text:
    TORR, INC. d/b/a James Hotel and Gonzalo Torre, Appellants, v. Humberto CHONG and Nila Gonzalez, Appellees.
    No. 3D02-1101.
    District Court of Appeal of Florida, Third District.
    Oct. 22, 2003.
    Appeal Dismissed Jan. 27, 2004.
    Charles L. Neustein, P.A., and Charles L. Neustein, Miami Beach, for appellants.
    J.H. Zidell, P.A., and J.H. Zidell, for appellee.
    Before COPE, GERSTEN, and FLETCHER, JJ.
   PER CURIAM.

Torr, Inc., and Gonzalo Torre appeal an order awarding attorney’s fees as a sanction. We affirm.

Humberto Chong and Nila Gonzalez filed a complaint alleging violations of the Fair Labor Standards Act of 1938. During the course of litigation, plaintiff-appel-lee Chong settled his individual claim without the involvement of his counsel. Several days thereafter, Chong through counsel requested that the settlement be set aside and Chong’s claim be reinstated. The trial court granted the motion. See Lynn’s Food Stores, Inc. v. United States, 679 F.2d 1350 (11th Cir.1982).

In 2001, plaintiff Chong and co-plaintiff Nila Gonzalez filed an amended complaint. Defendants-appellants Torr and Torre asserted numerous defenses to the complaint, including a defense against plaintiff Chong that his claim was barred by the earlier settlement.

In 2002, plaintiffs filed a motion for sanctions, claiming that defendant Torre had perjured himself. Plaintiffs asserted that in a deposition, defendant Torre testified untruthfully about the terms of the (rescinded) Chong settlement. According to the motion, Torre eventually admitted that his earlier testimony had been untruthful.

The trial court found that defendant Torre had lied at his deposition and awarded attorney’s fees in the amount of $13,500.00 as a sanction. It is from this award that defendants appeal.

Defendants claim that Chong is barred from receiving the attorney’s fee award because of the earlier (rescinded) settlement. The defendants argue in substance that they have a complete defense to Chong’s claim because of the earlier settlement and that the trial court was legally incorrect in rescinding it.

After the trial court rescinded Chong’s settlement, the case was actively litigated. While the defendants had pled accord and satisfaction and other affirmative defenses to Chong’s claims, the defendants nonetheless had an obligation to testify truthfully at deposition and to respond accurately to the plaintiffs’ discovery request. The trial court found that defendant Torr had testified untruthfully and that plaintiffs’ counsel should be compensated for the extra litigation time required to unearth the actual facts of the case. See Syken v. Elkins, 644 So.2d 539, 547 (Fla. 3d DCA 1994), approved, Elkins v. Syken, 672 So.2d 517 (Fla.1996). The fact that the defendants believe they may have a complete defense to Chong’s claim does not relieve them of the responsibility to testify truthfully and follow the discovery rules.

We see no merit in appellants’ remaining claims.

Affirmed.

      . 29 U.S.C. §§ 201-219.

      . During the pendency of this appeal, the case went to final judgment which has been affirmed here without opinion. See Torr, Inc. v. Chong, 852 So.2d 246 (Fla. 3d DCA 2003).


source: Caselaw Access Project

author: VILLANTI, Judge. CANADY, Judge,

license: Public Domain

text:
    Joseph LEMIEUX and his wife, Elaine Lemieux, Petitioners, v. TANDEM HEALTH CARE OF FLORIDA, INC. d/b/a Arbors At Winter Haven and Winter Haven Care, LLC d/b/a Arbors At Winter Haven, Respondents.
    No. 2D03-1317.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 2003.
    Rehearing Denied Jan. 13, 2004.

      Neal L. O’Toole and Joseph R. Kruk, III, of Law Offices of Neal L. O’Toole, P.A., Bartow, for Petitioners.
    Caroline H. Cranton of Alvarez, Sambol, Winthrop & Madson, P.A., Orlando, for Respondents.
   VILLANTI, Judge.

Joseph and Elaine Lemieux seek certio-rari review of the trial court’s order granting a motion filed by Tandem Health Care of Florida, Inc. d/b/a Arbors at Winter Haven and Winter Haven Care, LLC d/b/a Arbors at Winter Haven (collectively “Arbors”), which sought permission to conduct ex parte discussions with Mr. Lemieux’s treating physicians. Because the trial court’s order departs from the essential requirements of the law, we grant the petition, issue the writ, and quash the trial court’s order.

On January 1, 2000, Mr. Lemieux was involved in a serious automobile accident that resulted in his hospitalization at Lake-land Regional Medical Center. While a patient there, Mr. Lemieux was treated by orthopedic surgeon Dr. Mark Greenberg. Approximately three weeks later, Dr. Greenberg discharged Mr. Lemieux to Arbors, which is an in-patient rehabilitation facility. While Mr. Lemieux was a patient at Arbors, his treating physician was Dr. Mari Fielding. In late April 2000, Mr. Lemieux began to treat with another orthopedic surgeon, Dr. Stephen Goll. Ultimately, Dr. Goll discharged Mr. Lemieux from Arbors, and Mr. Lemieux thereafter received further treatment at a different facility. While- Dr. Fielding had privileges at Arbors, neither Dr. Greenberg, Dr. Fielding, nor Dr. Goll were employees or agents of Arbors.

In September 2001, Mr. and Mrs. Lem-ieux sued Arbors for various violations of chapter 400, Florida Statutes, and for negligent hiring and retention of staff. Germane to our analysis, the complaint did not state any cause of action for medical malpractice. After some discovery had occurred, Arbors filed a motion seeking court approval to conduct ex parte discussions with Dr. Greenberg, Dr. Fielding, and Dr. Goll (collectively “the treating physicians”). The motion asserted that the treating physicians had “pertinent information regarding Joseph Lemieux’s preexisting medical conditions and medical conditions that arose prior to, during, and subsequent to Joseph Lemieux’s residency at Arbors of Winter Haven.” The motion contended that Arbors’ intended discussions with the treating physicians fell within an exception to the physician-patient privilege of section 456.057(6), Florida Statutes (2002), because both the treating physicians and Arbors were “healthcare practitioners and providers involved in the care or treatment” of Mr. Lemieux. In the alternative, Arbors contended that ex parte discussions would be the “most cost effective” discovery method available and that Florida courts favored the “free flow of information.” Despite Mr. Lemieux’s vigorous opposition to these ex parte discussions, the trial court granted Arbors’ motion. Mr. Lemieux then filed this petition for certiorari, and the trial court stayed all discovery pending resolution of this appeal.

We begin by noting that certiorari is the appropriate vehicle for reviewing this order. “[Rjeview by certiorari is appropriate when a discovery order departs from the essential requirements of law, causing material injury to a petitioner throughout the remainder of the proceedings below and effectively leaving no adequate remedy on appeal.” Allstate Ins. Co. v. Langston, 655 So.2d 91, 94 (Fla. 1995). As a general rule, this court has certiorari jurisdiction to review orders allowing discovery of privileged information because once privileged information is wrongfully disclosed, there is no adequate remedy on direct appeal. Martin-Johnson, Inc. v. Savage, 509 So.2d 1097, 1099 (Fla.1987). In the context of the statutory physician-patient privilege, certiorari review is appropriate because “[djisclosure of information by ex parte communication violating matters statutorily privileged ... would cause ‘cat out of the bag’ harm.” Melody v. State, Dep’t of Health & Rehabilitative Servs., 706 So.2d 115, 117 (Fla. 4th DCA 1998) (citing Martin-Johnson, 509 So.2d at 1099); see also Royal v. Harnage, 826 So.2d 332 (Fla. 2d DCA 2002) (reviewing by certiorari a discovery order that purportedly violated the statutory physician-patient privilege). Thus, we have certiorari jurisdiction to review the order at issue.

Turning to the merits, we agree with Mr. Lemieux that the trial court’s order departed from the essential requirements of the law. Prior to 1988, a limited statutory privilege existed for certain medical records, see § 455.241(2), Fla. Stat. (1987), but there was no general statutory physician-patient privilege. Acosta v. Richter, 671 So.2d 149, 150 (Fla.1996). In 1988, the legislature amended section 455.241(2), which was subsequently renumbered as section 456.057, to create a broad and express privilege of confidentiality as to the medical records and medical condition of a patient. Acosta, 671 So.2d at 154. “[TJhe primary purpose of the 1988 amendment was to create a physician-patient privilege where none existed before, and to provide an explicit but limited scheme for the disclosure of personal medical information.” Id.

As currently written, section 456.057(6) provides in pertinent part:

Except in a medical negligence action or administrative proceeding when a health care practitioner or provider is or reasonably expects to be named as a defendant, information disclosed to a health care practitioner by a patient in the course of the care and treatment of such patient is confidential and may be disclosed only to other health care practitioners and providers involved in the care or treatment of the patient, or if permitted by written authorization from the patient or compelled by subpoena at a deposition, evidentiary hearing, or trial for which proper notice has been given.

