text:
    MARTIN ELECTRONICS, INC., Appellant, v. Curtis and Annie JONES, Appellees.
    No. 1D03-4091.
    District Court of Appeal of Florida, First District.
    June 18, 2004.
    Rehearing Denied July 28, 2004.

      Fred M. Johnson, Esquire and Amy J. Goddard, Esquire of Fuller, Johnson & Farrell, P.A., Tallahassee and Michael S. Smith, Esquire of Smith, Smith, Moore & Smith, P.A., Tallahassee, for Appellant.
    Thomas M. Ervin, Jr., Esquire of. Ervin, Chapman & Ervin, Tallahassee, David H. Burns, Esquire, Robert S. Cox, Esquire and Talley Kaleko, Esquire of Cox & Burns, P.A., Tallahassee, and Benjamin L. Crump, Esquire of Parks & Crump, L.L.C., Tallahassee, for Appellees.
   BENTON, J.

Martin Electronics, Inc. (Martin) appeals the order denying the motion for summary judgment it filed when one of its employees, Curtis Jones, and his wife, Annie, brought suit. Their complaint alleges that Martin engaged in intentional conduct that was substantially certain to result in Mr. Jones’s injury or death. In denying summary judgment, the trial court ruled that “[a]s a matter of law, Curtis Jones is entitled to [both an award of] workers’ compensation benefits and to pursue the ... intentional tort suit against Martin.” We reverse, but we certify a question of great public importance.

Although the order denying the motion for summary judgment is interlocutory, we have jurisdiction. See Fla. R.App. P. 9.130(a)(3)(C)(v) (2003) (“Appeals to the district courts of appeal of nonfinal orders are limited to those that ... determine ... [among other things] that, as a matter of law, a party is not entitled to workers’ compensation immunity.”). In denying Martin’s motion, the trial court found that, as a matter of law, Martin was not entitled to workers’ compensation immunity.

The essential facts are not in dispute. While working for Martin on May 1, 2000, Mr. Jones suffered third-degree burns over three-fifths of his body’s surface, when an explosion occurred in a building on Martin’s premises. He did not regain consciousness until July 11, 2000, and had to undergo some twenty-four surgeries: all of his fingers and both thumbs were amputated. From the beginning, Martin and its workers’ compensation carrier voluntarily provided workers’ compensation benefits, and have by now paid benefits aggregating in excess of $1.2 million.

A dispute concerning the hourly rate for attendant care that Mrs. Jones furnished arose, however, and Mr. Jones’s then counsel filed a petition for benefits with the Office of the Judges of Compensation Claims in February of 2001. Prior to a contested hearing on the petition, the parties completed a form stipulation by answering questions regarding the accident. On January 29, 2003, the judge of compensation claims entered an order granting the petition, approving and adopting as a finding of fact the parties’ stipulation to the effect that Mr. Jones “sustained an injury by accident,” and awarding additional monies for Mrs. Jones’s services. With a modification not pertinent here, we affirmed the award of additional attendant care benefits. See Martin Elecs, v. Jones, 871 So.2d 277 (Fla. 1st DCA 2004).

Meanwhile in circuit court, the Joneses filed the complaint in the present case on January 7, 2003, seeking damages in tort. As amended on March 18, 2003, the complaint alleges:

7. At the time of his injuries, CURTIS JONES was an employee of MARTIN and was in the course and scope of his employment with MARTIN.
8. While MARTIN did not have an actual intent to injure CURTIS JONES, the injuries to CURTIS JONES were the result of intentional conduct on the part of MARTIN that was substantially certain to result in injury or death.

Martin moved for summary judgment on the grounds that Mr. Jones had “elected the workers’ compensation system as his remedy for the injuries alleged in this civil lawsuit, and as a matter of law Curtis Jones may not recover against Martin Electronics in civil litigation.”

Martin argues on appeal, as it did below, that because Mr. Jones elected the workers’ compensation remedy by actively pursuing the workers’ compensation case to a conclusion on the merits, the Joneses are judicially estopped to take an inconsistent position in the present case, viz., that Mr. Jones’s injuries were not “accidental,” but the result of Martin’s intentional conduct, conduct that was substantially certain to result in injury or death. At issue is the purely legal question of whether these two positions are indeed incompatible. See Hernandez v. United Contractors Corp., 766 So.2d 1249, 1252 (Fla. 3d DCA 2000) (“The doctrine of election of remedies ‘... is'an application of the doctrine of estoppel and provides that the one electing should not later be permitted to avail himself of an inconsistent course.’ Williams v. Robineau, 124 Fla. 422, 425, 168 So. 644, 646 (1936).”).

Our supreme court’s opinion in Turner v. PCR, Inc., 754 So.2d 683 (Fla.2000), rests on the premise that an industrial accident as defined for purposes of workers’ compensation coverage is dichotomous with tortious misconduct of the kind for which an employee may bring- suit at law. After citing the statutory definition of accident, “an unexpected or unusual event or result that happens suddenly,” § 440.02(1), Fla. Stat. (2000), the Turner court explained: “Conversely, therefore, under the plain language of the statute, it would appear logical to conclude that if a circumstance is substantially certain to produce injury or death, it cannot reasonably be said that the result is ‘unexpected’ or ‘unusual[.]’ ” Id. at 689 (emphasis omitted). Under this reasoning, the position Mr. Jones took in the workers’ compensation proceeding — that he sustained an injury by accident — is incompatible with the current position he and Mrs. Jones take — that Mr. Jones’s injuries were the result of intentional conduct that was substantially certain to result in injury or death.

Martin concedes that mere, passive receipt of workers’ compensation benefits does not'give rise to judicial estoppel. See Wishart v. Laidlaw Tree Serv., Inc., 573 So.2d 183, 184 (Fla. 2d DCA 1991) (“Acceptance of the payments constitutes no election of remedies.... ”). See also Wheeled Coach Indus, v. Annulis, 852 So.2d 430, 433 (Fla. 5th DCA 2003); Hernandez v. United Contractors Corp., 766 So.2d 1249, 1252 (Fla. 3d DCA 2000); Lowry v. Logan, 650 So.2d 653, 657 (Fla. 1st DCA 1995); Wright v. Douglas N. Higgins, Inc., 617 So.2d 460, 462 (Fla. 3d DCA 1993); Velez v. Oxford Dev. Co., 457 So.2d 1388, 1390 (Fla. 3d DCA 1984).

But filing a petition for additional attendant care benefits, litigating before the judge of compensation claims on the theory that a covered industrial accident occurred, and obtaining an order predicated on the finding that Mr. Jones sustained an injury by accident “implie[d] a conscious intent ... to choose compensation benefits over a tort action.” Velez, 457 So.2d at 1390. See Townsend v. Conshor, Inc., 832 So.2d 166, 167 (Fla. 2d DCA 2002); Michael v. Centex-Rooney Constr. Co., Inc., 645 So.2d 133, 135 (Fla. 4th DCA 1994); Femro v. Marr, 490 So.2d 188, 189 (Fla. 2d DCA 1986); Ferguson v. Etna Elec., Inc., 421 So.2d 805, 806 (Fla. 3d DCA 1982).

Our own holding in Matthews v. G.S.P. Corp., 354 So.2d 1243 (Fla. 1st DCA 1978), although antedating Turner, reflects the view that seeking workers’ compensation benefits and later suing in tort necessarily entails taking inconsistent positions. In Matthews, we held that judicial estoppel arises from the inconsistency. There we said:

An employee may not elect to declare his injury to have been an accident occurring in the course of his employment and, thereafter, repudiate such position by alleging that the place and conditions of his employment were so dangerous that the injury was not in fact an accident.

Id. at 1244. Appellees’ distinction between the allegation of willful and wanton negligence made in Matthews and the allegation in the present case, that intentional conduct was substantially certain to cause death or serious injury, misses the point. Under Matthews, the Joneses, having successfully litigated entitlement to workers’ compensation benefits, “may not now be permitted to claim further damages upon [their] allegation that his injury, in fact, was not an accident within the contemplation of the law.” Id.

We have not overlooked the cases appel-lees cite from other jurisdictions holding that alleging an industrial accident for purposes of workers’ compensation proceedings need not be inconsistent with alleging a tort of a kind for which an employer has no workers’ compensation immunity. See Gagnard v. Baldridge, 612 So.2d 732, 733-35 (La.1993) (allowing employee to recover both disputed workers’ compensation benefits and tort damages, subject to a credit or offset, for employer’s intentional striking of employee); Woodson v. Rowland, 329 N.C. 330, 407 S.E.2d 222, 233 (1991) (“It is ... not inherently inconsistent to assert that an injury caused by the same conduct was both the result of an accident, giving rise to the remedies provided by the [Workers’ Compensation] Act, and an intentional tort, making the exclusivity provision of the Act unavailable to bar a civil action.”). But see, Zurowska v. Berlin Indus., Inc., 282 Ill.App.3d 540, 217 Ill. Dec. 499, 667 N.E.2d 588, 592 (1st Dist. 1996); James v. Caterpillar Inc., 242 Ill. App.3d 538, 183 Ill.Dec. 242, 611 N.E.2d 95, 103 (5th Dist. 1993); Advanced Coun-tertop Design, Inc. v. Second Jud. Dist. Ct., 115 Nev. 268, 984 P.2d 756, 758 (1999); Medina v. Herrera, 927 S.W.2d 597, 600 (Tex.1996). And, while language in Turner made clear the Florida Supreme Court’s view that such positions are incompatible, the Turner court did not have before it the precise issue of whether an election of remedies had been made.

Accordingly, we certify as a question of great public importance, the following:

MAY AN EMPLOYEE RECEIVING WORKERS’ COMPENSATION BENEFITS LITIGATE ENTITLEMENT TO ADDITIONAL BENEFITS THEN, HAVING OBTAINED AN AWARD OF THE ADDITIONAL WORKERS’ COMPENSATION BENEFITS, BRING SUIT IN CIRCUIT COURT FOR THE PERSONAL INJURIES SUSTAINED ON THE JOB THAT WERE THE BASIS FOR THE AWARD?

