for incapacity and its attachments when filed in the separate mental health/guardianship unit of the circuit court, (2) an unwarranted usurpation of the guardianship judge's discretion and authority following the actual filing of a petition for incapacity and attachments (if any), and the guardianship judge's consideration of the specific details of those pleadings and papers; and (3) a detour from a trust case into a separate body of law, the Florida Guardianship Law, before an actual petition for a determination of incapacity has been filed.

As discussed further below, the premature injunction also curtails the collaborative process by which a three-member independent examining committee-experts in neurology, psychology, psychiatry, gerontology, nursing, or social work appointed pursuant to section 744.331(3) of the Guardianship Law-assesses the capacity or incapacity of an AIP after the petition has been filed. The separate Florida Guardianship Law itself confirms that the "independence" of the examining committee refers to the fact that the members have no personal financial or previous medical relationship with an AIP-not to some type of quarantine whereby the members are isolated from prior medical records, diagnoses, and consultation with other professionals who previously have treated the AIP for pertinent conditions.

• The verified petition to determine incapacity must "specify the factual information on which such belief is based and the names and addresses of all persons known to the petitioner who have knowledge of such facts through personal observations." § 744.3201(2)(d). Mark Wallace has identified himself as the prospective petitioner, so he would be required to disclose those specific facts he already knows, including Dr. Duara's identity, location, and those findings known to Mark Wallace.
• The petition must also state "the name and address of the alleged incapacitated person's attending or family physician, if known." § 744.3201(2)(e). This requirement by the Legislature confirms that the examining committee must be provided contact information to facilitate communication with those physicians who have an existing knowledge base regarding the AIP's condition. Such communication would, as a matter of traditional collaboration among medical professionals addressing an individual's symptoms or condition, include records of relevant prior and current treatment, diagnostic tests, lab results, radiology reports, notes of consultations with other professionals, and other relevant information.
• The duties of the examining committee appointed to evaluate the AIP include the obligation to consult with an attending or family physician identified in the petition, if "available for consultation." § 744.331(3)(a). This requires, not prohibits, constructive communication among the medical/psychological professionals appointed to the committee.
• Testimony and records that are not subject to the trust proceeding protective orders are abundant regarding Dr. Duara's diagnoses of Milton Wallace going back to at least 2010, including Mark Wallace's personal knowledge of Milton Wallace's diagnosis with a degenerative brain disease. Mark Wallace testified that he spoke with Dr. Duara personally to discuss the medical diagnosis and prognosis regarding his father's condition after his mother passed away in 2016. Dr. Duara testified that these communications were with Milton Wallace's consent. The estate planner who drafted Patricia and Milton Wallace's estate plan documents, including the irrevocable trust agreement, marital agreement, and wills for Milton and Patricia Wallace, was also aware that they had serious concerns about Milton Wallace's diagnosis and prospective incapacity.
• Attaching a copy of a recent psychological and cognitive assessment of an AIP to the initial petition for appointment of a guardian is calculated to assist an examining committee. It is not prohibited by section 744.3201 or Florida Probate Rule 5.550 regarding the petition, nor by section 744.331 specifying the procedures for determining incapacity. See Sarfaty v. M.S., 232 So. 3d 1074, 1082 (Fla. 3d DCA 2017) (petition and attached psychological assessment based on personal clinical interviews, cognitive evaluation tests, and prior diagnostic history, held facially sufficient to survive a motion for dismissal of the petition with prejudice). Contrary to the injunction under review, an examining committee must remain free, in the exercise of the professional judgment of each member, to reach its own assessment of the AIP's capacity or incapacity, and to accept or reject any prior tests, diagnoses, or records provided by an attending physician of the AIP. The members must also be free to accept or reject input from family members and others with personal knowledge as identified in the petition. No Florida statute or reported case, in contrast, precludes the petitioner from providing allegedly-pertinent medical history and related records to the examining committee members (by attaching such records to the petition or by meeting with the committee members).

Milton Wallace's Privacy

The guardianship and related procedures are respectful of the appellee's, or any actual AIP's, right to medical privacy. A separate mental health unit (with case numbers designated "MH" in the Miami-Dade circuit) receives a guardianship petition. The filings and reports in the case, pending the adjudicatory hearing and a written order determining incapacity, are not public. The AIP is permitted to have the adjudicatory hearing (and any other hearing) closed. See Fla. Prob. R. 5.540(a).

If an order of incapacity is entered and a guardian is appointed, a separate case in the guardianship is commenced with "GD" in the caption. Reports filed in that case are "subject to inspection only by the court, the clerk or the clerk's representative, the guardian and the guardian's attorney," unless the court is shown good cause to authorize inspection by others.

But the confidentiality of the AIP's medical records must be balanced against the right of a petitioner, particularly a close family member, to seek the appointment of a guardian (or other relief under the Florida Guardianship Law) for the AIP's protection and welfare. That confidentiality is also subject to the professional obligation of an examining committee member to render a fully-informed assessment of the AIP for the committee's report to the probate court.