Under the plain language of this statute, patient information is privileged and may not be disclosed unless the disclosure falls within one of the statutory exceptions. Acosta, 671 So.2d at 155. These exceptions allow for disclosure (1) to other health care providers involved in the care and treatment of the patient; (2) if permitted by written authorization from the patient; (3) if compelled by subpoena; and (4) to attorneys, experts, and other individuals necessary to defend the physician in a medical negligence action in which the physician is or expects to be a defendant. Id. at 155-56. No other disclosures are statutorily permitted, and an order allowing for disclosure in any other context departs from the essential requirements of the law.

In this case, Arbors contends that exception one, which allows health care providers to share information regarding the care and treatment of a patient among themselves, allows for these disclosures to continue ad infinitum, regardless of whether the health care providers are currently treating the patient. Its argument is that if the health care providers could have shared the information before suit was filed, then they should be able to share the information after suit is filed. While this argument has some superficial logic, it violates the language of the statute and controlling case law.

Exception one was intended to allow only health care providers currently involved in the care and treatment of the patient to share information about the patient’s medical condition. If this exception did not exist, doctors would not be able to share information relayed to them by the patient with the nurses handling the patient’s day-to-day care, nurses would not be able to share information they gathered with the patient’s treating physician, and no one would be permitted to read lab reports. By allowing the exchange of information between health care providers “involved in the care or treatment of the patient,” the statute recognizes that health care providers must be allowed to share information in order to comprehensively treat the patient. See Royal, 826 So.2d at 336 (noting that for practical reasons, doctors involved in the care of a patient must be free to share information about the patient). However, once the health care providers are no longer “involved in the care or treatment of the patient,” they may not continue to discuss a patient’s confidential medical information for their own, or anyone else’s, purposes. Once the underlying reason for the exception ends, so too must the disclosures permitted by that exception.

Moreover, even if continued disclosure between health care providers was permitted, nothing in exception one allows for the disclosure of confidential medical information by one health care provider to the attorney of a different health care provider. As the supreme court noted:

Patently, the purpose of the statute is to preserve a patient’s right to confidentiality with respect to information disclosed to a health care provider in the course of the care and treatment of a patient and to limit the conditions under which such information may be disclosed to others. This includes closing the door to the previous practice of many defense attorneys of meeting privately or otherwise communicating ex parte with the plaintiff’s treating physicians.

Acosta, 671 So.2d at 152 (quoting West v. Branham, 576 So.2d 381, 383 (Fla. 4th DCA 1991)) (emphasis added); see also Kirkland v. Middleton, 639 So.2d 1002, 1004 (Fla. 5th DCA 1994) (prohibiting ex parte discussions between the plaintiffs treating physicians and defense counsel and noting that if such discussions were allowed, “medical malpractice plaintiffs could not object and act to protect against inadvertent disclosure of privileged information, nor could they effectively prove that improper disclosure actually took place”); Phillips v. Ficarra, 618 So.2d 312, 314 (Fla. 4th DCA 1993) (noting that defense counsel’s ex parte discussions with the plaintiffs treating physician would violate the statute, “which prohibits communications between a doctor and a third party regarding the medical condition of the doctor’s patient unless compelled by a subpoena for deposition, evidentiary hearing, or at trial”); Franklin v. Nationwide Mut. Fire Ins. Co., 566 So.2d 529, 532 (Fla. 1st DCA 1990) (noting that the statutory language requiring notice to the plaintiff before disclosures were made was clearly intended to preclude unilateral, ex parte discussions between the plaintiffs treating physicians and defense counsel). Because this wealth of controlling case law clearly holds that ex parte discussions between a defense attorney and the plaintiffs treating physicians are barred by section 456.057(6), any order allowing such discussions, including the order in this case, departs from the essential requirements of the law.

In an effort to avoid the clear language of these cases, Arbors argues that the trial court did not depart from the essential requirements of the law because it simply followed this court’s decision in Royal v. Harnage, 826 So.2d 332 (Fla. 2d DCA 2002). This argument both misreads Royal and misapplies it to the facts of this case.

In Royal, this court held that in the context of a medical malpractice case, a defendant may have ex parte discussions concerning the plaintiffs confidential medical information with that defendant’s current and former employees. Id. at 336. Two other courts have similarly allowed for ex parte discussions between a medical malpractice defendant and its agents, employees, and former employees. See Melody, 706 So.2d at 118 (recognizing that the statutory physician-patient privilege would not prevent discussions between a defendant and its agents or employees); Pub. Health Trust of Dade County v. Franklin, 693 So.2d 1043, 1046 (Fla. 3d DCA 1997) (same). The rationale behind these rulings is that the agent, employee, or former employee would have necessarily obtained the privileged information while in the defendant’s employ and therefore that information is legally imputed to the defendant. Pub. Health Trust, 693 So.2d at 1045. Contrary to Arbors’ arguments, the Royal case does not stand for the proposition that the statutory privilege is forever waived between health care providers who could have at some prior point in time discussed a patient’s care with each other. Rather, Royal stands for only the limited proposition that a medical malpractice defendant may not be barred from having ex parte discussions with its current and former employees about information they obtained about a patient during and as a result of that employee’s employment. Arbors’ expansive interpretation misreads the holding of the Royal case.

Further, in this case, unlike in Royal, Arbors does not seek to have ex parte discussions with its agents, employees, or former employees. Rather, it seeks to have ex parte discussions with two physicians who have no relation to the facility at all and one physician who simply has privileges there. This factual distinction, standing alone, renders the Royal holding inapplicable to this case. No case has ever held that the statutory privilege is inapplicable on similar facts, nor would such a holding comport with the provisions of the statute. In the face of case law specifically prohibiting such ex parte discussions and with no case law or statute providing an applicable exception to the privilege, the trial court’s order allowing the requested ex parte discussions departed from the essential requirements of the law.

Finally, as Arbors admits, the trial court’s ruling does not bar it from obtaining the information it seeks from Mr. Lemieux’s treating physicians. Under section 456.057(6), the treating physicians may be compelled to disclose Mr. Lem-ieux’s confidential medical information pursuant to a subpoena for deposition. Thus, Arbors may obtain the information it seeks by simply deposing the treating physicians. Its desire to obtain the information in the “most cost effective” manner cannot override the rights of the protected party, the language of section 456.057(6), or controlling precedent on this issue.

Because the trial court’s order in this case departs from the essential requirements of the law by allowing ex parte disclosures of statutorily privileged medical information contrary to both the language of the statute and controlling case law, we grant the petition for writ of cer-tiorari, issue the writ, and quash the trial court’s order.

Petition granted.

CASANUEVA, J., concurs.

CANADY, J., dissents with opinion.

CANADY, Judge,

dissenting.

Because I have concluded that there is no clearly established law which precludes ex parte discussions between the providers who were jointly responsible for the treatment of Mr. Lemieux, I dissent.

The majority correctly states that we should grant the petition for certiorari only if there has been a departure from the essential requirements of law. In order for an appellate court to conclude that a trial court’s order departs from the essential requirements of law, the reviewing court must determine that the order violates a clearly established principle of law. State v. Pettis, 520 So.2d 250, 254 (Fla. 1988) (“While some pretrial evidentiary rulings may qualify for certiorari, it must be remembered that the extraordinary writ is reserved for those situations where ‘there has been a violation of a clearly established principle of law resulting in a miscarriage of justice.’ ”) (citing Combs v. State, 436 So.2d 93, 96 (Fla.1983)); Malloy v. Gunster, Yoakley, Valdes-Fauli & Stewart, P.A., 850 So.2d 578 (Fla. 2d DCA 2003); Allstate Ins. Co. v. Hodges, 855 So.2d 636 (Fla. 2d DCA 2003).

None of the cases on which the majority relies dealt with the communication of information related to the prior treatment of a patient by one provider who was responsible for that prior treatment to another provider who was also responsible for the care of the patient during the same time period. What the majority refers to as a “wealth of controlling case law” simply does not address the distinct issue that the trial court was called on to address. None of the cases cited by the majority hold that a disclosure by one provider to another is authorized only if it is made in the course of the treatment provided to the patient. There is thus nothing in the case law articulating a clearly established principle of law which is inconsistent with the trial court’s ruling.

Nor does the text of the statute clearly establish that the trial court’s ruling is subject to correction by way of certiorari. The provision of section 456.057(6) authorizing the disclosure of confidential information “to other health care practitioners and providers involved in the care or treatment of the patient” may reasonably be interpreted in the way it was interpreted by the trial court. The statute does not expressly limit the authorized disclosures to those disclosures that are made during the course of the patient’s treatment. On the face of the statute, it is not unreasonable to understand the authorized disclosures as encompassing information communicated from one provider to another provider after their joint care and treatment of the patient has ceased. While I might agree with the majority that such an interpretation of the statute is on balance not the most reasonable interpretation, that does not mean that it constitutes a violation of a clearly established principle of law.

I also note that the statutory provision authorizing disclosure by one provider to another can only reasonably be understood as extending to communications made through the employees and agents (including attorneys) of the providers. Interpreting the statute to prohibit such disclosure through employees and agents would impose an entirely unworkable limitation on the exchange of information which the statute clearly contemplates and authorizes.

