author: WARNER, J.

text:
    Mervin LEE, as Personal Representative of the Estate of Virginia Lee, deceased, Appellant, v. David SIMON, D.O., Columbia Palms West Hospital Limited Partnership d/b/a Palms West Hospital; William Jeffrey Davis, D.O.; Emergency Physicians Enterprises, Inc.; Eddie Velazquez, M.D.; Western Communities Family Practice of West Palm Beach, a/k/a Western Communities Family Practice Associates, Inc.; Steven Sacks, D.O.; South Florida Center of Gastroenterology, P.A.; Fred L. Simon, M.D.; A Mariano Ibarrola, M.D.; Palm Beach Surgical; Steven G. Goff, M.D.; Douglas L. Watson, M.D.; Jack Zeltzer, M.D.; Mitchell N. Davis, D.O.; Matthew J. Smith, D.O.; J.M.D.; Barry Abrams, M.D.; Barry Abrams, M.D., P.A.; Larry Bush, M.D.; and Suzanne Y. Succop, M.D., Appellees.
    No. 4D03-3292.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 2004.

      Christian D. Searcy and Karen Terry of Searcy Denney Scarola Barnhart & Ship-ley, P.A., and Edna L. Caruso of Edna L. Caruso, P.A., West Palm Beach, for appellant.
    Douglas M. McIntosh, Louise H. McMurray and Robert C. Weill of McIntosh, Sawran, Peltz, Cartaya & Petruccelli, P.A., Miami, for appellee David Simon, D.O.
   WARNER, J.

Mervin Lee, as personal representative of the Estate of Virginia Lee, appeals the trial court’s summary final judgment dismissing his medical malpractice claim against Dr. David Simon on the grounds that the statute of limitations had expired before Lee sued Simon. Lee contended that he was unable to discover the identity of Dr. Simon through the use of due diligence, and that the issue of due diligence is a question of fact for the jury. We hold that the statute of limitations commenced when Lee was aware of the injury (death) and the reasonable possibility that it was caused by negligence. Because there is no tolling provision that would apply to prevent the running of the statute, nor is the defendant equitably estopped from asserting the bar, the statute of limitations has run and we affirm the ruling of the trial court.

On May 31, 1998, Virginia Lee went to the emergency room of a local hospital complaining of abdominal pain and shortness of breath. She had a history of diverticulitis. She was initially seen by an emergency room physician. After an initial examination, Dr. Davis made a diagnosis of acute diverticulitis and possible sepsis. He contacted her primary care physician, Dr. Campitelli. Dr. David Simon was on call for Dr. Campitelli that day. Dr. Davis and Dr. Simon agreed that Virginia should be admitted to the hospital, and Dr. Simon gave the order to admit, also recommending a gastrointestinal consult. A nurse entered these orders on Virginia’s hospital chart on a form entitled “Physician Orders and Signature.” On the bottom, she handwrote “T.O. Simon.” Apparently this is the hospital’s abbreviation for telephone order by Dr. Simon. However, the emergency room records listed Dr. Campitelli as the admitting physician for Virginia.

Virginia was not seen by Dr. Ibarrola, a surgeon, until the next day. Exploratory surgery revealed a resected large bowel, perforated diverticula with abscess inflammation, as well as other complications. Following surgery, several other doctors saw Virginia, including Dr. Fred Simon, an associate of Dr. Ibarrola. Unfortunately, during a subsequent surgery while still hospitalized, Virginia suffered cardiac arrest and died on July 2, 1998. The Expiration Summary listed Dr. Campitelli as her physician. Nowhere does it list Dr. David Simon.

Believing medical malpractice occurred during Virginia’s care and treatment, Lee commenced pre-suit proceedings under section 766.106, Florida Statutes (1998), by filing a notice of intent to initiate suit against various physicians associated with Virginia’s care, including Dr. Campitelli and Dr. Fred Simon as well as twenty other healthcare providers involved in her treatment. Dr. David Simon was not identified as a potential defendant nor served with a notice of intent.

Lee claims that he first discovered Dr. David Simon’s involvement with Virginia’s care when Dr. Campitelli filed an affidavit during the pre-suit process on July 17, 2000, explaining that Dr. David Simon had telephoned the admitting orders for Virginia. A month later, Lee filed suit against twenty-five defendants but did not name Dr. David Simon because he had not been subject to pre-suit procedures. On February 28, 2001, Lee served notice of intent to sue on Dr. David Simon, who responded by denying the claim.

Lee filed an amended complaint in June 2001 joining Dr. David Simon. Dr. Simon filed an answer and then a motion for summary judgment based solely on the statute of limitations. Simon argued that the statute of limitations expired on September 1, 2000, which was two years plus the ninety-day extension period allowed by statute from the date of Virginia’s admission to the hospital. Simon argued that his involvement in Virginia’s care was readily available through a review of her records because of the nurse’s notation of “T.O. Simon” on the admitting form. Had Lee’s attorneys exercised due diligence, they could have discovered Simon’s identity by simply calling the hospital. Because more than two years had passed from the date of Virginia’s death and the initiation of pre-suit investigation, the statute of limitations had run, entitling Simon to summary judgment. Countering Simon’s argument, Lee maintained there was nothing in the medical records to indicate that Dr. David Simon was involved in Virginia’s treatment, and that he had not learned of Simon until Campitelli submitted his affidavit.

The trial court granted the summary-judgment, finding that the statute of limitations had expired. It relied on Frankowitz v. Propst, 489 So.2d 51 (Fla. 4th DCA 1986), in which we held that where the means of discovering a physician’s involvement were readily available to plaintiff through the medical records, plaintiffs delay in examining those records did not toll the statute, and the physician was entitled to rely on the bar of the statute of limitations when suit was filed after its expiration. Lee appeals this final judgment.

The statute of limitations for medical malpractice actions is found in section 95.11(4)(b), Florida Statutes (1998):

An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence.... In those actions covered by this paragraph in which it can be shown that fraud, concealment, or intentional misrepresentation of fact prevented the discovery of the injury the period of limitations is extended forward 2 years from the time that the injury is discovered or should have been discovered with the exercise of due diligence ....

In Barron v. Shapiro, 565 So.2d 1319, 1322 (Fla.1990), the court construed an earlier but substantially similar version of this statute as triggering the running of the statute “when the plaintiff should have known either of the injury or the negligent act.” The court modified this holding in Tanner v. Hartog, 618 So.2d 177, 181-82 (Fla.1993), and stated:

We hold that the knowledge of the injury as referred to in the rule as triggering the statute of limitations means not only knowledge of the injury but also knowledge that there is a reasonable possibility that the injury was caused by medical malpractice. The nature of the injury, standing alone, may be such that it communicates the possibility of medical negligence, in which event the statute of limitations will immediately begin to run upon discovery of the injury itself. On the other hand, if the injury is such that it is likely to have occurred from natural causes, the statute will not begin to run until such time as there is reason to believe that medical malpractice may possibly have occurred.

(Footnote omitted). Thus, knowledge of an injury that may be caused by medical negligence is sufficient to commence the running of the statute of limitations. In this case, the statute started running with the death of Virginia. Lee cannot contest the fact that he knew both of the injury (death) and that negligence may have occurred. He filed a notice of intent to pursue litigation, and he served a notice on Dr. Campitelli, as the admitting physician, because he believed that negligence had occurred at the time Virginia was admitted to the hospital due to a failure to properly examine and diagnose her. Thus, he intended to bring a claim against the admitting physician. Contrary to Lee’s argument, the statute of limitations does not commence when he discovers a person to be sued but instead commences when he has notice of the injury and its possible cause by medical negligence.

The question in this case is not when the statute began to run but whether Lee’s failure to discover the identity of the doctor somehow tolls the statute of limitations. Section 95.11(4)(b) provides an extension where fraud or intentional concealment prevents the discovery of the injury, but it does not include a similar provision for the failure to discover the negligent actor. Section 95.051(1), Florida Statutes (1998), provides when the running of the statute of limitations may be tolled. None of the grounds contained in that statute apply to this case.