The order under review is reversed, and the case is remanded for entry of summary judgment in favor of appellant.

BARFIELD and DAVIS, JJ., concur.

      . On the date Mr. Jones was injured, section 440.11(1), Florida Statutes (2000), provided that workers' compensation was the exclusive remedy for accidental injury or death arising out of work performed in the course and scope of employment:
      (1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability of such employer ... except that if an employer fails to secure payment of compensation as required by this chapter, an injured employee, or the legal representative thereof in case death results from the injury, may elect to claim compensation under this chapter or to maintain an action at law or in admiralty for damages on account of such injury or death.... The same immunities from liability enjoyed by an employer shall extend as well to each employee of the employer when such employee is acting in furtherance of the employer's business and the injured employee is entitled to receive benefits under this chapter. Such fellow-employee immunities shall not be applicable to an employee who acts, with respect to a fellow employee, with willful and wanton disregard or unprovoked physical aggression or with gross negligence when such acts result in injury or death....
      The current version of section 440.11(1), effective October 1, 2003, provides in part:
      (1) The liability of an employer prescribed in s. 440.10 shall be exclusive and in place of all other liability, ... except as follows:
      (b) When an employer commits an intentional tort that causes the injury or death of the employee. For purposes of this paragraph, an employer's actions shall be deemed to constitute an intentional tort and not an accident only when the employee proves, by clear and convincing evidence, that:
      1. The employer deliberately intended to injure the employee; or
      2. The employer engaged in conduct that the employer knew, based on prior similar accidents or on explicit warnings specifically identifying a known danger, was virtually certain to result in injury or death to the employee, and the employee was not aware of the risk because the danger was not apparent and the employer deliberately concealed or misrepresented the danger so as to prevent the employee from exercising informed judgment about whether to perform the work.

        See ch.2003-412, §§ 14, 50, at 3890-91, 3969, Laws of Fla. (codified at § 440.11(1), Fla. Stat. (2003)).

      . The parties' attorneys in the workers’ compensation proceeding answered these questions on the stipulation form:
      1. Date of Accident(s):
      Employee: 05/01/00
      E/C/Sa: Yes
      2. Place of Accident(s):
      Employee: Taylor Cty
      E/C/Sa: Yes


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Tony L. GARY, Petitioner, v. OFFICE OF THE PUBLIC DEFENDER FOR The FOURTH JUDICIAL CIRCUIT, Respondent.
    No. 1D04-1536.
    District Court of Appeal of Florida, First District.
    June 18, 2004.
    Rehearing Denied July 28, 2004.

      Tony L. Gary, pro se, petitioner.
    Louis 0. Frost, Jr., Public Defender, Fourth Judicial Circuit, and Ward L. Metzger, Assistant Public Defender, Jacksonville, for respondent.
   PER CURIAM.

. The petition for writ of mandamus is denied on the merits. See Roesch v. State, 633 So.2d 1 (Fla.1993); Woodson v. Durocher, 588 So.2d 644 (Fla. 5th DCA 1991), rev. denied, 598 So.2d 79 (Fla.1992).

BARFIELD, DAVIS and BENTON, JJ., concur.


author: TAYLOR, J.

text:
    D.P.B., a child, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-859.
    District Court of Appeal of Florida, Fourth District.
    June 23, 2004.
    Carey Haughwout, Public Defender, and Susan D. Cline, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

D.P.B. appeals the order finding that he violated probation by committing a. new criminal offense. He contends that because the probation order did not require him to “live and remain at liberty without violating any law,” the juvenile court committed fundamental error in finding that he violated his probation on this basis. We disagree and affirm.

D.P.B. was placed on probation with the Department of Juvenile Justice (DJJ) pursuant to his plea to a domestic battery. He was later charged with committing a delinquent act, i.e., theft of a credit card, and violating Condition 3 of the Order of Probation by “failing to live and remain at liberty without violating any law by committing the criminal offense of theft of a credit card.” The trial court found D.P.B. in violation of probation, based on the evidence presented at the adjudicatory hearing on the delinquency petition for credit card theft.

When D.P.B. was placed on probation by the juvenile court, the disposition order required him to comply with the special conditions of probation listed in the plea agreement and with the “standard conditions of probation.” The disposition order reads as follows:

The child shall comply with all requirements of the plea agreement (see attached) and the standard conditions of probation including the following. (SEE ATTACHED COURT ORDERED SANCTIONSO TRANSFER () DISPOSITION () SUPERVISION AND/OR () JURISDICTION TO.

The attached plea agreement lists certain special conditions of probation, but makes no mention of the child’s obligation to obey the law. And though the disposition order refers to standard conditions of probation, the record does not show that these standard conditions were attached or included among the disposition documents. D.P.B. thus argues that the court erred in finding him in violation of probation by failing “to live and remain at liberty without violating any law.”

The state relies on Tory v. State, 686 So.2d 689 (Fla. 4th DCA 1996), in arguing that the requirement to “live and remain at liberty without violating any law” is a standard condition of probation, authorized under section 948.03, Florida Statutes (1993), and rule 3.986(e), Florida Rules of Criminal Procedure. For a standard condition, the state contends, no oral pronouncement is necessary. In Tory, we held that standard conditions of probation provided in section 948.03, or included in rule 3.986(e), could be imposed without being orally pronounced, because the defendant was on constructive notice that some or all of the standard conditions listed in the statute could be imposed by the judge. Id. at 692. Rule 3.986(3), Condition 5 states:

You will live without violating the law. A conviction in a court of law shall not be necessary for such a violation to constitute a violation of your probation.

See also State v. Hart, 668 So.2d 589 (Fla.1996)(holding that defendants are on constructive notice of the standard conditions of probation contained in the form order of probation found in Fla. R.Crim. P. 3.986(e)).

That being said, however, this is a juvenile case, which is controlled by section 985.231(l)(a)l, Florida Statutes, and Florida Rule of Juvenile Procedure 8.947, and not by section 948.03 and rule 3.986(e), pertaining to adult probation. Condition 1 of rule 8.947, which specifically addresses the juvenile probationer’s obligation to refrain from violating the laws, states, “[t]he child shall obey all laws.”

While the general conditions of probation applicable to adults and juveniles are similar, our court has treated them differently insofar as notice requirements. We have held that the juvenile probation conditions contained in rule 8.947, unlike adult general conditions, must be orally pronounced at the disposition hearing, the same as special conditions, unless they are explicitly authorized by a statute governing juvenile proceedings or involve conduct prohibited by another statute. See W.J. v. State, 688 So.2d 954 (Fla. 4th DCA 1997); see also C.C.B. v. State, 782 So.2d 473 (Fla. 4th DCA 2001).

In W.J., we explained that the constructive notice rationale underlying Hart cannot be applied in juvenile cases because rule 8.947 is in a different format than rule 3.986(e); it does not contain general or standard conditions which are generally applicable to most probation orders. W.J., 688 So.2d at 957-58. We further pointed out that, these general conditions are not self-executing. Id. at 957. Each condition requires a check mark entered next to it by the judge in order to become effective. Id. For these reasons, the conditions contained in rule 8.947 are more akin to special conditions, which must be orally pronounced. Id. at 958.

In this appeal, D.P.B. argues that the condition'“to live and remain at liberty without violating any law” cannot be enforced because he was never ordered to comply with this condition by oral pronouncement or written order. He asserts that due process requires that he be put on notice as to what he can or cannot do as a condition of probation.

We first address D.P.B.’s contention that the court must orally advise a juvenile placed on probation that he or she must refrain from violating any law. In W.J, we clarified that the obligation to refrain from “conduct which is proscribed by statute” is -not a special condition requiring verbal notice. 688 So.2d at 956. In so ruling, we referred to the supreme court’s observation in State v. Beasley, 580 So.2d 139, 142 (Fla.1991), that “publication' in the Laws of Florida or Florida Statutes gives all citizens constructive notice of the consequences of their actions.”

In W.J., one of the conditions challenged by the child was the condition not to use or possess alcoholic beverages. We reasoned that'since § 562.111, Fla. Stat. (1995), prohibits any person under the age of 21 from possessing beverages, a violation of that statute constitutes engaging in “conduct which is proscribed by statute.”' Hence, we concluded that the court did not have to orally impose that condition. W.J., 688 So.2d at 957.

In this case, after being placed on probation, D.P.B. was charged with credit card theft. This offense is a violation of § 817.60, Fla. Stat., punishable as a first-degree misdemeanor. The obligation to refrain from this “conduct proscribed by statute” is not a special condition of probation requiring oral pronouncement. As the second district said in a similar challenge by an adult probationer:

We conclude that obedience to criminal statutes is not a special condition of probation, and due process does not require a defendant to receive verbal notice of this obligation before it is used as a reason to revoke probation. To avoid incarceration and receive the benefits of probation, a defendant must convince the trial court that he or she “is not likely again to engage in a criminal course of conduct.” § 948.01(2), Fla. Stat. (1993). Thus, obedience to the law is not so much a ‘condition’ of probation, but rather the very foundation for this reduced punishment.

State v. Green, 667 So.2d 959, 960-61 (Fla. 2d DCA 1996). Thus, we reject D.P.B.’s argument that he was entitled to oral announcement of the condition to refrain from violating any law.

We next address D.P.B.’s claim that the condition to obey the law also had to be included in a written order to serve as the basis for a violation. This issue has not been previously addressed in our district; however, we agree with the sound reasoning of the second district in Green that “there is no legal need to provide additional oral or written notice to a defendant who has been placed on- probation” that he has to obey all criminal laws. Id. at 961.

In Green, the state appealed the trial court’s dismissal of probation revocation proceedings against the defendant. Id. at 960. The defendant, while on probation, had been charged with committing four violent felonies. Id. He moved to dismiss the affidavit alleging violation of probation by committing these crimes on the ground that he had never been orally informed that he could not commit these offenses while on probation. Id. After reviewing Fla. Stat. § 948.03(1)(1993) and finding that there was no express statutory requirement, corresponding to Condition 5 of rule 3.986(e), that probationers obey criminal laws, the trial court reluctantly dismissed the probation proceeding. Id.

