author: M.K. Thomas, J.

text:
    LEE MEMORIAL HEALTH SYSTEM GULF COAST MEDICAL CENTER, Appellant, v. State of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D16-1969
    District Court of Appeal of Florida, First District.
    February 27, 2019 Rehearing Denied May 28, 2019
    Joanne B. Erde and Donna Holshouser Stinson of Duane Morris LLP, Miami, for Appellant.
    Tracy Cooper George of the Agency for Health Care Administration, Tallahassee, for Appellee.
   M.K. Thomas, J.

Lee Memorial Health System Gulf Coast Medical Center ("Gulf Coast") challenges a final order of the Agency for Health Care Administration ("the Agency"), which found it was overpaid with Medicaid funds for in-patient emergency services rendered to Medicaid eligible undocumented aliens. Gulf Coast argues the Agency was without authority to order reimbursement as it was barred from conducting retrospective audits on claims for emergency in-patient services that were pre-authorized and paid. We agree and reverse.

I. FACTS

In 2002, exercising authority under section 409.905(5)(a), Florida Statutes, the Agency implemented a mandatory pre-authorization program regarding Medicaid hospital in-patient services, including emergency services provided to undocumented alien recipients. The new program required medical providers to acquire authorization either during or before provision of the emergency medical services. Only those claims for hospital inpatient services that had received pre-authorization with a pre-authorization verification number could be submitted to the Agency for payment.

In 2006, Gulf Coast entered into a Medicaid Provider Agreement ("the Agreement") with the Agency to participate in the Florida Medicaid program. Gulf Coast billed Medicaid in 2007 for emergency in-patient services provided to undocumented aliens. Gulf Coast followed the required procedures, inclusive of acquisition of pre-authorization for the medical services subsequently provided and billed to Medicaid. As part of the pre-authorization process, the Department of Children and Families ("DCF") provided Gulf Coast with a pre-authorization number signifying each undocumented alien was qualified and eligible for Medicaid, suffered from an emergency medical condition, and approved the estimated duration of emergent care. The Agency reviewed the claims submitted by Gulf Coast and issued payment.

In 2009, under its compliance and monitoring authority, the Centers for Medicare and Medicaid Services ("CMS"), a federal agency within the Department of Health and Human Services ("HHS"), conducted a review of Florida's Medicaid expense reports. CMS concluded Florida was claiming federal funding for emergency medical services "beyond what federal regulations defined to be an emergency." Specifically, the standard utilized by the federal government to determine what constitutes an "emergency medical condition" requiring "emergency medical services" was more restrictive than that used by DCF. CMS recommended the Agency review and re-determine the allowability of claims for all emergency services for undocumented aliens during fiscal years 2005, 2006, and 2007. Further, based on this review and redetermination, CMS recommended the Agency revise previous amounts claimed to reflect only emergency services to undocumented aliens "to the point of stabilization."

In response to the CMS federal audit, the Agency initiated the Undocumented Alien Project ("the Project"). Under the flag of the Project, the Agency began audits of all paid in-patient hospital claims for emergency services provided to alien recipients in Florida between July 2005 and June 2010.

In 2011, Gulf Coast received notice from the Agency, through its Bureau of Medicaid Program Integrity ("MPI"), it would audited regarding claims for in-patient hospital services provided to undocumented aliens and billed to Medicaid in 2007. The purpose of the audit, according to the Agency, was to determine whether the claims were billed and paid in accordance "with Medicaid policy." Following review of the claims, the Agency issued a Final Audit Report holding Gulf Coast was overpaid by $ 46,901.85 for in-patient services rendered to Medicaid eligible undocumented aliens post alleviation of an emergency medical condition and found the overpayment to be subject to recoupment.

In response, Gulf Coast filed a petition for formal administrative hearing to challenge the finding of overpayment. Following the hearing, the administrative law judge ("ALJ") determined the Agency had exceeded the scope of its authority as there was no provision in chapter 409, Florida Statutes, granting the Agency the authority to decide whether the recipient had an emergency medical condition - a decision exclusively within the authority of DCF and which had been previously reviewed and authorized. However, the Agency rejected the findings and conclusions of the ALJ. The Agency held that overpayments in the audit report, which were based on its determination of the existence and duration of an emergency medical condition, were recoverable pursuant to its Coverage and Limitations Handbook, which limited eligibility to only duration of the emergency until it was "alleviated." The Agency ordered reimbursement by Gulf Coast, plus interest. Gulf Coast appealed.

II. FEDERAL AND STATE ADMINISTRATIVE STRUCTURE

"Medicaid is a jointly financed federal-state cooperative program ... States devise and fund their own medical assistance programs, subject to the requirements of the Medicaid Act, and the federal government provides partial reimbursement." Moore ex rel. Moore v. Reese , 637 F.3d 1220, 1232 (11th Cir. 2011) (citing 42 U.S.C. §§ 1396b(a), 1396d(b) ). CMS is responsible for administering the Medicaid Act, including setting state guidelines and monitoring state compliance. Moore , 637 F.3d at 1235-36 (citing 42 U.S.C. § 1396a(b), 42 C.F.R. §§ 430.10, 430.15 ). CMS may recoup from the state any overpayments that were made, even if the state is unable to recover that amount from the provider. 42 C.F.R. § 433.300.

The U.S. government pays federal financial participation ("FFP") to participating states on a quarterly basis. For their part, the states must submit quarterly expense reports to the U.S. government, in effect claiming FFP or, more loosely, "billing" the federal government for Medicaid costs. If the federal government believes it has overpaid a state, it may disallow claims for FFP and recover the amount of overpayment from the state. The state is entitled to pursue an administrative appeal, before the appropriate federal agency, of any disallowance it disputes. See 42 U.S.C. § 1316(e). Florida receives FFP funding to cover a percentage of its Medicaid program expenditures.

Federal law broadly prohibits compensating a state through FFP under the Medicaid program "for medical assistance furnished to an alien who is not lawfully admitted for permanent residence or otherwise permanently residing in the United States under color of law." 42 U.S.C. § 1396b(v)(1). However, it permits FFP for services provided undocumented aliens that "are necessary to treat an emergency medical condition" if the individual otherwise meets the conditions for participation in the Medicaid program. 42 C.F.R. § 40.255(a); see also 42 U.S.C. § 1396b(v)(2). In fact, federal law mandates that state Medicaid programs provide services necessary to treat an undocumented alien's emergency medical condition. 42 U.S.C. § 1396(b) v.

Florida enacted legislation consistent with federal law. See §§ 409.902(2)(b), 409.904(4), Fla. Stat. Florida statutes and rules, with minor variations, incorporate the federal standards limiting the eligibility of undocumented aliens to treatment for emergency medical conditions. Florida law sets forth "Provider Requirements" and establishes that all Medicaid providers enrolled in the Medicaid program and billing agents who submit claims to Medicaid on behalf of an enrolled Medicaid provider must comply with the provisions of the Florida Medicaid Provider General Handbook. Fla. Admin. Code R. 59G-4.150. The "Handbook" contains a section entitled "Emergencies: Medicaid for Aliens," also known as the "Statement on the Eligibility of Aliens for Services" or "SEAS," which provides, in pertinent part:

The Medicaid Hospital Services Program reimburses for emergency services provided to aliens who meet all Medicaid eligibility requirements except for citizenship or alien status. Eligibility can be authorized only for the duration of the emergency. Medicaid will not pay for continuous or episodic services after the emergency has been alleviated . (emphasis added).

Florida law designates DCF as responsible for determining eligibility for Medicaid. § 409.902(1), Fla. Stat. The Agency "is designated as the single state agency authorized to make payments" under Medicaid. § 409.902(1), Fla. Stat. Participating medical providers seek reimbursement from the Agency for services provided to Medicaid eligible patients. Id. Florida law permits the Agency to review these claims two ways: by conducting pre-payment reviews of provider claims before paying the provider; and/or, by conducting post-payment reviews/audits to identify any overpayments. § 409.13(3), (5), Fla. Stat. The latter method is routinely referred to as the "pay and chase" method in which the Agency reviews claims after payment using "peer reviews" by medical professionals to determine whether the services provided were medically necessary and otherwise permitted by Medicaid. §§ 409.913(1)(d)-(e), (2), (5), (7); 409.9131(2)(b), (2)(d), Fla. Stat. As a result of this pay and chase option, medical providers must maintain records for a period of five years for the Agency to audit for overpayment and seek reimbursement from medical providers. § 409.913(9), Fla. Stat.

Before and after the prior authorization program was implemented in 2002, DCF has been responsible for making Medicaid eligibility determinations based on information submitted by providers. Conversely, the Agency's assigned Medicaid role is to determine the medical necessity of the services rendered to treat the emergency medical condition. § 409.902, Fla. Stat. Prior to 2002, if the Agency regarded the treatment as medically necessary, the claims were approved and paid by the Agency. In 2002, as required by statute, the Agency began a prior authorization program for Medicaid inpatient hospital services. The purpose was to determine, before payment, if services were medically necessary. DCF assigned the limited eligibility period for the duration of the emergency, which was the date of admittance through the date of discharge. Until 2010, the Agency accepted DCF's determination of the emergency medical condition and the period of eligibility or duration of that emergency medical condition. However, as a result of the CMS review and audit in 2009, the Agency changed its procedures. After July 1, 2010, the Agency announced it would begin applying a new standard to claims for undocumented aliens. Instead of reviewing solely for "medical necessity," the Agency would only reimburse for services up to the patient reaching the point of "stabilization." In essence, the Agency announced it was expanding its evaluation to also address duration of the emergency medical condition - a determination historically made solely by DCF.

The Agency began audits and applied this new "stabilization standard" retroactively to claims that had already been paid prior to July 1, 2010, seeking to recoup money from the hospitals. In response, the medical providers initiated litigation, arguing the Agency was improperly operating under an unpromulgated rule by applying a "stabilization standard." See Bayfront v. AHCA, Case No. 12-2757RU (Fla. DOAH Dec. 21, 2012), appeal dismissed, AHCA v. Bayfront Medical Ctr. , 145 So.3d 888 (Fla. 1st DCA 2014) ("Bayfront I "). The Agency defended by arguing the stabilization standard was not new, but it simply began enforcing, at the direction of the federal government, a reasonable interpretation of existing law, which permits payment only for the "duration" of the emergency and not past the point of "alleviation." The Agency asserted that until July 1, 2010, there was no system, procedure, or practice for determining when the duration of an undocumented alien's emergency ended or when the emergency was alleviated, other than the initial determination of eligibility.

The Final Order in Bayfront I determined the Agency's application of the "stabilization standard" was an unadopted rule and prohibited its further use. The issue of jurisdictional confines of DCF versus the Agency regarding the determination of "duration" of the emergency medical condition was not specifically addressed.

