text:
    Robert THOMAS, Appellant, v. STATE of Florida, Appellee.
    No. 4D00-3469.
    District Court of Appeal of Florida, Fourth District.
    Nov. 20, 2002.
    Rehearing Denied Feb. 28, 2003.

      Carey Haughwout, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, West Palm Beach, for appellant.
    Richard E. Doran, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   TAYLOR, J.

We affirm appellant’s convictions for second degree murder and leaving the scene of an accident with death or serious bodily injury. We reverse appellant’s conviction for driving while license suspended and causing death and remand with instructions to reduce this conviction to misdemeanor driving while license suspended. We write mainly to discuss appellant’s contention that the trial court erroneously admitted testimony of a law enforcement officer which gave an improper opinion on the ultimate issue of appellant’s guilt or innocence.

In March 1998, appellant, Kenny Brown, and Bruce Quinton were building a drainage field in the backyard of the home where appellant lived with his girlfriend, Julie Brown. Kenny Brown is Julie’s brother. Bruce Quinton was an old friend of Julie’s family. On the morning of March 7,1998, Julie took appellant’s van to work, but later that day, appellant picked up the van at her workplace to retrieve some supplies for the drainage field project.

Julie left work around 4:00 p.m. but stopped at a bar to have six doubles before returning home. Kenny, Bruce, and appellant were all drinking while working that day. At approximately 9:00 p.m., Kenny and Bruce left the house and appellant said he was going to give them a ride home. Julie went to bed. When she woke up at around 11:00 p.m., she went into the living room and saw appellant and Bruce on the couch fighting. Appellant was on top of Bruce with his hands around Bruce’s neck; Bruce was yelling that appellant smoked crack. Julie told appellant to stop choking Bruce. He stopped and Bruce left. Upset that Bruce had accused him of smoking crack, appellant threatened to hit Bruce with his van and break his legs. Julie did not respond because she did not think appellant was serious. Appellant walked out the front door, got in the van, and drove down the street. A few minutes later, he returned home, saying, “I got him, baby. I got him, baby. I think I killed him.”

Appellant then asked Julie for a ride to a friend’s house. Julie drove him there in her Mustang. Afterward, Julie returned home and went to bed, hoping that what appellant said was not true. She woke up a little while later to the sound of knocking on her front door. Her mother’s boyfriend, Bob Pinto, told her there had been an accident and that Bruce was killed. Julie left a note for appellant to call her at her mother’s house and went to the scene. She admitted that she did not advise the police of appellant’s whereabouts when she was questioned and was not truthful with them because she wanted to protect appellant. At trial, she explained that her conscience led her to finally tell the whole story.

Other witnesses testified to hearing appellant, Julie, and Bruce arguing that night about appellant smoking crack; seeing appellant’s van traveling in the same direction as Bruce walked; hearing a car accelerate while coming down the street with little or no braking, followed by a crash; and later seeing appellant’s damaged van parked with the front end facing the house instead of the street, as was its usual position in the driveway.

Trooper Rodney Hylton, the lead investigator, interviewed Julie. She eventually told him where he could find appellant. When Sergeant Richard Glass went to that location around 6:00 a.m. the following morning, he found appellant there sleeping on the couch. Appellant agreed to accompany the sergeant outside, where the officer read him his Miranda rights and questioned him. At first, appellant was cooperative. However, when Sergeant Glass asked him how he got to his friend’s house, his temperament changed and he replied, “Why don’t you figure it out. You know how far I live from here.” When Sergeant Glass advised appellant that Bruce had been killed in a hit and run collision in appellant’s van, appellant did not respond or show any remorse or surprise. A key to the van was found in appellant’s pocket. Expert witnesses testified that a headlight lens fragment found at the scene matched the van’s broken headlight; DNA found on the van’s headlight belonged to the victim.

At trial, defense counsel cross-examined Trooper Hylton about whether he had reason to believe that Julie, rather than appellant, was the driver of the van that struck and killed the victim. The following exchange occurred:

[Defense Counsel]: So then it would be fair to say then that you had a question about your initial assumption that Robert Thomas was driving the van; didn’t you?
[Witness]: No, I don’t think so. The purpose of that question and the purpose of that deposition was because I knew that the morning that I took her statement, Julie’s statement, she was not telling me everything that was to be told.
[Defense Counsel]: And so you totally discounted the possibility that Julie Brown could have been the driver of that vehicle?
[Witness]: Yes.
[Defense Counsel]: Is that what you’re telling us?
[Witness]: Yes.
[Defense Counsel]: My question is: You totally discounted that Julie Brown could have been the driver of that vehicle; didn’t you?
[Witness]: Yes, sir.
[Defense Counsel]: Despite what you have learned during the statement? [Witness]: Yes, sir.

At the end of cross-examination, the following occurred:

[Defense Counsel]: Trooper, isn’t it a fact that when Julie Brown was issued this subpoena you had real concerns about whether you had the right person in custody; isn’t that the real truth? [Witness]: No, sir.
[Defense Counsel]: No, sir? You had no doubt in your mind, huh, is that what you’re telling this Court?
[Witness]: Yes, sir.

On redirect examination of Trooper Hyl-ton, the following occurred:

[Assistant State Attorney]: You had the weekend to listen, to consider some possibilities. And my questions [sic] is: Have you wavered in your conviction that this defendant was the driver of that van on that morning?
[Defense Counsel]: Objection. Improper question. Could we approach?
The Court: Sure.

During a sidebar conference, the following occurred:

[Defense Counsel]: Judge, I move for a mistrial. This is an improper question. It calls for this officer to make the ultimate conclusion of the case and causes problems for the jury.
The Court: Okay.
[Assistant State Attorney]: He’s an expert. He’s the lead investigator in this case. And [defense counsel] spends a great portion of the voir dire and opening statements saying this is Trooper Hylton’s opinion in what happened in this case, in letting him be here today. He also covered in direct examination on Friday’s cross examination.

The trial court overruled the objection and denied the motion for mistrial. Thereafter, the state continued its re-direct examination of the trooper:

[Assistant State Attorney]: Having had the weekend to consider the questions you were asked on cross examination, have you wavered in your conviction that this defendant was the driver of that van?
[Witness]: No, sir.

Appellant argues on appeal that the trial court erred by allowing Trooper Hylton to state his opinion on the ultimate issue of guilt and denying appellant’s motion for mistrial. The state’s response is three-fold. First, the state contends that Trooper Hylton did not give an opinion on an ultimate issue of guilt or innocence because appellant’s status as the driver of the van was not the ultimate issue in this case. Second, the state argues that even if Trooper Hylton’s testimony did concern the ultimate issue of guilt, defense counsel opened the door to such testimony on cross examination. Finally, the state contends that any error in admitting the testimony was harmless.

It is well established that a witness’s opinion as to the guilt or innocence of the accused is not admissible. See Martinez v. State, 761 So.2d 1074, 1079 (Fla.2000). In Martinez, the supreme court explained that a witness’ opinion of guilt testimony impermissibly invades the province of the jury. It further noted that “there is an increased danger of prejudice when the investigating officer is allowed to express his or her opinion about the defendant’s guilt ... [it] could convey the impression that evidence not presented to the jury, but known to the investigating officer, supports the charges against the defendant.” Id. (citing United States v. Young, 470 U.S. 1, 18-19, 105 S.Ct. 1038, 84 L.Ed.2d 1(1985)).

Under the facts and circumstances of this case, Trooper Hylton’s testimony that he believed appellant was the driver of the van amounted to an opinion that appellant was guilty of the charged offenses. This is so because the circumstantial evidence strongly indicated that the van was the weapon used to strike and kill the victim. See Sosa-Valdez v. State, 785 So.2d 633, 635 (Fla. 3d DCA 2001) (holding that remarks by lead detective that the robbery victim was not involved in some sort of set up constituted reversible error because such testimony was equivalent to the detective giving his opinion that the defendants were guilty, since their entire defense was predicated on the theory that the victim had staged his own robbery).

We thus conclude that admission of Trooper Hylton’s testimony was error. However, based on our review of the record, we agree with the state’s contention that such error was invited by the defense during its cross examination of the trooper. Defense counsel repeatedly asked the Trooper Hylton whether he was sure appellant was the person who was driving the van. Though this line of questioning was no doubt calculated to highlight deficiencies in the trooper’s investigation, it nonetheless opened the door to the state’s redirect examination clarifying the trooper’s position, based on his investigation.

“ ‘As an evidentiary principle, the concept of ‘opening the door’ allows the admission of otherwise inadmissible testimony to ‘qualify, explain, or limit’ testimony or evidence previously admitted.’ ” Overton v. State, 801 So.2d 877, 900 (Fla.2001)(quoting Ramirez v. State, 739 So.2d 568, 579 (Fla.1999)). “The notion of ‘opening the door’ is premised on ‘considerations of fairness and the truth-seeking function of a trial.’ ” Id. (quoting Ramirez, 739 So.2d at 579). Here, the state’s questions on redirect examination did not exceed the scope of cross examination and related back to the trooper’s previous testimony. As such, the testimony was properly admitted. See Hodges v. State, 595 So.2d 929, 932 (Fla.1992), vacated on other grounds, 506 U.S. 803, 113 S.Ct. 33, 121 L.Ed.2d 6 (1992), reaff'd on remand, 619 So.2d 272 (Fla.1993)(holding that the defense opened the door to prosecutor’s questions on redirect examination about the prosecutor’s personal belief that the witness was untruthful during his initial interview when questioning the detective about the interview).

With respect to appellant’s final point on appeal, we accept the state’s concession at oral argument that appellant’s conviction for driving while license suspended and causing the death of another human being cannot stand and should be reduced to misdemeanor driving while license suspended. Here, as a result of Bruce Quinton’s death, appellant was convicted of the offenses of second degree murder, pursuant to section 782.04(2), Florida Statutes, and driving while license suspended and causing death, pursuant to section 322.34(6), Florida Statutes. Double jeopardy principles prohibit convicting and sentencing appellant for the two homicide offenses arising out of a single death. See State v. Cooper, 634 So.2d 1074, 1074-75 (Fla.1994)(holding that a defendant cannot be convicted and sentenced for both DUI manslaughter and driving while license suspended and causing death where there is only a single death, but noting that the defendant can be convicted of the lesser offense of driving while license suspended); Houser v. State, 474 So.2d 1193, 1196 (Fla.1985)(holding that, based on double jeopardy principles, only one homicide conviction and sentence may be imposed for a single death); Pierce v. State, 718 So.2d 806, 810 (Fla. 4th DCA 1997)(holding that double jeopardy prohibited convicting defendant of both causing death while driving with suspended license and vehicular homicide).

