author: WALLACE, Judge.

text:
    CITY OF TAMPA, individually, and as representative of all other Florida municipalities similarly situated, Appellant, v. Michael C. ADDISON and Richard T. Petitt, for themselves and all others similarly situated, Appellees.
    No. 2D06-3168.
    District Court of Appeal of Florida, Second District.
    Aug. 8, 2007.

      David L. Smith, City Attorney, and Jerry M. Gewirtz, Chief Assistant City Attorney, Tampa, for Appellant.
    F. Wallace Pope, Jr., of Johnson, Pope, Bokor, Ruppel <⅞ Burns, LLP, Clearwater; Stephen A. Scott of Stephen A. Scott, P.A., Gainesville; Herbert T. Schwartz of Bailey & Galyen, Houston, TX; Joseph C. Moffa of Moffa & Gainor, P.A., Fort Lauderdale; and Brett Alan Panter and David Sampe-dro of Panter, Panter & Sampedro, P.A., Miami, for Appellees.
    Alyssa A. Ruge, Assistant County Attorney, New Port Richey, for Amicus Curiae Pasco County.
    Monterey Campbell, Hank B. Campbell, and Kristie Hatcher-Bolin of Gray Robinson, P.A., Lakeland, for Amici Curiae The Florida League of Cities, Inc.; City of Coral Gables, Florida; City of Gainesville, Florida; Leon County, Florida; and the Florida Association of Counties.
   WALLACE, Judge.

The City of Tampa (the City) appeals a nonfinal order certifying a bilateral class action. The circuit court entered the order in an action filed by Michael C. Addison and Richard T. Petitt (the Appellees). The Appellees are members of The Florida Bar. Each Appellee maintains an office for the practice of law within the jurisdiction of the City. In their action, the Appellees challenged the constitutionality of the City’s occupational license tax as applied to attorneys practicing law in Tampa.

Once the action was at issue, the Appel-lees filed a motion seeking the certification of two classes: (1) a plaintiff class consisting of all lawyers subject to local occupational license taxes in all municipalities and counties within the State of Florida and (2) a defendant class consisting of all municipalities and counties within the State of Florida that levy such occupational license taxes on lawyers. After an evidentiary hearing on the motion, the circuit court certified the plaintiff class under Florida Rule of Civil Procedure 1.220(b)(2) and (b)(3), and it certified the defendant class under rule 1.220(b)(1)(A).

On appeal, the City challenges the certification of both the plaintiff class and the defendant class on multiple grounds. All of the issues raised by the City are without merit, and we affirm the order of class certification. However, we write to address several of the City’s arguments.

I. THE FACTS AND PROCEDURAL BACKGROUND

The City imposes on any person who maintains a permanent location or branch office within its borders an occupational license tax for the privilege of engaging in business. See Tampa, Fla., Code of Ordinances, ch. 24, art. V (Occupational License Tax), § 24-101, et seq. The tax applies to attorneys at law, and the current amount of the tax assessed annually against each attorney is $289.40. § 24-120(0222)(d). The City enacted and enforces its ordinance under the enabling authority of chapter 205, Florida Statutes.

In addition to the City, more than 200 municipalities and thirty-five counties throughout the State of Florida currently have ordinances that impose occupational license taxes on attorneys. All of these ordinances have been enacted under the authority of chapter 205. However, the ordinances differ substantially in the amount of the tax, the method by which the amount of the tax is determined, and the options available to the taxing authority for enforcement if the tax is not paid. Moreover, some of the ordinances contain provisions that apply specifically to attorneys, while others apply generally to “professionals” or to all businesses. Although a detailed review of the provisions of these various ordinances is obviously beyond the scope of this opinion, it is interesting to note that the City’s tax on attorneys is the highest in the state. At the other end of the scale, the lowest occupational license tax imposed on attorneys in the state is a mere $35.

As members of The Florida Bar with offices for the practice of law within the City of Tampa, the Appellees are subject to the payment of the City’s occupational license tax. On June 10, 2003, the Appel-lees filed a class action complaint against the City. The gist of the Appellees’ complaint is as follows: The determination of the conditions under which a person may practice law and the regulation of lawyers who engage in the practice of law within the State of Florida are vested exclusively in the Supreme Court of Florida under article V, section 15, of the Florida Constitution of 1968, as amended. Accordingly, the City’s ordinance operates as an unconstitutional precondition to or regulation of the practice of law in violation of article V, section 15. In the alternative, the Appel-lees claimed that chapter 205 does not authorize municipalities and counties to levy an occupational license tax on persons engaged in the practice of law within their respective jurisdictions. The Florida Constitution preempts all taxes to the state except ad valorem taxes unless authorized by general law. See art. VII, § 9(a), Fla. Const, of 1968. As an unauthorized local tax, the City’s ordinance is thus unconstitutional as applied to attorneys.

The Appellees’ complaint alleged claims for declaratory and injunctive relief, money had and received, and unjust enrichment. In addition to seeking class certification, the Appellees requested (1) a declaration that the City’s tax and similar taxes imposed by the defendant class members are an unconstitutional regulation of the practice of law, (2) judgment in favor of the Appellees and the plaintiff class members for a refund of all taxes paid under such ordinances for the four years preceding the filing of the complaint, (3) an injunction against the City and the defendant class members prohibiting the enforcement of the City’s ordinance and similar ordinances against attorneys, and (4) an award of attorney’s fees and costs. The City moved to dismiss the complaint, but the circuit court denied the motion. The City then filed an answer that denied many of the corn-plaint’s material allegations and that raised a number of affirmative defenses.

II. THE CLASS CERTIFICATION ORDER

In August 2005, the Appellees filed their motion for class certification with a supporting memorandum. Approximately six months later, the circuit court conducted an evidentiary hearing on the motion. Pri- or to the hearing, the City filed a forty-five-page memorandum of law in opposition to the motion. The City’s memorandum outlined its opposition to the motion in considerable detail. In pertinent part, the City asserted that it lacked the ability to adequately protect the interests of each member of the proposed defendant class.

At the beginning of the hearing on the motion for class certification, the circuit court heard a motion in limine filed by the Appellees. In their motion, the Appellees requested an order prohibiting the City from introducing into evidence or commenting on the amount of income earned by each Appellee from the practice of law. The Appellees contended that the amount of income they earned from their respective law practices was irrelevant to any issue relating to certification of either of the proposed classes. In response, the City argued that evidence about the Appel-lees’ incomes was relevant to prove that the amount of the City’s occupational license tax was a very small percentage of the substantial incomes that the Appellees earned from their successful legal practices. Furthermore, the City claimed that this information was “germane to a lack of support for this lawsuit by the members of the Plaintiff class and militate[d] against a finding of ‘commonality,’ ‘typicality,’ and ‘representation of the interests of each member of the Plaintiff class,’ all of which are relevant to determining whether to certify a class.” The circuit court granted the motion in limine and prohibited the City from introducing into evidence or commenting on the amount of the Appel-lees’ incomes from their respective law practices.

After the conclusion of the evidentiary hearing, the circuit court entered the class certification order under review. In the order, the circuit court certified a plaintiff class defined as:

All persons who, on or after June 10, 1999, were duly admitted to practice law in the State of Florida by the Florida Supreme Court, and who maintained or maintain a permanent business location or branch office for the practice of law at a location subject to the jurisdiction of either the City of Tampa or of any other municipality that is a member of the defendant class certified in this action, or who practiced or practices law in any Florida county that is a member of the defendant class certified in this action, and who either paid or had paid on his or her behalf an occupational license tax or fee to any such municipality or county.

The circuit court also certified a defendant class defined as:

All incorporated Florida municipalities and all Florida counties that, at any time on or after June 10, 1999, had or now have, and enforced or now enforce, any ordinance under which it imposed or imposes a municipal or county occupational license tax or fee authorized by Chapter 205, Florida Statues [sic], on any attorney who maintained or maintains a permanent business location or branch office for the practice of law at a location subject to the municipality’s jurisdiction (as to municipalities) or engaged or engages in the practice of law at a location subject to the county’s jurisdiction (as to counties).

The circuit court certified the plaintiff class under rule 1.220(b)(3) with regard to the refund claims and under rule 1.220(b)(2) with regard to the claims for declaratory and injunctive relief. The defendant class was certified under rule 1.220(b)(1)(A). In its order, the circuit court estimated the number of the members of the plaintiff class as “more than fifty thousand members of The Florida Bar located throughout the state of Florida.” The circuit court estimated that the defendant class “consists of at least 200 Florida cities and approximately 35 Florida counties.”