After Bayfront I , the Agency embarked upon a course of action to conduct retrospective and prospective reviews of hospital inpatient claims for Medicaid payments relying only on existing statutes and rules. The Agency developed new guidelines for peer reviewers. It provided peer reviewers with provisions of the Florida Medicaid Handbooks that have been incorporated by reference into the Agency's rules. The Agency expected the reviewers to apply their "education, clinical expertise, and experience to determine if services provided were 'emergency services or treatment,' " as defined in section 409.901(11) for an "emergency medical condition," as defined in section 409.901(10).

The Agency's amended guidelines for peer reviewers lead to the inevitable sequel to Bayfront I. Bayfront Medical Ctr., et al. v. AHCA , DOAH Case No. 14-4758RU (Fla. DOAH June 28, 2016), aff'd , Bayfront v. AHCA , 192 So.3d 472 (Fla. 1st DCA 2016) ("Bayfront II "). In Bayfront II , the medical providers again challenged the Agency's methods as unpromulgated rules. However, the ALJ found that the use of an "alleviation standard" by peer reviewers was discernably different from the prior "stabilization standard," in that it was not treated as an unadopted rule throughout the Agency. The new alleviation standard was allowed where it was applied in a plain and ordinary sense and was not enforced by the Agency as a hardline standard.

In this case, we further analyze the scope of Agency authority, albeit limited in context to Agency review of claims for emergency inpatient hospital services that were pre-authorized and paid.

III. ANALYSIS

On January 8, 2019, the newly enacted article V, section 21, of the Florida Constitution took effect. According to the amendment, "[i]n interpreting a state statute or rule, a state court or an officer hearing an administrative action pursuant to general law may not defer to an administrative agency's interpretation of such statute or rule, and must instead interpret such statute or rule de novo." Art. V, § 21, Fla. Const. (2019). Prior to the passage of article V, section 21, administrative agencies were afforded wide discretion in the interpretation of a statute, and an agency's interpretation of a statute it has authority to administer was not overturned on appeal unless clearly erroneous. Amerisure Mut. Ins. Co. v. Fla. Dep't of Fin. Servs. , 156 So.3d 520, 529 (Fla. 1st DCA 2015) ; Sullivan v. Fla. Dep't of Envtl. Prot. , 890 So.2d 417, 420 (Fla. 1st DCA 2004). We recognize that questions may arise as to whether the newly enacted amendment should be retroactively applied. Here, we decline to address the question as it is not necessary to our legal analysis, because even if deference were provided to the Agency's interpretation of the statute, "judicial adherence to the Agency's view is not demanded when it is contrary to the statute's plain meaning," as is the case here. PAC for Equality v. Dep't of State, Fla. Elections Comm'n , 542 So.2d 459, 460 (Fla. 2d DCA 1989), quoted in Werner v. Dep't of Ins. & Treasurer , 689 So.2d 1211, 1214 (Fla. 1st DCA 1997) ; see also Kessler v. Dep't of Mgmt. Servs., Div. of State Grp. Ins. , 17 So.3d 759, 762 (Fla. 1st DCA 2009) ("Judicial deference never requires that courts adopt an agency's interpretation of a statute or rule when the agency's interpretation cannot be reconciled with the plain language of the statute ...").

A. Retrospective Review is Contrary to the Plain Language of Section 409.905(5)(a), Florida Statutes.

Section 409.905 was amended to provide the Agency, for the first time, the authority to condition payment for inpatient hospital services upon a pre-payment review, which was referred to as prior authorization. The statute, as amended, specifically provides:

The agency shall pay for all covered services provided for the medical care and treatment of a recipient who is admitted as an inpatient by a licensed physician or dentist to a hospital licensed under part I of chapter 395. However, the agency shall limit the payment for inpatient hospital services for a Medicaid recipient 21 years of age or older to 45 days or the number of days necessary to comply with the General Appropriations Act.
(a) The agency may implement reimbursement and utilization management reforms to comply with any limitations or directions in the General Appropriations Act ... Upon implementing the prior authorization program for hospital inpatient services, the agency shall discontinue its hospital retrospective review program.

§ 409.905(5), Fla. Stat. (emphasis added). Prior to this grant of authority, the Agency paid claims prior to any review; however, it later conducted a retrospective review on a percentage of all claims to determine if they had been properly paid. If upon retrospective review the Agency suspected fraud or abuse, the claim was referred to its MPI office, which only conducted reviews on claims that appeared to be outliers or had abnormal billing patterns. MPI's function was to investigate possible Medicaid abuse; MPI did not conduct general retrospective reviews.

Section 409.905, clearly advises that for hospital inpatient services, upon implementing the new authorization program, "the agency shall discontinue its hospital retrospective review program." § 409.905(5)(a), Fla. Stat. (emphasis added). Pursuant to the new statutory bar to retrospective reviews, the Agency stopped conducting general retrospective reviews of hospital in-patient claims in 2002, but continued to permit MPI to conduct limited retrospective reviews where fraud or abuse was suspected. It is clear that in 2002, the Agency understood that general retrospective reviews were prohibited under the amended statute when it advised all providers, "[t]he new inpatient prior authorization program will involve concurrent review ... thus rendering obsolete the retrospective reviews ." The Project, however, was a review of "all the alien ... claims for all hospital providers during this time period" not specifically targeted to fraud or abuse and contrary to the plain reading of the statute.

Thus, the ALJ's conclusion that the Agency's retrospective audit on claims for emergency in-patient services provided to undocumented aliens was the type of review prohibited by section 409.905(5)(a) is not only supported by a plain reading of the statute, but is also supported by the record evidence of the Agency's claim review history. The Agency acknowledges that the Project was a review of all inpatient claims for undocumented aliens, but it opines section 409.905(5)(a) is not controlling because the retrospective review was conducted by MPI. Yet, the statute does not distinguish among the Agency's different offices nor does the office that conducts the review necessarily dictate the type of audit being conducted. Here, the plain reading of the statute makes clear that the Agency is barred from conducting general retrospective reviews of claims, which the Project commanded. We find no ambiguity in the prohibition on retrospective review in section 409.905(5)(a).

B. Section 409.913, Florida Statutes, Does not Provide the Agency Authority to Conduct General Retrospective Reviews.

The Agency also argues on appeal it had authority to conduct the retrospective audit pursuant to section 409.913. The Agency interprets section 409.913 as requiring it to seek reimbursement of any overpayment to providers, and this can only be accomplished via retrospective audits. However, overpayment is defined as "any amount not authorized to be paid by the Medicaid program, whether paid as a result of inaccurate or improper cost reporting, improper claiming, unacceptable practices, fraud, abuse or mistake." § 409.913(1)(e), Fla. Stat. (emphasis added). Post 2002, the amended statute required medical providers to obtain pre-authorization from the Agency before the inpatient medical services were provided to undocumented aliens. Following treatment, the medical provider sent the Agency the bill for the pre-approved services.

The Agency then reviewed the bill and issued payment. Essentially, the Agency now argues another review or repetitive audits are allowable under 409.913. While we agree section 409.913 does allow retrospective audits, it is only in the context of claims not previously reviewed and where fraudulent acts are suspected.

Although we recognize section 409.913 provides the Agency the authority to audit claims under certain circumstances, it does not provide the Agency the authority to implement a sweeping retrospective review plan inclusive of hospital inpatient services to undocumented aliens. See Diaz v. State of Fla., Agency for Health Care Admin. , 65 So.3d 78, 82 (Fla. 3d DCA 2011) (holding that to further the objectives of 409.913 the Legislature requires agencies to respond when a provider engages in fraudulent or abusive practices). We do not address what factors trigger an audit under section 409.913 as that is not necessary for our analysis or conclusion given no allegations of fraud or abuse were raised.

We reject the Agency's argument that its duty to maintain Medicaid program integrity would be seriously undermined if administrative finality prevented it from auditing paid claims. Administrative finality should not bar the retrospective review of all paid claims; rather, in the absence of fraud or abuse, it bars the reopening of all adjudicated paid claims, which were previously determined on the merits to be compensable. When the Agency determines compensability for prior authorization, it is not expected to simultaneously investigate the provider for possible wrongdoing, such as fraud or misrepresentation. These matters are clearly distinguishable, and such matters may be explored by the Agency retrospectively in connection with adjudicated claims.

In that section 409.905's prohibition only applies to hospital inpatient services that are subject to prior authorization review, the ALJ's interpretation leaves intact the Agency's authority to conduct retrospective reviews for all other matters, including reviews of prior authorized claims to determine if the claim for prior authorization was materially false. § 409.913(15)(i), (16)(c), Fla. Stat. As such, the ALJ's interpretation does not render the review function meaningless and preserves both statutes.

C. Statute of Limitations.

Gulf Coast argues the audits for overpayment are barred by Chapter 95, Florida Statutes, which requires an action arising out of statutory liability to be brought within four years of the date the cause of action accrues. § 95.11(3)(f), Fla. Stat. A cause of action accrues when the last element of the action has been met. § 95.031(1), Fla. Stat. Here, Gulf Coast's final bill for the claims at issue was submitted approximately eight years prior to the Agency's retrospective determination it had overpaid. The Agency defends that Chapter 95 does not apply to administrative proceedings unless the action is a direct substitute for a civil action. That exception does not apply here. There is no federal or state statute that requires Medicaid overpayments to be audited within a certain period of time. See Horta v. Dep't of Children Families , 911 So.2d 139, 140 (Fla. 3d DCA 2005). We hold the statute of limitations does not apply, because the instant case is a quasi-judicial administrative proceeding. The case is similar to Horta , in that an overpayment of federal funds was alleged, and the recovering entity sought recovery of the overpayment. Further, applying a statute of limitations to review of claims allowed under section 409.913 would be inequitable. Actual instances of fraud or abuse of the Medicaid system could take significant amounts of time to discover and allege, and federal Medicaid funds could reasonably go unrecovered as a result.

Notwithstanding the foregoing, even if Chapter 95's statute of limitations were applicable, the audit would not be time-barred. The cause of action does not accrue until the last element constituting the cause of action occurs. In overpayment actions, the final element is the identification of the overpayment amount, which occurs with the initiation of the Final Audit Report. In the instant case, the statute of limitations never actually began running because the last element and the initiation of the action occurred simultaneously.

IV. CONCLUSION

In conclusion, the Agency erroneously relied upon section 409.913 as providing it authority to conduct general retrospective reviews of claims for emergency in-patient services provided to undocumented aliens that had previously been authorized and paid. The plain language of section 409.905(5)(a), as well as the Agency's claim review history, specifically bars such retrospective reviews. Thus, the Agency was without authority to conduct the retrospective review and to order Gulf Coast to reimburse what the Agency considered to be overpayment. Accordingly, we reverse the order on appeal.