AFFIRMED in part; REVERSED in part and REMANDED with instructions to reduce Count III (third degree felony driving with suspended license and causing death) to misdemeanor driving with a suspended license.

WARNER and FARMER, JJ„ concur.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    HENRY LEE COMPANY, Appellant, v. Georgino Camejo HERNANDEZ, Appellee.
    Nos. 3D02-28, 3D02-595.
    District Court of Appeal of Florida, Third District.
    Nov. 27, 2002.
    Rehearing and Certification Denied Feb. 14, 2003.

      Vernis & Bowling, Clearwater; Hicks, Anderson & Kneale and Ralph 0. Anderson and Fleur J. Lobree, Miami, for appellant.
    Michael Seth Cohen, for appellee.
    Before COPE, FLETCHER and SHEVIN, JJ.
   PER CURIAM.

Affirmed. Nash v. Wells Fargo Guard Servs., Inc., 678 So.2d 1262 (Fla.1996); Cox v. Shelley Tractor & Equip., Inc., 495 So.2d 841 (Fla. 3d DCA 1986).


author: HAZOURI, J.

text:
    Christopher MILLER, an interested party and beneficiary of the Estate of Elaine Benedict Baer and Joyce Mussano, Personal Representative of the Estate of Elaine Benedict Baer, Appellants, v. ESTATE OF Elaine Benedict BAER, and Citibank, FSB, Appellees.
    Nos. 4D01-3763, 4D01-4792, 4D02-53.
    District Court of Appeal of Florida, Fourth District.
    Dec. 11, 2002.
    Rehearing Denied Feb. 26, 2003.
    Jay B. Watson of Asbury & Watson, P.A., Jacksonville, for appellant Christopher Miller.
    Kimberly L. Boldt of Angelo, Barry & Boldt, P.A., Fort Lauderdale, for appellant Joyce Mussano.

      Jack A. Falk, Jr. of Dunwody, White & Landon, P.A., Coral Gables, for appellee Citibank, FSB.
   HAZOURI, J.

This consolidated appeal involves orders entered in a probate proceeding in which Citibank sought to enforce its claim against the Estate of Elaine Benedict Baer. After conducting an evidentiary hearing, the trial court ruled in favor of Citibank enforcing its claim against the estate, requiring the return of improper distributions to beneficiaries, Christopher Miller and Lisa Benedict that resulted in a shortfall in estate assets to pay Citibank’s claim, and holding the personal representative, Joyce Mussano, personally responsible for the shortfall in the estate’s assets which were insufficient to pay Citibank’s claim. We affirm.

In 1994 and 1995, Citibank loaned $250,000 and then $150,000 to a general partnership called “Elaine Benedict Baer” that was engaged in the clothing business. The general partners of the partnership were Elaine Benedict Baer, her husband, Martin Baer, and Donald Drotman. As a general partner, Elaine Benedict Baer signed the Citibank loan documents evidencing the loan and also signed as an individual guarantor of the indebtedness.

Elaine Benedict Baer died on September 23, 1996. Joyce Mussano was appointed personal representative of her estate. The petition for administration was filed on November 5, 1996. Under the statutes that existed at the time of the decedent’s death, section 733.212(1), Florida Statutes (1995), required that the personal representative promptly publish a notice of administration containing the name of the decedent and other relevant information so that the creditor could file a claim against the estate. In addition, section 733.212(4)(a) provided:

The personal representative shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable and shall serve on those creditors a copy of the notice within 3 months after the first publication of the notice. Impracticable and extended searches are not required ...

Pursuant to section 733.702(1), Florida Statutes (1995), creditors had three months after the time of the first publication of the notice of administration to file their claim against the estate or it was time barred. Mussano complied with section 733.212(1) and published a notice of administration on December 4,1996.

Creditors that were not entitled to actual notice under section 733.212(4)(a) had until March 4, 1997, to file their claims or be time barred. Citibank was not directly served with a notice of administration regarding the decedent’s estate and also failed to file its claim before the non-claim period ended on March 4, 1997. Citibank did not file its petition for extension of time to file claim until August 24, 1998, almost two years after Elaine Benedict Baer died. The essential issue in this consolidated appeal is whether the trial court abused its discretion in allowing Citibank to file its claim after the expiration of the non-claim period on the grounds of insufficient notice.

The appellants contend that the lower court erred in determining that Citibank was a reasonably ascertainable creditor of the decedent, thereby entitling Citibank to actual notice of the administration of the estate. Appellants argue that Citibank was a contingent creditor and as such rely on this court’s holding in U.S. Trust Co. of Florida Savings Bank v. Haig, 694 So.2d 769 (Fla. 4th DCA 1997) (reversing an order granting a motion to extend time to file a claim against the estate because the claim was contingent or conjectural and, therefore, the creditor was not entitled to actual notice).

In Haig, appellees purchased a residence from the decedent. In return, the decedent received a purchase money mortgage on the residence and also executed a five-year guaranty in favor of appellees. The guaranty provided that a portion of the house would be free from leaks and cracks caused by structural defects. In the event a defect appeared within the guaranty period, the decedent would repair it or appellees would be entitled to a set-off against the mortgage. The guaranty also set forth a procedure for making claims under the agreement. Id. at 770.

Appellees argued that they were entitled to actual notice of the claims period because they were a reasonably ascertainable creditor of the decedent’s estate. This court found, upon review of the record, that appellees’ claim was contingent because in order for a cause of action to accrue under the guaranty agreement, ap-pellees would have to prove that there was a defect that was covered under the guaranty. Id. at 771. Furthermore, even if it could be determined that the alleged defects were covered under the guaranty, the amount of the potential claim had yet to be quantified at the time of the decedent’s death.

Unlike Haig, in the instant case the amount of the guaranty was clearly defined. When Elaine Benedict Baer died on September 23, 1996, she was not only an obligor of the Citibank debt, as a general partner of the partnership, she was also a guarantor. The loan documents clearly state that her death constituted a default of the Citibank loans, thereby making her personally liable on the guaranty.

At the trial court, there was a factual dispute as to whether the estate had actual knowledge of the claim. The trial court conducted an evidentiary hearing and concluded that Citibank was a known or reasonably ascertainable creditor of the estate at the time of the decedent’s death and, therefore, was entitled to actual notice, not simply notice by publication. See Tulsa Prof'l Collection Serv., Inc. v. Pope, 485 U.S. 478, 485, 108 S.Ct. 1340, 99 L.Ed.2d 565 (1988) (holding that if a party’s identity as a creditor is known or reasonably ascertainable, due process requires the personal representative to give notice by any means that is certain to ensure actual notice of the running of the non-claim period).

The standard of review is whether the trial court abused its discretion. See Estate of Ortolano v. Goforth, 766 So.2d 330, 332 (Fla. 4th DCA 2000); Estate of Vickery, 564 So.2d 555, 558 (Fla. 4th DCA 1990). Upon review of the record of the evidentiary hearing, we hold that there is substantial competent evidence to support the trial court’s decision. We find that the trial court did not abuse its discretion.

We do not find the remaining points raised by the appellants to be persuasive and affirm without discussion.

POLEN, C.J., and GUNTHER, J., concur.

      . Lisa Benedict is not a party to this appeal.

      . Effective January 1, 2002, section 733.212 was re-written and section 733.2121, Florida Statutes was added. Section 733.2121 (3)(a) provides: The personal representative shall promptly make a diligent search to determine the names and addresses of creditors of the decedent who are reasonably ascertainable, even if the claims are unmatured, contingent, or unliquidated, and shall promptly serve a copy of the notice on those creditors. Impracticable and extended searches are not required ...


author: RAMIREZ, J.

text:
    FIERA.COM, INC., Appellant, v. DIGICAST NEW MEDIA GROUP, INC., Appellee.
    No. 3D02-441.
    District Court of Appeal of Florida, Third District.
    Dec. 11, 2002.
    Rehearing and Rehearing En Banc Denied Feb. 12, 2003.
    Zorrilla & Garcia-Oliver, and Juan C. Zorrilla; and Shook, Hardy & Bacon, and Richard C. Smith, and Barbara J. Ries-berg, Miami, for appellant.
    Martin A. Feigenbaum, Miami, for ap-pellee.
    Before JORGENSON, FLETCHER, and RAMIREZ, JJ.
   RAMIREZ, J.

Fiera.com, Inc. appeals the denial of its motion requesting relief from a judgment entered pursuant to an entry of default and from a final judgment of garnishment. We reverse because Fiera should have been given the opportunity to defend against the amount of damages to be awarded to plaintiff DigiCast New Media Group, Inc.

Fiera entered into an agreement with DigiCast for media planning and consulting. The agreement stated that DigiCast would receive a 15% agency commission from the media for all media buys it arranged for Fiera. In addition, the agreement stated that “[i]n the event that media placement is cancelled, defaulted or abandoned, DigiCast will then receive $250.00/ hr. for media planning and consulting services plus expenses.” DigiCast subsequently withdrew as consultant and submitted a bill to Fiera for the total hours it spent on proposals, budget, meetings, and travel. DigiCast billed the hours at $250.

On October 15, 2001, DigiCast filed a complaint against Fiera alleging breach of contract and unjust enrichment. DigiCast moved for a clerk’s default on November 7, 2001, and final judgment in favor of Digi-Cast in the amount of $126,396.00 was entered on December 7, 2001. Fiera did not receive notice of the application for clerk’s default and no notice of final judgment. A writ of garnishment was issued on December 10, 2001, and Fiera learned of the garnishment on December 13, 2001.

Fiera filed a motion for relief from judgment and to vacate the default on January 7, 2002, alleging excusable neglect pursuant to rule 1.540 and lack of notice of both the motion for default and the entry of judgment. After a hearing on January 10, 2002, the trial court denied Fiera’s motion to vacate the default, as well as its motion for rehearing.