In the certification order, the circuit court also addressed the issue of the appointment of counsel for the classes. The circuit court appointed six attorneys from five different law firms as class counsel for the plaintiff class. For the defendant class, the circuit court appointed a single attorney, Mr. Jerry M. Gewirtz, as class counsel. Mr. Gewirtz is the Chief Assistant City Attorney in the City Attorney’s office. The certification order also provided that class counsel were to submit proposed class notices within thirty days.

III. THE REQUIREMENTS FOR CLASS CERTIFICATION

Before a class action can be certified, the trial court must conduct a rigorous analysis to determine that the elements of rule 1.220, the class action rule, have been met. See Ortiz v. Ford Motor Co., 909 So.2d 479, 480 (Fla. 3d DCA 2005). First, the trial court must conclude that the moving party has established the prerequisites to class representation described in rule ' 1.220(a). Under rule 1.220(a), the threshold requirements for class action representation are (1) that the members of the class are so numerous that separate joinder of each member is impracticable, (2) that the claim raises questions of law or fact common to each member of the class, (3) that the claim of the representative party is typical of the claim of each member of the class, and (4) that the representative party can fairly and adequately protect and represent the interests of other members of the class. Id. “These requirements are commonly referred to as the numerosity, commonality, typicality, and adequacy of representation elements of class certification.” Marco Island Civic Ass’n v. Mazzini, 805 So.2d 928, 930 (Fla. 2d DCA 2001).

In addition to satisfying rule 1.220(a), the proponent of class certification must also satisfy one of the three subdivisions of rule 1.220(b). The subdivisions relevant to this case are contained in subsections (b)(1)(A), (b)(2), and (b)(3). Rule 1.220(b)(1)(A) requires that the prosecution of separate claims or defenses would create a risk of inconsistent or varying adjudications concerning individual members of the class that would establish incompatible standards of conduct for the party opposing the class. Rule 1.220(b)(2) requires that the party opposing the class has acted or refused to act on grounds applicable to all class members, thereby making final injunctive or declaratory relief appropriate. Finally, rule 1.220(b)(3) requires that common questions of law or fact predominate over any individual questions of the separate members and that the class action must be superior to other available methods for a fair and efficient adjudication of the controversy. The rule 1.220(b)(3) requirement parallels the commonality requirement under rule 1.220(a) because both require that common questions exist, but the predominance requirement in subsection (b)(3) “is more stringent since common questions must pervade.” Wyeth, Inc. v. Gottlieb, 930 So.2d 635, 639 (Fla. 3d DCA 2006).

The party moving to certify the class has the burden of proving the propriety of class action status. See Marco Island, 805 So.2d at 930. There must be an evidentiary basis to support an order certifying a class when the. nonmoving party contests class certification and it is not clear from the pleadings that a lawsuit qualifies for class action status. See Fla. Health Scis. Ctr., Inc. v. Elsenheimer, 952 So.2d 575, 581 (Fla. 2d DCA 2007); Ernie Haire Ford, Inc. v. Gilley, 903 So.2d 956, 959 (Fla. 2d DCA 2005). Although a trial court will generally be required to conduct an evidentiary hearing to determine whether to certify a class, the trial court’s proper focus is on whether the requirements of rule 1.220 have been met and not on whether the moving party will prevail on the merits. See Samples v. Hernando Taxpayers Ass’n, 682 So.2d 184, 185 (Fla. 5th DCA 1996) (citing Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 94 S.Ct. 2140, 40 L.Ed.2d 732 (1974)).

A “determination that a case meets the requirements of a class action is ... within the trial court’s discretion and will be reversed on appeal only if an abuse of discretion is shown.” Bouchard Transp. Co. v. Updegraff, 807 So.2d 768, 771 (Fla. 2d DCA 2002) (citing Marco Island, 805 So.2d 928).

IV. DISCUSSION

On appeal, the City raises multiple issues concerning the certification of both the plaintiff class and the defendant class. We discuss four of the City’s main arguments.

A. The Motion in Limine

The City argues that the circuit court erred in granting the motion in li-mine and in refusing to permit the City to introduce into evidence information concerning the amounts of income that each Appellee earned from the practice of law. We agree with the Appellees that the circuit court properly excluded this evidence because it was not relevant to any issue at the hearing on class certification.

B. The Impact of the Sandstrom Cases

The City also contends that the circuit court abused its discretion in certifying the classes because the controlling case law supports the constitutionality of the imposition of occupational license taxes on members of The Florida Bar. See Sand- strom v. City of Fort Lauderdale, 133 So.2d 755 (Fla. 2d DCA 1961) (Sandstrom I); Sandstrom v. City of Fort Lauderdale, 250 So.2d 341 (Fla. 4th DCA 1971) (Sandstrom II). In response, the Appellees argue that the facts of Sandstrom I and Sandstrom II are distinguishable from the facts of this case. The Appellees suggest that the authority of these cases is nothing more than an “illusion.” Although these arguments are interesting, we decline to address them. The issue before us is whether the circuit court abused its discretion in certifying the classes under rule 1.220, not whether the Appellees have stated a cause of action or will prevail on the merits of their action. See Samples, 682 So.2d at 185.

C. The Issue of the Appellees’ Standing

The City claims that the Appel-lees lack standing to represent attorneys practicing in each of the municipalities and counties throughout the State of Florida that impose an occupational license tax on attorneys. It is undisputed that the Ap-pellees’ individual claims are against only the City; the Appellees do not have claims against any other members of the proposed defendant class. Generally speaking, issues relating to standing and adequacy of representation arise where, as in this case, the plaintiffs seek to certify a bilateral class action, but the defendant class includes parties against whom the nominal plaintiffs have no claim. See Haas v. Pittsburgh Nat’l Bank, 526 F.2d 1083, 1095-96 (3d Cir.1975); La Mar v. H & B Novelty & Loan Co., 489 F.2d 461, 462 (9th Cir.1973); Clark v. McDonald’s Corp., 213 F.R.D. 198, 221-27 (D.N.J.2003); Thillens, Inc. v. Cmty. Currency Exch. Ass’n of Ill., 97 F.R.D. 668, 673-76 (N.D.Ill.1983); In re Gap Stores Sec. Litig., 79 F.R.D. 283, 293-95 (N.D.Cal.1978). However, in this case, we agree with the Appellees’ argument that the enactment of the various occupational license tax ordinances under the authority of the same enabling legislation by all of the members of the proposed defendant class provides the requisite “juridical link” that authorizes the certification of the proposed defendant class. See La Mar, 489 F.2d at 466; DeAllaume v. Perales, 110 F.R.D. 299, 303-04 (S.D.N.Y.1986); Thillens, 97 F.R.D. at 675-76; Doss v. Long, 93 F.R.D. 112, 119-20 (N.D.Ga.1981); Mudd v. Busse, 68 F.R.D. 522, 527-28 (N.D.Ind.1975), aff'd, 582 F.2d 1283 (7th Cir.1978) (table decision). See generally William D. Henderson, Reconciling the Juridical Links Doctrine with the Federal Rules of Civil Procedure and Article III, 67 U. Chi. L.Rev. 1347, 1354-59 (2000) (discussing the origin and application of the juridical links exception).

D. The Proof of the City’s Adequacy as a Representative for the Defendant Class

Finally, the City argues that the circuit court abused its discretion in certifying the defendant class because the Appellees failed to carry their burden of proving that the City was an adequate representative for that class. The adequacy of the class representative to represent the interests of the class is one of the four prerequisites to class certification described in rule 1.220(a). In the context of class actions, due process requires that the class representative adequately represent the interests of the other class members. See Hansberry v. Lee, 311 U.S. 32, 42-43, 61 S.Ct. 115, 85 L.Ed. 22 (1940); Smith v. Swormstedt, 57 U.S. (16 How.) 288, 303, 14 L.Ed. 942 (1853); Marco Island, 805 So.2d at 931. The inquiry into the adequacy-of-representation requirement is twofold: (1) whether class counsel are qualified, experienced, and generally able to conduct the proposed litigation and (2) whether the class representatives have interests antagonistic to those of the rest of the class. See Griffin v. Carlin, 755 F.2d 1516, 1533 (11th Cir.1985); Fuller v. Becker & Poliakoff, P.A., 197 F.R.D. 697, 700 (M.D.Fla.2000); Turner Greenberg Assocs., Inc. v. Pathman, 885 So.2d 1004, 1008 (Fla. 4th DCA 2004). The inquiry into adequacy “serves to uncover conflicts of interest between named parties and the class they seek to represent.” Amchem Prods., Inc. v. Windsor, 521 U.S. 591, 625, 117 S.Ct. 2231, 138 L.Ed.2d 689 (1997) (citing Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 157-58 n. 13, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982)). “[A] class representative must be part of the class and ‘possess the same interest and suffer the same injury’ as the class members.” Id. at 625-26, 117 S.Ct. 2231 (alteration in original) (quoting E. Tex. Motor Freight Sys., Inc. v. Rodriguez, 431 U.S. 395, 403, 97 S.Ct. 1891, 52 L.Ed.2d 453 (1977)).

