author: SHEPHERD, J. SCHWARTZ, Senior Judge

text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, Petitioner, v. Richard PIPKIN, Respondent.
    No. 3D04-2317.
    District Court of Appeal of Florida, Third District.
    Nov. 9, 2005.
    Rehearing and Rehearing En Banc Denied May 17, 2006.
    Enoch J. Whitney and Carlos Raurell, Assistant General Counsel, Department of Highway Safety and Motor Vehicles, for petitioner.
    Robert S. Reiff, Miami, for respondent.
    Before SHEPHERD and SUAREZ, JJ., and SCHWARTZ, Senior Judge.
   SHEPHERD, J.

The petitioner, State of Florida, Department of Highway Safety and Motor Vehicles, seeks certiorari review of a circuit court appellate division decision reinstating respondent, Richard Pipkin’s driver’s license, which had been suspended for his refusal to submit to a breath-alcohol test. Our decision turns on whether or not Pip-kin was lawfully stopped by an off-duty Coral Gables police officer who observed him violating routine traffic regulations outside the officer’s jurisdiction. Concluding that Pipkin was not lawfully stopped, we are compelled to approve the decision of the circuit court appellate division.

In November 2002, Coral Gables Police Officer Thomson observed Pipkin driving erratically in an easterly direction on Bird Road, just west of the Coral Gables city limit. Although Officer Thomson was in uniform and driving a marked police cruiser, he was off duty when he made this observation. He nevertheless activated his overhead lights and siren, signaling Pipkin to pull over. In so doing, Pipkin traveled across the City of Coral Gables boundary at the Red Road intersection, and came to a stop on the shoulder of the east-bound lane of Bird Road, fifty to seventy feet within the Coral Gables city limit.

Because he was off duty, Officer Thomson called on-duty Coral Gables Officer Smith to the scene, related the events that had transpired, and requested Officer Smith to conduct a field sobriety test. Based on this discussion and his own observations of Pipkin, Smith administered several field sobriety exercises, all of which Pipkin failed. Smith then arrested Pipkin for careless driving and driving under the influence, and transported him to the Coral Gables police station. At the station, Pipkin was informed of Florida’s implied consent law, § 316.1932, Fla. Stat. (2004), but refused to take a breath-alcohol test. His license was suspended for one year pursuant to section 322.2615(b)l.a of the Florida Statutes. Pipkin sought formal administrative review of the suspension.

Officer Smith was the only officer to testify at the administrative review hearing. During his examination, Smith recounted Thomson’s statement to him at the scene that Thomson pulled Pipkin over because he crossed a yellow line and failed to maintain a single lane outside the Coral Gables City limits. Based upon Thomson’s account, “any alleged cause of the stop would all have occurred in the City of West Miami,” according to Smith. Officer Smith also testified regarding his observations of Pipkin at the scene, his removal of Pipkin from his vehicle, and the failed roadside sobriety exam. The hearing officer sustained Pipkin’s suspension of driving privileges. Pipkin appealed to the circuit court appellate division.

The appellate division reversed in favor of Pipkin. Relying on Schachter v. State, 338 So.2d 269 (Fla. 3d DCA 1976), it concluded that the conduct (which it termed a “routine traffic offense”) giving rise to the stop and subsequent arrest occurred outside Officer Thomson’s official jurisdiction and therefore was illegal.

“In reviewing a final order of the circuit court acting in its review capacity, the district court is limited to determining whether the circuit court afforded procedural due process and applied the correct law.” Conahan v. Department of Highway Safety & Motor Vehicles, 619 So.2d 988 (Fla. 5th DCA 1993). There is no allegation that Pipkin was denied procedural due process. We further conclude that the appellate division correctly applied Schachter and did not depart from the essential requirements of that law. See Broward County v. G.B.V. Intern., Ltd., 787 So.2d 838 (Fla.2001).

In Schachter, Schachter was arrested by Officer Magil, an off-duty City of North Miami Beach policeman, dressed in plain clothes and driving his own car, when he observed Schachter making a right turn on red without coming to a complete stop at the traffic light. This, with other violations committed during an ensuing chase, occurred within the City of North Miami city limits (as opposed to North Miami Beach). We concluded there that Officer Magil’s actions could “only be sustained as the actions of a private citizen who has the right to arrest a person who commits a felony in his presence.... ” Schachter, 338 So.2d at 270 (emphasis added). See also Phoenix v. State, 455 So.2d 1024, 1025 (Fla.1984)(a private citizen has the common law right to arrest a person who commits a felony in his presence). Because Schachter’s traffic infraction “in no way constituted a felony and the arrest by Magil was invalid as a private citizen”, we determined that “the trial court was without jurisdiction to try [him].” Schachter, 338 So.2d at 270. Similarly here, the undisputed, albeit hearsay, testimony of Officer Smith reflects that the entire conduct which supported the stop occurred outside the Coral Gables City limits and in no way constituted a felony.

Because the record is devoid of evidence of conduct within the City of Coral Gables on which the stop in this case can be justified, the stop was illegal. See State v. Sobrino, 587 So.2d 1347, 1348 (Fla. 3d DCA 1991)(“[A] police officer has no power to effect a ‘stop’ outside of his territorial jurisdiction unless there exists exigent circumstances, or the officer is on fresh pursuit.”). Since the stop was illegal, Pipkin's subsequent arrest was illegal. See Richardson v. State, 291 So.2d 253 (Fla. 1st DCA 1974)(where initial stop of the defendant’s vehicle was without probable cause or reasonable suspicion, subsequent arrest was invalid); Sobrino, 587 So.2d at 1347 (stating that under analysis of extrajuris-dictional arrest, private citizen must have probable cause and belief that person arrested is guilty of a felony). See also § 316.1932(l)(a), Fla. Stat.(2004)(“The chemical or physical breath test must be incidental to a lawful arrest....”).

For the foregoing reasons, we deny the petition.

SUAREZ, J., concurs.

SCHWARTZ, Senior Judge

(dissenting).

It is a basic principle of nature and of law that things continue as before unless something significant happens to change them. It seems to me that the majority opinion violates this basic rule. The idea that there was no reason to believe that Pipkin violated the law in Coral Gables can be based only upon the quite ridiculous assumption that his intoxication and the erratic driving it caused would cease immediately upon crossing the city limits. Its residents and all South Florida properly regard Coral Gables as The City Beautiful; I had not previously thought that it was also The City Sober. That this need not and should not be the law is shown by Department of Highway Safety & Motor Vehicles v. McClane, 891 So.2d 596 (Fla. 5th DCA 2004), which is conceptually contrary to the Court’s decision. That the officer was legally required to wait until Pipkin lost control of his vehicle in Coral Gables itself before stopping him is simply unacceptable. I would grant the petition.

