text:
    Edgar L. BROWN v. LIBERTY MUTUAL INSURANCE CO. et al.
    No. 4441.
    Court of Appeal of Louisiana. First Circuit.
    June 28, 1957.
    Rehearing Denied Sept. 23, 1957.
    Writ of Certiorari Granted Nov. 12, 1957.

      Elmo E. Lear, Wm. C. Bradley, Baton Rouge, for appellant.
    Taylor, Porter, Brooks, Fuller & Phillips, Robert Vandaworker, Baton Rouge, for ap-pellees.
   ELLIS, Judge.

This suit was instituted by Edgar L. Brown against Ben C. Devall and Devall’s insurer, Liberty Mutual Insurance Company, individually for medical expenses amounting to $962.92 and for the use and benefit of his minor son, Timothy Brown, in the amount of $9,000. The claim sued upon arose out of an accident in which Timothy Brown was struck down and injured on May 18, 1955, at 4:00 P.M. by an automobile owned and driven by Ben C. Devall at plaintiff’s home near Port Allen, Louisiana.

The trial court granted a judgment for the defendants and the plaintiff has perfected an appeal from this judgment.

The facts which appear from the record are as follows: Devall drove near the Brown home and saw Mr. Brown in the yard with Mrs. Brown, Mr. Glenn Abbott and the three Brown children. He had some business to discuss with Mr. Brown so he backed his car into the driveway of the Brown home. He turned off his motor and spoke with Mr. Brown for approximately ten minutes. Mr. Abbott listened to-the conversation for a short while and then-he started playing with the children, Mr. Brown stood by the right front door of Mr. Devall’s car and Mrs. Brown stood to the left of Mr. Brown. Devall remained in his car in the driver’s seat. Mr. Devall expressed his intention of leaving and turned on his ignition, but remained in conversation with Mr. Brown for approximately one minute. In rapid succession, the conversation was terminated, Mr. Brown stood away from the car and Mr. Devall drove forward slowly for two or three feet. He was cautioned to stop when it was discovered that Timothy Brown, who was then 18 months old, had been pinned beneath the right front wheel of the car. He carefully backed off the child and it was taken to Our Lady of the Lake Hospital. The child had received a fracture of the right femur, bruises and abrasions, was required to spend one month in the hospital and six weeks in a cast at home in bed before the cast was removed. This was during the summer months and he suffered from the heat as well as from his injuries. The condition of the wounds made dressing them quite painful. The record reveals that all in all the child’s recovery was prolonged and quite painful, however, the injuries left no lasting effects.

The questions before the court on this appeal as detailed by the trial judge in his written reasons are as follows:

1. Was defendant Ben C. Devall guilty of negligence? If this question is answered in the negative plaintiff’s suit must fail since no person may be held liable in civil damages unless he is guilty of negligence constituting a proximate case of the injuries. If the foregoing question is answered in the affirmative then the following issues remain for decision.
2. Was the child Timothy Brown guilty of contributory negligence barring recovery for his injuries?
3. Was the father Edgar L. Brown guilty of contributory negligence attributable to the child Timothy Brown and barring recovery for the child’s injuries?
4.Was Edgar L. Brown guilty of contributory negligence barring recovery for the special damages claimed by Brown individually?

Answering the first question, this-court finds the trial court was in error in finding the defendant Devall free from negligence. He knew of the presence of the three young children in the yard. He sat in his car and engaged in conversation for approximately ten minutes with Mr. Brown. He expressed his intention to leave and' turned on the ignition but lingered in conversation about one minute more. After finishing the discussion he immediately proceeded to drive forward at which point he struck down and injured the child. Under the circumstances, Devall should have taken some precaution to guard against the very accident which occurred here. He could have gotten out of his car and observed the driveway, counted the children in sight or asked the other adults present to check and see if the way was clear before he proceeded. He knew the children were in the immediate vicinity and he made no effort to ascertain their whereabouts before he started his car in motion. It is clear that under the Louisiana jurisprudence the operator of an automobile has a duty demanding a high degree of care if children are in the vicinity and he knows of their presence or is held to know of their presence as a matter of law. Rainwater v. Boatright, La.App.1952, 61 So.2d 212; Comer v. Travelers Ins. Co., 213 La. 176, 34 So.2d 511; Jacoby v. Gallaher, 10 La.App. 42, 120 So. 888; Stamps v. Henderson, La.App., 25 So.2d 305; Peperone v. Lee, La.App., 16 So. 467; Creevy v. D. H. Holmes Co., 16 La.App. 562, 134 So. 413; Jamison v. State, La.App., 7 So.2d 373; Ledet v. Toye Bros. Yellow Cab Co., La.App., 160 So. 442; Jackson v. State Farm Mutual, La.App., 32 So.2d 52; Blash-field Cyclopedia Automobile Law & Practice, §§ 1492, 3361.