A motion to certify a defendant class raises heightened concerns relating to due process and the adequacy-of-representation requirement. One court explained some of these concerns by highlighting the differences between a defendant class and a plaintiff class:

[A] defendant class differs in vital respects from a plaintiff class, and ... the very notion of a defendant class raises immediate due process concerns. When one is an unnamed member of a plaintiff class one generally stands to gain from the litigation. The most one can lose in cases where res judicata operates is the right to later bring the same cause of action. However, when one is an unnamed member of a defendant class, one may be required to pay a judgment without having had the opportunity to personally defend the suit. Although we believe that the Rule 23 requirements of adequacy of representation and notice to class members were designed to safeguard due process rights, we note the inherent difference in the nature of plaintiffs and defendants in most suits and suggest that a defendant class should be certified and such an action tried only after careful attention to these safeguards.

Marchwinski v. Oliver Tyrone Corp., 81 F.R.D. 487, 489 (W.D.Pa.1979).

Particular reasons for heightened concerns about adequacy of representation when the certification of a defendant class is sought stem from a feature unique to the defendant class — it is the plaintiff who selects the class representative for the defendants. As Professor Chafee noted, “[i]t is a strange situation where one side picks out the generals for the enemy’s army.” Zechariah Chafee, Jr., Some Problems of Equity 237 (1950). This anomalous circumstance naturally raises questions about the issue of adequate representation for the defendant class. Potential problem areas include (1) the selection of an unwilling class representative for the defendant class, (2) the selection of a class representative with an insufficient stake in the matter to warrant mounting a vigorous defense, and (3) the selection of a class representative with insufficient ability or financial resources to defend the action. See In re Gap Stores, 79 F.R.D. at 290; Note, Defendant Class Actions, 91 Harv.L.Rev. 630, 639-42 (1978). Added to these problems is the potential unfairness of requiring a reluctant defendant class representative to incur the additional legal fees and costs associated with defending a class action. See Debra J. Gross, Comment, Mandatory Notice and Defendant Class Actions: Resolving the Paradox of Identity between Plaintiffs and Defendants, 40 Emory L.J. 611, 622 (1991); Scott Douglas Miller, Note, Certification of Defendant Classes Under Rule 23(b)(2), 84 Colum. L.Rev. 1371, 1384-89 (1984).

The adequacy of a proposed class representative and class counsel is not to be presumed in the absence of specific proof to the contrary. See Berger v. Compaq Computer Corp., 257 F.3d 475, 481-82 (5th Cir.2001). The proponent of class certification bears the burden of establishing that the adequacy-of-representation prerequisite — as well as all other requirements necessary to certify the proposed class — has been met. See id.; ExecuTech Bus. Sys., Inc. v. Appleton Papers, Inc., 743 So.2d 19, 21 (Fla. 4th DCA 1999). See generally 5 James W. Moore et al., Moore’s Federal Practice § 23.25[8] (3d ed. 1997) (reporting a split of authority among the federal courts concerning which party has the burden of proof on the issue of adequacy of representation but stating that most courts have held that the proponent of class certification bears the burden of proving adequacy as well as the other requirements for class certification). It follows that the plaintiff has the burden of proof on the issue of the adequacy of representation of a defendant class representative. See Luyando v. Bowen, 124 F.R.D. 52, 57-58 (S.D.N.Y.1989); Stewart v. Winter, 87 F.R.D. 760, 768-70 (N.D.Miss.1980); Tucker v. City of Montgomery Bd. of Comm’rs, 410 F.Supp. 494, 499 (M.D.Ala.1976).

The inquiry into the adequacy-of-representation requirement has two prongs. The first prong focuses on the qualifications, experience, and ability of class counsel to conduct the litigation. The second prong addresses the issue of whether the class representatives have interests antagonistic to those of the rest of the class. It did not appear at the hearing — and the City did not contend — that the City had any interests that were antagonistic to the interests of the other members of the proposed defendant class. Thus the second prong of the adequacy requirement was satisfied. But the City did contend that its legal department lacked the necessary resources to defend the attack on the constitutionality of the occupational license tax as applied to attorneys on behalf of the more than 200 members of the proposed defendant class. Accordingly, the question of the qualifications, ability, and resources of the City Attorney’s office to represent the proposed defendant class was an issue to be determined at the hearing on the Appellees’ motion for class certification.

At the evidentiary hearing, Mr. Gewirtz conceded that the City Attorney’s office employed between seventeen and twenty attorneys. However, he represented to the circuit court that only he and one other attorney were assigned to handle litigation full-time. Mr. Gewirtz argued that it would be “doing a great injustice to the City of Tampa” to force it to hire “at tremendous cost ... a dream team of lawyers to compete with” counsel for the plaintiff class. However, after a review of the entire record, we conclude that the deposition testimony of Mr. Addison — one of the Appellees — included competent substantial evidence from which the trial court could find that the City was an adequate representative for the defendant class. See Litvak v. Scylla Props., LLC, 946 So.2d 1165, 1171 n. 8 (Fla. 1st DCA 2006) (describing trial court ruling that requirement of fair and adequate representation was met based in part on finding that class counsel were experienced and included an attorney who had previously handled similar litigation); City of Pompano Beach v. Fla. Dep’t of Agric., 2002 WL 1558217 *4 (Fla. 17th Cir.Ct. Jan. 24, 2002) (recognizing class counsel’s qualifications in the areas of complex litigation and class action litigation based on law firm biographies). See generally Ervin A. Gonzalez & Raymond W. Valori, Considerations in Class Certification, 72 Fla. B.J. 78, 80 (Mar. 1998) (describing the qualifications of class counsel necessary to ensure adequate representation); Linda S. Mullenix, Taking Adequacy Seriously: The Inadequate Assessment of Adequacy in Litigation and Settlement Classes, 57 Vand. L.Rev. 1687, 1739-43 (2004) (discussing the implementation of standards for assessing the adequacy of class representation).

Y. Conclusion

For these reasons, the City has not demonstrated that the circuit court abused its discretion in certifying either the plaintiff class or the defendant class. Accordingly, we affirm the order of class certification.

Affirmed.

NORTHCUTT, C.J., and KELLY, J., Concur.

      . We have jurisdiction in accordance with Florida Rule of Appellate Procedure 9.130(a)(3)(C)(vi).

      . These and other facts about the differences in the various ordinances enacted by the members of the proposed defendant class members were reported to us in one of the amicus briefs filed in this case.

      . This quotation from the City's initial brief best summarizes the argument that it made on this point in the circuit court.

      . The City has not argued that this matter does not meet the requirements for the certification of a defendant class under rule 1.220(b)(1)(A).

      . In its notice of appeal of the class certification order, the City also attempted to appeal the order granting the Appellees’ motion in limine. This court has dismissed the City's appeal of the order granting the motion in limine as an appeal from a nonfinal, nonap-pealable order. The trial court's ruling on the motion in limine does not "tag along” with the order of class certification simply because both motions were decided at the same hearing. Cf. RD & G Leasing, Inc. v. Stebnicki, 626 So.2d 1002, 1003 (Fla. 3d DCA 1993) (holding that an order denying a motion to dismiss, which was not an appealable, nonfi-nal order, did not become appealable based on the fortuity that the written order denying the motion to dismiss also contained a ruling on another motion which was an appealable, nonfinal order). However, the circuit court’s order granting the motion in limine was a ruling on an evidentiary issue that arose during the hearing on the motion for class certification. Therefore, we may consider the order granting the motion in limine as an issue that was subsumed within the order granting class certification.

      . Mr. Addison’s deposition was admitted into evidence at the hearing on the motion for class certification.


source: Caselaw Access Project

author: PER CURIAM. CANADY, Judge,

license: Public Domain

text:
    Roger CLEMENTS, Appellant, v. STATE of Florida, Appellee.
    No. 2D99-4739.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2007.

      James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Susan D. Dunlevy, Assistant Attorney General, Tampa, for Appellee.

        . Judge Canady has been substituted for Judge Green, who was on the original Clements panel.

   ON REMAND FROM THE SUPREME COURT OF FLORIDA

PER CURIAM.