Though the defendant in Green was challenging only the trial court’s failure to orally announce the probation condition that he obey the law, the second district addressed both oral and written notice requirements for this condition. First, the court explained that the reason for announcing special conditions of probation at sentencing is to give defendants an opportunity to object to a condition that they believe is inappropriate. Id. at 961. It then pointed out that, because the obligation to obey the criminal laws applies to all persons, there can be no basis for objecting to this condition. Id.

The court went on to observe that “the only arguable reason to require that obedience to criminal statutes be an express condition of probation is to give the defendant legal notice that any further disobedience may result in the loss of this reduced form of punishment and a shift to a harsher penalty.” Id. Based, however, on the long established law that new criminal conduct can result in a probation violation, and § 921.0015, Fla. Stat. (1993), and Fla. R.Crim. P. 3.701, all providing for increased punishment for probation violations, the court concluded that “these are matters of general law the defendant is presumed to know,” and there was no due process requirement for this “legal ramification of criminal misconduct to be spelled out in the probation order or at the sentencing hearing.” Id.

Similarly, § 985.231(l)(a)l.c., Fla. Stat. (2000), provides for increased punishment for juveniles who violate conditions of probation. Thus, juvenile probationers are likewise on constructive notice that new criminal charges may result in probation violation and increased punishment. While we believe that the better practice is to give juveniles written notice of their obligation to obey the law, as is typically done under rule 8.947 in disposition orders, we do not find a due process violation in the failure to do so.

Accordingly, we affirm the order finding the juvenile in violation of probation. We remand this cause to the trial court only to correct a scrivener’s error so that the disposition will reflect that the juvenile was found delinquent after a hearing by the trial judge, rather than by entering a guilty plea.

AFFIRMED and REMANDED.

POLEN and MAY, JJ.-, concur.


author: FARMER, C.J. GROSS, J.

text:
    Zennon MIERZWA, Appellant, v. FLORIDA WINDSTORM UNDERWRITING ASSOCIATION, Appellee.
    No. 4D02-4996.
    District Court of Appeal of Florida, Fourth District.
    June 23, 2004.
    Rehearing Denied Aug. 12, 2004.

      Stuart R. Michelson, James J. Birch, and llene L. Michelson of the Law Office of Stuart R. Michelson, Fort Lauderdale, for appellant.
    Dorothy C. Venable, Betsy E. Gallagher, Scott A. Cole of Cole, Scott & Kissane, P.A., Tampa, for appellee.
   FARMER, C.J.

The issue in this case concerns the extent of a wind insurer’s liability after Hurricane Irene. The home owner had wind insurance with one carrier and flood insurance with' another. The wind insurer’s policy contained an' anti-concurrent cause clause excluding coverage for any damage other than by wind. A state statute requires the wind insurer to pay the face amount of the policy if the building is a total loss. The building was in fact effectually condemned by the local authority upon its determination that the cost of repairs for the total damage -exceeded half the value of the building. Nevertheless the wind insurer argues, and the trial court so held, that it is liable only for its pro rata share, not for the face amount of the policy. The court also refused to award any additional sum under an “other” coverage provision. We reverse.

I. Valued Policy Law

The insuring clause of the policy provid-' ed for the repair or replacement of a damaged building up to the face amount of the policy. According to this clause, the amount of liability could be less than the face amount if the actual amount spent to repair or replace turned out to be less than policy limits. The insuring clause, however, is subject to the Valued Policy - Law (VPL), which states:

“In the event of the total loss of any building ... located in this state and . insured by any insurer as to a covered, peril ... the insurer’s liability, if any, under the policy for such total loss shall be in the amount of money for which such property was so insured as specL fied in the policy.

§ 627.702(1), Fla. Stat. (2008). The VPL is part of every real property casualty insurance policy written on property in Florida.’ Citizens Ins. Co. v. Barnes, 98 Fla. 938, 124 So. 722 (1929); Regency Baptist Temple v. Ins. Co. of N. Am., 352 So.2d 1242 (Fla. 1st DCA 1977).

The meaning of the VPL is simple and straightforward. There are two essentials in the statute. The first is that the building be “insured by [an] insurer as to a [e.s.] covered peril.” § 627.702(i). The second is that the building be a total loss. If these two facts are true, the VPL mandates that the .carrier is liable to the owner for the face amount of the policy, no matter what other facts are involved as to the cost of repairs or replacement. That is to say, if the insurance carrier has any liability at all to the owner for a building damaged by a covered peril and deemed a total loss, that liability is for the face amount of the policy. VPL § 627.702(1) (“[T]he insurer’s liability, if any [e.s.] shall be [the face amount of insurance].”)

The VPL statutory text does not require that a covered peril be the covered peril causing the entire loss; it need merely be a covered peril. VPL § 627.702(1) (“insured by any insurer as to a [e.s.] covered peril”). Plainly when these requisites exist, pro rata liability under the VPL would be in conflict with its terms, because the VPL provides that any liability of a casualty insurer where a covered peril is involved in a total loss must be for the face amount rather than pro rata with other coverages.

We briefly flesh out the pertinent facts before we address the carrier’s specific position. The owner purchased wind insurance covering his home in the face amount of $281,000 from Florida Windstorm Underwriting Association (FWUA). The FWUA policy expressly excluded flood damage. The owner also purchased separate flood insurance coverage from another insurer. The home was badly damaged by a hurricane, and claims were made under both policies.

FWUA says it decided that its liability for the wind damage repairs amounted to $64,807, plus $8,370 for debris removal, permits, and repair inspection. FWUA tendered that amount, less deductibles. The flood insurer determined that the cost to repair the flood damage was $54,486. Thus, the combined cost of repairs for both wind and flood damage was $127,662. Of that combined total, wind damage represents 57%.

An ordinance where the home is located provides that “when repairs and alterations amounting to more than 50% of the value of the existing building are made during any 12 month period, the building or structure shall be made to conform [to building code rules applicable at the time of the repairs].” The local building official determined that the total cost of repairs to the insured building would exceed half of its value. The record does not establish what amount the official used as the value of the building. All we know from the building official’s calculation is that the cost of repairs were more than half of some unstated value of the building before the loss. By mathematical deduction, the value he used was undoubtedly greater than $127,663 but less than $245,324. If the value used by .the building official fell anywhere between $127,663 and $146,355 (the inferential value range), then the wind damage of $73,177 was itself greater than half the value attributed to the building by the city building official.

FWUA asserts that its anti-concurrent cause clause (ACCC) excludes its liability for the face 'amount of the policy under VPL because the total loss was caused in part by a peril excluded under the FWUA policy. Its policy expressly excluded any coverage for flood damage. And flood damage was clearly part of the total damage. Therefore, reasons FWUA, the VPL text must give way to the ACCC. FWUA thus contends that because it is responsible for only what amounts to 57% of the damage (or more than half of the combined damage), while the rest was caused by flooding, it is liable to pay only a pro rata portion of the total damage to the home. It was this argument that the trial court relied upon in entering judgment in favor of FWUA.

There are two reasons why we do not agree with FWUA’s argument. We first return to the VPL. As we have previously shown, under the VPL if a building is a total loss, and if the damaged building is “insured as to a [e.s.] covered peril,” then any liability of such insurer is for the face amount of the policy. (“[T]he insurer’s liability, if any, [e.s.] under the policy for such total loss shall be in the- amount of money for which such property was so insured....”) See Millers’ Mut. Ins. Assoc. v. La Pota, 197 So.2d 21, 24 (Fla. 2d DCA 1967) (“The Valued Policy Law ... sets the amount payable when there is a total loss.”). As one Court has explained:

“In cases decided under the valued policy statutes, however, the courts have uniformly held that-upon a showing that the demolition was required by law the insured may recover as for a total loss. Dinneen v. American Insurance Co., etc., 98 Neb. 97, 152 N.W. 307, L.R.A. 1915E, 618 [(1915)]; Palatine Insurance Co., Limited v. Nunn, 99 Miss. 493, 55 So. 44 .[(1911)]; Scanlan v. Home Insurance Co., Tex.Civ.App., 79 S.W.2d 186 . [(1935)]; Hart v. North British & Mercantile Ins. Co., 182.La. 551,162 So. 177 [(1935)].. The policy provision contracting against liability for enforced demolition is held to be overridden by the statute if the loss is total by reason of such demolition.”

Fidelity Guar. Ins. Co. v. Mondzelewski, 49 Del. 306, 310, 115 A.2d 697, 699 (1955).

On its face, the ACCC requires only that the liability of FWUA under the VPL be determined without consideration of the flood damage. The ACCC does not say by any words that it overrides the meaning of VPL. Because the policy is thus silent on whether FWUA’s liability under the ACCC becomes merely pro rata with other coverage, or' whether instead the VPL takes precedence over the ACCC, there is a conflict between the VPL text and the ACCC text. This conflict creates an ambiguity in the policy. We, of course, follow the rule that where two interpretations may fairly be given to an insurance contract, that interpretation which gives the greater indemnity will prevail. State Farm Mut. Auto. Ins. Co. v. Pridgen, 498 So.2d 1245 (Fla.1986); Inter-Ocean Cas. Co. v. Hunt, 138 Fla. 167, 189 So. 240 (1939). Therefore resolving the ambiguity in favor of the insured owner means that we must apply the VPL as written. If FWUA has any liability at all, even a fractional share of the total damage, under the VPL it is liable for the face amount.