      . The Department did not contest the hearsay nature of Officer Smith's testimony at the administrative review hearing and does not contest it here. Therefore, we do not now consider whether the trial court erred in admitting this testimony as the issue is not preserved for review. See Jalbert v. State, 95 So.2d 589 (Fla.1957)(any error in admitting allegedly hearsay testimony could not be considered on appeal where such error was not objected to during trial); Newman v. State, 676 So.2d 40 (Fla. 3d DCA 1996)(where the defendant did not object to hearsay testimony at time it was entered during trial, the defendant waived issue for appellate review).

      . Under Florida law, driving under the influence is not a felony. State v. Furr, 723 So.2d 842 (Fla. 1st DCA 1998). Even if we were to analyze this case applying a citizen’s arrest standard, Officer Thomson would not meet the test as enumerated in State v. Sobrino because he would have had no way to determine whether a felony had been committed at the point at which he stopped Pipkin.

      . Newton’s first law of motion is that "every object in a state of uniform motion tends to remain in that state of motion unless an external force is applied to it.” In re Mobro Marine, Inc., No. 3:02-CV-471-J-20-TEM, 2004 WL 3222743, at *24 n. 1 (M.D.Fla. Dec.20, 2004).

      . J.R. Brooks & Son, Inc. v. Quiroz, 707 So.2d 861, 862 (Fla. 3d DCA 1998)(citing 29 Am. Jur.2d Evidence § 291, at 305 (1994))("When the existence of a condition or state of facts is once established by proof, an inference or rebuttable presumption arises that the condition or state of facts continues to exist as before, until the contrary is shown.”).


source: Caselaw Access Project

author: CORTIÑAS, Judge. SUAREZ, J.

license: Public Domain

text:
    Herbert PAYNE, et al., Appellants, v. CITY OF MIAMI, etc., et al., Appellees.
    No. 3D05-708.
    District Court of Appeal of Florida, Third District.
    Nov. 16, 2005.
    Rehearing and Rehearing En Banc Denied May 10, 2006.

      Andrew W.J. Dickman, for appellants.
    Greenberg Traurig (Tallahassee) and David C. Ashburn; Greenberg Traurig (Miami) and Elliot H. Scherker, Paul R. Lipton, Edward G. Guedes, Lucia Dough-erty, and Pamela A. DeBooth; Rafael E. Suarez-Rivas, Assistant City Attorney, for appellees.
    Before RAMIREZ, SUAREZ, and CORTIÑAS, JJ.
   CORTIÑAS, Judge.

Balbino Investments, LLC (“Balbino”) owns property on the Miami River and seeks to develop Hurricane Cove, a mixed-use retail and residential condominium project. In order to develop Hurricane Cove, Balbino applied for and obtained from the City of Miami (“City”) a rezoning of its property and a major use special permit (“MUSP”).

The Miami River Marine Group, Inc. (“Marine Group”) is an advocacy organization that represents the interests of its members who ’own and operate marine industry businesses on the Miami River. Marine Group primarily focuses on studying and protecting the marine industry on the Miami River, and promotes land use and growth management policies to protect and enhance marine commerce on the Miami River. Marine Group alleges that the development of Hurricane Cove will increase residential housing on the Miami River, “an area that heretofore has been set aside, zoned, and used for only water-related and water-dependent marine industrial uses.” Marine Group also alleges that the increase in residential housing will make it more difficult for its members to operate industrial businesses on the Miami River because “1) it will deplete the limited availability of land dedicated for marine industrial use, and 2) it will cause further real estate speculation and drive up land costs for limited locations on the Miami River' resulting in greater likelihood that more industrial land on the river will be converted to residential/commercial use.”

Herbert Payne (“Payne”) is a member of Marine Group and a boat captain who owns and operates P & L Towing, Inc., one of the largest tugboat Companies on the Miami River. Payne claims that he relies exclusively on commercial marine business on the Miami River for his livelihood. Like Marine Group, Payne expresses concern about the increase in residential housing that will result from the development of Hurricane Cove. Payne alleges that this increase in residential housing will make it more difficult for him to operate his business because it “will further erode limited marine industrial zoned land on the Miami River reserved for water-dependent and water-related uses.”

Marine Group and Payne (collectively “Appellants”), along with two other plaintiffs, filed a complaint against Balbino and the City (collectively “Appellees”), seeking declaratory and injunctive relief. Appellants maintain that the rezoning and issuance of a MUSP are inconsistent with the City’s Comprehensive Neighborhood Plan (“Comprehensive Plan”). Appellees filed a motion to dismiss the complaint for lack of standing. The trial court granted the motion to dismiss as to appellants. However, the trial court denied the motion to dismiss as to the two other plaintiffs, finding that they had standing to proceed.

We review the trial court’s dismissal of the appellants’ complaint for lack of standing de novo. See Hospice of Palm Beach County, Inc. v. State, Agency for Health Care Admin., 876 So.2d 4, 7 (Fla. 1st DCA 2004); Fox v. Prof'l Wrecker Operators of Fla., Inc., 801 So.2d 175, 178 (Fla. 5th DCA 2001). In determining whether to dismiss a complaint for lack of standing, we must confine our review to the four corners of the complaint, draw all inferences in favor of the pleader, and accept all well-pled allegations in the complaint as true. See Fox, 801 So.2d at 178; see also Wexler v. Lepore, 878 So.2d 1276, 1280 (Fla. 4th DCA 2004); Hospice, 876 So.2d at 7; Putnam County Envtl. Council, Inc. v. Bd. Of County Comm’rs of Putnam County, 757 So.2d 590, 594 (Fla. 5th DCA 2000).

Section 163.3215, Florida Statutes (2004), sets forth the standing requirements for enforcing a local comprehensive plan, and provides, in relevant part:

Any aggrieved or adversely affected party may maintain a de novo action for declaratory, injunctive, or other relief against any local government to challenge any decision of such local government granting or denying an application for, or to prevent such local government from taking any action on, a development order, as defined in s. 163.3164, which materially alters the use or density or intensity of use on a particular piece of property which is not consistent with the comprehensive plan adopted under this part. The de novo action must be filed no later than 30 days following rendition of a development order or other written decision, or when all local administrative appeals, if any, are exhausted, whichever occurs later.

§ 163.3215(3), Fla. Stat. (2004). This statute defines an “aggrieved or adversely affected party” as:

[A]ny person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan, including interests related to health and safety, police and fire protection service systems, densities or intensities of development, transportation facilities, health care facilities, equipment or services, and environmental or natural resources. The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons. The term includes the owner, developer, or applicant for a development order.