In several cases we have considered whether the fraudulent concealment of the identity of the negligent actor tolls the statute. In International Brotherhood of Carpenters & Joiners of America, Local 1765 v. United Ass’n of Journeymen Apprentices, 341 So.2d 1005 (Fla. 4th DCA 1976), the plaintiffs building was damaged by an explosion. Suit was not brought until after the expiration of the applicable statute of limitations because the plaintiff did not discover the identity of the tortfea-sor. We held that fraudulent concealment did not toll the statute of limitations, reasoning:

It is clear that the doctrine, recently reasserted by our Supreme Court in Nardone v. Reynolds, 333 So.2d 25 (Fla.1976), and cases cited, under which the statutory period is tolled because of a fraudulent concealment of the existence of a Cause of action which would give rise to a right to sue does not apply here. In this case, the plaintiff plainly knew that it had a cause of action in tort as soon as its building blew up. Its ignorance as to the identity of the potential defendant does not affect this fact, see 1 FlaJur., Actions, s 22, p. 148, nor, as all the authorities say, bring it within this limited exception to the statutory rule.
It can hardly be denied that the result we reach, which in effect rewards those who by criminal skill not only stealthily destroy another’s property but avoid detection during the statutory period as well, is a harsh one. But all statutes of limitations, which by their very nature destroy otherwise just causes merely because of the passage of time, are inherently harsh. Harsh results represent a trade-off which the Legislature has decided it is willing to make in exchange for the burying of stale claims. Even in the provisions of F.S. s 95.051, enacted after the events involved in this case, the Legislature has declined to exclude the situation before us from the effect of this decision; it certainly had not done so before. In the end, Its determination should, and therefore does, prevail.

341 So.2d at 1006-07 (citations omitted).

We relied on International Brotherhood in Sullivan v. Fulton County Administrator, 662 So.2d 706, 707-08 (Fla. 4th DCA 1995), rev. in part on other grounds, 753 So.2d 549 (Fla.1999), and held, with some expression of distaste, that the fraudulent concealment of the identity of a murderer so that a wrongful death action could not be brought within the two-year statute of limitations did not toll the statute. Again, in Putnam Berkley Group, Inc. v. Dinin, 734 So.2d 532, 534 (Fla. 4th DCA 1999), we held that fraudulent concealment of the identity of a wrongdoer did not toll the statute because section 95.051 did not contain such a provision, and section 95.051(2) specifically provides that “ ‘No disability or other reason shall toll the running of any statute of limitations except those specified in this section....’”

The supreme court ameliorated the effect of this construction of the statute in Major League Baseball v. Morsani, 790 So.2d 1071 (Fla.2001). While acknowledging that the reasons for tolling the statute set forth in section 95.051 were a legislatively mandated exclusive set of circumstances that would suspend the relevant statute of limitations, it found the principle of equitable estoppel could be used to prevent a defendant from raising the statute of limitations as a bar to suit. 790 So.2d at 1075-77. The court stated:

The doctrine of estoppel is applicable in all cases where one, by word, act or conduct, willfully caused another to believe in the existence of a certain state of things, and thereby induces him to act on this belief injuriously to himself, or to alter his own previous condition to his injury. State ex rel. Watson v. Gray, 48 So.2d 84, 87-88 (Fla.1950).

Id. at 1076. Thus, while tolling operates on the statute, equitable estoppel operates on the party.

We elaborate on the construction of tolling provisions and equitable estoppel to contrast with the facts of this case. Here, there is no suggestion of fraudulent concealment of the identity of the doctor, and even if there were, it would not toll the statute of limitations. Equitable estoppel would not apply because there is nothing in the record to suggest that the doctor in any way misled or prevented Lee from discovering his identity. The hospital medical records may have been inaccurate by referring to Dr. Campitelli as the admitting physician in some places, but this was not due to any fault of Dr. David Simon. The records did contain the name Simon on the physician’s notes regarding admission. Nothing suggests any reason why Dr. David Simon should be equitably estopped from asserting the bar of the statute of limitations.

Lee in essence argues that he should be relieved from the effect of the statute of limitations because of excusable neglect. We do not doubt that he used care in reviewing the medical records and simply missed Dr. Simon’s name. But excusable neglect is not a ground for tolling the statute. And it is not attributable in any way to Dr. David Simon’s conduct.

In Louis v. South Broward Hospital District, 353 So.2d 562, 563 (Fla. 4th DCA 1977), we held that the statute of limitations barred suit where the plaintiff filed suit against the wrong defendant and later tried to amend to add a different defendant after the running of the statute of limitations. The plaintiff filed suit against Hollywood Memorial Hospital of West Hollywood. The summons was issued to Hollywood Memorial Hospital-North Bro-ward Hospital District. An amended summons and complaint was issued after the running of the applicable statute of limitations naming Hollywood Memorial Hospital-South Broward Hospital District at a different address than the first summons. The trial court granted summary judgment, finding that the action was instituted against South Broward Hospital District, a different entity than North Broward Hospital District, after the running of the statute of limitations. We said, “An amendment which merely corrects a misnomer might well relate back to the date the complaint was originally filed but this relation back rule is inapplicable where the effect is to bring new parties into the suit.” 353 So.2d at 563.

Here, Lee filed a notice of intent to litigate against Dr. Campitelli for his negligence in Virginia’s admission to the hospital. After finding that Dr. David Simon was the admitting physician, Lee filed suit against him. Just as in Louis, a new party was added, and the amendment cannot relate back to the filing of the suit.

Finally, Frankowitz expresses the principle that knowledge of the contents of the medical records are imputed to a party even when the contents are not known. 489 So.2d at 52 (citing Nardone, 333 So.2d at 34). In Frankowitz, the injured patient knew that Dr. Frankowitz had treated her for a heart condition but did not realize that he was also involved in her treatment for gastrointestinal disorders, which formed the bases of her medical malpractice claim. The details of his treatment were in the records but the plaintiff did not read them because she thought they were not germane to her claim. Nevertheless, knowledge of whatever was contained in the medical records was attributable to the plaintiff. Id. Likewise, knowledge of what was in Virginia’s medical records was attributable to Lee. This included the reference to “Simon” on the orders admitting Virginia to the hospital. Although it may have required some investigation to discover the identity of Dr. David Simon, we cannot conclude that it was impossible. Moreover, it does not appear that the Legislature has provided for an exception to the running of the statute of limitations for such cases.

For these reasons, we affirm the final judgment in favor of Dr. David Simon based upon the bar of the statute of limitations.

SHAHOOD, J., and GATES, MICHAEL L., Associate Judge, concur.

      . The supreme court issued two opinions in this case. The first agreed with this court’s analysis of the tolling issue. Fulton County Adm’r v. Sullivan, 22 Fla. L. Weekly S578, 1997 WL 589312 (Fla. Sept. 25, 1997). We quoted extensively from this opinion in Putnam Berkley Group, Inc. v. Dinin, 734 So.2d 532, 533-34 (Fla. 4th DCA 1999). However, the opinion was subsequently withdrawn, and the case was decided on another issue. See Fulton County Adm’r v. Sullivan, 753 So.2d 549 (Fla.1999). The second opinion did not address the tolling statute.


source: Caselaw Access Project

license: Public Domain

text:
    Shirail NATSON, Appellant, v. ECKERD CORPORATION, INC., Appellee.
    No. 4D03-4191.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 2004.

      Stanley Kiszkiel of Stanley Kiszkiel, P.A., Pembroke Pines, for appellant.
    Susan L. Dolin of Rothstein, Rosenfeldt, Dolin & Pancier, P.A., Fort Lauderdale, for appellee.
   WARNER, J.

Appellant, Shirail Natson, appeals a directed verdict in favor of Eckerd Corporation on her claim for sexual harassment in violation of the Florida Civil Rights Act, section 760.10, Florida Statutes (2002). The court granted a directed verdict based upon Eckerd’s affirmative defense that it exercised reasonable care to prevent and promptly correct sexual harassment and that Natson unreasonably failed to take advantage of preventative opportunities. We hold that the court erred in directing a verdict because the evidence taken in a light most favorable to Natson would defeat the affirmative defense. We therefore reverse.

Natson was employed as a photo lab technician for an Eckerd Store. Her regular supervisor was Máxime Nicolas, but Jennifer Woods was Nicolas’s co-supervisor of the photo lab. In the joint pre-trial stipulation, Eckerd admitted that Woods was a supervisor. Howard Young was the overall photo lab manager and was the supervisor of both Nicolas and Woods.

About a month after Natson began working at Eckerd, Nicolas started touching her inappropriately. Natson told him to keep his hands to himself, but the conduct continued. That same month, she reported the conduct to Woods. Natson testified that she did not tell Woods not to tell anyone about the situation. Woods told her that she would “take care of it.” Woods admitted that she talked to Natson about Nicolas’s conduct, although she recalls Natson telling her only that Nicolas made her uncomfortable. Woods did not tell anyone about her conversations with Natson and no action was taken.