This appeal is on remand from the Florida Supreme Court. See State v. Clements, 903 So.2d 919 (Fla.2005). We reverse on one of the issues raised by Clements in his original initial brief to this court and remand for his discharge.

In Clements v. State, 814 So.2d 1075, 1077 (Fla. 2d DCA 2002), this court reversed Clements’ conviction for sexual activity with a person between the ages of twelve and eighteen over whom he had familial or custodial authority. During the third day of trial, the State filed a second amended information alleging different offense dates and a second count of capital sexual battery. Id. at 1076. The trial court took the issue under advisement, and the trial proceeded. After a recess, the State asked the court to abandon the second amended information, and the trial court agreed that the second amended information was never properly filed and accepted by the trial court. Id. at 1077. The trial then proceeded on the original count of sexual activity. On appeal, this court concluded that the second amended information became effective upon being filed and that the filing of the second amended information violated Clements’ rights to due process. Id. This court held that Clements could not be tried for any of the charges in the informations and ordered that Clements be discharged on remand. Id.

The Florida Supreme Court held that because the State could not amend the information without permission from the trial court, the second amended information never took effect. Clements, 903 So.2d at 922. The supreme court accordingly quashed this court’s decision and ordered that on remand this court should consider “whether any testimony or evidence relating only to the capital felony charge in the second amended information was improperly introduced in that period when the amendment issue was under advisement, and, if so, whether the error entitles Clements to a new trial on the sexual activity charge.” Id. at 922-23.

On remand, this court directed Clements’ appellate counsel to file a supplemental brief addressing the above issue and explained that the remaining issues raised in the original initial brief would be considered by this court. Clements filed a supplemental brief, claiming that no testimony was presented that related only to the capital felony charge in the second amended information while the amendment issue was under advisement and that Clements suffered no prejudice. Clements states in the supplemental brief that “this court should consider the other four issues raised in the initial brief.”

In point two of his original initial brief, Clements argues that his conviction is barred by the statute of limitations. The original information was filed in 1998, and the first amended information, on which Clements was tried, was filed in 1999. The first amended information alleged a time frame for the offense of November 1, 1990, to December 28, 1997. Clements claims that from November 1990 to the end of 1998, the statute of limitations for the offense of sexual activity with a child by a person in familial or custodial authority was four years from when the offense was committed. See § 794.041, Fla. Stat. (1989-1992) (proscribing the offense, a first-degree felony); § 775.15(2)(a), Fla. Stat. (Supp.1990-1992) (providing the time limitations for prosecution of first-degree felony). Effective October 1, 1993, section 794.041 was repealed and reenacted as subsection (8) of section 794.011. See ch. 93-156, §§ 3, 4, at 911, § 27 at 933, Laws of Fla. Section 775.15(7), Florida Statutes (1993-1997), tolls the statute of limitations for a violation of section 794.011.

If the victim of a violation of s. 794.011, s. 794.05, s. 800.04, or s. 826.04 is under the age of 16, the applicable period of limitation, if any, does not begin to run until the victim has reached the age of 16 or the violation is reported to a law enforcement agency or other governmental agency, whichever occurs earlier. Such law enforcement agency or other governmental agency shall promptly report such allegation to the state attorney for the judicial circuit in which the alleged violation occurred. This subsection applies to any such offense except an offense the prosecution of which would have been barred by subsection (2) on or before December 31, 1984.

§ 775.15(7), Fla. Stat. (1993-1997). Clements claims that the exact date of the offense was never established and that he must be given the benefit of the possibility of it occurring prior to the effective date of section 794.011(8) and of the tolling provision with respect to section 794.011(8). He argues that because the State did not prove that the offense occurred on or after that effective date, the prosecution was for a violation of section 794.041 and was therefore untimely.

It is correct that the statute of limitations for a violation of section 794.041 between 1990 and September 30, 1993, began to run after the offense was committed and that the tolling provision in section 775.15(7), Florida Statutes (1993-1997), would not apply. In Hemphill v. State, 820 So.2d 405, 406 (Fla. 2d DCA 2002), this court held that the tolling provision in “section 775.15(7) does not and has never included section 794.041 as a statute to which its tolling provisions apply.” Although in 1993 section 794.041 became a part of 794.011 — “a statute to which the tolling provisions of section 775.15(7) apply” — “[t]he tolling provisions of section 775.15(7) are not applicable to violations of section 794.041 committed before October 1, 1993.” Hemphill, 820 So.2d at 406-07.

If the offense was committed before or on September 30, 1993, it would have constituted a violation of section 794.041 subject to the four-year statute of limitations. If the offense was committed on or after October 1, 1993, it would have constituted a violation of section 794.011(8) and the tolling provision of section 775.15(7), Florida Statutes (1993-1997), would toll the statute of limitations until the victim turned sixteen or when the violation was reported to a government agency, whichever was earlier. See Hemphill, 820 So.2d at 406-07 (“[I]f Hemphill’s offense occurred on or after October 1, 1993, he could have been properly charged under section 794.011, and the statute of limitations would not have run.”).

In Mercer v. State, 654 So.2d 1221 (Fla. 5th DCA 1995), the defendant was charged with committing capital sexual battery alleged to have occurred within an eight- and-one-half-month period from January 1972 to September 16, 1972. Two different limitations period were applicable to this time frame; from “January 1, 1972[,] to July 2[3], 1972, there was no time limitation,” but from July 24, 1972, to October 1, 1972, a two-year statute of limitations controlled. The court said that it was possible that the offense occurred during the period of time when the two-year statute applied because the State failed to prove that the offense occurred when the unlimited statute of limitations controlled. Id. at 1222. The benefit of the possibility must be given to the defendant. Id.

The first-degree offense of sexual activity by a person in a position of familial authority requires that the person engage the child in an act that constitutes sexual activity or sexual battery. See § 794.041(2)(b), Fla. Stat. (1989-1992); § 794.011(8)(b), Fla. Stat. (1993-1997). Sexual activity or sexual battery means “oral, anal, or vaginal penetration by, or union with, the sexual organ of another or the anal or vaginal penetration of another by any other object.” § 794.041(1), Fla. Stat. (1989-1992); § 794.011(l)(h), Fla. Stat. (1993-1997). The State did not prove that Clements committed sexual battery on the victim on or after October 1, 1993. The victim testified that Clements began touching her “a couple of weeks after” she and her family moved in with him, which occurred in 1991. She testified that he put his penis inside her vagina and that he put his mouth on her vagina, but she did not testify when this happened. The victim did not provide any specific dates of when the various incidents constituting sexual battery occurred. She testified that she and her family moved out of Clements’ house and then moved back in, but after they moved back in, Clements did not touch her again.

Both the victim’s sister and the victim’s mother testified that Clements touched the victim. The victim’s sister testified that Clements touched the victim inappropriately when the sister lived in the house, and the sister testified that she moved out in 1994 and again in 1996. The sister did not provide specific dates or elaborate on the touching that occurred. The victim’s mother testified that they moved out in 1995 because “[the victim] told [her] Roger had been touching her” and that they again moved out in 1997 because “[the victim] told [her] again that Roger was touching her.” But the mother did not testify what type of touching occurred. Detective Fenton also testified that the ■victim told him that Clements touched her, attempted to have sex with her, and placed his mouth on the victim’s vagina twice. Fenton stated that the activity occurred a couple of years before the victim told her mother about it, but he did not give any specific dates.

A doctor who examined the victim in 1998 testified that the examination revealed that the victim had had sexual intercourse on multiple occasions in the past. The doctor testified that the victim stated she had had sex only with Clements, but the doctor also stated that the victim could have engaged in the sexual intercourse as young as eleven years of age. Therefore, the doctor’s testimony did not indicate specifically when the alleged sex between Clements and the victim occurred.

The most specific evidence of when a sexual battery occurred came from defense witness Joy Rusic, an investigator with the Department of Children and Families (DCF), who investigated reports of abuse made in 1997. She testified that she spoke with the victim in December of 1997 and that the victim told her that “about two years prior to that [Clements and the victim] had full sexual intercourse.” This indicates that sexual battery occurred in 1995; however, this statement was offered by the defense in an attempt to impeach the victim’s testimony and is hearsay that is not admissible as substantive evidence of Clements’ guilt. See McNeil v. State, 433 So.2d 1294, 1295 (Fla. 1st DCA 1983).