§ 163.3215(2), Fla. Stat. (2004) (emphasis added).

Prior to the adoption of section 163.3215, common law rules for standing applied, requiring that the party possess a legally recognized right that would be adversely affected by a land use decision. Putnam County, 757 So.2d at 593 (citing Citizens Growth Mgmt. Coal. of West Palm Beach, Inc. v. City of West Palm Beach, 450 So.2d 204, 208 (Fla.1984)). ■ However, after section 163.3215 was adopted, the standing requirements for enforcing a comprehensive plan were liberalized. Putnam County, 757 So.2d at 593; Educ. Dev. Ctr., Inc. v. Palm Beach County, 751 So.2d 621, 623 (Fla. 4th DCA 1999); Southwest Ranches Homeowners Ass’n, Inc. v. County of Broward, 502 So.2d 931, 935 (Fla. 4th DCA 1987). As a remedial statute, section 163.3215 “allows an adversely affected third party to maintain an action to determine whether a development order is consistent with the [local] comprehensive plan.” Educ. Dev. Ctr., 751 So.2d at 622-623.

Within the Comprehensive Plan is a section entitled “Ports, Aviation and Related Facilities,” which includes a subsection entitled “Port of Miami River.” Appellants allege that the City’s decision to rezone Balbino’s property and to issue a MUSP is inconsistent with the goals, objective, and policies of the “Port of Miami River” subsection. This subsection provides, in relevant part:

Goal PA-3: The Port of Miami River, a group of privately owned and operated commercial shipping companies located at specific sites along the Miami River, shall be encouraged to continue operation as a valued and economically viable component of the city’s maritime industrial base.
Objective PA-3.1: The City of Miami, through its Land development regulations, shall help protect the Port of Miami River from encroachment by non water-dependent or water-related land uses, and shall regulate its expansion and redevelopment in coordination with the City’s applicable coastal management and conservation plans and policies.
Policy PA-3.1.1: The City shall use its land development regulations to encourage the establishment and maintenance of water-dependent and water-related uses along the banks of the Miami River, and to discourage encroachment by incompatible uses.
Policy PA-3.1.2: The City shall, through its land development regulations, encourage the development and expansion of the Port of Miami River consistent with the coastal management and conservation elements of the City’s Comprehensive Plan.
Policy PA-3.1.3: The City shall, through its land development regulations, encourage development of compatible land uses in the vicinity of the Port of Miami River so as to mitigate potential adverse impacts arising from the Port of Miami River upon adjacent natural resources and land uses.
Policy PA-3.3.1: The City of Miami, through its Intergovernmental Coordination Policies, shall support the functions of the Port of Miami River consistent with future goals and objectives of the Comprehensive Plan, particularly with respect to the unique characteristics of the Port of Miami River’s location and its economic position and functioning within the local maritime industry, • and the necessity for coordination of these characteristics and needs with maritime industry that complements, and often competes with, the Port of Miami River.

Appellees contend that appellants do not have standing because they fail to allege an interest protected by the “Port of Miami River” element of the Comprehensive Plan. Specifically, appellees rely on a footnote reference to the subsection titled “Port of Miami River.” The footnote states as follows:

The “Port of Miami River” is simply a legal name used to identify some 14 independent privately-owned small shipping companies located along the Miami River, and is not a “Port Facility” within the usual meaning of the term. The identification of these shipping concerns as the “Port of Miami River” was made in 1986 for the sole purpose of satisfying a U.S. Coast Guard regulation governing bilge pump outs.

Appellees argue on appeal that this footnote defines the term “Port of Miami River” and, thus, limits the subsection’s application to “some 14 independent privately-owned small shipping companies located along the Miami River.” In support of its position, appellees rely on a case which involved property on the Miami River, where the Department of Community Affairs held that the “Port of Miami River” element “applies only to shipping companies as defined in the Comprehensive Plan.” Ellen Monkus, James Veber and Gonzalo de Ramon v. City of Miami, DOAH Case No. 04-1080GM (Department of Community Affairs, Final Order, Oct. 28, 2004).

Appellants contend that the footnote merely explains that the Port of Miami River “is not a ‘Port Facility’ within the usual meaning of the term.” Appellants correctly point out that the very language of the “Port of Miami River” subsection is not limited to specific companies but to development regulations concerning the Miami River. For example, Policy PA-3.1.1 addresses the City’s use of development regulations “to encourage the establishment and maintenance of water-dependent and water-related uses along the banks of the Miami River, and to discourage encroachment by incompatible uses.” A plain reading of this policy suggests that the subsection was intended to apply to the “uses along the banks of the Miami River” and not to 14 specific companies.

Moreover, appellants contend that the footnote cannot be definitional as there is no record evidence of any list defining the 14 companies. As such, there is no record of the identity of the 14 shipping companies. We do not know who they are or where they are located. Even in Abbott and Costello’s “Who’s on First,” one could eventually determine that Who was on First. Here, after reading and re-reading the footnote along with the “Port of Miami River” element, we are left with the same unanswered question: Who are the 14 companies?

We find that the “Port of Miami River” subsection is not limited to 14 unidentified companies. Rather, the footnote explains that the “Port of'Miami River” is not a port in the traditional sense of the word. Accordingly, appellants did not have to allege that they were one of the 14 shipping companies referenced in the footnote.

Appellees also rely on Florida Rock Properties v. Keyset, 709 So.2d 175 (Fla. 5th DCA 1998), where the plaintiff lacked standing to challenge the county’s decision to rezone land from agricultural to mining use without requiring a 25 percent set-aside to preserve native vegetation, as required by the county’s comprehensive plan. The plaintiff alleged that (1) he owned land approximately ten miles away from the rezoned land, (2) he operated a law business in the county and occasionally represented conservationists, (3) he maintained a life-long interest in environmental protection, and (4) his quality of life would be affected by the county’s failure to leave a 25 percent set-aside to protect native vegetation. Id. at 176.

The court held that the plaintiff failed to demonstrate any specific injury to confer standing upon him because mere property and business ownership is insufficient to show that the plaintiff would suffer an adverse effect to an interest protected or furthered by the comprehensive plan. Id. at 177.

Unlike the situation in Florida Rock Properties, in the instant case, appellants’ allegations, taken as a whole, are sufficient to confer standing upon them to seek enforcement of the Comprehensive Plan. See, e.g., Putnam County, 757 So.2d at 593. Both appellants allege that they are aggrieved and adversely affected parties with legal standing to bring this action and that they will suffer adverse effects, exceeding the general interests shared by the community at large, as a result of the City’s approval of the Hurricane Cove development. They allege that their interests “are protected and furthered by the existing development standards and [Comprehensive [P]lan to protect available land along the Miami River for water-related and water-dependent marine industrial uses, and quality of life within the City of Miami.” They further allege that the development of Hurricane Cove introduces incompatible land uses within the vicinity of marine industrial uses, and allows for land uses that are inconsistent with, or do not further, the Comprehensive Plan.

