author: STEVENSON, J.

text:
    Allan and Claire SHERES, Appellants, v. Richard and Carla GENENDER, Woodfield Country Club Homeowner’s Association, Inc., The Enclave at Woodfield Country Club, Inc., Mario and Delia Marun, Greenberg Traurig, P.A., Ruden McClosky, Smith, Shuster & Russell, P.A., Nestler-Poletto Realty, Inc., and Lorenzo and Jane Bernal, Appellees.
    No. 4D06-3363.
    District Court of Appeal of Florida, Fourth District.
    Oct. 10, 2007.

      Howard D. DuBosar of DuBosar & Perez, P.A., Boca Raton, for appellants.
    Allison Grant and Andrew M. Dector of Shapiro, Blasi, Wasserman & Gora, P.A., Boca Raton, and Bruce S. Rogow and Cynthia E. Gunther of Bruce S. Rogow, P.A., Fort Lauderdale, for appellees Richard and Carla Genender.
    Thomas A. Groendyke of Douberley & Cicero, Sunrise, for appellee The Enclave at Woodfield Country Club, Inc.
    Robert Rivas and James Bruce Culpep-per of Sachs & Sax, Tallahassee, for appel-lee Woodfield Country Club Homeowner’s Association, Inc.
    •L. Louis Mracheck and Alan B. Rose of Page, Mracheck, Fitzgerald & Rose, P.A., West Palm Beach, for appellee Greenberg Traurig, P.A.
    No brief filed for appellees Nestler-Po-letto Realty, Inc., and Lorenzo and Jane Bernal.
    No appearance for appellees Mario and Delia Marun and Ruden McClosky, Smith, Shuster & Russell, P.A.
   STEVENSON, J.

The appellants, Allan and Claire Sheres (the Shereses), and two appellees, Wood-field Country Club Homeowner’s Association, Inc. (Woodfield HOA), and The Enclave at Woodfield Country Club, Inc. (Enclave HOA), allege the trial court erred (1) in granting the appellees, Richard and Carla Genender (the Genenders), partial final summary judgment on then-amended counterclaims and final summary judgment as to the Shereses’ amended complaint and (2) in granting summary judgment in favor of Greenberg Traurig, P.A. The Shereses also appeal the trial court’s denial of their motion for summary judgment. Because the rules of appellate procedure do not permit appeals of orders denying motions for summary judgment, we lack jurisdiction to consider the merits of the Shereses’ appeal of that order. However, for the reasons set forth below, we reverse the orders granting summary judgment and partial final summary judgment.

These appeals stem from the 1999 lawsuit between the Genenders, Pinetree Homes, Bruce and Sharon Pearl, who previously owned the Shereses’ house, the Kolter Corporation, the Woodfield HOA, and the Enclave HOA. The Genenders’ complaint contended that the Woodfield Country Club Master Plan and the plat for the Enclave subdivision required the homes within the Enclave to be zero lot line single family homes. As such, Pine-tree Homes, the builder of the Shereses’ house, was required to construct that house with a windowless sidewall directly adjacent to the property line. In contravention of those requirements, the Wood-field HOA, the Enclave HOA, the Wood-field Country Club’s Design Review Board, and the Kolter Corporation, who is the developer of Woodfield Country Club, permitted Pinetree Homes to construct the Shereses’ house approximately three and a half feet from the zero lot line property line with an alcove that contained windows.

In an attempt to resolve their dispute, the Genenders entered into a settlement agreement with the Pearls, the Pearls’ successor in interest — the Maruns — the Woodfield HOA, the Enclave HOA, and the Kolter Corporation. Some provisions of the settlement agreement required the construction of a privacy wall, the Maruns ensuring that any lights on their property facing the Genenders’ property would contain motion detectors, the Maruns lowering a light fixture in the alcove wall to a specific location, and the Maruns paying for the removal of hedges from their yard that impeded the Genenders’ view. The settlement agreement also provided that the Maruns would execute and record the Declaration of Covenants and Easement Agreement (the declaration). According to the settlement agreement, the declaration would require the Maruns to be financially responsible for “constructing], maintaining], repairing], reconstructing] and insuring] the Privacy Wall.” Additionally, the declaration would prohibit the Maruns from adding windows or changing glass block to clear glass on the side of the Maruns’ house facing the Genenders’ lot.

The settlement agreement provided that the Maruns were financially responsible for the privacy wall and that

[N]either the Homeowners Association nor the Enclave Homeowners Association shall be responsible for maintaining, repairing, replacing, improving or insuring the Privacy Wall or for the costs associated with such items.... Further, the Enclave Homeowners Association’s execution of this Settlement Agreement or its non-objection to the Privacy Wall ... shall not create, whether express or implied, any duty or obligation on the part of the Enclave Homeowners Association to maintain, repair, replace, improve or insure the Privacy Wall....

Unlike the settlement agreement, which was entered into by all of the parties to the litigation, the declaration specified it was only “made and entered into” by the Maruns and the Genenders. In consideration of the sum often dollars and other “valuable consideration,” the Maruns and Genenders agreed that the Maruns, “its successors and assigns” would be financially obligated to construct, maintain, repair, reconstruct, and replace the wall. In exchange, the Maruns would have an easement on the Genender parcel for the purpose of fulfilling those obligations, which were deemed to be covenants running with the land. The owner of the Genender parcel was the only entity named in the declaration as having the right to seek an injunction to prevent or rectify violations committed by any owner or occupant of the Marun parcel. However, the declaration could be modified if the owners of the two properties provided written consent.

The Shereses purchased the home from the Maruns in 2008. Despite the Maruns’ attorney at Greenberg Traurig stating that she would record the declaration, it is undisputed that the declaration was not recorded before the Shereses purchased the house. The Shereses contend they were first informed about the unrecorded restrictions after the closing occurred and the Genenders objected to the Shereses’ request to remove the alcove wall. Shortly thereafter, the Genenders’ attorney informed the Shereses that removing the alcove wall would violate the settlement agreement and the declaration. In light of what transpired, the Shereses sought a declaratory judgment that they were not bound by either the declaration or the settlement agreement. The Shereses also requested that the trial court enjoin the Genenders and the associations from using either document to impede the removal of the Shereses’ alcove wall. The Genenders responded by filing counterclaims against the Shereses and claims against the Ma-runs, the Enclave HOA, the Enclave HOA’s individual board members, Ruden McClosky, Woodfield Country Club, and Greenberg Traurig.

The Genenders moved for a partial final summary judgment on their amended counterclaims and final summary judgment as to the Shereses’ amended complaint. According to the Genenders, the Shereses had express, implied, and inquiry notice as to the existence of the restrictive covenants prior to purchasing the house. The Shereses were also required to comply with the settlement agreement and declaration because they were members of the Woodfield Country Club and Enclave HOA Furthermore, even if the Shereses were not bound by either the settlement agreement or the declaration, the Wood-field Country Club and the Enclave HOA could not allow the Shereses to remove the alcove wall or the privacy wall.

When granting the Genenders’ motion for partial final summary judgment and final summary judgment, the trial court held that the Shereses had actual and inquiry hotice of the existence of the property’s restrictive covenants. In Sapp v. Warner, 105 Fla. 245, 141 So. 124 (1932), the supreme court instructed that there are two types of actual notice. Express actual notice, “which includes what might be- called direct information,” and implied actual notice, which is notice that’is “inferred from the fact that the person had means of knowledge, which it was his duty to use and which he did not use.” ' Id. at 127. Implied actual notice is based upon the principle

that a person has no right to shut his eyes or ears to avoid information, and then say that he has no notice; that it will not suffice the law to remain willfully ignorant of a thing readily ascertainable by whatever party puts him on inquiry, when the means of knowledge is at hand.

Id.

On appeal, the parties do not dispute that there is a material question of fact concerning express actual notice since the Shereses have denied that anyone ever told them about the restrictions or the declaration, or showed them any written evidence of the same. Therefore, we first turn to the trial court’s conclusion that the Shereses had implied actual notice because of Claire Sheres’s proficiency as a real estate agent at the time of her deposition, Sheres’s testimony that she viewed the privacy wall before purchasing the house, her acknowledgment that the privacy wall was large, the privacy wall’s visibility from locations on and off the property, and-the Shereses’ previous residence at the Wood-field Country Club before purchasing their home in the Enclave subdivision.

Claire Sheres testified that, for numerous years before she moved to the Enclave subdivision, she lived in other subdivisions within the Woodfield Country Club. In 2002, approximately one year before the closing occurred, Sheres acquired her real estate license. Between the time period that she acquired her license and purchased the house in question, she had newer shown a property in the Enclave subdivision or been involved in any real estate transactions involving that subdivision. By the time of her 2005 deposition, Sheres had learned that the phrase “zero lot line” means different things in different communities. For instance, in some communities, zero lot line homes have no walls without windows. At the time of her deposition, she also believed that, even though she did not know every house in the Woodfield Country Club, she was familiar with "the residential subdivisions. When discussing her house in the Enclave subdivision, Sheres • explained that she went to the house approximately two times before the closing occurred. On at least one of those visits, she observed the large privacy wall, which was unique to the Enclave subdivision, but similar to walls contained in the Clubside subdivision.