Fiera argues that it was entitled to a hearing on damages because the damages were unliquidated. We agree. “Where an action involves unliquidated damages, a party against whom a default has been entered is entitled to notice of an order setting the matter for trial, and must be afforded an opportunity to defend.” Pierce v. Anglin, 721 So.2d 781, 783 (Fla. 1st DCA 1998). If testimony must be taken to determine the exact amount of damages or to ascertain facts upon which to base a value judgment, the claim is unliquidated. See Bowman v. Kingsland Dev., Inc., 432 So.2d 660, 662-63 (Fla. 5th DCA 1983).

In this case, the agreement stated that DigiCast would receive 15% commission as compensation. DigiCast was entitled to the hourly fee of $250 only if media placement was cancelled, defaulted or abandoned. The complaint erroneously alleges that Fiera agreed to compensate DigiCast at the rate of $250 per hour. It never alleges that Fiera ever cancelled, defaulted or abandoned any media placement. Thus, it is doubtful whether the complaint even states a cause of action. “When a default is entered, the defaulting party admits all well-pled factual allegations of the complaint.” State Farm Mut. Auto. Ins. Co. v. Horkheimer, 814 So.2d 1069, 1072 (Fla. 4th DCA 2001).

Furthermore, testimony was required to determine the reasonable number of hours worked by DigiCast on the cancelled, defaulted or abandoned media placement and the amount of expenses incurred. The two count complaint alleged a breach of contract in count one, and unjust enrichment in count two. We fail to see how count two could possibly justify an award of liquidated damages. In this count, DigiCast pled that “at a minimum,” the benefits conferred had a “reasonable value of $111,774.00.” The allegations are obviously cast in language indicative that the damages have not been finally determined.

As to count one for breach of contract, even assuming the count was “well-plead,” this count contains no specific amount set forth in the complaint. See Dunkley Stucco, Inc. v. Progressive American Ins. Co., 751 So.2d 723, 724 (Fla. 5th DCA 2000). The exhibit attached to the complaint was legally insufficient, conclusory, indecipherable and woefully inadequate to fulfill this requirement. Extrinsic evidence was necessary to determine the amount of damages, making the damages unliquidated. Thus, Fiera should have been given an opportunity to defend against the amount of damages before the entry of a final judgment.

Reversed and remanded.


author: GRIFFIN, J.

text:
    STATE of Florida, Appellant, v. Howard John ROMPRE, Appellee.
    No. 5D01-2071.
    District Court of Appeal of Florida, Fifth District.
    Dec. 13, 2002.
    Rehearing Denied Feb. 13, 2003.
    Richard E. Doran, Attorney General, Tallahassee, and Robert E. Bodnar, Jr., and Judy Taylor Rush, Assistant Attorneys General, Daytona Beach, for Appellant.
    James B. Gibson, Public Defender, and Nancy Ryan, Assistant Public Defender, Daytona Beach, for Appellee.
   GRIFFIN, J.

The State of Florida appeals the dismissal of a petition for involuntary commitment under the Jimmy Ryce Act. §§ 394.910-.931, Fla. Stat. (2000). We vacate the order.

On November 17, 1997, Howard J. Rompre [“Rompre”] pled guilty in case no. 97-313 to attempted sexual battery, a second-degree felony, for an offense committed on January 27, 1997. The plea was to an agreed-upon upward departure sentence, in exchange for which defendant was allowed to plead to a reduced charge, and additional charges were dismissed. Thereafter, Rompre was sentenced to twenty-one months in the Department of Corrections [“DOC”], followed by two years of sex offender probation.

On August 17, 1998, Rompre was released from prison to start probation. He violated his probation the following month. On December 7, 1999, he was sentenced to a new two-year period of supervision. However, on December 28, 1999, Rompre again violated his probation.

Rompre admitted violating his probation for a second time on August 31, 2000. On that date, he was resentenced pursuant to a scoresheet which showed a guidelines sentence on violation of his probation of fifteen to twenty-five months in the DOC. The trial court calculated a credit for time served of 984 days (or 32.8 months). Nevertheless, the State asked the court to impose a “prison sentence.” The court obliged and sentenced Rompre to 984 days in the DOC, but explained “[t]here is no additional time to be served.” Defense counsel therefore countered by asking the court to sentence Rompre to “time served.” He expressed concern that: “He may have to go back to DOC [for calculation of his release date if he is sentenced to a number of days]”. The court agreed: “He may. That’s a possibility, Mr. Rompre. I really don’t know.” The court then asked the prosecutor why he had wanted defendant to be given a prison sentence. The prosecutor explained:

Because he’s a sexual offender, Judge. I think he needs to be screened for the Jimmy Ryce Act, which is what they’re going to do when they do that, and that’s in order to protect the public. I mean, if he’s not in that act, he’s going to go free. If he is, that’s something that needs to be addressed.

A second prosecutor added that Rompre had to be in “total confinement” before he could be screened for continuing commitment under the Jimmy Ryce Act, which was why he had to be sentenced to 984 days, rather than time served. She remarked that “[p]eople are not screened out of the county jails or on probation, for that matter, Your Honor.”

The judge left the sentence as imposed, sentencing Rompre to a term of 984 days in the DOC, with credit for 984 days served. The credit provision stated:

It is further ordered that the defendant be allowed 984 days time served between date of arrest as a violator following release from prison to the date of resentencing. The Department of Corrections shall apply original jail time credit and shall compute and apply credit for time served only pursuant to Section 921.0017, Florida Statutes, in this case. (Offenses committed on or after January 1,1994)

The judge asked for return of the file to him so he could issue written reasons for the upward departure. No departure order was ever filed.

On September 1, 2000, Rompre was returned to the DOC. His release date was calculated by subtracting 392 days jail time and 592 days time served in the DOC from his sentence of 984 days, which would have resulted in a zero sentence to be served. However, the figure of 592 days for time served in the DOC included twenty-four days gain time, which the department forfeited pursuant to section 944.28(1). Thus, Rompre was given twenty-four additional days to serve and a tentative release date of September 24, 2000.

During September of 2000, Rompre was evaluated for continuing commitment under the Jimmy Ryce Act. On September 21, 2000, the State filed a petition to involuntarily commit Rompre as a sexual predator. That same day, an ex parte probable cause finding was made and trial was set for October 30, 2000.

It is unknown why trial did not take place on October 30, 2000. However, on November 2, 2000, Rompre purported to appeal the sentencing order of August 31, 2000. The appeal was untimely, but Rompre was granted the right to a belated appeal on April 5, 2001. Additionally, on May 29, 2001, Rompre filed a motion to dismiss the commitment petition, alleging the State had failed to comply with the time provisions of the Jimmy Ryce Act. Rompre’s complaint was that the judge made it clear at the August 31, 2000 sentencing proceeding that he was not supposed to serve any more time. Rompre asserted that he was not in legal confinement when he was transferred for evaluation and the commitment petition was served, because there had been a complete failure to comply with the time requirements set forth in section 394.9135.

On June 25, 2001, a hearing was held on Rompre’s motion to dismiss the commitment petition. At the hearing, defense counsel argued that the DOC had erroneously refused to credit Rompre with twenty-four days spent in the Citrus County jail, apparently on another offense. He contended:

The problem is, D.O.C. left off 24 days that the sentencing judge had given credit for in Citrus County [which counsel said the court had the discretion to do under 921.16]. There is no figure representing time spent in Citrus Coun-' ty-

Defense counsel also noted that one of the reasons Rompre was credited with time served was the departure problem. He said departure never became an issue because the judge sentenced him to time served.

At the conclusion of the hearing, the judge said he would grant the motion to dismiss the commitment petition. However, no order was immediately entered. Instead, the State on September 24, 2001 filed a motion to correct Rompre’s sentence in the trial court, acknowledging that Rompre had received an improper departure sentence upon violating his probation and that he was entitled to be resentenced under the guidelines to between fifteen and twenty-five months in the DOC. Rompre responded on November 1, 2001 by dismissing his appeal of the August 31, 2000 sentencing order. The following day, on November 2, 2001, Rompre filed a motion to strike the State’s motion to correct his sentence, in which he argued that the trial court no longer had jurisdiction to consider the State’s motion to correct his sentence under rule 3.800(b) because he had dismissed his appeal.

On November 2, 2001, a hearing on the motion to correct Rompre’s sentence and the motion to strike was held in trial court. Upon learning that Rompre had dismissed his appeal, the court asked Rompre if he was now satisfied with his sentence. Rompre said he was. He also verbally agreed he was waiving any future collateral attacks on his sentence.

On November 30, 2001, the court entered an order granting Rompre’s motion to dismiss the commitment petition. The order stated:

1. That the Petition for commitment was filed on September 21, 2000.
2. That the Respondent’s sentence on case 97-313-CF-X expired on August 31, 2000.
3. That the Defendant was detained by the Department of Corrections beyond his release date for the purpose of an evaluation to determine if he met the criteria for commitment under Florida Statute 394.910 through 394.930.
4. That the State of Florida failed to comply with the provisions of Florida Statute 394.9135.

Having dismissed the State’s petition, the commitment court ordered Rompre’s release from custody.

The State argues that the trial court erred in releasing Rompre based on a determination that his sentence expired on August 31, 2000, which made both the assessment by the multi-disciplinary team and the petition for commitment untimely under section 394.9135, Florida Statutes (2000). The State contends that this constituted an improper collateral attack on the sentence imposed in a separate criminal case, and that the trial court had no authority to make a determination that Rompre was unlawfully detained by the DOC beyond the expiration of his sentence, as part of a civil commitment proceeding. Further, even if the commitment court could review the sentence, the authority to regulate gain time resides exclusively with the DOC and the DOC’s decision to forfeit gain time cannot be countermanded by the trial court. It also argues that the commitment court erroneously recharacterized Rompre’s sentence as a sentence for “time served,” given that this alternative was expressly rejected by the trial court at the August 30, 2000 sentencing hearing. Finally, the State contends that even if Rompre’s sentence expired on August 31, 2000 and he was entitled to release because of the failure to comply with the time limitations set forth in section 394.9135, it was error to dismiss the State’s petition in its entirety because of subsection (4) of Section 394.9135 of the statute, which authorizes the State to proceed even if the inmate has been released.