Appellants also allege that they would suffer specific injuries as a result of the development of Hurricane Cove, such as the negative impact that the development would have on “neighborhood quality, character, safety, densities and intensities of development, buffering, and preserving the Miami River as a ‘working river.’ ” Marine Group specifically alleges that the increased residential housing would make it more difficult for its members to conduct business along the river because of (1) the depletion of available land sites for marine industrial uses on the Miami River, and (2) the likelihood that more industrial land on the Miami River will be converted to residential and commercial use. Payne specifically alleges that he will have more difficulty operating marine industrial business along the Miami River because the increase in residential housing is incompatible with marine industrial use and will further erode the limited areas zoned for marine industrial use.

Appellants have alleged an adverse interest that “exceed[s] in degree the general interest in community good shared by all persons.” See § 163.3215(2), Fla. Stat. (2004). Taking all of appellants’ allegations as true, as we must on a motion to dismiss for lack of standing, we find that they have sufficiently alleged facts to meet the liberalized standing requirements of section 163.3215. Accordingly, we reverse the trial court’s dismissal of appellants’ complaint and remand for further proceedings consistent with our holding.

Reversed and remanded.

RAMIREZ, J., concurs.

SUAREZ, J.

(dissenting).

I respectfully dissent. The allegations contained in the amended complaint determine the issue of standing. This Court must accept all the material allegations as true, and construe them in favor of the challenged party. Odham v. Foremost Dairies, Inc., 128 So.2d 586 (Fla.1961); Putnam Co. Envtl. Council, Inc. v. Bd. of County Comm’rs, 757 So.2d 590, 594 (Fla. 5th DCA 2000). Therefore, the only issue presently before this Court is whether the allegations contained in Herbert Payne’s (“Payne”) and the Miami River Marine Group’s (“Marine Group”) amended complaint, on their face, satisfy the requirements of § 163.3215, Fla. Stat. (2004). Only if these allegations satisfy the statutory requirements do Payne and the Marine Group have standing to challenge the City’s rezoning and issuance of a MUSP on the grounds that these acts are inconsistent with the Miami Comprehensive Neighborhood Plan (“Comprehensive Plan”). Payne and the Marine Group both claim standing under section 163.3215. However, the amended complaint fails to adequately allege, pursuant to the requirements of section 163.3215, that Payne and the Marine Group are “aggrieved” parties whose interests are specifically “protected or furthered” by the Comprehensive Plan, and that they will suffer a harm greater than the general public if Hurricane Cove’s construction proceeds. In my opinion, the trial judge was correct in dismissing Payne and the Marine Group from the suit for lack of standing.

To establish standing in an action not involving a constitutional question, a party must show that the interest it seeks to protect falls within a statutory guarantee. Peregood v. Cosmides, 663 So.2d 665, 668 (Fla. 5th DCA 1995) (citing Valley Forge Christian Coll. v. Ams. United for Separation of Church & State, Inc., 454 U.S. 464, 471, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982)). To have standing under section 163.3215 to challenge rezoning on the grounds that it is inconsistent with a comprehensive plan, a party must be one that is “aggrieved,” that is, one whose interest is specifically protected or furthered by the comprehensive plan in question. Furthermore, the alleged violation of the party’s interest must cause harm greater than that suffered by the community as a whole. Southwest Ranches Homeowners Ass’n, Inc. v. County of Broward, 502 So.2d 931, 935 (Fla. 4th DCA 1987).

Looking first at section 163.3215, it is important to note that, as the Majority states, the statute was designed to liberalize the standing requirement. Even though it has been liberalized, the statute still requires a party to allege certain facts in order for that party to have standing.

163.3215 Standing to enforce local comprehensive plans through development orders.—
(1) Subsections (3) and (4) provide the exclusive methods for an aggrieved or adversely affected party to appeal and challenge the consistency of a development order with a comprehensive plan adopted under this part....
(2) As used in this section, the term “aggrieved or adversely affected party ” means any person or local government that will suffer an adverse effect to an interest protected or furthered by the local government comprehensive plan.... The alleged adverse interest may be shared in common with other members of the community at large but must exceed in degree the general interest in community good shared by all persons....

§ 163.3215, Fla. Stat. (2005) (emphasis added).

Therefore, in this case, in order meet the statutory requirement of an “aggrieved or adversely affected party,” Payne and the Marine Group must allege that they are parties whose personal and professional interests are specifically “protected or furthered” by the Comprehensive Plan, and who stand to suffer greater harm than the community as a whole.

The meaning of the Comprehensive Plan must be gleaned from its plain language. If the intent of the drafters is clear from the language, it is the court’s duty to give effect to that intent. Englewood Water Dist. v. Tate, 334 So.2d 626 (Fla. 2d DCA 1976). Furthermore, when the language is clear and unambiguous, it must be given its plain and obvious meaning. Holly v. Auld, 450 So.2d 217, 219 (Fla.1984). The intent of the drafters of the “Port of Miami River” element of Miami’s Comprehensive Plan is clear. The drafters of the “Port of Miami River” element chose to narrowly define the entities whose interests the plan was designed to protect and further. The Comprehensive Plan was drafted to specifically protect and further only the interest of the “Port of Miami River,” which the plan defines as “fourteen privately owned and operated commercial shipping companies located at specific sites along the Miami River.” As such, the only meaning this Court can give the Comprehensive Plan’s Port of Miami River element is that it furthers and protects only the interest of those fourteen privately owned and operated companies which comprise the “Port of Miami River.”