We agree with the Shereses that the trial court erred by relying on Claire Sheres’s status in 2005 as a successful real estate agent when determining that she should have asked if any contracts or restrictive covenants existed before she purchased the house in 2003. In our view, whether Sheres’s experience as a real estate agent in 2003 should have caused her to ask about the existence of restrictive covenants is a material question of fact for the jury. Moreover, even if a jury was to decide that viewing a large wall gave Sheres notice of that structure’s restrictions, we cannot conclude that viewing the privacy wall would also have provided implied actual notice of restrictions pertaining to the alcove wall, the placement or style of lights, landscaping, wind chimes, or the inability to construct a dog run in a certain location. Whereas the Genenders’ failed to show the absence of any material questions of fact regarding implied actual notice, the trial court erred when relying on that doctrine to grant summary judgment. See Albelo v. S. Bell, 682 So.2d 1126, 1129 (Fla. 4th DCA 1996) (“[T]he burden is upon the party moving for summary judgment to show conclusively the complete absence of any genuine issue of material fact.”).

As to the trial court’s determination that the Shereses had inquiry notice, the Florida Supreme Court has commented that “[i]n order to charge a person with notice of a fact which he might have learned by inquiry, the circumstances known to him must be such as should reasonably suggest inquiry and lead him to inquiry.” Chatlos v. McPherson, 95 So.2d 506, 509 (Fla. 1957). For instance, in Citgo Petroleum Corp. v. Florida East Coast Railway Co., 706 So.2d 383 (Fla. 4th DCA 1998), the Florida East Coast Railway Company (FEC) had inquiry notice of Citgo Petroleum Corporation’s easement because FEC observed the pipeline’s construction. Here, Claire Sheres merely saw a large privacy wall in between her property and that of the Genenders. Viewing this wall would not have put Sheres on inquiry notice of restrictions that do not concern the wall, and whether her observation of the wall placed her on inquiry notice of the wall’s immutable character is a question of fact for a jury to decide.

Our review of the documents received by the Shereses leads us to conclude that they also presented a jury question. For instance, the Shereses rely on the Affidavit of No Lien, which stated “[tjhere are no unrecorded easements on the Property,” and on Nestler-Poletto’s Seller’s Property Disclosure, which stated the property had no “restrictions affecting additions, improvements or replacement of the property.” But, as pointed out by the Genen-ders, the Statutory Seller’s Disclosure Summary informed the Shereses that “there have been or will be recorded restrictive covenants governing the use and occupancy of properties in this community.” The Florida Supreme Court has held that “[i]f the evidence raises any issue of material fact, if it is conflicting, if it will permit different reasonable inferences, or if it tends to prove the issues, it should be submitted to the jury as a question of fact to be determined by it.” Moore v. Morris, 475 So.2d 666, 668 (Fla.1985). Because the documents provided the Shereses with seemingly contradictory information, the trial court erred by granting summary judgment on this issue.

Similar to arguments advanced by the Genenders, Greenberg Traurig claimed it was entitled to summary judgment because the associations, who were parties to the settlement agreement and declaration, could not allow the Shereses to remove the wall. Plus, the City of Boca Raton allegedly will not permit the Shereses to remove the alcove wall. The trial court concluded in the order on Greenberg Traurig’s motion for summary judgment that the settlement agreement “inelude[d] the terms of the Declaration” and required the associations to deny the Shereses’ request to alter the walls. An almost identical conclusion was reached when the trial court determined in the order on the Genenders’ motion that “as parties to the Agreement and Declaration (also by virtue of their execution of the Agreement together with the merger clause therein), Woodfield CC and Enclave are legally bound by and obligated to enforce those restrictive covenants.”

Although we believe that the trial court correctly determined that the settlement agreement incorporates the declaration, those documents do not support the trial court’s conclusion, in granting Greenberg Traurig’s motion for summary judgment, that “the Sheres[es] may not state a cause of action or a claim for damages related to the Sheres[es]’ inability to remove or alter the Alcove Wall or the Privacy Wall, when the Sheres[es] could not, as a matter of law obtain the required consent of the HOAs to remove or alter the Walls.” First, even if the associations are prohibited from granting a request to remove the walls, we do not agree that this fact alone eliminates all potential damages to the Shereses as a result of the law firm’s failure to record the declaration. Second, a determination that the associations could not, as a matter of law, consent to the removal or alteration of the walls, is premature on this record. Last, we note that the record, as it exists on the summary judgment motions herein, does not support the trial judge’s determination that the associations are “legally bound ... to enforce [the declaration’s] restrictive covenants.”

Based on the foregoing, we reverse the orders granting the Genenders’ motion for partial final summary judgment and summary judgment and Greenberg Traurig’s motion for summary judgment, and we remand for further proceedings.

Reversed and Remanded.

SHAHOOD, C.J., and BELANGER, ROBERT E., Associate Judge, concur. .


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Ismenia ACUNA a/k/a Niurka Batista, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-2714.
    District Court of Appeal of Florida, Third District.
    Oct. 10, 2007.
    Ismenia Acuna a/k/a Niurka Batista, in proper person.
    Bill McCollum, Attorney General, and Michael C. Greenberg, Assistant Attorney General, for appellee.
    Before GERSTEN, C.J., and GREEN and SHEPHERD, JJ.
   PER CURIAM.

CONFESSION OF ERROR

Based on the State’s proper confession of error, we reverse the trial court’s order denying defendant’s Florida Rule of Criminal Procedure 3.800(a) motion on ground one. On remand, the trial court shall consider Defendant’s first point that she was sentenced in error as both a habitual felony offender and a violent career criminal. See Clines v. State, 912 So.2d 550 (Fla.2005); Mesa v. State, 934 So.2d 523 (Fla. 3d DCA2005).

We affirm the order denying relief as to the second point.

Affirmed in part; reversed in part.


text:
    Harvey SCHEFSKY, M.D. and North Seminole, etc., Petitioner, v. Karyn MATTHEWS, Respondent.
    No. 5D07-718.
    District Court of Appeal of Florida, Fifth District.
    Oct. 12, 2007.
    Art C. Young of Rissman, Barrett, Hurt, Donahue & McLain, P.A., Orlando, for Petitioner.
    Alan E. McMichael of Stripling, McMi-chael & Stripling, P.A., Gainesville, for Respondent.

      V. Julia Luyster of Valdini & Palmer, P.A., Ft. Lauderdale, Amicus Curiae for Florida Defense Lawyers Assoc.
    Philip M. Burlington of Burlington & Rockenbach, P.A., West Palm Beach, Ami-cus Curiae for Florida Justice Assoc.
   PER CURIAM.

Petitioners, Harvey W. Schefsky, M.D. and North Seminole Family Practice Associates, P.A., seek certiorari review of a sanction order issued by the trial court that excluded a witness and struck a defense. Because this non-final order does not meet the criteria for certiorari review, we deny the petition.

Certiorari review of a non-final order is appropriate only when the order constitutes a departure from the essential requirements of law and causes material injury that cannot be remedied on appeal. See Jaye v. Royal Saxon, Inc., 720 So.2d 214 (Fla.1998). Certiorari review of the present sanction order is not appropriate, because the petitioners have an adequate remedy by appeal. Accordingly, we deny the petition.

PETITION DENIED.

PALMER, C.J., MONACO and ORFINGER, JJ., concur.


text:
    Richie ALCE, Appellant, v. STATE of Florida, Appellee.
    No. 5D07-732.
    District Court of Appeal of Florida, Fifth District.
    Oct. 12, 2007.
    James S. Purdy, Public Defender, and David S. Morgan, Assistant Public Defender, Daytona Beach, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Anthony J. Golden, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

AFFIRMED. See Akins v. State, 838 So.2d 687 (Fla. 5th DCA 2003) (holding that eyewitness testimony was legally sufficient to convict a defendant carrying a firearm even though the firearm was never recovered), and Crump v. State, 629 So.2d 231 (Fla. 5th DCA 1993) (accord).

GRIFFIN, THOMPSON and EVANDER, JJ., concur.


text:
    Deborah K. DUNDORE, Appellant, v. Paul A. DUNDORE, Appellee.
    No. 5D07-2188.
    District Court of Appeal of Florida, Fifth District.
    Oct. 12, 2007.

      John S. Mills, of Mills & Creed, P.A., Jacksonville, for Appellant.
    Catherine G. Swain of Catherine G. Swain, P.A., Daytona Beach, for Appellee.
   CONFESSION OF ERROR

PER CURIAM.

Pursuant to the Appellee’s confession of error, the Order Denying Motion to Set Aside Orders Denying Amended Motion to Alter or Amend Final Judgment, is reversed and this cause is remanded for further proceedings.

REVERSED and REMANDED.

GRIFFIN, ORFINGER and EVANDER, JJ., concur.


text:
    Roderick CHILDERS, Appellant, v. James R. McDONOUGH, Secretary, Florida Department of Corrections, Appellee.
    No. 1D06-3256.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2007.
    Roderick Childers, pro se, Appellant.
    Kathleen Von Hoene, General Counsel, Department of Corrections; Bill McCol-lum, Attorney General, and Joe Belitzky, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Roderick Childers appeals an order dismissing his petition for a writ of mandamus on the ground Childers failed to pay the required filing fee, or alternatively, failed to provide documentation of indigen-cy. As the Secretary for the Department of Corrections acknowledges on appeal, a party must be given an opportunity to comply with indigency requirements before dismissing a petition for extraordinary relief. See Woullard v. Bishop, 755 So.2d 816 (Fla. 1st DCA 2000). The record on appeal contains a copy of a prisoner affidavit of indigence which bears a stamp that it was provided to correctional officials for mailing on February 22, 2006. Accordingly, we quash the order dismissing Childer’s mandamus petition and remand the cause so that the Clerk of the Circuit Court can consider the documentation already filed by Childers or that Childers may be given the opportunity to correct any filing deficiencies.

REVERSED and REMANDED.

BROWNING, C.J., ALLEN, AND VAN NORTWICK, JJ., concur.


text:
    Hobart Owen HARRISON, Petitioner, v. DEPARTMENT OF CORRECTIONS, et al., Respondents.
    No. 1D06-3915.
    District Court of Appeal of Florida, First District.
    Oct. 15, 2007.
    Hobart Owen Harrison, pro se, Petitioner.