Rompre responds that the record contains competent, substantial evidence to support the trial court’s determination that his sentence expired on August 31, 2000. He notes that the judge who revoked his probation announced his express intention that he was to serve no further time in this case — e.g. that his sentence was intended to be the equivalent of an indefinite sentence for “time served.” He therefore maintains that the DOC was without authority to revoke his gain time, thereby improperly adding twenty-four days to his sentence which resulted in him being unlawfully held in “total confinement” when the commitment petition was filed.

The key issue to be resolved is whether the commitment court has the power to look behind Rompre’s actual release date of September 24, 2000. Rompre’s defense to the State’s commitment petition required the commitment court to assess the validity of his sentence and adjust that sentence as part of the commitment proceeding. However, the sentence was valid unless corrected according to law. Here, Rompre abandoned the appeal of his sentence in the criminal case and did not pursue his administrative remedies concerning the forfeiture of his gain time. Had he done so, he may well have succeeded.

In Smith v. Kearney, 802 So.2d 387 (Fla. 4th DCA 2001), the appellant was a detainee under the Jimmy Ryce Act who filed a petition for a writ of habeas corpus. In his petition, Smith claimed that he had been unlawfully detained by the DOC and should have been released to serve the probationary portion of his sentence prior to the effective date of the Jimmy Ryce Act, on January 1,1999. Not being lawfully in custody when the Act went into effect, Smith said it should not apply to him. On appeal, the Fourth District determined that it had no power within the commitment proceedings to consider the alleged “illegality” of Smith’s sentence in the criminal proceedings. The court explained:

We are not the proper court to correct the alleged “illegality” of the sentence Smith has already served. Whether concurrent terms of probation and imprisonment are illegal is an issue that is cognizable in a motion to correct an illegal sentence. See Benjamin, 705 So.2d at 126. It appears the problem facing Smith in this action is that he did not move to correct his sentence by either filing a motion to correct an illegal sentence pursuant to Florida Rule of Criminal Procedure 3.800 or through a rule 3.850 motion prior to the effective date of the Act.

Id. at 389-390. Smith reinforces our view that Rompre was required to first address his sentence in the criminal case. The commitment court erred in entertaining a collateral attack on the sentence in the course of commitment proceedings. We accordingly vacate the order of dismissal and remand.

ORDER VACATED and REMANDED.

COBB, J„ and STRICKLAND, S.W., Associate Judge, concur.

      . The scoresheet used by the trial court showed 36 points for a level six offense, plus 12 additional points for two release program violations, for a total of 48 points. Once the appropriate calculations were made, these points yielded a permissive sentence of from 15 months to 25 months in the DOC.

      . He noted that rule 3.800(b) states, “Motions may be filed by the state under this subdivision only if the correction of the sentencing error would benefit the defendant or to correct a scrivener’s error.”

      . Section 394.9135 provides:
      Immediate releases from total confinement; transfer of person to department; time limitations on assessment, notification, and filing petition to hold in custody; filing petition after release
      (1) If the anticipated release from total confinement of a person who has been convicted of a sexually violent offense becomes immediate for any reason, the agency with jurisdiction shall upon immediate release from total confinement transfer that person to the custody of the Department of Children and Family Services to be held in an appropriate secure facility.

      (2) Within 72 hours after transfer, the multidisciplinary team shall assess whether the person meets the definition of a sexually violent predator. If the multidisciplinary team determines that the person does not meet the definition of a sexually violent predator, that person shall be immediately released. If the multidisciplinary team determines that the person meets the definition of a sexually violent predator, the team shall provide the state attorney, as designated by s. 394.913, with its written assessment and recommendation within the 72-hour period or, if the 72-hour period ends on a weekend or holiday, within the next working day thereafter.
      (3) Within 48 hours after receipt of the written assessment and recommendation from the multidisciplinary team, the state attorney, as designated in s. 394.913, may file a petition with the circuit court alleging that the person is a sexually violent predator and stating facts sufficient to support such allegation. If a petition is not filed within 48 hours after receipt of the written assessment and recommendation by the state attorney, the person shall be immediately released. If a petition is filed pursuant to this section and the judge determines that there is probable cause to believe that the person is a sexually violent predator, the judge shall order the person be maintained in custody and held in an appropriate secure facility for further proceedings in accordance with this part.
      (4) The provisions of this section are not jurisdictional, and failure to comply with the time limitations, which results in the release of a person who has been convicted of a sexually violent offense, is not disposi-tive of the case and does not prevent the state attorney from proceeding against a person otherwise subject to the provisions of this part.

      . Rompre makes a general due process attack based on such cases as Tanguay v. State, 782 So.2d 419 (Fla. 2d DCA 2001), review granted, 821 So.2d 302 (Fla.2002), but we find no violation of due process. Had Rompre's sentence been invalidated or his entitlement to immediate release been established as required by law, his evaluation for commitment while unlawfully detained would not support commitment. The more difficult question is what, if any, might be the effect, for purposes of commitment, of his release, assuming he was not shown to have reoffended while released. See In re Young, 122 Wash.2d 1, 857 P.2d 989 (1993).


text:
    Roy H. PAYNE, Jr., and Elizabeth Burger-Payne, Appellants, v. CUDJOE GARDENS PROPERTY OWNERS ASSOCIATION, INC., a Florida not-for-profit corporation, et al., Appellees.
    No. 3D02-567.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2002.
    Francis H. Muldoon, Jr. (Key West), for appellants.
    Morgan & Hendrick and James T. Hen-drick and Warren D. Tochterman (Key West), for appellees.

      Before LEVY, FLETCHER and RAMIREZ, JJ.
   PER CURIAM.

Appellants are homeowners in the subdivision of Cudjoe Gardens in Monroe County. The subdivision is governed by a voluntary association, Cudjoe Gardens Property Owners Association (“the association”), comprised of approximately 55 property owners. All subdivision property deeds contain a Declaration of Restriction which subjects the property to certain setback restrictions. Additionally, all building plans for new development and/or modifications to existing structures require approval by the association. Appellants purchased their property from an individual in January of 1996 and built their home without submitting building plans to the association for approval.

In 1997, the association brought suit against appellants seeking an injunction on the basis that the appellants were in direct violation of the deed restriction setback requirement. Prior to a ruling on the injunction, appellants finished construction on their home. Subsequently, the association amended its Complaint invoking the equity jurisdiction of the court and joining six individual property owners of the subdivision. Appellants answered the Complaint and raised affirmative defenses of waiver, abandonment, estoppel, and unclean hands on the ground that many plaintiffs were themselves in violation of the deed restrictions; and waiver, acquiescence, abandonment, and estoppel for failure to enforce the restrictions. Additionally, appellants alleged that during construction, the developer, who previously granted variances to other property owners, including several association board members, complimented appellants on their home and its structure.

The trial court initially granted appellants’ Motion to Dismiss on the ground that the association did not have standing to bring suit to enforce the deed restrictions. On appeal, this Court reversed and remanded. See Cudjoe Gardens Prop. Owners Ass’n, Inc. v. Payne, 770 So.2d 190 (Fla. 3d DCA 2000). In July of 2000, during the pendency of the appeal, appellants contracted to purchase a parcel of land adjacent to the original “violating” property with the intent to cure the defect.

On remand, appellants again moved for summary judgment on the basis that (1) several past presidents and directors of the association had themselves built homes in violation of the deed restriction set-back requirements and (2) the association failed to notify appellants in writing of their violation as required by the association bylaws prior to instituting suit. Alternatively, appellants moved for an Order to permit them to enter the land of Cud-joe Gardens homeowners to conduct surveys of structures, citing the association’s denial of thirty-eight requests for admissions of prior violations. The association opposed the motion for entry upon land, explaining that the denial of the requests for admissions was based on variances granted by the developer. The trial court held appellant’s second request for Summary Judgment in abeyance and instead entered an Order directing the association to retroactively review appellants’ building plans in light of prior waivers.

The association rejected the building plans, denied the existence of other deed restriction set-back violations and requested reconsideration and clarification of the court’s previous Order. The court granted appellants’ Motion for Summary Judgment, finding that the association waived the right to enforce the deed restriction set-back requirements as a result of the numerous variances granted to property owners, particularly past and present members of the association. However, after the association filed a Motion for a Rule to Show Cause and to Vacate Fraudulently Obtained Relief which alleged that the appellants’ attorney misrepresented the existence of thirty-eight violations of the set-back requirements of the deed restrictions, the trial court vacated its Order granting appellants’ Second Motion for Summary Judgment and entered a Rule to Show Cause against appellants’ counsel.

To defend the Show Cause Order, appellants sought the assistance of a photo-grammetrist who reviewed aerial photographs of the subdivision and a County surveyor who confirmed the violations. After consideration of the surveyors’ testimonies finding sixty-four violations, the court found that appellants’ attorney was not in contempt. However, the court declined to reinstate its vacated Order on appellants’ Motion for Summary Judgment.

The association subsequently filed its own Motion for Summary Judgment contending that the appellants were barred from seeking relief because they failed to file building plans seeking a variance as required. During this time, appellants moved to compel better answers to interrogatories and production of documents relating to prior waivers of set-back requirements. The hearing on appellants’ Motion to Compel Better Answers and to Compel Production was set for the morning of December 19, 2001. The association’s Motion for Summary Judgment was set for the afternoon of December 19, 2001. On the morning of December 19th, the association gave appellants better answers to interrogatories, but claimed that they did not receive appellants’ Motion to Compel Production of Documents. The court continued the Motion to Compel Production of the documents and issued an Order directing the association to provide better answers to interrogatories. On the afternoon of December 19th, just prior to the hearing on the association’s Motion for Summary Judgment, the association’s counsel hand delivered supplemental responses to interrogatories. The hearing on the association’s Motion for Summary Judgment then took place.