Natson testified that after her conversation with Woods, the touching and verbal harassment became worse. After another month she went back to Woods and asked her if she took care of the problem. Woods said she had not but that she would talk to the district manager, Patte Neville, the next day. That same day, Nicolas took an opportunity to rub Natson’s nipple while handing her a paper. At that point Nat-son decided to leave and walked out of the store.

Natson returned the next day and spoke to the store manager, Daryl Turner. She informed him that Nicolas had been touching her and making comments. She told Turner that she had wanted to tell him, but every time she went back to his office, Nicolas followed her. She told Turner that she had informed Woods about her problem, and Turner said that Woods should have reported it to him so that something could be done. Turner then called in the Human Resources Director, Marilyn Hannan, who conducted an investigation during which she interviewed Nat-son and contacted Woods. Woods told Hannan that Natson had complained to her on several occasions about Nicolas touching her. Natson was eventually terminated by Eckerd and brought this claim for sexual harassment. At the close of all of the evidence both parties moved for directed verdicts. The court granted Eck-erd’s motion for directed verdict on its affirmative defense that Natson failed to follow the company’s policy on sexual harassment. This appeal follows.

A motion for directed verdict should be granted only where the evidence and reasonable inferences deduced from it, taken in the light most favorable to the non-moving party, could not sustain a verdict for the party moved against. See Ortlieb v. Butts, 849 So.2d 1165, 1168 (Fla. 4th DCA 2003); Tenny v. Allen, 858 So.2d 1192, 1195 (Fla. 5th DCA 2003). Where there is conflicting evidence or different reasonable inferences may be drawn from the evidence, then the factual issues must be submitted to the jury. Tenny, 858 So.2d at 1196.

An employee may assert a claim for sexual harassment under section 760.10, Florida Statutes (2002). “The Florida Civil Rights Act is patterned after Title VII, and therefore federal case law regarding Title VII is applicable.” Castleberry v. Edward M. Chadbourne, Inc., 810 So.2d 1028, 1030 n. 3 (Fla. 1st DCA 2002). Specifically, section 760.10, Florida Statutes (2002), provides:

(1) It is an unlawful employment practice for an employer:
(a) To discharge or to fail or refuse to hire any individual, or otherwise to discriminate against any individual with respect to compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, national origin, age, handicap, or marital status.

To establish a prima facie case of hostile work environment sexual harassment, a plaintiff must establish: (1) he or she is a member of a protected group; (2) he or she was the subject of unwelcome sexual harassment; (3) the harassment occurred because of his or her sex; and (4) the harassment was sufficiently severe or pervasive to alter the terms and conditions of his or her employment. Breda v. Wolf Camera & Video, 222 F.3d 886, 889, n. 3 (11th Cir.2000). Additionally, “the employee must show that the employer knew or should have known of the harassment and failed to take remedial action.” Castleberry, 810 So.2d at 1029-30. Eckerd does not dispute that Natson proved a prima facie case of sexual harassment.

Eckerd asserted as an affirmative defense to Natson’s sexual harassment claim its policy on sexual harassment, which it says Natson did not follow. It cites Faragher v. City of Boca Raton, 524 U.S. 775, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998), in which the Supreme Court said:

An employer is subject to vicarious liability to a victimized employee for an actionable hostile environment created by a supervisor with immediate (or successively higher) authority over the employee. When no tangible employment action is taken, a defending employer may raise an affirmative defense to liability or damages, subject to proof by a preponderance of the evidence, see Fed. Rule Civ. Proc. 8(c). The defense comprises two necessary elements: (a) that the employer exercised reasonable care to prevent and correct promptly any sexually harassing behavior, and (b) that the plaintiff employee unreasonably failed to take advantage of any preventive or corrective opportunities provided by the employer or to avoid harm otherwise ... No affirmative defense is available, however, when the supervisor’s harassment culminates in a tangible employment action, such as discharge, demotion, or undesirable reassignment.

Faragher, 524 U.S. at 807-08, 118 S.Ct. 2275 (citations omitted). The trial court ruled as a matter of law that Natson did not suffer a tangible employment action as her termination was not the result of the sexual harassment, so the affirmative defense is available to Eckerd. The court directed a verdict in Eckerd’s favor on the affirmative defense because (1) Eckerd exercised reasonable care to prevent sexual harassment by promulgating a reasonable policy, and (2) Natson unreasonably failed to take advantage of the preventative or corrective opportunities provided in the policy. The trial court found that Natson did not report to the appropriate designated person.

Eckerd claims that its “official” sexual harassment policy is contained in its Policies and Procedures Manual. In its manual, an employee is required to report sexual harassment to his or her supervisor. If the supervisor is the harasser, then the employee should report the harassment to the person to whom his or her supervisor reports or the employee may contact the Human Resources Department. This Policies and Procedures Manual is not provided to employees. Instead, employees receive the Associate’s Handbook, which tells an employee to report sexual harassment to “management and the appropriate human resource representative. If you feel uncomfortable about approaching someone about the matter locally, you can notify the Harassment Hotline at the Support Center.” A phone number is included. Finally, in the store’s employee break room a poster informs the employees of Eckerd’s “Sexual Harassment Policy.” The poster provides that any employee who believes that he or she has been subjected to sexual harassment should bring it to the attention “of their manager, Human Resource representative, or any supervisor with whom they feel comfortable ... Any supervisor who becomes aware of possible sexual harassment should immediately notify Human Resources.”

Although Eckerd contends that its “official” sexual harassment policy is contained in its Policies and Procedures Manual, which requires reporting to the employee’s supervisor or the supervisor’s supervisor, this version was not. distributed to the employees and therefore could not, as a matter of law, establish the first prong of the affirmative defense. See Faragher, 524 U.S. at 808, 118 S.Ct. 2275. Moreover, it is apparent that each of the three versions of the policy, only two of which are published to the employees, permit the employee to report sexual harassment to a different set of persons. The official policy requires reporting to the employee’s immediate supervisor, the supervisor’s supervisor, or Human Resources. The Associate’s Handbook tells employees to report harassment to “management,” and the break room poster tells employees to report the behavior to their manager, Human Resources, or “any supervisor with whom they feel comfortable.”

This case is similar to Frederick v. Sprint/United Management Co., 246 F.3d 1305 (11th Cir.2001). Much like Eckerd, Sprint promulgated three different versions of its sexual harassment policy, each of which permitted the employee to report harassment to different persons. The Eleventh Circuit held that a question of fact existed as to whether Sprint had an effective sexual harassment policy that would meet the first prong of Faragher. Similarly, it is for the jury to determine which version of the policy was the one that Natson should have followed.

Secondly, under the two policies promulgated to the employees through the handbook and break room poster, the evidence taken in the light most favorable to Natson shows that she reported the incidents to an appropriate person. Eckerd admitted in its joint pretrial stipulation that Woods was a supervisor. Nicolas was Natson’s immediate supervisor, and Howard Young was Nicolas’s supervisor. It is within the jury’s province to infer that Natson reported the harassment to Woods instead of Young, because as a woman she felt more comfortable reporting to Woods. As a supervisor, Woods could also be classified as “management.” Therefore, there was evidence presented that negated the second prong of the Faragher affirmative defense. Eckerd’s own policy, published through the break room poster, required Woods, not Natson, to report the matter to Human Resources. See Breda, 222 F.3d at 890 (stating that employee who follows the clear and published policy of reporting harassment to the appropriate person need not be concerned with whether he or she pursued the complaint far enough up the company ladder; reporting to an appropriate person is sufficient notice to company).

Eckerd maintains that Natson expressly failed to avail herself of the opportunity to complain because one evening at work when Howard Young, Natson’s supervisor, asked her how she was doing, she responded, “Pretty okay” and did not reveal to him anything about the harassment. It likens her response to the facts of Scrivner v. Socorro Independent School District, 169 F.3d 969 (5th Cir.1999). There, a teacher who was allegedly being sexually harassed by the school principal was interviewed by a school investigator regarding the conduct of the principal in connection with anonymous tips. During the interview, the teacher specifically denied that the principal was sexually harassing her and did not report the alleged harassment for the first ten months it occurred. The court held that the school district established its affirmative defense because the teacher lied and intentionally misled investigators when given the opportunity to reveal the harassment.

We hardly think that Natson’s reply to such a casual inquiry of how she was doing, which seems more like social pleasantries than a specific investigation, is sufficient to show that Natson unreasonably failed to avail herself of corrective opportunities. Unlike Scrivner, no investigation was ongoing, and Young did not pose any specific question respecting harassment. While Eckerd may argue to the jury that Natson should have taken the opportunity to report the harassment when Young exchanged these pleasantries, this does not mandate a directed verdict in its favor.