      Kathleen Von Hoene, General Counsel, and Beverly Brewster, Assistant General Counsel, Florida Department of Corrections, Tallahassee; Kim M. Fluharty, General Counsel, and Bradley R. Bischoff, Assistant General Counsel, Florida Parole Commission, Tallahassee, for Respondents.
   PER CURIAM.

Petitioner’s argument that the circuit court erred in denying his petition for writ of mandamus is without merit and is rejected; however, because the underlying action constitutes a “collateral criminal proceeding” pursuant to section 57.085(10), Florida Statutes (2005), the circuit court improperly imposed a lien upon petitioner’s inmate trust account for payment of court costs and fees. See Brooks, v. Florida Parole Comm’n, 948 So.2d 801 (Fla. 1st DCA 2006); Spaziano v. Florida Parole Comm’n, 932 So.2d 479, 2006 WL 1565289 (Fla. 1st DCA June 9, 2006); Cox v. Crosby, 31 Fla. L. Weekly D310, — So.2d -, 2006 WL 176681 (Fla. 1st DCA Jan.26, 2006), rev. granted sub nom., McDonough v. Cox, 924 So.2d 809 (Fla.2006); see also Schmidt v. Crusoe, 878 So.2d 361 (Fla.2003). We accordingly quash that portion of the circuit court’s order on indi-gency imposing a lien. The circuit court should direct the reimbursement of any funds that have been withdrawn from petitioner’s account to satisfy the improper lien order.

The petition for writ of certiorari is DENIED in part, GRANTED in part and REMANDED with directions to remove the lien from petitioner’s inmate trust account.

ALLEN, VAN NORTWICK, and ROBERTS, JJ., concur.


author: VILLANTI, Judge.

text:
    Charles T. MORRELL, Appellant, v. Cheryl D CHADICK, Appellee.
    No. 2D07-53.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 2007.

      Robert H. Mackenzie of Levine, Hirseh, Segall, Mackenzie & Friedsam, P.A., Tampa, for Appellant.
    Jarrod M. Scharber of The Law Office of Charles D. Waller, P.A., Dade City, for Appellee.
   VILLANTI, Judge.

Charles T. Morrell appeals a final judgment of injunction for protection against sexual violence. Mr. Morrell contends that there was insufficient record evidence to support the trial court’s final judgment. After reviewing the record, we agree and reverse.

On November 20, 2006, Cheryl D. Chad-ick filed a petition for injunction for protection against sexual violence. The petition alleged that Mr. Morrell, who had been Ms. Chadick’s supervisor, had sexually harassed her and coerced her into having sex against her will. The petition claimed Ms. Chadick had sex with Mr. Morrell because she felt threatened by his “extreme anger and violent temper problem” and because she did not want to lose her job. The petition also alleged that Mr. Morrell had continued to call Ms. Chadick at her home, work, and cellular telephone numbers and had threatened “blackmail to cause injury to [her] and [her] family.” Ms. Chadick specifically claimed concern for her safety.

The trial court heard Ms. Chadick’s petition on November 29, 2006. At the beginning of the hearing, Mr. Morrell moved to dismiss the petition, arguing that it was facially insufficient because the facts asserted did not reflect that Ms. Chadick had been the victim of sexual violence as defined in section 784.046, Florida Statutes (2006), because the parties had been involved in a consensual sexual relationship. The trial court denied Mr. Morrell’s motion,' finding that the petition alleged sex against Ms. Chadick’s will as well as stalking, both of which could constitute forms of violence under the statute.

The matter proceeded to an evidentiary hearing. Ms. Chadick testified that she worked with Mr. Morrell from June 2005 to July 2006, whén she voluntarily resigned her employment with their employer. She and Mr. Morrell were involved in a sexual relationship from September 2005 to August 2006 — after her resignation. Although Ms. Chadick claimed she felt pressured to have sex with Mr. Morrell, she was unable to identify anything in particular he said or did to pressure her into having sex. Mr. Morrell was never physically violent towards Ms. Chadick, but she felt intimidated by him because he had previously yelled at her over the telephone on work-related issues and because she had heard him yell at his wife, children, and other employees. She also claimed that in March or April 2006 when she told Mr. Morrell over the telephone that she did not want to meet him to have sex, he got angry, told her that “it was unacceptable,” and yelled at her over the telephone, at which point she agreed to have sex with him.

As noted above, Ms. Chadick quit her job in July 2006 and her sexual encounters with Mr. Morrell ended in August 2006. Therefore, she was not working with Mr. Morrell when she filed the petition for injunction on November 20, 2006. In fact, Ms. Chadick had not seen Mr. Morrell since early October 2006. At the November 29 hearing, Ms. Chadick failed to present any evidence that she was in fear of Mr. Morrell after the two stopped working for the same employer. The essence of Ms. Chadick’s testimony was that beginning in October 2006, Mr. Morrell had called her cellular telephone, home, and place of employment so frequently that her new employer terminated her. Ms. Chad-ick claimed she told Mr. Morrell in September or October 2006 that she did not want any contact with him, but he continued to call her. She stopped calling him and answering his calls in mid-October 2006. At the hearing, Ms. Chadick put into evidence thirteen messages left by Mr. Morrell on her cellular telephone between October 20 and November 2, 2006. Many of the messages asked Ms. Chadick to call Mr. Morrell; none of the messages contained violent language, threats of: violence, or requests for sex. In fact, many of the messages urged Ms. Chadick to terminate an affair with her supervisor at her subsequent place of employment and to reconcile with her husband. There was no evidence of any contact between Ms. Chadick and Mr. Morrell after November 3,2006. .

After hearing the evidence, the trial court concluded that Mr. Morrell’s repeated telephone calls supported “a preliminary showing of stalking,” which did not require threats of violence. The court then concluded that Mr. Morrell was stalking Ms. Chadick with repeated telephone calls, which the court considered a form of harassment under the statute. Therefore, it granted an injunction. The final judgment entered by the court, however, did not mirror its oral findings and conclusions. Rather, the trial court issued a “final judgment of injunction for protection against sexual violence,” stating:

After hearing the testimony of each party present, and of any witnesses ... the Court finds, based on the specific facts of this case, that Petitioner is a victim of Sexual violence and/or Petitioner has reasonable cause to believe he or she is in imminent danger of becoming a victim of an act of Sexual violence by Respondent and meets requirements for an injunction established by law.

The final judgment does not mention the trial court’s findings of stalking. Mr. Mor-rell appeals this final judgment.

Section 784.046(2) contains three separate and distinct causes of action upon which a trial court may issue an injunction against violence. See § 784.046(2)(a)-(e). A court can issue an injunction against (1) repeat violence, (2) dating violence, or (3) sexual violence. Id. While some of the elements necessary ■ to state a cause of action under each provision overlap, each cause of action contains allegations that differ from the other two. See id. Consequently, like any other cause of action, the evidence, presented at trial for each of these causes of action must be sufficient to survive a motion to dismiss. In this case, the evidence at trial did not support a finding of sexual violence as defined in the statute and did not support the entry of a final judgment of injunction for protection against sexual violence.

Ms. Chadick filed her petition for injunction using a court-provided form that tracked the section of the statute allowing relief based upon sexual violence. The trial court, in denying Mr. Morrell’s pretrial motion to dismiss, specifically found the allegations in the petition for injunction sufficient to state a cause of action for sexual violence. Thereafter, at the conclusion of the evidentiary hearing, the court entered a final judgment based upon a finding that Ms. Chadick was “a victim of Sexual violence.” In denying Mr. Mor-rell’s pretrial motion to dismiss, the trial court made a preliminary finding that the extramarital affair between the parties could constitute coercion sufficient to support sexual violence. In pretrial proceedings this may have been a permissible, albeit somewhat broadened, interpretation of the term “sexual violence” as defined in section 784.046(l)(c). However, once Ms. Chadick testified, she was unable to objectively substantiate the basis for her belief that her “consensual” sex with Mr. Morrell during an eleven-month period was actually the result of coercion.

When asked by the trial court what Mr. Morrell had said or done to make her feel she was being coerced into having sex with him, she indicated that she could not “recall exactly.” Moreover, at the time when she filed the petition for injunction, Ms. Chadick had not worked with Mr. Morrell for more than three months, and beginning in October 2006, her only contact with Mr. Morrell had been telephonic. Also, none of the telephone calls contained threats of sexual violence. Her testimony belied her claim and the final judgment’s findings that she was in imminent danger of becoming a victim of an act of sexual violence. Thus Ms. Chadick did not present any objective basis to support her subjective belief that she was the victim of sexual violence. See Oettmeier v. Oettmeier, 960 So.2d 902, 904 (Fla. 2d DCA 2007) (noting that “if fear alone is the ‘reasonable cause’ alleged to support the injunction, then not only must the danger feared be imminent but the rationale for the fear must be objectively reasonable as well” (citing Gustafson v. Mauck, 743 So.2d 614, 615 (Fla. 1st DCA 1999))). Hence, the trial court erred in entering a final judgment on the basis of sexual violence.