I acknowledge that in Allstate Insurance Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003), the supreme court stated that “ ‘clearly established law1 can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law.” But surely this does not mean that there is a clearly established principle of law whenever the trial court has made a ruling based on its interpretation of a statute, rule, or constitutional provision and the reviewing court disagrees with that interpretation. If certiorari were appropriate in all such cases, the requirement for the violation of a clearly established principle of law would be rendered virtually meaningless. It is more reasonable to understand Kaklamanos as referring to circumstances where the statute, rule, or constitutional provision is so perspicuous that it is only subject to one reasonable interpretation. Such circumstances are not present here.

Accordingly, I conclude that the petitioners have failed to establish that the trial court departed from the essential requirements of law. I therefore dissent from the majority’s decision to grant the petition for writ of certiorari.

      . We note that the newly enacted privacy provisions of the Health Insurance Portability and Accountability Act of 1996 ("HIPAA”), were not enforceable until April 14, 2003, almost two months after the trial court’s order in this case. Moreover, the HIPAA provisions preempt only those state privacy or privilege provisions that are less stringent than the HIPAA ones. See 45 C.F.R. § 160.203 (2003). It appears that the HIPAA procedural requirements for disclosure are more stringent than those in Florida. Compare § 456.057(6), Fla. Stat. (2002) (allowing disclosure of protected health care information to those entities falling within the statutory exceptions with no notice or opportunity to object), with 45 C.F.R. § 164.512(e)(l)(iii) (2003) (allowing for disclosure of protected health information for litigation purposes only if the disclosing entity has provided written notice of its intent to disclose with sufficient time for the individual to object to the disclosure). However, the substantive provisions of section 456.057(6) are more stringent than those of HIPAA. Compare § 456.057(6) (prohibiting disclosure of protected health care information except to entities falling within the four statutory exceptions) with 45 C.F.R. § 164.512(e)(l)(i) (allowing disclosure of protected health care information to any third party as long as "satisfactory assurances” are provided). Because Florida’s substantive law on this issue is more stringent than HIPAA, Florida law controls and the HIPAA provisions would not alter the outcome.

      . In the context of a medical malpractice action, section 456.057(6) clearly allows a defendant to share the patient's confidential information in its possession with that defendant’s own attorney in order to prepare a defense. Acosta, 671 So.2d at 156. In this case, however, Arbors seeks to have Mr. Lemieux's nondefendant treating physicians disclose confidential information in their possession to Arbors' attorney.


author: PER CURIAM.

text:
    J.M.P.U., Appellant, v. DEPT. OF CHILDREN AND FAMILY SERVICES, Appellee.
    No. 3D03-258.
    District Court of Appeal of Florida, Third District.
    Oct. 29, 2003.
    Rehearing Denied Jan. 9, 2004.

      Douthit & Murray, and Marc Douthit, Miami, for appellant.
    Calianne P. Lantz, for appellee.
    Before GERSTEN, RAMIREZ, and SHEPHERD, JJ.
   PER CURIAM.

The respondent J.M.P.U. seeks reversal of the trial court’s adjudication of dependency based on the trial court’s denial of his third motion for recusal. We find no error in the trial court’s decision that the motion for recusal was legally insufficient, as well as untimely. The record reflects that the motion did not allege facts which demonstrated a well-founded belief that the respondent was unable to receive a fair trial from the trial court judge. See Thompson v. State, 759 So.2d 650, 659 (Fla.2000) (“the fact that a judge has ruled adverse to the party in the past does not constitute a legally sufficient ground for a motion to disqualify”). The record also reflects that the motion was clearly untimely. See Fischer v. Knuck, 497 So.2d 240, 243 (Fla.1986).

Affirmed.


author: POLEN, J.

text:
    VISIBLE DIFFERENCE, INC., Appellant, v. The VELVET SWING, L.L.C., a Florida limited liability company, and Thomas G. Bongard, Appellees.
    No. 4D02-2230.
    District Court of Appeal of Florida, Fourth District.
    Oct. 29, 2003.

      Philip J. Gouze of Philip J. Gouze, P.A., Fort Lauderdale, for appellant.
    Jeffrey L. Kravetz, P.A., Coral Gables, John W. Little, III, P.A., and Shannon L. Bothwell of Steel Hector & Davis LLP, West Palm Beach, for appellee The Velvet Swing, L.L.C.
   POLEN, J.

This appeal arises from the trial court’s dismissal of appellant’s complaint with prejudice. That ruling was erroneous, and we reverse that order for further proceedings.

Visible Difference and Velvet Swing entered into an Asset Purchase Agreement whereby Visible Difference was to purchase the assets of Velvet Swing. The agreement provided that the transaction would close on or before October 31, 2001 provided all contingencies and provisions of the agreement were met. It also provided that in the event an extension of time should become necessary for the full compliance with all contingencies and provisions of this agreement, both parties may agree to such extension in writing. The agreement contained several contingencies and conditions precedent and provided that such contingencies and conditions be satisfied in full without qualification or exception whatsoever.

However, Visible Difference believed that Velvet Swing was trying to sabotage the deal. At the scheduled date of closing, contingencies were not satisfied and the sale did not close.

Visible Difference filed a complaint against Velvet Swing. The four count complaint detailed the terms of the agreement, sought specific performance of the agreement against Velvet Swing, a declaratory judgment, relief based on alleged tortious interference, and relief based on Velvet Swing’s breach of contract and breach of covenant of good faith and fair dealing.

In response, the defendants filed a motion to dismiss. The motion to dismiss pointed out that the contingencies were not satisfied and that the agreement provided that, in order to be waived, both parties had to waive them in writing. The trial court granted the motion to dismiss and this appeal timely follows.

Visible Difference alleges that the trial court erred in dismissing its complaint because although contingencies were not satisfied, they were waived.

A complaint must allege sufficient ultimate facts to show that the pleader is entitled to relief. A court may not go beyond the four corners of the complaint and must accept the facts alleged therein and exhibits attached as true. All reasonable inferences must be drawn in favor of the pleader. Whether a complaint is sufficient to state a cause of action is an issue of law. Consequently, the ruling on a motion to dismiss for failure to state a cause of action is subject to de novo standard of review.

Taylor v. City of Riviera Beach, 801 So.2d 259 (Fla. 4th DCA 2001).

This agreement contained several contingencies and conditions precedent and the contract provided that such contingencies and conditions “be satisfied in full without qualification or exception whatsoever.” One such contingency was that Visible Difference obtain all appropriate zoning approvals.

Visible Difference complains that the complaint should not have been dismissed based on Velvet Swing’s assertion that it failed to satisfy the zoning condition precedent. Rather, Visible Difference contends it waived this contingency.

Velvet Swing contends that all the contingencies, including the zoning contingency, were mutual and not for the sole benefit of Visible Difference. Velvet Swing points to the language in the agreement requiring both parties to satisfy contingencies and that such satisfaction be without qualification or exception. In , addition, the agreement provided that if Visible Difference did not satisfy its contingency, Velvet Swing was able to retain the deposits. While Velvet Swing accurately relies on portions of the agreement, case law supports the conclusion that the zoning contingency was for the benefit of Visible Difference and that it was therefore able to be waived.

This court has previously recognized that the doctrine of waiver holds that “a party may waive a covenant of a contract for whose benefit it is inserted.” American Ideal Mgmt., Inc. v. Dale Vill., Inc., 567 So.2d 497 (Fla. 4th DCA 1990) (citing Gilman v. Butzloff, 155 Fla. 888, 22 So.2d 268 (1945)). American Ideal Management clarified that “the application of waiver necessitates the finding that the covenant sought to be waived was inserted in the contract for the benefit of the party seeking the waiver.” Id. at 501. In American Ideal Management, the court reversed the summary judgment order because the issue of whose benefit the provision was included for was a question of fact.

Velvet Swing accurately points out that the agreement provides that it may only be amended in a writing executed by both parties. In addition, Velvet Swing emphasizes that the terms of the contract are clear. However, Velvet Swing does not address the ability of Visible Difference to waive the contingency provision concerning the zoning approval in spite of the language in the agreement. In fact, this court has allowed waiver where abiding by the express terms of the contract would otherwise have prohibited it.

In Allstate Insurance Co. v. Cipriani, 629 So.2d 183 (Fla. 4th DCA 1993), this court determined that an oral cancellation of an insurance policy was sufficient notwithstanding that the policy specifically required cancellation to be done in writing. The Cipriani opinion noted that “[ijnsurance policy provisions permitting written cancellation generally are considered to be for the benefit of the insurer.” Thus, the court concluded the provision had been waived. Id.

Although Velvet Swing contends the contingencies were included for the benefit of both parties, in New Products Corp. v. City of North Miami, 241 So.2d 451 (Fla. 3d DCA 1970), the Third District held that a similar zoning contingency was for the benefit of the purchaser. Moreover, it seems clear that to assure the building is properly zoned would benefit the purchaser of the building, rather than the seller. At minimum, the question of which party the inclusion of this contingency was meant to benefit, is an issue of fact. Dismissal of the complaint was therefore inappropriate as the four corners of the complaint do not provide guidance in this regard.