FWUA argues that its ACCC concerns a matter of causation, not the measure of damages. But essentially it is contending that under the ACCC the measure of damages should be apportioned between the two insurance carriers issuing policies on the building. That would be contrary to the VPL. The identical contention was made by one of multiple carriers in Millers’ Mutual Insurance Association v. La Pota, 197 So.2d 21 (Fla. 2d DCA 1967). In that case, the carrier had included in its policy a “pro rata” clause, limiting its liability to its fractional share of all insurance on the building. The court found this clause “inoperative” because it conflicts with the VPL. As the court explained:

“ ‘The Valued Policy Law sets the amount payable when there is a total loss. Its principal object and purpose is to fix the measure of damages in case of loss total, or partial; and, to this end, it requires the insurer to ascertain the insurable value at the time of writing the policy, and to write it therein.’ When there are several permissible concurrent policies of fire insurance and there is a total destruction by fire of the insured premises, the Aggregate amount of the insurance written, or the sum of the face amounts in the policies for this peril, is conclusive as to the value of the property insured and the true amount of the loss and measure of damages when so destroyed. Each insurer is liable for the full amount of his policy, provided, of course, there is no fraud or other conduct of the insured which would constitute a valid defense to an action to recover for the loss....
‘This is not an unfair scheme, as the insured is stating the limits of his recovery and at the same time the insurer is basing his premium charges on the extent of his maximum exposure. When the total loss occurs neither can contend the value of the destroyed property is any different from what they had previously specified. When multiple policies are permissible, as here, the same principles apply. The aggregate liability is the total of the various values specified and for which an appropriate premium has been paid.’ ” [e.o., c.o.]

197 So.2d at 24 (quoting Springfield Fire & Marine Ins. Co. v. Boswell, 167 So.2d 780, 783-84 (Fla. 1st DCA 1964)).

We appreciate the desire of a VPL insurance carrier to limit its liability to the single peril it has contracted to cover when multiple perils combine to make an insured building a total loss. Because of the rule construing ambiguous insurance policies in favor of the owner, however, an expressly worded provision to that effect would certainly be necessary to make such a limitation arguably possible. There is no such expressly worded limitation in this policy.

We do not intend hereby to decide whether such an attempted limitation would be permitted under the VPL. We do note, however, that the VPL requires all insurers writing property casualty insurance in this state to ascertain the total value of the building and charge a premium for that value. This particular carrier is unique in that it has been created only to provide windstorm insurance. Flood insurance also is- provided by such a carrier. Hurricanes commonly result in a combination of wind and flood damage in many parts of this state. Both carriers know of the VPL. If these carriers aspire to apportion total loss damages under the VPL when differing causes combine to create a total loss, they should begin that effort with express text in their policies so indi eating. But such a textual addition may require governmental approval by the state agency regulating property casualty insurance in this state. When carriers do include appropriate text, a court can assess whether such a provision has the desired effect. Here we have no occasion to make that judgment because we face no such text.

Our second reason for rejecting FWUA’s ACCC argument is grounded in summary judgment law. Even if the VPL allowed for pro rata liability where damages result from multiple' perils, here the' carrier has failed to show that the condemnation resulting from the local ordinance was not attributable solely to the wind damage. The value of a building is not an objective fact, however, unimpeachably fixed by a universally accepted authority. This condemnation ensued because the building official thought the total damage to the building exceeded half of some unstated value.

FWUA has failed to establish that the specific value used by the official was greater than twice the amount of the windstorm damage. In fact, FWUA has not even addressed the inferential value range discussed earlier. Nor has it suggested there is any evidence — e.g., testimony from. the building official — showing that his valué of the building was actually more-than twice the windstorm damage. Because FWUA has failed to make known the existence of any evidence showing that wind damage alone could not possibly have resulted in the building’s condemnation, the owner was entitled to the face amount of the policy on account of the windstorm damage.

. II. Ordinance or Law Coverage

In addition to the foregoing issue, the owner also claims error as to the trial-court’s failure to enforce the “Ordinance or Law Coverage” provision in the policy. This provision of the policy affords an additional 25% in benefits, in excess of the face amount of insurance, when the building is deemed a total loss and .must be rebuilt. The purpose of this particular provision is to cover the increased costs of reconstruction caused by changes in local building codes adopted after the original construction of the building. The resolution of this claim is partially related to the decision on the VPL issue; if the building is deemed a total loss for the purpose of VPL it should certainly be deemed a total loss for purposes of this ordinance or law coverage.

FWUA argued that the additional ordinance or law coverage was excluded by the general exclusions in the policy. We disagree. The general exclusion clause makes absolutely clear that it does not apply to “other coverages.” The ordinance or law coverage provision is found in the section of the policy clearly labeled “other coverages.” Moreover, the ordinance or law coverage provision itself states in bold letters that “This is an additional amount of insurance.” [e.o.] We have no doubt therefore that the premium assessed by FWUA included this additional coverage. The owner has established beyond any question its entitlement to the additional 25% in benefits under the ordinance or law coverage.

* * *

We therefore reverse the judgment under review and remand for the entry of judgment awarding the owner the policy limits, subject to any deductions or reductions otherwise required by the policy and permitted by applicable law, along with an additional 25% of the face amount for the additional coverage.

REVERSED.

GUNTHER, J., concurs.

GROSS, J., specially concurs with opinion.

GROSS, J.

concurring specially.

I concur in the majority’s conclusion, but disagree in part with its reasoning.

Because this case involves the entry of summary judgment against FWUA, the insurer is entitled to the benefit of the facts in the light most favorable to its position. Using this approach, the face amount of FWUA’s policy was $281,000. The total cost to repair the dwelling was $124,600, with a replacement cost value of $164,633. FWUA tendered $64,807 to cover damage caused by wind. The flood insurer paid $54,485 in benefits to cover damage caused by flood.

Using the replacement cost value of $164,633, wind damage amounted to 39% of the property’s value, and flood damage rose to 33% of the value. Of the total damages to the property ($119,292), wind comprised about 54% and flood made up approximately 46%.

Using these figures, there is no dispute that the cost of repairs exceeded “50% of the value of the existing building” within the meaning of City of Fort Lauderdale Ordinance section 104.3(e). Application of the ordinance created a constructive total loss, because it required that the building be torn down and the site elevated.

Section 672.702(1), Florida Statutes (2003), the valued policy law, has been part of Florida law for over a century. The “principal object” of the statute

is to fix the measure of damages in case of loss total, or partial; and, to this end, it requires the insurer to ascertain the insurable value at the time of writing the policy, and to write it therein.

Hartford Fire Ins. Co. v. Redding, 47 Fla. 228, 37 So. 62, 65 (1904) (construing predecessor to section 627.702(1)). A “valued policy” statute protects “insureds faced with the total loss of their property from having to prove its value.” 44 Am.JuR.2d Insurance § 1500 (2003). The statute operates like a liquidated damage clause when the insured suffers a total loss, making it unnecessary for the insured to prove the value of the loss. Another purpose of the statute is “to prohibit writing by insurance companies of excessive ... insurance coverage on property.” Id.

The supreme court has held that an ordinance which prohibits-repair of damage caused by a fire creates a constructive total loss entitling an insured to recovery of the full amount of a fire insurance policy. Citizens’ Ins. Co. v. Barnes, 98 Fla. 938, 124 So. 722 (1929). Construing an ordinance similar to the one here at issue, the Florida Supreme Court wrote that “ ‘such ordinances are a part of the contract of insurance, and that the insurer is bound thereby.’ ” Id. at 723 (quoting Larkin v. Glens Falls Ins. Co., 80 Minn. 527, 83 N.W. 409, 410 (1900)). Barnes established that an ordinance can convert a partial loss into a total loss for the purpose of recovery under an insurance policy.

Although Barnes did not involve the valued policy statute, Netherlands Insurance Co. v. Fowler, 181 So.2d 692 (Fla. 2d DCA 1966), is a case where the valued policy law trumped the insurance company’s claim that a policy exclusion prevented an ordinance from converting a partial loss into a total one.

In Netherlands, a policy declared that the insurer would not be liable for “increased costs of repair or construction by reason of any ordinance or law regulating construction or repair.” Id. at 693. A fire partially destroyed the owner’s building. A building code prevented the structure’s repair and the city ordered its demolition. The insurer argued that it should not be liable for a total loss because fire only partially damaged the building and that the total loss was caused by the operation of law, a risk specifically excluded by the policy. Id.

The second district rejected the insurer’s argument and held that the application of the building code to the fire damage created a total loss; under the valued policy law, the insurer was liable for the face amount of the- policy, notwithstanding policy language ostensibly limiting coverage. Id.; see also Regency Baptist Temple v. Ins. Co. of N. Am., 352 So.2d 1242, 1244 (Fla. 1st DCA 1977) (recognizing those cases “in which an ordinance or regulation prevents repair of a damaged building,” resulting in- a “constructive total loss” making the insurer “liable for the building’s entire value”).

This case adds a factor to the Netherlands equation. Here there is not just a covered peril that combined with the operation of an ordinance to create a total loss. The equation is [ (covered risk) 4- (excluded risk);] <x (operation of ordinance) = total loss under section 672.702(1). The ordinance would not have applied and repairs could have been made, but for the flood, damages, which - combined with wind damages to trigger the ordinance and create a total loss.

I agree with the majority that the valued policy law controls this case. Just as the statute overrode the policy exclusion in Netherlands, so does it overcome the anti-concurrent cause language in this case.

I disagree with the majority’s holding that “if the insurance carrier has any liability at all to the insured for a building damaged by a covered peril and deemed a total loss, that liability is for the face amount of the policy.”

The better rule is to require that a covered peril be the proximate cause of the total loss in order to trigger the valued policy law. See Mondzelewski v. Fid. & Guar. Ins. Corp., 105 A.2d 787, 790 (Del.Super.Ct.1954), affirmed in part, reversed in part by, 115 A.2d 697, 700 (Del.1955). A proximate cause analysis does not change this case, since it is clear that but for the wind damage, the ordinance would not have been brought into play.

An example of a proximate cause analysis is Security Insurance Co. v. Rosenberg, 227 Ky. 314, 12 S.W.2d 688 (Ct.App.1928). There, the court faced the claim that a building’s unsafe condition prior to a fire “subject[ed][it] to condemnation as a fire menace and dangerous habitation.” Id. at 691. The court used a proximate cause analysis to determine an insurer’s liability for total loss:

[I]f the injuries caused by the fire, combined with the antecedent defects, made the repairs impracticable or illegal, the insurer is liable as for a total loss. But if the condemnation was caused by conditions having no connection with the fire, the insurer is liable only for the part destroyed by the fire.