For these reasons, we reverse the final judgment and remand for a new trial.

SHAHOOD and MAY, JJ., concur.


text:
    Terence EVANS and Edwina Evans, Appellants, v. Wesley P. HAMILTON and Karena R. Hamilton, Appellees.
    No. 4D03-4398.
    District Court of Appeal of Florida, Fourth District.
    Oct. 27, 2004.
    Samuel M. Spatzer and Peter Oppenheimer of Samuel M. Spatzer, P.A., Coral Gables, for appellants.
    Mark M. Carroll of Law Office of Michael W. Whitaker, Plantation and Betsy E. Gallagher and Michael C. Clarke of Cole, Scott & Kissane, P.A., Tampa, for appellees.
   WARNER, J.

Appellants, Terence and Edwina Evans, sued appellees, Wesley and Karena Hamilton, for injuries suffered in an automobile accident. After trial, the jury returned a verdict for the Hamiltons, finding no negligence. During the trial and over the Ev-anses’ objection, the Hamiltons cross-examined Mr. Evans as to his refusal to submit to a blood-alcohol test. He contends that this violated the accident report privilege provided in section 316.066, Florida Statutes (2000). We hold that the privilege does not apply to a refusal to submit to a blood-alcohol test.

Section 316.066(4) provides that statements made by a person involved in an accident in order to complete a crash report as required by the statute, as well as the actual crash report, are not admissible as evidence in any civil or criminal trial. In Brackin v. Boles, 452 So.2d 540, 544 (Fla.1984), the court held that this statute provides immunity only to “such statements and communications as the driver, owner, or occupant of a vehicle is compelled to make in order to comply with his or her statutory duty under section 316.066(1) and (2) [to report an accident]” so as to avoid a Fifth Amendment violation. (Emphasis added). The test to be applied in determining whether the accident report privilege is applicable is whether the privilege against self-incrimination was violated by requiring the person involved in the accident to answer the questions posed. See State v. Norstrom, 613 So.2d 437, 440 (Fla.1993).

The United States Supreme Court has held that “a refusal to take a blood-alcohol test, after a police officer has lawfully requested it, is not an act coerced by the officer, and thus is not protected by the privilege against self-incrimination.” South Dakota v. Neville, 459 U.S. 553, 564, 103 S.Ct. 916, 74 L.Ed.2d 748 (1983). It determined that the state does not compel a defendant to refuse to submit to a blood-alcohol test by giving the defendant the choice to submit to the test or not. Id. Such refusal may be admitted into evidence without violating the Fifth Amendment. Id.; see also State v. Sowers, 442 So.2d 239, 240 (Fla. 5th DCA 1983).

Because a refusal to take a blood-alcohol test is not compelled, and admission of such refusal does not violate the Fifth Amendment, the trial court did not err in finding that section 316.066 does not prevent the admission into evidence of Mr. Evans’s refusal to submit to a blood-alcohol test.

Affirmed.

SHAHOOD, J., and GATES, MICHAEL L., Associate Judge, concur.


author: PER CURIAM.

text:
    Kendrick ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 1D03-4701.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2004.

      Nancy A. Daniels, Public Defender, and Paula S. Saunders, Assistant Public Defender, Tallahassee, for Appellant.
    Charles J. Crist, Jr., Attorney General, and Charlie McCoy, Senior Assistant Attorney General, Tallahassee, for Appellee.
   ON MOTION FOR CLARIFICATION

PER CURIAM.

Appellee seeks clarification of this Court’s opinion filed August 18, 2004, in which we reversed the denial of appellant’s motion to suppress evidence. We grant the motion for clarification, and substitute the following.

Appellant, Kendrick Robinson, appeals from his conviction following his nolo con-tendere plea to one count of possession of methamphetamine. Appellant’s plea was conditioned on the reservation of his right to appeal the denial of his motion to suppress, which is dispositive of the case. We reverse the denial of the motion with directions that the judgment and sentence be vacated.

Appellant was arrested May 6, 2003, and charged with possession of one pill of methamphetamine, a controlled substance, and resisting arrest without violence. In his motion to suppress evidence, appellant alleged that officers improperly arrested him on a warrant for violation of probation which had been served six days earlier, and was no longer active. The motion states that the same sheriffs office that arrested appellant on May 6, 2003, served the warrant six days earlier in circuit case 01-140CF. Appellant cited State v. White, 660 So.2d 664 (Fla.1995), for the proposition that his arrest was illegal because there was no active or valid warrant for his arrest.

The narrative portions of the reports prepared in connection with appellant’s arrest reveal that the arresting officers observed appellant standing on the sidewalk at Buddy Parker Park in Jasper, Florida. The officers believed there was an active warrant for appellant’s arrest and approached him for that reason. When the officers approached, appellant fled on foot. The officers gave chase, apprehended appellant, and placed him under arrest. During the ensuing search, a methamphetamine pill was discovered in appellant’s possession. The methamphetamine pill is the subject of the motion to suppress evidence.

At the suppression hearing, the prosecutor advised the trial court that “officers arrested Mr. Robinson under the belief that he had an active warrant. Upon arresting him, they found drugs and he was arrested on that charge as well.” Defense counsel advised the court that six days prior to the arrest underlying this appeal, appellant was served with the warrant and a violation of probation hearing was held. Thus, there was no active warrant in existence on May 6, 2003, to justify appellant’s arrest and the search which resulted in the discovery of the contraband. The prosecutor stipulated to the facts recited by defense counsel, but urged that appellant’s flight raised suspicion that criminal activity was afoot, thus the seizure of drugs following appellant’s arrest was proper. According to the prosecutor, the officers did not announce that they had a warrant; rather, they believed a valid warrant was outstanding when they approached appellant.

The facts underlying the motion to suppress were presented through representations and stipulations offered by the prosecutor and defense counsel. The trial court denied the motion to suppress “without prejudice.” The court’s transcribed comments suggest the court would be receptive to further defense challenges to the propriety of the arrest and search, if evidence subsequently revealed through discovery would support suppression. However, the court was persuaded by the prosecutor’s argument that appellant’s flight justified his arrest and the seizure of contraband.

On October 1, 2003, appellant entered a negotiated plea of nolo contendere, expressly reserving his right to' appeal the denial of his motion to suppress evidence, which the parties agreed was dispositive. The trial court accepted the plea and imposed three years of drug-offender probation, together with a fine and various costs.

Our review of a trial court’s ruling on a motion to suppress evidence involves a mixed question of law and fact. The competent-substantial-evidence standard of review is applicable to the trial court’s findings of fact. The trial court’s application of the law to the facts is reviewed de novo. See Connor v. State, 803 So.2d 598, 608 (Fla.2001); Hines v. State, 737 So.2d 1182, 1184 (Fla. 1st DCA 1999); E.B. v. State, 866 So.2d 200, 202 (Fla. 2d DCA 2004).

A conditional plea of nolo contende-re is permissible only if the legal issue to be appealed is dispositive of the case. See Brown v. State, 376 So.2d 382, 384 (Fla.1979). “A ruling is ‘dispositive’ ... if, at the time of the plea, it is clear that the state cannot or will not proceed with prosecution of the case on remand in the event the ruling is reversed.” Griffin v. State, 753 So.2d 676, 677 (Fla. 1st DCA 2000). “When the parties stipulate in the trial court that an issue is determinative in this sense, the state is foreclosed from arguing otherwise on appeal.” Id. See also Phuagnong v. State, 714 So.2d 527, 529 (Fla. 1st DCA 1998) (state’s stipulation that ruling on suppression motion was dispositive constitutes a waiver of its right to argue otherwise on appeal).

Here, based on the trial court’s “without prejudice” comment, appellee argues the suppression issue is not final; thus, this court lacks jurisdiction over the appeal. Appellee acknowledges the parties stipulated that the suppression issue was dispositive, but relies on Morgan v. State, 486 So.2d 1356 (Fla. 1st DCA 1986), for the proposition that the parties’ stipulation does not control, if the effect of the ruling indeed is not dispositive. Because the denial of the suppression motion in this case clearly is dispositive, and the parties so stipulated, appellee’s rebanee on Morgan is misplaced. The record before this court demonstrates that the state had no evidence with which to prosecute appellant other than that which is the subject of the suppression motion. Indeed, appellee does not assert that the state could proceed with the prosecution if the trial court had granted the motion to suppress.