At the hearing, the association argued that appellants were barred from raising any affirmative defenses because they failed to request approval of their plans from the association prior to building. The court declined to consider appellants’ evidence reflecting sixty-four prior violations and granted the association’s Motion for Summary Judgment on the basis that appellants’ failure to submit building plans prior to commencement of construction with a request for variance to the set-back requirements effectively foreclosed appellants from having standing to challenge the deed restriction. The court, accordingly, entered Summary Judgment in favor of the association, granted attorney’s fees to the association and precluded any further hearings in the case with the exception of motions to assess attorney’s fees. This appeal ensued.

Appellants raise several issues on appeal. We address only the discovery issue which is dispositive of the matter. Appellants are seeking disclosure of information and documents relating to prior waivers and variances. The Motion for Summary Judgment was based on the fact that appellants failed to submit budding plans to the association for approval. However, from these discovery requests, appellants may learn of other property owners who, in appellants’ position, were granted variances after the fact, despite the failure to submit the building plans. Accordingly, the information sought by appellants was relevant and a material issue to appellants’ entire defense. In fact, in its initial ruling on appellants’ Second Motion for Summary Judgment, the trial court noted that the association would be bound by previous variances if appellants are in a similar situation.

It is axiomatic that Summary Judgment may not be granted unless the moving party is able to show that no genuine issues of material fact exist. See Holl v. Talcott, 191 So.2d 40, 43-44 (Fla.1966); Kemper v. First Nat’l Bank of Dayton, Ohio, 277 So.2d 804 (Fla. 3d DCA 1973). Where discovery is not complete, the facts are not sufficiently developed to enable the trial court to determine whether genuine issues of material facts exist. See Singer v. Star, 510 So.2d 637, 639 (Fla. 4th DCA 1987). Thus, where discovery is still pending, the entry of Summary Judgment is premature. See Smith v. Smith, 734 So.2d 1142, 1144 (Fla. 5th DCA 1999)(“Parties to a lawsuit are entitled to discovery as provided in the Florida Rules of Civil Procedure including the taking of depositions, and it is reversible error to enter summary judgment when discovery is in progress and the deposition of a party is pending.”); Henderson v. Reyes, 702 So.2d 616, 616 (Fla. 3d DCA 1997)(reversing the entry of Summary Judgment where depositions had not been completed and a request for the production of documents was outstanding.); Collazo v. Hupert, 693 So.2d 631, 631 (Fla. 3d DCA 1997) (holding that a trial court should not entertain a motion for summary judgment while discovery is still pending); Spradley v. Stick, 622 So.2d 610, 613 (Fla. 1st DCA 1993); Singer v. Star, 510 So.2d 637 (Fla. 4th DCA 1987).

In the instant case, the Record is clear that appellants are not the only property owners whose property was in violation of the set-back requirements. In fact, appellants were able to conform their property through the purchase of adjacent property. Appellants identified other property owners, approximately sixty-eight, many of whom are current and past board members of the association, who are in violation of the set-back requirement. Some have variances, but it is not clear whether others obtained their variance, if at all, before construction. In short, the purpose of the restriction, where 68 properties are in violation, is difficult to defend at this juncture. See Robertson v. Countryside PUD Residential Homeowners, 751 So.2d 674, 677 (Fla. 5th DCA 2000)(reversing for completion of discovery relating to previous exemptions to the restrictive covenants noting that enforcement of restrictive covenants cannot be arbitrary or unreasonable).

Florida law is clear that covenants restricting the use of land will be enforced “when the restriction applies to the location of buildings to be erected on the land, and such restrictions are carried in all deeds with a view to preserve the symmetry, beauty, and general good of all interested in the scheme of development.” Pelican Island Property Owners Ass’n, Inc. v. Murphy, 554 So.2d 1179, 1181 (Fla. 2d DCA 1989)(quoting Stephl v. Moore, 94 Fla. 313, 114 So. 455 (1927), but reversing the dismissal of the association’s Complaint, finding that the association did not waive, and was not estopped from enforcing, the restrictive covenant); But cf. Plaza Del Prado Condominium Ass’n, Inc. v. Richman, 345 So.2d 851 (Fla. 3d DCA 1977)(affirming the entry of Summary Judgment in favor of condominium unit owners on the basis that the appearance of the building was not uniform where the association conceded that other terraces had been changed and/or altered with the permission of the owner/developer and/or the association). Without the completion of appellants’ discovery requests in the instant case, it is difficult to ascertain whether appellants are precluded from raising any affirmative defenses against the association’s claims and whether the association is enforcing the restrictive covenant arbitrarily and unreasonably.

Accordingly, we find that summary judgment was improvidently granted prior to the completion of discovery and, accordingly, reverse the Order granting the association’s Motion for Summary Judgment and remand the matter for further proceedings specifically including additional discovery.

Reversed and remanded.

      . Appellants suggest that since they purchased the property from an individual, not the original developer, they did not have notice of the voluntary association nor of the deed restrictions. However, the Warranty Deed clearly reflects the existence of the deed restriction.

      . The Record reflects that the appellants purchased the adjacent lot in October of 2000. The lot was subsequently annexed in February of 2001.

      . Appellants contend the supplemental responses were insufficient and that counsel did not have an opportunity to read them until after the hearing on the association’s Motion for Summary Judgment.


text:
    Gerardo MOLINA, Appellant, v. The CITY OF MIAMI, Appellee.
    No. 3D02-1562.
    District Court of Appeal of Florida, Third District.
    Dec. 18, 2002.
    Rehearing and Rehearing En Banc Denied Feb. 12, 2003.
    Anthony F. Sanchez, for appellant.
    Alejandro Vilarello, City Attorney, and Warren Bittner and Regine Monestime, Assistant City Attorneys, for appellee.
    Before JORGENSON, FLETCHER, and RAMIREZ, JJ.
   PER CURIAM.

Gerardo Molina appeals from the dismissal of his complaint and the denial of his motion for injunctive relief. We affirm.

Appellant is the father of a man who was killed by an off-duty City of Miami police officer in December, 1998. Appellant filed a complaint seeking injunctive and declaratory relief under section 286.011(1), Florida Statutes, the Government-in-the-Sunshine Law. Section 286.011 provides in part:

(1) All meetings of any board or commission of any state agency or authority or of any agency or authority of any county, municipal corporation, or political subdivision, except as otherwise provided in the Constitution, at which official acts are to be taken are declared to be public meetings open to the public at all times, and no resolution, rule, or formal action shall be considered binding except as taken or made at such meeting. The board or commission must provide reasonable notice of all such meetings.
(2) The minutes of a meeting of any such board or commission of any such state agency or authority shall be promptly recorded, and such records shall be open to public inspection....

Appellant alleges that the investigations conducted by the Discharge of Firearms Review committee are ' subject to § 286.011(1), and therefore the committee must perform its business in the sunshine by opening its meetings to the public, noticing the meetings to the public, and recording the minutes of the meetings for public inspection. We disagree.

The Discharge of Firearms Review Committee is a three-person panel made up of the deputy chiefs of the Administration, Field Operations, and Criminal Investigation divisions. The committee makes factual findings, which it then passes on to the chief. In short, the committee is nothing more than a meeting of staff members who serve in a fact-finding, advisory capacity to the chief. The Government-in-the-Sunshine Law is not applicable to meetings of staffers serving in this function. Knox v. District School Bd. of Brevard, 821 So.2d 811, 314-15 (Fla. 5th DCA 2002); Lyon v. Lake County, 765 So.2d 785, 789 (Fla. 5th DCA 2000).

Affirmed.


text:
    Ahmad Yousef SAIDI, Appellant, v. Sharon Wessling SAIDI, Appellee.
    No. 5D02-251.
    District Court of Appeal of Florida, Fifth District.
    Dec. 23, 2002.
    Rehearing Denied Feb. 11, 2003.
    Ahmad Yousef Saidi, Orlando, pro se.
    William Glenn Roy, Jr., Altamonte Springs, for Appellee.
   PER CURIAM.

AFFIRMED. See Fla. RApp. P. 9.315(a).

SHARP, W., GRIFFIN and, ORFINGER, JJ., concur.


text:
    INSERVICES, INC., f/k/a Managed Care USA Services, Inc., a North Carolina corporation, and Mippy Heath, individually, Appellants, v. Rodrigo AGUILERA, and Patricia Lower Aguilera, his wife, Appellees.
    No. 3D01-867.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Certification Denied Feb. 12, 2003.
    Rumberger, Kirk & Caldwell, and Joshua D. Lerner, and David J. Pyper, for appellants.
    Friedman & Friedman; Lauri Waldman Ross, for appellees.
    Before GERSTEN, and SHEVIN, JJ., and NESBITT, Senior Judge.
   ON MOTION FOR REHEARING

PER CURIAM.

The motion for rehearing is granted. We withdraw the opinion issued October 31, 2001, and substitute the following opinion.

Appellants, Inservices, Inc., f/k/a Managed Care USA Services, Inc., and Mippy Heath (hereafter collectively referred to as “defendants”), appeal the denial of their motion to dismiss claiming they are entitled to workers’ compensation immunity. We agree and reverse.

Appellant, Inservices, Inc., f/k/a Managed Care USA Services, Inc. (“Inser-viees”) provided workers’ compensation benefits to the employer of appellee Rodrigo Aguilera (“Aguilera”). Aguilera was injured in a work-related accident when he was struck by an electric fork lift in April of 1999. Inservices referred Aguilera to a workers’ compensation clinic where he was treated and eventually discharged to return to work with restrictions.

A few weeks later, Aguilera began to complain of kidney and bladder pain. After examination by two doctors who both recommended that Aguilera not return to work, Aguilera’s workers’ compensation attorney requested examination and treatment by a board certified urologist. In-services denied the request claiming the injury was not work-related.

In June of 1999, Aguilera notified Inser-vices that he was passing feces through his urine and was in need of immediate urological care. Three days later, Aguilera was advised that his workers’ compensation benefits were being terminated. In-services denied the emergency request for medical care claiming it was not medically necessary.

Several weeks later, Aguilera’s treating physician again advised Inservices that the need for urological care was urgent and that his condition had deteriorated. The results of a retrograde urethogram revealed Aguilera had a hole in his bladder. A new case manager was assigned to Aguilera’s case, defendant/appellee Mippy Heath (“Heath”), however, Heath rejected Aguilera’s request that a general surgeon perform immediate emergency surgery on his fistula. She insisted on a second opinion and the administration of tests which, .according to Aguilera, were painful and contraindicated by his medical condition. Heath thereafter sent Aguilera to a gas-troenterologist.