Id.; see Rutherford v. Royal Ins. Co., 12 F.2d 880, 881 (4th Cir.1926).

Finally, in reversing for the entry of judgment for the insured, I would specify that FWUA is entitled to a credit for any damages attributable to flood, an excluded peril under the windstorm policy. This gives some effect to the exclusion in the policy.

      . We do not consider whether a carrier who covered only one of multiple perils would be entitled to seek contribution from another carrier insuring a different peril that is also involved in the total damage. This case raises the issue only as to the liability of a carrier to the owner.

      . FWUA treats the $8,370 for debris removal, governmental permits and governmental inspection of repairs for compliance with building codes as outside of the cost of repairs, but without showing any reason therefor. We find no basis in the record to segregate such expenses from the total cost of repairs. They are reasonably and directly related to the repair of the damage and would not have been incurred but for the wind damage. We thus conclude that such costs are properly contained within the total cost of repairs.

      . Ordinance section 104.3(e) of the City of Fort Lauderdale provides:
      "When repairs and alterations amounting to more than 50% of the value of the existing building are made during any 12 month period, the building or structure shall be made to conform....”
      Making the building conform to current construction requirements of the city means that in fact it must be tom down and the site elevated. Thus by application of the Building Code the home had to be demolished because the total damage was greater than half its value. Both sides essentially accept the proposition that by operation of local law the building is a total loss.

      .Ordinance section 104.5 of the City of Fort Lauderdale provides:
      "the value of a building or structure shall be the estimated cost of constructing a new building of like size, design and materials at the site of the original structure, assuming such site to be clear and deducting therefrom an amount for depreciation, deterioration and damage before such proposed new construction is started/'
      We presume that the building official used this section 104.5 formula to reach an estimated value and thereby determined that the combined cost to repair of $127,662 is greater than half of ’whatever value amount he had arrived at.

      . Here of course, FWUA's fractional share is greater than half of the total damage. It covers the largest share of damage. We thus have no occasion to consider the "parade of horribles" suggested by FWUA when its covered peril might be responsible for, say, only 1% of the total damage.

      . To the contrary, "the record contains evidence emanating from plaintiff's adjustor to the effect that the cost of repairs for wind damage alone was more than half the value used by the building official and therefore that apportionment was "moot”.

      . I do not agree with the majority that we should include in the damage figure the $8,370 for debris removal, governmental permits, and repair inspection. Such costs do not amount to "repairs or alterations” within the meaning of City of Fort Lauderdale Ordinance section 104.3(e).

      . One court has described the state of affairs that led to the passage of valued policy statutes:

        Patterson, Essentials of Insurance Laws, s 32, p. 118, attributes the passage of valued policy statutes to the indifference of insurance agents to the amount of insurance which their customers needed; to the fact that agents received larger commissions by selling the insured needless protection; and to the fact that the honest insured paid unnecessary premiums and the dishonest insured was tempted to commit arson. But even so, according to Patterson, the insurance companies found it more economical to pay excessive claims than to make an appraisal of every property insured. Thus, the purpose of valued policy statutes is twofold: (1) To prevent overinsurance by requiring prior valuation; and (2) to avoid litigation by prescribing definite standards of recovery in case of total loss.

        Nathan v. St. Paul Mut. Ins. Co., 243 Minn. 430, 68 N.W.2d 385, 388 (1955) (citations omitted).


author: WOLF, C.J. ERVIN, J.,

text:
    James K. ELMAN, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 1D03-1433.
    District Court of Appeal of Florida, First District.
    June 24, 2004.
    Rehearing Denied July 28, 2004.

      Nancy A. Daniels, Public Defender; A. Victoria Wiggins, Assistant Public Defender, Tallahassee, for appellant.
    Charlie Crist, Attorney General; Thomas H. Duffy, Assistant Attorney General; Tallahassee, for appellee. ' '

      . "Paraphilia” is variously defined as "aberrant sexual activity; sexual deviation; expression of the sexual instinct in practices which are socially prohibited or unacceptable, or biologically undesirable.” Dorland’s Illustrated Medical Dictionary 967 (26th ed.1985).

   WOLF, C.J.

Appellant raises five issues challenging his civil commitment under part V of chapter 394, Florida Statutes (commonly referred to as the “Jimmy Ryce Act”). We find none of the issues raised have merit, but we briefly -comment on one: whether Florida’s Jimmy Ryce Act which provides for involuntary civil commitment of sexually violent predators violates the Americans with Disabilities Act by failing to include the least restrictive alternatives to qualified persons with disabilities. Whilé we seriously question whether Congress intended the Americans with Disabilities' Act to provide protection to sexually violent predators, we find it is unnecessary to reach that issue because we find the following passage from Westerheide v. State, 831 So.2d 93 (Fla.2002), to be dispositive:

[T]he statutory definition of a sexually violent predator renders less' restrictive alternatives inapplicable...: The statute requires a determination by clear and convincing evidence that the person is a sexually violent predator,- that is, the person “[sjuffers from a mental abnormality or personality disorder that makes the person likely to engage in acts of sexual violence if not confined in a secure facility for long-term control, care, and treatment.” § 394.912(10)(b), Fla. Stat. (2001) (emphasis added). Thus; if the person is amenable to less restrictive alternative treatment he or she does not meet the statutory definition of a sexually violent predator and is not subject to commitment under the Ryce Act.

Id. at 103 (emphasis in original).

The decision of the trial court is affirmed.

VAN NORTWICK, J., concurs; ERVIN, J., concurs'with opinion.

ERVIN, J.,

concurring.

In my judgment, Westerheide v. State, 831 So.2d 93 (Fla.2002), does not address the argument appellant raised, which appears to be that the Americans with Disabilities Act (ADA) preempts the involuntary civil commitment of a disabled person such as appellant, because the Act defines disability, among other things, as a “mental impairment that substantially limits one or more of the major life activities of such individual.” 42 U.S.C. § 12102(2)(A) (2002).' Appellant points out that he has been diagnosed with both paraphilia and an antisocial personality disorder, and that pertinent federal regulations implementing the ADA require placement of disabled persons in “setting[s] that enable[] individuals with disabilities to interact with nondisabled persons to the fullest extent possible.” Preamble to Regulation on Nondiscrimination on the Basis of Disability in State., and Local Government Services, 28 C.F.R. Pt. 35, App. A 450 (2002). He argues that total confinement in a secure facility for a disabled person such as himself, as required by the Jimmy Ryce Act, because of his designation as a sexually violent predator, is contrary to the dictates of the ADA, and requires reversal of the commitment order.

It appears, however, that the term “disability” does not include persons diagnosed with sexual disorders. In the Vocational Rehabilitation Act, 29 U.S.C. § 705(20)(F)(I) (2002), the term “individual with a disability” expressly excludes “transvestism, transsexualism, pedophilia, exhibitionism, voyeurism, gender identity disorders not resulting from physical impairments, or other sexual behavior disorders.” (Emphasis added.) The exclusion of sexual behavior disorders from the definition of disability in the Vocational Rehabilitation Act can be construed as applying to the ADA as well. See Coleman v. Zatechka, 824 F.Supp. 1360 (D.Neb.1993) (observing that the ADA provides persons with disabilities the same rights and remedies as provided under Rehabilitation Act); Galloway v. Superior Ct. of D.C., 816 F.Supp. 12 (D.D.C.1993).

I therefore join the majority in affirming the commitment order, but for reasons different from those expressed by the majority.

      . § 394.912(10)(a), Fla. Stat. (2002)

      . The appellee has cited 42 U.S.C. § 12111, as containing the same language in the ADA; however, that exclusion no longer exists in the ADA.


author: ORFINGER, J.

text:
    Arneli WAITS, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-617.
    District Court of Appeal of Florida, Fifth District.
    June 25, 2004.

      Arnell Waits, Wewahitehka, Pro Se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Allison Leigh Morris, Assistant Attorney General, Daytona Beach, for Appellee.
   ORFINGER, J.

Arnell Waits appeals the summary denial of his motion to correct sentence filed pursuant to Florida Rule of Criminal Procedure 3.800(a). Relying on Taylor v. State, 818 So.2d 544 (Fla. 2d DCA 2002), Waits contends that his classification as‘a prison releasee reoffender (PRR) was improper because Chapter 99-188, Laws of Florida, amending the PRR statute, effective July 1, 1999, was found to be unconstitutional due to its violation of the single subject requirement of the Florida Constitution. Waits alleged that he committed his offense during the period between the unconstitutional enactment of the amended statute and the legislature’s reenactment of the changes curing the constitutional infirmity.

After Taylor declared Chapter 99-188 unconstitutional, the Legislature reenacted the provisions of Chapter 99-188 in separate laws, in an effort to cure the constitutional violations. See Ch. 02-208-02-212, Laws of Fla. (reenacted Apr. 29, 2002). The Legislature attempted to give these reenacted statutes retroactive effect, and this court initially held that the reenacted statutes could be applied retroactively. See Hersey v. State, 831 So.2d 679 (Fla. 5th DCA 2002). Relying on Hersey, the trial court properly denied Waits’ 3.800(a) motion. However, we have since receded from Hersey in an en banc opinion, concluding that the reenactment of the relevant statutes could not be applied retroactively without violating ex post fac-to clauses of the federal and state constitutions. See Jones v. State, 872 So.2d 938 (Fla. 5th DCA 2004).

We cannot determine from the limited record before us whether Waits was adversely affected by the unconstitutional amendments to the PRR statute contained in Chapter 99-188. Chapter 99-188 did not create the PRR statute. It simply made some changes to a preexisting PRR statute. If Waits qualified as a prison releasee reoffender under the prior statute, he was not adversely affected by the unconstitutional revision and would not be entitled to relief. See generally State v. Broum, 655 So.2d 82 (Fla.1995). Because the rule 3.800(a) motion filed by Waits does not demonstrate that his sentence is illegal on its face, we. affirm the trial court’s denial. However, we do so without prejudice to his filing an amended motion, which demonstrates that he was adversely affected by Chapter 99-188, Laws of Florida. See Heggs v. State, 759 So.2d 620 (Fla.2000).