The case of Comer v. Travelers Ins. Co., supra, was relied upon by the trial court in granting judgment for the defendants herein. However, this court sees a strong .distinction between that case and the case at bar. In that case the assured’s seventeen month old niece came out on the front porch of her home, which was bordered by shrubbery, as assured was taking leave of his adult daughter. Assured kissed his niece, turned and went toward his car. He then looked back toward the porch to see if the way was clear before entering his car. He turned on his motor, spoke again to his daughter and then, looking to the rear, hacked down the drive. There was only one child present. The assured left this child with an adult of responsible age, walked to his car, turned and checked the vicinity, entered his car and, after a short interval, hacked down the driveway keeping a lookout and then struck the child. The assured in the Comer case thus took precautions which should reasonably have precluded the accident which occurred.

The case of Cook v. Scarborough, La. App., 72 So.2d 560, 561, was cited by counsel for the defendant as authority for the trial court’s judgment. However, in that case the driver who had been conversing with a seventeen year old boy, cautioned the eight or nine children present to stay clear of the truck, walked around the truck, entered the cab from the left, looked in his rear view mirror and saw all the children gathered behind the older boy and clear of the truck, then he pulled forward slowly running over one of the children who had evidently darted beneath one of the back wheels of the truck at the last moment. The appellate court made the following statement:

“There is not the slightest conflict in the testimony of these witnesses, and both testified that at the time Scarborough walked from the rear around the left side of the truck and took his seat in the cab Connie Sue Cook was standing with the children behind Adolphus Snell at the rear of the truck. In our opinion this testimony conclusively disposes of the factual issue involved and completely exonerates the defendant, Scarborough, of any negligence whatsoever.”

The distinction between the case at bar and the Cook case is similar to the distinction made between this case and the Comer case. The defendant took reasonable precaution to prevent the accident in the Cook case, but unforeseeable circumstances beyond his control intervened thwarting his precautions. In the case at bar, the driver took no other action than to look forward as he drove forward; This was not enough.

In the instant case, the defendant evidently assumed that the other adults present would notify him of any danger. In our opinion, this was not a reasonable discharge of his clear duty to exercise extraordinary care in the operation of a vehicle when children were known to be in the vicinity.

In answer to question No. 2, Timothy Brown was eighteen months old at the time of the accident. A child of his age is incapable of reasoning to a sufficient degree to he found contributorily negligent for any of his action. The Louisiana Annotations to the Restatement of Torts, 1941, Section 464, states that: “The doctrine of contributory negligence in Louisiana does not apply to a child under four years.” This concept is often recognized in the jurisprudence of Louisiana. See Johnson v. Butterworth, 180 La. 586, 157 So. 121; Iglesias v. Campbell, La.App., 175 So. 145; Jamison v. State, La.App., 7 So.2d 373; Brown v. Wade, La.App., 145 So. 790; Palermo v. Orleans Ice Mfg. Co., 130 La. 833, 58 So. 589, 40 L.R.A.,N.S., 671. In several cases children over four years old have been found incapable of being contributorily negligent. See Millanos v. Fatter, 18 La. App. 708, 138 So. 878; Wise v. Eubanks, La.App., 159 So. 161; Rainwater v. Boat-right, La.App., 61 So.2d 212; Bodin v. Texas Co., La.App., 186 So. 390; Borman v. Lafargue, La.App., 183 So. 548.

The question of whether or not the contributory negligence of the parent may be imputed to the child (Question No. 3) is answered by a line of cases in the Louisiana jurisprudence. Williams v. Missouri Pacific R. R. Co., 155 La. 349, 99 So. 286; Prosser, Law of Torts, Second Edition, 1955, p. 301, La.Anns. to Restatement of Torts, 1941, Section 488; Danna v. Monroe, 129 La. 138, 55 So. 741; Westerfield v. Levis, 43 La.Ann. 63, 9 So. 52. Since we hold, as will be hereinafter discussed in answer to Question No. 4, that Mr. Brown was not contributorily negligent, there is no necessity for a further discussion in this respect.

In answer to Question No. 4, a fair evaluation of the testimony in the record would indicate that Edgar L. Brown was not contributorily negligent and could, therefore, recover individually for his special damages. It appears that Mr. Devall turned on his motor some time before he actually concluded his conversation. Upon concluding his conversation he immediately drove forward and gave the plaintiff little or no time to think about the danger to the children. We quote from Mr. Devall’s testimony in this regard:

“Q. I want to be sure about this, Mr. Devall. You started the automobile before you actually finished your conversation? A. That is correct.
“Q. You finished your conversation you said, with the motor running? A. That is correct.
“Q. You finished your conversation and Mr. Brown was standing on the right side of the car talking to you, and that is when you said: ‘Got to leave’ ? A. He, of course, moved away from the car a slight distance as I said I would have to be going. He moved back a short distance, maybe a few feet, and I slowly moved off.”