When presented with the motion to dismiss, the trial court was not permitted to go beyond the four corners of the complaint to determine if the contingency was waived or for whose benefit the contingency was included in the agreement. In addition the trial court had to accept the facts alleged in the complaint and the exhibits attached as true, as well as draw all reasonable inferences in favor of Visible Difference. Taylor, 801 So.2d 259.

The complaint acknowledges that the contingency was not satisfied. However, the complaint also alleges the contingency was waived. Drawing all inferences in favor of Visible Difference, as the trial court was obligated to do, the trial court erred in dismissing the action. We hereby reverse that order.

REVERSED.

STONE, J., and ROSENBERG, ROBERT A., Associate Judge, concur.


author: CASANUEVA, Judge.

text:
    Raymond BAUGH, Appellant/Cross-Appellee, v. STATE of Florida, Appellee/Cross-Appellant.
    No. 2D02-2758.
    District Court of Appeal of Florida, Second District.
    Oct. 31, 2003.
    Rehearing Denied Dec. 22, 2003.
    James Marion Moorman, Public Defender, and James T. Miller, Special Assistant Public Defender, Bartow, for Appellant/Cross-Appellee.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Ap-pellee/Cross-Appellant.
   CASANUEVA, Judge.

Raymond Baugh appeals from his conviction for capital sexual battery upon the seven-year-old daughter of his former girlfriend, for which he received a sentence of life in prison. The substantive evidence against him at trial consisted almost exclusively of pretrial unsworn child hearsay statements admitted pursuant to section 90.803(23), Florida Statutes (2000), which directly conflicted with the victim’s in-court testimony. The question we face in this case is whether, given the child victim’s in-court testimony that there was never any sexual abuse, the child’s out-of-court hearsay statements alone can sustain the defendant’s conviction for capital sexual battery. We hold that the prior statements alone cannot sustain the defendant’s conviction. However, in this case there was some other evidence that would give rise to the inference that Mr. Baugh committed the crime of which he was accused. In light of that other corroborative evidence, we affirm Mr. Baugh’s conviction.

The State has also cross-appealed the trial court’s decision to instruct the jury to consider the child hearsay testimony as impeachment rather than direct evidence. Although we hold that the court erred in giving that instruction, the cross-appeal is moot in light of our decision affirming the conviction.

THE TRIAL: INCONSISTENT STATEMENTS AND CREDIBILITY

The trial of this case took place about six months after the alleged molestation. The State’s first witness was the child victim, C.P., who described a time when the defendant, her mother’s live-in boyfriend, came into her room and closed the door. C.P.’s mother had sent her to her room for “bugging” her while she was ordering lobsters from Publix on the phone, and the defendant, whom she referred to as her daddy or Ray, came into her room to yell at her, closing the door behind him. The door was then accidentally locked because C.P. had fiddled with it earlier.

The defendant was wearing only a towel because he had just come from the shower. After he finished yelling at her, he picked up some mice from a cage so that he could feed them to the pet snake. C.P. denied that Ray ever opened up his towel, at that moment or any other time. However, C.P. had seen some “very gross” pictures when she was snooping around in her mother’s bedroom. The significance of that comment would emerge when the child hearsay statements were later admitted, because C.P. told investigators that the defendant had shown her pictures to teach her how to perform oral sex.

When her mother began knocking on the door, C.P. opened it immediately, and her mother asked her what was going on. In response C.P. told a “fib” — that Ray made her suck his private — “but that was not true.”

The prosecutor pressed the child about why she told this fib, and C.P. maintained that she made the story up because her older brother, who did not live with them, had told her about a similar event that had happened to him when he was about eight years old — that “a guy” (not the defendant or anyone involved in this case) made him suck the guy’s private. C.P. thought of telling that lie because she wanted to get Ray in a “little, but not that much trouble,” because sometimes he made her mad. She thought that it took her a couple of minutes to think of this lie before she told her mother, although the prosecutor questioned why she had not previously told him that she had thought about it for a few minutes before blurting it out.

According to C.P., the repercussions of her statement to her mother were immediate. There was a lot of yelling; her mother called the police; and the defendant took some razor blades and went into the bathroom and slashed at his wrists. C.P. recalled for the prosecutor that she did not speak to the police until a day or so later, when they went to the station and talked to Detective Venero. She told the detective that “it happened,” that her daddy made her suck his private. She admitted that she told the detective that she had done it with Ray twelve times previously and that white stuff came out, which tasted bad; on the stand, however, she denied that it happened and stated she did not know how it tasted, but her brother had told her about it.

The prosecutor continued to press C.P. about her motivation to lie about this event and to continue to lie about it. C.P. basically said that she knew that she would get in trouble for lying, that she did not want to get in any more trouble, and that she was afraid that the detective would tell her mother. Her mother scares her when she lies. Even though she was lying, C.P. knew the difference between a lie and the truth all along. One night when she was watching TV, however, she decided to tell her mother the truth because she thought maybe she could deal with getting in trouble. She was sad because her family had been broken apart and she thought it would help if she told the truth. C.P. also consistently insisted that she had not talked with her mother about these matters or about Ray except for the time when she decided to finally tell the truth.

Another line of inquiry pursued by the prosecutor, over defense objection, delved into some new rules C.P.’s mother had instituted for her household, most of which concerned wearing appropriate clothing and not locking doors. The inference the prosecution sought from this testimony was that C.P. would not be afraid to have the defendant back in their household because these rules would prevent a further recurrence of this behavior. C.P., however, asserted that she was not afraid of him because he had never molested her in the first place. Although likening this testimony to evidence of subsequent remedial measures prohibited in some civil contexts, the trial court admitted the evidence because it was inextricably intertwined with the credibility of each witness that the jury was going to have to evaluate.

On cross-examination the defense attorney elicited from C.P. that she had originally told the lie because she was mad at her mother and Ray for yelling at her, and she kept repeating it because she was afraid of her mother. She ultimately told the truth, though, because she was sad that her family was broken apart and she felt bad that her lie had gotten them into this situation, and, she thought, “maybe I can deal with the pressure.” It was a difficult decision, one she had to think about a long time. She again recounted that the story she had heard from her brother had stuck in her mind and supplied the details. Also, in nosing around her mother’s room she had come across one picture that she should not have seen, and that, too, was difficult to erase from her mind. As for the new rules, they made her feel safe, but Ray never had asked her to do anything naughty or showed her naughty pictures. She was afraid of him, though, because when he does not take his medication he hurts himself. Finally, the defense elicited from C.P. that she does not like her mother’s former friend, Kristin, and that she would never tell her a secret.

At the conclusion of C.P.’s testimony, the State had demonstrated that the alleged victim had first accused the defendant of molesting her, repeated that story to a number of different people, and then changed her story. C.P. was asked to identify the towel that Ray wore that night. She did so, but no physical evidence was ever obtained from that towel. The child protection team worker testified that her examination of C.P. revealed no evidence of abuse. Pornographic pictures were eventually recovered from the home, but there was never any direct testimony that the defendant had shown them to C.P. The detective, the child protection worker, and virtually every other witness repeated C.P.’s hearsay statements, but there was never any direct evidence demonstrating that events unfolded the way C.P. initially said they had.

Other than the child’s prior inconsistent statements, the most damning piece of evidence was elicited from the mother. She testified that after she finished calling Publix about lobsters, she attempted to enter C.P.’s room but found that the door was locked. Within a few seconds — fewer than thirty, according to her estimate— someone opened the door. She saw Raymond standing there, wrapped up in his towel, with white mice in his hand, and her daughter behind him. Both denied knowing the door was locked, but she wanted to find out what had happened, so she separated them. She took C.P. to her bedroom, asked what was going on, and the child’s exact words were, “He made me suck on his dick.” The mother immediately confronted Ray, spouting what she described as “colorful metaphors,” slapping him several times, and insisting that he leave immediately. During their heated argument Raymond said, “I want her to suck my dick, I want you to watch, and then I want to fuck you after.”

C.P.’s mother testified on direct that Raymond made this remark in the heat of an argument to anger her, which it did. In fact, the first time the mother had indicated that she thought Raymond was less than serious when he made this remark, that he was describing what he wanted rather than what he did, was at the bond hearing, and by that time her daughter had changed her story and the mother was doing all she could to have Raymond released from jail.

On cross-examination the mother testified that she believed C.P. when she changed her story, because her behavior had changed for the better after she received the attention she desired, so she assumed that C.P.’s motivation for telling the initial lie was simply to get attention. She denied that her daughter had ever acted out sexually, but she had caught her “playing doctor” with her brother. She described her daughter as extremely nosy, which explained her finding the pornographic pictures.

As for the blow-up that occurred once the bedroom door was unlocked, the mother admitted that when she became angry, it “was not a pretty sight,” and she was mad at everyone before the door was even opened — at C.P. for being a pest and at Raymond for insisting on buying lobster for dinner when they could not afford it. Once C.P. accused Raymond of molesting her, she immediately believed what her daughter said was true and thought that Raymond was being serious when he described his desires toward her daughter. However, she noted that he did not have an erection when she walked into the room, and when they cleaned C.P.’s room the next day, she found no evidence of semen or sexual activity.