When the statute of limitations issue is raised, the State has the burden to establish that an offense is not barred by the statute of limitations. Maguire v. State, 453 So.2d 438, 440 (Fla. 2d DCA 1984). In criminal cases, the statute of limitations must be liberally construed in favor of the accused. Netherly v. State, 804 So.2d 433, 436 (Fla. 2d DCA 2001). In Mercer, “[b]ecause the State failed to prove that the offenses occurred during the period when the unlimited statute of limitations controlled the prosecution of the offenses,” the court held that “the benefit of the possibility that the offenses occurred outside that period must be given to the defendant.” 654 So.2d at 1222. While there was some evidence indicating that some type of touching or inappropriate activity occurred after October 1, 1993, this evidence was not sufficient to prove that a sexual battery under section 794.011(8)(b) occurred. Because there is no substantive evidence to prove that the charged offense occurred after October 1, 1993, it is possible that the offense occurred prior to that date and we must, in construing the statute of limitations liberally in favor of the accused, conclude that the four-year statute of limitations applicable to offenses occurring prior to October 1, 1993, barred the prosecution of the offense because the information was not timely filed in 1997.

The State claims that Clements’ alleged conduct was a continuing offense and that the statute of limitations did not begin to run until the conduct terminated. The State relies on section 775.15(4), Florida Statutes (1989-1997), which provides that “[a]n offense is committed either when every element has occurred or, if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant’s complicity therein is terminated.” The State claims that the nature of the offense indicates that it was a continuing one and that it ended when the victim and her family moved out of Clements’ house in 1997.

Nothing in the applicable statutes, sections 794.041, Florida Statutes (1989-1992), and 794.011(8)(b), Florida Statutes (1993-1997), indicates that the legislature intended to prohibit a continuing course of conduct when proscribing the offense of sexual activity by a person in familial or custodial authority. See O’Malley v. Mounts, 590 So.2d 437, 438 (Fla. 4th DCA 1991) (holding that the language of the grand theft statute does not suggest that the legislature intended grand theft to be a continuing offense); cf. Rodriguez-Cayro v. State, 828 So.2d 1060, 1061 (Fla. 2d DCA 2002) (holding that stalking statute evinces a legislative purpose to prohibit a continuing course of conduct); Rosen v. State, 757 So.2d 1236, 1238-39 (Fla. 4th DCA 2000) (holding that the explicit language of the statute indicates that under certain circumstances, the prohibited fraud is subject to the continuing offense doctrine). A person may be convicted of sexual battery by a person in a familial or custodial authority based on one incident of penetration or union. Therefore, the State’s argument is without merit.

Because the State did not prove that the offense occurred within the statute of limitations period, we reverse Clements’ conviction and remand for his discharge.

Reversed and remanded.

WHATLEY, SALCINES, and CANADY, JJ., Concur.

CANADY, J., Concurs specially with opinion.

CANADY, Judge,

Concurring specially.

I concur in the court’s disposition of this case. I write separately to explain that I disagree with the holding in Hemphill and would conclude that the tolling provision of section 775.15(7), Florida Statutes (1997), was applicable to the offense charged against Clements. However, even if the tolling provision applied, the prosecution was still untimely.

The final sentence of section 775.15(7) unequivocally provides that the tolling provision applies to any of the offenses codified in section 794.011, Florida Statutes (1997). Among those offenses is the crime of sexual activity with a child by a person in familial or custodial authority. In 1993, this crime, which had previously been codified in section 794.041, was transferred to section 794.011(8). When the crime became a part of section 794.011, it became subject to the tolling provisions of section 775.15(7).

By transferring the crime of sexual activity with a child by a person in familial or custodial authority to section 794.011, the legislature evinced a clear intent to make “any such offense” subject to the tolling provision of section 775.15(7) — unless the prosecution of the offense had been barred prior to being made subject to the tolling provision. See Stogner v. California, 539 U.S. 607, 632-33, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003) (holding “that a law enacted after expiration of a previously applicable limitations period violates the Ex Post Facto Clause when it is applied to revive a previously time-barred prosecution”); Andrews v. State, 392 So.2d 270, 271 (Fla. 2d DCA 1980) (“The legislature can extend the limitations period without violating the constitutional prohibition against ex post facto laws if it (a) does so before prosecution is barred by the old statute, and (b) clearly indicates that the new statute is to apply to cases pending when it becomes effective.”); Scharfschwerdt v. Kanarek, 553 So.2d 218, 220 (Fla. 4th DCA 1989) (applying the principle articulated in Andrews to section 775.15(7)). Even liberally construing the statute in favor of the defendant, the tolling provision cannot reasonably be understood as excluding from the scope of its operation every offense of sexual activity with a child by a person in familial or custodial authority that was committed prior to October 1, 1993. The statutory section in which the crime was codified at the time of the offense is irrelevant to the operation of the tolling provision.

I thus disagree with the view adopted in Hemphill. In my view, Hemphill is based on a hyperformalistie reading of section 775.15(7) — a reading which is inconsistent with the manifest legislative purpose.

Even if Hemphill had been decided differently and the tolling provision did apply here, the result would be the same. The alleged abuse of the victim by Clements was reported to DCF in 1994, thereby triggering the four-year statute of limitations. The amended information was not filed until September 1999, more than four years after the violation was reported. Therefore, the prosecution was untimely even considering the tolling provision.

      . Clements' argument is premised on the understanding that chapter 93-156, Laws of Florida — which provided for the tolling of the statute of limitations for the offense at issue here — took effect on January 1, 1994. That provision actually took effect on October 1, 1993. Ch. 93-156, § 27 at 933, Laws of Fla.


author: STRINGER, Judge.

text:
    Charles T. McGUIRE, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-269.
    District Court of Appeal of Florida, Second District.
    Aug. 10, 2007.
   STRINGER, Judge.

Charles T. McGuire appeals the summary denial of his motion filed pursuant to Florida Rule of Criminal Procedure 3.800(a), as well as the postconviction court’s order barring him from filing any future pro se pleadings. We affirm the postconviction court’s denial of the rule 3.800(a) motion without comment. We write only to explain our affirmance of the postconviction court’s imposition of the bar on pro se pleadings.

McGuire is currently serving four concurrent life sentences imposed in 1990 pursuant to a plea bargain. Since his conviction, McGuire has filed numerous post-conviction pleadings in the circuit court. Each of the pleadings that appears in this court’s records has either been dismissed or denied. McGuire appealed four of the postconviction court’s orders, which this court subsequently affirmed. See McGuire v. State, 905 So.2d 135 (Fla. 2d DCA 2005) (table decision); McGuire v. State, 871 So.2d 228 (Fla. 2d DCA 2004) (table decision); McGuire v. State, 847 So.2d 471 (Fla. 2d DCA 2003) (table decision); McGuire v. State, 656 So.2d 1284 (Fla. 2d DCA 1995) (table decision).

In Jordan v. State, 760 So.2d 973, 974 (Fla. 2d DCA 2000), this court set forth the proper procedure a trial court must follow in order to impose such sanctions:

[T]he trial court must first evaluate the merits of the claims advanced. After disposing of the substantive postconviction allegations, should the trial court choose to pursue the sanction of barring [the defendant] from filing further pro se attacks on his conviction and sentence, it must provide him notice of the intended sanction and provide him an opportunity to show cause why the sanction should not be imposed. The order to show cause should delineate, in detail, the facts upon which the trial court intends to rely to forbid future filings.

See also State v. Spencer, 751 So.2d 47 (Fla.1999) (holding that a trial court must provide a litigant notice and an opportunity to respond before prohibiting further pro se attacks on a conviction and sentence).

Here, the postconviction court first determined that McGuire’s claims were frivolous because he had raised them in numerous prior pleadings. The postconviction court noted that it had previously warned McGuire it would not tolerate further frivolous proceedings and attached copies of orders either denying or dismissing eight prior pleadings. Most of these meritless pleadings attacked his sentence or the vol-untariness of his plea based on the same statements made by the trial court judge at sentencing. The postconviction court then ordered McGuire to show cause why he should not be barred from filing further pro se attacks.

After reviewing his response, the post-conviction court ordered that McGuire was no longer permitted to file pro se postcon-viction attacks in this case, sufficiently demonstrating through attachments that McGuire has filed numerous meritless pleadings. Because the postconviction court followed the proper procedure for imposing this bar pursuant to Jordan, we affirm the imposition of this sanction.

Affirmed.

WHATLEY and VILLANTI, JJ., Concur.


author: LARUE, T., Associate Judge.

text:
    Russell NERO and Gail Skutt, Appellant, v. CONTINENTAL COUNTRY CLUB R.O., INC., et al., Appellee.
    No. 5D06-1217.
    District Court of Appeal of Florida, Fifth District.
    Dec. 14, 2007.
    Rehearing Denied April 21, 2008.

