Supreme Court of Florida

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No. SC13-54

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KIMBERLY ANN MILES, et al.,

Petitioners,

vs.

DANIEL WEINGRAD, M.D.,

Respondent.

[May 21, 2015]

PERRY, J.

Kimberly Ann Miles seeks review of Miles v. Weingrad (Miles II), 103 So. 

3d 259 (Fla. 3d DCA 2012), on the basis that it expressly and directly conflicts 

with Raphael v. Shecter, 18 So. 3d 1152 (Fla. 4th DCA 2009). We have 

jurisdiction. See art. V, § 3(b)(3), Fla. Const. For the following reasons, we quash 

the decision on review.

BACKGROUND

In 2002, Miles was diagnosed with melanoma. She received medical care, 

and a cancerous tumor was removed from her leg in an outpatient procedure on 

December 2, 2002. While she was told that the tumor had been completely 
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removed and no melanoma remained, she sought a second medical opinion from

Dr. Daniel Weingrad, a surgical oncologist. Dr. Weingrad informed Miles that 

further surgery was warranted to ensure that the entire melanoma had been excised, 

and on January 31, 2003, Dr. Weingrad performed the surgical procedure. 

Postoperative test results showed that there had been no residual melanoma 

following Miles’ December 2, 2002, surgical procedure. Furthermore, there were 

complications following the January 2003 surgery. First, Miles had to be 

hospitalized for four days to treat an infection, which did not completely resolve 

until April 2003. Additionally, Miles suffered from permanent swelling and 

excruciating pain and now has limited mobility—she can neither walk long 

distances nor stand for long periods of time. 

In 2006, Miles, joined by her husband Jody Haynes, filed a lawsuit in which 

she alleged that due to Dr. Weingrad’s surgical malpractice, Miles has suffered 

permanent injuries. Following the presentation of evidence, the jury returned a 

verdict for Miles and awarded her economic damages amounting to $16,104 and

noneconomic damages for pain and suffering amounting to $1.45 million, and

awarded her husband noneconomic damages for loss of consortium amounting to 

$50,000.
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Dr. Weingrad moved to reduce the award of noneconomic damages to 

$500,000 pursuant to section 766.118(2), Florida Statutes (2003).1 The trial court 

denied Dr. Weingrad’s motion, ruling that “retroactive application of section 

766.118(2)(a) is constitutionally impermissible.” Dr. Weingrad appealed. 

In 2010, the Third District entered an opinion reversing the trial court’s 

judgment and the jury award of noneconomic damages. Weingrad v. Miles

(Miles I), 29 So. 3d 406 (Fla. 3d DCA 2010). In Miles I, the Third District held 

that it was constitutionally permissible to retroactively apply section 766.118 in

Miles’ case because she “had no vested right to a particular damage award and thus 

suffer[ed] no due process violation.” Id. at 416. In doing so, the Third District 

rejected Miles’ reliance on the Fourth District Court of Appeal’s decision in 

Raphael, which had reached a contrary result. See id. at 410-11.

On remand, the trial court entered a judgment for Miles based on the 

$500,000 statutory cap on noneconomic damages. Miles appealed the trial court’s 

judgment, seeking relief based on the assertion that Miles I conflicted with 

American Optical Corp. v. Spiewak, 73 So. 3d 120 (Fla. 2011). Affirming the trial 

court’s judgment, the Third District rejected Miles’ claim that its earlier decision 

conflicted with this Court’s Spiewak decision. Miles II, 103 So. 3d at 259-60 

 

1. Section 766.188(2), Florida Statutes was signed into law on August 14, 

2003, with an effective date of September 15, 2003.
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(“Finding no conflict between our prior opinion in [Miles I], and the Supreme 

Court’s opinion in [Spiewak], we affirm.”). 

Miles filed a notice to invoke the discretionary review of this Court in which 

she asserted that Miles II expressly and directly conflicts with both Spiewak and

Raphael. 