REVERSED and REMANDED for entry of an order consistent with this opinion.

B.L. Thomas, C.J., and Jay, J., concur.

      Prior to 2002, medical providers were not required to obtain pre-authorization of emergency in-patient hospital services in order to ensure payment. Following provision of medical services, but before making any payments to medical providers, the Agency would review submitted claims to ensure, (1) the recipient was Medicaid eligible per Florida's Department of Children and Families ("DCF"); (2) the services were medically necessary; and (3) the services were for treatment of the emergency medical condition previously approved by DCF.

      The Agency first notified Gulf Coast of its preliminary audit results estimating an overpayment amount of $ 100,588.07. This was later amended to $ 79,917.50 inclusive of fines and costs. At the time of hearing, the Agency asserted an overpayment amount of $ 46,901.85.

      The Agency appealed the determination; however, ultimately voluntarily dismissed the appeal after oral argument, but before an opinion was released. Bayfront Medical Ctr., Inc. , 145 So.3d 888.

      Of note, the prohibition of section 409.905(5)(a) applies only to claims for in-patient hospital services. Ex post facto audits of paid Medicaid claims are commonplace but unlike the typical retrospective review, the Project involves the attempted re-adjudication of claims that were previously authorized on a prospective basis.

      We note that it is appropriate for the Agency to determine whether, for example, the services for which payment is sought is medically necessary to treat the emergency medical condition. However, the Agency must accept DCF's finding that the recipient's condition was an emergency medical condition, as well as all other findings in support of eligibility, including the duration of the emergency medical condition.

      Section 409.913 provides in pertinent part: "The Agency shall operate a program to oversee the activities of Florida Medicaid recipients, and providers and their representatives, to ensure that fraudulent and abusive behavior and neglect of recipients occur to the minimum extent possible, and to recover overpayments and impose sanctions as appropriate." Section 409.913, Fla. Stat.

      The Agency did not argue the audit was conducted on a random basis pursuant to section 409.913(2), Florida Statutes.

      The Agency also argues it has the ability to conduct retrospective reviews pursuant to SEAS to evaluate "alleviation" of an emergency medical condition and deny payment for medical services falling outside its determined timeline - a determination not usurping that of DCF under "eligibility" review. This issue need not be addressed as it is rendered moot by section 409.905(5)(a), which clearly forbids retrospective reviews of paid inpatient hospital claims for undocumented aliens. The validity of the Agency's retrospective audit of paid claims in cases not involving inpatient hospital services to undocumented aliens is not before us.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Samuel Lee LIGHTSEY, Jr., Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-2308
    District Court of Appeal of Florida, Third District.
    Opinion filed February 20, 2019
    Carlos J. Martinez, Public Defender, and Jonathan Greenberg, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, for appellee.
    Before FERNANDEZ, LOGUE and SCALES, JJ.
   PER CURIAM.

Affirmed. Franklin v. State, 258 So.3d 1239 (Fla. 2018) ; State v. Michel, 257 So.3d 3 (Fla. 2018).


author: EMAS, C.J.

text:
    George EVANS, Appellant, v. Deirdre A. MURPHY, Appellee.
    No. 3D18-948
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019
    Lehtinen Schultz, PLLC, and Claudio Riedi, Miami, for appellant.
    Costello Law, LLC, and Joseph A. Costello (Fort Lauderdale), Plantation, for appellee.
    Before EMAS, C.J., and SALTER and MILLER, JJ.
   EMAS, C.J.

George Evans appeals the trial court's order summarily denying his 2015 "Amended Motion for Relief from Order Dated December 2, 2013." The trial court denied the motion as untimely, "facially deficient and simply an attempt to re-litigate issues which were previously known and could have been addressed at the time the original order was entered."

We agree, and further conclude that the amended motion was barred by law of the case. See Evans v. Murphy, 159 So.3d 199 (Fla. 3d DCA 2015) ; Suffolk Constr. Co. v. First Sealord Sur., Inc., 63 So.3d 18, 19 (Fla. 3d DCA 2011) ("When an appellate court has decided a question of law, the decision of the court becomes law of the case. This doctrine prevents reconsideration of all issues necessarily decided in the former appeal").

Affirmed.

      We note, by way of background, that the action below began as a dissolution of marriage case in which Evans represented the former husband. During the pendency of the dissolution proceedings, Evans' client was ordered to transfer $ 300,000 (proceeds from a settlement of an unrelated civil suit) into Evans' law firm trust account, pending further order of the court. Later, the trial court ordered that $ 180,000 of those proceeds be deposited into the court registry. Evans failed to do so. Evans later acknowledged at a hearing before the trial court that he transferred those funds from his trust account without the trial court's authorization. Evans also failed to comply with the trial court's order to produce his firm's trust and bank records to account for the disbursement of those proceeds. Several hearings were held and orders entered relating to Evans' improper disbursement of those funds and his failure to comply with the trial court's orders. A more expansive description of the history of the case can be found in Murphy v. Evans, 96 So.3d 1034 (Fla. 3d DCA 2012). Evans was eventually held in contempt, and was ordered to pay the former wife's attorney's fees and costs. Evans was suspended from the practice of law by emergency order of the Florida Supreme Court, and he later consented to a permanent disbarment following a referee's determination that Evans, inter alia, wrongfully disbursed funds from his law firm trust account to satisfy personal and business obligations. See The Fla. Bar v. Evans, 77 So. 3d 647 (Fla. 2011) (table).

      This is at least the fourth appeal taken by Evans from orders entered against him in circuit court case number 04-13059 FC 07. See 3D14-201; 3D13-2452; 3D10-2401.


author: LINDSEY, J.

text:
    VISION PALM SPRINGS, LLLP, Appellant, v. MICHAEL ANTHONY COMPANY, Michael Paolercio, Anthony Paolercio, Hugo Liberti, Palm Springs Town Homes, LLC, Coscan Palm Springs, LLC, Coscan Homes, LLC, Coscan Corporate Holdings, LLC, Albert C. Piazza, and Michael R. Neal, Appellees.
    No. 3D17-0200
    District Court of Appeal of Florida, Third District.
    Opinion filed February 27, 2019.
    Hall, Lamb, Hall & Leto, P.A., and Matthew P. Leto, Miami, and Vanessa Palacio, Coral Gables, for appellant.
    Akerman LLP, and Carrie Ann Wozniak (Orlando), and Jonathan S. Robbins (Ft. Lauderdale), for appellees Coscan Palm Springs, LLC, Coscan Homes, LLC, Coscan Corporate Holdings, LLC, Albert C. Piazza, and Michael R. Neal.
    Before SALTER, FERNANDEZ, and LINDSEY, JJ.

      Judge Salter did not participate in Oral Argument.

   LINDSEY, J.

Vision Palm Springs, LLLP ("Vision") appeals the trial court's December 27, 2016 Order Granting the Coscan Defendants' Motion to Enforce Settlement Agreement. Because we find, based on the undisputed evidence below, that the Coscan Defendants did not meet their burden to prove that the parties reached an agreement, we reverse and remand for further proceedings.

I. FACTUAL AND PROCEDURAL HISTORY

Vision originally filed the underlying action in 2009 against Coscan Palm Springs, LLC; Coscan Homes, LLC; Coscan Corporate Holdings, LLC; Albert C. Piazza; and Michael R. Neal (collectively "Coscan" or the "Coscan Defendants"), following a failed real estate deal. After several years of litigation, the parties began to discuss settlement. However, these discussions culminated in a disagreement over whether the parties had reached a binding and enforceable settlement agreement.

On September 30, 2015, the Coscan Defendants filed their Motion to Enforce Settlement Agreement ("Motion to Enforce"). At the evidentiary hearing, the only evidence presented consisted of emails between counsel for the parties as well as the deposition of Meryl Sidikman ("the adjuster"), the representative of Coscan's insurance carrier, Chubb Insurance Group ("Chubb" or "the carrier"). Although Chubb was not a party to the settlement, it was going to fund $ 275,000.00 of the settlement proceeds. On December 27, 2016, the trial court entered an order granting Coscan's Motion to Enforce and imposing its own effective date of the settlement. This timely appeal follows.

II. JURISDICTION

This Court has jurisdiction pursuant to Florida Rule of Appellate Procedure 9.030(b)(1)(A). See Travelers Indem. Co. v. Walker, 401 So.2d 1147, 1149 (Fla. 3d DCA 1981) (holding that a trial court's order enforcing a settlement is a final, appealable order when there is nothing left for the court to do, other than to enforce what the order required of the parties).

III. STANDARD OF REVIEW

"Settlements ... are governed by the rules for interpretation of contracts." Robbie v. City of Miami, 469 So.2d 1384, 1385 (Fla. 1985) (citing Dorson v. Dorson, 393 So.2d 632 (Fla. 4th DCA 1981) ). Contract formation requires a manifestation of mutual assent, the existence of which is determined by an objective test. Id. A trial court's finding of mutual assent "must be supported by competent substantial evidence." Cheverie v. Geisser, 783 So.2d 1115, 1119 (Fla. 4th DCA 2001) (citing Roggio-Wilgus v. Marlin, 699 So.2d 1050, 1050 (Fla. 4th DCA 1997) ). Moreover, the party seeking to enforce a settlement bears the burden of establishing assent by the opposing party. Id. (citing Nehleber v. Anzalone, 345 So.2d 822 (Fla. 4th DCA 1977) ).

III. ANALYSIS

The sole issue on appeal is whether the Coscan Defendants met their burden in the trial court to prove that the parties had reached a valid and binding settlement agreement. Based on the undisputed record evidence before us, we find that they did not.

Preliminary negotiations do not establish a sufficient manifestation of mutual assent to create an enforceable settlement agreement. Jaffe v. Jaffe, 147 So.3d 578 (Fla. 3d DCA 2014) (citing Cheverie, 783 So.2d at 1118 ). "To be judicially enforceable, a settlement 'must be sufficiently specific and mutually agreeable as to every essential element.' " Id. (quoting Grimsley v. Inverrary Resort Hotel, Ltd., 748 So.2d 299, 301 (Fla. 4th DCA 1999) ).

It is axiomatic under Florida contract law "that the acceptance of an offer that results in an enforceable agreement must be (1) absolute and unconditional; (2) identical with the terms of the offer; and (3) in the mode, at the place, and within the time expressly or impliedly stated within the offer." Trout v. Apicella, 78 So.3d 681, 684 (Fla. 5th DCA 2012) ; see also Hanson v. Maxfield, 23 So.3d 736, 739 (Fla. 1st DCA 2009) ("An acceptance of a settlement offer will be effective to create a binding settlement only if it is absolute, unconditional, and identical with the terms of the offer."); Sorocka v. Severe, 858 So.2d 388, 389 (Fla. 3d DCA 2003) ("An acceptance is effective to create a contract only if it is absolute and unconditional, and identical with the terms of the offer."). Thus, unless an acceptance is the "mirror image" of the offer in all material respects, it is treated as a counteroffer that rejects the original offer. Pena v. Fox, 198 So.3d 61, 63 (Fla. 2d DCA 2015) ; see also Padron v. Plantada, 632 So.2d 113 (Fla. 3d DCA 1994).