After seeing six doctors in addition to his initial treating physician, and after urinating feces and blood for over ten months, Aguilera’s surgery was authorized on March 22, 2000. Aguilera filed suit against the defendants, seeking damages for common law bad faith and breach of contract against Inservices, for intentional infliction of emotional distress against In-services and Heath, and seeking a declaration that the workers’ compensation exclusivity rule is unconstitutional to the extent it eliminates claims for subsequent malfeasance of a carrier.

The defendants moved to dismiss on various grounds including the defense of workers’ compensation immunity under the Workers’ Compensation Act (the “Act”). The trial court denied the motion finding that intentional, outrageous conduct on the part of the defendants escalated the workers’ compensation claim into a tort action.

We empathize with Aguilera’s plight in resolving his medical problems. However, established precedent and the plain language of the Workers’ Compensation Act requires that we reverse.

This Court previously established that the test to determine if workers’ compensation bars a tort action, is whether the injury for which a plaintiff seeks recovery is covered by the Workers’ Compensation Act. See Old Republic Ins. Co. v. Whitworth, 442 So.2d 1078 (Fla. 3d DCA 1983). Simply stated, if the injury is covered by the Act, a separate tort action in circuit court is barred.

Thus, in Old Republic Ins. Co. v. Whit-worth, 442 So.2d at 1078, we dismissed the plaintiffs tort claim because workers’ compensation provided a remedy for the allegations of delayed payment and bad faith. In so doing, we specified that: “[A] compensation claimant cannot avoid the exclusivity of the Act and transform a delay in payments into an actionable tort cognizable in the Circuit Court simply by calling that delay outrageous, fraudulent, deceitful or an intentional infliction of emotional distress.” Old Republic Ins. Co. v. Whitworth, 442 So.2d at 1079. See also Sheraton Key Largo v. Roca, 710 So.2d 1016 (Fla. 3d DCA 1998)(workers’ compensation immunizes a carrier from a tort action based on alternative allegations of outrageous, fraudulent and deceitful conduct or for intentional infliction of emotional distress committed while handling a claim); Montes de Oca v. Orkin Exterminating Co., 692 So.2d 257 (Fla. 3d DCA 1997)(allegations of delay, outrageous misconduct, and intentional infliction of emotional distress in handling claim, fall within exclusive jurisdiction of workers’ compensation judge).

We further noted the history and objectives of the workers’ compensation laws, and expressed our concerns that “if delay in providing services could become the subject of an independent suit, the legislatively designed exclusivity of the act would be destroyed.” Old Republic Ins. Co. v. Whitworth, 442 So.2d at 1079 (citing Sullivan v. Liberty Mut. Ins. Co., 367 So.2d 658 (Fla. 4th DCA 1979), cert. denied, 378 So.2d 350 (Fla.1979)). The legislative intent expressed in the workers’ compensation law is that a claimant’s exclusive remedy for misconduct in the rendition of medical care lies solely with the commission, and not through independent third party court actions.

This is not to say that a compensation carrier is immune from all intentional torts. The workers’ compensation scheme does not immunize a compensation carrier from wrongdoing which occurs independently of its claims handling. Sibley v. Adjustco, Inc., 596 So.2d 1048 (Fla.1992) (adjuster who fraudulently edited the statement of a claimant which results in the denial of benefits constitutes an intentional act independent of the handling of a workers’ compensation claim); cf. Associated Indus. of Fla. Prop. & Cas. Trust v. Smith, 633 So.2d 543 (Fla. 5th DCA 1994) (it is not an independent tort for a workers’ compensation carrier to withdraw benefits, as a wrongful termination can be remedied under the statute). Thus once a trial court determines a plaintiff does have a remedy under the Workers’ Compensation Act, the only remaining issue to be considered prior to dismissal is whether the plaintiffs allegations involve wrongdoing independent of the workers compensation claim.

Aguilera does not argue that he is without remedies under the Act. And we note the Act does contain provisions addressing his allegations that the defendants lied to him concerning available benefits, refused to schedule appointments with physicians, wrongfully attempted to deprive or ignored his request for medical treatment and insisted upon tests to evaluate his medical condition which were contradicted by his medical condition. Aguilera’s primary contention is that the exclusivity provisions of the workers’ compensation statutes do not bar his intentional tort claim because the defendants’ conduct was outrageous and resulted in injuries separate and distinct from the work related injury. We disagree.

In order for an independent tort to exist, there must be facts that are distinct from a breach of contract. See HTP, Ltd. v. Lineas Aereas Costarricenses S.A., 685 So.2d 1238 (Fla.1996); Invo Florida, Inc. v. Somerset Venturer, Inc., 751 So.2d 1263 (Fla. 3d DCA 2000); Here, all of Aguilera’s allegations deal with the manner in which his claim was handled by the defendants pursuant to the workers’ compensation insurance contract. Since all of the allegations relate to the defendants alleged breach of contractual obligations under the workers’ compensation policy, no independent acts have been alleged and thus there is no independent tort. See Sullivan v. Liberty Mut. Ins. Co., 367 So.2d at 658. Aguilera’s injuries arising from any delays in medical treatment were incidental to his original injury and compensable by his employer’s compensation carrier. See Old Republic Ins. Co. v. Whitworth, 442 So.2d at 1079.

In conclusion, we find the allegations in the present case are insufficient to come within any exception to the statutory immunity provided by section 440.11, Florida Statutes (2000). See Sheraton Key Largo v. Roca, 710 So.2d at 1016; Old Republic Ins. Co. v. Whitworth, 442 So.2d at 1078; Sullivan v. Liberty Mutual Insurance Co., 367 So.2d at 658. Accordingly, the trial court erred in finding the cause of action was not barred by the Act, and the case is hereby reversed and remanded with instructions to enter a final order dismissing the complaint.

Reversed and remanded with instructions.

GERSTEN, J., and NESBITT, Senior Judge, concur.

SHEVIN, J., dissenting in part, concurring in part.

I dissent from the opinion granting rehearing.

As a matter of law, affirmance is required in this case as to the intentional infliction of emotional distress claim. The workers’ .compensation immunity carrier has clearly committed an intentional tort, which brings this case outside the ambit of the traditional workers’ compensation immunity, and renders the carrier liable in an intentional tort action. I would affirm the denial of the motion to dismiss the Aguileras’s amended complaint on the intentional infliction of emotional distress count.

The majority opinion focuses on the damages suffered and concludes they are “claim delay” damages, therefore entitling the carrier to immunity. However, the complaint appropriately pleads a cause of action for intentional infliction of emotional distress and thus asserts an intentional tort that falls outside the protection of the workers’ compensation immunity.

The standard of review for examining an order denying dismissal is well-settled.

A motion to dismiss tests whether the plaintiff has stated a cause of action. Because a ruling on a motion to dismiss for failure to state a cause of action is an issue of law, it is renewable on appeal by the de novo standard of review. When determining the merits of a motion to dismiss, the trial court’s consideration is limited to the four corners of the complaint, the allegations of which must be accepted as true and considered in the light most favorable to the nonmov-ing party.

Bell v. Indian River Memorial Hospital, 778 So.2d 1030 (Fla. 4th DCA 2001) (citations omitted). The allegations in the amended complaint, as set out below, sufficiently demonstrate that the Aguileras have stated a cognizable claim for intentional infliction of emotional distress that survives dismissal on workers’ compensation immunity grounds.

Facts

Any summary of the facts works an injustice to the events leading up to the lawsuit, and pale the magnitude of the injuries intentionally inflicted upon the Aguileras. Therefore, as in the original panel opinion, I rely on the factual recitation in the Aguileras’s amended complaint:

FACTS COMMON TO ALL COUNTS
8.On April 21, 1999, plaintiff Aguil-era was injured at a Publix warehouse on NE 183rd Street when an electric fork lift operated by a Publix employee struck him and pushed him against a pallet. Plaintiff suffered immediate injuries to his back and right leg and was transported to Palmetto Hospital Emergency room. Palmetto medical records reflected, that at the time, that plaintiff simply had blood in his urine. An emergency room physician diagnosed an infection and gave the Plaintiff a prescription for necessary medication.
9. Immediately following his injuries, Plaintiff received medical care supervised and controlled by Managed Care USA Services, Inc., n/k/a Inserviees, Inc. defendant here, and its employees and agents. On instructions of the Defendant, Plaintiff was referred to a workers’ compensation clinic and, on May 12, 1999, was discharged to return to work with restrictions.
10. Subsequently Plaintiff began to complain of kidney and/or bladder pain. On May 24, 1999, plaintiffs workers’ compensation attorney filed an initial “request for assistance,” requesting inter alia Inservices’ authorization for a board certified urologist to examine and treat the Plaintiff. From that point forward, the defendants did everything in their power to block medical treatment that it had actual notice Plaintiff needed, and by doing so recklessly endangered plaintiffs life, and engaged in a pattern of action substantially certain to bring about his death.
11. Inservices first denied Plaintiff any authorization for urologist treatment, ostensibly because it was not “work related.”
12. On June 17, 1999, Inservices was notified that Plaintiffs urological care was now an “emergency” because the Plaintiffs urine had begun to smell like feces.
13. On June 21, 1999, Plaintiff was advised that his workers’ compensation benefits were being terminated as of July 9, 1999, notwithstanding the report of two doctors, including Defendant’s own doctor that he should not return to work.
14. On June 25, 1999, Inservices blocked Plaintiffs receipt of the prescription medication prescribed to him by the hospital emergency physician, for his urinary tract infection.
15. On June 30, 1999, the defendant denied Plaintiffs emergency request for the care of a urologist, this time on the ostensible basis that it was not “medically necessary.” At this time defendant had within its possession medical care information showing directly the opposite.
16. On July 7, 1999, Inservices was advised by Plaintiffs treating physician that his need for a urological consult was now “urgent,” and that his condition was “deteriorating.”
17. On July 9, 1999, Defendant’s own doctor, Alan Dansky, gave Plaintiff prescriptions for various urinary tests to take place, and the appointments were scheduled by Defendant’s own nurse.
18. On July 29,1999, Defendant’s adjuster unilaterally canceled some of this medical testing. Testing which was performed (a retrograde urethrogram) reflected that Plaintiff had a fistula or a hole in his bladder.
19. On August 6, 1999, Defendant Mippy Heath introduced herself as defendant’s new “case manager.” She was specifically advised not to deal with Plaintiff directly and agreed not to perform on site case management services directly, or to interfere with plaintiffs care.
20. On August 19, 1999, Plaintiffs counsel alerted Defendant’s adjuster that he needed a general surgeon to perform emergency surgery on the fistula. Defendant’s new nurse consultant/case manager Mippy Heath refused to authorize the emergency surgery, and insisted on a second opinion.
21. On August 25, 1999, notwithstanding her agreement with Plaintiffs counsel, Mippy Heath showed up for the Plaintiffs urology appointment with Dr. Campeatore, the defendant’s IME urologist. Ms. Heath then advised the Plaintiff to lie to his workers’ compensation lawyer, and tell his lawyer that she was not at the doctor’s office.
22. Defendant insisted on the administration of tests that were painful to Plaintiff and contraindicated by his then-present medical condition. Defendant then used Plaintiffs refusal to submit to these painful tests as a further excuse to refuse Plaintiffs now critical, surgical treatment.
23. By November 4, 1999, defendant’s own case manager and nurse practitioner agreed that plaintiff needed immediate hospitalization for surgery. Defendant’s adjuster overruled its nurse because it ostensibly wanted a second opinion from a general surgeon. However, Defendant did not authorize plaintiffs consult with a “general surgeon,” but instead sent him to a gastroenterologist. At this point in time, Plaintiff had been urinating feces and blood for over six months.