DISCUSSION

Standard of Review

The issue here concerns the retroactivity of a statutory amendment that 

limits noneconomic damages in a medical malpractice cause of action. Because 

the question here is a pure question of law, we review de novo. See Basulto v. 

Hialeah Auto., 141 So. 3d 1145, 1152 (Fla. 2014) (citing Aravena v. Miami-Dade 

Cnty., 928 So. 2d 1163, 1166 (Fla. 2006)). 

Jurisdiction

Dr. Weingrad argues that there is nothing in the Third District’s onesentence affirmance that provides this Court with jurisdiction under article V, 

section 3(b)(3), Florida Constitution. We disagree. 

Under article V, section 3(b)(3), of the Florida Constitution, this Court has 

jurisdiction to review a decision of a district court of appeal that “expressly and 

directly conflicts with a decision of another district court of appeal or of [this 

Court] on the same question of law.” Art. V, § 3(b)(3), Fla. Const. The decision 
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on review is not merely an unelaborated affirmance, but specifically relies on, and 

cites to, the decision in Miles I. Miles II, 103 So. 3d at 260 (“Finding no conflict 

between our prior opinion in [Miles I], and the Supreme Court’s opinion in 

[Spiewak], we affirm.”). 

In Miles I, the Third District held that: 

Although the injury in the present case occurred in 2003, prior 

to the effective date of the amendment of section 766.118, because 

Appellees did not file their notice of intent to initiate litigation, file 

their complaint, or obtain a judgment prior to the enactment of the 

statute, they had at most a “mere expectation” or a prospect that they 

might recover damages of an indeterminate amount at an unspecified 

date in the future. The Appellees had no vested right to a particular 

damage award and thus suffer no due process violation with the 

application of the caps statute to their cause of action.

Miles I, 29 So. 3d at 416. Thus, Miles I and Miles II require that, in order to 

establish that a right vested before the statute became effective, a claimant bringing 

a personal injury action must have previously noticed his or her intent to bring 

such an action.

Contrarily, in Raphael, the Fourth District held that a “cause of action in a 

medical malpractice case accrues at the time the malpractice incident occurs.” 

Raphael, 18 So. 3d at 1157. Because a plaintiff has a vested right to this cause of 

action, and retroactive application of the noneconomic damages cap would impair 

this vested right, the Fourth District held that retroactive application was 
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impermissible. Id. at 1158. This conflict was recognized by the Third District. 

See Miles I, 29 So. 3d at 415. 

Because the Third and Fourth Districts have reached different conclusions 

on the same question of law, this Court has jurisdiction to resolve this important 

legal conflict regarding the requirements for bringing personal injury actions 

stemming from medical malpractice under Florida’s negligence law.

Merits

To resolve the issue before us, we necessarily address the conflict that exists 

between the Third and Fourth District Courts of Appeal on this issue. In Raphael, 

the Fourth District concluded that the Legislature enacted section 766.118 with a 

clear intent to allow “the retroactive application of a new statute for ‘bad faith 

actions against insurers.’ ” Raphael, 18 So. 3d at 1156.2 Relying on State Farm 

Mutual Automobile Insurance Co. v. Laforet, 658 So. 2d 55, 61 (Fla. 1995), the 

district court posited that whether section 766.118(4) is “substantive or procedural 

in nature is [the] issue that [was] determinative of [the] case.” Raphael, 18 So. 3d 

at 1156. Citing to Clausell v. Hobart Corp., 515 So. 2d 1275 (Fla. 1987), the 

Raphael court stated that when a cause of action has not accrued “no one has a 

vested right in the common law, which the Legislature may substantively change 

 

2. The medical malpractice at issue in Raphael occurred on April 10, 2003.
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prospectively.” Raphael, 18 So. 3d at 1157. However, the Raphael court noted 

that the cause before it was reminiscent of the circumstances in Alamo Rent-A-Car 

v. Mancusi, 632 So. 2d 1352, 1358 (Fla. 1994), in which this Court held that it is 

presumed that substantive statutes will not retrospectively apply to “impair or 

destroy existing rights.” Raphael, 18 So. 3d at 1156.