      Paul E. DeHart, Richard C. Swank and Hutch K. Hicken, of Litchford & Christopher, P.A., Orlando, for Appellant.
    Mark D. Hildreth and Hunter G. Norton of Abel Band, Chartered, Sarasota, for Appellee, Continental Country Club R.O., Inc.
    George H. Russ of Sellar, Sewell, Russ, Saylor & Johnson, P.A., Leesburg, for Ap-pellees, Raye Guardado and Joan Dewey.
   LARUE, T., Associate Judge.

This appeal arises out of orders dismissing with prejudice Appellants’ second and third amended complaints. Because this court reverses the trial court’s dismissal with prejudice on counts I, III, V, VII, VIII and IX, it is unnecessary to address the third amended complaint. As addressed herein, we affirm in part and reverse in part.

Facts

Appellee, Continental Country Club (Association) is a homeowners association, and the individual Appellees were members of this Association. Appellants, Russell Nero and Gail Skutt, were officers of the Association. When the Appellants were removed by the Association from their positions as officers, they brought suit against the Association, asserting that they were wrongfully removed. They also sued the individual Appellees alleging they had inappropriately distributed recall petitions which were later used by the Association for the removal of Appellants.

In 2003, Appellees Guardado and Dewey distributed a petition to have Appellants recalled from their positions on the Board of Directors of the Association. Guardado and Dewey posted a notice of a special meeting for voting members of the Association to finalize the recall. A meeting was held, and Appellants were recalled from their positions by the Association, based upon the written agreements of the members.

Appellants filed an initial complaint which was dismissed. Subsequently, they filed an amended and second amended complaint. The trial court dismissed counts I through IX of the second amended complaint with prejudice, but allowed leave to amend count X. A third amended complaint was filed which stated only one count for declaratory relief, and the trial court dismissed it with prejudice as moot. Jurisdiction

Pursuant to rule 9.030(b)(1), Florida Rules of Appellate Procedure, this court has jurisdiction to review “final orders, not directly reviewable” by another court and non-final orders enumerated in rule 9.130(3)(A)-(D). An order is considered final if it “disposes of the cause on its merits leaving no questions open for judicial determination except for the execution or enforcement of the decree if necessary.” Welch v. Resolution Trust Corp., 590 So.2d 1098, 1099 (Fla. 5th DCA 1991). Furthermore, when an order dismisses only part of a complaint leaving claims that are related to the same transaction and the same parties, the order is considered to be non-final and not directly appealable. See Id. (citing North Indialantic Homeowners Ass’n v. Bogue, 390 So.2d 74 (Fla. 5th DCA 1980)); see also McLeod v. Barber, 764 So.2d 790, 793 (Fla. 5th DCA 2000).

The test to determine “ ‘whether counts of a multicount complaint are interrelated, so as to preclude a piecemeal appeal, is whether the counts arise from a set of common facts or a single transaction, not whether different legal theories or additional facts are involved in separate counts.... '" Dalola v. Barber, 757 So.2d 1215, 1217 (Fla. 5th DCA 2000) (citing Lemon v. Groninger, 708 So.2d 1025, 1026-27 (Fla. 5th DCA 1998)). The first nine counts of the second amended complaint arose from the same set of facts as the declaratory judgment action so that an appeal of the dismissal of the second amended complaint would have been premature while the declaratory judgment was still pending. Id. Therefore, the appeal was timely filed following the dismissal of the third amended complaint; hence, this court has jurisdiction to review the dismissal with prejudice of both the second and third amended complaints.

Standard of Review

Whether a complaint sufficiently states a cause of action resolves an issue of law. Thus, an order granting a motion to dismiss is reviewable on appeal by a de novo standard of review. See Huet v. Mike Shad Ford, Inc., 915 So.2d 723, 725 (Fla. 5th DCA 2005).

A motion to dismiss requests “the trial court to determine whether the complaint properly states a cause of action upon which relief can be granted and, if it does not, to enter an order of dismissal.” Huet, 915 So.2d at 725. In making its decision, the trial court may not look beyond the four corners of the complaint, and should make all reasonable inferences in favor of the pleader and accept as true all well-pleaded allegations. Id. The trial court should not determine whether the allegations are true or whether the pleader will be able to prove the allegations. Rather, the trial court must decide whether the pleader would be entitled to the relief requested. Id.

Second Amended Complaint

We now address each count raised in the second amended complaint to determine if Appellant sufficiently stated a cause of action. The following counts sought attorney fees, costs, statutory damages, if any, and other relief as deemed just and proper.

Count I

Count I alleged that the Association violated section 617.0808, Florida Statutes (2003) by removing the Appellants from their officer positions without a majority vote or agreement in writing. Section 617.0808 addresses the procedure for the removal of directors if such procedure is not contained in the bylaws. The statute imparts that a director can be removed with or without cause by a majority of the membership. Section 617.0808(3) requires a separate vote or separate written agreement for each of the directors to be removed.

Count I specifically alleged that “a majority of all members of the [Association] did not vote or agree in writing to remove [Appellants] as directors.” If a majority vote was not achieved, then the recall procedure was defective, and the Association would be liable for ratifying the recall. Therefore, Appellant’s claim that the Association violated section 617.0808(3) sets forth a cause of action, and the trial court erred in dismissing the count. See Romero v. Shadywood Villas Homeowners Ass’n, Inc., 657 So.2d 1193, 1194, 1196 (Fla. 3d DCA 1995) (reversed the trial courts dismissal for failure to state a cause of action because the homeowners association was required to comply with both sections 617.1605 and 617.303(4)(i)).

Counts II, TV and VI

In counts II, TV and VI the Appellants alleged that Guardado and Dewey, as individuals, violated the same statutes and bylaws discussed in counts I, III and V. The Association is the proper party to this action because a not-for-profit corporation provides insulation for the members, directors and officers from liability in their individual capacities unless there is some showing of fraud, criminal activity, self-dealing or unjust enrichment. Sonny Boy, L.L.C. v. Asnani, 879 So.2d 25, 28 (Fla. 5th DCA2004).

Inasmuch as it was the Association that removed the Appellants, and as there were no allegations of fraud, criminal activity, self-dealing or unjust enrichment, the trial court correctly concluded that there is no cause of action stated in counts II, IY and VI against the individual members.

Count III

Count III alleged that the Association violated Article V, section 9(b) of the Bylaws. This bylaw sets forth that a majority vote of all voting members is required to remove a director from the Board of Directors. Article V also references Article VII, Section 5 titled “Removal.” That section reads in relevant part:

Any director may be removed from the Board of Directors, with or without cause, by the vote or agreement in writing by a majority of the Voting Members.

The bylaws cited essentially adopt the same requirement as section 617.0808 referenced in count I. The claim made by the Appellants in this count is that the Association did not have a majority of votes when it removed them. If the Association did not obtain the vote of a majority of the voting members to remove Appellants, then the Association violated the aforementioned bylaws and the removal of the Appellants as directors was defective. Accordingly, count III stated a cause of action, and the trial court’s dismissal of this count was erroneous.

Count V

Appellants alleged that the Association violated section 617.0701(4), Florida Statutes (2003). The statute allows the members of the Association to take action based on written agreements without a meeting if certain requirements are met. The statute requires, among other things, that properly dated and signed member agreements are to be delivered to the Association and filed with the minutes. In addition, ten days notice of the action to be taken is required for the members who did not sign agreements. In count V the Appellants alleged the following: 1) the recall petition did not properly describe the action to be taken; 2) the petition was not dated and signed by a sufficient number of members; 3) the Association did not file the petition with the minutes; 4) despite the failure to file the petition, the Association removed the Appellants as directors; and 5) the Association failed to give ten days notice of any action taken by written agreement as required by section 617.0701(4)(c). If the allegations contained in the complaint are taken as true, it appears that the procedure to remove the Appellants from office did not comply with section 617.0701(4). Therefore, the trial court erred in dismissing count V because it stated a cause of action.

Count VII

Count VII alleged that the Association violated section 720.303(4), Florida Statutes (2003). This statute requires homeowner associations to maintain minutes of meetings for seven years. The Appellants claimed that the Association did not maintain proper minutes or file minutes of the December 4, 2003 meeting at which Appellants were removed as officers. Based on the information contained within the four corners of the complaint, and viewed in the light most favorable to

Appellants, Count VII stated a cause of action. Accordingly, we conclude that the trial court erred in dismissing this count.

Count VIII

Count VIII asserted that the Association violated Article XXIII of the Bylaws. Article XXIII fundamentally emulates the requirements enumerated in section 720.303(4) regarding the preparation, filing and preservation of minutes. If Appellant’s allegations are taken as true, then as with count VII, the Appellants stated a cause of action, and the trial court erred when it dismissed count VIII of the second amended complaint.