PORT OF MIAMI RIVER
Goal PA-3: The Port of Miami River, a group of privately owned and operated commercial shipping companies located at specific sites along the Miami River, shall be encouraged to continue operation as a valued and economically viable component of the city’s maritime industrial base.
Objective PA-3.1: The City of Miami, through its Land development regulations, shall help protect the Port of Miami River from encroachment by non water-dependent or water-related land uses, and shall regulate its expansion and redevelopment in coordination with the City’s applicable coastal management and conservation plans and policies.
Policy PA-3.1.1: The City shall use its land development regulations to encourage the establishment and maintenance of water-dependent and water-related uses along the banks of the Miami River, and to discourage encroachment by incompatible uses.
Policy PA-3.1.2: The City shall, through its land development regulations, encourage the development and expansion of the Port of Miami River consistent with the coastal management and conservation elements of the City’s Comprehensive Plan.
Policy PA-3.1.3: The City shall, through its land development regulations, encourage development of compatible land uses in the vicinity of the Port of Miami River so as to mitigate potential adverse impacts arising from the Port of Miami River upon adjacent natural resources and land uses.
Objective PA-3.2: The City of Miami shall coordinate the surface transportation access to the Port of Miami River with the traffic and mass transit system shown on the traffic circulation map series.
Policy PA-3.2.1: The City of Miami shall, through the Transportation Element of the Comprehensive Plan, coordinate intermodal surface and water transportation access serving the Port of Miami River.
Objective PA-3.3: The City of Miami shall coordinate its Port of Miami River planning activities with those of ports facilities providers and regulators including the U.S. Corps of Engineers, U.S. Coast Guard, and Miami-Dade County’s Port of Miami.
Policy PA-3.3.1: The City of Miami, through its Intergovernmental Coordination Policies, shall support the functions of the Port of Miami River consistent with the future goals and objectives of the Comprehensive Plan, particularly with respect to the unique characteristics of the Port of Miami River’s location and its economic position and functioning within the local maritime industry, and the necessity. for coordination of these characteristics and needs with the maritime industry that complements, and often competes with, the Port of Miami River.

Therefore, pursuant to the plain unambiguous language of the Comprehensive Plan, only the fourteen entities that comprise the Port of Miami River can be “aggrieved” parties who will suffer an adverse effect to an interest protected or furthered by the Comprehensive Plan’s Port of Miami River element.

In order to sufficiently allege standing, then, Payne and the Marine Group must allege they are one of the fourteen privately owned companies that comprise the “Port of Miami River” as defined by the Comprehensive Plan. I agree with the Majority that we must confine our review to the four corners of the complaint. Within the four corners of the amended complaint, neither Payne nor the Marine Group makes any such allegation. Therefore, the amended complaint is facially insufficient under section 163.3215 and neither Payne nor' the Marine Group has standing to challenge the City’s rezoning as being inconsistent with the Comprehensive Plan.

The Majority additionally argues that, because the Comprehensive Plan does not list the fourteen privately owned companies which comprise the Port of Miami River, neither Payne nor the Marine Group has to allege that it is one of the fourteen entities in order to have standing. With all respect, that flies in the face of the requirements of section 163.3215 and the plain language of the Comprehensive Plan. Additionally, this analysis departs from the only issue before this court, that is, whether the amended complaint is facially sufficient, under section 163.3215. It could be argued that such analysis confers standing on any Miami-Dade citizen to challenge the City’s rezoning on the Miami River as inconsistent with the Port of Miami River element of the Comprehensive Plan. Such, obviously, was not the intent of the legislature in drafting section 163.3215 or of the drafters of the Comprehensive Plan.

The appellants, have also failed to sufficiently allege how they would suffer specific harm, different from the community in general, if the Hurricane Cove project is built. See, e.g., Southwest Ranches, 502 So.2d at 931 (holding that association of homeowners adjacent to proposed landfill stood to be directly affected by pollution, flooding, and contamination of water supply, and had standing to challenge the landfill under the county comprehensive plan). The appellants generally allege that Hurricane Cove and projects like it will decrease the amount of riverfront land available for marine industrial use, to the appellant’s ultimate economic detriment. This generalized and speculative harm is no different from or greater harm than any other Miami-Dade County citizen could claim. Compare Fla. Rock Props. v. Keyset, 709 So.2d 175, 177 (Fla. 5th DCA 1998) (owner of land and law office ten miles from the parcel that was rezoned from agricultural to mining lacked standing to appeal the zoning decision because he failed to allege that the rezoning would have a specific impact on him or his property); with Putnam County Envtl. Council, 757 So.2d at 590 (environmental non profit corporation that facilitated creation of a state forest standing to challenge construction of a middle school adjacent to the park where the corporation alleged specific injuries, not just to amorphous environmental concerns, including destruction of habitat of species being studied by its members and elimination of members’ access to the forest).

The appellants have failed to sufficiently allege that they have standing under the Comprehensive Plan’s Port of Miami River element. Therefore, the trial court did not err by dismissing the appellants from this suit.

      . The other two plaintiffs are adjacent landowners.

        . The other two plaintiffs were found to have standing because they are adjacent landowners.

      . Even if appellants made such an allegation, it is entirely unclear how this allegation 'could be proved or disproved.

      . In almost every case discussed in the briefs concerning standing to enforce a comprehensive plan, the comprehensive plan in question — unlike the Miami Comprehensive Plan — did not state specifically the entities or individuals whose interests were being protected and furthered.


author: KELLY, Judge.

text:
    Terrie TOWERS, Appellant, v. CLARENDON NATIONAL INSURANCE COMPANY, Appellee.
    No. 2D05-2620.
    District Court of Appeal of Florida, Second District.
    Jan. 4, 2006.
    Rehearing Denied Jan. 26, 2006.
    John V. Tucker of Law Offices of Anderson & Tucker, St. Petersburg, for Appellant.
    Daniel D. Whitaker and E. Ashley McRae of Carey, O’Malley, Whitaker & Manson, P.A., Tampa, for Appellee.
   KELLY, Judge.

Terrie Towers appeals the nonfinal order granting Clarendon National Insurance Company’s motion to compel arbitration. Because we conclude that the trial court erred in finding that Towers’ claim is subject to arbitration, we reverse.

Towers purchased a health insurance policy from Clarendon in October 2002. She subsequently made a claim under the policy which was denied by Clarendon on the basis that the condition which formed the basis of her claim was preexisting. Clarendon thereafter sent Towers a letter, accompanied by her premium check, informing her that no benefits would be paid because of her preexisting condition which voided her coverage under the policy. In response to her verbal appeal, Clarendon sent Towers two more letters explaining the reason for rescission of her coverage and stating that her coverage was “null and void.”

Towers then filed suit'against Clarendon and Nicholas Insurance Group. Count I of the complaint is against Clarendon for breach of contract, and counts II through IV are against Nicholas for fraud in the inducement, negligent misrepresentation, and violations of the Florida Deceptive and Unfair Trade Practices Act. Approximately one month later, Clarendon filed a motion to dismiss or alternatively to stay litigation and compel arbitration. The trial court denied Clarendon’s motion to dismiss but granted its motion to compel arbitration. This appeal ensued.

When ruling on a motion to compel arbitration, courts must consider three elements: whether a valid written agreement exists, whether an arbitrable issue exists, and whether the right to arbitration has been waived. Stacy David, Inc. v. Consuegra, 845 So.2d 803 (Fla. 2d DCA 2003) (citing Seifert v. U.S. Home Corp., 750 So.2d 633, 636 (Fla.1999)). Towers does not dispute that the parties entered into a valid contract/agreement, nor does she challenge the arbitration provision which applies to “[a]ny disputes which You may have under the Group Policy or otherwise with Us or Our aurthorized Administrator. ... The right of arbitration may be invoked by either You or Us or both.” However, she contends that Clarendon voided the contract by rescinding her coverage and returning her premium, leaving nothing to arbitrate. We agree.