As for the suicide attempt, C.P.’s mother explained on direct that Raymond had attempted to take his life by slashing his wrists once before, when the phone had been cut off for nonpayment. She admitted that he needs significant counseling, but once she realized that her daughter had lied, she wanted him out of jail.

The statement the defendant made to the mother, whether seriously or in jest, about what he desired to do to C.P., undoubtedly bolstered the prosecution’s case against him. The prosecution made further inroads into C.P.’s credibility when it had the investigating detective repeat what the victim and her mother had told him two days after the incident. A number of details conflicted with C.P.’s testimony at trial.

Detective Venero detailed what the mother had told him during his initial investigation, which conflicted in several respects with her trial testimony. For instance, she told him that she was off the phone in a matter of moments, went to the bedroom door, listened for a few minutes but did not hear anything, then knocked on the door. Raymond said, “The mice are out — hang on a minute.” The mother then banged on the door, did not see the mice out, and did not think he had time to put them away. Her daughter looked as if she had been caught doing something wrong. Therefore, she took C.P. to another room where her daughter said that her daddy made her suck his privates. This enraged the mother, leading to the verbal and physical confrontation with Raymond, who began packing his things and then went into the bathroom and slit his wrists and arms. The mother also relayed to Detective Venero the statement the defendant had made about what he wanted to do, which occurred at the beginning of their protracted altercation, and she also said that he never at any point denied that he had done what he was accused of doing.

Over objection, the detective recounted C.P.’s hearsay statements concerning the event. According to C.P., when Ray opened his towel or other clothing and looked down, she knew that she was to perform oral sex on him. She knew how to do it because he showed her a picture, and she described with particularity where she put her hand, what she did, what came out of his penis, and how the white stuff tasted. She was “fairly articulate” about the white stuff — when it came out and when it did not. C.P. was pretty certain that she had done this twelve times in the past. Then, a few days after his interview with C.P., the mother called Detective Venero and told him that she had found photographs of a woman performing oral sex on a man.

The detective further testified that C.P.’s examinations revealed no physical evidence of abuse or venereal disease. The defendant’s towel was examined for semen but none was found, nor did forensic examination of C.P.’s room reveal any evidence of semen.

A child protection team registered nurse practitioner related C.P.’s statements to her: that Ray made her suck his private, that white stuff came out, and that he had made her do this twelve times. She found no physical manifestations of sexual abuse or of venereal disease. However, in the case of oral sex, it is highly unlikely that there would be any forensic material to be discovered.

A final line of questioning explored the credibility of C.P. and her mother concerning the child’s decision to change her story. A jail inmate present when two women and a child came to visit the defendant testified that he overheard some of their conversation. He claimed that the defendant told the women that they had to get the little girl to “recamp” her story because otherwise he was looking at life in prison. Furthermore, approximately two days before this visit the inmate overheard the defendant’s end of a telephone conversation in which the defendant said something about a towel, suggesting that they could claim that both he and the little girl had used the same towel after bathing. This inmate had been convicted of seven felonies and was on sex offender probation at the time of trial, but the prosecutor had not promised him anything for his testimony.

A former family friend, Kristin, testified last. This was a person C.P. did not like, who had been thrown out of their home by the mother after the child recanted. Kristin testified about events the night of the incident as well as the circumstances under which C.P. changed her story. According to this former friend, C.P. told her that “it really did happen” but her mother wanted her to change her story. On the night that C.P. confessed that she had been lying, however, Kristin overheard the mother yelling at her child in the bathroom, exhorting her to tell the truth and warning that she would beat her within an inch of her life if she was lying.

At the conclusion of the State’s case, the defense moved for judgment of acquittal, contending that the prosecution had adduced no direct evidence that C.P. had been sexually abused. Instead, the evidence compiled against Mr. Baugh consisted of C.P.’s prior hearsay statements, which were repeated by her mother, the detective, and the child protection worker. In addition, the prosecution introduced the defendant’s statement, made to the mother, about how he would like to sexually molest the child and have the mother watch, but this was not really an admission but a statement of desire. Although no photographs were introduced at trial, both the detective and the mother testified that a photograph depicting an act of oral sex was found in the home. The child and her mother both testified about new rules that were introduced concerning clothing and locked doors, which the prosecution hoped would convince the jury that the mother believed C.P.’s original story; however, the mother explained that, initially, she did believe the first story. The defendant’s cutting of his wrists and arms almost immediately after the accusation was characterized by the prosecution as evincing his consciousness of guilt but was explained by the defense as demonstrative of the defendant’s unbalanced mental state: he had done the same thing when the telephone was turned off. Two witnesses were introduced to suggest that the mother had influenced the child to change her story, but both the jail inmate and Kristin had damaged credibility. Finally, C.P.’s exclamation to her mother — that her daddy had made her suck his dick — was characterized by the prosecution as a spontaneous statement, which enshrouded it with greater evidentiary value than a section 90.803(23) child victim hearsay statement made under other circumstances.

THE EFFECT OF ADMITTING CHILD VICTIM HEARSAY WHEN THE CHILD HAS RECANTED

We have detailed the trial testimony so extensively in an attempt to paint a picture of the significant problem this case presents. Here, the prosecution’s star witness testified solely about what did not happen and gave a plausible explanation for how she came to know of things no seven-year-old child should ever have to know and why she accused the defendant of those acts. The State’s burden was to tear that story down bit-by-bit, and it did so by repeated introduction of the version of events that the child was repudiating at trial. In addition, the State highlighted discrepancies between the child’s and the mother’s testimonies — as well as between the in-court and out-of-court versions of events — concerning small details, such as whether Ray had mice in his hand when the door was opened, how long it took for the door to be unlocked, and how C.P. was punished for initially lying once she decided to tell the truth. All of the evidence the State presented was intended to corroborate the statements introduced through section 90.803(23).

At the outset, we note that the trial court did an exemplary job in its conduct of the pretrial hearing to determine whether the “time, content, and circumstances of the statement provide[d] sufficient safeguards of reliability.” § 90.803(23)(a)(l). The court entered a detailed order finding that the statements C.P. made to the detective, the child protection worker, and to Kristin evidenced a sufficient degree of trustworthiness and reliability and, based upon the child testifying at trial, were admissible as a hearsay exception under section 90.803(23). The court concluded that the State could introduce the child hearsay statements without undue or unlawful prejudice to the defendant. In reaching those conclusions after the pretrial hearing, however, the court admitted that it was left with “some nagging concerns” about C.P.’s testimony at the hearing, which was appropriately responsive to non-leading questions. Her demeanor did not change when she testified about her original allegations and the fact that they were lies. Essentially, however, based upon the picture of the family dynamic that was drawn in the testimony of C.P., the mother, and the family friend, the court concluded that the child did not receive much positive attention from her mother, that she would indeed be fearful of getting in trouble for lying, and that she told the truth in her initial allegations but later untruthfully recanted to “satisfy her mother’s concerns about the Defendant, and her desire to have him back home and in their lives.” Thus, the trial court’s decision to allow the hearsay statements was influenced to some degree by its own decision concerning C.P.’s credibility.

Our court has observed that, when a child’s in-court testimony directly contradicts the out-of-court hearsay statements, there can be “serious problems with a trial judge determining [the hearsay statements’] reliability .... in the face of the directly contradictory in-court ... statements under oath.... It seems to place the trial judge in the position of determining the credibility of the witnesses.” Joggers v. State, 536 So.2d 321, 325 (Fla. 2d DCA 1988). When a child has told two diametrically opposing stories, one version must necessarily be false. Thus, when determining that the out-of-court statements are trustworthy and reliable, the judge consequently is determining that the in-court version is false, that the child is lying, effectively stamping judicial approval upon accusations made in a setting where the defendant had no opportunity to cross-examine his accuser. In this case, however, we find that the trial judge appropriately applied the factors set out in section 90.803(23)(a)(l): “the mental and physical age and maturity of the child, the nature and duration of the abuse or offense, the relationship of the child to the offender, the reliability of the assertion, and any other factor deemed appropriate

RELIABILITY OF THE CHILD VICTIM HEARSAY

The question with which this court is presented is whether the victim’s recantation of her statements rendered them so critically unreliable that the State did not carry its burden of adducing legally sufficient evidence to sustain Mr. Baugh’s conviction. The defense argued vehemently that C.P.’s hearsay statements should be considered by the jury only as impeachment; in fact, the defense attorney convinced the judge to give an instruction to that effect, which is the issue on the State’s cross-appeal. It appears, however, that the jury did not understand that instruction, or, if they did, they ignored it.