As the operator of the dangerous instrumentality, Mr. Devall had the primary duty to take the necessary precautions to safeguard the children that he knew were in the vicinity.

There was also a great deal of stress placed upon a statement made by the plaintiff six days after the accident in which he stated:

“Mr. Devall told me that he was leaving before he pulled out. I looked and thought I saw all the kids but I didn’t notice Timothy not being in sight. I didn’t notice whether Mr. Devall looked or not before pulling out but he couldn’t have seen Timothy if he had looked * *

This statement was taken by an insurance adjuster and merely signed by Brown after he read it over. The testimony which Mr. Brown gave on the trial and the testimony of Mr. Devall set forth above would indicate that Brown did not, actually, have an opportunity to look for his children and did not, before Devall drove off. We are hesitant in placing greater weight upon the statement than testimony on the trial. There was no opportunity for cross examination and the plaintiff did not actually write the statement.

On the question of quantum, the record reveals that Timothy Brown was placed in traction with his feet perpendicular to the bed for a period of four weeks. This was especially painful and uncomfortable due to the bruises and abrasions and the excessive heat of the summer months. He remained in a cast for six weeks after being removed from traction and it was necessary for him to learn to walk again after removal of the cast.

In the case of Monge v. New Orleans Railroad & Light Co., 145 La. 435, 82 So. 397, in 1919 a judgment was rendered for $2,000 to a two month old child whose arm and leg had been broken. In the case of Morgan v. Lanz, La.App., 195 So. 128, $3,-500 was granted for bruises and abrasions and the plaintiff remained in a cast for four and one half weeks.

The Court feels that an award of $3,000 will be adequate in this case to Edgar L. Brown for the use and benefit of his minor son, and an award to Mr. Brown individually for his special damages of $962.-92.

For the reasons assigned above, the judgment of the District Court is reversed and there will now be judgment in favor of Edgar L. Brown and against the defendants, Liberty Mutual Insurance Co. and Ben C. Devall, jointly and in solido, for the use and benefit of his minor son, Timothy Brown, in the amount of $3,000; and individually for his special damages in the amount of $962.92, the defendants to pay all costs.


source: Caselaw Access Project

author: COPE, J., concurs and states:

license: Public Domain

text:
    TDY INDUSTRIES, INC., etc., Appellant(s)/Petitioner(s), v. KAISER AEROSPACE & ELECTRONICS etc., et al., Appellee(s)/Respondent(s).
    No. 3D04-576.
    District Court of Appeal of Florida, Third District.
    Sept. 22, 2004.
    GERSTEN and GREEN, JJ., concur.
   COPE, J., concurs and states:

TDY Industries, Inc. maintains that the trial court’s order inadvertently requires TDY to produce documents not included in the motion to compel: Consultation with TDY’s experts on how to take the depositions of the opposing parties’ experts. It does not appear to me that this issue was raised in an understandable way in the trial court. I therefore concur in the denial of the petition with the suggestion that TDY file an appropriate motion in the trial court for interpretation of the earlier order and submit the affected documents for in-eamera inspection.

The failure of respondents to raise the issue of the privilege log in the trial court precluded any consideration by the trial court of prejudice (if any) suffered by respondents, and thus cannot be considered as a basis for denial of relief here. See Robertson v. State, 829 So.2d 901, 906-07 (Fla.2002); see also Magical Cruise Co. v. Dragovich, 876 So.2d 1281 (Fla. 5th DCA 2004). (Griffin, J., concurring specially).


author: PER CURIAM.

text:
    LAW OFFICES OF RODRIGUEZ & SIBLEY, L.L.P., Petitioner, v. Barbara SIBLEY, Respondent.
    No. 3D04-2981.
    District Court of Appeal of Florida, Third District.
    Nov. 24, 2004.

      Montgomery Blair Sibley, for petitioner.
    Jay M. Levy, Miami, for respondent.
    Before COPE, GERSTEN and GREEN, JJ.
   Order

PER CURIAM.

On consideration of the petitioner’s motion for rehearing, the court grants leave to petitioner to refile its petition for writ of mandamus, along with the filing fee, within twenty days of the date hereof.

On November 3, 2004, this court issued its opinion in Sibley v. Sibley, 885 So.2d 980 (Fla. 3d DCA 2004). Part V of that opinion prohibited Montgomery Blair Sib-ley from further self-representation in this court. Id. at 985-988. The opinion stated, in part: “We direct the clerk of this court to reject any further filings in this court on the former husband’s behalf unless signed by a member of the Florida Bar (other than the former husband).” Id. at 988.