Under Florida law, an insurer has the right to unilaterally rescind an insurance policy on the basis of misrepresentation in the application for insurance. Fabric v. Provident Life & Accident Ins. Co., 115 F.3d 908 (11th Cir.1997) (citing Pino v. Union Bankers Ins. Co., 627 So.2d 535 (Fla. 3d DCA 1993)). No consent by the opposing party is needed. Id. at 913. By returning Towers’ premium, Clarendon voided the contract between the parties rendering all of the contractual provisions, including the arbitration clause, unenforceable. The trial court therefore had no basis to order arbitration of this dispute. See Henderson v. Coral Springs Nissan, Inc., 757 So.2d 577 (Fla. 4th DCA 2000) (holding that an arbitration clause became unenforceable when an automobile dealership rescinded the contract containing the arbitration clause prior to the motion to compel arbitration). Accordingly, we reverse and remand for further proceedings.

Reversed and remanded.

SALCINES and LaROSE, JJ., Concur.


author: CANADY, Judge.

text:
    Jeffrey GALLAGHER, Appellant/Cross-Appellee, v. MANATEE COUNTY, Appellee/Cross-Appellant.
    No. 2D04-3724.
    District Court of Appeal of Florida, Second District.
    Feb. 1, 2006.
    Rehearing Denied April 4, 2006.

      Kendra D. Presswood of Presswood Law Firm, P.A., Holmes Beach, for Appellant/Cross-Appellee.
    Robert Michael Eschenfelder, Assistant County Attorney, Bradenton, for Appel-lee/Cross-Appellant.
    Frederick W. Ford, West Palm Beach, for Amicus Curiae National Employment Lawyers Association, Florida Chapter.
    Harry Morrison, Jr., Rebecca A. O’Hara, and Virginia Saunders Delegal, Tallahassee, for Amicus Curiae Florida League of Cities, Inc., and Florida Association of Counties, Inc.
   CANADY, Judge.

Jeffrey Gallagher brought an action under the Florida Civil Rights Act of 1992 (the Act) against his employer, Manatee County, for gender discrimination and retaliation. After a jury trial, a verdict was returned in favor of Gallagher, awarding him compensatory damages and back pay on both claims. Oh appeal, Gallagher challenges the trial court’s application of the $100,000 statutory cap on the County’s liability, as well as the calculation of fees and costs and the denial of certain equitable relief. In its cross-appeal, the County challenges the sufficiency of the evidence to support the verdict for Gallagher on the retaliation claim and on the award of back pay for both claims. We affirm on all issues raised by both parties and write only to discuss the issue raised by Gallagher with respect to application of the $100,000 cap on the County’s liability.

I. The Issue of the $100,000 Cap

The trial court determined that Gallagher’s attorneys’ fees, his costs and expenses, the compensatory damages award, and the back pay award were collectively subject to the limitation on “[t]he total amount of recovery” provided for in section 760.11(5), Florida Statutes (2002), which by reference adopts the $100,000 cap in section 768.28(5), Florida Statutes (2002).

Gallagher argues that the $100,000 cap applies only to compensatory damages and not to other monetary awards available under section 760.11(5). Gallagher contends the statutory provisions regarding the cap are ambiguous and should be interpreted liberally in favor of civil rights plaintiffs, as required by section 760.01(3). He also relies on legislative history in support of his argument that the $100,000 cap applies only to compensatory damages. Specifically, Gallagher cites a legislative staff analysis which states that the provision codified in section 768.28(5) “provides that ... any recovery for compensatory damages shall be limited by the provisions of sovereign immunity.”

In response, the County argues that a waiver of sovereign immunity must be strictly construed and that the unambiguous language of the statute is inconsistent with Gallagher’s claim regarding the $100,000 cap. The County also contends that consideration of legislative history is inappropriate where the language of the statute is clear.

II. The Statutory Framework

Section 760.11 sets forth the scheme of remedies available to persons who are aggrieved by a violation of the Act. Section 760.11(5) contains the following pertinent provisions concerning civil actions brought pursuant to the Act:

(5) In any civil action brought under this section, the court may issue an order prohibiting the discriminatory practice and providing affirmative relief from the effects of the practice, including back pay. The court may also award compensatory damages, including, but not limited to, damages for mental anguish, loss of dignity, and any other intangible injuries, and punitive damages .... The judgment for the total amount of punitive damages awarded under this section to an aggrieved person shall not exceed $100,000. In any action or proceeding under this subsection, the court, in its discretion, may allow the prevailing party a reasonable attorney’s fee as part of the costs. It is the intent of the Legislature that this provision for attorney’s fees be interpreted in a manner consistent with federal case law involving a Title VII action. ... Notwithstanding the above, the state and its agencies and subdivisions shall not be liable for punitive damages. The total amount of recovery against the state and its agencies and subdivisions shall not exceed the limitation as set forth in s. 768.28(5).

(Emphasis added). The reference to section 768.28(5) is to the statutory provision which establishes limitations on the waiver of sovereign immunity for tort liability:

(5) The state and its agencies and subdivisions shall be liable for tort claims in the same manner and to the same extent as a private individual under like circumstances, but liability shall not include punitive damages or interest for the period before judgment. Neither the state nor its agencies or subdivisions shall be liable to pay a claim or a judgment by any one person which exceeds the sum of $100,000 or any claim or judgment, or portions thereof, which, when totaled with all other claims or judgments paid by the state or its agencies or subdivisions arising out of the same incident or occurrence, exceeds the sum of $200,000. However, a judgment or judgments may be claimed and rendered in excess of these amounts and may be settled and paid pursuant to this act up to $100,000 or $200,000, as the case may be; and that portion of the judgment that exceeds these amounts may be reported to the Legislature, but may be paid in part or in whole only by further act of the Legislature.

(Emphasis added).

III. The Meaning of “The Total Amount of Recovery”

Nothing in the text of the pertinent statutory provisions or in their context provides any support for Gallagher’s argument. There is no basis for concluding, as Gallagher urges, that when the legislature referred in section 760.11(5) to “[t]he total amount of recovery” the legislature meant “only the compensatory damages awarded.” The plain meaning of “total amount of recovery” cannot be reconciled with Gallagher’s argument.