Count IX

Count IX alleged that the Association violated section 720.303(5), Florida Statutes (2003). The statute requires an association to give members the opportunity to inspect and copy official records of the association. Furthermore, the statute articulates a penalty for an association that fails to comply with a written request:

A member who is denied access to official records is entitled to the actual damages or minimum damages for the association’s willful failure to comply with this subsection. The minimum damages are to be $50 per calendar day up to 10 days, the calculation to begin on the 11th business day after the receipt of the written request.

Section 720.303(5)(b). The complaint averred that the Association denied access to and the inspection of the recall petition or other documents used to remove the Appellants, despite several requests. Appellants requested statutory damages and an order requiring the Association to comply with the statute and provide the records for inspection. Therefore, if the allegations of the complaint are true, Appellants stated a cause of action under section 720.303(5). See Greenacre Props., Inc. v. Rao, 933 So.2d 19 (Fla. 2d DCA 2006) (cause of action would be maintainable against the homeowners association for a violation of 720.303(5)). For that reason, the dismissal of count IX was improper.

Third Amended Complaint

The third amended complaint was dismissed with prejudice by the trial court in an Order issued on March 7, 2006. The trial court described the third amended complaint as essentially seeking the same relief as counts I through IX of the second amended complaint, which had by that time been dismissed with prejudice. As mentioned above, because this court has dealt herein with the second amended complaint in reversing the ruling of the trial court as to counts I, III, V, VII, VIII and IX, it is unnecessary to address the third amended complaint.

AFFIRMED IN PART, REVERSED IN PART and REMANDED.

PALMER, C.J., and SAWAYA, J„ concur.


text:
    Gordon WINANS and Kathy Winans, his wife, Appellants, v. Jed P. WEBER, M.D., Appellee.
    No. 2D06-5581.
    District Court of Appeal of Florida, Second District.
    Dec. 14, 2007.

      Mark C. Menser, Fort Myers, for Appellants.
    Henry A. Stein of The Stein Law Group, P.A., St. Petersburg, for Appellee.
   STRINGER, Judge.

Gordon and Kathy Winans appeal the final judgment on interpleader which awarded Jed Weber, M.D., the full amount of his bill for medical services rendered. Because the trial court’s findings are not supported by the evidence presented at the hearing and because the evidence does not establish that the Winanses waived their rights as third-party beneficiaries under the contract between Dr. Weber and United Healthcare, we reverse and remand for entry of judgment in favor of the Winanses.

The factual context of this case requires some explanation. In mid-2003, Dr. Weber entered into a contract with United Healthcare to be a provider of medical services to United HealthCare’s customers. The scope of this contract was stated in the first paragraph:

This agreement applies to you and the services you provide in all of your practice arrangements and for all of your tax identification numbers, except if your services are covered under an agreement between us and a medical group that you are part of.

(Emphasis added.) Subsequent provisions of the contract stated:

You must submit your claims within 90 days of the date of service ... If your claim ... is not submitted within these timeframes, you will not be reimbursed for the services, and you may not charge your patient.
⅝ ⅜ ⅜ ⅜
You will not charge our customers anything for the services you provide, if those services are covered services under their benefits contract, but the applicable co-pay, coinsurance or deductible amount. If the services you provide are denied or otherwise not paid due to your failure to notify us, to file a timely claim, to submit a complete claim, or based on our reimbursement policies and methodologies, you may not charge your patient.

(Emphasis added.) The contract defined “customer” as an “individual!] who [is] enrolled in benefit contracts insured or administered by us.”

Gordon Winans was involved in an auto accident in April 2003. At that time, Mr. Winans had health insurance through United Healthcare and was a “customer” as that term is defined in the contract between Dr. Weber and United HealthCare. In May 2003, Mr. Winans was referred to Dr. Weber by the Winanses’ attorney for treatment for the injuries Mr. Winans sustained in the auto accident. His treatment continued through 2003, 2004, and 2005.

Shortly after Mr. Winans began treating with Dr. Weber, the Winanses’ attorney sent Dr. Weber a Letter of Protection (“LOP”) concerning the medical bills being incurred by Mr. Winans. This LOP specifically required Dr. Weber to submit bills for Mr. Winans’ treatment to Mr. Winans’ health insurer “in the event there is available insurance coverage that your office accepts.” The LOP stated that if the bills were submitted to the insurance carrier and if those bills were not paid, then the bills would be paid from the proceeds of the settlement.

At some point after Dr. Weber received the LOP, his office stamped the LOP with an addendum which read, in full,

“Jed. P. Weber, M.D., Neurosurgery Consultants, L.L.C.” is not contracted with any insurance companies. Therefore, Provider will neither bill, nor accept payment from Health Insurance. Provider will rely on LOP, PIP, Med-Pay, and if no settlement is reached, the Patient for payment.

Mr. Winans’ signature appears below this stamped addendum. The addendum is not dated, and there is nothing in the record showing when the addendum was placed on the LOP or when Mr. Winans signed it.

In keeping with the addendum, Dr. Weber did not submit any bills for Mr. Winans’ treatment to United Healthcare. Dr. Weber’s bill for his services in treating Mr. Winans was $28,064. It is undisputed that had Dr. Weber submitted Mr. Win-ans’ bills to United Healthcare for payment, he would have received $4,167.15 in full payment for all treatment rendered.

Following the Winanses’ settlement of their personal injury case, Dr. Weber sought to be paid $28,064 from the settlement proceeds pursuant to the LOP. The Winanses contended that Dr. Weber was not entitled to any payment because he should have submitted his bills to United Healthcare and because, under his contract with United Healthcare, he was prohibited from collecting from the Winanses any amounts that he should have received under that contract.

When the parties could not amicably resolve the dispute over these funds, the Winanses’ attorney paid the disputed funds into the court registry. Dr. Weber and the Winanses then filed competing motions for disbursement of the funds in the court registry. The trial court held an evidentiary hearing on the motions.

At that hearing, Mr. Winans testified that when he first visited Dr. Weber, he told Dr. Weber’s office staff that he had United Healthcare insurance. Mr. Win-ans testified that he was told on several occasions by Dr. Weber’s office staff that his bills were being submitted to United Healthcare. Mr. Winans admitted that he signed below the stamped addendum on the LOP, but he testified that he thought that Dr. Weber was still billing United Healthcare because the body of the LOP stated that Dr. Weber was required to bill his health insurance carrier before he would be protected by the LOP. Nowhere did Mr. Winans testify that he discussed the addendum to the LOP or signing the addendum with his attorney. In fact, Mrs. Winans testified that the first their attorney knew of the addendum was in July 2005 when Dr. Weber’s bill was submitted to him for payment out of the settlement proceeds.

Dr. Weber did not testify at the hearing. However, his practice manager, Catherine Nicholson, testified that Dr. Weber had two separate companies set up with two separate tax identification numbers. According to her, Dr. Weber treated all of his nonaccident patients under one tax identification number and all of his auto accident patients under a different tax identification number. Nicholson testified that for all of the auto accident cases, the patients were required to sign the addendum that says that Dr. Weber would not accept health insurance. She testified that if a patient refused to sign, Dr. Weber would not treat that patient. Nicholson testified that Dr. Weber had not submitted any of the bills for Mr. Winans’ treatment to United Healthcare in reliance on the addendum and that the time had now passed for the bills to be timely submitted for payment. Nicholson denied that she had ever told Mr. Winans that his bills were being submitted to United Healthcare. She did not address whether any other member of the office staff might have told this to Mr. Winans.

On cross-examination, Nicholson admitted that Dr. Weber’s contract with United Healthcare stated that it applied to all tax identification numbers and to all practice arrangements. However, she also testified that only Jed Weber, M.D., P.L., was a party to the contract and that Neurosurgery Consultants, LLC, was not a party to the contract.

At the close of the hearing, the trial court found that there was a contract between Dr. Weber and United Healthcare and that it applied to all of the services provided by Dr. Weber under all of his tax identification numbers, thus rejecting Dr. Weber’s argument that his separate auto accident practice was not subject to the terms of his contract with United HealthCare. The trial court also found that the contract prohibited Dr. Weber from charging his patients for bills covered under the patients’ contracts with United HealthCare. The trial court also found that Mr. Winans was a third-party beneficiary of the contract between Dr. Weber and United Healthcare.