Conclusion

The successor probate judge in the trust case erred by entering the injunction without having reviewed the medical records in controversy. More significantly, the court lacked jurisdiction in the trust case to enter an injunction applicable to an as-yet-unfiled guardianship case, thereby prohibiting communications that are not only permissible, but required under the separate text of the Florida Guardianship Law and this Court's precedent. We should reverse the non-final injunction order and remand the case to the probate court with instructions to vacate it.

In the event CPCS or Mark Wallace subsequently elects to file a petition to determine incapacity, the petition should comply with the applicable statutes, rules, and precedent. The AIP could then file such motions to strike attachments or limit communications with the examining committee as the AIP or his counsel deem appropriate.

For all these reasons, I respectfully dissent.

      CPCS initiated the trust proceeding as the guardian of the person and property of Milton and his wife's other son.

      It is this Court's understanding that Mark has not yet filed a petition to determine incapacity.

      In Sarfaty v. M.S., 232 So. 3d 1074, 1079 (Fla. 3d DCA 2017), this Court stated:
      We have identified no Florida case holding that the timing set forth in [section 744.331(3)(e) ] cannot be waived by an AIP or the AIP's private counsel. Nor have we identified a case holding that the timing set forth in the statute is so significant to the process and parties that a petition must be dismissed, without leave to amend, if the time requirements are not strictly fulfilled. (footnote omitted).

      The medical reports issued by the physicians hired by Mark's counsel cannot be furnished under section 744.331(3)(e), which provides that "each examining committee member must have access to, and may consider, previous examinations of the person," because these physicians did not examine Milton.

      In our decision in this matter, we are upholding the trial court's order essentially clarifying, at the request of the petitioner, its February 5, 2018 protective order in the ongoing trust proceeding. We read this order as allowing the guardianship judge to readdress the matters in the order if and when the petitioner files a guardianship proceeding, as the trial court stated at the hearing.

      Chapter 736, Fla. Stat. (2018).

      Chapter 744, Fla. Stat. (2018).

      The petition also sought attorney's fees, costs, and "such other relief as the Court deems just and proper."

      Consistent with the protective orders and additional motions filed by the parties in this Court, the briefs and record pertaining to these documents have been filed here under seal.

      CPCS and Mark Wallace were ultimately granted a partial summary judgment ordering Milton Wallace to transfer all joint marital assets into the irrevocable trust.

      The predecessor judge retired before a successor probate judge heard and ruled on the as-yet-unfiled guardianship issues.

      It may eventuate that the successor probate judge who entered the premature injunction is the judge ultimately assigned to the guardianship petition if and when filed. Nonetheless, that judge when assigned is bound to apply a different body of law (the Florida Guardianship Law, Chapter 744) and a different set of rules (Part III of the Florida Probate Rules, 5.540 through 5.800 ). A protective order well suited to a trust-related issue may frustrate the efforts of medical and mental health professionals in their subsequent assessment of an AIP's capacity or incapacity.

      Mark Wallace's motion for relief from the earlier protective orders also asked the probate court (in the trust case) to permit him to attach three opinions of experts who evaluated the medical records obtained from Dr. Duara and other information. These three opinions, however, were not based on personal consultations with Milton Wallace. Because the verified allegations in a guardianship petition are to be based on "personal observations" and consultations with "attending" physicians, section 744.3201(2), those opinions would not seem to be subject to our holding in Linde regarding reports for which an examining committee "must have access." The relevance and admissibility of such expert reports ordinarily would be determined in preparation for, or at, the adjudicatory hearing.

      § 744.3701, Fla. Stat. (2018), "Confidentiality." Although not pertinent here, a guardian ad litem appointed in connection with separate provisions pertaining to the settlement of a minor's claim may also review such reports.

      In the present case, there is additional concern for the incapacitated son of Milton Wallace, Hardy Wallace, for whom CPCS has served as guardian since 2015.


text:
    Marcos Alejandro TRAFICANTE, Appellant, v. Shanelle LAMBERT, Appellee.
    No. 3D18-1739
    District Court of Appeal of Florida, Third District.
    Opinion filed June 26, 2019
    Jose-Carlos Villanueva, for appellant.
    No appearance for appellee.
    Before SALTER, LOGUE and SCALES, JJ.
   PER CURIAM.

Affirmed. See § 784.046, Fla. Stat. (2018) (action by victim of repeat violence; defining "violence" to include assault, and "repeat violence" to mean two incidents of violence committed by the respondent, one of which must have been within six months of the filing of the petition); Levy v. Jacobs, 69 So. 3d 403, 405 (Fla. 4th DCA 2011) ("An appellate court reviews an order granting an injunction for protection against repeat violence to determine whether each alleged act of violence is supported by competent, substantial evidence").

In the trial court, the appellee/petitioner was represented by counsel, testified to the first and second incidents of violence (May 27, 2018, and April 8, 2018), and provided corroborative evidence through the testimony of a law enforcement officer and photographic evidence. The second incident indisputably occurred less than six months prior to the filing of the petition. The respondent, who is the appellant here, was not represented by counsel in the trial court and provided no evidence beyond his own denial.

In this Court, the appellee/petitioner is not represented by counsel and has not filed a brief or memorandum of points and authorities. Nonetheless, the appellant has failed to demonstrate legal error, and the record provides competent, substantial evidence supporting the final judgment of injunction for protection against repeat violence (after notice).

Affirmed.