On November 5, 2004; this court received a petition for writ of mandamus filed by Mr. Sibley, entitled Law Offices of Rodriguez and Sibley, L.L.P. v. Barbara Sibley. Pursuant to our ruling in Sibley v. Sibley, at 988, on November 8, 2004, the Clerk of this Court returned the petition for writ of mandamus to Mr. Sibley.

Mr. Sibley filed a motion for rehearing, arguing that the earlier opinion in Sibley v. Sibley was' not yet final at the time he filed the petition for writ of mandamus. Because that is so, and because the November 3, 2004 opinion did not spell out that the prohibition on further filings was to be effective immediately, we have determined that the filing of the petition for writ of mandamus will be permitted. We therefore grant twenty days from the date of this opinion for Mr. Sibley to refile the petition for writ of mandamus which was returned to him on November 8, 2004, along with the appropriate filing fee. The petition for writ of mandamus will be subject to the “other pending cases” condition of Sibley v. Sibley, 885 So.2d at 985 (“Any other cases that are pending in this court in which the former husband is representing himself will be dismissed unless a notice of appearance signed by a member in good standing of the Florida Bar (other than the former husband) is filed in each case within thirty days of this opinion becoming final.”).

Mr. Sibley argues in addition that the petition for writ of mandamus does not fall within this court’s prohibition on his self-representation in this court, because the petitioner is his law partnership, rather than Mr. Sibley individually. We reject that argument, as Mr. Sibley’s representation in this circumstance is simply self-representation in another form. We clarify that the Sibley v. Sibley prohibition on self-representation includes a prohibition on Mr. Sibley’s representation of his law partnership. See Sibley v. Sibley, at 988 Appendix paragraph A3 (citing earlier law firm petition).

In summary, the petition for writ of mandamus may be refiled within twenty days subject to the conditions set forth herein. In view of this ruling, the motion for rehearing en banc is moot.


author: RAMIREZ, J. COPE, J.

text:
    Robert JACKSON, Appellant, v. WORLDWIDE FLIGHT SERVICES, INC., Appellee.
    No. 3D03-3384.
    District Court of Appeal of Florida, Third District.
    March 30, 2005.
    Neil Rose, Hollywood; J.H. Zidell, Miami Beach, for appellant.
    Akerman Senterfitt, and Rexford H. Stephens, and Harold E. Morían, Orlando, and Debra Lubkin, Ft. Lauderdale, for appellee.
    Before COPE, RAMIREZ, and WELLS, JJ. ■
   RAMIREZ, J.

Robert Jackson appeals the trial court’s dismissal with prejudice of his amended complaint. We reverse because any defect in his prematurely-filed discrimination claim was subsequently cured when the Florida Commission on Human Relations issued Jackson a right-to-sue letter.

On December 3, 2001, Jackson filed with the Commission a Charge of Discrimination against Worldwide Flight Services, Inc. On May 22, 2002, 170 days later, he filed a civil action alleging racial discrimination in violation of the Florida Civil Rights Act of 1992, §§ 760.01-760.11, Fla. Stat. (2000). In June 2003, the court dismissed Jackson’s lawsuit because Jackson had filed suit before the expiration of the required 180-day investigative period set forth in section 760.11, Florida Statutes (2000).

Following the court dismissal, Jackson contacted the Commission which, on July 3, 2003, issued a “Notice of Dismissal and Right to Sue,” stating that more than 180 days had elapsed since Jackson had filed his complaint with the Commission, and citing to Woodham v. Blue Cross & Blue Shield of Florida, 829 So.2d 891 (Fla.2002). The letter explained that Jackson could pursue his claim with the Division of Administrative Hearings within thirty-five days of the dismissal, or in civil court within one year of the dismissal, provided that such time period did not exceed four years from the date of Worldwide’s alleged violation.

On August 7, 2003, Jackson filed a new civil action against Worldwide in which he alleged negligent retention, intentional infliction of emotional distress, and racial discrimination in violation of the Act. Worldwide moved to dismiss Jackson’s amended complaint for lack of subject matter jurisdiction. Worldwide argued that Jackson violated the Act when he commenced the initial civil action without waiting 180 days after filing the Charge of Discrimination with the Commission. The trial court granted Worldwide’s motion to dismiss with prejudice based on Sweeney v. Florida Power & Light Co., 725 So.2d 380 (Fla. 3d DCA 1998).

We hold that the trial court incorrectly dismissed Jackson’s claim against Worldwide. Although the initial claim was premature under the Florida Civil Rights Act, Jackson cured this defect by subsequently obtaining a right-to-sue letter from the Commission before he filed his second civil action. In fact, the Commission has filed an Amicus Curiae Brief arguing that it validly issued its right-to-sue letter and that the trial court improperly dismissed this case.