We also reject appellee’s arguments that the record fails to show that the warrant was void and that the officers’ good faith reliance on it excused the lack of a valid warrant. Because these arguments were not raised in the lower tribunal, they cannot be considered on appeal. See State v. Dupree, 656 So.2d 430, 432 (Fla.1995). Even if considered, the arguments would be rejected as unsound. The trial court expressly found that the warrant was void. Moreover, the officers’ good faith reliance on the validity of a warrant cannot save an improper search, because the good faith exception articulated in United States v. Leon, 468 U.S. 897, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984), relates to judicial error in issuing a warrant unsupported by probable cause, not to police misconduct in making an unlawful arrest based on a void warrant. See State v. White, 660 So.2d 664, 666-67 (Fla.1995).

Turning to the merits, we conclude, based on White, the motion to suppress should have been granted. In White, the arrest was premised upon the assumption that an outstanding active warrant had been returned against defendant, when in fact the warrant had been served four days earlier and was no longer valid at the time White was arrested. Id. at 665-66. The supreme court approved the trial court’s ruling that a void warrant cannot support the arrest and an incidental search, and approved the suppression of contraband found in the search incident to his arrest. We therefore agree with appellant that the officers’ reliance on the void warrant was insufficient to justify appellant’s arrest and search.

We note that there is nothing in the record to suggest that the officers encountered appellant in a high-crime area or that the surrounding events indicated that criminal activity was afoot. Rather, the attorneys’ representations establish that an officer called out to appellant, stating that he needed to talk to appellant about some papers. The defendant initially approached the officer, then turned and ran. When appellant ran, officers chased him for three blocks, and apprehended him. The methamphetamine pill sought to be suppressed was discovered incident to appellant’s arrest, which officers believed was justified by the invalid warrant.

Appellee concedes that flight alone is not a proper basis for a founded suspicion of criminal activity as would justify an arrest, or even an investigatory stop. See E.B. v. State, 866 So.2d 200, 203 (Fla. 2d DCA 2004). See also Castillo v. State, 536 So.2d 1134, 1137 (Fla. 2d DCA 1988). Because the warrant was void and appellant’s flight is by itself insufficient to justify the arrest and incidental search, the lower court erred in denying the motion to suppress.

REVERSED.

ERVIN, ALLEN and HAWKES, JJ., Concur.

      . The state in turn nolle prosequied the resisting arrest charge.


author: BENTON, J.

text:
    Alexander ADAMIDES, Appellant/Cross-Appellee, v. CITY OF MIAMI and City of Miami Risk Management, Appellees/Cross-Appellants.
    No. 1D03-2639.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2004.
    James J. McNally, Esquire of James J. McNally, P.A., Coral Gables, for Appellant/Cross-Appellee.
    Alejandro ■ Vilarello, City Attorney; Mimi V. Turin, Assistant City Attorney and Eduardo Neret, Esquire, Miami, for Appellees/Cross-Appellants.
   BENTON, J.

On this appeal from an order denying permanent total disability workers’ compensation benefits — over and above a fireman’s disability retirement pension' — on account of an accident that occurred on July 12, 1969, in the course and scope of Alexander Adamides’s employment with the City of Miami, we affirm on the authority of section 440.09(4), Florida Statutes (1969). We also affirm on the City’s cross-appeal.

Although long since repealed, see ch. 73-127, § 2, Laws of Fla., section 440.09(4), Florida Statutes (1969), controls because the statute was in effect on the date of the accident. See City of Miami v. Levi, 599 So.2d 776, 777 (Fla. 1st DCA 1992) (“[Sjubstantive rights under Workmen’s Compensation Law are fixed as of the time of injury to the employee.”). The statute provided:

When any employee of the state ... or quasi-public corporation therein ... receives compensation under the provisions of this chapter by reason of the disability ... of such employee resulting from an injury arising out of and in the course of employment with such employer, and such employee ... is entitled to receive any sum from any pension or other benefit fund to which the same employer may contribute, the amount of any payment from such pension or benefit fund allocable to any week with respect to which such employee ... receives compensation under this chapter shall be reduced by the amount of the compensation for such week; provided that if the amount of the payment from such pension or benefit fund allocable to any week is less than the amount of such compensation for such week only the amount of the pension or benefit payment allocable to such week shall be affected and the amount of the difference between the compensation and the pension or benefit payment allocable to one week shall not reduce the pension or benefit payment allocable to any subsequent week.

§ 440.09(4), Fla. Stat. (1969). Initial judicial interpretation of the statute made “it clear that the effect of section 440.09(4) was to require [or at least to allow] a reduction in compensation benefits,” City of Miami v. Jones, 593 So.2d 544, 546 (Fla. 1st DCA 1992), when aggregate benefits that a public employer paid would otherwise have exceeded full pension benefits.

At all pertinent times, the City of Miami Fire Fighters’ and Police Officers’ Retirement Trust, a pension or benefit fund to which the City contributed, paid Mr. Adamides full disability retirement pension benefits. Despite having received these pension benefits, he seeks compensation benefits for the period during which the City paid no permanent total disability workers’ compensation payments.

He contends that the decision in City of Hollywood v. Lombardi, 770 So.2d 1196 (Fla.2000), has, by implication, modified the initial construction of section 440.09(4). But Lombardi was concerned with the so-called Grice and Barragan offsets, and the Lombardi opinion is silent concerning section 440.09(4), which, after all, had been repealed some thirty years earlier. The Lombardi opinion makes no mention of the statutory reference to “any pension or other benefit fund to which the [public] employer may contribute,” focusing instead on whether the “pension plan is funded at least in part with employees’ contributions.” 770 So.2d at 1205 (citation omitted). Nothing suggests that the Lombardi court had any purpose to alter the established construction of section 440.09(4) or modify the rule laid down in Graham. 138 So.2d at 754. The Lombardi court makes no mention of the Graham decision whatsoever. See F.B. v. State, 852 So.2d 226, 228 (Fla.2003) (“[T]his Court does not intentionally overrule itself sub silentio.”) (citation omitted).

On cross-appeal, the City asserts a right to repayment of permanent total disability benefits it paid Mr. Adamides after July 29, 2001. But the issue was not presented to the Judge of Compensation Claims and is not properly before this court. “Since this issue is raised for the first time on appeal, the [Judge of Compensation Claims] has not been afforded an opportunity to determine the merits of [the City’s] assertion.” Abrams v. Paul, 453 So.2d 826, 827 (Fla. 1st DCA 1984); see also Rockette v. Space Gateway Support, 877 So.2d 852, 853 (Fla. 1st DCA 2004) (“In this workers’ compensation case ... no motion for rehearing was filed.”). “[I]t is the function of the appellate court to review errors allegedly committed by trial courts, not to entertain for the first time on appeal issues which the complaining party could have, and should have, but did not, present to the trial court.” Abrams, 453 So.2d at 827. Accordingly, we affirm on the cross-appeal, too.

Affirmed.

PADOVANO and HAWKES, JJ., concur.

      . As has previously been pointed out:
      In City of Miami v. Graham, 138 So.2d [751,] 754 [ (Fla.1962) ], the Florida Supreme Court explained the import of section 440.09(4) thusly:
      Considering § 440.09(4), Florida Statutes, F.S.A., in its entirety, the legislative intent seems clear: That an employee shall not receive both a pension and workmen’s compensation from his employer when the employer is the state or any political subdivision thereof or a quasi-public corporation therein.
      Again in Barragan [v. City of Miami ], 545 So.2d [252,] 254 [ (Fla.1989),] the supreme court summarized § 440.09(4):
      The Court [in Graham] based its holding on section 440.09(4), Florida Statutes (1957), which provided that any workers’ compensation benefits payable to injured public employees should be reduced by the amount of pension benefits which were also payable.
      These decisions recognize that section 440.09(4) provided for a reduction in compensation benefits.

        City of Miami v. Jones, 593 So.2d 544, 546 (Fla. 1st DCA 1992).

      . At issue on the main appeal is the period between July 20, 1997, and July 28, 2001, during which the City did not pay permanent total disability workers’ compensation benefits. Beginning July 29, 2001, the City did pay permanent total disability workers’ compensation benefits, payments which are the subject of the cross-appeal.

      . Our decision today turns on the historical fact of these payments. The Trust is not a party to the present proceedings and we do not decide whether the Trust was authorized to offset workers’ compensation benefits. See Graham, 138 So.2d at 754.

      . Mr. Adamides also argues for reversal on an estoppel theory, but he fails to identify any detrimental reliance or explain why payment in excess of his full pension benefits would be equitable. See Mandarin Paint & Flooring, Inc. v. Potura Coatings of Jacksonville, Inc., 744 So.2d 482, 485 (Fla. 1st DCA 1999) (holding that detrimental reliance is necessary for estoppel).

