author: FARMER, J.

text:
    James ROBERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D01-1562.
    District Court of Appeal of Florida, Fourth District.
    Feb. 5, 2003.
    Rehearing Denied April 21, 2003.

      Carey Haughwout, Public Defender, and Nan Ellen Foley, Assistant Public Defender, West Palm Beach, for appellant.
    Charlie Crist, Attorney General, Tallahassee, and David M. Schultz, Assistant Attorney General, West Palm Beach, for appellee.
   FARMER, J.

We affirm defendant’s convictions for grand theft and burglary of an occupied structure and write to discuss the jury instruction issue as to the burglary conviction. In so doing, we have decided this case as a full court to recede from Lopez v. State, 805 So.2d 41 (Fla. 4th DCA 2001), which held that it is fundamental error to instruct a jury in burglary cases where the “remaining in” language of the standard instruction is erroneously included.

Although he did not object to the instruction at trial, defendant claims that instructing the jury as follows amounts to fundamental error:

“First: [defendant] entered or remained in a structure owned by or in the possession of [victim].
“Second: [defendant] did not have the permission or consent of [victim] or anyone authorized to act for him to enter and/or remain in the structure.
“Third: At the time of entering or remaining in the structure, [defendant] had a fully formed, conscious intent to commit the offense of theft in that structure.
“A person may be guilty of this offense if he originally entered the premises at a time when they were open to the public, but remained thereafter and he knew that the premises were closed to the public, or if he entered into or remained in areas after the premises were open, which he should have known were not open to the public if he had the intent to commit a crime described in the charge.
“Proof of the entering of a structure stealthily and without the consent of the owner or occupant may justify a finding that the entering was with the intent to commit a crime if, from all the surrounding facts and circumstances, you are convinced beyond a reasonable doubt that the intent existed.”

Defendant relies on Lopez for the proposition that he should be excused from failing to object to the instruction. He argues that it is fundamental error as a matter of law to instruct the jury on the “remaining in” alternative where there is no evidence of consent because it inevitably prejudices the jury into believing that he could be convicted of burglary where his intention to take the stolen property arose after his entry.

Here, the locus in quo was a commercial enterprise, namely a home care/medical supplies business. Defendant was convicted of burglary of the business at 1:00 in the morning by breaking into the closed and locked premises through the glass entrance door and walking out "with a television set. No reasonable jury could have been misled by the inclusion of the “remaining in” language to believe that he formed the intent to take the television only after he had already gone to such trouble to break into closed business premises at night.

Lopez was a residential burglary. . The victim was awakened in the nighttime hours to find defendant “poking” her as she lay sleeping in her bed. The defendant did not reside in the premises and had no plausible basis for being there. When the victim attempted to flee from him in her home, she found her front door already ajar. Under these facts the jury could not possibly have been misled into thinking that he was somehow lawfully in her bedroom at that hour, having entered with some benign purpose, and only belatedly formed an intent to commit a felony. Nevertheless, we reasoned that:

“In this case, there was no allegation or evidence that appellant ever had permission to be in the victim’s home [at the time in question]. There was thus no evidence of appellant’s ‘remaining in’ the dwelling after a revocation of consent, which would support the alternative ‘remaining in’ language in the instruction. The instruction, as given, suggested that the jury could convict appellant if he either entered the victim’s home with the intent to commit an offense or did not form the intent until after he ‘remained in’ her home. On these facts, however, with no consensual entry, the only way appellant could be convicted of burglary is if he had the intent to commit an offense when he entered the victim’s home. Because we cannot say beyond a reasonable doubt that this erroneous instruction did not affect the jury’s verdict, we reverse and remand for a new trial.” [e.s.]

805 So.2d at 43. As we said, upon further reflection we do not believe that the jury could have concluded under the Lopez facts that the intruder did not form his intent to commit an offense until “after he ‘remained in’ her home.”

Not every burglary is the same, but in some there are essential similarities. In at least two kinds of burglaries, the jury would not be misled by the improper inclusion of the “remaining in” language in the standard instruction. The first class involves the strange intruder in the victim’s bedroom in the middle of the night; there is no possible explanation for his presence other than to commit an offense. The second involves methods and circumstances of entry consistent only with a purpose to commit an offense: e.g., where the perpetrator saws his way through the roof, or breaks the window or door, to force his way into either residential or business premises at a time when he could not otherwise be there lawfully. Lopez involves the former; this case the latter.

Lopez appears to hold that an erroneous instruction as to an element of the crime on trial is categorically fundamental error. As we shall presently show, giving the erroneous instruction used in this case is not inherently prejudicial; it may be in some cases, but not in others. A non-categorical approach to erroneous jury instructions in criminal cases was recently applied in Reed v. State, 837 So.2d 366 (Fla.2002). There the trial court failed to instruct the jury accurately on the definition of a disputed, essential element of the crime charged. The instruction actually given allowed the jury to convict on a lesser showing of malice than the statute specified. Defendant failed to object to the improper instruction but argued in the supreme court that the improper instruction was fundamental error.

In agreeing that it was fundamental error not to instruct the jury properly as to the definition of the disputed element, the court emphasized that the erroneous instruction must be “pertinent or material to what the jury must consider in order to convict.” 837 So.2d at 369; see also Stewart v. State, 420 So.2d 862, 863 (Fla.1982). The Reed court recalled that an error is fundamental only when it “reach[es] down into the validity of the trial itself to the extent that a verdict of guilty could not have been obtained without the assistance of the alleged error.” The court then added:

“Thus, for error to meet this standard, it must follow that the error prejudiced the defendant. Therefore, all fundamental error is harmful error. However, we likewise caution that not all harmful error is fundamental. Error which does not meet the exacting standard so as to be fundamental’ is subject to review in accord with State v. DiGuilio, 491 So.2d 1129, 1135 (Fla.1986) (discussing the harmless error test).” [e.s.]

837 So.2d at 370.

We distinguish Reed from the present case and Lopez. In Reed the erroneous instruction improperly weakened a critical element of the crime; the erroneous instruction allowed the jury to convict when there was no evidence of the kind of malice specified in the statutory definition of the crime itself. In the. present case, however, the statute defines the crime in alternative ways. One way is by stealthily breaking and entering the premises with an intent to commit an offense within. The alternative way is to stealthily remain in the premises after first being admitted consensually and only after being first admitted form the intent to commit an offense in the premises.

The erroneous instruction in the case we face today (and in Lopez) involves an instruction on both alternative methods for committing the crime even though all the evidence points to only the “breaking and entering” alternative. In burglary cases, the jury is instructed that it may infer the requisite intent to commit an offense for the “breaking and entering” alternative from evidence of stealthy entry without consent. Here, as in Lopez, there was evidence of stealthy entry without consent. Where the evidence points clearly to the alternative that would allow the jury properly to presume the requisite intent, it is not reasonable to suppose the jury was misled by the inclusion of the instruction as to the “remaining in” alternative into blurring or eliminating crucial statutory elements of the crime, as the Reed instruction did. Thus while it might be fundamental error in a given case to instruct on both alternatives, we hold in this case that defendant was not prejudiced by instructing the jury as to both alternatives, and therefore any error would not be fundamental.

We stress also that in both of the two classes of cases we have described, there is simply no basis for the intruder to be in the premises. In the Lopez facts, the presence of an uninvited intruder in a victim’s bedroom in the middle of the night is consistent only with an intent to commit an offense. In this case involving business premises, the manner and time of entry are similarly inconsistent with any purpose of the intruder to be on the premises other than to commit an offense.

We therefore recede from Lopez — and any similar case relying thereon — to the extent that it holds that the erroneous giving of a “remaining in” instruction is always fundamental error. As these cases show, it may not be. See also Johnekins v. State, 823 So.2d 253 (Fla. 3d DCA 2002) (holding that improper instruction on “remaining in” is not always fundamental error and that the analysis depends on the facts of the individual case).

AFFIRMED.

POLEN, C.J., and GUNTHER, STONE, WARNER, KLEIN, STEVENSON, SHAHOOD, GROSS, TAYLOR, HAZOURI and MAY, JJ„ concur.

      . In affirming on all issues, we obviously conclude that the evidence of value of the stolen property was sufficient to establish grand theft.

      . As it happens, the victim had previously met the intruder as a result of his residence in the same neighborhood and had once hired him to perform some odd jobs around her home. But nothing in the record suggested consent or a non-criminal reason for being in her bedroom in the middle of the night.

      . Obviously trial judges should adapt the standard burglary instruction by eliminating the "remaining in” alternative unless there is evidence making it suitable.


source: Caselaw Access Project

author: ALTENBERND, Chief Judge.

license: Public Domain

text:
    Efrain AREIZAGA, Appellant, v. Jody SPICER, Appellee.
    No. 2D01-5438.
    District Court of Appeal of Florida, Second District.
    Feb. 7, 2003.
    Efrain Areizaga, pro se.
    Ronald S. Reed of Ronald S. Reed, P.A., Tampa; and Allison M. Perry, Tampa, for Appellee (Reed and Perry withdrew before briefing).

      No appearance on behalf of Appellee.
   ALTENBERND, Chief Judge.

Efrain Areizaga appeals two orders entered in a paternity action he brought against Jody Spicer. The first order held Mr. Areizaga in civil contempt for failing to pay one-half of the travel expenses incurred by Ms. Spicer in order to provide Mr. Areizaga visitation with the parties’ minor child. This order required Mr. Ar-eizaga to pay the outstanding amounts in three equal monthly installments but did not impose any sanction upon Mr. Areiza-ga. The second order denied Mr. Areiza-ga’s motion to disqualify the trial judge. We treat the appeal of the first order as a nonfinal appeal of an order determining the right to immediate monetary relief in a family law matter because the order sets a specified amount of money that Mr. Arei-zaga must pay within three months for visitation expenses related to the child. See Fla. R.App. P. 9.1S0(a)(3)(C)(iii). We reverse only that portion of the order that held Mr. Areizaga in civil contempt. We treat the appeal of the second order as a petition for writ of prohibition and deny the writ.

Mr. Areizaga brought an action for paternity against Ms. Spicer in April 2000 seeking to establish custody and support for their child. On October 17, 2000, the trial court entered a temporary order granting Mr. Areizaga certain visitation rights with the child. Because the child resides in Texas and is too young to travel alone, the order required the parties to share equally the significant expenses associated with each visitation. In September 2001, Ms. Spicer filed a motion for contempt, alleging that Mr. Areizaga had failed to reimburse her one-half of the visitation expenses for the months of January, May, and July 2001. This matter was set for hearing on November 1, 2001, along with a motion filed by Mr. Areizaga seeking to hold Ms. Spicer in contempt.