The trial court apparently astutely recognized the flaw in Ms. Chadick’s allegations of sexual violence and orally stated that the evidence of Mr. Morrell’s numerous telephone calls supported á finding of stalking. However, Ms. Chadick had filed a petition for injunction for protection against sexual violence, and the statutory definition of “sexual violence” contained in section 784.046(l)(c) does not include stalking. Ms. Chadick did not amend her pleadings, and this issue was not tried by consent. Moreover, the trial court entered the final judgment on the standard form used for injunctions for protection against sexual violence, and the final judgment did not include any findings regarding stalking. Absent amendment of the pleadings or trial by consent, the trial court cannot enter an injunction on grounds of violence different from the ground alleged by the petitioner. See generally Freshwater v. Vetter, 511 So.2d 1114, 1115 (Fla. 2d DCA 1987) (noting that judgment upon a matter outside the issues asserted by the pleadings cannot stand absent amendment of the pleadings, but amendment to state a new cause of action at trial should not be allowed over objection). Dismissal of the petition without prejudice for Ms. Chadick to refile or amend her petition was the appropriate remedy. See, e.g., Von Dunser v. Carter, 334 So.2d 95, 96 (Fla. 3d DCA 1976) (holding that where complaint was deficient, it should have been dismissed without prejudice to allow plaintiff an opportunity to amend the complaint if he so desired). Therefore, based on the record on appeal, there was insufficient competent, substantial evidence supporting the final judgment of injunction for protection against sexual violence.

We note that while evidence of past alleged nonconsensual sexual encounters not involving criminal charges might under certain facts constitute grounds for an injunction for protection against sexual violence, the trial court made no findings that Ms. Chadick had entered into sexual encounters with Mr. Morrell against her will. Even if the trial court had made such findings, it is not clear whether in this case such findings, standing alone, would have been legally sufficient to support an injunction against sexual violence without a showing that a threat of sexual violence was imminent. Regardless, it is apparent from the record, including the trial court’s stalking commentary, that the trial court would not have entered the injunction in this case based upon the past sexual liaison allegations alone.

We also note that this reversal may soon become moot because the one-year injunc-tive timeframe set by the trial court will soon expire. However, because the final judgment’s deficiency results in significant stigma against Mr. Morrell, he is entitled to have the matter remanded to the trial court to vacate the final judgment.

Finally, we reject Mr. Morrell’s argument that his numerous, unwelcome telephone calls to Ms. Chadick were intended to communicate ideas and were therefore protected by the First Amendment. Harassment cannot constitute speech protected by the First Amendment. See generally Bouters v. State, 659 So.2d 235, 237 (Fla.1995) (finding that “[sjtalk-ing, whether by word or deed, falls outside the First Amendment’s purview”).

Reversed and remanded with directions.

CASANUEVA and SILBERMAN, JJ., Concur.

      . We note that an injunction for protection against sexual violence requires a finding that: (a) the petitioner "reported the sexual violence to a law enforcement agency and is cooperating in any criminal proceedings against the respondent” or (b) the respondent "was sentenced to a term of imprisonment in state prison for the sexual violence and the respondent’s term of imprisonment has expired or is due to expire within 90 days following the date the petition is filed.” § 784.046(2)(c)(l)-(2). Ms. Chadick's petition alleged that she had reported the sexual violence to a law enforcement agency, but no evidence was presented at the final hearing establishing this requirement. Furthermore, there is no record evidence that Morrell was ever investigated, arrested, imprisoned, or charged with sexual violence.


author: WALLACE, Judge.

text:
    Demetrius L. WALKER, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-5655.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 2007.
   WALLACE, Judge.

Demetrius L. Walker appeals the summary denial of his motion to correct illegal sentence filed in accordance with Florida Rule of Criminal Procedure 3.800(a). We affirm in part, reverse in part, and remand for resentencing.

Background

Walker pleaded nolo contendere in two separate cases to four offenses: (1) battery on a law enforcement officer, §§ 784.08, .07(2)(b), Fla. Stat. (2005); (2) battery on a firefighter, §§ 784.03, .07(2)(b); (3) resisting an officer with violence, § 843.01, Fla. Stat. (2005); and (4) attempted robbery, §§ 812.13(2)(c), 777.04(1), Fla. Stat. (2005). The trial court sentenced him as a prison releasee reoffender (PRR) on all four counts and imposed four concurrent five-year sentences.

The Postconviction Court’s Order

Walker claimed in his postconviction motion that he is not subject to PRR sentencing in these cases because his offenses were not enumerated or forcible felonies under the PRR statute. See § 775.082(9)(a)(l), Fla. Stat. (2005). The postconviction court summarily denied Walker’s motion. In support of its ruling, the postconviction court cited Jenkins v. State and Brown v. State.

The Impact of State v. Hearns

When the postconviction court summarily denied Walker’s rule 3.800(a) motion, it did not have the benefit of State v. Hearns, 961 So.2d 211 (Fla.2007). In Hearns, the Supreme Court of Florida considered whether battery on a law enforcement officer is a “ ‘forcible felony, as described in’ section 776.08, Florida Statutes (2000),” for purposes of the violent career criminal (VCC) statute. Id. at 214; see § 775.084(l)(d). Because battery on a law enforcement officer is not specifically enumerated as a “forcible felony” in section 776.08, the Hearns court analyzed the catchall provision that defines a “forcible felony” as including “any other felony which involves the use or threat of physical force or violence against any individual.” § 776.08, Fla. Stat. (2005). Relying on its prior decision in Perkins v. State, 576 So.2d 1310 (Fla.1991), the Hearns court held that “in determining whether a crime constitutes a forcible felony, courts must consider only the statutory elements of the offense, regardless of the particular circumstances involved.” 961 So.2d at 212. Quoting from Perkins, the Hearns court said:

[I]n the strict and literal sense required by Florida law, this language can only mean that the statutory elements of the crime itself must include or encompass conduct of the type described. If such conduct is not a necessary element of the crime, then the crime is not a forcible felony within the meaning of the final clause of section 776.08.
Perkins, 576 So.2d at 1313 (emphasis added). Therefore, Perkins held that for an offense to be a forcible felony under section 776.08, the “use or threat of physical force or violence” must be a necessary element of the crime. If an offense may be committed without the use or threat of physical force or violence, then it is not a forcible felony.

Id. at 215. Because battery on a law enforcement officer may be committed by a mere touching that would not necessarily involve “the use or threat of physical force or violence” within the meaning of the statute, the Hearns court concluded' that battery on a law enforcement officer is not a forcible felony for purposes of imposing a VCC designation. Id. at 219. Guided by the teaching of Hearns, we turn now to a consideration of whether each of the four crimes for which Walker was sentenced is a qualifying offense under the PRR statute.

Battery on a Law Enforcement Officer and Battery on a Firefighter

Although the Hearns court analyzed whether battery on a law enforcement officer was a forcible felony for purposes of a VCC designation, the Hearns analysis of the VCC statute is equally applicable to the PRR statute because the critical language is the same in both instances. Under the PRR statute, “[a]ny felony that involves the use or threat of physical force or violence against an individual” is a qualifying offense. § 775.082(9)(a)(l)(o). The Hearns court stated, “We have held that where the Legislature uses the exact same words or phrases in two different statutes, we may assume it intended the same meaning to apply.” 961 So.2d at 217 (citing Goldstein v. Acme Concrete Corp., 103 So.2d 202 (Fla.1958)). Accordingly, the court specifically disapproved Jenkins, Brown, and other district court cases to the extent that they hold that battery on a law enforcement officer- “is a felony that necessarily involves the ‘use or threat of physical force or violence.’” Id. at 220. Therefore, the analysis in Hearns compels the conclusion that Walker was improperly sentenced as a PRR on the offenses of battery on a law enforcement officer and battery on a firefighter. See Brookens v. State, 963 So.2d 901 (Fla. 5th DCA 2007). The State properly concedes this point.

Resisting Arrest With Violence

This court has previously held that “[s]ince resisting arrest with violence is a felony that involves the use or threat of physical force or violence, the offense is a qualifying offense under” the PRR statute. Watson v. State, 749 So.2d 556, 556 (Fla. 2d DCA 2000), receded from on other grounds by Matthews v. State, 774 So.2d 1, 3-4 (Fla. 2d DCA 2000); see also Clark v. State, 779 So.2d 343, 344 (Fla. 2d DCA 2000), approved on other grounds, 790 So.2d 1030 (Fla.2001); State v. Stevenson, 779 So.2d 549, 549 (Fla. 2d DCA 2001). With respect to this offense, we conclude that the analysis in Hearns does not compel a different result. Section 843.01 provides:

Whoever knowingly and willfully resists, obstructs, or opposes any officer as defined in s. 943.10(1), (2), (3), (6), (7), (8), or (9); member of the Parole Commission or any administrative aide or supervisor employed by the commission; parole and probation supervisor; county probation officer; personnel or representative of the Department of Law Enforcement; or other person legally authorized to execute process in the execution of legal process or in the lawful execution of any legal duty, by offering or doing violence to the person of such officer or legally authorized person, is guilty of a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

(Emphasis added.) One of the elements of resisting arrest with violence under section 843.01 is either offering to do violence or actually doing it. For this reason, resisting arrest with violence is an offense that qualifies under the PRR statute as “[a]ny felony that involves the use or threat of physical force or violence against an individual.” § 775.082(9)(a)(l)(o). The post-conviction court properly denied Walker’s motion as to the offense of resisting with violence.

Attempted Robbery

With respect to Walker’s offense of attempted robbery, the postconviction court correctly denied Walker’s motion. The Hearns analysis is inapplicable to attempted robbery. This crime is an enumerated offense under the PRR statute. See § 775.082(9)(a)(l)(g).

Conclusion

To summarize, we affirm the postconviction court’s denial of Walker’s 3.800(a) motion with respect to his sentences as a PRR for attempted robbery and resisting arrest with violence. However, we reverse the postconviction court’s denial of Walker’s motion with respect to his sentences for battery on a law enforcement officer and battery on a firefighter. We remand for the trial court to strike the PRR designation from Walker’s sentences on those two offenses.