At the hearing on the defendant’s motion for judgment of acquittal, the prosecutor admitted his concern with the legal weight of the evidence. He made this telling admission: “The irony of all ironies in this case, Judge, is that the only way that I think I can get this to a jury is the fact that [the mother] testified what [C.P.] said immediately after the incident, therefore that makes it a spontaneous statement. That spontaneous statement in and of itself allows this case to get to a jury.” The prosecutor implied that, because of the child’s recantation, he considered the child “unavailable as a witness” as that term is described in section 90.803(23)(a)(2)(b). When a child is unavailable, hearsay statements are admissible only “provided there is other corroborative evidence of the abuse or offense.” Id. Under the prosecutor’s view of the evidence, C.P.’s exclamation to her mother, occurring shortly after the mother found C.P. and the defendant together behind a locked door — that “Ray made me suck his dick” — came in under section 90.803(1) as a spontaneous statement hearsay exception. Thus, there was “other corroborative evidence ... of the offense,” § 90.803(23)(2)(b), so that even if the recantation rendered C.P. legally “unavailable,” her hearsay statements would be admissible.

A trend apparent in recent Florida decisions suggests that the prosecutor worried somewhat needlessly about the need for corroboration. Although we have grave reservations about the use of the conflicting out-of-court child hearsay as the only substantive evidence of abuse, in the unique circumstances of this case, the trial court’s decision to admit the statements and to deny the defense motion for judgment of acquittal comports with recent decisions from the Florida Supreme Court.

As we mentioned earlier, our court has warned against the danger to the fact-finding process when a child victim’s out-of-court statement is admitted in the face of directly contradictory in-court testimony. The trial judge’s decision to admit the testimony through the machinery of section 90.803(23) “seems to place the trial judge in the position of determining the credibility of witnesses.” daggers, 536 So.2d at 325. The Jaggers court concluded that there was “a total lack of reliable evidence to support the element of penetration,” id. at 322, and reversed two of the defendant’s convictions.

The key to the admissibility of the statements is their reliability. In State v. Green, 667 So.2d 756 (Fla.1995), the supreme court wrestled with the issue of whether a prior inconsistent statement of an alleged child victim of sexual abuse, even if repeated on multiple occasions as in this case, is sufficient in and of itself to sustain a conviction. The court concluded that it was not. The statements in Green were not prior inconsistent statements made under oath for purposes of section 90.801(2)(a), but they could have been admitted under section 90.803(23). The Green court specifically held that it would not matter whether the statement was admitted under either hearsay exception, quoting with approval the following language from Jaggers, 536 So.2d at 325: “[W]e do not find the intent of section 90.803(23) is to allow the state to breathe substantive reliability into ... prior inconsistent statements when they are otherwise admissible only to impeach those prosecuting victim witnesses whose testimony is introduced by the state at trial .... ” This is not a matter of technicalities but of concern for the defendant’s Sixth Amendment right to confront witnesses and the paramount necessity of avoiding “convicting an innocent accused ... when the conviction is based entirely on prior inconsistent statements.” Green, 667 So.2d at 761 (quoting State v. Moore, 485 So.2d 1279, 1281 (Fla.1986)).

In Green the victim was retarded but had a mental age of seven, the same as C.P. Unlike C.P., however, who manifested no outward signs of abuse, the victim in Green showed physical changes consistent with vaginal penetration. She told her sister and sister-in-law that' Green had forced her to have sex, but at trial she recanted and identified another man as her abuser. A consideration for the finding that the inconsistent statement could not stand as the only evidence to convict the defendant was “the immense potential for manipulation of a retarded child.” Green, 667 So.2d at 761. In this case, C.P., too, although not retarded and apparently quite articulate, was certainly susceptible to manipulation by the adults upon whom she was totally dependent. However, a significant difference between Green and this case is that Green involved the identity of the perpetrator whereas here the issue was whether or not the crime had actually been committed.

Green concluded with the court’s observation that its decision was not meant to bar any use of inconsistent statements as substantive evidence, as long as “other proper corroborating evidence is admitted.” Id. Thus, pursuant to Green, this court certainly cannot and does not hold that the trial court erred in its pretrial decision to admit C.P.’s out-of-court statements into evidence, but C.P.’s inconsistent statements should not be considered any more reliable than any other inconsistent statements simply because they were admitted pursuant to section 90.803(23). Under Green, those statements alone could not convict Mr. Baugh; other corroborating evidence is essential. However, the logic of finding that the corroboration can consist of C.P.’s initial “spontaneous” statement to her mother- — -that Ray made her suck his privates- — escapes us. This would seem to be another way of “breathing substantive reliability into ... prior inconsistent statements when they are otherwise admissible only to impeach those prosecuting victim witnesses whose testimony is introduced by the state at trial ....” Green, 667 So.2d at 760 (quoting Jaggers, 536 So.2d at 325). The Green court concluded that “in a criminal prosecution, a prior inconsistent statement [whether admitted pursuant to section 90.803(23) or 90.801(2)(a)] standing alone is insufficient as a matter of law to prove guilt beyond a reasonable doubt.” Green, 667 So.2d at 760 (relying upon and reaffirming State v. Moore, 485 So.2d 1279 (Fla.1986)).

A couple of years after Green the supreme court decided Department of Health & Rehabilitative Services v. M.B., 701 So.2d 1155 (Fla.1997). In that case, a dependency proceeding, the court specifically found that there was no requirement that statements admitted under the child victim hearsay exception be consistent with the child’s in-eourt testimony. The court approved the admission of the inconsistent statements as substantive evidence once they satisfied the strict reliability safeguards set out in section 90.803(23) and refined in such cases as State v. Townsend, 635 So.2d 949 (Fla.1994); Pardo v. State, 596 So.2d 665 (Fla.1992); and Glendining v. State, 536 So.2d 212 (Fla.1988). In M.B., 701 So.2d at 1161, the supreme court approved of the following commentary by Professor Ehrhardt:

There is some authority that, if the victim’s trial testimony does not indicate that abuse occurred, the victim’s out-of-court statements that the abuse occurred are not sufficient, by themselves, to support a conviction. The rationale for these decisions is not clear. If the rationale is that the out-of-court statement is lacking the necessary reliability as a result of the circumstances in which it was made, the analysis is appropriate. Section 90.803(23) and the defendant’s confrontation rights require this analysis. If the basis is that, because the out-of-court statement is admissible simply because it is inconsistent with the in-court testimony of the witness, the reasoning should not be followed. Although a prior statement which is admitted pursuant to section 90.801(2) is not sufficient by itself to support a conviction, the rationale should not be extended to statements admitted under a section 90.803 hearsay exception. These exceptions are surrounded by circumstantial guarantees of reliability which are not necessarily present when a statement is offered under section 90.801(2).

Charles W. Ehrhardt, Florida Evidence § 802.23, at 702 (1996 ed.) (footnote omitted; emphasis added).

After quoting this language from Eh-rhardt, which refers specifically to the sufficiency of evidence to support a conviction, the supreme court in M.B. distinguished the dependency case before it from the criminal convictions involved in Green and Moore:

Our rulings in Green and Moore were primarily concerned with the minimum standard of evidence required to sustain a conviction and the potential miscarriage of justice that could occur if that standard was not maintained. We were also concerned, of course, about the constitutional rights of the accused in a criminal proceeding. See Green, 667 So.2d at 760. Those concerns are not present in these dependency proceedings, where it is undisputed that the child victim was the subject of sexual abuse, and the issue is the child’s welfare and not the alleged abuser’s criminal culpability. We conclude that Green, because of its unique circumstances and the substantial distinctions from this case as noted above, does not control the outcome here.

M.B., 701 So.2d at 1162.

In this case, of course, we are concerned with the minimum standards to support Mr. Baugh’s conviction and with his constitutional rights. Taking all of these cases together, it appears that the child victim’s inconsistent out-of-court statements were admissible as substantive evidence, not as impeachment only; but in line with the requirement set out in Green, there must be other corroborating evidence to support the conviction. And in this case, as in Green, we must determine whether the reliability of C.P.’s statement that she was sexually molested by Mr. Baugh had been so diminished by C.P.’s in-court testimony that “we could not have sufficient confidence in the criminal conviction to allow it to stand.” M.B., 701 So.2d at 1162 (referring to Green). See also Brantley v. State, 692 So.2d 282, 282 (Fla. 1st DCA 1997) (quoting Green, 667 So.2d at 760, for the proposition that the “law in this state is that prior unsworn, inconsistent, and uncorroborated statements cannot constitute the only substantive evidence to sustain a conviction”); Ticknor v. State, 595 So.2d 109, 110 (Fla. 2d DCA 1992) (“Unsworn, uncorroborated statements that are inconsistent with the victim’s trial testimony ... are insufficient as a matter of law to sustain a conviction.”); Bell v. State, 569 So.2d 1322, 1323 (Fla. 1st DCA 1990) (“Because the only evidence presented by the state was the prior, unsworn, inconsistent, and uncorroborated statement, the state did not meet its burden of proving the elements of the crime beyond a reasonable doubt, and a judgment of acquittal should have been granted.”); Williams v. State, 560 So.2d 1304, 1306 (Fla. 1st DCA 1990) (“The rule that prior inconsistent statements may not be used substantively as the sole evidence to convict, see Moore, applies to [s]ection 90.803(23) evidence as well.”) (quoting Jaggers, 536 So.2d at 324). However, the supreme court in M.B., 701 So.2d at 1162, referred with approval to the following statement made (in dicta) in Anderson v. State, 655 So.2d 1118, 1120 (Fla.1995): “[W]e decline to enunciate a blanket rule that no conviction can stand based solely on hearsay testimony.” Cf. Williams v. State, 714 So.2d 462, 466 (Fla. 3d DCA 1997) (holding that the excited utterance exception to the hearsay rule, section 90.801(2), is a firmly rooted exception because the circumstances under which such statements are made “eliminate the possibility of fabrication, coaching, or confabulation,” and that incriminating statements admitted pursuant to the excited utterance exception were sufficient, on their own, to send the case to the jury) (quoting Idaho v. Wright, 497 U.S. 805, 820, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990)).