At the hearing, Ms. Spicer presented documentation of the expenses she incurred for the purposes of visitation. She admitted, however, that she had not provided Mr. Areizaga this documentation or communicated with him directly to seek reimbursement of these expenses prior to the filing of her motion for contempt.

The trial court entered an order on November 19, 2001, finding Mr. Areizaga in contempt, setting forth- the amount he owed Ms. Spicer for visitation expenses and requiring him to pay that amount in three equal monthly installments. The trial court did not impose any other sanctions.

We reverse that part of the order that indicated Mr. Areizaga was in contempt of court for his failure to pay the travel expenses. The temporary support order was not clear and definite enough to support a finding of contempt. See Thompson v. Plowmaker, 681 So.2d 727 (Fla. 2d DCA 1996). Moreover, because Ms. Spicer never provided documentation to Mr. Areizaga and never formally requested payment prior to filing her motion for contempt, there was no evidence Mr. Areizaga’s failure to pay the amounts due was willful.

We affirm the order in all other respects, however. There was competent, substantial evidence to support the trial court’s findings as to the travel expenses incurred by Ms. Spicer for visitation, and the trial court did not abuse its discretion by requiring payment of those amounts in three equal monthly installments.

Shortly after the hearing on the motion for contempt, Mr. Areizaga filed a pro se motion to disqualify the trial judge. The trial court denied the motion to disqualify, finding the motion was legally insufficient. We treat Mr. Areizaga’s appeal of this order as a petition for writ of prohibition, see Hayslip v. Douglas, 400 So.2d 553 (Fla. 4th DCA 1981), and deny the petition. The thirteen paragraphs of allegations in support of the motion to disqualify the judge related solely to adverse rulings made in regard to the motions for contempt. A trial court’s prior adverse rulings are not legally sufficient grounds upon which to base a motion to disqualify. See Hastings v. State, 788 So.2d 342, 342 (Fla. 5th DCA 2001).

The order of contempt dated November 19, 2001, is affirmed in part, reversed in part, and remanded to the trial court to strike those portions of the order finding Mr. Areizaga in contempt of court.

The petition for writ of prohibition is denied.

STRINGER and DAVIS, JJ., Concur.

      . Ms. Spicer has not cross-appealed or otherwise challenged the provisions in the order on appeal relating to Mr. Areizaga's motion for contempt.


author: SHEVIN, Judge.

text:
    SUNHOUSE CONSTRUCTION, INC., Appellant, v. AMWEST SURETY INSURANCE COMPANY and Consolidated Techniques, Inc., Appellees.
    No. 3D01-2975.
    District Court of Appeal of Florida, Third District.
    Feb. 12, 2003.
    Rehearing Denied April 4, 2003.

      Sterns Weaver Miller Weissler Alhadeff & Sitterson, and Eugene Stearns and Joy Spillis Lundeen and Alan H. Fein and Anastasia I. Kokotis, for appellant.
    Carlton Fields, and Bruce Charles King, for appellees.
    Before LEVY, SHEVIN and RAMIREZ, JJ.
   SHEVIN, Judge.

This appeal arises out of a dispute between a Contractor (“Sunhouse”) and a Subcontractor (“CTI”) on work performed at an elementary school in Miami-Dade County.

Sunhouse entered into a design-build contract with the Dade-County School Board for construction and renovation work on the J.G. Dupuis Elementary School (the “Project”). Following negotiations and numerous revisions to the design plans, Sunhouse entered into a Subcontract with CTI who agreed to provide the electrical work on the project for $800,000.

CTI left the project in August, 1997 before final completion but after the School Board issued a certificate of completion in June, 1997. CTI acknowledges that they left before final completion but argues they did so because Sunhouse refused to pay them the full amount of the Subcontract. CTI alleges that they had only been paid $724,890 of the $800,000 owed and further alleges that they were owed an additional $176,144 for extra work performed at the direction of Sunhouse.

Sunhouse alleges that the “additional” work performed was within the scope of the Subcontract and that as a result of CTI’S abandoning the project, Sunhouse was forced to hire replacement subcontractors at a cost in excess of $100,000.

Sunhouse filed its complaint against CTI and its Surety (“Amwest”) seeking to recover amounts expended by Sunhouse to complete and correct the work on the project. CTI filed its answer, affirmative defenses and counterclaim for breach of contract to recover the Subcontract price.

In a non-jury trial, the trial judge entered an order awarding CTI $196,104.33 plus $66,682.09 in prejudgment interest.

It is undisputed that CTI abandoned the job, and that Sunhouse paid replacement contractors in excess of the amount remaining on the Subcontract to complete the work. Sunhouse alleges I) that CTI was in breach of the Subcontract when it abandoned the project and II) the work done by the replacement subcontractors was part of the original Subcontract between Sunhouse and CTI and was not “additional” and/or “extra” work. We agree.

I.

CTI has admitted that it did not complete performance of its Subcontract. CTI contracted with Sunhouse to provide a “complete electrical package.” This included, among other things, “[a] New Addressable Fire Alarm System ... [and the] certification of the Fire Alarm System,” which were part of the Project Design Criteria and CTI’s scope of work as set forth in “Exhibit B” of the Subcontract. Sunhouse’s payment to replacement contractors to complete and/or correct the items relating to the fire alarm wiring alone exceeded the Subcontract balance. Indeed, determining and certifying that the fire alarm wires were correctly labeled required over eighty visits from completion contractors and cost Sunhouse nearly $80,000.

CTI abandoned the Project without paying its subcontractors and without providing Sunhouse with the As-Built drawings or warranties, which were explicitly required by the Subcontract as a condition of completion. Because the school was due to open within months, Sunhouse had no choice but to hire replacement subcontractors to correct and complete CTI’s work, as well as pay CTI’s subcontractors to keep them from abandoning the Project. Sunhouse incurred out-of-pocket expenses in excess of $100,000.

We hold that CTI was in breach of the Subcontract and was not entitled to payment because Sunhouse was forced to expend funds over and above the contract price in order to complete the Project. See Cheezem Dev’t Corp. v. Intracoastal Sales & Serv., Inc., 336 So.2d 1210, 1212 (Fla. 2nd DCA 1976).

Even if we were to assume, for the sake of argument, that CTI was entitled to the balance under the Subcontract, after taking into account the amount of money Sunhouse expended, CTI would recover nothing, and in fact, would owe money to Sunhouse for the costs of completion. Id. at 1212; see also Lockhart v. Worsham, 508 So.2d 411 (Fla. 1st DCA 1987) (proper measure of damages is reasonable cost of making work conform to the contract); Vanater v. Tom Lilly Constr., 483 So.2d 506, 508 (Fla. 4th DCA 1986) (court found that contractor was liable for the full cost of replacing particle board shelves where contract called for wood); Bankers & Shippers Ins. Co. of New York v. AIA Installation Indus., Inc., et al., 390 So.2d 734, 740 (Fla. 4th DCA 1980) (court held that contractor was liable for full cost of replacing a roof that did not meet specification); American Motor Inns Florida, Inc. v. Bell Elec. Co., 260 So.2d 276 (Fla. 4th DCA 1972) (court recognized that an owner should have been allowed a credit for work done in correcting defective workmanship).

II.

In the instant case, not only was CTI awarded the full contract price, it was awarded over $100,000 for “extra work” CTI alleged it performed which they claimed was “outside the scope” of the Subcontract.

The trial court found that much of the work done by CTI was outside the scope of the Design Criteria and/or was omitted from the plans and specifically excluded from the contract. We disagree. On appeal, the trial court’s construction of a contract is subject to de novo review. Argoff v. Rainberry Bay Homes Ass’n, Inc., 828 So.2d 399 (Fla. 4th DCA 2002).

In this case, CTI entered into a Subcontract under which it agreed to provide an electrical package in accordance with the provisions of the Subcontract and the Plans and Specifications as prepared by the Architect. CTI further agreed to perform its work in accordance with the Agreement between Sunhouse and the Dade County School Board as well as all Federal, State, and Local Ordinances.

Pursuant to Article VIII of the Subcontract:

The work included in this Agreement is to be done under the direction and to the satisfaction of Sunhouse, the Architect and the Owner, and the reasonable and good faith decision of the said Architect as to the true construction and meaning of the Plans and Specifications shall be final. Sunhouse will furnish to the Subcontractor such additional information and Plans as may be prepared by the Architect to further describe the Work to be performed by the Subcontractor and the Subcontractor shall conform to and abide by same insofar as they are consistent with the purpose and intent of the Plans and Specification[s]....

What this means, in simple terms, is that the Plans and/or “scope” of the contract could conceivably change, and as long as those changes were reasonable and consistent with the purpose and intent of the Subcontract, they could not be disputed and became incorporated into the contract.

No plans existed when CTI submitted its letter of intent to perform all electrical work specified in the Design Criteria and only preliminary plans existed when CTI submitted its bid for the Project’s electrical work. Most importantly, in executing the Subcontract with Sunhouse, CTI agreed that if and when additional Plans where completed during the construction process, it was obligated to conform its work to those plans consistent with the Subcontract.

Approximately one month after the Subcontract was signed by the parties, the final drawings issued. Shortly thereafter, CTI began requesting numerous change orders claiming the scope of the work had changed. Months passed, and in order to resolve the ongoing problem and settle any differences between the May and June drawings, Sunhouse issued “Change Order Number 2,” approving any and all change orders dated prior to October 15, 1996. By its terms, Change Order 2 “encompassed] any and all modifications or alterations to the original drawings as stated in the Subcontract to the current 06.10.96[c]onstruction issue plans.... ” In the trial court’s Findings of Fact and Conclusions of Law, the court stated that by issuing the Change Order, Sunhouse “set the stage for [C] TI to properly disavow much of the responsibility for items that [Sunhouse] expected CTI to complete.... ” We disagree. Change Order 2 was issued in good faith and in the interest of maintaining a healthy business relationship, and did nothing to alter the terms of the Subcontract.

It is the opinion of this court that the trial court faded to fully understand the agreement between the parties, and the essence of design-build construction. Where a trial court’s determinations are not grounded in competent substantial evidence, a reversal is warranted. See Randy Int’l, Ltd. v. American Excess Corp., 501 So.2d 667 (Fla. 3d DCA 1987) (when a trial court’s findings are unsupported by competent substantial evidence, it is the appellate court’s duty to reverse); Design Eng’g Corp. of Am. v. Pan Aviation, Inc. 448 So.2d 1112 (Fla. 3d DCA 1984); Hull v. Miami Shores Village, 435 So.2d 868 (Fla. 3d DCA 1983).