(Emphasis added).

Based on these allegations, the Aguiler-as sued the workers’ compensation carrier/administrator, Inservices, Inc., and Mip-py Heath, the case manager [collectively “defendants”]. The complaint asserted causes of action for common law bad faith, breach of contract, declaratory judgment and intentional infliction of emotional distress. Defendants filed a motion to dismiss the complaint asserting workers’ compensation immunity. The trial court denied the motion finding that the acts alleged fell outside the scope of the immunity.

Workers’ Compensation Immunity

Florida’s workers’ compensation scheme was designed “to assure the quick and efficient delivery of disability and medical benefits to an injured worker and to facilitate the worker’s return to gainful reemployment at a reasonable cost to the employer.” § 440.015, Fla. Stat. (1999). In exchange for affording employees these benefits, an employer is shielded by statutory immunity from suit. § 440.11, Fla. Stat. (1999). Nevertheless, that immunity does not shield an employer from lawsuits alleging intentional torts. Turner v. PCR, Inc., 754 So.2d 683, 684 (Fla.2000); Eller v. Shova, 630 So.2d 537, 539 (Fla.1993).

The carrier accurately represents the well-accepted proposition that absent an act independent of handling a claim, no tort action can be brought against a workers’ compensation insurance carrier. Old Republic Ins. Co. v. Whitworth, 442 So.2d 1078 (Fla. 3d DCA 1983); Montes de Oca v. Orkin Exterminating Co., 692 So.2d 257 (Fla. 3d DCA), review denied, 699 So.2d 1374 (Fla.1997). However, the facts pled in the amended complaint, which must be accepted as true, demonstrate that this case goes well beyond mere claims-mishandling allegations and asserts independent acts that rise to the level of an actionable intentional tort.

In Turner v. PCR, Inc., 754 So.2d 683, 684 (Fla.2000), the Florida Supreme Court “reaffirm[ed] the existence of an intentional tort exception to an employer’s immunity, and h[e]ld that the conduct of the employer must be evaluated under an objective standard.” The Aguileras’s facts, evaluated under the Turner standard, demonstrate that they have stated a cause of action for intentional infliction of emotional distress, that divests the carrier of immunity.

The facts alleged in the amended complaint do not describe a carrier who “makes the intentional decision to terminate benefits or takes some other intended action to adjust a claim[.]” Rather, the Aguileras’s amended complaint asserts intentional tortious behavior by Inservices and by the case manager — who went so far as to show up at Aguilera’s urologist appointment and suggest that he lie to his attorney and say she was never there.

As the majority correctly posits, under Old Republic, if an injury is covered by the Act, a separate tort action cannot be maintained. However, that does not justify reversal. Nowhere does the Act provide recovery or a remedy for the intentional infliction of emotional distress asserted by the Aguileras. The allegations here clearly go beyond mere assertions of willful delays in payment, see Old Republic, or assertions that injuries were exacerbated because of payment or service delays. Sheraton Key Largo v. Roca, 710 So.2d 1016 (Fla. 3d DCA), revieiu denied, 728 So.2d 204 (Fla.1998); Sullivan v. Liberty Mut. Ins. Co., 367 So.2d 658 (Fla. 4th DCA), cert. denied, 378 So.2d 350 (Fla.1979). Here, however, these allegations of intentional torts by the defendants constitute conduct not compensated or shielded by workers’ compensation immunity. See Turner; Cunningham v. Anchor Hocking Corp., 558 So.2d 93 (Fla. 1st DCA), review denied, 574 So.2d 139 (Fla.1990). The carrier here took intentional action, beyond the conduct shielded by the immunity— and committed an intentional tort on the injured claimant.

The Florida Supreme Court “has recognized an intentional tort exception to the workers’ compensation statutory scheme.... [Wjorker’s compensation law does not protect an employer from liability for an intentional tort against an employee.” Turner, 754 So.2d at 686-87. The allegations in this amended complaint satisfy the “bases for an employee to prove an intentional tort action against an employer.” Id. The amended complaint clearly alleges that defendants “intentionally engaged in conduct that was substantially certain to result in injury or death.” Id. This is sufficient to survive a workers’ compensation immunity dismissal motion.

In this case, as in Connelly v. Arrow Air, Inc., 568 So.2d 448, 451 (Fla. 3d DCA), review denied, 581 So.2d 1307 (Fla.1990), the behavior exhibited by defendants meets the test set in Turner, for an employee to prove an intentional tort under the exception: conduct that will “ — to a substantial certainty — ” cause serious injury to, or the death of the employee. Turner; Cunningham. This court has observed that “the cases that have actually applied the Turner doctrine, especially Turner itself, have characteristically involved a degree of deliberate or willful indifference to [the] employee.... ” Pacheco v. Florida Power & Light Co., 784 So.2d 1159, 1163 (Fla. 3d DCA 2001). The defendants here exhibited the same deliberate and willful indifference to Aguilera. Hence, the immunity may not extend to shield defendants from the intentional infliction of emotional distress claim.

Contrary to the majority’s assertion, the imposition of criminal penalties on the carrier, suspension of the carrier’s license, penalties for late payments, attorney’s fees, dispute resolution procedures, or further procedures to dispute IME requests may punish the carrier or expedite a claim process but those measures do not compensate Aguilera for the injuries he suffered as a result of the carrier’s intentional wrongful acts. The carrier’s actions including alleged lies as to available benefits, refusal to schedule physician appointments, attempts to deprive him of medical care, and insistence upon tests contraindicated by his medical condition amount to intentional wrongful actions distinct from its breach of contract. As to the case manager, as in Sibley v. Adjustco, Inc., 596 So.2d 1048 (Fla.1992), Heath’s acts of showing up at Aguilera’s urologist appointment, and demanding that he lie to his attorney about her presence to cover up. her actions, amount to intentional torts, independent of handling the workers’ compensation claim. Here, as in Sibley, the independent tort should not be blocked by the improper application of the immunity.

The majority opinion ignores the import of Turner and apparently agrees with defendants’ argument that once an employee files a claim, the employee has already been injured, and the carrier is free to behave in any manner it desires. I cannot fathom that this was the intent of the legislature in creating the workers’ compensation scheme and I decline to say so here.

I would affirm the denial of dismissal on the intentional infliction of emotional distress claim.

      . As noted in Sullivan v. Liberty Mut. Ins. Co., 367 So.2d at 660 (quoting Noe v. Travelers Ins. Co., 172 Cal.App.2d 731, 342 P.2d 976 (1st Dist.1959)), if a carrier is liable for all intentional torts which occur after a workplace injury, the present workers' compensation system would be effectively eliminated:
      "if delay in medical service attributable to a carrier could give rise to independent third party court actions, the system of workmen's compensation could be subjected to a process of partial disintegration. In the practical operation of the plan, minor delays in getting medical service, such as for a few days or even a few hours, caused by a carrier, could become the bases of independent suits, and these could be many and manifold indeed. The uniform and exclusive application of the law would become honeycombed with independent and conflicting rulings of the courts. The objective of the Legislature and the whole pattern of workmen’s compensation could thereby be partially nullified."
      This reasoning is further supported not only by Florida case law, but by cases from numerous other jurisdictions which have addressed allegations of flagrant interference by a carrier in rendition of medical care, and which have all concluded that the worker's sole remedy lay in compensation proceedings under the Act. See Old Republic Ins. Co. v. Whitworth, 442 So.2d at 1078, and cases cited therein.

      . If a carrier "lies” regarding available benefits, such statements constitute a criminal offense and subject the carrier to penalties under section 440.105, Florida Statutes (2000). The Department of Insurance is authorized to revoke or suspend the authority of a workers’ compensation carrier for violation of Section 440.105. See § 440.106(3), Fla. Stat. (2000). Damages for bad faith are also authorized by the Act. See Florida Erection Serv., Inc. v. McDonald, 395 So.2d 203 (Fla. 1st DCA 1981).
      A claimant has a number of remedies if a workers’ compensation carrier wrongfully attempts to, or deprives or ignores, a request for medical treatment. Section 440.20, Florida Statutes (2000), sets a deadline for the timely payment of compensation claims and establishes penalties for late payments. Pursuant to section 440.34(3), Florida Statutes (2000), a claimant can recover attorneys’ fees from the carrier in a claim for medical benefits. Further, section 440.192, Florida Statutes (2000), provides a procedure for resolving any benefit disputes between a carrier and a claimant and sets strict deadlines for dispute resolution.
      A carrier is entitled to request an independent medical examination concerning com-pensibility or medical benefits. See § 440.13, Fla. Stat. (2000). However, if a claimant believes the exam would be inconsistent with his medical condition, he can seek relief from a judge of compensation claims who has the power to deny a carrier’s request. See Watkins Eng’r & Constructors v. Wise, 698 So.2d 294 (Fla. 1st DCA 1997); Fla. R. Work. Comp. P. 4.065. Aguilera thus does have remedies under the Act.