With these basic contract principles in mind, we consider the following undisputed evidence that was presented to the trial court at the hearing on Coscan's Motion to Enforce:

• June 16, 2015 - Coscan's counsel emailed Vision's counsel offering to settle the case for $ 275,000.00.
• June 17, 2015 - Vision's counsel emailed Coscan's counsel accepting the $ 275,000.00 pending "confirmation of the overall deal" by a third party who would be sharing in the proceeds of the insurance funds and other funds that were subject to a supersedeas bond in a separate action pending in Palm Beach County.
• June 17, 2015 - Coscan's counsel emailed the insurance adjuster, Meryl Sidikman, to inform her that Vision had accepted the $ 275,000.00 offer subject to the approval by the third party and his clients. In response, Ms. Sidikman acknowledged the email and thanked him for his "hard work."
• June 23, 2015 to September 8, 2015 - Ms. Sidikman took a leave of absence from her position with Chubb.
• June 26, 2015 at 11:38 a.m. - Counsel for co-defendant, Palm Springs Town Homes, emailed counsel for all parties asking that they "hold off getting signatures just yet" and identified several revisions to the settlement agreement requested by the parties, including (1) a change to when a satisfaction of judgment must be filed; (2) a modification to the release to make clear that Vision may continue to sue the sellers who were not parties to the agreement; and (3) clarifications to the language in the release.
• June 26, 2015 at 2:14 p.m. - Coscan's counsel raised concerns that the proposed releases were insufficient to protect his clients from being brought back into the case by the sellers, who were not parties to the agreement. In that email, counsel also remarked that "[a]s for getting the case wrapped up next week, I'm happy to do my best, but I am dealing with a carrier so ...."
• June 26, 2015 at 4:54 p.m. - Counsel for co-defendant Palm Springs Town Homes emailed a revised proposed written settlement agreement ("First Revised Agreement") to all parties for review. Counsel wrote: "Once you all have blessed, I will convert this redline to a final document and re-circulate for signature."
• June 29, 2015 - Further revisions were made, and a second revised settlement agreement was circulated for approval ("Second Revised Agreement"). Counsel for co-defendant Palm Springs Town stated: "So provided that the revised releases meet with global approval, then I think we are ready to ink this deal. Please review and confirm we all can chase down our clients for signature."
• June 30, 2015 - In an email to Coscan's counsel, Vision's counsel raised an issue as to who would act as the escrow agent for the funds being received by the insurance company.
• July 1, 2015 at 8:08 p.m. - Coscan's counsel responded that he approves of David Rothstein acting in that capacity but defers to the carrier: "Ok with me if it's ok with the carrier."
• July 1, 2015 at 8:29 p.m. - Vision's counsel emailed Coscan's counsel and asked when the insurance carrier will confirm the settlement.
• July 1, 2015 at 8:32 p.m. - In response, Coscan's counsel states that he is still waiting on the final approval of the settlement documents from the insurance company, writing that he "just need[s] her [Ms. Sidikman] to sign off on the language in the Settlement Agreement and they [the carrier] may have specific policies re: disbursement."
• July 7, 2015 - Vision's counsel sent another e-mail to follow up on the carrier's approval of the agreement, asking, "[h]ave you heard from the carrier on this? I would like to get this signed as soon as we can."
• July 9, 2015 at 6:59 a.m. - Vision's counsel emailed Coscan's counsel the following: "The carrier has not approved or agreed [to] the proposed settlement deal at this point. Given the [F]ourth's ruling, I have to withdraw [Vision's] consent to the proposed settlement agreement."
• July 9, 2015 at 7:51 a.m. - Coscan's counsel responded, stating: "We have a settlement."
• July 9, 2015 at 7:52 a.m. - Vision's counsel replied stating: "I disagree at this point. Your last email said the carrier hadn't approved it."

Here, no settlement was finalized prior to Vision withdrawing its consent. While the parties engaged in preliminary negotiations, there was no enforceable settlement agreement because there was no assent by all of the parties to an agreement that was sufficiently specific and mutually agreeable as to every essential element. Coscan's counsel maintained throughout the negotiations that the insurance carrier would need to sign off before any agreement could be finalized. Thus, Coscan did not agree to the last of the proposed changes to the Second Revised Agreement prior to Vision revoking its agreement to settle because the carrier still had not given its approval. See Gibson v. Courtois, 539 So.2d 459, 460 (Fla. 1989) ("A mere offer not assented to constitutes no contract, for there must be not only a proposal, but an acceptance thereof. So long as a proposal is not acceded to, it is binding upon neither party, and it may be retracted." (quoting Etheredge v. Barkley, 25 Fla. 814, 6 So. 861, 862 (1889) ) ).

Ms. Sidikman took a leave of absence over the period of time when the bulk of the settlement negotiations occurred. It is undisputed that she had no contact with Coscan after June 17, 2015, which was early in the negotiations stage. It is also undisputed that Vision revoked its consent to settle on July 9, 2015. Thus, Coscan's contention that a final binding enforceable settlement was in place prior to Vision's revocation is unsupported by the facts.

Although settlement agreements are favored by the law and enforced whenever possible, there must still be a manifestation of mutual assent as to the essential settlement terms in order for the agreement to be enforceable. See Robbie, 469 So.2d at 1385 ; see also Cheverie, 783 So.2d at 1119. Courts apply an objective test to determine whether parties entered into an enforceable settlement agreement. See Gendzier v. Bielecki, 97 So.2d 604, 608 (Fla. 1957) ("The making of a contract depends not on the agreement of two minds in one intention, but on the agreement of two sets of external signs-not on the parties having meant the same thing but on their having said the same thing." (quoting Oliver Wendell Holmes, Dedication, The Path of the Law, 10 Harv. L. Rev. 457 (1897) ) ). As such, "we evaluate the existence of assent by analyzing the parties' agreement process in terms of offer and acceptance." Kolodziej v. Mason, 774 F.3d 736, 741 (11th Cir. 2014).

Here, the intent of the parties is objectively ascertainable through emails exchanged between counsel for the parties and the plain meaning of the settlement agreement language. Emails between counsel for Coscan, Vision, and co-defendant Palm Springs Town Homes demonstrate that Coscan intended the insurance carrier to first approve the Second Revised Agreement before the parties could sign the written document. Indeed, when Vision's counsel inquired as to when Coscan's carrier would give its final approval, Coscan's counsel responded, "I just need [the adjuster] to sign off on the language in the Settlement Agreement and they may have specific policies re: disbursement." Thus, Coscan explicitly intended for the insurance adjuster to first give its own approval before final execution of the agreement would occur. See Cheverie, 783 So.2d at 1119 ("Where the language of a release is disputed and the parties fail to reach an agreement as to the character, nature, or type of release to be used, an essential element of the agreement is not established."). It is undisputed that Ms. Sidikman's last communication with Coscan's counsel was on June 17, 2015, well before the Second Revised Agreement was drafted and circulated. Thus, the carrier could not have given approval and consent. Because Coscan's decision to accept the Second Revised Agreement hinged on the carrier's approval and consent, there was no deal.

We now turn to the terms of the settlement agreement itself. Where the record establishes that the parties intended further action be taken prior to completion of a binding agreement, the agreement is not final. Williams v. Ingram, 605 So.2d 890, 893 (Fla. 1st DCA 1992) (citing Albert v. Hoffman Elec. Constr. Co., 438 So.2d 1015 (Fla. 4th DCA 1983) ). In the instant case, Section 6 of the Second Revised Agreement unambiguously states: "The Effective Date shall be the date upon which the last signatory executes the Settlement Agreement." As such, the parties clearly intended for the agreement to become effective only upon execution by the last signatory.

Further, Section 2a outlines the timeframe for payment: "Within thirty days of the Effective Date of this Settlement Agreement, the Coscan Defendants shall pay or cause to be paid the sum of $ 275,000.00 ...." Thus, the signatures of all parties establish the effective date that triggers the thirty-day clock for the Coscan Defendants's payment of the funds. Without signatures, there is no effective date. Without an effective date, there is no obligation to pay. Accordingly, the trial court erred when it imposed its own effective date. See Platinum Luxury Auctions, LLC v. Concierge Auctions, LLC, 227 So.3d 685, 688 (Fla. 3d DCA 2017) ("An order enforcing a settlement agreement must conform with the terms of the agreement and may not impose terms that were not included in the agreement." (quoting Johnson v. Bezner, 910 So.2d 398, 401 (Fla. 4th DCA 2005) ) ). Because Vision never signed the proposed settlement agreement, the trial court's order enforcing the unexecuted agreement did not conform to the plain language of Section 6.

Finally, Coscan's contention that all essential terms had been agreed to, approved by the insurance adjuster, and that a binding contract existed fails because Section 6 would therefore be rendered superfluous in contradiction of basic contract law. See Silver Shells Corp. v. St. Maarten at Silver Shells Condo. Ass'n, Inc., 169 So.3d 197, 203 (Fla. 1st DCA 2015) ("[A] cardinal principle of contract interpretation is that the contract must be interpreted in a manner that does not render any provision of the contract meaningless."); Philip Morris Inc. v. French, 897 So.2d 480, 488 (Fla. 3d DCA 2004) ("Courts are required to construe a contract as a whole and give effect, where possible, to every provision of the agreement.").

IV. CONCLUSION

Because we conclude, for the reasons set forth above, that no binding and enforceable settlement agreement existed between the parties, we reverse the trial court's order granting the Coscan Defendants' Motion to Enforce Settlement Agreement and remand for proceedings consistent herewith.

Reversed and remanded with instructions.

      Vision also filed suit against Michael Anthony Company; Michael Paolercio; Anthony Paolercio; Hugo Liberti; and Palm Springs Town Homes, LLC, but these other defendants were not parties to the settlement agreement at issue here.

      This element of agreement is also sometimes referred to as a "meeting of the minds." See Restatement (Second) of Contracts § 17 (Am. Law. Inst. 1981) (explaining that although "parties to most contracts give actual as well as apparent assent, ... it is clear that a mental reservation of a party to a bargain does not impair the obligation he purports to undertake").

      See infra note 7.