Thus, the Raphael court concluded that section 766.118(4) may not be 

“retroactively enforced to impair the appellant’s vested rights.” Id. at 1157. The 

court further concluded that “[t]he cause of action in a medical malpractice case 

accrues at the time the malpractice incident occurs.” Id. at 1157-58 (citing 

§ 95.111(4)(b), Fla. Stat. (2002); Patient’s Comp. Fund v. Scherer, 558 So. 2d 411, 

414 (Fla. 1990)). Accordingly, the Fourth District reversed the trial court’s 

judgment and remanded the case for further proceedings consistent with its holding 

that the retroactive application of section 766.118(4) was an impairment of the 

appellant’s substantive rights which accrued and vested on a date prior to the 

effective date of the statute. Id. at 1158. 

After the Fourth District issued its decision in Raphael, the Third District 

reached the opposite conclusion. In Miles I, the Third District determined that 

because the statutory provision was substantive in nature, its analysis would turn 

on the questions of legislative intent and constitutionality. Miles I, 29 So. 3d at 

410. Indeed, the Third District determined that the Legislature’s intent to apply 
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section 766.118 retroactively was clear and unambiguous. Id. Furthermore, the 

Third District specifically rejected Miles’ reliance on Raphael, which rejected 

retroactive application of a statute that lacked legislative language that provided for 

retroactive application. Id. at 410-11. The Third District acknowledged that 

precedent from this Court “has refused to apply the statute retroactively if it 

impairs vested rights, creates new obligations or imposes new penalties.” Id. at 

411 (citing Laforet, 658 So. 2d at 61). 

The Third District concluded, however, that our decision in Clausell is 

controlling on the subject of whether retroactive application of a statute is 

constitutional. Id. Consequently, the Third District criticized the Raphael court for 

ignoring our holding in Clausell. Id. at 415. Accordingly, the Third District held:

Although the injury in the present case occurred in 2003, prior 

to the effective date of the amendment of section 766.118, because 

Appellees did not file their notice of intent to initiate litigation, file

their complaint, or obtain a judgment prior to the enactment of the 

statute, they had at most a “mere expectation” or a prospect that they 

might recover damages of an indeterminate amount at an unspecified 

date in the future. The Appellees had no vested right to a particular 

damage award and thus suffer no due process violation with the 

application of the caps statute to their cause of action. We therefore 

reverse the trial court’s order denying Dr. Weingrad’s motion to apply 

the statutory cap to the Appellees’ noneconomic damages.

Id. at 416. 

Both the Third District and the Fourth District cited our decisions in Old 

Port Cove Holdings, Inc. v. Old Port Cove Condominium Association One, Inc., 
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986 So. 2d 1279 (Fla. 2008), and Metropolitan Dade County v. Chase Federal 

Housing Corporation, 737 So. 2d 494 (Fla. 1999), as establishing the analysis 

necessary when courts must determine if a given statute may be retroactively 

applied. See Miles I, 29 So. 3d at 409 (“Determining whether a statute may be 

retroactively applied requires consideration of whether the statute expresses the 

intent for retrospective application and if so, whether the retroactive application is 

constitutional.”); Raphael, 18 So. 3d at 1155 (same proposition). However, the 

Third District determined that our holding in Clausell is controlling on the subject 

of a litigant’s vested rights. Miles I, 29 So. 3d at 411. 

We find that the Third District misunderstood our holding in Clausell by 

stating that “the retroactive application of a statute did not violate due process 

because the plaintiff had no vested right.” Id. at 409. Instead, we determined that 

Clausell “had no vested right in his cause of action,” because the statute that 

predated his cause of action was temporarily invalidated by our decision in Battilla

v. Allis Chalmers Manufacturing Co., 392 So. 2d 874 (Fla. 1980); however, the 

statute was subsequently reinstated when we receded from Battilla in Pullum v. 

Cincinnati, Inc., 476 So. 2d 657 (Fla. 1985). Clausell, 515 So. 2d at 1276. 