AFFIRMED WITHOUT PREJUDICE.

SAWAYA, C.J. and MONACO, J., ■ concur.


author: MAY, J.

text:
    David MARKIN, Petitioner, v. Susan MARKIN, Respondent.
    No. 4D04-719.
    District Court of Appeal of Florida, Fourth District.
    June 28, 2004.
    Rehearing Denied Aug. 12, 2004.

      Denise C. Desmond and Joel M. Weiss-man of Weissman, Yaffa & Desmond, P.A., West Palm Beach, for petitioner.
    Philip M. Burlington of Philip M. Burlington, P.A., and Jeffrey D. Fisher of Fisher & Bendeck, P.A., West Palm Beach, for respondent.
   MAY, J.

The former husband petitions this court for a writ of prohibition to prevent the trial court from proceeding with a receivership action related to the final dissolution of marriage. He argues that this court’s order in the appeal from the judgment of dissolution, requiring him to post a bond to effectuate a stay, prohibits the trial court from proceeding in the receivership action because he posted the cash bond. We agree, grant the petition, and issue the writ.

On January 14, 2003, the trial court entered a final judgment of dissolution of marriage. Pursuant to that judgment, a corporation wholly owned by the parties, One Hundred El Vedado Way, Inc., was ordered to be sold with the proceeds to be divided equally. The judgment required the former husband to pay the former wife $33,106,816 in cash as part of the equitable distribution of assets.

The former husband appealed the final judgment and moved for a stay. The trial court denied the motion. This court then issued an order granting a motion to review the stay. However, this court subsequently sua sponte vacated the stay.

The former husband filed a separate civil action against the former wife for trespass. She counterclaimed and requested a receiver to take control of the corporation. The parties agreed to transfer this case to the judge presiding over the dissolution.

The former wife then filed a verified motion to dismiss the appeal from the judgment of dissolution. This court denied the motion to dismiss, but ordered the former husband to post collateral of $25 million into the court registry “to secure the remainder of the equitable distribution payment required by the final judgment, should he not eleqt to pay the remainder in cash....” On November 3, 2003, this court clarified its order, directing the former husband to post a $25 million cash bond into the registry of the circuit court.

The former husband posted the bond and moved for an automatic stay of that portion of the final judgment requiring him to pay $22,106,816. The trial court denied the stay indicating it lacked jurisdiction to grant the motion, but then granted the former wife’s request for an appointment of a receiver. That order is the subject of another separate appeal. The former husband then filed this petition seeking to prevent the trial court from further proceedings in the receivership action.

Prohibition lies where a trial court is about to act in excess of its'Subject matter jurisdiction. Markham V; Moriarty, 575 So.2d 1307 (Fla. 4th DCA), cert, denied, sub. nom., 502 U.S. 968, 112 S.Ct. 440, 116 L.Ed.2d 458 (1991). Prohibition will not lie to compel the undoing of something already done, such as an order already entered. Bender v. First Fid. Sav. & Loan Ass’n of Winter Park, 463 So.2d 445 (Fla. 4th DCA 1985), approved, 491 So.2d 276 (Fla.1986). Thus, to the extent petitioner seeks prohibition of the order granting the motion to appoint receiver, prohibition does not lie. It does lie to prevent future action by the trial court.

The former husband argues that the underlying equitable distribution portion of the final judgment is a “money judgment” subject to the automatic stay provisions of Florida Rule of Appellate Procedure 9.310(b)(1). The rule provides that “[i]f the order is a judgment solely for the payment of money, a party may obtain an automatic stay of execution pending review, ... by posting a good and sufficient bond equal to the principal amount of the judgment plus twice the statutory rate of interest on judgments on the total amount on which the party has an obligation to pay interest.” Fla. R.App. P. 9.310(b)(1). The former wife responds that the judgment is not “solely for the payment of money” because it also requires property to be marketed and sold with the proceeds to be distributed. We need not reach this issue because this court’s prior stay order controls the disposition of this petition.

Whether automatic or discretionary, this court has previously ordered a stay conditioned on the posting of a substantial bond in the underlying appeal from the final judgment of dissolution. The former husband has posted the bond. This stayed any further action by the trial court that affects the final judgment of dissolution as it relates to equitable distribution. We must give effect to the prior stay order of this court. We therefore grant the petition and direct the trial court to refrain from any proceedings affecting the equitable distribution ordered in the final judgment of dissolution.

STEVENSON and GROSS, JJ., concur.


author: WARNER, J.

text:
    Angel RIVERA, Appellant, v. STATE of Florida, Appellee.
    No. 4D02-2543.
    District Court of Appeal of Florida, Fourth District.
    June 30, 2004.

      Carey Haughwout, Public Defender, and David John McPherrin, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Daniel P. Hyndman, Assistant Attorney General, West Palm Beach, for appellee.
   ON MOTION TO CORRECT WRITTEN OPINION

WARNER, J.

We grant appellants motion to correct our written opinion to reflect that appellant was convicted of battery on a law enforcement officer, not aggravated battery, withdraw our previously issued opinion, and substitute the following in its place.

Angel Rivera (“Rivera”) appeals his sentences as a prison releasee reoffender (“PRR”) and habitual felony offender (“HFO”), contending that the evidence offered by the state to prove his recent release from prison on another charge was legally insufficient to prove that he was the defendant in that conviction, because his fingerprints were illegible. The trial court did not rely on that conviction to support its order. Instead, the court relied on two prior convictions that contained legible fingerprints of Rivera. However, because these convictions would not qualify Rivera either as a PRR or a HFO, we reverse.

Rivera was convicted of battery on a law enforcement officer and resisting arrest with violence. The state sought the imposition of enhanced penalties under the Prison Releasee Reoffender Act and as a habitual offender. At the sentencing hearing, the state presented three convictions of Rivera. A fingerprint analyst with the Broward County Sheriffs Office testified that she compared a set of fingerprints taken from Rivera in court to three certified copies of convictions. In cases numbered 95-10861 (burglary of a dwelling and grand theft) and 95-01862 (burglary of a dwelling and petit theft), the fingerprints on the copies of conviction matched Rivera’s prints. The analyst was not able to obtain a comparison of Rivera’s prints to those on the copy of conviction in case number 99-8186 because the prints on the copy were of bad quality. Rivera denied that he was convicted in case 99-8186.

The state presented an affidavit of Dianne Thompson, correctional services assistant administrator of the Central Records. Office with the Florida Department of Corrections, in which she averred “that the last release date for inmate Angel Rivera, DC #997213, H/M, DOB: 10/17/78, was August 1, 2000, case # 99-8186, Broward County, Florida.” The affidavit did not include the release dates from prison for Rivera’s 1995 convictions for which fingerprint identification was confirmed. In ruling on Rivera’s status, the court first said to the state, “You have one [set of] fingerprints that were identifiable.” The State responded, “Two.” The court noted that two was all that was needed under the statute, and the prosecutor qualified .his response, explaining that he needed. one qualifying offense with another offense within five years of the offense. The court stated that the two convictions satisfied that, to which the state responded, “Right.” Based upon this evidence, the trial court determined-Rivera was a PRR and sentenced him to the five-year minimum mandatory term. It also found Rivera was a HO and sentenced him to five years and one day, to run concurrently.

Rivera filed a Florida Rule of Criminal Procedure 3.800(b)(2) motion to correct sentencing error in which he argued the court erred in designating him a HO and PRR because these designations were Pot supported by the evidence presented at the sentencing hearing. The state responded, noting that the court had entered its sentence based upon the proved 1995 convictions and not the 1999 conviction for which fingerprint evidence was unavailable. The court denied the motion. This appeal follows.

In order to sentencé Rivera as a PRR, the state had to prove that Rivera committed the current crime, constituting an offense involving the threat or use-of physical force or violence against an individual, within three years of release from a state correctional facility. See 775.082(9)(a)l.o., Fla. Stat. (2002). The trial court relied on Rivera’s two 1995 convictions to support his enhanced sentence. It does not appear that the court had before it evidence of when Rivera was released from these 1995 crimes, although a printout of his prior incarceration history is .in the record. Even if this printout was properly admitted into evidence, it shows that Rivera.was released from prison on these charges more than three years before committing the current crime. Therefore, the court erred in determining that Rivera was a PRR based upon the 1995 convictions.

With respect to the habitual offender sentence, the trial court may impose an HFO sentence if the defendant has been convicted of two or more felonies, and the instant felony was committed within five years of either the conviction date or the date of release from incarceration or supervision imposed as a result of the prior felony. See § 775.084(l)(a), Fla. Stat. (2002). In order to constitute a qualifying offense for HFO purposes, “the felony must have resulted in a conviction sentenced separately prior to the current offense and sentenced separately from any other felony conviction that is to be counted as a prior felony.” § 775.084(5). It does not appear that the court had information before it to make such findings. However, if the prior incarceration history was considered, it shows that the two 1995 crimes were sentenced on the same day. Therefore, it is highly probable that they did not meet the statutory test. Because the record does not support the imposition of HFO status, the sentence must be vacated. See Boyd v. State, 776 So.2d 817, 318-19 (Fla. 4th DCA), rev. denied, 792 So.2d 1213 (2001).

In arguing for affirmance, the state relies on the 1999 conviction for which no fingerprint identification exists. The trial court did not rely on this conviction, and we assume it was because no fingerprint identification connected it to Rivera, as the court questioned how many convictions were proved by fingerprints. Nevertheless, the state suggests that even though the conviction was not proved by fingerprints, the prison record custodians affidavit attested that Angel Rivera, with a birthdate the same as this appellant, was released from incarceration for that 1999 conviction in August 2000. We deem this affidavit to be insufficient when the state did not connect the underlying conviction to Rivera. We have approved identification for sentencing purposes based upon a photograph of the defendant, rather than fingerprints, see Wencel v. State, 768 So.2d 494, 495 (Fla. 4th DCA 2000), but we have never approved a finding that evidence of the same name and birthdate constitutes proof of the defendants conviction or release status. While Stabile v. State, 790 So.2d 1235, 1238 (Fla. 5th DCA 2001), approved a prison records custodians affidavit attesting to the defendants prison release date as admissible under the business records exception to the hearsay rule, section 90.803(6), Florida Statutes (2000), the state also connected the defendant to that conviction through testimony of a deputy sheriff who fingerprinted the defendant for the conviction on which the prison release information was provided. Here, there was no evidence connecting Rivera to the 1999 conviction, and the affidavit of the custodian was insufficient to meet the requirements of section 90.803(6).