      . The dissent relies on Turner v. PCR, Inc., 754 So.2d 683 (Fla.2000), to support their claim that Inservices be denied the immunity provided by the Act. However, Turner is distinguishable from the instant case.

        Turner involved the continued use of a chemical, TFE by an employer, PCR, who had advanced knowledge of TFE’s ultrahazardous nature. In fact, the manufacturer of TFE, notified PCR of its intention to discontinue supplying TFE throughout the United States because of the inherent danger and the high risk of injury of using TFE. In addition, PCR had first hand knowledge of the high risk associated with handling TFE because there had been at least three other similar uncontrolled explosions in less than two years at PCR's chemical plant.
      PCR ignored the warnings and danger signs and continued to allow its employees to use TFE in unsafe procedures because PCR needed to meet a fast approaching contractual deadline. As a result, one employee died and another received serious injuries in an explosion caused by TFE.
      The injuries in Turner, can be traced directly to the grossly negligent actions of PCR. If not for PCR's decision to continue to use TFE, the employees would not have been injured.
      In contrast, Inservices had no part in causing Aguilera’s injuries. Aguilera would have needed medical care with or without Inser-vices’s alleged misconduct. Thus, there is no separate act, independent from Inservices's handling of the claim, which injured or "to a substantial certainty” would have caused Aguilera's injuries. Furthermore, as noted prior, other remedies for Aguilera’s claims are provided for by the Act.

      . Aguilera's argument that a carrier does not have immunity for acts which occur after a workplace injury, contradicts the obvious intent of section 440.11(4), Florida Statutes (2000), as well as common sense. Section 440.11(4) extends immunity from liability to the employer’s workers’ compensation carrier. Thus a carrier is immune from tort liability for acts taken to discharge its obligations under the Workers' Compensation Act. These obligations would necessarily include the adjustment of claims. The adjustment of a workers’ compensation claim presupposes an injury has already occurred, because if a worker has not already been injured, there would be no claim to adjust. If we were to adopt Aguilera’s reasoning, the result would be an effective stripping of all immunity because a carrier must necessarily act in the adjustment of a claim after an injury has already occurred. This is simply not a common sense construction and would contradict the intent of the statute, as well as encourage a multiplicity of collateral lawsuits.

      . However, dismissal of the bad faith, breach of contract and declaratory judgment counts is appropriate.


text:
    Charles E. CARTER, Appellant, v. The STATE of Florida, Appellee.
    No. 3D02-2842.
    District Court of Appeal of Florida, Third District.
    Dec. 26, 2002.
    Rehearing and Rehearing En Banc Denied Feb. 12, 2003.

      Charles E. Carter, in proper person.
    Richard E. Doran, Attorney General and Frank J. Ingrassia, Assistant Attorney General (Fort Lauderdale), for appellee.
    Before SCHWARTZ, C.J., and JORGENSON and SHEVIN, JJ.
   PER CURIAM.

Affirmed. See Carter v. State, 791 So.2d 568 (Fla. 3d DCA 2001), review denied, 817 So.2d 845 (Fla.2002).


author: MAY, J.

text:
    Irene GRABER, as Personal Representative of the Estate of Martin Graber, deceased, and on the behalf of the survivors thereof, Appellant, v. The JOSEPH L. MORSE GERIATRIC CENTER, INC., Appellee.
    No. 4D01-3899.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.
    Robert T. Bergin, Jr. of Robert T. Ber-gin, Jr. P.A., West Palm Beach, and Philip M. Burlington, of Caruso, Burlington, Bohn & Compiani, P.A., West Palm Beach, for appellant.

      Gail Leverett Parenti of Parenti, Falk, Waas, Hernandez & Cortina, P.A, Coral Gables and Susan P. Sistare of Sistare & Associates, Fort Lauderdale, for appellee.
   MAY, J.

Statutory construction and the art of pleading a claim for relief bring this case before the court. The trial court granted a partial summary judgment for the defendant on the survivor’s damage claims. By agreement with the defendant, the plaintiff voluntarily dismissed the estate’s damage claim without prejudice. The trial court entered a final judgment, from which the plaintiff appeals. We reverse.

The plaintiffs complaint alleged that the nursing home had violated her husband’s rights as a resident, under section 400.023, Florida Statutes (1999), resulting in his death. The plaintiff claimed damages for medical and funeral expenses on behalf of the estate, and damages for lost support and services, loss of companionship, and mental pain and suffering for the surviving spouse. While these damages are specifically enumerated in the Wrongful Death Act, the plaintiff did not use the words “Wrongful Death Act” in the original complaint.

On the eve of trial, the nursing home filed a motion for partial summary judgment. It argued that section 400.023, Florida Statutes (1999), limited claims to those on behalf of a resident and did not allow for survivor’s claims. It argued that the surviving spouse was not within the class of persons that the statute was intended to protect, had not suffered the type of injury that the statute was designed to prevent, and had no basis upon which to sustain her claim for survivor’s damages.

The trial court conducted a hearing on the motion for partial summary judgment on the first day of trial. When asked, plaintiffs counsel advised the trial court that the complaint was based only on chapter 400. Relying on this court’s opinion in First Healthcare Corp. v. Hamilton, 740 So.2d 1189 (Fla. 4th DCA 1999), rev. dismissed, 743 So.2d 12 (Fla.1999), the trial court granted the nursing home’s motion and struck all damage claims for the surviving spouse.

While on break following the ruling, the parties reached an agreement. The plaintiff agreed to voluntarily dismiss the estate’s claim for medical and funeral expenses without prejudice and allow a final judgment to be entered in favor of the nursing home to effectuate an appeal. Ten days after the hearing, but before the trial court entered the actual final judgment, the plaintiff attempted to amend the complaint. The amended complaint contained two counts. Both counts alleged claims for wrongful death, one based on a violation of rights under section 400.023, and the other based on simple negligence. The trial court denied the motion and entered the final judgment. The plaintiff moved for a rehearing to clarify that the original complaint sounded in wrongful death even though not specifically alleged. The trial court denied the motion.

At issue is whether the 1999 version of section 400.023, Florida Statutes (1999), allows the personal representative of a deceased nursing home resident to recover survivor’s damages under the Wrongful Death Act when the allegations of negligence are based on a violation of the resident’s rights as set forth in the statute. We hold that it does.

The 1999 version of section 400.023 provided:

Any resident whose rights as specified in this part are deprived or infringed upon shall have a cause of action against any licensee responsible for the violation. The action may be brought by the resident or his or her guardian, by a person or organization acting on behalf of a resident with the consent of the resident or his or her guardian, or by the personal representative or the estate of a deceased resident when the cause of death resulted from the deprivation or infringement of the decedent’s rights. The action may be brought in any court of competent jurisdiction to enforce such rights and to recover actual and punitive damages for any deprivation or infringement on the rights of a resident.... The remedies provided in this section are in addition to and cumulative with other legal and administrative remedies available to a resident and to the agency.

§ 400.023, Fla. Stat. (1999). The nursing home convinced the trial court that the statute’s language and our decision in Hamilton prohibited the personal representative from pursuing a claim for surviv- or’s damages. We find neither the statute nor our opinion in Hamilton prohibit the plaintiff from seeking those damages.

The statute itself speaks only in terms of “damages” without specifying what they are. It merely states that a personal representative may bring an action when the cause of death results from the deprivation or infringement of the decedent’s rights. As this court held in Hamilton, “the elements of damages recoverable by the personal representative of a deceased nursing home resident whose death results from deprivation of the deceased’s rights are limited to those which a personal representative is specifically authorized to recover under the Wrongful Death Act.” Hamilton, 740 So.2d at 1197 (Fla. 4th DCA 1999). The Wrongful Death Act specifically defines damages to include those of the decedent’s survivors. § 768.21, Fla. Stat. (1999).

Unlike the plaintiff in Hamilton, the plaintiff in this case did not seek damages for the decedent’s pain and suffering prior to his death. Rather, the plaintiff sought damages for the surviving spouse’s pain and suffering. In Hamilton, we held “that the personal representative of a deceased nursing home resident, just as in the case of the personal representative of any deceased, may not recover damages for decedent’s pain and suffering arising from the same injuries causing death.” Id. at 1195 (emphasis added). That was not the issue before the trial court in this case and is not the issue before us now.

While not incorporating the words ‘Wrongful Death Act” in the original complaint, the plaintiffs itemized damages are nearly verbatim of those found in section 768.21, Florida Statutes (1999). Like Hamilton, the basis of the negligence was the violation of statutorily established rights belonging to the decedent under chapter 400. We find the plaintiffs original complaint validly alleged negligence based on rights enumerated in section 400.23, Florida Statutes (1999), and sought statutorily authorized damages under section 768.21, Florida Statutes (1999). The trial court erred when it entered a partial summary judgment in favor of the defendant on the survivor’s damage claims. The judgment is reversed and the case remanded for proceedings consistent with this opinion.

STONE, J„ and JACOBUS, BRUCE, Associate Judge, concur.


text:
    DI MARE & DREWS, INC. a/k/a Tomic Mirko d/b/a Capri Motel, Appellants, v. Kendall KERRIGAN and Wendy Kerrigan, his wife, Appellees.
    No. 4D02-3112.
    District Court of Appeal of Florida, Fourth District.
    Dec. 26, 2002.
    Rehearing Denied Feb. 25, 2003.
    Keith J. Lambdin of Lambdin & Rosser, P.A., Plantation, for appellants.
    Joseph S. Kashi of Sperry, Shapiro & Kashi, P.A., Fort Lauderdale, for appellees.
   PER CURIAM.

Summarily affirmed under rule 9.315, Florida Rules of Appellate Procedure.

GUNTHER, FARMER and SHAHOOD, JJ., concur.