Therefore, in Clausell, we were not addressing the retroactive application of a 

substantive statute that affected the litigant’s vested right in a cause of action. See

Miles I, 29 So. 3d at 417 (Cope, J., dissenting) (“The majority opinion relies on 
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[Clausell], but that case is inapplicable. Clausell involved the retroactive 

application of a judicial decision, not the retroactive application of a statute.”). 

Thus, we necessarily agree with the conclusion drawn in Raphael that was 

premised on our precedent in Scherer, stating that “[t]he cause of action in a 

medical malpractice case accrues at the time the malpractice incident occurs.” 

Raphael, 18 So. 3d at 1157-58; cf. Spiewak, 73 So. 3d at 128. Therefore, we 

approve Raphael and disapprove the rationale in Miles I and quash the decision in 

Miles II. 

The facts in the present case show that Miles underwent the unnecessary 

surgical procedure in January 2003, which has been undisputedly adjudged as 

malpractice by Dr. Weingrad. Notably, section 766.118 became effective on 

September 15, 2003. Therefore, Miles’ cause of action accrued more than seven 

months before the “legislation capping noneconomic damages in medical 

malpractice actions went into effect.” Miles I, 29 So. 3d at 408. Our precedent 

establishes that, generally, a litigant’s substantive and vested rights may not be 

infringed upon by the retroactive application of a substantive statute. Laforet, 658 

So. 2d at 61 (“The general rule is that a substantive statute will not operate 

retrospectively absent clear legislative intent to the contrary, but that a procedural 

or remedial statute is to operate retrospectively. . . . Even when the Legislature 

does expressly state that a statute is to have retroactive application, this Court has 
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refused to apply a statute retroactively if the statute impairs vested rights, creates 

new obligations, or imposes new penalties.” (citations omitted)). Accordingly, we 

quash the decision entered below.

CONCLUSION

For the foregoing reasons, we quash the Third District’s decision in Miles II, 

disapprove Miles I, approve Raphael, and remand with instructions that the 

original final judgment be reinstated. 

It is so ordered. 

LABARGA, C.J., and PARIENTE and QUINCE, JJ., concur.

PARIENTE, J., concurs with an opinion, in which LABARGA, C.J., concurs.

LEWIS, J., concurs in result.

CANADY, J., dissents with an opinion, in which POLSTON, J., concurs. 

NOT FINAL UNTIL TIME EXPIRES TO FILE REHEARING MOTION, AND 

IF FILED, DETERMINED.

PARIENTE, J., concurring.

I join the Court’s opinion, which correctly concludes that a plaintiff has a 

vested right to file a medical malpractice cause of action that accrues when the 

malpractice incident occurs, and, therefore, that retroactive application of the noneconomic damages cap to a cause of action that accrued prior to the effective date 

of the cap is impermissible. I write separately to elaborate as to why the majority 

properly exercises jurisdiction to decide this issue and to respond to the dissent’s 

contrary position. 
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Under article V, section 3(b)(3), of the Florida Constitution, this Court is 

vested with jurisdiction to review a decision of a district court of appeal that 

“expressly and directly conflicts with a decision of another district court of appeal 

or of [this Court] on the same question of law.” Art. V, § 3(b)(3), Fla. Const. 

There is no dispute that our precedent establishes a requirement that the conflict 

must “appear within the four corners of the majority decision.” Reaves v. State, 

485 So. 2d 829, 830 (Fla. 1986). 

However, the “four corners” rule articulated in Reaves, which the dissent 

cites as among the factors precluding this Court’s review here, is inapplicable to 

the jurisdictional issue presented in this case. Specifically, without need to resort 

to any facts outside the “four corners” of the Third District Court of Appeal’s 

opinion in Miles v. Weingrad (Miles II), 103 So. 3d 259 (Fla. 3d DCA 2012), it is 

possible to clearly ascertain conflict between Miles II, along with its predecessor 

case, Weingrad v. Miles (Miles I), 29 So. 3d 406 (Fla. 3d DCA 2010), and the 

Fourth District Court of Appeal’s decision in Raphael v. Shecter, 18 So. 3d 1152 

(Fla. 4th DCA 2009), on a pure question of law: whether a plaintiff has a vested 

right to file a medical malpractice cause of action that accrued prior to the 

enactment of the statutory limitation on non-economic damages. 