Affirmed in part, reversed in part, and remanded.

KELLY and CANADY, JJ., concur.

      . 884 So.2d 1014, 1016 (Fla. 1st DCA 2004) (finding that a defendant's battery on a law enforcement officer was a qualifying offense for sentencing as a PRR where the defendant intentionally touched or struck an officer against the officer’s will and created a well-founded fear in the officer that violence was imminent by driving a car directly toward the officer),.disapproved of by State v. Hearns, 961 So.2d 211 (Fla.2007).

      . 789 So.2d 366, 367 (Fla. 2d DCA 2001) (holding "that battery on a law enforcement officer is a qualifying offense for [PRR] sentencing”), disapproved of by State v. Hearns, 961 So.2d 211 (Fla.2007).


text:
    Aaron MARSH, Appellant, v. STATE of Florida, Appellee.
    No. 2D04-4884.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 2007.

      James Marion Moorman, Public Defender, and Deborah K. Brueckheimer, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Jonathan P. Hurley,. Assistant Attorney General, Tampa, for Appellant.
   PER CURIAM.

Aaron Marsh appeals the trial court’s denial of his motion to dismiss, asserts that the trial court erroneously imposed certain costs, and claims that the trial court failed to give him proper credit for time served. We reverse the trial court’s order solely as to the imposition of certain costs and affirm in all other respects.

Marsh challenges the trial court’s order imposing a $65 cost “pursuant to F.S. 939.185(1).” Section 939.185 became effective on July 1, 2004, ch.2004-265, § 88, at 1022-23, Laws of Fla., and is effective as to crimes committed after that date, Navicky v. State, 949 So.2d 1047, 1048 (Fla. 2d DCA 2006). Marsh’s crime was committed on July 23, 2003, before the statute came into existence. Therefore, the cost was erroneously imposed.

Marsh also challenges the trial court’s order imposing a $50 cost “pursuant to F.S. 775.083(2).” Although the imposed cost was mandatory under the 2004 version of section 772.083(2), the version of this statute in effect at the time of the commission of the crime was discretionary and required that the trial court find that the defendant had the ability to pay. § 775.083(2)(b), Fla. Stat. (2003) (“[T]he court may order the defendant to pay such fine if the court finds that the defendant has the ability to pay the fine and that the defendant would not be prevented thereby from being rehabilitated or making restitution:”). Because the trial court imposed this discretionary cost without conducting the required inquiry, the cost must be stricken. See Gonzalez v. State, 939 So.2d 224, 225 (Fla. 2d DGA 2006); Stewart v. State, 916 So.2d 53, 54 (Fla. 2d DCA 2005).

Accordingly, we strike the $65 court cost imposed pursuant to section 939.185(1) and the $50 cost imposed pursuant to section 775.083(2)(b) and remand to the circuit court to correct the judgment. On remand, the trial court may reimpose the $50 cost pursuant to section 775.083(2)(b) if it conducts the necessary hearing and makes the required findings. •

Affirmed in part, costs stricken as noted, and remanded.

WHATLEY and CASANUEVA, JJ., and FOSTER, ROBERT A., Associate Judge, Concur.

      . Marsh preserved the cost and fine issues for appeal by filing a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).


text:
    Tyrone Anthony BREAUX, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3674.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 2007.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appel-lee.
   GALLEN, THOMAS M., Associate Senior Judge.

Tyrone Anthony Breaux appeals his judgments and sentences, arguing that an error in his scoresheet requires resentenc-ing. We affirm.

Breaux was charged with offenses including capital sexual battery. In February 2002, he pleaded to one count of attempted sexual battery, two counts of handling and fondling a child under the age of sixteen, and one count of child abuse. He received a sentence of ten years’ sex offender probation.

Breaux violated his probation in 2006. He was sentenced to ten years’ imprisonment. Because we reject his argument that the trial court improperly included sexual contact points for the three sexual offenses, the error in his scoresheet totals only 10.5 points, which is conceded by the State. We are convinced beyond a reasonable doubt that the trial court would have imposed the same sentence with or without the 10.5 points. See State v. Anderson, 905 So.2d 111 (Fla.2005).

Accordingly, we affirm the judgments and sentences on appeal.

Affirmed.

ALTENBERND and DAVIS, JJ„ Concur.


author: LaROSE, Judge.

text:
    Michael A. NEDD, Doc # C518061, a/k/a Michael A. Nedo, Appellant, v. STATE of Florida, Appellee.
    No. 2D06-3842.
    District Court of Appeal of Florida, Second District.
    Oct. 17, 2007.
    James Marion Moorman, Public Defender, and Sean K. Ahmed, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Richard M. Fishkin, Assistant Attorney General, Tampa, for Appellee.
   LaROSE, Judge.

Michael A. Nedd requests a new trial after being convicted and sentenced for delivery of a controlled substance. He argues that the trial court- erred in refusing to give his requested instruction on knowledge of the controlled substance. We agree and reverse and remand for a new trial.

In January 2001, the State charged Mr. Nedd with trafficking in illegal drugs. See § 893.135(l)(c)l.c., Fla. Stat. (2000). We can summarize the facts succinctly. In December 2000, undercover officers arranged for the delivery of two ounces of heroin from a drug dealer known as “Bart.” Prior to the planned delivery, Bart called and advised that he would send someone in his place. Mr. Nedd soon arrived, entered the officers’ car, gave them a paper bag containing heroin, and accepted $5000 from one of the officers.

Mr. Nedd went to jury trial in August 2004. A major part of his defense was his lack of knowledge that the bag contained heroin. At the jury instruction charge conference, Mr. Nedd requested an instruction on knowledge consistent with Chicone v. State, 684 So.2d 736 (Fla.1996). The trial court declined to give the instruction because it was not contained in the standard instructions. Mr. Nedd advised the trial court of Abbott v. State, 744 So.2d 578 (Fla. 2d DCA 1999). He explained that Abbott held that under Chicone and State v. Dominguez, 509 So.2d 917 (Fla. 1987), the jury must be instructed on the issue of whether he knew of the precise substance and its illicit nature. See Abbott, 744 So.2d at 579-80. The trial court declined to give the requested instruction, ruling that the standard instruction allowable in 2004 adequately covered the subject.

During its deliberations, the jury asked whether the “defendant [must] have known that it was specifically heroin versus controlled substance.” Mr. Nedd again argued that the jury question should be answered in the affirmative. But the trial court disagreed and advised the jury that it must rely on the evidence and the instructions it received. The jury returned a verdict of guilty of the lesser offense of delivery of a controlled substance.

The facts here are similar to those in Abbott, where the jury asked: “Does she have to know specificly (sic) if there’s meth in the rubber glove? OR just as (sic) dope in the glove[.]” 744 So.2d at 579 (alteration in original). As in Abbott, a major part of Mr. Nedd’s defense was his lack of knowledge that the bag contained heroin. Thus the erroneous instruction cannot be considered harmless. See id. at 580; see also Grant v. State, 815 So.2d 667 (Fla. 2d DCA 2002) (reversing delivery conviction for failure to give requested Chicone instruction).

Reversed and remanded for a new trial.

DAVIS, J., and ST. ARNOLD, JACK R., Associate Judge, Concur.

      . Mr. Nedd’s appeal proceeds as a belated appeal. See Fla. R.App. P. 9.141(c). Because we reverse for a new trial, we need not address in detail Mr. Nedd’s remaining claims. However, concerning his acquittal argument, we note that ”[t]he issue of knowledge of the presence of a drug is usually an ultimate question that the jury must decide on factual inferences.” State v. Ladrig, 707 So.2d 819, 820 (Fla. 2d DCA 1998).
      We also observe that Mr. Nedd raised issues dealing with the sentence imposed after his 2004 trial. A postconviction court previously denied relief on motions filed pursuant to Florida Rules of Criminal Procedure 3.800 and .3.850 in 2004 and 2005. He did not appeal the denial of the rule 3.800 motion. Mr. Nedd appealed the denial of his rule 3.850 motion; we affirmed. See Nedd v. State, 923 So.2d 1172 (Fla. 2d DCA 2006) (table decision). Our granting of a new trial will result in a new sentencing if Mr. Nedd is convicted. However, the sentencing issues he argued in this appeal were previously decided and could not be reraised here.

      . Mr. Nedd originally entered a plea in 2001. In 2002, he unsuccessfully sought relief from an illegal sentence under rule 3.800. See Nedd v. State, 855 So.2d 664 (Fla. 2d DCA 2003). In 2004, the postconviction court granted Mr. Nedd’s rule 3.850 motion and vacated the 2001 judgment and sentence.

      . Statutory amendments later deleted the specific knowledge requirement, but those changes were not effective until May 13, 2002, and do not apply retroactively. See Whitehurst v. State, 852 So.2d 902, 903 (Fla. 2d DCA 2003).


author: FULMER, Judge.

text:
    T.S., Appellant, v. STATE of Florida, Appellee.
    No. 2D06-4859.
    District Court of Appeal of Florida, Second District.
    Oct. 19, 2007.

      James Marion Moorman, Public Defender, and Jeffrey Sullivan, Special Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan M. Shanahan, Assistant Attorney General, Tampa, for Appellee.
   FULMER, Judge.

T.S., a juvenile, punched a co-worker in the eye, causing serious injury. He was charged with and adjudicated delinquent of aggravated battery following an adjudicatory hearing before the court. We reverse for the trial court to reduce the adjudication to one of felony battery.