In its findings of fact and conclusions of law, the court below stated that “the court is unable to separate from the work orders and change orders what was in the plans and what was not,” but nevertheless allowed CTI to recover on all of its change orders for “extra work” performed totaling over $100,000.

Conversely, the court found that Sun-house was entitled to a setoff for the cost to correct the fire alarm wiring, which CTI failed to color code. However, because the court could not determine how much of the work related to pre-existing wiring which CTI did not have to color code, the court held that Sunhouse had not carried its burden. Likewise, the trial court found that “the billing of the ‘completion contractors’ was [insufficient to determine what was in the contract or plans and what was not,” and as a result rewarded Sunhouse nothing.

If the lower court’s judgment is allowed to stand, Sunhouse will be forced to pay CTI in excess of $200,000 when Sunhouse has already paid over 1 million dollars for an electrical package CTI promised to provide for $800,000. Accordingly, because there is no competent and substantial evidence to support the judgment in this case said judgment must be vacated.

Reversed and remanded with directions consistent with this opinion.


author: PER CURIAM.

text:
    Nelson DURAN, Petitioner, v. MFM GROUP, INC., Frank Ferrer, William Daniel Lamey, a.k.a. W. Daniel Lamey, Respondents.
    No. 3D02-2371.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 2003.
    Rehearing Denied April 4, 2003.
    Lopez & Best, and Virginia M. Best, Miami, for petitioner.

      Ezell & Menendez, and Boyce F. Ezell, III, Miami, for respondents.
    Before JORGENSON, GERSTEN, and RAMIREZ, JJ.
   PER CURIAM.

Petitioner, Nelson Duran (“Duran”), seeks certiorari review of a non-final discovery order denying his motion to compel deposition testimony from a non-party witness in a breach of fiduciary duty case brought against respondents MFM Group, Inc., Frank Ferrer, and William Daniel Lamey (hereafter collectively referred to as “MFM”). We deny certiorari finding Duran has failed to demonstrate a departure from the essential requirements of law that cannot be remedied on plenary appeal.

During the course of discovery, Duran sought to depose a former employee of MFM in order to obtain financial information. The former employee appeared for deposition but was instructed by MFM’s counsel not to answer certain financial questions based upon the accountant-client privilege. See § 473.316, Fla. Stat. (2002).

Duran’s counsel then terminated the deposition and filed a motion to compel the former employee’s testimony regarding MFM’s financial statements and other financial matters. The trial court denied the motion, noting the former employee did have a current certified public accountant license, and was licensed at the time he gave the deposition. Duran now seeks certiorari review from the adverse order.

As a general rule, certiorari will not be granted to review an order denying discovery since any error in denying the requested discovery can be remedied on plenary appeal. See Palmer v. WDI Systems, Inc., 588 So.2d 1087 (Fla. 5th DCA 1991). Exceptions are made only in those cases involving a material witness who possesses information “going to some fact affecting the merits of the cause and about which no other witness might testify.” Wingate v. Mach, 117 Fla. 104, 157 So. 421, 422 (1934); see also Lifemark Hospitals of Florida, Inc. v. Hernandez, 748 So.2d 378 (Fla. 3d DCA 2000)(expert medical witness required to be deposed because her testimony was material to a central issue in the case).

Such is not the case here. No showing has been made that the former employee is the only source for the financial information sought by Duran. To the contrary, it appears there are many other witnesses who can testify to the same information, including, but not limited to, the two individual defendants as well as the outside accountant who prepared MFM’s taxes.

In any event, Duran is not entitled to certiorari review because he has not demonstrated that the denial of his motion constitutes “a violation of a clearly established principle of law resulting in a miscarriage of justice.” Combs v. State, 436 So.2d 93, 96 (Fla.1983). Duran’s claims against MFM are premised upon his ability to establish his status as a shareholder. Until that status is conclusively established, Duran is not entitled to MFM’s financial information. See Universal Eng’g Testing Co., Inc. v. Israel, 707 So.2d 900 (Fla. 5th DCA 1998). Since Duran is not entitled to the information until his disputed status as a shareholder has been resolved, there is no departure from the essential requirements of law.

Accordingly, for the reasons stated above, we deny the petition for certiorari. See Sardinas v. Lagares, 805 So.2d 1024 (Fla. 3d DCA 2001); Universal Eng’g Testing Co., Inc. v. Israel, 707 So.2d at 900; Bared & Co., Inc. v. McGuire, 670 So.2d 153 (Fla. 4th DCA 1996); Palmer v. WDI Systems, Inc., 588 So.2d at 1087.

Certiorari denied.


author: COPE, J.

text:
    Shamond BYRD, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2354.
    District Court of Appeal of Florida, Third District.
    Feb. 19, 2003.
    Rehearing Denied April 4, 2003.
    Shamond Byrd, in proper person.
    Charlie Crist, Attorney General, and Mark Rosenblatt, Assistant Attorney General, for appellee.
    Before COPE and RAMIREZ, JJ., and NESBITT, Senior Judge.
   COPE, J.

Shamond Byrd appeals an order denying his motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). We affirm.

Defendant-appellant Byrd was convicted of second degree murder with a firearm, aggravated battery with a firearm, and carrying a concealed firearm. He received a term of life imprisonment with a three-year mandatory minimum sentence for the second degree murder conviction, fifteen years with a three-year mandatory minimum sentence for the aggravated battery, and five years for the concealed firearm conviction.

On direct appeal, defendant’s appointed counsel filed a brief under Anders v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967), and the defendant submitted a pro se brief. Among the issues raised in the pro se brief was the claim that the life sentence for the second degree murder conviction could not be imposed without departure reasons. This court affirmed the convictions and sentences without opinion. Byrd v. State, 788 So.2d 981 (Fla. 3d DCA 2001), review dismissed, 791 So.2d 1095 (Fla.2001), cert. denied, 535 U.S. 937, 122 S.Ct. 1317, 152 L.Ed.2d 226 (2002).

Subsequently the defendant filed the instant motion to correct illegal sentence. In it, he again contends that the life sentence could not be imposed without departure reasons. As a threshold matter, it appears that this claim is procedurally barred because it was raised by the previous pro se brief and rejected. Raley v. State, 675 So.2d 170, 173 (Fla. 5th DCA 1996).

In an abundance of caution, we also address the merits of this claim. The defendant’s guidelines seoresheet provided a score of three hundred eighty-four state prison months. Under the applicable version of the guidelines, “If the total sentence points are equal to or greater than 363, the court may sentence the offender to life imprisonment.” § 921.0014(2), Fla. Stat. (1997). Since the points score 384, the court was authorized to impose the life sentence and did so.

The defendant argues that if the trial court wishes to use the authority to impose the life sentence in these circumstances, this amounts to a departure sentence and the trial court must announce departure reasons. The Fourth District Court of Appeal has so held. Franco v. State, 111 So.2d 1138, 1141 (Fla. 4th DCA 2001).

By this court’s affirmance of the direct appeal (wherein the defendant had submitted a pro se brief raising this exact issue), we have necessarily rejected that argument. If the sentence points are 363 or more, the court may sentence the offender to life imprisonment without departure reasons. Willis v. State, 785 So.2d 648 (Fla. 2d DCA 2001); Cash v. State, 779 So.2d 425 (Fla. 2d DCA 2000); Stoltzfus v. State, 735 So.2d 549 (Fla. 5th DCA 1999); Kalapp v. State, 729 So.2d 987 (Fla. 5th DCA 1999).

Affirmed.

      . The crime date was April 12, 1998.

      . As a procedural matter, the defendant’s claim is not cognizable on a motion to correct illegal sentence under Florida Rule of Criminal Procedure 3.800(a). That is so because the absence of departure reasons does not render a sentence illegal. Davis v. State, 661 So.2d 1193 (Fla.1995), receded from in part on other grounds, Mack v. State, 823 So.2d 746, 748 (Fla.2002); Yero v. State, 781 So.2d 506 (Fla. 3d DCA 2001). Since the instant Rule 3.800(a) motion was filed within two years of the affirmance of the defendant’s conviction, it can be treated as a timely Rule 3.850 motion.


author: COBB, W., Senior Judge.

text:
    CITY OF MELBOURNE, Florida, Appellant, v. Linda L. DUNN & Jerry Wayne Dunn, Appellee.
    No. 5D02-652.
    District Court of Appeal of Florida, Fifth District.
    Feb. 21, 2003.
    Rehearing Denied April 9, 2003.
    Douglas T. Noah and Lamar D. Oxford of Dean, Ringers, Morgan & Lawton, P.A., Orlando, for Appellant.
    Sidney L. Syna, Melbourne, for Appel-lee.
   COBB, W., Senior Judge.

The City of Melbourne appeals a final judgment in favor of Linda Dunn, who was awarded damages for injuries she sustained as a result of a fall in a city park. The city contends that the court erred in denying its motion for directed verdict. We reverse.

Dunn, along with her husband and her grandchild, exited the park and encountered a raised planter. The planter was composed of a perimeter of timber planks forming a rectangle of 21x7 feet. The planks forming the perimeter, each 6 inches in height, were stacked one atop the other, for a height of 12 inches. The planter was filled with dirt and mulch, and plants in a staggered formation. Despite the fact that there was a path directly beside the planter, Dunn testified that she thought that the route to the parking lot was over and across this obstruction, rather than around it. Dunn traversed the planter and tripped because, she thought, her foot was caught in a crevice caused by the separation of the planks forming one corner of the planter. Below the surface of the planks, a large nail that seemed to have been intended to secure the corner of the planter was dislodged from one of the planks, and Dunn thought that the strap to her sandal may have been caught by the nail. Although Dunn testified that she walked across the planted area, a witness testified that Dunn walked along the edge of the planter, remaining on the timbers.

An owner of land is not required to give an invitee warning of an obvious danger, and is entitled to assume an invitee will perceive something obvious. Moultrie v. Consolidated Stores International Corp., 764 So.2d 637 (Fla. 1st DCA 2000). Some conditions are so open and obvious, so common and innocuous, that they can be held as a matter of law to not constitute a hidden dangerous condition. Gorin v. City of St. Augustine, 595 So.2d 1062 (Fla. 5th DCA 1992). In the instant case, the photographs in the record, attached hereto, show that the gap between the intersecting planks was a blatant, yawning separation, and Dunn admitted that if she had been looking, she would have seen it. As in Taylor v. Universal City Property Management, 779 So.2d 621, 622 (Fla. 5th DCA 2001), the 21x7x1 foot planter was a “glaringly open and obvious obstacle” for anyone walking out of the park, and Dunn “knew, or should have known” that she mounted and walked on a foot-high planter built of timbers and filled with mulch and plantings. As in Taylor, 779 So.2d at 622, we conclude that anyone walking across this planter “is held to know that this is a hazard to walking.” Because Dunn had “ample notice of an open and obvious hazard,” she cannot blame the city for her fall. Id.