For these reasons, we reverse the sentences of Rivera and remand for resen-tencing. If the state can prove the 1999 conviction is of Rivera, and his release date for that conviction, then it is not precluded from again seeking a prison re-leasee reoffender or habitual offender sentence for Rivera. See Osborne v. State, 820 So.2d 1046, 1048 (Fla. 4th DCA 2002); Cameron v. State, 807 So.2d 744, 745 (Fla. 4th DCA 2002).

STEVENSON and GROSS, JJ., concur.


text:
    George Clark MULLIGAN, Petitioner, v. Robin French MULLIGAN, Respondent.
    No. 4D04-1328.
    District Court of Appeal of Florida, Fourth District.
    June 30, 2004.
    Daniel Bachert of Ford & Bachert, P.A., West Palm Beach, for petitioner.
    Robin French Mulligan, Hobe Sound, pro se.
   PER CURIAM.

George Mulligan, the husband, petitions for a writ of prohibition seeking review of an order denying his motion to disqualify Judge Larry Schack from the dissolution of marriage proceedings. The husband raises several grounds for disqualification, but we find only one ground has merit.

In an unrelated family law case, Landi v. Landi, Case No. 02-515-FS, Judge Schack sent a letter to the wife’s attorney and explained that, as a result of his friendship with the husband’s attorney, Noel Bobko, Judge Schack did not feel comfortable addressing a motion seeking attorney’s fees against Mr. Bobko. The letter stated:

Mr. Bobko and I are friends. That fact has not, and will not ever impact a ruling concerning clients in a case in which Mr. Bobko is counsel. Mr. Bobko does not have any expectations to the contrary. The friendship between an attorney and a judge, without more, is factually and legally insufficient to call for recusal or disqualification. I do not feel any need to disqualify.
As permitted by the statute, the wife’s 57.105 motion seeks fees and costs against both Mr. Landi and Mr. Bobko. I have no difficulty addressing the motion as it relates to Mr. Landi. I will not be comfortable addressing the motion as it relates to Mr. Bobko. Thus, please let me know if your client is intending to pursue the fees against Mr. Bobko. If so, I will need to ask court administration to assign another judge to hear the 57.105 motion.

As a result of the letter, the wife moved to recuse Judge Schack, stating that she feared he could not be impartial in ruling on the remaining issues in the case. Judge Schack granted the motion and ordered that the Landi case be reassigned.

Mr. Bobko represents the wife in this case. The husband moved to disqualify Judge Schack based on the recusal in Lan-di because the judge specifically acknowledged that his friendship with Mr. Bobko would affect the court’s ability to hear certain matters relating to Mr. Bobko and his clients. The husband also argues that the court’s failure in this case to disclose the close relationship creates suspicion that he is concealing his friendship with opposing counsel and reinforces the husband’s fear that the judge is not impartial.

Disqualification of a trial judge is governed by Florida Rule of Judicial Administration 2.160. Rule 2.160(d)(1) provides “[a] motion to disqualify shall show ... that the party fears that he or she will not receive a fair trial or hearing because of specifically described prejudice or bias of the judge.... ” “If the motion is legally sufficient, the judge shall immediately enter an order granting disqualification and proceed no further in the action.” Fla. R. Jud. Admin. 2.160(f). The motion is legally sufficient if the alleged facts would give a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial. MacKenzie v. Super Kids Bargain Store, Inc., 565 So.2d 1332 (Fla.1990).

Landi involved the imposition of attorney’s fees against opposing counsel which is not at issue in this case. Nevertheless, the judge’s letter and the recusal in Landi and the failure to disclose his friendship with Mr. Bobko to the husband in this case create a reasonable fear that the judge will not be objective.

In Landi, Judge Schack was sufficiently concerned about his ability to be impartial that he sent counsel a letter indicating that he could not decide the attorney’s fees issue. The wife’s attorney in Landi and the husband in this case both question how the court could be impartial on some issues involving Mr. Bobko and not on others. Because the judge recused himself in Landi, the husband argues he should have recused himself in this case as well. “Any time a judge feels it is necessary to recuse himself from an attorney’s case on account of an overriding friendship with the attorney then he should do so in all, not just some of that attorney’s cases.” Leigh v. Smith, 503 So.2d 989, 991 (Fla. 5th DCA 1987).

The motion to disqualify was legally sufficient. Accordingly, we grant the husband’s petition for writ of prohibition.

TAYLOR, HAZOURI and MAY, JJ., concur.


author: PETERSON, J.

text:
    NANNIE LEE’S STRAWBERRY MANSION, etc., et al, Petitioners, v. CITY OF MELBOURNE, Florida, etc., Respondent.
    No. 5D03-4155.
    District Court of Appeal of Florida, Fifth District.
    July 2, 2004.
    Kimberly Bonder Rezanka, Dean Mead, Melbourne, for Petitioners.
    Maureen Monaghan Matheson, Reinman Matheson Kostro Vaughan & Durham, P.A., Melbourne, for Respondent.
   PETERSON, J.

Petitioners, Nannie Lee’s Strawberry Mansion and Spanish Trace, Inc., seek cer-tiorari review of a dismissal of a petition to the circuit court sitting in its appellate capacity. The petition before the circuit court sought certiorari review of the City of Melbourne Ordinance No.2002-63, approving Hynes Properties, LLC, (“Hynes”), site plan for a three building multi-use complex to be called the “Causeway Center” and granting a conditional use for a height variance.

While the petition was pending in the circuit court, Hynes sought and obtained a new 2003 ordinance that was designed to overcome the petitioner’s objections to the 2002 ordinance. The circuit court then found that it would serve no useful purpose to review the proceedings approving the superceded 2002 ordinance and that the new 2003 plan was not the subject of the attack. However, one issue did remain. The conditional use approved for the height variance had not been addressed by the 2003 ordinance and remained viable under the 2002 ordinance. The circuit court disposed of that remaining issue by finding that the facial validity of zoning codes must be brought before a trial court by a declaratory judgment action and not by certiorari.

The circuit court did not misapply the law in finding that the issues relating to the site plan approved by the 2002 ordinance were moot. In Godwin v. State, 593 So.2d 211 (Fla.1992), the supreme court stated:

An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect. A case is “moot” when it presents no actual controversy or when the issues have ceased to exist. A moot case generally will be dismissed.

Id. at 212 [citations omitted]. In Lund v. Department of Health, 708 So.2d 645 (Fla. 1st DCA 1998), the court announced that a case on appeal becomes moot when a change in circumstances occurs.before an appellate court renders its decision and makes it impossible for the court to provide effectual relief. We conclude that the circuit court applied the correct law when it ruled that the certiorari proceeding was moot when the 2002 site plan was super-ceded.

The circuit court also applied the correct law in determining whether.a constitutional challenge to a zoning ordinance could be raised in a certiorari petition. The circuit court held that constitutional challenges to a zoning ordinance must be raised in an original declaratory judgment action or other equitable proceeding in circuit court, not in a certiorari petition in a reviewing court. See, e.g., First Baptist Church of Perrine v. Miami-Dade County, 768 So.2d 1114, 1115 n. 1 (Fla. 3d DCA 2000), rev. den., 790 So.2d. 1103 (Fla.2001); Nostimo, Inc. v. City of Clearwater, 594 So.2d 779, 782 (Fla. 2d DCA 1992) (holding review of denial of zoning variance was properly brought as a declaratory judgment action in circuit court rather than by certiorari, where action was challenging not only the application of a zoning code section but also its very validity or constitutionality); Bama Investors, Inc. v. Metropolitan Dade County, 349 So.2d 207 (Fla. 3d DCA 1977), rev. den., 359 So.2d 1217 (Fla.1978); Harris v. Goff, 151 So.2d 642 (Fla. 1st DCA 1963) (finding suits in equity seeking injunctive relief against a zoning ordinance on the ground that it is arbitrary, capricious, confiscatory, or impinges on some constitutional right has long been the traditional method of assaulting the validity of zoning ordinances). It would likewise be improper for this court in a second-tier certiorari proceeding to determine the constitutionality of the City’s zoning code. See Miami-Dade County v. Omnipoint Holdings, Inc., 863 So.2d 195 (Fla.2003) (holding district court in a second-tier certiorari proceeding cannot sua sponte determine the constitutionality of a statute or ordinance).

However, the circuit court misapplied the law in dismissing the Certiorari petition in its entirety. The conditional use height variance, which was approved by the 2002 ordinance, was not affected by the 2003 ordinance, which only approved a new site plan. Not all of petitioners’ evi-dentiary arguments were related solely to the site plan which was superceded by a subsequent site plan, and not all of petitioners’ arguments concerning the conditional use were grounded on constitutional issues. Although petitioners raised minor issues concerning the propriety of the height variance, those issues were not addressed and the circuit court erred by dismissing the petition as moot when those issues remain pending.

We grant the petition and quash the appellate opinion in part, because the circuit court did not afford certiorari review of the evidence supporting the conditional use for a height variance approved by the 2002 ordinance.

PETITION GRANTED; OPINION QUASHED IN PART.

PLEUS and PALMER, JJ., concur.


text:
    Ricardo L. JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D04-843.
    District Court of Appeal of Florida, Fifth District.
    July 2, 2004.
    Ricardo L. Johnson, Chipley, pro se.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lori N. Hagen, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Defendant, Ricardo Lopez Johnson, appeals the summary denial of his Florida Rule of Criminal Procedure 3.800(a) motion. Because the trial court erroneously found that Defendant’s motion was based on an identical issue previously raised on direct appeal and thus barred by the law of the case, we reverse.