      Significantly, this was the last communication between the insurance adjuster and Coscan's lawyer until September, 2015. Ms. Sidikman deposition testimony was as follows:
      Q: After the email which is dated June 17, 2015 where you thanked Mr. Robbins for getting the settlement done, when was the next conversation that took place in regards to the settlement with Mr. Robbins?
      A: I believe the last time I spoke to Mr. Robbins about this case was on June 15th.
      Q: So before the e-mail?
      A: Either the 15th or the 16th. I think we may have talked on the 16th.
      Q: That's prior to the email?
      A: Correct.
      Q: So my question was, when was the next time after this email that you spoke to him about the settlement?
      A: I did not speak to him about the settlement again until September of 2015. Yes, that would still be 2015.
      ...
      Q: Between the date of the June 17th e-mail and September of 2015, your testimony is there were no communications with Mr. Robbins about the settlement agreement at issue?
      A: I believe it is the June 16th e-mail and that would be correct.
      Q: I'm looking at June 17th.
      A: June 17th? Oh, I apologize. You are right.
      Q: When I use the word communications, that means there were no emails, phone calls or any other mode of communications about this case with Mr. Robbins?
      A: That's correct.
      (Emphasis added).

      According to her deposition testimony, Ms. Sidikman reviews the amount of the payment and the terms of the release when analyzing a settlement agreement.
      Q: What I want to know, if there is a settlement agreement that is proposed and it is written in final form, does the insurance company have to okay the final form before it can be signed off on by the insured?
      A: We would have to agree to the amount because we are going to be the entity paying the amount. And generally speaking I want to ensure that my insured is being protected by a release. The terms of the settlement agreement are what my insured has to live with. So they are really in control of the nonmonetary aspect.

      The proposed settlement agreement contemplated payment to Vision of a portion of a final judgment totaling $ 2,038,909.00 in favor of Palm Springs Town Homes, LLC in a separate action if affirmed by the Fourth District Court of Appeal. However, in an opinion dated July 8, 2015, the Fourth District Court of Appeal reversed the trial court. See Michael Anthony Co. v. Palm Springs Townhomes, 174 So.3d 428 (Fla. 4th DCA 2015).


author: VILLANTI, Judge.

text:
    Serenity HARPER, Appellant, v. GEICO GENERAL INSURANCE COMPANY, Appellee.
    Case No. 2D17-4987
    District Court of Appeal of Florida, Second District.
    Opinion filed March 1, 2019. Rehearing Denied May 21, 2019
    David M. Caldevilla of de la Parte & Gilbert, P.A., Tampa; and J. Daniel Clark of Clark & Martino, P.A., Tampa, for Appellant.
    Joshua J. Hartley, B. Richard Young, and Jordan M. Thompson of Young, Bill, Boles, Palmer & Duke, P.A., Tampa, for Appellee.
   VILLANTI, Judge.

Serenity Harper appeals the final summary judgment entered against her and in favor of her insurance company, GEICO General Insurance Company, in this bad faith case. The basis for the trial court's entry of judgment in favor of GEICO was its conclusion that GEICO had timely paid Harper's claim within sixty days of when GEICO actually received Harper's civil remedy notice (CRN) filed pursuant to section 624.155, Florida Statutes (2013). However, because the final judgment is based on a misapplication of the provisions of section 624.155, we reverse.

Harper was involved in an automobile accident on June 30, 2013, in which she sustained serious injuries. GEICO insured both Harper and the at-fault driver, and Harper made claims under both the at-fault driver's liability coverage and her own underinsured motorist (UM) coverage. When her claims were not promptly paid, Harper filed suit against both the at-fault driver and GEICO on December 10, 2013. GEICO subsequently paid Harper the at-fault driver's liability limits under his policy. However, when GEICO continued to refuse to pay Harper the benefits under her UM policy, she electronically filed a CRN with the Department of Financial Services on December 18, 2013, and she mailed a copy to GEICO on that same date. GEICO contends that it actually received the mailed copy of the CRN on December 26, 2013.

Over a month later, on February 3, 2014, GEICO agreed to pay Harper her UM policy limit of $10,000. On that date, GEICO indicated that it would send payment and a release under separate cover, and GEICO mailed the settlement check to its attorneys on February 10, 2014; however, the check and release were not mailed to Harper's counsel until February 21, 2014, sixty-five days after the CRN was electronically filed with the Department and mailed to GEICO. Harper contends that this payment was untimely under section 624.155(3)(d), which requires that payment be made within sixty days of when the CRN is filed with the Department for the bad faith to be "cured." GEICO contends that its payment was timely under section 624.155(3)(a) because it did not actually receive the CRN until December 26, and payment was made within sixty days of that date. The trial court agreed with GEICO, which had the effect of barring Harper's bad faith claim. Hence, the trial court entered final summary judgment in favor of GEICO. Harper now seeks review of that ruling.

The discrete question facing this court in this case is when the sixty-day cure period for bad faith by an insurer begins. While perhaps not a model of clarity, section 624.155 provides, in pertinent part:

(3)(a) As a condition precedent to bringing an action under this section, the department and the authorized insurer must have been given 60 days' written notice of the violation. If the department returns a notice for lack of specificity, the 60-day time period shall not begin until a proper notice is filed.
....
(c) Within 20 days of receipt of the notice, the department may return any notice that does not provide the specific information required by this section, and the department shall indicate the specific deficiencies contained in the notice. A determination by the department to return a notice for lack of specificity shall be exempt from the requirements of chapter 120.
(d) No action shall lie if, within 60 days after filing notice, the damages are paid or the circumstances giving rise to the violation are corrected.
....
(f) The applicable statute of limitations for an action under this section shall be tolled for a period of 65 days by the mailing of the notice required by this subsection or the mailing of a subsequent notice required by this subsection.

(Emphasis added.)

Subsection 624.155(3)(d) plainly states that no action shall lie if the damages are paid or corrective action is taken within sixty days after the insured files the CRN. Under current procedures, an insured files a CRN with the Department electronically. See Fla. Admin. Code R. 69J-123.002(1). And while the Department also requires the insured to print a copy of the completed CRN from the Department's website and send it to the insurer, the Department nevertheless considers the form to be "filed" when the insured clicks the "submit" button at the end of the electronic form. See Civil Remedy Notice of Insurer Violations FAQ, https://apps.fldfs.com/CivilRemedy/Help.aspx (follow "Continue" hyperlink; then follow "How do I file a Civil Remedy Notice?" hyperlink) (last visited Dec. 20, 2018). At that time, the CRN is assigned a "filing number" and any changes must be made by clicking on "edit filing." Hence, the requirements of section 624.155(3)(d) are met when the insured electronically files the CRN with the Department, and that action starts the sixty-day cure period for the insurer. Therefore, we hold that the sixty-day cure period under section 624.155 begins when the CRN is electronically filed with the Department, and to avoid a bad faith action, the insurer must pay the claim or take corrective action within sixty days from the date the CRN is electronically filed.

In this appeal, as it did in the trial court, GEICO urges us to ignore the plain language of section 624.155(3)(d) and hold that the sixty-day cure period begins when the insurer actually receives the CRN. For this proposition, it relies on the portion of section 624.155(3)(a) that says that the insurer must be "given 60 days' written notice of the violation," and Galante v. USAA Casualty Insurance Co., 895 So.2d 1189, 1191 (Fla. 4th DCA 2005), in which the court said that USAA had cured its bad faith because it "paid the contractual amount due the insured within sixty days of receipt of the notice." We reject GEICO's argument for three reasons.

First, nothing in section 624.155 requires the insurer to actually receive the CRN before the sixty-day cure period begins. To hold that the sixty-day cure period begins only upon actual receipt of the CRN would be to add language to the statute that is not there-something this court is prohibited from doing. See, e.g., Hayes v. State, 750 So.2d 1, 4 (Fla. 1999) ("We are not at liberty to add words to statutes that were not placed there by the Legislature.").

Second, the Galante decision did not turn on when the sixty-day cure period began. Instead, the issue in that case was whether the pendency of the underlying uninsured motorist action tolled the sixty-day cure period. 895 So.2d at 1191. Accordingly, the Galante decision does not support a holding that the sixty-day cure period begins only upon actual receipt of a CRN.

And third, starting the sixty-day cure period only upon actual receipt of the CRN would lead to conflicts with the application of section 624.155(3)(f). Subsection (3)(f) tolls the statute of limitations for a bad faith action for a period of sixty-five days from the date the CRN is mailed to the insurer. If the sixty-day cure period did not start to run until after actual receipt of the CRN, it would be possible in some cases for the statute of limitations to expire before the end of the sixty-day cure period. We will not interpret section 624.155 in such a way as to create such a potential conflict between its sections. For each of these reasons, we reject GEICO's argument that the sixty-day cure period starts on the date the insurer actually receives the CRN.

Having determined that the sixty-day cure period begins when the CRN is electronically filed with the Department, we turn to the disposition of this case. The record that was before the trial court at summary judgment shows that the CRN was electronically filed with the Department on December 18, 2013. Sixty days from that date was February 16, 2014, which was a Sunday, making the end of the sixty-day cure period Monday, February 17, 2014. See Fla. R. Jud. Admin. 2.514(a)(1)(C) (providing that if the last day of a time period falls on a Saturday, Sunday, or legal holiday, the time period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday). GEICO did not mail the UM settlement payment to Harper's counsel until Friday, February 21, 2014. Therefore, because GEICO did not pay Harper's claim within sixty days of the date the CRN was electronically filed with the Department, it did not pay the claim within the sixty-day cure period, and Harper was entitled to pursue her action for GEICO's alleged bad faith. Accordingly, final summary judgment in favor of GEICO was improper. Therefore, we reverse the final summary judgment and remand for further proceedings.

Reversed and remanded for further proceedings.

SILBERMAN, J., Concurs.

ROTHSTEIN-YOUAKIM, J., Concurs specially with opinion.

ROTHSTEIN-YOUAKIM, Judge, Concurring specially.

I join the majority's holding that the sixty-day statutory "cure period" of section 624.155(3)(a), Florida Statutes (2013), does not run from the date on which the insurer receives from the insured the mailed copy of the complete civil remedy notice (CRN). And although I cannot join its holding that notice was given to the insurer upon the insured's filing of the CRN with the Department of Financial Services because I do not believe that we have enough information to make that determination, I agree that reversal is warranted.

Pursuant to the first sentence of subsection (3)(a), the Department and the authorized insurer "must have been given 60 days' written notice of the violation" before a civil action for bad faith may be brought. § 624.155(3)(a). "Must have been given" is not the same as "must have received"-although couched in passive voice, it maintains focus on the actor, not the party acted upon-and so by the plain language of that sentence, the insurer's "receipt" of the CRN is not the focus of the sixty-day calculus.

Moreover, pursuant to the second sentence of subsection (3)(a), "If the department returns a notice for lack of specificity, the 60-day time period shall not begin until a proper notice is filed." And pursuant to subsection (3)(d), "No action shall lie if, within 60 days after filing notice, the damages are paid or the circumstances giving rise to the violation are corrected." These two provisions, therefore, plainly contemplate calculation of the sixty-day period without regard to the insurer's receipt of the CRN.