CONCLUSION

In responding to the motion for judgment of acquittal in this case, the prosecutor described the corroborating evidence as follows: the spontaneous statement from C.P. to her mother immediately after the event; the defendant’s “admission” (“I want her to suck my dick while you watch”); the defendant’s consciousness of guilt as evidenced by his suicide attempt; and the suggestion that the defendant engaged in “witness tampering,” adduced from the testimonies of the prison inmate and the mother’s former friend. None of this alleged corroboration carries much ev-identiary weight. Of course, the question is not its weight but its legal sufficiency.

In our view, each of these grounds, individually, would fail as sufficient corroboration of Mr. Baugh’s guilt. Labeling C.P.’s out-of-court statement as a spontaneous statement really is not helpful to the State, because, in spite of the court’s jury instruction to the contrary, the statement did come in as substantive evidence pursuant to section 90.803(23); putting another name on it would not have made it any more corroborative of the event, especially considering that the jury knew that C.P.’s initial accusation occurred very close in time to the alleged crime. The defendant’s “admission” is not really an admission at all, but a statement of desire and not of a completed act (“I want her to suck my dick while you watch”), although the jury might infer past conduct from the statement. The fact that the defendant slashed his wrists almost immediately after the charges were made, when viewed as required in the light most favorable to the State, is suggestive of guilt, even though his action is equally susceptible of an interpretation that he was despondent over the accusation and was in need of intensive psychotherapy. Finally, the testimony of the jail inmate and the former friend concerning C.P.’s recantation, which the State argued indicated that Mr. Baugh engaged in “witness tampering,” reveals that Mr. Baugh knew that he would never get out of jail unless C.P. changed her story. That was true; as long as C.P. alleged that Mr. Baugh committed the crime, he had little hope of being released. However, that does not indicate that her original story was either true or corroborative of his guilt.

In spite of our hesitation to say that any one piece of “corroboration” would be sufficient, together with the out-of-court statements, to sustain this conviction, all of the inferences that the jury could draw from the sum total of the evidence lead us to the conclusion that the trial court correctly denied Mr. Baugh’s motion for judgment of acquittal. Although close, this case is not one in which we determine that C.P.’s out-of-court testimony was so diminished by her in-court denial of all of the events that we do not have sufficient confidence in the conviction to allow it to stand. Cf. M.B, 701 So.2d at 1162 (commenting on Green, 667 So.2d at 760).

However, in light of what we feel is a need for clarification of some of these issues, we certify the following question of great public importance:

IF A CHILD VICTIM OF SEXUAL ABUSE TOTALLY REPUDIATES HER OUT-OF-COURT STATEMENTS AT TRIAL, AND THE PROSECUTION ADDUCES NO EYEWITNESS OR PHYSICAL EVIDENCE OF ABUSE, MUST THE TRIAL COURT GRANT A JUDGMENT OF ACQUITTAL EVEN IN THE FACE OF OTHER EVIDENCE CORROBORATING THE OUT-OF-COURT STATEMENTS AND THE DICTATES OF THE CONFRONTATION CLAUSE?

As the foregoing indicates, we answer that question in the negative based upon the decisions of the courts of this state.

Accordingly, we affirm. We also hold that the trial court erred in instructing the jury to consider C.P.’s out-of-court statements as impeachment only, but in light of our disposition of the main appeal, the cross-appeal is moot.

Affirmed.

KELLY, J., and THREADGILL, EDWARD F., Senior Judge, concur.

      . We are unsure on what basis the mother’s statements to Detective Venero were admitted, but the defense did not object to that line of testimony.


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    C SQUARED CONSTRUCTION, INC., a Florida corporation, Petitioner, v. CONSOLIDATED BUILDING CORPORATION, a Florida corporation, Respondent.
    No. 3D03-2785.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.
    Rehearing Denied Jan. 9, 2004.
    Smith, Currie & Hancock, Brian A. Wolf and S. Elysha Luken, Tallahassee, for petitioner.
    Salas, Ede, Peterson & Lage, L.L.C., Michael P. Peterson and Craig H. Temple, for respondent.
    Before LEVY, GERSTEN, and GODERICH, JJ.
   PER CURIAM.

We grant the petition for writ of prohibition finding that the trial court acted without jurisdiction by granting Consolidated Building Corporation’s motion to enjoin the American Arbitration Association [AAA] from proceeding with the scheduled arbitration. See Boyhan v. Maguire, 693 So.2d 659 (Fla. 4th DCA 1997)(holding that AAA’s decision to continue service of arbitrator is an interlocutory determination that may be addressed in a proceeding to vacate an award). Therefore, we grant the petition and quash the order granting Consolidated’s motion for injunctive relief.


text:
    Ronald THOMPSON, Appellant, v. The BANK OF NEW YORK, as Trustee, Appellee.
    No. 4D01-3281.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2003.

      Alan H. Ramer, Miami, for appellant.
    William P. Heller of Akerman Senterfitt, Fort Lauderdale, for appellee.
   PER CURIAM.

This is an appeal from a final summary judgment of foreclosure. The trial court granted summary judgment without allowing the defendant to file amended affirmative defenses. Because the proposed amendment failed to state the defense of fraud with particularity, we affirm the final judgment.

The Bank of New York, appellee, filed an amended foreclosure complaint on June 20, 2000. On July 5, 2000, appellant, Ronald Thompson, filed an answer, mthout affirmative defenses, and a counterclaim alleging a Federal Truth In Lending violation. On August 31, 2000, the Bank moved to dismiss the counterclaim, arguing, inter alia, that it was subject to mandatory arbitration pursuant to an arbitration agreement signed by Thompson.

On February 22, 2001, the Bank moved for summary judgment on its foreclosure claim.

On March 24, 2001, Thompson moved for leave to file an amended answer and counterclaim; the proposed pleading contained the affirmative defense that the “subject matter of this action was procured by fraud.” The counterclaim contained counts for fraud and deceptive trade practices under section 501.204, Florida Statutes (1999).

On the eve of the summary judgment hearing, Thompson filed an affidavit that the signature on the arbitration agreement was not his. The court scheduled an evi-dentiary hearing to determine whether Thompson signed the arbitration agreement.

At the May 24, 2001 evidentiary hearing, Thompson admitted that the signature on the arbitration agreement was his. The court ordered the parties to file memoran-da addressing the enforceability of the arbitration agreement.

On July 24, 2001, in a well-reasoned ten-page order, the trial court granted the Bank’s motion for summary judgment and denied Thompson’s motion to file an amended answer and counterclaim. The court indicated that Thompson could pursue his counterclaim in arbitration. The court determined that sanctions were appropriate because Thompson and his counsel “knew or should have known” that the claim that Thompson did not sign the arbitration agreement was unsupported by the facts.

The trial court did not abuse its discretion in denying the motion to amend to add the affirmative defense of fraud, since the defense was not pled with sufficient particularity. Without the affirmative defense, nothing in the record precluded summary judgment of foreclosure.

Florida Rule of Civil Procedure 1.190(a) provides that leave of court to amend a pleading “shall be given freely when justice so requires.” “Courts should be especially liberal when leave to amend ‘is sought at or before a hearing on a motion for summary judgment.’ ” Bill Williams Air Conditioning & Heating, Inc. v. Haymarket Coop. Bank, 592 So.2d 302, 305 (Fla. 1st DCA 1991) (quoting Montero v. Compugraphic Corp., 531 So.2d 1034, 1036 (Fla. 3d DCA 1988)). “As a general rule, ‘[l]eave to amend should not be denied unless the privilege has been abused, there is prejudice to the opposing party, or amendment would be futile.’ ” N. Am. Speciality Ins. Co. v. Bergeron Land Dev., Inc., 745 So.2d 359, 362 (Fla. 4th DCA 1999) (quoting Life Gen. Sec. Ins. Co. v. Horal, 667 So.2d 967, 969 (Fla. 4th DCA 1996)); see also Kiriakidis v. Kiriakidis, 855 So.2d 208 (Fla. 4th DCA 2003).

However, a proposed amendment is futile where it is insufficiently pled. The court in this case denied the motion to amend because Thompson’s allegations of fraud were “eonclusory in their content, and lacking in any real allegations of ultimate fact showing fraud on the part of the Bank of New York.” Such defenses were insufficient as a matter of law.