This principle of law that forms the basis for this Court’s conflict 

jurisdiction can be established from the “four corners” of the Third District’s 
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majority opinion in Miles II. Miles II references and cites to Miles I—Miles II is 

not, as the Court notes, simply an unelaborated affirmance that contains no 

information. See majority op. at 4-5. Upon reading Miles II and then Miles I, 

which Miles II cites, the inter-district conflict with Raphael is apparent. 

Indeed, the Third District actually recognized this conflict in Miles I by 

discussing and disagreeing with the Fourth District’s decision in Raphael. See

Miles I, 29 So. 3d at 410-11 (“[W]e specifically reject the reliance by Appellees, 

the amicus curiae, and the Fourth District in Raphael v. Shecter, 18 So. 3d 1152, 

1156 (Fla. 4th DCA 2009), on cases rejecting retrospective application of a statute, 

where the statute in question contained no legislative language providing for the 

statute to apply retrospectively.”); id. at 415 (“In Raphael, the Fourth District 

ignores the Florida Supreme Court’s holdings in Clausell [v. Hobart Corp., 515 So. 

2d 1275 (Fla. 1987)], equates the vesting of rights to when a cause of action 

accrues, and provides no analysis or authority for its conclusion that because the 

facts giving rise to Raphael’s medical malpractice action occurred prior to the 

enactment of the statute, the statute could not be applied to him because his rights 

had already vested.”). Further, this conflict has since been recognized by, and 

extended to, the First District Court of Appeal. See Fitchner v. LifeSouth Cmty. 

Blood Ctrs., Inc., 88 So. 3d 269, 281 n.3 (Fla. 1st DCA 2012) (stating that, to the 

extent the issue in that case turned on the existence of a vested right to assert the 
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cause of action, the First District “agree[d] with the decision of the Fourth District 

in Raphael and Judge Cope’s dissenting opinion in [Miles I],” despite the “Third 

District reach[ing] the opposite conclusion in [Miles I]”).

The dissent asserts that this Court lacks jurisdiction because Miles II

“contains no statement establishing a point of law upon which it rests” and equates 

this case to the type of unelaborated denial of relief over which this Court does not 

have jurisdiction. Dissenting op. at 18-19. I disagree. 

Contrary to the dissent’s contention, Miles II is not the equivalent of an 

“unelaborated” opinion that contains no indication that the district court “expressly 

address[ed] a question of law.” See id. at 19 (citing Gandy v. State, 846 So. 2d 

1141, 1143 (Fla. 2003)). If it were, the petition for discretionary review would 

have been administratively dismissed under Gandy and this Court’s case law, 

summarized in Wells v. State, 132 So. 3d 1110 (Fla. 2014), that grants the Clerk of 

this Court the authority to dismiss petitions for review in which conflict 

jurisdiction is an impossibility. 

Instead, the basis for exercising jurisdiction in this case is analogous to the 

basis for accepting jurisdiction in Del Valle v. State, 80 So. 3d 999, 1002 (Fla. 

2011), which quashed the Third District’s decision in Del Valle v. State, 994 So. 

2d 425 (Fla. 3d DCA 2008). The entirety of the Third District’s decision in Del 

Valle was the statement, “Affirmed,” with a citation to another Third District case 
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and an explanatory parenthetical that simply quoted a sentence from the cited 

authority. Yet, upon reading the cited Third District authority, conflict with 

decisions of other district courts of appeal was clear, and this Court, without 

dissent as to the jurisdictional issue, accepted review to address the decisional 

conflict. 