Defendant initially entered an open no contest plea. Although the State argued that Defendant should be sentenced as a habitual felony offender, the trial judge imposed a straight ten-year sentence. Defendant later successfully moved to withdraw his plea and was tried and convicted before a different judge. This judge sentenced Defendant to thirty years as a habitual violent felony offender, with a ten-year minimum mandatory term. Defendant appealed, arguing that the sentence imposed was retaliatory and vindictive in light of his earlier ten-year sentence. His argument was rejected, and his conviction and sentence were affirmed by this court. See Johnson v. State, '703 So.2d 486 (Fla. 5th DCA 1997). Defendant then launched the instant collateral attack. He alleged in his rule 3.800(a) motion that after he was allowed to withdraw his plea, the new judge, who had participated in plea negotiations resulting in the rejected ten-year plea offer, then sentenced him to the much harsher habitual violent felony offender sentence. Accordingly, Defendant claimed that his new sentence was vindictive.

The issue asserted in the 3.800(a) motion is cognizably distinct from the issue raised on direct appeal. The direct appeal involved an open plea before one judge and a harsher sentence imposed by a different judge after the plea was withdrawn and Defendant was tried. The instant 3.800(a) motion, on the other hand, challenged a sentence imposed by a judge who participated in failed plea negotiations. Therefore, the issue raised in the rule 3.800(a) motion is not barred by the law of the case. See State v. McBride, 848 So.2d 287, 289-90 (Fla.2003) (observing that questions of - law actually decided on appeal constitute the law of the case through all subsequent proceedings); see also Ferro v. State, 782 So.2d 948 (Fla. 5th DCA 2001) (holding that rule 3.800(a) motion should not have been denied as successive where precise issue argued had not been previously raised). “ ‘[Wjhen the judge has been involved in the plea negotiation and then later imposes a harsher sentence [than the one contemplated in the failed negotiations], the sentence is presumed to be vindictive’ ” and the “ ‘presumption may be overcome only if the record affirmatively demonstrates that the defendant’s insistence on a trial was given no consideration at sentencing.’ ” Harris v. State, 845 So.2d 329, 330 (Fla. 2d DCA 2003) (quoting McDonald v. State, 751 So.2d 56, 58 (Fla. 2d DCA 1999)). A review of the totality of the circumstances- is required to determine whether the harsher sentence is vindictive. See Wilson v. State, 845 So.2d 142 (Fla. 2003).

As the trial court in this case incorrectly denied the'motion as barred by the law of the case, the order denying Defendant’s rule 3.800(a) motion is reversed and the case is remanded for consideration of Defendant’s motion in light of the totality of the circumstances.

REVERSED and REMANDED.

SAWAYA, C.J., PETERSON and MONACO, JJ., concur.


author: PLEUS, J.

text:
    R.M., Father of S.M., A.M. and J.M., Children, Appellant, v. DEPARTMENT OF CHILDREN AND FAMILIES, Appellee.
    No. 5D04-130.
    District Court of Appeal of Florida, Fifth District.
    July 2, 2004.
    Ryan Thomas Truskoski of Ryan Thomas Truskoski, P.A., Orlando, for Appellant.
    Charles D. Peters, Orlando, for Appel-lee.
   PLEUS, J.

R.M., father of S.M., A.M. and J.M., minor children, appeals from an order (entered in connection with a juvenile dependency action) entitled “Temporary Child Support Payments to Third Party,” requiring him to pay child support to the State of Florida. The father asserts he was denied substantive and procedural due process in connection with the assessment of $1006.00 per month in temporary child support.

In Case No. JUD-03-165, the Department of Children and Families (DCF) took R.M.’s three children into custody on September 15, 2003. DCF alleged in its shelter petition filed on September 16, 2003, that the children’s mother left the children at a friend’s house and did not return for them. The mother was drunk at the time of her interview and law enforcement arrested her for abandoning her children. The petition alleged that R.M., who worked as a long distance trucker, was contacted in Ohio by telephone and was returning to Florida.

A shelter hearing was held on September 16, 2003. According to the Order at Shelter Hearing entered on the same day by Judge Daniel Dawson, there was probable cause to believe the children were dependent. A guardian ad litem was appointed for the children and the mother was restricted to supervised contact with the children.

A dependency petition was filed by DCF on October 1, 2003. At the dependency arraignment held on October 23, 2003, the father was present. The father was adjudged insolvent and counsel was appointed for him. The father was ordered to attend a pre-trial hearing on December 10, 2003, and trial on December 15, 2003. The issue of child support was not raised at the arraignment. The father’s contact with the children was ordered to be supervised by DCF or an approved adult.

On November 24, 2003, an order labeled “Temporary Child Support Payments to Third Party” was entered “In the County Court in and for Osceola County” though it was signed by Circuit Judge Dawson. This order states that the “cause came before the undersigned on November 24, 2003” and recites that the children were in the custody of Mary Crawford. The order adjudicated that the father “shall pay child support of $1006.06 per month commencing on November 24, 2003,” for the three children. An income deduction order to this effect was entered by the circuit court on November 24, 2003. Both orders reflect a case number of DR-03-DJ-4715.

The father maintains that his substantive due process rights were violated because child support was ordered before a finding of dependency was made. He additionally claims his procedural due process rights were violated because he was not afforded notice and an opportunity to be heard at what he labels a “secret meeting” where the issue of temporary child support was adjudicated.

As the father recognizes, the instant temporary child support order stems from a Chapter 39, Florida Statutes, action for dependency. The father argues there is no authority for requiring him to pay child support for his children pending a determination of dependency. The father contends that his obligation to financially support his children disappears once they are taken into State protective custody and only reemerges after a dependency adjudication is entered.

The father cites no statutory or case law authority for such a construction of his duty to support his children. He argues that where the State takes his, children against his will, it cannot then force him to pay for their care, that essentially his children then become a public charge. We reject this contention. In a shelter proceeding, the court determines whether probable cause exists to believe the child is dependent, i.e., “has been abandoned, abused or neglected by the child’s parent or parents or legal custodians.” § 39.01(14)(a), Fla. Stat. Once such a probable cause finding is made and a lawful basis for sheltering a child is established, any claim that it is somehow a substantive due process violation for the State to require the parent, whose acts or omissions have necessitated State action, to financially provide for his or her child is without merit. Indeed, in Department of Health and Rehabilitative Services v. Powell, 490 So.2d 1043 (Fla. 2d DCA 1986), the Second District held that a finding of dependency by a court under Chapter 39 is not a necessary prerequisite to entry of a child support order at least in an action brought pursuant to Chapter 409, Florida Statutes.

More importantly, section 39.402(11), Florida Statutes, provides:

If a child is placed in a shelter pursuant to a court order following a shelter hearing, the court shall require in the shelter hearing order that the parents of the child or the guardian of the child’s estate, if possessed of assets which under law may be disbursed for the care, support, and maintenance of the child, ... to pay, to the department or institution having custody of the child, fees as established by the department.... The shelter order shall also require the parents to provide to the department and any other state agency or party designated by the court, within 28 days after entry of the shelter order, the financial information necessary to accurately calculate child support pursuant to s. 61.30.

This subsection contemplates that a shelter order require the parents “to pay, to the department” and provide the necessary financial information to calculate child support. The September 16, 2003 shelter order does not mention monies payable to DCF, nor does it require the parents to provide DCF with the requisite financial information relating to child support. Thus, while DCF claims the father had notice of the possible imposition of temporary child support by virtue of subsection 39.402(11), the shelter order failed to invoke the provisions of the subsection.

A fair reading of the subsection reflects that it does provide a basis for a temporary child support assessment to ultimately be entered against the parent(s). Thus, where the subsection is invoked in the shelter order, the parents are on notice that they may be subject to an assessment for temporary child support. However, the parents are still entitled under notions of procedural due process to be heard as to the amount of such assessment. See Hill v. Dep’t. of Children and Families, 835 So.2d 367 (Fla. 5th DCA 2003). There is no indication in the record that the father was accorded notice and an opportunity to be heard in connection with the entry of the order labeled “Temporary Child Support Payments to Third Party.”

DCF asserts that because the father has not provided a transcript of the shelter hearing, he cannot show reversible error. See Applegate v. Barnett Bank of Tallahassee, 377 So.2d 1150 (Fla.1979). Under subsection 39.402(11), the shelter hearing is not the hearing at which the amount of temporary child support is litigated and adjudicated. This is clear because the subsection provides that the shelter order require the parents to provide, within 28 days after its entry, the financial information necessary to calculate child support. In accordance with basic principles governing procedural due process, such assessment, in the absence of a waiver by the parent, is to be made after the parent is provided an opportunity to be heard on the issue of amount. DCF does not assert that subsequent to the entry of the shelter order a noticed hearing at which the issue of the amount of child support was considered, was held.

The absence of such a hearing is evident here. The father was adjudged insolvent at the October 23 arraignment, yet one month later was ordered to pay $1006.00 per month in child support. He was then adjudged insolvent for purposes of appeal. It is difficult to square these orders. See Downey v. Downey, 874 So.2d 734 (Fla. 4th DCA 2004). The cause is remanded for a noticed hearing on the issue of the amount of temporary child support.

AFFIRMED IN PART; REVERSED IN PART; REMANDED.

MONACO and TORPY, JJ., concur.

      . It is unclear why a second case number was assigned to these two orders.

      . Section 39.521 (l)(d)(7), Florida Statutes, governing disposition hearings provides that if a child is placed in an out-of-home placement following a finding of dependency, child support may be assessed against the parents in the disposition order. The father points out that this provision, while authorizing child support following a dependency adjudication, does not itself mention such an assessment prior to the disposition hearing. The statute, however, deals with post-disposition issues.

      . The duty to pay child support may derive from the common law, statute or contract. See Department of Health & Rehabilitative Services v. Holland, 602 So.2d 652 (Fla. 5th DCA 1992).