Because of litigants’ proclivity to loosely sling the term “fraud” into pleadings, the law requires that fraud be described with precision. Florida Rule of Civil Procedure 1.120(b) mandates that “the circumstances constituting fraud ... shall be stated with such particularity as the circumstances may permit.”

This means that an affirmative defense or claim “must clearly and concisely set out the essential facts of the fraud, and not just legal conclusions.” Flemenbaum v. Flemenbaum, 636 So.2d 579, 580 (Fla. 4th DCA 1994). Where a defense of fraud exists, “it is not so subtle a concept that it cannot be described with precision.” Id.

The only specific allegation of fraud in the affirmative defense is that the seller of the underlying real estate represented to Thompson that Thompson was “financially able to qualify and afford the subject premises.”

Such a statement cannot support a cause of action for fraud. See, e.g., Glass v. Craig, 83 Fla. 408, 91 So. 332, 335 (1922) (holding that “a mere statement of opinion, belief, or expectation, although untrue and resting upon no information, is not such a false representation as to constitute fraud”); Reimsnyder v. Southtrust Bank, N.A., 846 So.2d 1264, 1266 (Fla. 4th DCA 2003) (determining that statements made by bank officer were either not demonstrably false or were mere opinion and thereby not actionable under a fraud claim); Thor Bear, Inc. v. Crocker Mizner Park, Inc., 648 So.2d 168, 172 (Fla. 4th DCA 1994) (finding that a claim for fraudulent misrepresentation is not actionable if premised on mere opinion and not material fact); Baker v. United Servs. Auto. Ass’n, 661 So.2d 128, 131 (Fla. 1st DCA 1995) (reasoning that for a claim of misrepresentation to be actionable, it must be of fact rather than opinion); Wasser v. Sasoni, 652 So.2d 411, 412 (Fla. 3d DCA 1995) (finding that seller’s statements that the building was “a very good building” requiring “normal type of maintenance,” and “an excellent deal,” were clearly statements of opinion and not fraudulent misrepresentations); Carefree Vills. Inc. v. Keating Props., Inc., 489 So.2d 99, 102 (Fla. 2d DCA 1986) (finding that a seller’s statement that he thought the lifetime leases could be broken was nothing more than an opinion, upon which no action for misrepresentation could be grounded).

Whether Thompson was financially able to qualify for the loan was a matter of opinion. Whether Thompson could afford the loan was an opinion involving facts more available to Thompson than to the seller; Thompson had to know his own financial capacity better than a stranger. The trial court was correct that Thompson failed to set forth a defense of fraud.

This case is similar to Cady v. Chevy Chase Savings & Loan, Inc., 528 So.2d 136 (Fla. 4th DCA 1988). In Cady, the borrower attempted to raise fraud as an affirmative defense to a mortgage foreclosure. We held that the borrower had failed to plead fraud “with particularity as is required,” so that it was insufficient as a matter of law. Id. at 138. We wrote that “[cjertainty is required when pleading defenses, and pleading conclusions of law unsupported by allegations of ultimate fact is legally insufficient.” Id. We affirmed the summary judgment of foreclosure in Cady. In this case, the defense of fraud fails for the same reason that it did in Cady.

For these reasons, we affirm the final judgment without prejudice to Thompson pursuing his claims in arbitration. We do not reach the propriety of the award of attorney’s fees, because the trial court has not entered a final judgment setting an amount.

AFFIRMED.

STONE, GROSS, JJ., and STERN, KENNETH D., Associate Judge, concur.


author: FLETCHER, Judge.

text:
    The STATE of Florida, Appellant, v. Julio A. MORALES, Appellee.
    No. 3D02-3246.
    District Court of Appeal of Florida, Third District.
    Nov. 5, 2003.
    Rehearing and Rehearing En Banc Denied Jan. 14, 2004.

      Charles J. Crist, Jr., Attorney General, and John D. Barker, Assistant Attorney General, for appellant.
    Ernesto S. Medina, for appellee.
    Before LEVY, GREEN, and FLETCHER, JJ.
   FLETCHER, Judge.

The State of Florida seeks to reverse an order vacating the judgment of conviction and sentence of Julio A. Morales. We reverse.

In February of 1989, Morales pleaded guilty to possession of cocaine. Morales subsequently moved to withdraw his plea and to vacate the conviction, but because he was not under present threat of deportation, the motion was withdrawn. Morales then voluntarily advised the INS that he was amenable to deportation. The INS issued a Notice to Appear [NTA], after which Morales renewed his motion to withdraw plea and vacate conviction, now that he was presently “under threat” of deportation. At the evidentiary hearing on Morales’ renewed motion, the court heard testimony of Robert Sheldon, an immigration law specialist who indicated that the NTA provided two grounds for Morales’s deportation — the guilty plea and his undocumented status. Sheldon testified that, of those two grounds, the guilty plea was the only viable reason for deportation, as Morales’ undocumented status could be remedied under the Cuban Adjustment Act. At the hearing’s conclusion the trial court granted Morales’ motion to vacate his conviction and sentence.

The record reflects that Morales applied for permanent residency which was denied because of the 1989 conviction. It is evident from testimony that Morales, a Cuban national, was not in fact amenable to deportation but was attempting to obtain permanent resident status by using the NTA as a means to obtain a favorable ruling on his motion to vacate his conviction. Testimony indicated it is highly speculative as to whether the INS would have actually instituted an action against Morales had he not requested such proceedings himself. Volunteering for deportation does not establish the requisite prejudice (from failure to advise of the immigration consequences of one’s plea) and “threat” of deportation necessary to trigger Peart and its progeny. See Peart v. State, 756 So.2d 42 (Fla.2000). In this case the prejudice and threat was created by Morales and does not stem from the circumstances surrounding his prior plea.

Reversed and remanded.


text:
    Quannah BOWERS, Appellant, v. STATE of Florida, Appellee.
    Nos. 4D03-2086, 4D03-2362, 4D03-2363, 4D03-2364.
    District Court of Appeal of Florida, Fourth District.
    Nov. 5, 2003.

      Leah H. Mayersohn of the Law Offices of Leah H. Mayersohn, P.A., Ft. Lauder-dale, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Don M. Rogers, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Quannah Bowers appeals the summary denial of his motion for post-conviction relief. We reverse and remand for further proceedings.

Bowers pled guilty to numerous counts in an open plea to the court. In his post-conviction motion, Bowers sought to withdraw his pleas arguing they were not intelligently and voluntarily entered. Bowers alleged counsel affirmatively misadvised him that he would receive no more than 82 months in prison. Further, counsel allegedly told Bowers he would move for a downward departure, in order to obtain the “promised” sentence, and that Bowers could “take [his] pleas back” if the court denied the motion for downward departure. Bowers’s post-conviction motion also alleged he received an illegal sentence.

The trial court adopted and attached the state’s response to the order summarily denying the post-conviction motion. Attached to the order are a copy of the written plea form and a transcript of the plea colloquy in which Bowers affirmed he was not promised any result in return for the guilty pleas. The record also showed Bowers was made aware he faced a maximum penalty of a hundred years in prison with a minimum of ten years. Thus, the record attachments conclusively refuted the claim Bowers’s pleas were not intelligently or voluntarily entered based on counsel’s “promise” of a certain sentence.

The plea colloquy and forms, however, do not conclusively refute Bowers’s claim he would not have entered his pleas absent counsel’s affirmative misadvice that Bowers could withdraw his plea if the court denied the motion for downward departure. See State v. Leroux, 689 So.2d 235 (Fla.1996)(holding general question about whether any promises were made concerning the sentence that would be imposed did not refute the claim that counsel promised early release due to gain time).

The Supreme Court of Florida noted in Leroux, “[T]here may also be a difference between a ‘promise’ as commonly understood, and an attorney’s expert advice to his client.... Supplying such advice is not necessarily a promise of an outcome.” Id. at 237. See also Brana v. State, 830 So.2d 942 (Fla. 4th DCA 2002)(finding when appellant’s attorney told him the sentences would be concurrent, appellant could have reasonably understood that as a statement of law, not a promise or a representation given to induce the plea). In this case, the attorney’s statement regarding Bowers’s ability to later withdraw his plea could reasonably be understood as a statement of law and not a promise about a result.

Affirmative misadvice about a defendant’s ability to withdraw a plea can constitute a legally sufficient claim of ineffective assistance of counsel. See Weaver v. State, 845 So.2d 280 (Fla. 3d DCA 2003)(finding claim that counsel promised the defendant would have the absolute right to withdraw his plea before sentencing was not conclusively refuted by the record where colloquy was silent on this point). As Bowers’s claim is sufficient and not conclusively refuted by the record, we remand for an evidentiary hearing on this issue. McLin v. State, 827 So.2d 948 (Fla. 2002); Fla. R.Crim. P. 3.850.

In response to Bowers’s claims of an illegal sentence, the state acknowledged that the sentencing order on count three of case number 00-19384CF10B must be corrected to reflect one year in prison to run consecutively to all other counts. The record in this case does not reflect whether this correction to the written sentence ever occurred. On remand, we direct the trial court to correct the written sentencing order accordingly.

GUNTHER, STEVENSON and MAY, JJ., concur.