Furthermore, the city had no duty to make the planter safe for walking, a function for which it was not designed. Compare, McCain v. Florida Power Corporation, 593 So.2d 500 (Fla.1992); Acree v. Hartford South Inc., 724 So.2d 183 (Fla. 5th DCA 1999). The city had no reason to suspect that a grown woman would consider the planter an exit path, or use it to perform a sort of tightrope act, instead of proceeding to the parking lot by simply walking around it along the adjacent path.

REVERSED and REMANDED for entry of judgment for the defendant below, City of Melbourne.

PALMER, J„ and HARRIS, Senior Judge, concur.

ATTACHMENT


author: PLEUS, J. PETERSON, J.,

text:
    CAP’S-ON-THE-WATER, INC., et al., Appellants, v. ST. JOHNS COUNTY, et al., Appellees.
    No. 5D02-988.
    District Court of Appeal of Florida, Fifth District.
    Feb. 21, 2003.
    Rehearing Denied April 7, 2003.
    Frank D. Upchurch, III, of Upchurch, Bailey and Upchurch, P.A., St. Augustine, for Appellants.
    Isabelle Christine Lopez, ' Assistant County Attorney, St. Johns County, St. Augustine, for Appellee, St. Johns County.
    Robert L. McLeod, II, St. Augustine, for Appellees, Morsch, et al.
   PLEUS, J.

The appellants own a restaurant/bar on the Intracoastal Waterway (“the owners”). The sole issue on appeal is the facial constitutionality of a portion of the St. Johns County Land Development Code (the “Code”). Because we find the ordinance, on its face, does provide for “adequate” standards to be applied by the zoning authorities in making zoning decisions, we affirm the trial court’s order upholding the constitutionality of the ordinance.

The portion of the ordinance in question pertains to the conditional granting of Special Uses under the Code. Specifically, section 2.03.01-A, entitled “Limitations on Special Uses,” provides:

The Planning and Zoning Agency may adopt conditions on any Special Use approval; any such conditions shall be stated in the final order of the Planning and Zoning Agency granting the Special Use.

The ordinance places no limits on the discretion of the Planning and Zoning Agency (the “PZA”) to adopt conditions for the special use approval. Read alone, this provision would not pass constitutional muster because the PZA could arbitrarily impose on any applicant any condition that it chose to impose.

In ABC Liquors, Inc. v. City of Ocala, 366 So.2d 146 (Fla. 1st DCA), cert. denied, 376 So.2d 69 (Fla.1979), an ordinance simply allowing a mayor and city council to decide on a case-by-case basis those locations at which the sale of alcoholic beverages would be permitted, and which would not be permitted, was held to be unconstitutional based on the total absence of standards or procedures for guidance in the decision-making process.

Although the ordinance in the instant case does not provide for standards in the decision-making process, it, like any code provision, must be read in the context of the entire document. The County points to the definition of a special use found in Part 12.01.01 of the Code which provides guidance as to when a conditional special use may be found to be appropriate. This code section provides:

Part 12.01.01
Special Use: Means a Use that would not be appropriate generally or without restriction throughout a zoning division or district but which if controlled as to number, area, location, or in relation to the neighborhood, would promote the public health, safety, welfare, morals, order, comfort, convenience, appearance, prosperity, or the general welfare. Such Uses may be permissible in a zoning classification or district upon the granting of a Special Use and meeting the requirements of this Code.

(Emphasis added).

The trial court concluded that section 2.03.01-A is constitutional because the discretion to place conditions on a special use is curtailed by the Code’s definition of a special use in Part 12. The court noted that similar terminology limiting a zoning entity’s discretion was deemed constitutional in Life Concepts, Inc. v. Harden, 562 So.2d 726 (Fla. 5th DCA 1990).

In Life Concepts, neighbors of a proposed group house challenged the constitutionality of a city ordinance allowing group or foster homes as special exceptions. This court found that the ordinance in question which required group homes to be “compatible with the neighborhood or area in terms of size of facility and number of persons,” to not be “subject to whimsical or capricious application or unbridled discretion.” Life Concepts, 562 So.2d 726, 727-28.

The language in the definition of a special use in the instant case that the use should be controlled “in relation to the neighborhood,” is quite similar to the language held sufficient in Life Concepts. We thus conclude that the language “in relation to the neighborhood” provides a sufficient constitutional standard on the PZA’s discretion to impose conditions on a special use in any particular application.

We note, however, that in the application of this provision, the conditions imposed must bear a relationship to the goal of compatibility between the special use and the surrounding area. Should the owners decide to challenge the conditions as unreasonable restrictions, the court can consider whether the conditions are whimsical or capricious. Conditions on a use, just like exceptions to a rule, can swallow or drown the use which was intended to be approved in the first place. Owners are entitled to fair play; their properties, which may represent their life fortunes, should not be subjected to whimsical or capricious conditions.

AFFIRMED.

PALMER, J., concurs.

PETERSON, J., dissents with opinion.

PETERSON, J.,

dissenting.

I respectfully dissent. I do not understand how Part 12.01.01, the portion of the Code defining special use, supplies any meaning or restrictions on the type or extent of the conditions that may be imposed on the owner of lands by the members of the planning and zoning agency of St. Johns County pursuant to Part 2.03.01-A.

The appellant is the owner of a restaurant established in 1981 on the intracoastal waterway in the Vilano Beach area of St. Johns County. The property is zoned commercial highway tourist. The facility has two dining rooms, a small lounge and a waterfront deck where food and beverage service is provided. A live band sometimes plays on this deck and I suspect that the noise disturbs the neighbors and is the source of a legitimate problem and has stimulated this litigation.

In 1983 the county granted the facility a zoning exception for on-site consumption of alcoholic beverages. Sometime before June, 1999, the facility was sold and the county “decided” that the exception was not transferable to the new owners and that an application for a special use permit was required. Fearing retaliation by county officials if they did not comply with the requirement for a new application, they submitted an application. Subsequently, the county imposed new conditions on the operation of the facility:

1. Package sales of alcohol would no longer be allowed;
2. Live bands would have to perform in a bandshell to be constructed;
3. Live bands would only perform in the bandshell (a) between 1:00 and 5:00 P.M. on Sundays, (b) at catered weddings and parties on Friday and Saturday nights no later than 6:00 P.M. and (c) on New Years Eve; and
4. String acoustical performers would only be allowed to perform in the bandshell on Fridays and Saturdays from 6:00 to 9:00 P.M.

When neighbors appealed the decision to grant the permit, the new owners proposed enclosing a room where a band could play. This proposal was incorporated in the permit with other modifications and the county issued the permit.

Unfortunately, loud speakers providing background music were used on the deck, neighbors complained and a county official visited the facility when a live band was playing in the newly enclosed room. The officials notified the owners that they were in violation of the permit because the room had not been constructed in accordance with the permit. Apparently the new owners complied with the notice over objections, but then attacked Part 2.03.00 of the Code in the circuit court alleging that it authorizes the county to impose permit conditions on a selective, ad hoc, arbitrary basis, without reference to uniform standards, criteria and requirements. A final judgment was rendered against the new owners and is the subject of this appeal.

I must admit that most of the conditions imposed upon the new owners by St. Johns County in its attempt to resolve problems that existed between adjoining land owners were reasonable and practical. In this case, the county used restraint in imposing most of the conditions that were aimed at solving the problems between adjoining land owners, but in doing so removed a source of revenue for the sale of package goods that had nothing to do with the noise problem. Notwithstanding, I am concerned with the non-existence of any limitation in the Code that would have prevented the county from imposing any imaginable condition and agree with the appellant that the Code can permit conditions to be imposed on a selective, ad hoc, arbitrary basis. The Code does not supply any uniform standards, criteria or requirements that would allow an applicant to anticipate what conditions the county may impose, nor does the Code place a restraint on county officials from imposing whatever conditions may come to mind.

If noise is the underlying issue in this case, the issue should be resolved through an action in nuisance or by an anti-noise ordinance, not the extreme measure of requiring a new application for a special use permit under the guise that an application is required simply because a long established business changes ownership when there has been no change in the type of operation.

      . Appellant has not raised an issue regarding the legality of the county’s requirement that a new application be filed simply because a new owner exists. Notwithstanding, it should be noted that requiring a new application for a special use permit each time an established business is conveyed to a new owner has a chilling effect on property values where the operations of the business under new ownership may have conditions imposed by county officials without restraint.


author: HAZOURI, J. GROSS, J.,

text:
    John RYAN, IV, Victoria Ryan, Alin Ryan Smith and Carolina Ryan Camperio, and Robert E. Nall, as personal Representative of the Estate of Julio Lobo Olabarria, Appellants, v. Leonor LOBO DE GONZALEZ and Jorge Gonzalez, Appellees.
    Nos. 4D00-4658, 4D01-2389.
    District Court of Appeal of Florida, Fourth District.
    Feb. 26, 2003.
    Rehearing Denied April 17, 2003.

      Gerald F. Richman, Manuel A. Garda-Linares, Mark A. Romance and Laline Concepcion-Veloso of Richman Greer Weil Brumbaugh Mirabito & Christensen, P.A., Miami, for appellants.
    George H. Moss and Casey Walker of Moss, Henderson, Blanton & Lanier, Kretschmer & Murphy, P.A., Vero Beach, for appellees.
   HAZOURI, J.

John Ryan, IV, Victoria Ryan, Carolina Ryan Camperio and Alin Ryan Smith (“the children”), as assignees of Maria Luisa Lobo Ryan, and Robert Nall, as personal representative of the estate of Julio Lobo Olabarria (“the Estate”), filed suit against Leonor Lobo de Gonzalez and Jorge Gonzalez to recover the shares of Chiriqui Sugar Mills Corporation (“Chiriqui”), a Panamanian corporation holding title to sugar properties in Cuba. The trial court determined that all the claims raised in the Second Amended Complaint were barred by the statute of limitations and entered final summary judgment in favor of Leonor and Jorge Gonzalez. The children and the Estate appeal from the order of final summary judgment (Case No. 4D00-4658). Leonor and Jorge Gonzalez appeal from the trial court order denying their Motion for Sanctions/Fees and Costs Based on Proposal for Settlement (Case No. 4D01-2889). The two appeals have been consolidated.