However, the trial court then found that Dr. Weber had explicitly stated that he did not accept health insurance and that he had “chosen not to extend” insurance benefits to his patients. Based on this, the trial court found that Mr. Winans had “cut off’ his third-party rights under the contract by signing below the stamped addendum with the advice of counsel. Thus, the trial court found in favor of Dr. Weber and ordered the full amount of the disputed proceeds disbursed to him.

In this appeal, the Winanses contend that the trial court erred in finding that Mr. Winans signed the addendum with the advice of counsel because there is no evidence to support this finding. They also contend that the trial court erred in finding that Mr. Winans’ signature constituted a waiver of his rights as a third-party beneficiary of the contract between Dr. Weber and United Healthcare. We agree with both points.

As an initial matter, the Winanses are correct that there is no record evidence to support the trial court’s finding that Mr. Winans signed the addendum with the advice of counsel. Mr. Winans did not testify that he ever spoke with his attorney about the matter. Mrs. Winans testified that their attorney did not know about the addendum until after treatment was completed. Dr. Weber did not testify, and his practice manager did not testify on this issue. Therefore, the trial court’s finding that Mr. Winans signed the addendum after consultation with and on the advice of counsel is not supported by the evidence in the record.

Turning to the legal arguments, we agree with the Winanses that Dr. Weber did not prove that they waived their rights as third-party beneficiaries under the contract between Dr. Weber and United Healthcare. The supreme court has defined a “waiver” as a voluntary and intentional relinquishment of a known right. Raymond James Fin. Servs., Inc. v. Saldukas, 896 So.2d 707, 711 (Fla.2005). The elements that must be established to prove waiver are the existence at the time of the waiver of a right, privilege, or advantage; the actual or constructive knowledge thereof; and an intention to relinquish that right, privilege, or advantage. Arbogast v. Bryan, 393 So.2d 606, 608 (Fla. 4th DCA 1981) (quoting 22 Fla. Jur.2d, Estoppel & Waiver, § 89). The element of knowledge of the right is critical, and there can be no waiver without knowledge of the existence of the right or privilege to be waived. Gulf Life Ins. Co. v. Green, 80 So.2d 321, 322 (Fla.1955). Similarly, there can be no waiver if the party against whom the waiver is invoked did not know all of the material facts, see Fireman’s Fund Ins. Co. v. Vogel, 195 So.2d 20, 24 (Fla. 2d DCA 1967); Alston v. Alston, 960 So.2d 879, 881 (Fla. 4th DCA 2007); or was misled about the material facts, see L.R. v. Dep’t of Children & Families, 822 So.2d 527, 530 (Fla. 4th DCA 2002) (holding that there could be no waiver of grandparents’ right to seek adoption of grandchildren when DCF had misled the grandparents concerning their rights); cf. Ethridge v. State, 766 So.2d 413, 414 (Fla. 4th DCA 2000) (holding that defendant could not have been found to have waived right to assert a specific defense when he had been specifically told that the defense was not available).

In this case, the trial court properly found that Mr. Winans had rights under the contract between Dr. Weber and United Healthcare. However, the trial court’s finding that Mr. Winans had waived those rights is not supported by the evidence because there is no evidence that Mr. Win-ans had knowledge of his rights when he allegedly waived them. Instead, the evidence shows that Dr. Weber actively misled Mr. Winans in one of two ways. If Mr. Winans’ testimony is to be believed, Dr. Weber misled Mr. Winans by having his office staff assure him that Dr. Weber was billing United Healthcare for his treatment in direct contradiction to the addendum. If the testimony presented by Dr. Weber is to be believed, Dr. Weber misled Mr. Winans by falsely telling Mr. Winans that Dr. Weber was not contracted with any health insurance companies. In either event, Mr. Winans’ purported waiver of his rights under the United Healthcare contract was not made with knowledge of the material facts. Thus, any alleged waiver would be ineffective to actually waive Mr. Winans’ rights under the United HealthCare contract. Accordingly, the trial court erred in finding that Mr. Winans waived his rights and in disbursing the disputed funds to Dr. Weber.

In this appeal, Dr. Weber contends that the trial court did not rule on the issue of waiver, but rather found in his favor on the basis of equitable estoppel. While we do not read the trial court’s ruling this way, even if this were so, we would still reverse because the evidence does not support finding an equitable es-toppel. The elements that must be established to prove an equitable estoppel are:

(1) the party against whom the estoppel is sought must have made a representation about a material fact that is contrary to a position it later asserts; (2) the party claiming estoppel must have relied on that representation; and (3) the party seeking estoppel must have changed his position to his detriment based on the representation and his reliance on it.

Watson Clinic, LLP v. Verzosa, 816 So.2d 882, 834 (Fla. 2d DCA 2002); see also SourceTrack, LLC v. Ariba, Inc., 958 So.2d 523, 526 (Fla. 2d DCA 2007); Lennar Homes, Inc. v. Gabb Constr. Servs., Inc., 654 So.2d 649, 651 (Fla. 3d DCA 1995). There can be no estoppel when the party seeking the estoppel was aware of the true facts and thus was not misled by the other party’s conduct. Watson Clinic, 816 So.2d at 834; Schueler v. Franke, 522 So.2d 904, 906 (Fla. 2d DCA 1988); Hamilton v. Corcoran, 177 So.2d 64, 65 (Fla. 2d DCA 1965); Lennar Homes, 654 So.2d at 652.

Here, Dr. Weber’s claim of equitable estoppel fails for three reasons. First, Dr. Weber failed to prove that Mr. Winans made any type of representation about any material fact. Instead, it was Dr. Weber who made the representation about a material fact, and that representation was false. Because estoppel will only lie against the party actually making the representation, Dr. Weber has failed to establish one of the elements of estoppel.

In his brief, Dr. Weber takes the position that Mr. Winans’ signature under the addendum constituted a “representation.” However, the record does not bear this out. The stamped addendum is simply a statement made by Dr. Weber. While Mr. Winans’ signature might be construed to be evidence that he read the statement, there is nothing in the addendum that can be construed to make that signature a representation by Mr. Winans that the addendum is true or that he agreed to it. Had the stamped addendum begun with “I acknowledge that ...” or “I understand that ... ”, then perhaps it would have been possible to construe Mr. Winans’ signature as a representation. In the absence of such language, Dr. Weber has no basis for turning the stamped addendum placed on the LOP by his own office staff into a representation made by Mr. Winans.

Second, Dr. Weber cannot rely on equitable estoppel because he himself was aware of the true facts and thus was not misled by any representation by Mr. Win-ans. The evidence established, and the trial court properly found, that Dr. Weber was aware that he had a contract with United Healthcare that applied to all of his patients who were “customers” of United Healthcare. Despite this, Dr. Weber falsely represented that he was not contracted with any health insurance providers. Dr. Weber cannot seriously contend that he was “misled” by Mr. Winans’ conduct when Dr. Weber knew that he had a contract with United Healthcare and knew that Mr. Winans was a “customer” of United Healthcare entitled to the benefits of that contract. Because Dr. Weber was aware of the true facts, he is not entitled to rely on the doctrine of equitable estop-pel to extricate him from his own falsehood.

Third, Dr. Weber’s equitable estop-pel argument flies in the face of the purpose of the doctrine. The primary purpose of the doctrine of equitable estoppel is to “prevent a party from profiting from his or her wrongdoing.” Major League Baseball v. Morsani, 790 So.2d 1071, 1078 (Fla.2001). Thus, a party’s own wrongful act cannot serve as the basis for a claim of equitable estoppel against another. Barnett & Klein Corp. v. President of Palm Beach—A Condo., Inc., 426 So.2d 1074, 1075 (Fla. 4th DCA 1983); Opler v. Wynne, 402 So.2d 1309, 1311 (Fla. 3d DCA 1981).

Here, Dr. Weber breached his contract with United Healthcare by attempting to bill patients covered by United Healthcare for charges covered by their policies. He also misled his patients concerning the existence of the contract between himself and United Healthcare. Dr. Weber now seeks to use these wrongful acts to estop the Winanses from receiving the benefits they were entitled to under their policy with United Healthcare. Dr. Weber cannot claim detrimental reliance on his own misrepresentations and his own wrongful breach of his contract with United HealthCare.

For these three reasons, Dr. Weber’s claim of equitable estoppel fails. Because Dr. Weber established neither waiver nor equitable estoppel, the trial court’s finding that Mr. Winans had “cut off’ his rights under the contract between Dr. Weber and United Healthcare cannot stand. Accordingly, we reverse the order disbursing the disputed funds to Dr. Weber and remand for disbursement of the funds to the Win-anses.

Reversed and remanded for entry of judgment in favor of the Winanses.

WHATLEY and KELLY, JJ., Concur.