Jackson’s first lawsuit against Worldwide was dismissed because Jackson filed the action ten days before the 180-day period required under section 760.11(8), Florida Statutes (2000). Jackson subsequently obtained a right-to-sue letter from the Commission. He filed his action again, within the statute of limitations, based on the Commission’s letter recognizing that more than 180 days had lapsed since Jackson’s complaint was filed. Accordingly, pursuant to Woodham, the Commission dismissed Jackson’s claim, which then allowed Jackson to pursue his claim in civil court within one year of the date of the Commission’s dismissal. The Commission’s July 3, 2003 letter acknowledged Jackson’s compliance with section 760.11(8), Florida Statutes (2000), permitting him to proceed with his claim in civil court.

The trial court’s reliance upon Sweeney is misplaced. The claimant in Sweeney did not attempt to re-file the complaint after the court dismissed the complaint. In Sweeney, this Court did not hold that a plaintiff like Jackson could not cure the defect of a prematurely filed complaint. Indeed Sweeney does not address that issue at all.

The case before us is more akin to Dixon v. Sprintr-Florida, Inc., 787 So.2d 968 (Fla. 5th DCA 2001), which allowed the claimant the right to cure its premature filing. The Fifth District stated that the premature filing of Dixon’s lawsuit did not make it impossible for the Commission to have 180 days to consider her administrative complaint because she filed a second administrative complaint within the applicable 365 day time period and then allowed the Commission more than 180 days to issue a reasonable cause determination before she filed her second lawsuit. The court concluded that Dixon’s premature lawsuit did not prevent the Commission from performing its administrative duties nor prevent Dixon’s cause of action from accruing.

Likewise here, following the dismissal of Jackson’s prematurely filed lawsuit, he requested a right-to-sue letter. At that point the Commission could have insisted on a new 180-day investigative period, as in Dixon. Instead, the Commission issued the right-to-sue letter. There is nothing in the record to indicate that Jackson hampered or rushed the Commission’s investigation. We thus conclude that Jackson complied with the Act’s requirements before filing his second lawsuit.

We reject Worldwide’s contention that the Commission was divested of jurisdiction to correct the originally premature filing of Jackson’s claim. Section 760.11(5), Florida Statutes (2000), in pertinent part, states:

A civil action brought under this section shall be commenced no later than 1 year after the date of determination of reasonable cause by the commission. The commencement of such action shall divest the commission of jurisdiction of the complaint, except that the commission may intervene in the civil action as a matter of right.

Here, the original premature filing was not begun after the date of the reasonable cause determination or after the Commission’s 180-day period to consider Jackson’s claim. Accordingly, the original premature filing was not “such action” divesting the Commission of jurisdiction over Jackson’s complaint. In other words, because the original premature claim was not properly before the court, the Commission was not divested of jurisdiction. The Commission was not divested of jurisdiction until Jackson refiled his complaint in circuit court when he properly commenced it after the July 3, 2003 issuance of the right-to-sue letter.

We therefore reverse the trial court’s dismissal with prejudice of Jackson’s amended complaint and remand for its reinstatement.

Reversed and remanded.

WELLS, J., concurs.

COPE, J.

(concurring).

Where a plaintiffs lawsuit is dismissed as prematurely filed (prior to the expiration of the statutory 180-day period), the Florida Commission on Human Relations (the “Commission” or “FCHR”) may thereafter resume jurisdiction and issue a right-to-sue letter.

In the present case the plaintiff filed suit on the 170th day and the suit was dismissed as premature. At the plaintiffs request the Commission resumed jurisdiction and subsequently issued a right-to-sue letter.

Writing in a similar case, the United States District Court for the Southern District of Florida said:

Once I dismissed his complaint without prejudice, Mr. Gaitor went back to pursue his remedies with the FCHR. At that point, the agency certainly had the ability to require Mr. Gaitor to start the entire process over, by filing a second complaint before the commission. The agency, however, did not require a new complaint. Instead, it resumed its consideration of Mr. Gaitor’s original complaint and, after the remaining 10 days had passed, issued a right to sue notice to Mr. Gaitor. See Notice of Dismissal and Right to Sue Letter, attached to D.E. 80. This decision is significant, since the FCHR is the agency responsible for interpreting the FCRA [Florida Civil Rights Act], and I must give its interpretations great deference unless they are clearly erroneous. See Donato v. American Telephone and Telegraph Co., 767 So.2d 1146, 1153 (Fla.2000) (“We recognize the general rule that the interpretation of a statute by the administrative agency or body charged with its enforcement is entitled to great deference and should not be overturned unless clearly erroneous or in conflict with the legislative intent of the statute”) (internal quotation and citation omitted); accord BellSouth [BellSouth] Telecommunications, Inc. v. Johnson, 708 So.2d 594, 596 (Fla.1998).

Gaitor v. Worldwide Flight Services, Inc., Case No. 02-21757-Civ-JORDAN, order at 2 (S.D.Fla. Dec. 19, 2003); see also Webb v. Worldwide Flight Services, Inc., No. 02-21758-Civ-ALTONAGA, order at 4 (S.D.Fla. Dec. 9, 2003).