T.S. was employed as a dishwasher at a restaurant in Clewiston. The victim, a waitress, was annoyed that T.S. kept leaving his work area to steal glances at teenage girls having a party in the dining room. Several times she tried unsuccessfully to have the manager tell T.S. to stop. She herself was also trying to get him to stay in his own work area. At one point T.S. picked up bowls as if to throw them at the victim. In response, she picked up a broom and moved as if to hit him. Instead, she put the broom down and then threw a plastic cup of iced tea at him. He responded by punching her once in the right eye. The ophthalmologist who treated the victim testified that she suffered a fracture of the right orbit (eye socket), requiring reparative surgery, and even after the surgery continued to suffer from double vision and an inability to raise her right eye in its socket.

On appeal, T.S. concedes that he committed a battery but argues that the State’s evidence was not sufficient to prove aggravated battery. He asks- this court to reverse the adjudication for the trial court to reduce it to one for felony battery and adjust his disposition accordingly. We agree with T.S.’s argument.

A person commits simple battery when he either “[a]ctually and intentionally touches or strikes another person against the will of the other” or “[ijnten-tionally causes bodily harm to another person.” § 784.03(l)(a), Fla. Stat. (2005). The definition of felony battery recites the first prong of the battery definition and adds the element of causing great bodily harm, permanent disability, or permanent disfigurement. § 784.041(1). Finally, aggravated battery occurs when a person, in committing battery, intentionally or knowingly causes great bodily harm, permanent disability, or permanent disfigurement. § 784.045(l)(a)(l). Aggravated battery can thus be seen as simple battery plus intentionally or knowingly causing great bodily harm, etc., or as felony battery with the added element of intentionally or knowingly causing the great bodily harm, etc. This mens rea requirement makes aggravated battery a specific intent crime. See Knott v. State, 573 So.2d 179, 180 (Fla. 2d DCA 1991). Felony battery is a necessarily lesser included offense of aggravated battery. See Fla. Std. Jury Instr. (Crim.) 8.4.

Our review of the record leads us to conclude that the evidence presented at the adjudicatory hearing was sufficient to demonstrate battery with great bodily harm and possibly permanent disfigurement — that is, felony battery. T.S. does not contest this. The issue is whether T.S., in committing the battery, intended to cause the enhanced level of harm or knew that this level of harm would be caused, such that the specific-intent element of aggravated battery was satisfied.

On appeal the State, citing Sagner v. State, 791 So.2d 1156 (Fla. 4th DCA 2001), argues that the ongoing dispute between T.S. and the victim was sufficient to show T.S.’s intent to commit aggravated battery. The factual scenarios in Sagner and in T.S.’s situation are distinguishable, however. In Sagner, the court pointed out that a heated discussion and name calling between the defendant and his adversary, followed by the defendant’s looking at the other straight in the eyes before throwing a bottle at him, was sufficient to show the specific intent required for an aggravated battery conviction. Id. at 1159. Here, while there was a verbal argument before T.S. struck the victim, the evidence indicates that his punching of the victim was a quick, almost reflexive response to having tea thrown in his face. Indeed, in its brief the State characterizes T.S.’s reaction as immediate. As such, there was no evidence based on which the court could find that T.S. intended to or knew that he would cause the extent of the injury that resulted.

Further supporting our view that only felony battery and not aggravated battery was proved is the fact that the prosecutor explicitly argued the elements of the lesser offense even though she used the term “aggravated battery.” She began her closing argument as follows:

Your Honor, to prove the crime of aggravated battery, the State has to prove, A, that a battery occurred, and B, that there was either great bodily harm, permanent disability, or permanent disfigurement.

This is a recitation of the elements of felony battery, not aggravated battery. See §§ 784.041(1), 784.045(l)(a)(l). T.S. objected, asserting that the prosecutor misstated the statute. The court replied, “It’s closing. I know what the law is.” The prosecutor then summarized the evidence demonstrating that the victim had suffered great bodily injury and presented case law to support this proposition. The prosecutor said, “[The victim] did, indeed, receive or suffer great bodily harm as a result of the defendant’s punching her, intentionally and knowingly punching her face” (emphasis added). The emphasized words reflect only the general-intent element of battery. See § 784.03(l)(a)(l). However, the prosecutor failed to argue whether T.S. intentionally or knowingly caused the level of injury incurred, the specific-intent element of aggravated battery. See § 784.045(l)(a)(l).

The court found it uncontroverted that a battery had taken place and that permanent harm or disfigurement had occurred, but it failed to address whether the State had proved the specific-intent element of aggravated battery. The court concluded its findings by saying, “I am, therefore, going to find him guilty of the charge of aggravated battery because it did result in permanent disfigurement and/or injury.” As the prosecutor had done, the court recited the last element of felony battery, not the specific-intent element of aggravated battery.

In short, the State adequately proved and appropriately argued the elements of felony battery. In light of the lack of evidence demonstrating the specific intent of aggravated battery, the trial court should have adjudicated T.S. delinquent of the lesser offense. We therefore reverse and remand for the trial court to reduce T.S.’s adjudication to one of felony battery.

Reversed and remanded with instructions.

CASANUEVA and LaROSE, JJ., Concur.

      . T.S.. preserved this issue with an appropriate motion for judgment of dismissal after the State had rested.

      . Two additional forms of aggravated battery are not relevant to this discussion: committing battery with a deadly weapon, § 784.045(l)(a)(2), and knowingly committing battery on a pregnant victim, § 784.045(l)(b).

      . It may be noted that felony battery, an offense defined in 1997, was created to "fill the gap between simple battery and aggravated battery.” Jefferies v. State, 849 So.2d 401, 404 (Fla. 2d DCA 2003), receded from on other grounds by Hall v. State, 951 So.2d 91 (Fla. 2d DCA 2007); see ch. 97-183, § 1, Laws of Fla.

      .The prosecutor is not identified in the hearing transcript. For the purposes of this opinion we will assume that the prosecutor who signed the petition for delinquency also tried the case.


author: CANADY, Judge.

text:
    SPEEDWAY SUPERAMERICA, LLC, Appellant, v. TROPIC ENTERPRISES, INC., Sunoco, Inc. (R & M), and Mascot Petroleum Company, Inc., Appellees. Sunoco, Inc. (R & M) and Mascot Petroleum Company, Inc., Appellants, v. Tropic Enterprises, Inc., and Speedway SuperAmerica, LLC, Appellees.
    Nos. 2D05-2207, 2D05-2209.
    District Court of Appeal of Florida, Second District.
    April 20, 2007.
    Rehearing Denied June 25, 2007.
    Kenneth J. Plante of Roetzel & Andress, L.P.A., Tallahassee, and Clayton W. Crevasse of Roetzel & Andress, L.P.A., Fort Myers, for Speedway SuperAmerica, LLC.
    Jennifer S. Eden and Deborah B. Ans-bro of Gronek & Latham, LLP, Orlando, for Sunoco, Inc. (R & M) and Mascot Petroleum Co., Inc.
    Christopher J. Greene of Brant, Abraham, Reiter, McCormick & Greene, P.A., Jacksonville, and David S. Maglich of Fergeson, Skipper, Shaw, Keyser, Baron & Tirabassi, P.A., Sarasota, for Tropic Enterprises, Inc.
   CANADY, Judge.

In this consolidated appeal, we consider a dispute arising from a landlord’s refusal to grant consent to the assignment of a commercial lease. The trial court determined that the landlord, Tropic Enterprises, Inc., had an unfettered right under the lease to withhold its consent to the assignment of the lease made by the tenant, Speedway SuperAmerica, LLC, to the assignee, Sunoco, Inc. (R & M). Because we conclude that the trial court erred in making that determination, we reverse.

The order on appeal is an order directing the issuance of a writ of possession to Tropic, which is subject to interlocutory review as an order that determines “the right to immediate possession of property.” Fla. R.App. P. 9.130(a)(3)(C)(ii). In reviewing this order we are required to consider the basis for the entry of the order. That basis is reflected in the trial court’s order granting Tropic’s motion for summary judgment.

The trial court’s order granting summary judgment to Tropic made the critical ruling that the assignment by Speedway to Sunoco was invalid because Tropic had refused to provide the written consent to the assignment of the lease, which was requested by Speedway. The trial court thus determined that the assignment constituted a breach of the lease by Speedway, that Tropic was entitled to regain possession of the leasehold property, and that Sunoco and its affiliate, Mascot Petroleum Company, Inc., were wrongfully in possession of the property.

In determining that Tropic had the unfettered right to deny its consent to the assignment of the lease, the trial court relied on the following provision of the lease:

Lessee shall not assign or transfer this lease, or any interest therein, without the prior written consent of Lessor, and a consent to an assignment shall not be deemed a consent to any subsequent assignment. Any such assignment without consent shall be void, and shall, at the option of the Lessor, terminate this lease.

Sunoco, Mascot, and Speedway argued to the trial court that Tropic’s right of consent under this lease provision was not absolute but was subject to an implied obligation not to arbitrarily deny consent. In rejecting that argument, the trial court relied on the decision of the Florida Supreme Court in Anderson v. Tower Amusement Co., 120 Fla. 476, 163 So. 11 (1935). The trial court understood Tower Amusement to hold that a landlord cannot be subject to an implied duty not to arbitrarily deny consent to an assignment. The trial court concluded that since it was “undisputed” that Tropic “did not give written consent to the assignment of this lease,” Tropic was entitled to judgment as a matter of law.

On appeal, Speedway, Sunoco, and Mascot contend that the trial court’s reliance on Tower Amusement was misplaced and that because there were disputed issues of fact concerning the reasonableness of Tropic’s denial of consent, summary judgment was not warranted. The correctness of the order on appeal turns on whether the trial court properly understood the decision in Tower Amusement.