Maria Luisa Lobo Ryan (“Maria Luisa”), who is deceased, and Leonor Lobo de Gonzalez (“Leonor”) are the two daughters of Julio Lobo Olabarria (“Julio Lobo”), who is also deceased. Jorge Gonzalez is the husband of Leonor. John Ryan, IV, Victoria Ryan, Carolina Ryan Camperio and Alin Ryan Smith are the children of Maria Luisa, through whom they claim as assignees. Robert Nall is the personal representative of the estate of Julio Lobo. This case deals with a dispute over who should have possession of shares in Chiriqui Sugar Mills Corporation.

In 1957, Julio Lobo formed Chiriqui to purchase Hershey Sugar Corporation and its affiliated companies, Rosario Sugar Company and Compañía Azucarera Gómez Mena, from the Cuban Atlantic Sugar Corporation. The three properties consisted of agricultural lands, three mills and a refinery with an integrated railroad system linking the three mills. The Chiriqui shares were represented by bearer stock certificates. Julio Lobo purchased the properties for $25 million. To finance part of the purchase, he obtained a $9 million loan from First National City Bank (“City Bank”) and pledged the Chiriqui shares and its underlying properties as collateral. In 1960, Fidel Castro nationalized and confiscated the properties and Julio Lobo’s assets. As a result, Julio Lobo defaulted on the City Bank loan.

In 1968, the City Bank loan was renegotiated and modified by Julio Lobo. As part of the modification, the Moorings Development Company (“Moorings”), a Florida real estate development company controlled by Julio Lobo but owned 50-50 by Maria Luisa and Leonor, assumed $3.7 million of the Chiriqui debt and secured the debt with Moorings shares. In exchange, the Moorings obtained a Chiriqui promissory note in its favor in the amount of $3.7 million, the amount of the assumed debt. The parties agreed that if Julio Lobo defaulted on this restructured loan, the Moorings would receive the Chiriqui shares. Julio Lobo never made any payments on the note and was in default by 1965. The Moorings seized the Chiriqui shares but did not file any documents reflecting the seizure with the Panama Public Registry. The Moorings did not list the Chiriqui shares in any of its financial statements nor in any of its tax returns.

Enrique León, Julio Lobo’s Cuban attorney, testified that the Moorings seizure of the Chiriqui shares was a scheme orchestrated by Julio Lobo to protect the Moorings from the IRS and creditors. He testified that Julio Lobo considered himself the owner of the Moorings and that he expected to retain the Chiriqui shares.

In 1967, the Moorings began to operate independently of Julio Lobo despite his protests, and by 1968 he had no control in the Moorings. In 1968, the Moorings sold the Hershey trademark, a Chiriqui property, to Hershey of Pennsylvania. Julio Lobo received in excess of $100,000 from the sale but was dissatisfied with the amount.

In 1971, Julio Lobo wrote several letters to his attorneys in Miami concerning his desire to obtain control of the Moorings and the Chiriqui shares and his belief that they belonged to him. Letters written in 1972 from Julio Lobo to his Miami attorneys indicate that Enrique León, his former attorney in Cuba, reached an agreement with his daughters and that the Chiriqui shares would be returned to him. Enrique León testified that there was an agreement reached in 1972 for the return of the shares. However, subsequent letters from Julio Lobo to his attorneys indicate that Julio Lobo lost all hope that he would retain any interest in the Moorings or the Chiriqui shares. In May 1974, by letter to his attorneys, Julio Lobo indicated that based on their recommendation he decided not to enforce his rights in the Moorings or to the Chiriqui shares. He recognized that “the tax people” were after him and that if he were to succeed, all would go to the IRS. He also indicated a desire to salvage his relationship with his daughters. The children and the Estate allege that Julio Lobo decided not to take any legal action, because he reached an agreement with his daughters that the Chiriqui shares would be returned to him “at the appropriate time,” as evidenced by Jorge Gonzalez’s deposition testimony and letters written by Julio Lobo. However, there are no documents in the record dated after the 1974 letters to his attorneys that support the assertion that Julio Lobo had any hope of retaining the Chiriqui shares. Additionally, Jorge Gonzalez’s testimony indicates that there was no agreement that Julio Lobo would receive the Chiriqui shares absent some form of consideration.

In 1980, Maria Luisa redeemed her 50% interest in the Moorings for several tracts of land which were subsequently sold for approximately $8 million. The parties dispute whether Maria Luisa was aware that the Chiriqui shares were an asset of the Moorings and whether the Chiriqui shares were factored into the compensation she received when she redeemed her interest. There is record evidence to support both parties’ allegations.

Julio Lobo died in 1988 without having taken any legal action to establish an interest in the Moorings or in the Chiriqui shares.

In 1984, Leonor sold her 100% interest in the Moorings for substantially more than Maria Luisa received for her interest. Leonor did not include the Chiriqui shares in the sale. Before the sale, Leonor -removed the Chiriqui shares from the Mooring’s safety deposit box and kept them in a shoe box.

In 1991, John Ryan, a son of Maria Luisa, began to investigate and compile a list of Julio Lobo’s assets and learned of the Chiriqui shares. Leonor acknowledged at a meeting of the Asociación Na-cional de Hacendados de Cuba (National Association of Landholders of Cuba) that she and Maria Luisa shared interest in the Chiriqui shares 50-50. She acknowledged at a deposition that she did not assert more than a 50% interest in the Chiriqui shares before 1996.

In March 1996, Leonor filed a document with the Panama Registry claiming to be the 100% owner of Chiriqui and transferred her interest in the Chiriqui shares to a Florida corporation. The children and the Estate allege that this was the first time Leonor claimed 100% ownership of the Chiriqui shares, and that they first learned that Leonor was claiming 100% interest in April 1996.

Maria Luisa died in February 1998. On December 30, 1998, the children and the Estate of Maria Luisa filed suit against Leonor and Jorge Gonzalez to recover the Chiriqui shares. The following claims were asserted: constructive trust, reformation for mutual mistake, breach of fiduciary duty, declaratory judgment, negligent misrepresentation and permanent injunction. The Complaint was dismissed on the basis of the statute of limitations defense. The Amended Complaint was filed on October 1, 1999. On October 20, 1999, Leonor and Jorge Gonzalez served a proposal for settlement on the children pursuant to the offer of judgment statute, section 768.79, Florida Statutes (1997). Defendants offered each of the children $100 (for a total of $400) to settle their claims. The children declined the proposal for settlement.

On October 29, 1999, Defendants filed their Answer to the Amended Complaint, again raising the statute of limitations defense. On November 2, 1999, Defendants filed a Motion for Final Summary Judgment, arguing that all of the children’s claims were barred by the statute of limitations. On April 13, 2000, the trial court denied Defendant’s Motion for Summary Judgment on the basis that discovery had not been completed.

On August 4, 2000, the Second Amended Complaint was filed, adding the Estate of Julio Lobo as a plaintiff, dropping the Estate of Maria Luisa as a plaintiff and with the children proceeding as Maria Luisa’s assignees. The claims asserted were the same as in the Amended Complaint. The Second Amended Complaint generally alleges as follows: Julio Lobo orchestrated the Moorings’ “alleged” acquisition of the Chiriqui shares in order to protect Chiri-qui from creditors and with the understanding that they would be returned to Julio Lobo “at an appropriate time”; Maria Luisa was never aware that the Moorings “allegedly” acquired the Chiriqui shares; when Maria Luisa sold her 50% interest in the Moorings she was not aware that the Chiriqui shares were part of the sale; the Moorings failed to properly seize the Chiriqui shares; Leonor did not publicly assert any ownership interest in the Chiriqui shares until 1996; the statutes of limitations with respect to all claims by the Estate did not begin to run until 1996; Leonor and Jorge Gonzalez are estopped from raising the statute of limitations as a defense because they concealed that the Moorings acquired the Chiriqui shares.

There are eight counts in the Second Amended Complaint. The Estate asserts a claim for a constructive trust in its favor for 100% of the Chiriqui shares, arguing that the Moorings held the Chiriqui shares in trust for Julio Lobo (count I). The children, as assignees of Maria Luisa, asserted a claim for a constructive trust in their favor for 50% of the Chiriqui shares, arguing that Maria Luisa was not aware when she redeemed her 50% interest in the Moorings that she was also redeeming her interest in the Chiriqui shares because Leonor and Jorge Gonzalez misrepresented that the assets of the Moorings did not include the Chiriqui shares (count II). Based on these allegations, the children also asserted a claim for breach of fiduciary duty and for negligent misrepresentation (counts IV and VIII). Alternatively, the children sought reformation of the documents dealing with Maria Luisa’s sale of her interests in the Moorings, arguing that the parties’ intent was not to include the Chiriqui shares in the transaction (count III). The children further sought a declaratory judgment that they are 50% owners of Chiriqui (count V). The Estate sought a declaratory judgment that it owns 100% of Chiriqui (count VI) and a permanent injunction preventing Leonor from selling the Chiriqui shares (count VIII).

On August 15, 2000, Leonor and Jorge Gonzalez filed the Second Motion for Final Summary Judgment, asserting that the claims were barred by the applicable statute of limitations. They asserted that the children’s claim for a constructive trust was predicated on fraud and barred by the four-year statute of limitations applicable to fraud and the 12-year statute of repose ; the claim for reformation was barred by the five-year statute of limitations ; and their other legal and equitable claims were barred by the four-year statute of limitations or laches contained in section 95.11, Florida Statutes (1997). They argued that the statute of limitations on the children’s claims began to run in 1980 when Maria Luisa sold her interest in the Moorings and the last of their claims expired by 1985. They further argued that equitable estoppel did not apply. With respect to the claims by the Estate, they argued the statute of limitations began to run by 1971 when it became clear to Julio Lobo that the Moorings would not give him the shares as reflected by letters he sent to his Miami attorneys. They further argued that equitable estoppel did not apply because to the extent that an agreement existed for the return of the Chiriqui shares to Julio Lobo, the agreement was part of a scheme by Julio Lobo to defraud his creditors and the IRS and unenforceable as against public policy.

The case proceeded to a hearing. Leonor and Jorge Gonzalez raised the same arguments as in their Second Motion for Summary Judgment. The children and the Estate responded that they were relying on the claim for a constructive trust, arguing that the statute of limitations did not begin to run until the claim accrued in 1996 when Leonor first asserted 100% ownership of the Chiriqui shares. In support of their argument, the children presented the financial statements and tax returns of the Moorings which failed to indicate ownership of the Chiriqui shares and the deposition testimony of Leonor where she acknowledges that she asserted 100% ownership of the Chiriqui shares for the first time in 1996. Alternatively, the children argued that the Moorings never really seized the Chiriqui shares, that the transactions relating to the Moorings acquisition of the shares was a sham and that the two sisters were holding the Chi-riqui shares for their father. The children and the Estate further argued that Leonor was equitably estopped from raising the statute of limitations as a defense.