The Commission’s practice of resuming jurisdiction is consistent with the purposes of the statute, see § 760.01, Fla. Stat. (2003), and serves the important policy of resolving disputes on their merits.


text:
    TICO INSURANCE COMPANY, an Ohio Corporation, Infinity Insurance Company, a foreign corporation, and Leader Insurance Company, an Ohio Corporation, Appellants, v. Linda SCHONNING, Appellee.
    No. 3D04-186.
    District Court of Appeal of Florida, Third District.
    April 13, 2005.
    Gaebe, Mullen, Antonelli, Esco DiMat-teo, Coral Gables; Hicks Kneale, P.A., and Mark Hicks, and Dinah Stein, Miami, for appellants.
    Jane Kreusler-Walsh (West Palm Beach); Thornton, Davis Fein, P.A., and Barry L. Davis, and Holly S. Harvey, Miami, for appellee.
    Before LEVY, GREEN, and RAMIREZ, JJ.
   PER CURIAM.

TICO Insurance Company appeals from a final judgment entered against it, following the striking of its pleadings for discovery violations. Because the pleadings were struck in the absence of an evidentia-ry hearing, we reverse. See Kozel v. Ostendorf, 629 So.2d 817, 818 (Fla.1993)(adopting six factors that must be considered before deciding case warrants imposition of severe sanctions). See also Bank One, N.A. v. Harrod, 873 So.2d 519, 521 (Fla. 4th DCA 2004)(“Where, as here, there is no indication that the trial court considered [the Kozel ] factors, ... reversal has been required.”); Rose v. Clinton, 575 So.2d 751, 752 (Fla. 3d DCA 1991)(“The trial court abused its discretion in imposing severe sanctions for non-compliance with discovery absent an order ‘finding that the conduct upon which the order is based was equivalent to willfulness or deliberate disregard [of the discovery orders].’ ” (footnote omitted)) (quoting Commonwealth Fed. Sav. & Loan Ass’n v. Tubero, 569 So.2d 1271, 1272 (Fla. 1990)).

Reversed.


text:
    Ricardo J. MILLER, Petitioner, v. STATE of Florida and Ken Jenne, as Sheriff of Broward County, Florida, Respondents.
    No. 4D06-4908.
    District Court of Appeal of Florida, Fourth District.
    Jan. 19, 2007.
    Howard Finkelstein, Public Defender, and Diane M. Cuddihy, Assistant Public Defender, Fort Lauderdale, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Joseph A. Tringali, Assistant Attorney General, West Palm Beach, for respondent State of Florida.
   PER CURIAM.

Ricardo J. Miller (Defendant) filed a petition for writ of habeas corpus, challenging his involuntary commitment to the Department of Children and Families for mental health treatment in a state forensic hospital, and/or for writ of certiorari, seeking to quash the orders of commitment. We grant the petition.

In 1994, Defendant was charged with possession of a weapon, a knife, on school grounds. He was adjudged incompetent to proceed but, following a hearing, the trial court determined that he did not meet the criteria for involuntary commitment. He was placed on conditional release and was ordered to receive treatment at a residential treatment facility as a condition of his release. Thereafter, he failed to comply with the terms _ of his conditional release several times, and his release was modified several times. However, there were no arrests for new offenses. The violations consisted of leaving his court-ordered placement, being non-compliant'with his prescribed medication, and staying out beyond his curfew. No violent behavior was involved.

At a hearing on the recent violations of conditional release, the trial court acknowledged that Defendant was found not to meet the criteria for involuntary commitment. But the judge indicated he intended to rely on Douse v. State, 930 So.2d 838 (Fla. 4th DCA 2006), where he explained, this court outlined three options in situations in which someone on conditional release violated the conditions of release: (1) committing the defendant to the state hospital if the criteria of commitment are met; (2) placing the defendant on conditional release again; • or (3) making a finding that there are no conditions that would ensure the safety of the community and committing the defendant to a state hospital. The trial court decided to revoke Defendant’s conditional release ■ based' on his., case manager’s testimony as., to his noncompliance with the conditions of release, found there were no conditions that could be fashioned to protect the community, and, purporting to act under Douse, concluded it had the authority to commit Defendant to the state forensic hospital. But no finding was made at the hearing that Defendant met the criteria for involuntary commitment specified in section 916.13, Florida Statutes (2006).

In three orders, two dated November 16 and one dated November 17, 2006, the trial court revoked Defendant’s conditional release, adjudged him to be incompetent to proceed due to mental illness, and committed him to the Department of Children and Families. The November 17 order indicated the commitment was based on written reports of the forensic psychologists— which, however, were not attached to the order. In this last order, the court found that Defendant met the criteria for commitment to a treatment facility as provided in section 916.13(1).