As GEICO contends, subsection (3)(e) presumes that the insurer will, at some point, receive the notice that has been given. See § 624.155(3)(e) ("The authorized insurer that is the recipient of a notice filed pursuant to this section shall report to the department on the disposition of the alleged violation."). That subsection, however, is not tied to subsection (3)(a) either explicitly or conceptually. It does not come into play at the inception of the conflict but instead directs the insurer to take certain action down the road, upon the conflict's resolution. Thus, contrary to GEICO's further contention, subsection (3)(e) does not "lead[ ] to the logical conclusion that the sixty-day cure period begins when the insurer receives the CRN."

The refusal to hinge the commencement of the sixty-day period on the insurer's receipt of the notice is not only consistent with the language of the statute itself but is consistent with other presuit notice statutes. In particular, in statutes in which notice of intent to sue must be given by mail, it is the mailing of the notice-not the receipt of the notice-that triggers the countdown. See, e.g., § 766.106(2)(a), (3)(a), Fla. Stat. (2013) (requiring a claimant to notify prospective defendants "by certified mail, return receipt requested, of intent to initiate litigation for medical negligence" and providing that "[n]o suit may be filed for a period of 90 days after notice is mailed to any prospective defendant," during which period "the prospective defendant or the defendant's insurer or self-insurer shall conduct a review ... to determine the liability of the defendant" (emphasis added) ); § 400.0233(2), (3)(a), Fla. Stat. (2013) (requiring a claimant in a potential nursing home action to notify prospective defendants "by certified mail, return receipt requested, of an asserted violation of a resident's rights ... or deviation from the standard of care" and providing that "[n]o suit may be filed for a period of 75 days after notice is mailed to any prospective defendant," during which period "the prospective defendants or their insurers shall conduct an evaluation of the claim to determine" liability and damages (emphasis added) ); see also, e.g., § 173.04(1), Fla. Stat. (2013) (requiring that notice of intent to sue "be sent by registered mail" to designated parties at least thirty days before filing foreclosure suit to allow parties opportunity to pay (emphasis added) ). Unlike these statutes, section 624.155 does not require that notice be given through any particular mechanism. But when notice is given through mailing, the plain language of section 624.155, when read in the context of statutes with similar purpose, signals a legislative intent that the sixty-day period commence from the date of mailing.

Because section 624.155 does not dictate the manner in which notice is to be given (apart from that it be written), I agree that we would not be foreclosed from considering whether notice could also be given in another manner, i.e., as Harper urges, through the filing of the CRN with the Department. But I do not think that we have been provided sufficient information in this case to determine whether filing with the Department concurrently gives notice to the insurer. Regardless, I also do not think that we need to answer that question today. The record in this case establishes that Harper's attorney mailed a copy of the CRN to GEICO on December 18, 2013-the same date that the CRN was filed with the Department. GEICO failed to pay Harper's claim within sixty days of that date. Therefore, I agree with the majority that the trial court erred in granting GEICO's motion for summary judgment and entering final judgment in its favor, and I join in the decision to reverse.

      There is some indication in the record that the Department electronically transmits CRNs directly to insurers when they are received; however, neither party introduced any evidence establishing this practice in support of their respective summary judgment motions. While GEICO argued that it did not receive notice of the CRN until it received Harper's mailed copy on December 26, it did not include a copy of the notice it received as part of its summary judgment evidence. See, e.g., Bryson v. Branch Banking & Tr. Co., 75 So.3d 783, 786 (Fla. 2d DCA 2011) (holding that unauthenticated documents that are simply attached to a notice of filing are not admissible evidence that can properly be considered by the court when it is deciding a summary judgment motion); Morrison v. U.S. Bank, N.A., 66 So.3d 387, 387 (Fla. 5th DCA 2011) (same); Bifulco v. State Farm Mut. Auto. Ins. Co., 693 So.2d 707, 709 (Fla. 4th DCA 1997) (same). Further, the deposition testimony of GEICO's claims examiner was legally insufficient to establish the date on which GEICO received the CRN as her testimony did not establish that she had personal knowledge of that date. See Enter. Leasing Co. v. Demartino, 15 So.3d 711, 714-15 (Fla. 2d DCA 2009) (noting that when the deponent had no personal knowledge of the information about which she purported to testify, her deposition testimony was not competent evidence that could be used in support of a motion for summary judgment). Hence, there was no competent record evidence before the trial court to establish what date GEICO actually received the CRN Harper had previously filed with the Department.

      When the statute was originally enacted, an insured seeking to file a CRN would complete a paper form and mail copies to both the Department and the insurer. See Fla. Informational Bulletin 87-7, 1987 WL 1357228 (Sept. 24, 1987). The Department changed to an internet form in 2008. See Fla. Admin. Code R. 69J-123.002(1).

      We recognize that there could be potential due process implications if an insurer never actually received a CRN that was allegedly mailed by an insured. In such an instance, the insurer would not be foreclosed from raising the lack of any notice as an affirmative defense. However, the burden would be on the insurer to prove that it never received actual notice of the CRN, whether from the insured or the Department. Such facts are not present in this case, however, in which GEICO has affirmatively alleged that it received actual notice of the CRN on December 26, 2013.

      Section 624.155(2)(d) provides that damages must be "paid" or the circumstances giving rise to the violation corrected within sixty days of the filing of the CRN. An agreement to pay is not sufficient; actual payment is required. See, e.g., Paz v. Fid. Nat'l Ins. Co., 712 So.2d 807, 809 (Fla. 3d DCA 1998).

      And when notice is given through mailing, "The applicable statute of limitations for an action under this section shall be tolled for a period of 65 days by the mailing of the notice ... or the mailing of a subsequent notice." § 624.155(3)(f).


author: PER CURIAM. EMAS, C.J., dissenting.

text:
    Tod Geoffrey HELFRICH, Appellant, v. The STATE of Florida, Appellee.
    No. 3D16-1941
    District Court of Appeal of Florida, Third District.
    Opinion filed March 20, 2019
    Carlos J. Martinez, Public Defender and Robert Kalter, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General and Natalia Costea, Assistant Attorney General, for appellee.
    Before EMAS, C.J., and SALTER and FERNANDEZ, JJ.

      Judge Salter did not participate in oral argument.

   PER CURIAM.

Tod Geoffrey Helfrich appeals his conviction, sentence, and denial of pre-trial and post-trial motions. Helfrich was charged and found guilty of grand theft auto, fraudulent use of personal information, fraudulent use of a credit card, robbery with a deadly weapon, and felony murder, as a habitual offender. The trial court sentenced him to life without parole. The two issues on appeal concern (1) the peremptory challenge of prospective juror Corn and (2) the trial court's failure to issue a written order specifying the conditions of probation that had been violated, in conformance with the trial court's oral revocation of probation. After review of the record, we affirm in part and reverse in part.

Based on the abuse of discretion standard, we find nothing in the record that compels this Court to hold that the trial court failed to conduct a genuineness analysis in applying Melbourne to the preemptory strike challenge. Nowell v. State, 998 So.2d 597, 602 (Fla. 2008) ; Melbourne v. State, 679 So.2d 759 (Fla. 1996). We, therefore, affirm as to this issue.

Responding to our colleague's dissent, we disagree that our affirmance conflicts with the cases cited in the dissenting opinion. In this case, (1) the objection made by the defense never specified juror Corn's race; (2) the defense never contended that the State's proffered reasons were pretextual (as opposed to merely disagreeing with the characterization of juror Corn's responses by the State); and (3) there was no basis offered, and none is apparent in the record, to suggest disparate or "non-race neutral" treatment of juror Corn in the context of other voir dire questioning, peremptory strikes, or the resulting composition of the jury.

Melbourne holds that, throughout all three steps of a challenge, "the burden of persuasion never leaves the opponent of the strike to prove purposeful discrimination." 679 So.2d at 764. While the appellant and our dissenting colleague are correct that the colloquy relating to juror Corn was less precise than it might have been, we cannot say that the trial court abused its discretion or that the defense carried its burden to demonstrate pretext or anything approaching "purposeful discrimination."

As to the absence of an order of revocation, the State concedes that the trial court failed to issue a written order on the violations of probation. We agree and reverse and remand to the trial court to issue the required written order specifying the conditions that were violated. See Burt v. State, 931 So.2d 1005, 1006 (Fla. 3d DCA 2006) ; Lumpkin v. State, 717 So.2d 122, 123 (Fla. 4th DCA 1998).

Affirmed in part; reversed in part and remanded.

SALTER and FERNANDEZ, JJ., concur.

EMAS, C.J., dissenting.

The majority affirms the judgment and sentence in this case, holding that the trial court followed the dictates of Melbourne v. State, 679 So.2d 759 (Fla. 1996). I dissent, because the trial court's statement "I'm going to allow the strike at this time" is simply insufficient for a reviewing court to be able to conclude that the trial court "implicitly" conducted the genuineness analysis, or "implicitly" made the genuineness finding, required by the third step of the three-step process established in Melbourne.

As the Florida Supreme Court explained in Rodriguez v. State, 753 So.2d 29, 40 (Fla. 2000) :

In step (3), the court's focus is on the genuineness and not the reasonableness of the explanation. Further, the relevant circumstances that the court is to consider in determining whether the explanation is pretextual include such factors as the racial makeup of the venire; prior strikes exercised against the same racial group; a strike based on a reason equally applicable to an unchallenged venireperson; or singling out the venireperson for special treatment. On appeal, peremptory challenges are presumed to be exercised in a nondiscriminatory manner, but the trial court's decision, which turns primarily on an assessment of credibility, will be affirmed on appeal unless clearly erroneous.

(Internal citations omitted).

If the record contains no evidence that the trial court conducted a genuineness analysis, and contains no evidence that the trial court considered any of the factors that inform a genuineness analysis, how can a reviewing court properly conclude that such an analysis was "implicitly" conducted or that a genuineness finding was "implicitly" made? Quite simply, it cannot, and to hold otherwise essentially reduces the Melbourne's three-step process to a mere two steps, eliminating what has been described as "the penultimate decision and raison d'etre for the analysis. Without Step 3, the protection against an improper discriminatory peremptory challenge is lost." Johnson v. State, 268 So.3d 729, 738, 2018 WL 6719724 at *7, (Fla. 4th DCA Dec. 19, 2018). See also Hayes v. State, 94 So.3d 452, 462 (Fla. 2012) (observing that "the genuineness of the explanation is the yardstick with which the trial court will determine whether or not the proffered reason is pretextual.")