In the Final Summary Judgment, the trial court found as follows: the Moorings assumed control of the Chiriqui shares in 1966 and held them for the benefit of Julio Lobo, Julio Lobo took no actions to enforce his rights, when Maria Luisa redeemed her interest in the Moorings in 1980, she was not aware that the Moorings had control of the Chiriqui shares and she was not compensated for her interest in the Chiriqui shares, and Leonor formally asserted 100% ownership of the Chiriqui shares in 1996. The trial court concluded that all claims were barred by the statute of limitations but did not specify which section applied. The trial court determined that equitable estoppel did not apply with respect to the children’s claims because Maria Luisa did not know that she had a cause of action until 1996, after the statute of limitations had expired. The trial court determined that equitable es-toppel did not apply to the Estate’s claims because Julio Lobo knew in 1968 that his demands for the Chiriqui shares were not being honored and he took no actions prior to his death to enforce or establish his rights.

After the trial court granted summary judgment in their favor, the Gonzalezes filed a Motion for Sanctions/Fees and Costs accruing from the date the offers were rejected, pursuant to section 768.79, Florida Statutes (1997). The children’s Motion to Bifurcate the issue of entitlement and the issue of a reasonable amount of attorney’s fees and costs was granted.

At the hearing on the motion, the children argued that the trial court should consider the factors in section 768.79(7)(b), including the merit of the claim, the number and nature of offers made by the parties, the closeness of questions of fact and law at issue and whether it was a test case when determining the issue of entitlement to fees. They also argued that the majority of discovery took place after the offers were made.

The Gonzalezes’ counsel asserted that the factors outlined in subsection (7)(b) were irrelevant to the issues of entitlement to fees and whether the offers were made in good faith. He asserted that all the necessary discovery had been completed when the offers were made. The trial court denied the motion, finding that the offer was not made in good faith.

SUMMARY JUDGMENT

The children argue that the trial court erred when it determined that their claims for imposition of a constructive trust, reformation for mutual mistake, declaratory judgment and permanent injunction were barred by the statute of limitations, because the claims did not accrue until 1996 when Leonor took the position that she owned 100% of the Chiriqui shares, two years before they filed suit on December 30, 1998. See § 95.081, Fla. Stat. (1997) (The statute of limitations “runs from the time the cause of action accrues.”).

In support of their argument, they assert that the last element constituting each claim did not occur until 1996 and that the delayed discovery doctrine prevented the causes of action from accruing until 1996. See § 95.031(1), Fla. Stat. (1997) (“A cause of action accrues when the last element constituting the cause of action occurs.”). Alternatively, the children argue that equitable estoppel bars Leonor and Jorge Gonzalez from raising the statute of limitations defense.

Leonor and Jorge Gonzalez argue that the claims accrued in 1980 when Maria Luisa redeemed her interest in the Moorings to Leonor, because that is when the last element constituting each claim occurred. They further assert that the delayed discovery doctrine is not applicable. We agree.

For the appellants to escape the statute of limitations defense on each of their claims other than equitable estoppel, they must rely on the doctrine of “delayed dis-coveryAs to each claim other than equitable estoppel, the statute of limitations began to run as to the Estate of Julio Lobo at the latest in May of 1974 when the record reflects that Julio Lobo had lost all hope that he would retain any interest in the Moorings or the Chiriqui shares. As for the children’s claims, the statute of limitations began to run at the latest in 1980 when Maria Luisa redeemed her fifty per cent interest in the Moorings.

“The ‘delayed discovery’ doctrine generally provides that a cause of action does not accrue until the plaintiff either knows or reasonably should know of the tortious act giving rise to the cause of action.” Hearndon v. Graham, 767 So.2d 1179, 1184 (Fla.2000). In Heamdon, the Florida Supreme Court determined that rather than toll the statute of limitations, the delayed discovery doctrine operates to delay the accrual of a cause of action. Id. The court held that the doctrine was applicable to childhood sexual abuse cases, given the nature of the alleged tortious conduct, its effect on victims and the general application of the doctrine to tort cases. Id. at 1186.

This Court relied upon Hearndon and extended the delayed discovery doctrine to causes of action for breach of fiduciary duty, civil theft, conspiracy, conversion, and unjust enrichment, arising from the alleged wrongful taking of plaintiffs assets after she had placed her financial affairs in defendants’ hands. Monahan v. Davis, 781 So.2d 436 (Fla. 4th DCA 2001), rev. granted, 799 So.2d 217 (Fla.2001). In reaching its holding, this Court explained:

The supreme court adopted the “blameless ignorance” doctrine of Urie v. Thompson, 337 U.S. 163, 170, 69 S.Ct. 1018, 93 L.Ed. 1282 (1949) into Florida law in City of Miami v. Brooks, 70 So.2d 306, 309 (Fla.1954). See Hearndon, 767 So.2d at 1184. In Creviston v. General Motors Corp., 225 So.2d 331, 334 (Fla.1969), the court explained that the holdings of Une and Brooks
appear to crystallize in favor of application of the blameless ignorance doctrine in those instances where the injured plaintiff was unaware or had no reason to know that an invasion of his legal rights has occurred. In reality, such a doctrine is merely a recognition of the fundamental principle that regardless of the underlying nature of a cause of action, the accrual of the same must coincide with the aggrieved party’s discovery or duty to discover the act constituting an invasion of his legal rights.

(Italics supplied).

Monahan, 781 So.2d at 438. But see Yusuf Mohamad Excavation, Inc. v. Ringhaver Equip., Co., 793 So.2d 1127 (Fla. 5th DCA 2001) (holding that the delayed discovery doctrine is not applicable to actions for tortious interference with business relationships, defamation or unfair and deceptive trade practices).

The appellants argue that this case is similar to Monahan in that Leonor prevented them from discovering that they had a cause of action until after the statute of limitations barred a suit.

The apparent conflict between Yusuf and Monahan has now been resolved by our supreme court in Davis v. Monahan, 832 So.2d 708 (Fla.2002), wherein our decision in Monahan v. Davis was quashed and in which the Court stated:

We quash the decision of the Fourth District because the delayed discovery doctrine does not apply to the claims alleged in this case. The Florida Legislature has stated that a cause of action accrues or begins to run when the last element of the cause of action occurs. An exception is made for claims of fraud and products liability in which the accrual of the causes of action is delayed until the plaintiff either knows or should know that the last element of the cause of action occurred. The Legislature has also imposed a delayed discovery rule in cases of professional malpractice, medical malpractice, and intentional torts based on abuse.

Section 95.11(4), Florida Statutes (Supp.2000), provides:

Actions other than for recovery of real property shall be commenced as follows:
(4) WITHIN TWO YEARS.—
(a) An action for professional malpractice, other than medical malpractice, whether founded on contract or tort: provided that the period of limitations shall run from the time the cause of action is discovered or should have been discovered with the exercise of due diligence. However, the limitation of actions herein for professional malpractice shall be limited to persons in privity with the professional.
(b) An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence ....
(7) FOR INTENTIONAL TORTS BASED ON ABUSE. — An action founded on alleged abuse, as defined in s. 39.01, s. 415.102, or s. 984.03, or incest, as defined in s. 826.04, may be commenced at any time within 7 years after the age of majority, or within 4 years after the injured person leaves the dependency of the abuser, or within 4 years from the time of discovery by the injured party of both the injury and the causal relationship between the injury and the abuse, whichever occurs later.
(Emphasis added.) Aside from the provisions above for the delayed accrual of a cause of action in cases of fraud, products liability, professional and medical malpractice, and intentional torts based on abuse, there is no other statutory basis for the delayed discovery rule.

Id. at 709-10 (footnote omitted).

The Court noted that the majority of the transactions complained of occurred from 1990 to 1992 but the initial complaint was not filed until 1997 and, therefore, was barred by the statute of limitations. Likewise in the instant case, the delayed discovery doctrine does not apply and, therefore, all the appellants’ claims are barred.

We now address the appellants’ assertion that the doctrine of equitable estoppel operates to bar a statute of limitations defense. “The doctrine of equitable estoppel has been recognized and applied in numerous contexts by the supreme court since the inception of statehood.” See Morsani v. Major League Baseball, 739 So.2d 610, 614 (Fla. 2nd DCA 1999), approved in part, 790 So.2d 1071 (Fla.2001) (citations omitted). “The doctrine has also been recognized as a valid defense to a limitations-period defense.” Id. (citations omitted). However, equitable estop-pel “presupposes that the plaintiff knows of the facts underlying the cause of action but delayed filing suit because of the defendant’s conduct.” See Bell v. Fowler, 99 F.3d 262, 266 n. 2 (8th Cir.1996) (citing Dring v. McDonnell Douglas Corp., 58 F.3d 1323, 1329 (8th Cir.1995)) (emphasis added). Stated another way, “[ejquitable estoppel arises where the parties recognize the basis for suit, but the wrongdoer prevails upon the other to forego enforcing his right until the statutory time has lapsed.” Cook v. Deltona Corp., 753 F.2d 1552, 1563 (11th Cir.1985) (quoting Aldrich v. McCulloch Props., Inc., 627 F.2d 1036, 1043 n. 7 (10th Cir.1980)) (emphasis added).

In Morsani, our supreme court distinguished the doctrine as follows:

Equitable estoppel differs from other legal theories that may operate to deflect the statute of limitations, such as accrual, tolling, equitable tolling, and waiver. Equitable estoppel presupposes a legal shortcoming in a party’s case that is directly attributable to the opposing party’s misconduct. The doctrine bars the wrongdoer from asserting that shortcoming and profiting from his or her own misconduct. Equitable estop-pel thus functions as a shield, not a sword, and operates against the wrongdoer, not the victim.

790 So.2d at 1076-77 (footnotes omitted). The Court went on to explain:

Equitable estoppel - is not concerned with the running and suspension of the limitations period, but rather comes into play only after the limitations period has run and addresses itself to the circumstances in which a party will be estopped from asserting the statute of limitations as a defense to an admittedly untimely action because his conduct has induced another into forbearing suit within the applicable limitations period. Its application is wholly independent of the limitations period itself and takes its life, not from the language of the statute, but from the equitable principle that no man will be permitted to profit from his own wrongdoing in a court of justice. Thus, because equitable estoppel operates directly on the defendant without abrogating the running of the limitations period as provided by statute, it might apply no matter how unequivocally the applicable limitations period is expressed.

Id. at 1079 (emphasis added).