The basis for Defendant’s challenge to his commitment is that no evidence supported a finding that he met the criteria set forth in section 916.13(l)(a). We agree.

This court’s opinion in Douse reflects that one of the two doctors who examined him concluded that Douse was a candidate for involuntary hospitalization, 930 So.2d at 839, and the doctors had opined that Douse needed treatment that could be provided only through commitment. Id. at 840. In this case, however, the trial court had found before the hearing that Defendant did not qualify for involuntary commitment, and no evidence was presented at the hearing to support, with respect to section 916.13(l)(a), the trial court’s November 17, 2006 written finding that he did.

The State’s response suggests that because Defendant was on conditional release, he was so placed in lieu of involuntary commitment, pursuant to section 916.17. That is not necessarily so. Rule 3.212, Florida Rules of Criminal Procedure, provides that if the court finds a defendant is incompetent to proceed, it has three options. The first is to order treatment, if appropriate and available, which may be done in the community as a condition of release. Fla. R.Crim. P. 3.212(c)(l)i The court’s other options are to order treatment at the custodial facility where the defendant is incarcerated, to order transfer to another facility, or to order commitment, if the provisions of subdivision (c)(3) are met. Fla. R.Crim. P. 3.212(c)(2). Commitment, however, requires that the defendant meet the statutory criteria, Fla. R.Crim. P. 3.212(c)(3)(A) — that is, the criteria of section 916.13(1), Florida Statutes. See also § 916.17(2), Fla. Stat. (2006) (providing that after a hearing on the violation of conditions of release, “the court may modify the release conditions. The court may also order that the defendant be returned to the department if it is found, after the appointment and report of experts, that the person meets the criteria for involuntary commitment under s. 916.13 or s. 916.15 [ ].”) (emphasis added).

Accordingly, we grant the petition and quash the orders on review. The trial court may commit Defendant to the department if it finds, by clear and convincing evidence, that he meets the criteria of section 916.13(1); otherwise, the court may again release Defendant to treatment in the community or order treatment for him in a custodial facility.

Period of time to file motion for rehearing is limited to seven days. If no motion is filed the mandate shall issue immediately-

Petition Granted.

STONE, POLEN and SHAHOOD, JJ., concur.

      . This court in Douse actually found the trial court had only two options: modification of the conditions of release or involuntary commitment to the department for treatment.

      . While this was not raised as an issue by Defendant, we note that the commitment orders provided to this court do not appear to meet the requirement of Florida Rule of Criminal Procedure' 3.212(c)(4), which requires a commitment order to contain, inter alia, copies of the reports of the experts filed pursuant to the order of examination. Fla. R.Crim. P. 3.212(c)(4)(B).

      .Section 916.13(l)(a), Florida Statutes (2006), provides as follows:
      (a) The defendant has a mental illness arid because of the mental illness:
      1. The defendant is manifestly incapable of surviving alone or with the help of willing and responsible family or friends, including available alternative services, and, without treatment, the defendant is likely to suffer from neglect or refuse to care for herself or himself and such neglect or refusal poses a real and present threat of substantial harm to :the defendant's well-being; or
      2. There is a substantial likelihood that in the near future the defendant will inflict serious bodily harm on herself or himself or another person, as evidenced by recent behavior causing, attempting, or threatening such harm[.]

      . This provision applies to involuntary commitment of defendants who have been adjudicated not guilty by reason of insanity and does not pertain to Defendant.

      . If so, the court should attach to the order copies of the reports of the experts filed pur-suárit to the order of exarnination. Fla. R.Crim. P. 3.212(c)(4)(B).


author: PER CURIAM. PER CURIAM.

text:
    Mario TALUCCI, Appellant, v. Sara L. MATTHEWS, as Personal Representative of the Estate of Terence J. Matthews, M.D., Appellees.
    No. 4D05-4557.
    District Court of Appeal of Florida, Fourth District.
    Jan. 24, 2007.
    Rehearing Denied March 21, 2007.

      Donald Feldman of Donald Feldman, P.A., Tamarac, for appellant.
    Beverly Pohl and John Gillespie, Jr., of Broad & Cassel, Fort Lauderdale, for ap-pellee.
   PER CURIAM.

Affirmed.

STONE, FARMER and MAY, JJ., concur. ■

On Motion fob Rehearing and Request fob Written Opinion

PER CURIAM.

The default on liability obtained by plaintiff against defendant in this personal injury, medical malpractice action did not have the effect of making defendant necessarily liable as a matter of law for all damages claimed by plaintiff. For more than a century it has been the law in Florida that a defaulted defendant has the right to contest the amount of unliquidated damages and may offer evidence in mitigation thereof. See Watson v. Seat, 8 Fla. 446 (1859) (default admits nothing more than plaintiffs right to recover -on the cause of action, but defendant has the right to controvert the amount of damages).