I am mindful of the fact that no magic words are required of the trial court to comply with Melbourne's genuineness analysis. But it appears we may be drifting in the direction where no words (magic or otherwise) are required of the trial court to comply with Melbourne's genuineness analysis.

If the third step of Melbourne's three-step analysis is anachronistic, incapable of reliable application, or otherwise jurisprudentially unsound, it is time to say so expressly and definitively, rather than witness its sub silentio death by a thousand paper cuts. On the other hand, if the third step of Melbourne's three-step analysis is to have continued vitality, we cannot ignore its command. The Florida Supreme Court recognized this much in Hayes, 94 So.3d at 463-64 :

[W]here the record is completely devoid of any indication that the trial court considered circumstances relevant to whether a strike was exercised for a discriminatory purpose, the reviewing court, which is confined to the cold record before it, cannot assume that a genuineness inquiry was actually conducted in order to defer to the trial court. This same reasoning applies to instances where the record affirmatively indicates that the trial court engaged in the wrong legal analysis. Deferring to the trial court's genuineness determination on appeal when no such determination has been made invites an arbitrary result.

Given the absence of any record evidence from which we can conclude that the trial court engaged in a genuineness analysis, or determined that the proffered reason for the strike was genuine, the majority's affirmance is contrary to, and in conflict with, our own precedent as well as that of the Florida Supreme Court. I therefore respectfully dissent, and would reverse for a new trial.

      I would also hold, contrary to the majority opinion, that this issue was properly preserved and that, consistent with the requirements of Spencer v. State, 238 So.3d 708 (Fla. 2018) (plurality opinion) and Floyd v. State, 569 So.2d 1225 (Fla. 1990), the defendant did place the trial court on notice that he was contesting the factual accuracy and the genuineness of the reasons asserted by the State for its peremptory challenge of the prospective juror. The State's purported reasons for the peremptory (that the juror "wasn't paying attention", "was equivocal," and "his answers wavered") were never confirmed by the trial court, nor were they supported by the record. See Dorsey v. State, 868 So.2d 1192, 1199 (Fla. 2003) (holding "the proponent of a strike based on nonverbal behavior may satisfy its burden of production of a race-neutral reason during the second step of the process described in Melbourne only if the behavior is observed by the trial court or otherwise has record support. Once this burden of production is satisfied, the proponent is entitled to the presumption that the reason is genuine"); Wright v. State, 586 So.2d 1024 (Fla. 1991).

      See, e.g., Ellis v. State, 152 So.3d 683 (Fla. 3d DCA 2014) ; Anderson v. State, 750 So.2d 741 (Fla. 3d DCA 2000) ; Greene v. State, 718 So.2d 334 (Fla. 3d DCA 1998) ; Davis v. State, 691 So.2d 1180 (Fla. 3d DCA 1997).

      See, e.g., Dorsey, 868 So.2d at 1202 ; Hayes v. State, 94 So.3d 452 (Fla. 2012) ; Nowell v. State, 998 So.2d 597 (Fla. 2008) ; Rodriguez v. State, 753 So.2d 29 (Fla. 2000).


text:
    Anibal GARCIA, Appellant, v. ALL CONSTRUCTION & DEVELOPERS, INC., etc., et al., Appellees.
    No. 3D18-913
    District Court of Appeal of Florida, Third District.
    Opinion filed March 13, 2019 Rehearing Denied April 05, 2019
    Vargas Gonzalez Hevia Baldwin, LLP, and Stephanie C. Hopple, Miami, for appellant.
    Conroy Simberg, and Seth R. Goldberg (Hollywood) and Diane H. Tutt (Hollywood), for appellees Leticia H. Grendene and Michele Grendene.
    Before EMAS, C.J., and SCALES and HENDON, JJ.
   PER CURIAM.

Affirmed. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla. 1979).


text:
    Geoffrey MEEHAN, Appellant, v. ORANGE COUNTY DATA & APPRAISALS and Johns Eastern Company, Inc., Appellees.
    No. 1D17-1076
    District Court of Appeal of Florida, First District.
    March 20, 2019 Rehearing Denied June 3, 2019
    Richard H. Weisberg, Sanford, and Bill McCabe, Longwood, for Appellant.
    Kristen L. Magana of Broussard, Cullen & Blastic, P.A., Orlando, for Appellees.
   M.K. Thomas, J.

In this workers' compensation appeal, Geoffrey Meehan ("Claimant") argues that the Judge of Compensation Claims ("JCC") erred in denying his claims for medical care, costs, and attorney's fees related to an exposure at work. Because the parties entered into a broad stipulation in which the Employer/Carrier ("E/C") accepted compensability of the work-related exposure and "building related illness" and the E/C failed to demonstrate a break in the causal chain, we agree, and reverse and remand the order on appeal.

I. Facts

From 1995 through 1997, the Claimant worked on the sixth floor of a building in Orlando. The Claimant described the building conditions as dismal with leaks in the ceilings and blackish growths on wall tiles. Employees in the building began to experience breathing problems. Asbestos was later discovered, and employees were removed from all floors except for the sixth floor where the Claimant worked. The employees hired by the building renovation company wore body suits and masks while working on the sixth floor near the Claimant's work space. Yet, the Claimant was not provided any protective gear. The Claimant later developed breathing problems and reported his illness to his Employer.

Subsequently, the E/C entered into a broad stipulation with the Claimant in which it accepted compensability of the work exposure. Additionally, the E/C accepted liability for "building related illness associated with indoor air quality problems," with an accident date of September 30, 1997. Medical care was authorized with a pulmonologist. The JCC approved this joint stipulation by order in 1998.

In 2002, Dr. Varraux, the authorized pulmonologist, diagnosed the Claimant with "recurrent sinus, acute bronchitis, reactive airway disease, rhinitis, sinusitis, rhinosinopulmonary syndrome, and occupational-induced asthma." He prescribed inhaler bronchiodilators, among other medications. The E/C continued authorization of the medical care and the treatment recommended.

Fifteen years later, the E/C issued a Notice of Denial terminating all further medical treatment to the Claimant. The insurance adjuster confirmed the E/C's decision to deny further medical care was based solely on a peer review report. In its Notice of Denial, the E/C asserted the work accident was no longer the major contributing cause ("MCC") of the need for medical treatment. In response, the Claimant filed petitions for benefits ("PFBs") seeking reauthorization of Dr. Varraux, payment of his medical bills, costs and attorney's fees. The E/C filed a formal response to the PFBs asserting the work accident was no longer the MCC and that the treatment and medications were not medically necessary.

After denying all further medical care, the E/C obtained an independent medical evaluation ("IME") with Dr. Brooks, an internal medicine specialist with a subspecialty in pulmonary medicine. Dr. Brooks diagnosed the Claimant with vocal cord dysfunction ("VCD"), unrelated to workplace exposure. In his opinion, the Claimant did not suffer from asthma and, therefore, did not need the asthma medications prescribed by Dr. Varraux. Dr. Brooks testified that he found no evidence of sinusitis, but he did diagnose allergic rhinitis, which he opined was also unrelated to the workplace exposure.

Dr. Varraux testified that the Claimant had "got[ten] worse" over time. He maintained his opinion on diagnoses and treatment recommendations. With respect to Dr. Brooks' diagnosis of VCD, he disagreed. He reiterated his diagnoses, inclusive of asthma, and his opinion that the Claimant's need for ongoing medications for all of his conditions and symptoms to be medically necessary and causally related to the work exposure.

Prior to merits hearing, the parties filed Uniform Pre-Trial Stipulations in which the E/C raised the following specific defenses: 1) The industrial accident is no longer the MCC of the need for treatment or disability; and 2) the prescriptions are not medically necessary. No EMA was appointed.

Following the merits hearing, the JCC entered an order denying all claims. The JCC accepted the testimony of Dr. Brooks over that of Dr. Varraux, to conclude that, generally speaking, "asthma" treatment was not medically necessary because the Claimant did not have asthma. The JCC noted the Claimant had not made a claim for authorization of treatment for VCD and allergic rhinitis. The JCC observed, "The fact that Dr. Varraux's mistake in diagnosis is understandable may make his conduct 'reasonable', but it does not make his treatment 'medically necessary' under the statute."

On appeal, the Claimant argues that the E/C cannot deny his claim for medical treatment because it had previously stipulated to compensability of the conditions treated by Dr. Varraux. Whether the diagnosis is appropriately VCD or not, the Claimant's continued symptoms and need for treatment are simply part of the compensable conditions accepted by the E/C. Further, no break in the causal chain between the work exposure and the need for treatment has occurred because the Claimant's symptoms and conditions have been present since the work exposure and simply had not yet been diagnosed or developed as a sequela of the compensable conditions. Alternatively, the Claimant argues that the VCD diagnostic issue supplants only his asthma and has no effect on the other conditions diagnosed and treated by Dr. Varraux. Accordingly, Dr. Varraux should remain authorized to treat the remaining compensable conditions and the VCD because the compensable conditions caused the VCD. The E/C counters that VCD is a different condition from asthma requiring different medications, therefore, the treatment currently being provided is not medically necessary.

II. Analysis

Factual findings made by the JCC are reviewable for competent, substantial evidence ("CSE"); to the extent the JCC's ruling involved an interpretation of law, review is de novo . See Mylock v. Champion Int'l , 906 So.2d 363, 365 (Fla. 1st DCA 2005).

A claimant has the burden to prove entitlement to workers' compensation benefits. See Fitzgerald v. Osceola Cty. Sch. Bd. , 974 So.2d 1161, 1164 (Fla. 1st DCA 2008). But, once a claimant has established compensability of an injury, via prior ruling or a stipulation, the E/C cannot challenge the causal connection between the work accident and the injury. Engler v. Am. Friends of Hebrew Univ. , 18 So.3d 613, 614 (Fla. 1st DCA 2009). The E/C may only question the causal connection between the injury and the requested benefit. Id. The E/C bears the burden of proof "to demonstrate a break in the causation chain, such as the occurrence of a new accident or that the requested treatment was due to a condition unrelated to the injury which the E/C had accepted as compensable." Jackson v. Merit Elec. , 37 So.3d 381, 383 (Fla. 1st DCA 2010) ; see also Perez v. Se. Freight Lines, Inc. , 159 So.3d 412, 414 (Fla. 1st DCA 2015) ("a 'break' is understood to occur when the work-related cause drops to 50% or less of the total cause of the need for the requested benefit."). Here, the E/C did not assert that there has been any break in the chain of causation or provide evidence to support any such break occurred. By the E/C's stipulation of compensability, the Claimant was excused of the burden to reestablish causation.