Recovery means “the obtaining of right to something by verdict or judgment of a court of law.” Random House Unabridged Dictionary 1613 (2d ed.1993); see also Black’s Law Dictionary 1302 (8th ed.2004) (defining recovery as “[a]n amount awarded in or collected from a judgment or decree”); cf. Webster’s Third New International Dictionary 1898 (1993) (defining recover as “[t]o gain by legal process”). Recovery and its cognate recover are broad and comprehensive terms. There is nothing in the meaning of recovery which suggests that some elements of an award are not part of the recovery which is subject to the cap on liability. The legislature employed a phrase — “the total amount of recovery” — that is crystal clear in its inclusiveness.

The receipt of an award of back pay is commonly understood to be a recovery. See, e.g., Pa. State Police v. Suders, 542 U.S. 129, 147 n. 8, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004) (stating that the plaintiff in a constructive discharge gender discrimination case “may recover postresignation damages, including both backpay and, in fitting circumstances, frontpay” (emphasis added)); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 119, 122 S.Ct. 2061, 153 L.Ed.2d 106 (2002) (discussing statutory provision allowing for “recovery of back-pay liability” in employment discrimination cases (emphasis added)).

Recover is commonly used with reference to the award of attorney’s fees and costs. See, e.g., Ardestani v. Immigration & Naturalization Serv., 502 U.S. 129, 132, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991) (“The [Equal Access to Justice Act] provides that prevailing parties ... may recover attorney’s fees and costs from the Government.” (emphasis added)); Atchison, T. & S.F.R. Co. v. Matthews, 174 U.S. 96, 108, 19 S.Ct. 609, 43 L.Ed. 909 (1899) (Harlan, J., dissenting) (discussing statute under which claimant was “entitled to recover the amount of such claims and all costs of suit[ ] and in addition thereto all reasonable attorney’s fees ” (emphasis added)).

The laws of Florida are replete with references by the Florida Legislature to the recovery of costs and attorney’s fees. See, e.g., § 70.001(6)(c)(l), Fla. Stat. (2002) (providing under Bert J. Harris, Jr., Private Property Rights Protection Act that “the property owner is entitled to recover reasonable costs and attorney fees incurred by the property owner” (emphasis added)); § 400.629(1), Fla. Stat. (2002) (providing that “[a]ny plaintiff who prevails in any ... action [under the Adult Family-Care Home Act] is entitled to recover reasonable attorney’s fees, costs of the action, and damages” except in specified circumstances (emphasis added)); § 718.1265(4)(h), Fla. Stat. (2002) (providing with respect to disputes arising under the Condominium Act that “[t]he parties may seek to recover any costs and attorneys’fees incurred in connection with arbitration and mediation proceedings under this section as part of the costs and fees that may be recovered by the prevailing party in any subsequent litigation” (emphasis added)); § 766.111(3), Fla. Stat. (2002) (“Any person who prevails in a suit brought against a health care provider predicated upon a violation of this section [prohibiting engaging in unnecessary diagnostic testing] shall recover reasonable attorney’s fees and costs.” (emphasis added)); § 768.79(1) (providing for circumstances under which party offering or demanding judgment is “entitled to recover reasonable costs and attorney’s fees ” (emphasis added)). The legislature’s recurrent use of recover demonstrates that the meaning of that term and the cognate term recovery cannot be limited in the way suggested by Gallagher.

Our understanding of the scope of the cap applicable under section 760.11(5) is consistent with the rule applied in interpreting the scope of the cap generally applicable to tort claims under section 768.28(5). Rejecting a claim that the statutory cap was not applicable to costs and postjudgment interest, the court in Berek v. Metropolitan Dade County, 396 So.2d 756, 759 (Fla. 3d DCA 1981), stated: “In a word, the Legislature has said $50,000 [the amount of the statutory liability cap then applicable], whatever the components may be, is the most the Legislature will permit a court to award a claimant.” (Footnote omitted.) (Emphasis supplied.) See also Pinellas County v. Bettis, 659 So.2d 1365, 1367 (Fla. 2d DCA 1995). Section 760.11(5) specifically incorporates “the limitation” on liability “as set forth in s. 768.28(5).” There is no basis for concluding that the well-established scope of the limitation of liability under section 768.28(5) — encompassing all components of a monetary judgment — should not also obtain under section 760.11(5).

The meaning of “[t]he total amount of recovery” in section 760.11(5) is plain. It refers to all of the elements of the monetary award to a plaintiff against a sover-eignly immune entity. This is the only plausible understanding of the statutory phrase. “[T]he statute is clear and unambiguous in its terms, and we are bound to enforce the plain meaning of the statute the legislature has created.” W.G. v. State, 910 So.2d 330, 332 (Fla. 4th DCA 2005).

Gallagher’s arguments based on the rule of liberal construction and legislative history run aground on the clarity of the statutory text.

When a statute is clear, courts will not look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent. Instead, the statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent.

State v. Burris, 875 So.2d 408, 410 (Fla.2004) (citations omitted).

The rule of liberal statutory construction in section 760.01(3) — like other rules of construction — comes into play only when there is some ambiguity in the statutory text. The rule cannot be used to defeat the plain meaning of the statute. Instead, it guides the interpreter in making an interpretative choice when the text may reasonably be understood in more than one way. That circumstance does not present itself here.

Similarly, “[ljegislative history is not needed to determine intent when the language is clear.” Mitchell v. State, 911 So.2d 1211, 1214 (Fla.2005). “Courts are not to change the plain meaning of a statute by turning to legislative history if the meaning of the statute can be discerned from the language in the statute.” State v. Sousa, 903 So.2d 923, 928 (Fla.2005). “[T]he legislative history of a statute is irrelevant where the wording of a statute is clear.” Id.

Finally, we note that the direction in section 760.11(5) that the “provision for attorney’s fees be interpreted in a manner consistent with federal case law involving a Title VII action” has no application to the issue of whether attorney’s fees are subject to the $100,000 cap on liability. Aside from a provision disallowing the award of punitive damages against the government, the federal law contains no specific limitation on recoveries against governmental entities. 42 U.S.C. § 1981a (2002). The federal case law thus can be of no help in interpreting the specific provision of section 760.11(5) limiting recoveries against sovereignly immune entities.

IV. Conclusion

We acknowledge that the denial of a full recovery of attorney’s fees, costs, back pay, and compensatory damages limits the effectiveness of the remedy provided to a prevailing plaintiff in a civil rights case against an entity enjoying the benefit of sovereign immunity. But that is a matter of policy which is within the province of the legislature. The statute at issue here unequivocally reflects that in weighing the relevant policy issues the legislature gave priority to the policy of placing strict limitations on the waiver of sovereign immunity. We are bound by the legislature’s decision on this issue of policy.

Affirmed.