In Morsani, the trial court granted a summary judgment in favor of Major League Baseball holding that section 95.051, Florida Statutes (1993), barred Morsani’s claim. The second district reversed, holding that the doctrine of equitable estoppel can operate to bar a statute of limitation defense. The second district certified to our supreme court as a question of great public importance whether section 95.051 prohibits the application of the doctrine of equitable estoppel to an action filed outside of the applicable statute of limitations. The court answered the question in the negative and approved the district court’s reversal of the summary judgment.

The appellants rely on Morsani and assert that it supports their position that the doctrine of equitable estoppel prevents the appellees from asserting the statute of limitation as a bar'to their claims. The appellants’ reliance on Morsani is misplaced. As pointed out above, equitable estoppel arises where the parties recognize the basis for a suit, but the wrongdoer prevails upon the other to forego enforcing his or her right until the statutory time has lapsed. In Morsani, Major League Baseball was alleged to have induced Morsani to forbear filing suit for tortious interference in Morsani’s attempts to acquire the Minnesota Twins baseball franchise by promising that Morsani would be an “absolute front runner” and “at the top of the list” to obtain a majority ownership interest in a baseball franchise in time to begin the 1993 baseball season.

In the instant case, the trial court correctly ruled that equitable estoppel does not support the children’s claims because Maria Luisa was not aware that she had a cause of action until 1996 (even though the last act for the accrual of the cause of action occurred in 1980) and she was, therefore, not induced to forego filing suit within the limitations period. Likewise, Julio Lobo knew in 1974, at the latest, that his claims and demands for the Chiriqui stock were not being honored and there is no evidence that he was induced to forbear enforcing his rights.

ATTORNEY’S FEES

Leonor and Jorge Gonzalez (Defendants ) argue that the trial court erred when it denied their motion for attorney’s fees pursuant to the offer of judgment statute, section 768.79, Florida Statutes (1997).

Section 768.79 provides in relevant part:

(1) In any civil action for damages filed in the courts of this state, if a defendant files an offer of judgment which is not accepted by the plaintiff within SO days, the defendant shall be entitled to recover reasonable costs and attorney’s fees incurred by her or him or on the defendant’s behalf pursuant to a policy of liability insurance or other contract from the date of filing of the offer if the judgment is one of no liability or the judgment obtained by the plaintiff is at least 25 percent less than such offer, and the court shall set off such costs and attorney’s fees against the award. Where such costs and attorney’s fees total more than the judgment, the court shall enter judgment for the defendant against the plaintiff for the amount of the costs and fees, less the amount of the plaintiffs award ...
(7)(a) If a party is entitled to costs and fees pursuant to the provisions of this section, the court may, in its discretion, determine that an offer was not made in good faith. In such case, the court may disallow an award of costs and attorney’s fees.
(b) When determining the reasonableness of an award of attorney’s fees pursuant to this section, the court shall consider, along with all other relevant criteria, the following additional factors:
1. The then apparent merit or lack of merit in the claim.
2. The number and nature of offers made by the parties.
3. The closeness of questions of fact and law at issue.
4. Whether the person making the offer had unreasonably refused to furnish information necessary to evaluate the reasonableness of such offer.
5. Whether the suit was in the nature of a test case presenting questions of far-reaching importance affecting non-parties ....

(Emphasis added).

“Under section 768.79, a party has the right to attorney’s fees when the following prerequisites have been fulfilled: (1) a party has served a demand or offer for judgment and (2) that party has recovered a judgment at least twenty-five percent more or less than the demand or offer.” Levine v. Harris, 791 So.2d 1175, 1177 (Fla. 4th DCA 2001) (citing Schmidt v. Fortner, 629 So.2d 1036, 1040 (Fla. 4th DCA 1993), approved by, TGI Friday’s, Inc. v. Dvorak, 663 So.2d 606, 613 (Fla.1995)). “Whether the offeree unreasonably rejected the offer of judgment has no bearing on whether a party is entitled to attorneys’ fees under the statute.” Id. “The sole basis on which a court can disallow an entitlement to an award of fees is if it determines that a qualifying offer was not made in good faith.” Id.

The issue is whether the trial court abused its discretion when it found that the $100 offers were not made in good faith. See Alexandre v. Meyer, 732 So.2d 44, 45 (Fla. 4th DCA 1999) (the standard of review on a finding that an offer is not made in good faith is whether the trial court abused its discretion). Defendants argue that the trial court abused its discretion when it refused to consider the limitations defense as a basis for the proposal. Defendants further argue that the trial court misapplied the law when it: analyzed the reasonableness of the offers from the standpoint of the Plaintiffs rather than Defendants, weighed the factors related to the amount of fees and denied sanctions on the grounds that the offer was “nominal.” Plaintiffs argue that the trial court correctly applied the law when it determined that the offers were not made in good faith.

“The burden is upon the offeree to prove that the offeror acted without good faith.” Levine, 791 So.2d at 1178 (citing Schmidt, 629 So.2d at 1041 n. 6). The children rely on this court’s decision in Eagleman v. Eagleman, 673 So.2d 946 (Fla. 4th DCA 1996), when arguing that the $100 offers were not made in good faith, because they were not reasonably related to the amount of damages or potential liability.

In Fox v. McCaw Cellular Communications of Florida, Inc., 745 So.2d 330 (Fla. 4th DCA 1998), this court explained:

Eagleman merely holds that nominal offers are suspect where they are not based on any assessment of liability and damages. When a nominal offer is not based on an evaluation of potential liability and damages, the offer raises a question as to the intentions of the offeror. In that circumstance, Eagleman holds that an issue of good faith arises for resolution by the trial court.

Id. at 323-33. This court emphasized that “nominal offers of judgment are not alone determinative of bad faith.” Id. at 333. This court went on to stress:

[T]he question of good faith in making an offer under section 768.79 involves an inquiry into the circumstances shown by the entire record of the case. Each case requires its own analysis, and must be considered on its own facts. Whether an offer was made in bad faith involves a matter of discretion reposed in the trial judge to be determined from the facts and circumstances surrounding the offer. That determination is not controlled by a legal imperative requiring a finding of bad faith merely because the offer was nominal. Some nominal offers will have been made in good faith; some not so. The trial judge will have to consider all the surrounding circumstances when the offer was made.

Id.

In explaining the “good faith” requirement, this court stated in Schmidt:

We do not understand the good faith requirement of section 768.79(7)(a), however, to demand that an offeror necessarily possess, at the time he makes an offer or demand under the statute, the kind or quantum of evidence needed to support a judgment. The obligation of good faith merely insists that the offeror have some reasonable foundation on which to base the offer.

Id. at 1039 (emphasis added). The common thread running through decisions where nominal offers were made in good faith is that “the offerors in all of them had a reasonable basis at the time of the offer to conclude that their exposure was nominal.” Fox, 745 So.2d at 333.

This court held in Levine:

A mere belief that the figure offered or demanded will not be accepted does not necessarily suggest an absence of good faith, where the offeror fully intends to conclude a settlement if the offer is accepted as made, and the amount of the offer is not so widely inconsistent with the known facts of the case as to suggest on its face the sole purpose of creating a right to fees if it is not accepted.

Levine, 791 So.2d at 1178 (citing Schmidt, 629 So.2d at 1040 n. 5). As the third district has recognized:

The creation of the right to attorney’s fees is the reason, or among the reasons, why any litigant makes an offer under section 768.79. It is the carrot held out by the statute to encourage early settlements. If we were to conclude that it is bad faith to utilize section 768.79 to obtain the right to attorney’s fees, then the legislative inducement, the reason section 768.79 exists, disappears into a judicial black hole.

Lieff v. Sandoval, 726 So.2d 335, 336 (Fla. 3d DCA 1999); see also Wagner v. Brandeberry, 761 So.2d 443, 446 (Fla. 2d DCA 2000) (whether an offer is made in good faith turns on whether the offeror had a reasonable foundation upon which to make his offer and whether it was made with the intent to settle the claim should the offer be accepted); Dep’t of Highway Safety & Motor Vehicles, Fla. Highway Patrol v. Weinstein, 747 So.2d 1019, 1020 (Fla. 3d DCA 1999).

Defendants argue that they made the offers in good faith, because at the time they believed the plaintiffs’ claims were barred by the statute of limitations defense. They indicate that this was a reasonable assessment of the case as the original Complaint was dismissed on the basis that the claims were barred by the statute of limitations and ultimately summary judgment was granted in their favor on that basis. Defendants assert that the children did not bring forth any evidence to indicate that it was unreasonable for them to believe that they would be successful on their defense.

The evidence the children relied upon when arguing that the offer was not made in good faith was a letter Defendants sent them offering to sell them the Chiriqui shares for $3.7 million. This evidence indicates that Defendants believed the shares had great value; however, it does not indicate potential liability where the Defendants believed that there would be no damages due to the limitations defense.

The children also argued that substantial discovery had not been completed when the offers were made in support of their argument that the offers were not made in good faith. The depositions of John Groh, Enrique León, and the children had not been taken. However, as Defendants assert these witnesses’ testimony was irrelevant to the statute of limitations defense. At the time the offers were made, Defendants had the letters sent by Julio Lobo to his Miami attorneys and the video deposition of Maria Luisa.

Thus, there was evidence that Defendants had a reasonable foundation upon which to believe they had a viable limitations defense and made a $100 offer to each of the children on that basis. The children did not present substantial competent evidence to the contrary and there was no evidence that Defendants would not have in fact settled for the offered amount. Based on this evidence, the trial court abused its discretion when it found that the offers were not made in good faith, “as the offer did not bear a reasonable relationship to the amount of damages and a realistic assessment of liability.” Further, the trial judge’s statements at the conclusion of the hearing and in the Order on the motion indicate that the trial court improperly made its decisions based on an evaluation of the factors set out in subsection (7)(b), as urged by the children at the hearing. See Schmidt, 629 So.2d at 1041-42. Accordingly, the Order on Defendants’ Motion for Attorney’s Fees is reversed and the case remanded for the trial court to determine reasonable attorney’s fees.

Affirmed in part and reversed in part.

SHAHOOD, J., concurs.

GROSS, J., concurs specially with opinion.

GROSS, J.,

concurring specially.

I write separately to explain why we believe that the recent case, Florida Department of Health & Rehabilitative Services v. S.A.P., 835 So.2d 1091 (Fla.2002) does not apply in this case.

The majority cites to a number of cases that stand for the proposition that equitable estoppel applies in situations where the plaintiff is aware of the facts giving rise to a cause of action, but delays filing the suit because of a defendant’s conduct. To paraphrase Justice Potter Stewart’s observation about hard core pornography, until S.AP., we were confident that we knew equitable estoppel when we saw it.

However, one reading of S.AP. suggests a much broader application of the doctrine of equitable estoppel to give life to causes of action which would otherwise be swatted away by the statute of limitations.