Dr. Brooks opined that asthma is no longer the MCC of the need for treatment as he contests that the Claimant suffers from asthma. However, he declined to testify that the "building-related illness" was not the MCC of the need for treatment. Dr. Brooks also clarified that "as far as I understand" the Claimant was taking only asthma medications. In contrast, Dr. Varraux testified that he was prescribing medications for multiple conditions, in addition to asthma. Granted, despite the E/C's acceptance of compensability of the work-related exposure and illness, the Claimant retained the burden to establish other aspects of proof required by statute, such as the medical necessity of the requested benefits. See § 440.13(2)(a), Fla. Stat. (2013). He did so through the testimony of Dr. Varraux. Dr. Varraux testified that all of the prescriptions the Claimant is currently being prescribed are medically necessary for "the conditions for which" he was being treated. Yet, Dr. Brooks opined only that the VCD exists instead of the asthma. With respect to the rhinitis, Dr. Brooks agreed that the Claimant did, in fact, suffer from this condition. Dr. Varraux diagnosed and has treated the Claimant for this condition since 2002. The E/C did not elicit any testimony from Dr. Brooks as to any break in the causal chain relating to diagnosis and continued treatment of rhinitis.

The Claimant does have compensable injuries, by stipulation. He has a "building related illness associated with indoor air quality problems." Notably, the stipulation does not specify "pulmonary" conditions. However, the JCC failed to recognize the legal significance of the E/C's broad stipulation. See Jackson , 37 So.3d at 383. The JCC interpreted Dr. Brooks' testimony as satisfying the E/C's burden of proving a break in the causal chain. However, Dr. Brooks' testimony clearly demonstrates his belief that the Claimant was misdiagnosed and that he suffers from VCD, not asthma. The Claimant's symptoms have not substantially changed since the compensable exposure. The E/C may not now escape its acceptance of compensability with an argument of misdiagnosis. Of note, Dr. Brooks testified that the Claimant suffers from the alternative diagnosis of VCD which "may simulate asthma." Thus, Dr. Brooks' testimony is not CSE to support the JCC's ruling that the medical treatment was not necessitated by the "building related illness associated with indoor air quality problems" or that a break in the causal chain had occurred since the joint stipulation. Dr. Brooks established only that there may exist a dispute in the appropriate diagnosis but that the "building related illness associated with indoor air quality" suffered by the Claimant, albeit potentially varying in degree, remained. The conditions and symptoms for which the E/C accepted responsibility continue to be experienced by the Claimant.

As in Jackson , this dispute might never have arisen if the parties took care to define the compensable injury. A broad stipulation of this kind "does little in limiting the E/C's area of responsibility, nor does it give the Claimant guidelines as to what treatment he should be requesting from the E/C." Jackson , 37 So.3d at 383. Asking the doctor whether the current treatment is related to the 1997 accident without providing the legal posture of the case is not likely to result, as it failed to do here, in an opinion supporting a break in the causal connection. Likewise, the JCC failed to address: 1) the medical necessity of the other treatment Dr. Varraux was providing for conditions other than asthma ; and 2) the distinction, if any, between the rhinitis Dr. Varraux had been treating since 2002 and that which Dr. Brooks diagnosed.

Because CSE does not exist to support the JCC's denial of all medical care, the order on appeal is reversed. Although Dr. Brooks testified that the Claimant did not have asthma, he opined that the Claimant had been misdiagnosed and the correct diagnosis was VCD. Dr. Brooks declined to testify that the "building-related illness" was not the MCC of the Claimant's need for ongoing treatment. No evidence was introduced by the E/C that the Claimant's symptoms changed since the date of the joint stipulation or that new, unrelated conditions or symptoms had arisen since the exposure was accepted as compensable. Accordingly, the order of the JCC is reversed and the matter is remanded for entry of an order granting the claims requested.

REVERSED and REMANDED for entry of an order consistent with this opinion.

B.L. Thomas, C.J., and Jay, J., concur.

      Section 440.13(9)(c), Florida Statutes, dictates that the JCC "shall" appoint an EMA when there is a "disagreement in the opinions of the health care providers." Here, the parties expressly waived appointment of an EMA and stipulated on the record that neither would raise the EMA issue on appeal. The JCC did not sua sponte appoint an EMA, and as agreed, neither party raised the EMA issue on appeal. Because a JCC's failure to appoint, on his own, an EMA is not fundamental error, the issue is not addressed on appeal. See Quiroga v. First Baptist Church at Weston , 124 So.3d 936, 937 (Fla. 1st DCA 2013).

      Neither of the parties raised argument that the order approving the joint stipulation was subject to modification under section 440.28, Florida Statutes.


text:
    Alphonso PITTS, Appellant, v. The STATE of Florida, Appellee.
    No. 3D19-50
    District Court of Appeal of Florida, Third District.
    Opinion filed March 27, 2019
    Alphonso Pitts, in proper person.
    Ashley Moody, Attorney General, for appellee.
    Before EMAS, C.J., and LOGUE and HENDON, JJ.
   PER CURIAM.

Affirmed. See Connolly v. State, 172 So.3d 893, 903-04 (Fla. 3d DCA 2015) (holding that "technical defects in a charging document are treated differently than the failure to allege an essential element of the crime. An indictment that wholly omits an essential element of a crime is a fundamental defect that may be raised at any time because the indictment fails to charge a crime when an essential element is omitted. Use or possession of a firearm, however, is not an essential element of second degree murder, but rather, it may serve to allow for a reclassification of the second degree murder from a first degree felony to a life felony or as an enhancement of the sentence imposed") (internal footnote and citation omitted). See also Galindez v. State, 955 So.2d 517 (Fla. 2007) (holding that an Apprendi/ Blakely error is subject to a harmless error analysis); Robinson v. State, 215 So.3d 1262, 1274 (Fla. 1st DCA 2017).

      See Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004) ; Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000).


text:
    Nilo HERNANDEZ, Appellant, v. Tamara GARCIA, Appellee.
    No. 3D18-456
    District Court of Appeal of Florida, Third District.
    Opinion filed March 27, 2019.
    Wasson & Associates, Chartered, and Annabel C. Majewski, for appellant.
    Bofill Law Group, and Jose C. Bofill, for appellee.
    Before EMAS, C.J., and LOGUE and HENDON, JJ.
   PER CURIAM.

ON APPELLEE'S MOTION TO DISMISS

We grant appellee's motion and dismiss this appeal as one taken from a nonfinal, nonappealable order. See, e.g., M.M. v. Fla. Dep't of Children & Families, 189 So.3d 134, 137 (Fla. 2016) (observing that "[a]n appeal from a final order is appropriate when judicial labor has ended");

S.L.T. Warehouse Co. v. Webb, 304 So.2d 97, 99 (Fla. 1974) (noting: "Generally, the test employed by the appellate court to determine finality of an order, judgment or decree is whether the order in question constitutes an end to the judicial labor in the cause, and nothing further remains to be done by the court to effectuate a termination of the cause as between the parties directly affected.") This dismissal is without prejudice to the filing of a proper and timely appeal from a final, appealable order. Given this disposition, we do not reach the claims raised in the instant appeal, nor do we express any comment on their relative merit.

Appeal dismissed.


text:
    Luis MOREY, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-1968
    District Court of Appeal of Florida, Third District.
    Opinion filed March 27, 2019.
    Luis Morey, in proper person.
    Ashley Moody, Attorney General, and G. Raemy Charest-Turken, Assistant Attorney General, for appellee.
    Before EMAS, C.J., and SCALES and LINDSEY, JJ.
   PER CURIAM.

Affirmed. See Johnson v. State, 769 So.2d 990 (Fla. 2000) (holding movant is procedurally barred from seeking postconviction relief on a substantive claim that was or should have been raised on direct appeal; movant may not avoid this procedural bar by merely recasting substantive claim as one for ineffective assistance of counsel). See also Reed v. State, 116 So.3d 260, 264 (Fla. 2013) (holding: "To obtain a new trial based on newly discovered evidence, a defendant must meet two requirements: (1) the evidence must not have been known by the trial court, the party, or counsel at the time of trial, and it must appear that the defendant or defense counsel could not have known of it by the use of diligence; and (2) the newly discovered evidence must be of such nature that it would probably produce an acquittal on retrial") (citing Jones v. State (Jones II ), 709 So.2d 512, 521 (Fla.1998) ).


author: MILLER, J.

text:
    JOHN MORIARTY & ASSOCIATES OF FLORIDA, INC., Appellant, v. THYSSENKRUPP ELEVATOR CORPORATION, Appellee.
    No. 3D18-1238
    District Court of Appeal of Florida, Third District.
    Opinion filed March 27, 2019.
    Agnant & Lambdin LLC, and Linda Dickhaus Agnant and Keith J. Lambdin (Plantation), for appellant.
    Shapiro, Blasi, Wasserman, & Hermann, P.A., and Richard P. Hermann, II, and Robin I. Frank, and Jennifer Shafer (Boca Raton), for appellee.
    Before FERNANDEZ, LOGUE, and MILLER, JJ.
   MILLER, J.

In the absence of a transcript of the lower court proceedings, and finding no legal error apparent on the face of the order enforcing the settlement agreement, we cannot conclude the trial court erred in rendering the order under review and therefore affirm. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150, 1152 (Fla. 1979) ("Without a record of the trial proceedings, the appellate court can not properly resolve the underlying factual issues so as to conclude that the trial court's judgment is not supported by the evidence or by an alternative theory. Without knowing the factual context, neither can an appellate court reasonably conclude that the trial judge so misconceived the law as to require reversal."); see also Hamilton v. Florida Power & Light Co., 48 So.3d 170, 172 (Fla. 4th DCA 2010) ("When there is a nonjury finding on disputed evidence [in an order enforcing settlement], it is reviewed on appeal for competent, substantial evidence because the lower court 'is in the best position to evaluate and weigh the testimony and evidence.' ") (quoting Acoustic Innovations, Inc. v. Schafer, 976 So.2d 1139, 1143 (Fla. 4th DCA 2008) ).

Affirmed.


text:
    M.N., a Juvenile, Appellant, v. The STATE of Florida, Appellee.
    No. 3D18-735
    District Court of Appeal of Florida, Third District.
    Opinion filed March 27, 2019
    Carlos J. Martinez, Miami, Public Defender, and Natasha Baker-Bradley, Assistant Public Defender, for appellant.
    Ashley Moody, Attorney General, and Kayla Heather McNab, Assistant Attorney General, for appellee.
    Before EMAS, C.J., and LOGUE and MILLER, JJ.
   PER CURIAM.

Affirmed. See M.F. v. State, 255 So.3d 519, 519 (Fla. 3d DCA 2018) (When reviewing the adequacy of a Richardson hearing, a "ruling that no [discovery] violation occurred moots any inquiry into whether there was procedural prejudice."); see also Mascolo v. State, 774 So.2d 827, 829 (Fla. 4th DCA 2000) ("[T]he trial court found there was no discovery violation. We find that the record supports the decision of the trial court and therefore we find no error.").