FULMER, C.J., and WHATLEY, J., Concur.

      . The total amount of the award to Gallagher was $560,026.25, consisting of compensatory damages of $230,000, back pay of $20,000, attorneys' fees of $291,743.75,- and costs and expenses o'f $18,282.50.

      . Fla. H.R. Comm, on Jud., CS for SB 1368 and 72 (1992) Staff Analysis (final April 13, 1992) (on file with comm.).

      . Section 760.01(3) provides: “The Florida Civil Rights Act of 1992 shall be construed according to the fair import of its terms and shall be liberally construed to further the general purposes stated in this section and the special purposes of the particular provision involved." (Emphasis added.) Section 760.01(2) sets forth the general purpose of the Act “to secure for all individuals within the state freedom from [invidious] discrimination.” The statutory formulation itself recognizes that the construction of the statute must be “according to the fair import of its terms” and must take into account not only the general purpose of protecting against invidious discrimination but also the “special purposes” of the provision at issue. Here, of course, the special purpose of the provision at issue is to limit governmental liability.


author: CASANUEVA, Judge. ALTENBERND, Judge,

text:
    Michael J. KINNEY, M.D., Appellant, v. R.H. HALT ASSOCIATES, INC., d/b/a, Cadstruct & Tandem Associates, Ltd. II, a Florida Limited Partnership, and South Bay Framing Systems, Inc., Appellees.
    No. 2D05-1563.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 2006.
    Rehearing Denied May 17, 2006.
    Douglas R. Bald and David S. Maglich of Fergeson, Skipper, Shaw, Keyser, Baron & Triabassi, P.A., Sarasota, for Appellant.
    Bradley M. Bole of Rahdert, Steele, Bryan, Bole & Reynolds, P.A., St. Peters-burg, for Appellant R.H. Halt, Assoc., Inc.; Richard R. Garland and Gary H. Larsen of Dickinson & Gibbons, P.A., Sarasota, for Appellee Tandem Associates, Ltd. II.; and James L. Price of Price, Hamilton & Price HCTD, Bradenton, for Appellee South Bay Framing Systems, Inc.
   CASANUEVA, Judge.

Dr. Michael J. Kinney sued for personal injuries after he slipped and fell at a building being renovated by the appellee defendants. A discovery dispute arose regarding Dr. Kinney’s failure to provide the defendants with records related to his claim for lost income. Finding that Dr. Kinney willfully and deliberately failed to provide the requested records, the trial court entered sanction orders requiring Dr. Kinney to reimburse the defendants for their attorneys’ fees and costs spent litigating the issue. The orders warned Dr. Kinney that if he did not pay the defendants within ninety days, his action would be subject to dismissal upon the defendants’ further motion. Dr. Kinney did not pay; the defendants’ moved to dismiss; and the court entered a final judgment of dismissal with prejudice.

Dr. Kinney appealed the dismissal with prejudice to this court. In Kinney v. R.H. Halt & Assocs., Inc., 884 So.2d 400, 402 (Fla. 2d DCA 2004), we reversed and remanded for the trial court “to reconsider the motion to dismiss and, if appropriate, to make an explicit determination of whether Kinney willfully failed to comply with the April 2003 sanction orders.” After a hearing on remand, the trial court once again dismissed Dr. Kinney’s action with prejudice on the basis that his failure to comply with the sanction orders reflected “a continuing pattern of willful and deliberate non-compliance” with court orders. Because the court abused its discretion in dismissing the case with prejudice, we reverse.

Although Dr. Kinney has delayed the discovery process in this case, at the time the judgment was entered, he had produced the fifty-four boxes of documents that were the subject of the discovery dispute. Furthermore, this court’s record reflects that he also paid each defendant for its attorneys’ fees and costs, with interest, for the litigation of that dispute. Thus, prior to the dismissal with prejudice, Dr. Kinney had performed as ordered, albeit tardily.

Article I, section 21, of the Florida Constitution provides the citizens of this state with the right of access to the courts: “The courts shall be open to every person for redress of any injury....” A dismissal with prejudice for failure to comply with court orders consequently infringes upon this basic right in all but the most extreme and egregious circumstances. See Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271, 1272 (Fla.1990); Matthews v. Chaffee, 849 So.2d 483, 484-85 (Fla. 2d DCA 2003). For this reason, explicit findings of willful or flagrant disregard are absolutely essential. Matthews, 849 So.2d at 485. Here, the trial court found that Dr. Kinney had willfully disregarded orders, but those findings were not supported by specific facts as they existed at the time the dismissal was entered. In fact, the order of dismissal does not recite with particularity the conduct upon which the court relied in making its finding of willfulness. Although the plaintiffs tardy compliance might have been willful, the record does not explore the extent to which Dr. Kinney had the ability to pay the sanctions before he did so. The fact remains that, ultimately, the plaintiff did comply.

Furthermore, “[t]his court has refused to approve of the dismissal of a cause of action as a sanction for discovery violations when the appellee had not shown prejudice.” Owens v. Howard, 662 So.2d 1325, 1327 (Fla. 2d DCA 1995). Here, the record is devoid of any evidence of prejudice to the defendants, particularly given the fact that the documents had been produced and attorneys’ fees paid at the time of the dismissal.

For these reasons, we hold that the trial court abused its discretion in dismissing Dr. Kinney’s lawsuit with prejudice, and we reverse and remand for further proceedings.

SALCINES, J., Concurs.

ALTENBERND, J., Concurs with opinion.

ALTENBERND, Judge,

Concurring.

I fully concur in this opinion. T write only to make two observations. First, the trial court appears to have misunderstood our intent when we remanded this case at the end of the previous appeal. We expected that it would hold an evidentiary hearing to determine whether willful noncompliance had occurred. The trial court held a nonevidentiary hearing and added language to its order that did not have a factual basis in the record. Dr. Kinney apparently moved from Sarasota to another country during this lawsuit. By the time of the hearing on remand, he had complied with the discovery and made the payments. Thus, from this court’s perspective it is not clear that Dr. Kinney’s noncompliance was willful.

Second, part of the difficulty in this case arises from the severity of the sanction. The disputed discovery all concerned Dr. Kinney’s earnings and earning capacity. If the trial court had not dismissed the entire lawsuit but had stricken the .claim for lost earnings, it is likely that our review would have been more deferential.


author: PER CURIAM.

text:
    Reginald C. HAWKINS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D05-5648.
    District Court of Appeal of Florida, First District.
    Feb. 20, 2006.
    Rehearing Denied March 31, 2006.
    Reginald C. Hawkins, pro se, petitioner.
    Charlie Crist, Attorney General, Tallahassee, for respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

BARFIELD, WOLF and BROWNING, JJ., concur.