In Tower Amusement, the trial court rejected a claim for injunctive relief by the landlords against a purported assignee of the leasehold. The supreme court concluded that the trial court had erred because “under the terms of the lease an assignment thereof could only be made with the written consent of the lessors thereunto formally given” and the “record fail[ed] to show that such written consent was given by the lessors.” 163 So. at 13. The court noted with respect to the lease provision concerning assignment that although “[t]he language used is somewhat ambiguous,” “the construction placed on the lease by all of the parties to the lease” “was that the lessee should not underlet or rent the premises or transfer the lease without the written consent of the lessors.” Id.

In Tower Amusement, no one argued that there was an implied obligation governing the exercise of the landlord’s rights with respect to assignments. That issue was not presented to the court, and it was not decided by the court. The holding of Tower Amusement therefore does not address whether such an implied obligation might arise. “[N]o decision is authority on any question not raised and considered, although it may be involved in the facts of the case.” State ex rel. Helseth v. Du Bose, 99 Fla. 812, 128 So. 4, 6 (1930); see also Twyman v. Roell, 123 Fla. 2, 166 So. 215, 217 (1936) (“To be of value as a precedent, the questions raised by the pleadings and adjudicated in the case cited as a precedent must be [o]n point with those presented in the case at bar.”). Accordingly, the trial court’s reliance on Tower Amusement was unjustified.

We have stated that “[t]he implied covenant of good faith exists in virtually all contractual relationships.” Sepe v. City of Safety Harbor, 761 So.2d 1182, 1184 (Fla. 2d DCA 2000); see also County of Brevard v. Miorelli Eng’g, Inc., 703 So.2d 1049, 1050 (Fla.1997) (“ ‘[E]very contract includes an implied covenant that the parties will perform in good faith.’ ” (quoting Champagne-Webber, Inc. v. City of Fort Lauderdale, 519 So.2d 696, 697 (Fla. 4th DCA 1988))); Restatement (Second) of Contracts § 205 (1981) (“Every contract imposes upon each party a duty of good faith and fair dealing in its performance and its enforcement.”).

Despite broad characterizations of the implied covenant of good faith, we have recognized that it “is a gap-filling default rule,” which comes into play “when a question is not resolved by the terms of the contract or when one party has the power to make a discretionary decision without defined standards.” Publix Super Markets, Inc. v. Wilder Corp. of Del., 876 So.2d 652, 654 (Fla. 2d DCA 2004). “[T]he implied covenant of good faith and fair dealing is designed to protect the contracting parties’ reasonable expectations.” Cox v. CSX Intermodal, Inc., 732 So.2d 1092, 1097 (Fla. 1st DCA 1999). “[W]here the terms of the contract afford a party substantial discretion to promote that party’s self-interest, the duty to act in good faith nevertheless limits that party’s ability to act capriciously to contravene the reasonable contractual expectations of the other party.” Id. at 1097-98.

The implied obligation of good faith performance has been applied in the context of lease provisions requiring a landlord’s consent to a tenant’s assignment of a lease. In Fernandez v. Vazquez, 397 So.2d 1171, 1173-74 (Fla. 3d DCA 1981) (footnote omitted), the court recognized the “well-accepted concept that a lease is a contract and, as such, should be governed by the general contract principles of good faith and commercial reasonableness.”

The Fernandez court considered a commercial lease providing “that the lessee shall not assign the lease, nor sublet the premises!,] without the written consent of the lessor,” id. at 1172, where the landlord refused consent to an assignment but offered to enter a new lease with the proposed assignee with an increased monthly rental. The court held:

[A] lessor may not arbitrarily refuse consent to an assignment of a commercial lease which provides ... that a lessee shall not assign or sublease the premises without the written consent of the lessor. A withholding of consent to .assign a lease, which fails the tests for good faith and commercial reasonableness, constitutes a breach of the lease agreement. Whether a landlord breached the lease by acting unreasonably in withholding consent of a commercial tenant is to be determined by a jury according to the facts of that case.

Id. at 1174 (footnote omitted); see also Restatement (Second) of Property: Landlord Tenant 15.2(2) (1977) (stating that “the landlord’s consent to an alienation by the tenant cannot be withheld unreasonably, unless a freely negotiated provision in the lease gives the landlord an absolute right to withhold consent”).

The Fernandez court went on to enumerate various factors that may be considered in determining whether the withholding of consent is arbitrary: “(a) financial responsibility of the proposed subtenant!,] (b) the ‘identity’ or ‘business character’ of the subtenant, i.e., suitability for the particular building, (c) the need for alteration of the premises, (d) the legality of the proposed use, and (e) the nature of the occupancy, i.e., office, factory, clinic, etc.” 397 So.2d at 1174. Finally, the Fernandez court made this observation: “Denying consent solely on the basis of personal taste, convenience or sensibility or in order that the landlord may charge a higher rent than originally contracted for have been held arbitrary reasons failing the tests of good faith and reasonableness under commercial leases.” Id.

In the instant case, the lease provision governing assignments simply requires the “prior written consent of Lessor” to any assignment. The provision contains “no standards for exercising discretion” by the landlord. Wilder Corp. of Del., 876 So.2d at 655. Nor does the provision state that the landlord’s discretion to withhold consent is absolute. The provision presents a circumstance in which “one party has the power to make a discretionary decision without defined standards,” id. at 654, a circumstance in which a “covenant of good faith” will be “implied” to “protect[ ][the] contracting parties’ reasonable commercial expectations,” id. at 655. The trial court therefore erred in concluding that the lease granted Tropic the unfettered right to deny consent to the assignment by Speedway to Sunoco.

We therefore reverse the order on appeal and remand for further proceedings.

FULMER, C.J., and DAVIS, J., concur.

      . The fact that the order granting summary judgment is itself not an appealable order does not divest us of jurisdiction to consider an error in the summary judgment order that provided the basis for the order directing issuance of the writ of possession.

      . When properly applied, the implied covenant of good faith gives effect to the reasonable expectations of the contracting parties. Application of the implied duty in a way that defeats the contractual terms agreed to by the contracting parties has been criticized:
      Firms that have negotiated contracts are entitled to enforce them to the letter, even to the great discomfort of their trading partners, without being mulcted for lack of good faith[.] Although courts often refer to the obligation of good faith that exists in every contractual relation, this is not an invitation to the court to decide whether one party ought to have exercised privileges expressly reserved in the document. Good faith is a compact reference to an implied undertaking not to take opportunistic advantage in a way that could not have been contemplated at the time of drafting, and which therefore was not resolved explicitly by the parties. When the contract is silent, principles of good faith ... fill the gap. They do not block use of terms that actually appear in the contract.

        Kham & Nate’s Shoes No. 2, Inc. v. First Bank of Whiting, 908 F.2d 1351, 1357 (7th Cir. 1990) (citations omitted); see also Barnes v. Burger King Corp., 932 F.Supp. 1420, 1438 (S.D.Fla.1996) (The implied covenant of good faith should not be invoked to override the express terms of the agreement between the parties.).

      . Our decision in Natural Kitchen, Inc. v. American Transworld Corp., 449 So.2d 855, 858 (Fla. 2d DCA 1984), dealt with issues related to a landlord’s refusal to consent to a lease assignment, but we specifically “noted that the unreasonableness of [the landlord] in refusing to consent to the assignment of the lease [was] not an issue on this appeal.”


text:
    Rocio GARCIA, a minor, by and through her parent and best friend, Laura Garcia, and Laura Garcia and Armando Garcia, her parents, Appellants, v. CITY OF HOLLYWOOD, a political subdivision of the State of Florida, Appellee.
    No. 4D06-970.
    District Court of Appeal of Florida, Fourth District.
    June 6, 2007.
    Arnold R. Ginsberg of Ginsberg & Schwartz, Miami, and Marcos A. Gonzalez, Coral Gables, for appellants.
    Daniel L. Abbott, City Attorney, and Tracy A. Lyons, Assistant City Attorney, Hollywood, for appellee.
   PER CURIAM.

We withdraw our opinion issued February 21, 2007 and replace it with this opinion.

Rocío Garcia, a minor, by and through her parent and best friend, Laura Garcia, and Laura Garcia and Armando Garcia, her parents (“Garcia”), appeal a final summary judgment entered in favor of the City of Hollywood (“City”). This ease involves personal injuries sustained by the minor, Rocio Garcia, who as a pedestrian was struck by a vehicle owned by the City and operated by one of its police officers, Sergeant Norris Redding (“Sergeant Red-ding”). The trial court concluded that at the time of the accident in question, Sergeant Redding, who was driving to the police station, was not in the course and scope of his employment with the City, and therefore the City was not liable as a matter of law. We affirm.

The accident in question occurred at approximately 6:00 a.m. on May 19, 2004. At that time, Sergeant Redding was driving to the police station in a marked “take-home” vehicle owned by his employer, the City. Sergeant Redding testified that the “take-home” policy provided that the vehicle could be driven to and from work. On the morning of the accident, Sergeant Redding was driving to the police station from home on the route that he had been taking on a daily basis for five or six years. Sergeant Redding’s shift was to begin at 7 a.m. and he was going in one hour early that morning to study for the Lieutenant’s exam which was to take place several months later. As he was driving that morning, he struck and seriously injured the minor Garcia as she attempted to cross a roadway in an effort to reach her school bus.

The vehicle “take-home” policy was part of the Collective Bargaining Agreement between the Broward County PBA and the City which provided in part that the purpose of the vehicle “take-home” policy was to provide the appearance of additional police presence; Sergeant Redding’s supervisor, Major Frank McGarry, testified that “take-home” vehicles are part of the City’s employment package and are “only permitted to be used portal to portal or for off-duty details.” McGarry testified that if a police officer is going to or from home in a police vehicle and witnesses a crime being committed, the officer must stop and take action.- The officer must also be dressed in uniform and armed when operating a police vehicle.