Just as in Del Valle, Miles II cites to another Third District case. And, just 

as in Del Valle, it is clear upon review of both the original case and the cited case 

that conflict with other district court decisions exists. The conflict is not simply 

between Miles I and Raphael, but also Miles II—which reaffirms Miles I—and 

Raphael. Therefore, we are not, as the dissent suggests, “reexamin[ing] a case 

cited in a per curiam decision to determine if the contents of that case now conflict 

with other appellate decisions.” Dodi Publ’g Co. v. Editorial Am., S.A., 385 So. 

2d 1369, 1369 (Fla. 1980). We are, instead, addressing a conflict that has existed 

since Miles I was decided and that was reaffirmed in Miles II. 

Because Miles II consists of more than a one-word disposition, such as 

“Affirmed,” with an unelaborated citation, Miles II does contain a statement 

establishing a point of law upon which the decision rests—the Third District 

“f[ound] no conflict between [its] prior opinion in [Miles I] and [this Court’s] 

opinion in American Optical Corp. v. Spiewak, 73 So. 3d 120 (Fla. 2011).” Miles 

II, 103 So. 3d at 260-61. Whether that statement of law is correct or not, it is a 
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statement that establishes the point of law upon which the Third District decided 

Miles II. 

Simply put, the Third District in Miles II affirmed the trial court because, in 

the Third District’s estimation, the trial court’s decision was consistent with Miles 

I, and the Third District determined that Miles I was not inconsistent with Spiewak. 

We know this because the Third District told us so. It did not simply state that the 

trial court was “Affirmed” and cite to a case without providing any explanation. 

Accordingly, in my view, the dissent is unsuccessful in attempting to distinguish 

Del Valle on the basis that the Third District’s decision “contains no statement 

establishing a point of law upon which it rests.” Dissenting op. at 18. 

In conclusion, to ascertain the existence of conflict, there is no need to look 

to the record, to a dissenting opinion, or to any facts not contained within the “four 

corners” of the Third District’s majority opinion. Because the principle of law 

established in both Miles I and Miles II is in clear conflict with Raphael, 

jurisdiction is proper on that basis. 

LABARGA, C.J., concurs.

CANADY, J., dissenting.

The entirety of the Third District’s decision before us for review reads: 

“Finding no conflict between our prior opinion in Weingrad v. Miles [(Miles I)],

29 So. 3d 406 (Fla. 3d DCA 2010), and the Supreme Court’s opinion in American 
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Optical Corp. v. Spiewak, 73 So. 3d 120 (Fla. 2011), we affirm.” Miles v. 

Weingrad (Miles II), 103 So. 3d 259, 259-60 (Fla. 3d DCA 2012). The majority 

has granted review on the ground that this decision expressly and directly conflicts 

with Raphael v. Shecter, 18 So. 3d 1152 (Fla. 4th DCA 2009). I disagree.

Under article V, section (3)(b)(3) of the Florida Constitution, this Court 

“[m]ay review any decision of a district court of appeal . . . that expressly and 

directly conflicts with a decision of another district court of appeal or of the 

supreme court on the same question of law.” For the exercise of jurisdiction under 

this provision, the “[c]onflict between decisions must be express and direct, i.e., it 

must appear within the four corners of the majority decision.” Reaves v. State, 485 

So. 2d 829, 830 (Fla. 1986). In “cases where the district court has not explicitly 

identified a conflicting decision, it is necessary for the district court to have 

included some facts in its decision so that the question of law addressed by the 

district court in its decision can be discerned by the Court.” Gandy v. State, 846 

So. 2d 1141, 1144 (Fla. 2003) (quoting Persaud v. State, 838 So. 2d 529, 532 (Fla. 

2003)). We do not have jurisdiction to review cases “that merely affirm with 

citations to cases not pending review in this Court[,]” id. at 1143 (quoting Persaud, 

838 So. 2d at 531-32), and have not “expressly addressed a question of law within 

the four corners of the opinion itself [,]” id. at 1144 (quoting Florida Star v. B.J.F., 

530 So. 2d 286, 288 (Fla. 1988)). 
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This well-established law is irreconcilably at odds with the majority’s 

decision to exercise jurisdiction here. No actual conflict with Raphael is 

discernible from the Third District’s one-sentence decision in Miles II. Neither of 

the cases mentioned in the decision are pending review in this Court. The decision 

contains no statement establishing a point of law upon which it rests. It is this fact 

that distinguishes this case from Del Valle v. State, 80 So. 3d 999 (Fla. 2011), on 

which the concurrence relies to establish the basis for accepting jurisdiction here. 