      . Escambia County Sheriff’s Dep’t v. Grice, 692 So.2d 896 (Fla.1997). The supreme court later explained that:
      [0]ur decision in Grice was directed only to whether additional collateral benefits should be included in computing the AWW 100% cap for total benefits. We have acknowledged that the 100% AWW cap that we discussed in Grice did not come from a strictly literal reading of section 440.20(15), but rather from a “judicial interpretation of an ambiguous statute.”

        Lombardi, 770 So.2d at 1204 (quoting Dixon v. GAB Bus. Servs., Inc., 161 So.2d 443, 445 (Fla.2000)).

      . Barragan v. City of Miami, 545 So.2d 252 (Fla.1989). The Barragan decision was “based upon the legislature’s 1973 repeal of section 440.09(4), Florida Statutes (1971).” City of Miami v. Bell, 634 So.2d 163, 164-65 (Fla.1994).


text:
    Bruce C. WRINKLE, Appellant, v. Arlene M. COOPER, Edward Holt, Paula Kaye Stevens, Ronald P. Knee, Keystone Properties, Inc., The Beaches Hamlet, Ltd., Southern Resources Investments, Hayden & Facciolo, Melvin Kartzmer, Leonard Day, Stanley Marks, Richard Mitzel, Nathaniel Moore, Dorothy Wachter, Nicholas Buoniconti, Elinor Ganz, August Miale, Paula Mitzel, Charles Pistol, Ronald Luycx, and Joseph Luycx, Appellees.
    No. 1D04-1757.
    District Court of Appeal of Florida, First District.
    Oct. 28, 2004.

      T. Geoffrey Heekin and S. Hunter Malin of Bartlett, Heekin, Smith & Greene, Jacksonville, for Appellant.
    Barry A. Bobek, Jacksonville, Richard J. Latinberg, Jacksonville, Kevin A. Sehoep-pel, Jacksonville, Alan Kluger, Miami, Warren J. Knaust, St. Petersburg, Calvin E. Hayden, Jacksonville, Jeffrey S. Marks, Boca Raton, Simon D. Rothstein, Jacksonville, Valerie Pistole, Sonoma, CA, James Facciolo, Ft. Lauderdale, Stephen H. Durant, Jacksonville, and Tonya H. Bomhard, Jacksonville, for Appellees.
   PER CURIAM.

The appellant, Bruce C. Wrinkle, has sought review of three orders: (1) the May 5, 2003, Final Declaratory Judgment, (2) the November 3, 2003, Order Granting Defendant Moore’s (et al.) Motion for Partial Summary Judgment, and (3) the March 11, 2004, Dissolution Order. Upon consideration of the motion to dismiss filed by appellees Nathaniel Moore, Richard Mitzel, Paula Mitzel, Nicholas Buoniconti, and Ron Luycx (“MMMBL”), the reply in support of the motion to dismiss filed by appellee Beaches Hamlet, Ltd., and the response filed by appellant Wrinkle, the Court has determined that the appeal should be dismissed for lack of jurisdiction.

With regard to the May 5, 2003, Final Declaratory Judgment, this Court dismissed a previous appeal of the same order by Wrinkle for lack of standing. See Wrinkle v. Cooper, 859 So.2d 629 (Fla. 1st DCA 2003). This second appeal is barred by the doctrine of law of the case. See Parker Family Trust I v. City of Jacksonville, 804 So.2d 493 (Fla. 1st DCA 2001) (holding that the doctrine of law of the case requires that questions of law actually decided on appeal must govern the case in the appellate court and in the lower tribunal in all subsequent stages of the proceedings).

The appellant has also sought review of the November 3, 2003, Partial Summary Judgment, which disposed of Count I of MMMBL’s counterclaim against Wrinkle, Paula K. Stevens, and Edward Holt by declaring that Stevens had no authority to transfer the limited partnership units to Wrinkle, and that MMMBL are the rightful owners of the disputed partnership shares. However, nothing in the records before the Court indicates whether Counts II and III, which alleged claims for fraud and breach of fiduciary duty against Paula Kaye Stevens and for aiding and abetting breach of fiduciary duty against appellant Wrinkle, have been resolved.

Finally, contrary to Wrinkle’s assertion, the March 11, 2004, Dissolution Order is not a final order. See, e.g., Caufield v. Cantele, 837 So.2d 371 (Fla.2002); McGurn v. Scott, 596 So.2d 1042 (Fla.1992). Specifically, because the order acknowledges pending claims against the Partnership, and reserves jurisdiction over several issues including the distribution of the reserved funds according to the outcome of those claims, the lower tribunal’s judicial labor with regard to the instant cause appears to be incomplete. Thus, the appeal appears to be premature. Thé motion to dismiss filed by appellees Nathaniel Moore, Richard Mitzel, Paula Mitzel, Nicholas Buoniconti, and Ron Luycx, is hereby granted and the appeal is dismissed for lack of jurisdiction. All pending motions are denied as moot.

KAHN, WEBSTER and POLSTON, JJ., concur.


author: PLEUS, J.

text:
    Lisa Ann WILSON, Appellant, v. STATE of Florida, Appellee.
    No. 5D03-2943.
    District Court of Appeal of Florida, Fifth District.
    Oct. 29, 2004.
    James B. Gibson, Public Defender, and Scott Ragan, Assistant Public Defender, Daytona Beach, for Appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and Lamya A. Henry, Assistant Attorney General, Daytona Beach, for Appellee.
   PLEUS, J.

Lisa Wilson appeals her convictions and sentences for 58 separate crimes and argues that the lower court erred in denying her motion to suppress her confession. Because we conclude the denial of her motion was not dispositive, we dismiss the appeal for lack of jurisdiction.

After the lower court denied Wilson’s motion to suppress, Wilson pled nolo contendere to the charges. Florida Rule of Appellate Procedure 9.140(b)(2)(A)(i) states that a defendant may not appeal from a guilty or nolo contendere plea except that the defendant “may expressly reserve the right to appeal a prior disposi-tive order of the lower tribunal, identifying with particularity the point of law being reserved.” An order denying a motion to suppress a confession is not dispositive for purposes of this rule unless the parties so stipulate. Brown v. State, 376 So.2d 382 (Fla.1979); Debiasio v. State, 789 So.2d 1061 (Fla. 4th DCA 2001). The prosecutor never signed the plea form, nor did he ever stipulate that the order was disposi-tive. Just the opposite. When the judge asked the prosecutor to stipulate, he would not do so. The conversation that ensued demonstrates that the prosecutor, judge and even the defense attorney all concluded that the order was not dispositive. Therefore, we lack jurisdiction to address the merits of Wilson’s appeal.

APPEAL DISMISSED.

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

      . These crimes include 30 counts of burglary of a dwelling, 13 counts of grand theft, 12 counts of petit theft, and one count each of burglary of a dwelling while armed, possession of methamphetamine and possession of paraphernalia.


author: VILLANTI, Judge.

text:
    In the Interest of J.A. and A.A., Children. H.P., Appellant, v. Department of Children and Family Services, Appellee.
    No. 2D04-463.
    District Court of Appeal of Florida, Second District.
    Oct. 29, 2004.
    Patrick R. Cunningham, Bradenton, for Appellant.

      Charles J. Crist, Jr., Attorney General, Tallahassee, and Christopher Perone, Assistant Attorney General, Tampa, for Ap-pellee.
   VILLANTI, Judge.

H.P., the mother of J.A. and A.A., challenges an order terminating her parental rights as to these two children. The sole issue on appeal is whether the circuit court’s order terminating H.P.’s parental rights, when the children remain in an indefinite state of dependency while their father works towards reunification with them, is the least restrictive means to ensuring the children’s safety. We determine that it is not and therefore reverse.

H.P. was arrested and jailed for a drug offense in 2001. Her husband, J.P., who is also the children’s father, was already serving time on a drug charge, and consequently the children were left with no one to care for them. H.P.’s efforts to have a relative care for the children were unsuccessful, and the children were sheltered and adjudicated dependent as to both parents. H.P. was assigned a case plan but failed to comply with its terms while in jail; after she was released from jail, she left Florida for fear of deportation to Mexico. Consequently, the Department of Children and Family Services (the Department), filed a petition to terminate H.P.’s parental rights. The circuit court found that H.P. had failed to complete the tasks in her case plan — a finding H.P. does not dispute — and concluded that H.P. had abandoned her children. Additionally, using the criteria in section 39.810, Florida Statutes (2003), the circuit court found termination was in the manifest best interest of the children.