Garcia asserts a jury issue exists regarding the “course and scope of employment” because (1) at the time of the accident, Sergeant Redding was operating a vehicle provided to him by his employer to be used only for transportation to and from work, (2) the “take-home” vehicle was part of the City’s employment package, and (3) Sergeant Redding was required to be in uniform while operating the vehicle.

The City argues in response that the trial court properly granted its motion for summary judgment, as a matter of law because the uncontradicted testimony established that Sergeant Redding had yet to begin work when the accident occurred and was merely driving to the police station an hour before his shift began to study for an exam prior to beginning work. The City notes that although Sergeant Redding was driving a City-owned police vehicle, the Florida Supreme Court has held that our waiver of sovereign immunity statute, section 768.28(1), Florida Statutes (2004), does not waive sovereign immunity under the dangerous instrumentality doctrine. Rabideau v. State, 409 So.2d 1045, 1046 (Fla.1982) (“twenty-four-hour assignment of a state-owned vehicle to a state employee does not enlarge state liability under section 768.28 to include acts committed outside the employee’s scope of employment”).

In Foremost Dairies, Inc. v. Godwin, 158 Fla. 245, 26 So.2d 773 (1946), a claimant sued a corporation for the negligence of an employee who injured the claimant while driving a car to work which the employee owned. The corporation paid for fuel and repairs. The claimant recovered a judgment on the theory that the driver was engaged in the business of the corporation at the time of the accident, but the Florida Supreme Court reversed, holding that an employee, “merely going to or from work in his own car,” is not in the course of his employment as a matter of law. Id. at 774 (quoting Bourus v. Hagen et al., 192 Wash. 588, 74 P.2d 205 (Wash.1937)). In Everett Ford Co. v. Laney, 189 So.2d 877 (Fla.1966), an employee who worked irregular hours was returning to work after the office was closed, but had forgotten her key. While driving home to obtain her key, she was involved in an accident. Our supreme court held that she was not within the scope of her employment when the accident occurred, even though this was not the normal time to drive to work. Id. at 878.

We find additional support for the conclusion that Sergeant Redding was not within the course and scope of his employment at the time of the accident in Palm Beach County Sheriff’s Office v. Ginn, 570 So.2d 1059 (Fla. 1st DCA 1990). In Ginn, the First District reversed the order of the judge of compensation claims which found that the injuries of the claimant law enforcement officer were incurred at a time when the claimant was acting within the course and scope of his employment. Id. at 1060. The claimant, a Palm Beach County deputy sheriff, was off-duty and on a personal errand within Palm Beach County when he was injured in an automobile accident. Id. As a fringe benefit of his employment, he had been provided with a sheriffs office vehicle, which he was allowed to use on personal business and which he was driving at the time of the accident. Id. Prior to the accident, claimant had been monitoring the police radio in the vehicle, in the event that he might be called on duty to assist with some law enforcement matter. Id. Additionally, claimant was wearing a beeper at the time of the accident, which he was required to possess and monitor at all times as a member of the sheriffs office emergency field force. Id. In finding that the claimant was not acting within the course his employment, the First District held:

The fact that a law enforcement officer is on call for duty and has a police radio and other indicia of his authority in his possession is not dispositive in determining whether an off-duty officer is acting within the course of his employment. Rather, the issue, pursuant to the provisions of Section 440.091, is whether the officer is carrying out his primary responsibility, which is the “prevention or detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the state.”

Id. The court concluded that although the claimant was fully prepared to be called on duty, he was not actually on duty when the accident occurred. Id. at 1061. He was not in the process of carrying out any “primary responsibility” as delineated by Section 440.091, Florida Statutes. Id.

Similarly, at the time of the accident, Sergeant Redding was not in the process of carrying out a “primary responsibility” of his job as a police officer. He was not engaged in the “prevention or detection of crime or the enforcement of the penal, criminal, traffic, or highway laws of the State.” Rather, at the time of the accident, which occurred around 5:57 a.m., Redding was off-duty and made the personal decision to go to the police station an hour before his shift started at 7:00 a.m. to study for an upcoming Lieutenant’s exam. He was not furthering any interest of his employer or performing any duties of his employment. He was simply in transit to the police station an hour before he was required to report for work for the personal reason of studying for the Lieutenant’s exam.

Affirmed.

GUNTHER, POLEN and HAZOURI, JJ., concur.


author: WARNER, J.

text:
    TRANSPORTATION CASUALTY INSURANCE COMPANY, n/k/a Aequicap Insurance Company, Appellant, v. SOIL TECH DISTRIBUTORS, INC., Bulk Express Transport, Inc., Reynaldo Rodriguez, Margaret Heath & Kenneth Heath, as Co-Personal Representatives of the Estate of James Gabriel, the Estate of Marie Gabriel, and the Estate of Michael Gabriel, and Margaret Heath & Kenneth Heath, as Co-Guardians of James Joseph Gabriel, Appellees.
    No. 4D06-1483.
    District Court of Appeal of Florida, Fourth District.
    Aug. 8, 2007.

      John R. Hargrove and Dana J. McElroy of Gordon Hargrove & James, P.A., Fort Lauderdale, for appellant.
    Richard J. Ovelmen, Enrique D. Arana, and Mitchell D. Sprengelmeyer of Jorden Burt LLP, for appellees Soil Tech Distributors, Inc., Bulk Express Transport, Inc. and Reynaldo Rodriguez.
   WARNER, J.

Transportation Casualty Insurance Company appeals a final order dismissing its complaint for declaratory relief against its insured. Because the court concluded that what Transportation sought was rescission of the complaint, it refused to entertain the declaratory judgment action. We reverse, as Transportation was entitled to seek declaratory relief, even though other relief might also be available.

A vehicle owned by Soil Tech and operated by one of its drivers was involved in an automobile accident in which several members of a family were killed or injured. As a result of the accident, a lawsuit was filed against Soil Tech on behalf of the family. Transportation defended under a reservation of rights, as it contended that Soil Tech had misrepresented the condition of its vehicles in violation of its obligations under the policy.

In order to ascertain its responsibilities, Transportation filed suit for declaratory judgment. It sought to determine, inter alia, whether Soil Tech was in compliance with the terms of the policy and the warranties contained therein with respect to the condition of the vehicle; whether Soil Tech had made a material misrepresentation as to the condition of the vehicle; and whether there was liability coverage for the accident and/or a duty to defend under the terms of the policy.

Soil Tech moved to dismiss the declaratory judgment action, claiming that Transportation’s sole remedy was for rescission of the policy. Later, when Transportation settled the underlying tort action, Soil Tech also alleged that the declaratory action was moot. The trial court agreed with Soil Tech that Transportation must seek rescission, and it dismissed the complaint. Transportation appeals.

Although the trial court required Transportation to seek rescission, as its sole remedy, “[t]he existence of another adequate remedy does not preclude a judgment for declaratory relief.” § 86.111, Fla. Stat. Moreover, the availability of a remedy is reached after, not before, the determination of a plaintiffs rights. Meadows Cmty. Ass’n v. Russell-Tutty, 928 So.2d 1276, 1280 (Fla. 2d DCA 2006). A declaratory action is an appropriate means by which to determine the issue of coverage, inclusive of the issue relating to a duty to defend. Effort Enters. of Fla., Inc. v. Lexington Ins. Co., 666 So.2d 930, 931 (Fla. 4th DCA 1995). Parties seeking declaratory relief must show that:

there is a bona fide, actual, present practical need for the declaration; that the declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts; that some immunity, power, privilege or right of the complaining party is dependent upon the facts or the law applicable to the facts; that there is some person or persons who have, or reasonably may have an actual, present, adverse and antagonistic interest in the subject matter, either in fact or law; that the antagonistic and adverse interest are all before the court by proper process or class representation and that the relief sought is not merely the giving of legal advice by the courts or the answer to questions propounded from curiosity.

May v. Holley, 59 So.2d 636, 639 (Fla.1952).

Soil Tech’s primary argument is that the insurer was required to plead the elements of rescission, because the insurer was seeking to void the policy. If Soil Tech is arguing that a claim for rescission is the insurer’s only remedy, then this argument is foreclosed by the plain language of section 86.111. If, instead, Soil Tech is arguing that the insurer needed to plead the elements of rescission in order to state a claim for declaratory relief, it has cited no authority that actually supports this heightened pleading requirement.

An insurer may file a declaratory action in order to determine whether an insurance policy is voidable. See United Servs. Auto. Ass’n v. Clarke, 757 So.2d 554, 555 (Fla. 4th DCA 2000) (“USAA filed a separate declaratory judgment action against the Clarkes seeking to void the insurance policy ab initio because of Clarke’s material misrepresentation in his application for insurance.”). Although a prerequisite to rescission is placing the other party in the status quo ante, see Mazzoni Farms, Inc. v. E.I. DuPont De Nemours & Co., 761 So.2d 306, 313 (Fla.2000), it does not follow that the insurer must allege a return of premiums when seeking a declaratory judgment that it is entitled to void the policy. An insurer may want to know whether a policy is, in fact, voidable before seeking to rescind the policy, and a declaratory judgment is an appropriate means to that end.

Because Transportation was entitled to a declaration of its rights, even if it had a remedy of rescission, the trial court erred in dismissing the complaint. We thus reverse and remand for further proceedings in the declaratory judgment action.

POLEN and HAZOURI, JJ., concur.

      . Although the trial court did not dismiss the declaratory action on mootness grounds, Soil Tech invites this court to affirm on that basis. We decline the invitation, finding that, based on the limited record before us, there is still a controversy present.