The entirety of the district court’s opinion in Del Valle reads:

Affirmed. See Gonzales v. State, 909 So. 2d 960, 960 (Fla. 3d 

DCA 2005) (“If the probationer’s defense is inability to pay, ‘it is 

incumbent upon the probationer or offender to prove by clear and 

convincing evidence that he or she does not have the present resources 

available to pay restitution or the cost of supervision despite sufficient 

bona fide efforts legally to acquire the resources to do so.’ § 

948.06(5), Fla. Stat. (2004)”).

Del Valle v. State, 994 So. 2d 425, 425 (Fla. 3d DCA 2008), decision quashed, 80 

So. 3d 999 (Fla. 2011). Unlike the district court’s opinion in Miles II, the district 

court’s opinion in Del Valle stated a conclusion on a particular question of law, 

i.e., whether a probationer asserting a defense of inability to pay restitution or costs 

of supervision has the burden to establish by clear and convincing evidence that he 

or she does not have the resources to pay despite having made sufficient bona fide 

efforts to acquire such resources. It was not necessary to read the Gonzales case in 

order to ascertain the conflict between Del Valle and the other district court cases 
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with which we found conflict. The decision in Miles II, however, is more akin to 

the unelaborated denials of relief considered in Gandy, in that no conclusion on a 

question of law is stated within the opinion itself. 

The existence of conflict jurisdiction here depends on whether there is 

conflict between Miles II and Raphael, not whether there is conflict between Miles 

I and Raphael. In Dodi Publishing Co. v. Editorial America, S.A., 385 So. 2d 

1369, 1369 (Fla. 1980), we recognized that “the issue to be decided from a petition 

for conflict review is whether there is express and direct conflict in the decision of 

the district court before us for review, not whether there is conflict in a prior 

written opinion which is now cited for authority.” The majority’s decision here 

flies in the face of the unambiguous holding of Dodi. By exercising the Court’s 

discretionary jurisdiction based on a conflict between Miles I and Raphael, the 

majority disregards the constitutional requirement that the conflict be express and 

direct and ignores our long-standing precedent requiring that the conflict appear

within the four corners of the majority decision and recognizing that this Court has 

no “subject-matter jurisdiction over a district court opinion that fails to expressly 

address a question of law . . . .” Gandy, 846 So. 2d at 1143 (quoting Florida Star, 

530 So. 2d at 288 n.3). 

Since it cannot be said that the decision in Miles II expressly addresses a 

question of law within the four corners of the opinion itself, and because no 
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conflict with Raphael appears within the four corners of Miles II, there is no basis 

for exercising this Court’s jurisdiction. The case should be discharged.

POLSTON, J., concurs.

Application for Review of the Decision of the District Court of Appeal - Direct 

Conflict of Decisions 

Third District - Case No. 3D12-779

(Miami-Dade County)

Robert Steven Glazier of the Law Office of Robert S. Glazier, Miami, Florida;

Alejandro Alvarez of the Alvarez Law Firm, Coral Gables, Florida; and Philip 

Mead Burlington of Burlington & Rockenbach, P.A., West Palm Beach, Florida,

for Petitioners

Mark Hicks, Dinah Stein, and Shannon Kain of Hicks, Porter, Ebenfeld & Stein,

P.A., Miami, Florida; and Bruce McLaren Stanley of Henderson, Franklin, Starnes 

& Holt, P.A., Fort Myers, Florida,

for Respondent

Thomas Stoneham Edwards, Jr. of Edwards & Ragatz, P.A., Jacksonville, Florida,

for Amicus Curiae Florida Justice Association