A significant factor in the circuit court’s manifest best interest determination was H.P.’s departure from Florida and the father, J.P’s, imprisonment. At the time H.P.’s rights were terminated, J.P. remained imprisoned subject to an indefinite INS hold, which carried the possibility of deportation to Cuba. Because of J.P’s Cuban nationality, however, deportation was uncertain. The Department petitioned to have J.P.’s rights terminated, but because of the uncertainty of J.P.’s deportation, the circuit court decided to hold off on terminating his parental rights until the next judicial review, six months later. During the pendency of this appeal, J.P.’s INS hold was lifted, J.P. was released from prison, the petition for termination of parental rights against him was dismissed, and J.P. was assigned a case plan with the goal of reunification. As we write, the children remain dependent and are living in shelter care, J.P. is working on a plan for reunification, and H.P.’s rights to her children have been terminated. It is within this context that we consider the order terminating H.P.’s parental rights.

In recognition of a parent’s fundamental liberty interest in raising his or her child, the supreme court has determined that before a parent’s rights will be forever terminated, the Department must do more than establish the statutory grounds for termination. Padgett v. Dep’t of Health & Rehab. Servs., 577 So.2d 565, 571 (Fla.1991). The court must also perform a constitutional analysis, with the burden on the Department to show that termination is the least restrictive means for protecting the child from harm. Id.; K.A. v. Dep’t of Children & Family Servs. (In re K.A.), 880 So.2d 705, 709 (Fla. 2d DCA 2004) (“Before parental rights to a child can be permanently and involuntarily severed, there must be clear and convincing evidence that termination is the least restrictive means to protect the child; in other words, that reunification with the parent poses a substantial risk of significant harm to the child.”).

H.P. submits that the Department has failed to show that termination is the least restrictive means available to protect the children. The First District considered a situation similar to this one in L.B. v. Department of Children & Families, 835 So.2d 1189 (Fla. 1st DCA 2002). In that case, despite recognizing that the State had established the statutory criteria for termination, the First District nevertheless determined that termination was not the least restrictive means for protecting the children. The First District focused on the fact that because the father’s termination petition had been dismissed, the children remained in a status of dependency; thus the only effect of terminating the mother’s rights was to insure that the children had no contact with her:

In the instant case, while the trial court terminated appellant’s parental rights, the trial court dismissed the termination petition as to the father. Therefore, the children, who are still legally dependent, will not be placed for adoption as the father continues to focus on his case plan. Thus, the termination order’s sole effect upon the children, who remain in shelter custody, was to sever their contact with appellant.

Id. at 1196. Because the least-restrictive-means test requires measures short of termination be used if doing so presents no threat of harm to the child, and because there was no showing that the mother’s supervised visitation of the children would harm them, the First District found that termination did not pass constitutional muster.

The same can be said in this case. We note that termination would be the least restrictive means if the children were awaiting adoption, but that is not the situation here. The only effect termination has is to completely sever any rights H.P. has to her children — it does not bring the children any closer to being adopted. While J.P. continues to work on his case plan with the goal of reunification, the children remain dependent. Meanwhile, H.P.’s rights have been completely severed, even though there has been no showing that supervised contact with the children would harm them in any way. Significantly, J.P. intends to reunite with H.P.

We hold that termination was not the least restrictive means of protecting the children from harm. In so doing, we emphasize that the constitutional protections afforded a parent are so important that a court cannot overlook them in attempting to satisfy the child’s manifest best interests pursuant to section 39.810. The Department contends that the least-restrictive-means test comprises two considerations: (1) whether the statutory criteria for termination have been met and (2) whether termination is in the child’s manifest best interest. But these two requirements must be met under the express provisions of the statutory scheme. The least-restrictive-means test articulated in Padgett, 577 So.2d at 571, is a constitutional requirement that goes beyond the requirements set forth in the statute. The Department’s argument fails because it does not recognize the independent significance of the constitutional requirement set forth in Padgett.

We therefore reverse the order terminating HJP.’s parental rights as to J.A. and A.A. and remand for further proceedings.

Reversed and remanded.

NORTHCUTT and CANADY, JJ, concur.

      . The circuit court inadvertently cited section 39.806 as its basis for performing its manifest best interest analysis, but it is clear the court appropriately used the criteria found in section 39.810. A more troubling procedural irregularity is the fact that the court proceeded under the wrong statute in terminating H.P.’s rights. It cited section 39.806 as the statutory basis for termination. However, section 39.811 provides the only circumstances under which one parent's rights may be terminated when the rights of another parent remain intact. See also L.N. v. Dep’t of Children & Family Servs. (In re E.D.), 884 So.2d 291 (Fla. 2d DCA 2004). We note that the uncertainty of the resolution of the father's case probably contributed to this error. Nonetheless, it appears that none of the grounds for termination in section 39.811 would apply to H.P. But because H.P. has not advanced any argument regarding the applicability of section 39.811, we decline to find error in proceeding under this section. Such a determination is unnecessary because, regardless of the statutory basis for termination, termination was not the least restrictive means for protecting the children and thus any termination violated H.P.’s constitutional right to her children.


author: COPE, J.

text:
    Mireille VINCENT, Appellant, v. The STATE of Florida, Appellee.
    No. 3D03-1470.
    District Court of Appeal of Florida, Third District.
    Nov. 3, 2004.

      Bennett H. Brummer, Public Defender, and Robert Kalter, Assistant Public Defendant, for appellant.
    Charles J. Crist, Jr., Attorney General, and Meredith L. Balo, Assistant Attorney General, for appellee.
    Before COPE, GERSTEN and GREEN, JJ.
   COPE, J.

Mireille Vincent appeals her conviction for second degree murder in the stabbing-death of her boyfriend. We affirm.

The question presented on this appeal is whether the trial court erred by admitting similar fact evidence under subsection 90.404(2), Florida Statutes (2003). The victim in this case was Jean David Pierre-Louis (“the victim” or “David”), the former boyfriend of defendant-appellant Mir-eille Vincent. The defendant and the victim had a child together in 1995 but had thereafter separated.

While visiting the defendant’s apartment in 2000, the victim sustained a stab wound to the chest. The State’s theory was that the defendant stabbed the victim during an argument. The defense theory was that the victim fell on the knife, or walked into a wall while holding the knife, thus inflicting the fatal injury on himself by accident.

The State’s evidence included the testimony of the defendant’s close Mend, Mari-tanne Jeannot. The defendant called Ms. Jeannot on the afternoon of July 3, 2000, saying that she had stabbed David during an argument. She asked Ms. Jeannot to come help her take David to the hospital.

When Ms. Jeannot arrived at the apartment David was on the floor, bleeding but conscious. Also present was Junior Charles, the defendant’s current boyfriend, who had been outside when the argument occurred. The defendant said she was going to tell the police David had become dizzy and fell on the knife. The defendant asked them all to say the same thing, so she would not get into trouble. David asked to see his four-year-old child. He told the child that he was going to die and that the defendant had stabbed him.

When the police arrived, the victim and Junior Charles told the police that the victim had fallen on the knife. When Ms. Jeannot was interviewed she told the police that the defendant had stabbed the victim. Soon thereafter, Junior Charles told the police the same thing and that the story about there being an accident was untrue. The defendant left the apartment without being interviewed, fled to Boca Raton, and was arrested two months later.

The defendant testified at trial that the victim had come to the apartment with her permission. She told the victim that she was going to take a shower. When she emerged from the shower she found the victim on the floor bleeding with the knife by his side. The defense position was that the victim, who was intoxicated, had fallen or walked into the wall with the knife pointed at his chest and inflicted the stab wound by accident.

Prior to trial the State filed a notice of intent to rely on evidence of other crimes, wrongs, or acts. See § 90.404(2)(c)l., Fla. Stat. (2003). The State sought to intro-duee other similar fact evidence to show that the stabbing of the victim was not an accident. The defense objected, and the court conducted a lengthy hearing on the admissibility of the similar fact evidence.

The State proposed to show that three months prior to the stabbing of David, the defendant stabbed her then boyfriend Junior Charles in the chest. This occurred during an argument. As Charles prepared to leave the apartment, the defendant charged at him with a knife and stabbed him in the chest, in exactly the same part of the chest that David was stabbed. Charles’ mother called the police but Charles refused to cooperate and did not seek medical treatment.

The court ruled that the similar fact evidence was admissible to establish that the stabbing of the victim David had not occurred through accident or a mistake.