S.AP. involved a suit against the Department of Health and Rehabilitative Services (“HRS”) for its negligence in supervising a child who had been placed in foster care. The acts giving rise to the cause of action occurred in 1979, when the plaintiff was a young child. The plaintiff was not aware of the cause of action before the statute of limitations expired. Not until 1992 did HRS release its internal investigation report documenting the abuse suffered by the plaintiff. HRS had falsified its records, so that prior to its 1992 report any “interested adult” who examined them “would have been misled into believing that [HRS] had reasonably, appropriately, and lawfully discharged its supervision duties” over the plaintiff. Id. at 1099. A counselor documented that the plaintiff had no memory of the abuse as late as 1993. The plaintiff reached the age of majority on August 8, 1994. The lawsuit was filed in January, 1995.

S.A.P. discussed the principles behind equitable estoppel:

Equitable estoppel differs from other legal theories that may operate upon the statutes of limitation in that equitable estoppel presupposes an act of wrongdoing — such as fraud and concealment— that prejudices a party’s case:
Equitable estoppel presupposes a legal shortcoming in a party’s case that is directly attributable to the opposing party’s misconduct. The doctrine bars the wrongdoer from asserting that shortcoming and profiting from his or her own misconduct. Equitable estoppel thus functions as a shield, not a sword, and operates against the wrongdoer, not the victim. This Court has applied the doctrine for more than a century and a half.

Id. at 1097 (quoting Major League Baseball v. Morsani, 790 So.2d 1071, 1077 (Fla.2001)).

The supreme court then notes that it is “well settled in Florida” that a statute of limitations “can be deflected by the doctrine of equitable estoppel.” Id. Footnotes ten and eleven cite to a number of Florida cases supporting this proposition. All of these eases involve fact situations where the plaintiff was aware of a cause of action before the defendant’s conduct which misled the plaintiff into filing suit after the statute of limitations had expired.

The two supreme court cases cited in footnote ten of S.A.P. are Barnett Bank of Palm Beach County v. Estate of Read, 493 So.2d 447 (Fla.1986) and Rabinowitz v. Town of Bay Harbor Islands, 178 So.2d 9 (Fla.1965). In Barnett Bank, the supreme court indicated that estoppel could be a defense that would excuse a claim that was untimely under the statute of limitations contained at section 733.702(l)(a), Florida Statutes (1983). Barnett Bank involved the personal representative of an estate who, in a letter to the bank, said that the “estate would recognize” amounts due under promissory notes executed by the decedent “without the necessity of the bank filing a formal claim.” 493 So.2d at 448. Rabinowitz arose from an automobile accident with a bridge owned by a city. The supreme court held that by its conduct a city could be estopped to assert a statutory notice requirement. 178 So.2d at 12. Both Barnett Bank and Rabinowitz are thus cases where plaintiffs were aware of their causes of action prior to the occurrence of the defendant’s conduct giving rise to an estoppel.

Similarly, the district court of appeal cases cited in footnote eleven of S.AP. involve situations where the plaintiff knew of the facts underlying the cause of action, or where both parties recognized the basis for the suit, prior to the expiration of the applicable statute of limitations.

The question is whether the supreme court in S.A.P. has expanded the doctrine of equitable estoppel to apply to all situations where a defendant’s conduct prevents a plaintiff from even being aware of a cause of action. Such an extension would push equitable estoppel beyond its application in any other Florida case. We therefore conclude that S.A.P. is not an extension of the law, but a case that is limited to the unique cause of action there at issue.

First, the supreme court has carved out exceptions in the law to accommodate the very special and tragic situation of abuse inflicted upon children. Thus, in Heuring v. State, 513 So.2d 122 (Fla.1987), the court held that in a case involving sexual battery within a familial context, evidence of other sexual batteries on another family member was admissible to corroborate the testimony of the child victim that the defendant had committed the sexual abuse upon the victim. Id. at 124-25. As recognized by the first district in Barton v. State, 704 So.2d 569 (Fla. 1st DCA 1997), Heuring created a “special rule” that “allows evidence of a collateral offense in limited circumstances....” Barton, 704 So.2d at 574.

In Hearndon v. Graham, 767 So.2d 1179 (Fla.2000), the supreme court held that the delayed discovery doctrine postponed the accrual of the plaintiffs cause of action against her stepfather for injuries resulting from childhood sexual abuse, where the plaintiff suffered from traumatic amnesia caused by the abuse. Id. at 1185-86. The supreme court recently explained the narrow scope of Hearndon in Davis v. Monahan, 832 So.2d 708 (Fla.2002):

While we applied the delayed discovery doctrine to causes of action arising out of childhood sexual abuse and repressed memory in Hearndon, we did so only after considering the unique and sinister nature of childhood sexual abuse, as well as the fact that the doctrine is applicable to similar cases where the tortious acts cause the delay in discovery.

Id. at 712.

S.A.P. is cut from the same cloth as Hearndon and Heuring. It is not an extension of the law of equitable estoppel, but an application of the law to a special set of circumstances.

Also, to extend equitable estoppel to cases where a plaintiff is unaware of a cause of action is inconsistent with the recent decision in Davis. There, the supreme court held that the delayed discovery doctrine did not apply to the causes of action for breach of fiduciary duty, conversion, civil conspiracy, and unjust enrichment brought by a women suffering from senile dementia. The court ruled that the delayed discovery doctrine is a creature of statute:

Aside from the provisions ... for the delayed accrual of a cause of action in cases of fraud, products liability, professional and medical malpractice, and intentional torts based on abuse, there is no other statutory basis for the delayed discovery rule.

Id. at 710. It does not appear that equitable estoppel was raised by the plaintiff in Davis. Under the pre-<S.AP. approach to equitable estoppel, the defense would not have applied because the defendants’ conduct prevented the plaintiff from discovering their wrongdoing. Davis was not a case where the plaintiff recognized a basis for a lawsuit but was persuaded to forego enforcing her right until after the statute of limitations expired. The policy underlying equitable estoppel would certainly justify its application to the fiduciary relationship allegedly abused in Davis. However, S.A.P. should not be read to let in through the back door the causes of action that would not benefit from the delayed discovery doctrine under Davis. It is unlikely that the supreme court narrowed the delayed discovery doctrine in Davis on November 7, 2002, only to have it subsumed by equitable estoppel on November 27, 2002 in S.A.P.

      . § 95.11(3)(j), Fla. Stat. (1997).

      . § 95.031(2), Fla. Stat. (1997).

      .§ 95.1 l(2)(b), Fla. Stat. (1997).

      . "No disability or other reason shall toll the running of any statute of limitation except those specified in this section....” § 95.051(2), Fla. Stat. (1991).

      . We do not believe that the recent case Florida Department of Health and Rehabilitative Services v. S.A.P., 835 So.2d 1091 (Fla.2002) has drastically changed the law of equitable estoppel. We agree with the analysis of S.A.P. in Judge Gross’s concurring opinion.

      . We use Defendants and Plaintiffs in this section of the opinion to avoid confusion with Appellants and Appellees in case No. 4D00-4658.

      . The issue as to attorney's fees pursuant to section 768.79 does not apply to the Estate of Julio Lobo because no offer was made to it.

      . In Jacobellis v. Ohio, 378 U.S. 184, 197, 84 S.Ct. 1676, 12 L.Ed.2d 793 (1964), Justice Stewart wrote in a concurring opinion:
      I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [hard core pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.

      . See, e.g., Jaszay v. H.B. Corp., 598 So.2d 112 (Fla. 4th DCA 1992) (holding nursing home estopped from raising statute of limitations defense when it stipulated to sixty-day extension of presuit screening period); Glantzis v. State Auto. Mut. Ins. Co., 573 So.2d 1049 (Fla. 4th DCA 1991) (determining insurer equitably estopped from raising statute of limitations defense, when it agreed to appellant's demand to arbitrate, and had helped to pick arbitrators before five-year period for claim proceeding to arbitration ended); Baptist Hosp. of Miami, Inc. v. Carter, 658 So.2d 560 (Fla. 3d DCA 1995), abrogated by May v. Ill. Nat’l Ins. Co., 771 So.2d 1143 (Fla.2000) (holding estate of decedent estopped where widow affirmatively told hospital that estate had no assets and would not be probated, where decadent’s estate in fact did have assets to pay unpaid medical bills); Alachua County v. Cheshire, 603 So.2d 1334 (Fla. 1st DCA 1992) (finding mortgagee reasonably relied on representations of federal officials that his lien was valid and that would be paid by recipient of property; thus county which purchased land from federal government was es-topped from raising statute of limitations defense to bar mortgagee’s suit); Salcedo v. Asociacion Cubana, Inc., 368 So.2d 1337 (Fla. 3d DCA 1979) (finding where defendant secured dismissal of timely filed action by contending that the case had to be submitted to medical mediation as a medical malpractice action, the defendant was equitably estopped from thereafter reversing course and arguing that in fact there was no need for medical mediation); J.A. Cantor Assocs. v. Brenner, 363 So.2d 204 (Fla. 3d DCA 1978) (holding defendant equitably estopped where it made fraudulent misrepresentations to plaintiff that he would receive share of commissions). In one case cited in footnote eleven, City of Brooksville v. Hernando County, 424 So.2d 846 (Fla. 5th DCA 1982), the court while noting that continuing negotiations regarding a settlement, if infected with an element of deception, may create equitable estoppel, held that "[s]ince estoppel is an avoidance which was not pleaded ... the issue of the [appellant's] estoppel to assert the applicable statute of limitations was not an issue properly before the trial court based on the pleadings at the time.” Id. at 848.

      . Section 95.031(2)(a)-(b); section 95.11(4), (7), Florida Statutes (2000).

      . Justice Lewis has identified the policy behind equitable estoppel:
      Most assuredly, equitable estoppel is an age-old doctrine which has been the law in Florida since 1829, and has been applied by this Court for more than a century. It is triggered when one party "lulls another party into a disadvantageous legal position,” particularly when standing in a fiduciary capacity to the complaining party. Based upon the principle that one standing in a fiduciary position must disclose all relevant information to the party depending upon him or her, equitable estoppel simply nullifies the effectiveness of an otherwise valid defense because equity deems that result repugnant to justice. Thus, where a party in such position owes another a duty, fails to fulfill that duty, and also does not disclose the breach to his or her charge, the fiduciary is estopped from asserting that the injured party’s action is barred by a statute of limitations. While equitable concepts may have some limitations when arms-length transactions with total strangers are involved, such principles are more expansive when special relationships are presented.

        S.A.P., 835 So.2d at 1102 (Lewis, J., concurring specially) (citations omitted).