The defense argues that the court misinterpreted subsection 90.404(2), Florida Statutes. The defense contends that for this evidence to be admissible, it would be necessary that the defendant (a) admit that she stabbed David, and (b) claim that she did the stabbing through accident or mistake. According to the defense, only under such a scenario would the State be allowed to introduce similar fact evidence of the earlier stabbing of her then boyfriend.

We reject the defense argument on this point. The Evidence Code does not contain any such limitation. The relevant provision states:

Similar fact evidence of other crimes, wrongs, or acts is admissible when relevant to prove a material fact in issue, including, but not limited to, proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident, but it is inadmissible when the evidence is relevant solely to prove bad character or propensity.

M'§ 90.404(2)(a) (emphasis added).

The evidence was relevant and admissible to show that the victim David was stabbed through an intentional act and not, as claimed, as a result of the victim accidentally stabbing himself by falling or walking into a wall with the knife pointed at his own chest. The fact that the defendant stabbed Junior Charles in the chest in exactly the same location during a domestic quarrel three months before was admissible on this point.

The State correctly points out that the issue presented here frequently arises in child abuse cases. Often the proffered explanation for child abuse injuries is that the child must have sustained the injuries accidentally through a fall or an injury while playing. In Evans v. State, 693 So.2d 1096 (Fla. 3d DCA 1997), the court stated:

In Pausch v. State, 596 So.2d 1216 (Fla. 2d DCA 1992), the defendant was convicted of the second degree murder of her son. At trial, the state introduced evidence that upon arriving at the hospital the child appeared undernourished and that on occasion, the defendant had used excessive force to discipline him. The Second District Court of Appeal held that the evidence was admissible because it was relevant to prove that the injuries to the child were intentional.
In Worden v. State, 603 So.2d 581 (Fla. 2d DCA), rev. denied, 603 So.2d 581 (Fla. 2d DCA 1992), the defendant was convicted of first degree murder and aggravated child abuse.... The appellate court affirmed the conviction holding that the prior abuse was relevant to show absence of mistake because the appellant argued at trial that the child’s injuries were the result of an accidental fall.
Finally, in State v. Everette, 532 So.2d 1124 (Fla. 3d DCA 1988) and Mayberry v. State, 430 So.2d 908 (Fla. 3d DCA 1982), we held that in a child abuse case, reference to prior injuries to the child should be permitted to establish intent and absence of mistake or accident.... In the present ease the defense was that Tommie either accidentally fell off his bunk bed or suffered the injuries in question during a football game. The prior instances of physical abuse were significant, relevant and properly admitted to prove intent and the absence of mistake or accident. Even if this were not the defense, the defendant’s prior physical abuse of the child would still be relevant for the same purposes.

Id. at 1101-02.

From the cited authorities it is clear that similar fact evidence is admissible to establish that the victim’s injuries did not occur through mistake or accident—even where (as here) the defendant denies touching the victim.

The defense next contends that the evidence of the stabbing of Junior Charles was not similar enough to the charged crime to justify its introduction into evidence. The State replies, and we agree, that there were multiple points of similarity between the prior stabbing and the current stabbing. The relationship between the defendant and the victim was the same, girlfriend-boyfriend. Each incident occurred in the home. Each incident occurred during a domestic argument. Each incident involved a knife. Both victims were stabbed in exactly the same location on the chest. In both incidents there was a completed act of stabbing. In both incidents the defendant was remorseful after the stabbing.

The defendant argues, however, that the evidence was inadmissible because the pri- or stabbing was of a different person, Junior Charles. The defendant maintains that the evidence was inadmissible under Robertson v. State, 829 So.2d 901 (Fla.2002). The defendant says that under Robertson, similar fact evidence is irrelevant and therefore inadmissible if the victim in the earlier incident is different from the victim of the charged crime. The defendant misreads that case.

In Robertson, Robertson was prosecuted for murder in the shooting death of his girlfriend. Robertson maintained that he was cleaning his handgun and that it accidentally misfired, killing his girlfriend. At trial Robertson testified. The state cross-examined him regarding an incident which occurred six years previously in which Robertson had threatened his then-wife with an AK-47 rifle. The Florida Supreme Court held that the earlier incident was not admissible as similar fact evidence. That was so because of the differences between the acts. The prior act was a threat of violence but the pending charge—murder—was a completed act of violence. The prior act involved a rifle but the pending charge involved a handgun. See id. at 909; Billie v. State, 863 So.2d 323, 329 (Fla. 3d DCA 2003). Thus the similar fact evidence in Robertson was held to be inadmissible under the particular facts of that case.

Moreover, in Robertson the court discussed one of its own earlier decisions, Heuring v. State, 513 So.2d 122 (Fla.1987). Robertson, 829 So.2d at 907-09. The Heuring case was a prosecution of a defendant for sexual battery of his stepdaughter. The Florida Supreme Court upheld the introduction of similar fact evidence that Heuring had previously sexually battered a different person—his daughter— some twenty years previously. See id. at 123-25. As the Florida Supreme Court relied in part on Heuring when it decided Robertson, we cannot agree that the intent or effect of Robertson is to bar similar fact evidence regarding a different victim. See also Billie v. State, 863 So.2d at 329. Whether such evidence is admissible will depend on a fact-specific analysis in each case. The trial court’s ruling in the present case was consistent with Robertson.

The defense next contends that even if the evidence was admissible under the Williams Rule, its unfair prejudice outweighed its probative value. See § 90.403, Fla. Stat. (2003). Again, we disagree. The trial court’s ruling was within its discretion. The evidence was relevant, probative, and not unfairly prejudicial.

Affirmed.

      . The victim was referred to as David or Dave during the trial.

      . The legislature subsequently amended the Evidence Code to address this issue as relates to child molestation cases. See § 90.404(2)(b), Fla. Stat. (2003); State v. Rickman, 861 So.2d 1195, 1197 n. 1 (Fla. 2d DCA 2003).


author: STONE, J.

text:
    Jontell B. PRINCE, Appellant, v. STATE of Florida, Appellee.
    No. 4D03-3701.
    District Court of Appeal of Florida, Fourth District.
    Nov. 3, 2004.
    Carey Haughwout, Public Defender, and Patrick B. Burke, Assistant Public Defender, West Palm Beach, for appellant.
    Charles J. Crist, Jr., Attorney General, Tallahassee, and August A. Bonavita, Assistant Attorney General, West Palm Beach, for appellee.
   STONE, J.

Following an order denying a motion to suppress, Prince entered a plea of nolo contendere without reserving a right to appeal the order. Prince argues that his attorney reserved a right to appeal by comments that were made after the sentence was imposed in the following exchange:

[DEFENSE COUNSEL]: I wanted to put on the record specifically he pled no contest. I’m reserving the right to appeal.
[PROSECUTOR]: Judge, I don’t know what your plea form reads as far as waiving the right to appeal.
[DEFENSE COUNSEL]: It wasn’t negotiated clearly.
THE COURT: He can always appeal. If I’m right, I’m right. If I’m wrong they’ll tell me.
[DEFENSE COUNSEL]: I just have to put it on the record ...

We note that not only was the purported reservation untimely, but the signed plea form, submitted at the time of the plea colloquy, expressly waived his right to appeal.

Absent an express reservation of the right to appeal, a defendant may not appeal from a judgment entered pursuant to a nolo contendere plea. See Leonard v. State, 760 So.2d 114 (Fla.2000); Hampton v. State, 680 So.2d 581 (Fla. 3d DCA 1996).

Rule 9.140(b) (2) (A) (i), Florida Rules of Appellate Procedure, provides that a defendant, who pleads nolo contendere, “may expressly reserve the right to appeal a prior dispositive order of the lower tribunal, identifying with particularity the point of law being reserved.”

Prince’s plea form provides that he gave up his “right to appeal any harmful error to a higher court.” The form does not present any indication to the contrary. Further, the attorney’s untimely statement, “I’m reserving the right to appeal,” does not identify, with particularity, the point of law reserved for appeal. Additionally, the trial court’s response does not indicate whether the court was belatedly accepting the plea with a reservation of the right to appeal.

Moreover, we note that, although Prince’s attorney indicated that the motion to suppress was dispositive, his statement “I’m reserving the right to appeal,” fails to identify which, of multiple points of law in the motion to suppress, was being reserved, and there is disagreement over whether the motion was dispositive. Fla. R.App. P. 9.140(b)(2); § 924.06(3), Fla. Stat. (2002).

Although we conclude that we lack jurisdiction to resolve the merits of the motion to suppress, we add that, if we were to resolve the issue raised on appeal, we can discern no error or abuse of discretion in the order denying the motion to suppress.

Therefore, the appeal is dismissed.

GUNTHER and TAYLOR, JJ., concur.