This principle has been followed by the courts on several occasions. See, e.g., Russ v. Gilbert, 19 Fla. 54 (1882) (when defendant defaults he confesses right of recovery on cause of action, but he may contest the amount of damages); Wilhelm v. South Indian River Co., 98 Fla. 970, 124 So. 729, 731 (1929) (after default in tort action defendant has right to offer proof and be heard on question of damages); Pan American World Airways v. Gregory, 96 So.2d 669, 672 (Fla. 3d DCA 1957) (“It has long been established that after default in a tort action, the defendant has a right to put in proof and to be heard upon the question of damages.”). The right to contest unliquidated damages in any negligence action encompasses the right to challenge the causal relationship between the damages claimed and the liability established by the default.

Plaintiffs motion for rehearing is denied.

STONE, FARMER and MAY, JJ., concur.


text:
    Michael A. PUSKAC, Appellant, v. STATE of Florida, Appellee.
    No. 4D04-1077.
    District Court of Appeal of Florida, Fourth District.
    Feb. 28, 2007.
    Rehearing Denied April 16, 2007.

      Michael A. Puskac, Arcadia, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   On Remand From The Florida Supreme Court

PER CURIAM.

The supreme court has quashed our decision in Puskac v. State, 872 So.2d 1008 (Fla. 4th DCA 2004), and remanded for reconsideration. State v. Puskac, 946 So.2d 952 (Fla.2006). The court required that we review the issue under State v. Richardson, 915 So.2d 86 (Fla.2005).

Puskac sought relief under rule 3.850 challenging his habitual offender sentence. Puskac claimed the trial court could not use a probation sentence as a predicate for the enhanced sentence. The trial court denied relief. In accordance with our pri- or rulings, and noting conflict, we reversed. Richardson v. State, 884 So.2d 950 (Fla. 4th DCA 2003), supplemented on reh’g, 884 So.2d 950 (Fla. 4th DCA 2004).

Upon review of State v. Richardson, 915 So.2d 86 (Fla.2005), we now affirm the summary denial. Puskac admitted that the sole issue for review was whether a probation sentence can be a sentence for purposes of , habitual offender enhancements. The supreme court clarified the conflict between districts by declaring a sentence of probation is a sentence within the meaning of the habitual offender sentencing statutes. Puskac’s claim of error must be denied.

Affirmed.

WARNER, FARMER and TAYLOR, JJ., concur.


text:
    Maykel Omar PERDOMO, Appellant, v. The STATE of Florida, Appellee.
    No. 3D06-594.
    District Court of Appeal of Florida, Third District.
    March 7, 2007.
    Martin J. Beguiristain, Miami, for appellant.
    Bill McCollum, Attorney General and Laura Moszer, Assistant Attorney General, for appellee.
    Before COPE, C.J., and CORTIÑAS and ROTHENBERG, JJ.
   PER CURIAM.

We affirm as the defendant’s Motion for Discharge did not, as a matter of law, constitute a “Notice of Expiration of Speedy Trial Time” as contemplated by Florida Rule of Criminal Procedure 3.191(p)(2). Clark v. State, 698 So.2d 1274, 1275 (Fla. 3d DCA 1997).

Affirmed.


text:
    Anthony L. SCHILLER, Petitioner, v. STATE of Florida, Respondent.
    No. 1D07-0721.
    District Court of Appeal of Florida, First District.
    April 2, 2007.
    Rehearing Denied June 5, 2007.
    Anthony L. Schiller, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

KAHN, POLSTON, and THOMAS, JJ., concur.


text:
    John FENTON, Petitioner, v. STATE of Florida, and Ken Jenne, Sheriff, Broward County, Respondents.
    No. 4D07-1550.
    District Court of Appeal of Florida, Fourth District.
    April 27, 2007.
    Howard Finkelstein, Public Defender, and Joseph R. Chloupek, Assistant Public Defender, Ft. Lauderdale, for petitioner.
    Bill McCollum, Attorney General, Tallahassee, and Thomas A. Palmer, Assistant Attorney General, West Palm Beach, for respondent State of Florida.
   PER CURIAM.

John Fenton petitions this court for a writ of habeas corpus to review a circuit court order sua sponte increasing his bond from $500.00 to $5,000.00. We grant the petition.

The record does not reflect whether the information the court relied on in increasing Fenton’s bond was new information that was not considered by the first appearance judge who set bond. “The State has the burden of proving that there is a change in circumstances or new information that warrants the increase or revocation of bond.” Goelz v. Bradshaw, 906 So.2d 1234, 1235 (Fla. 4th DCA 2005). In addition, the state acknowledges that Fen-ton is entitled to notice under Florida Rule of Criminal Procedure 3.131(d)(2) before bond is increased.

The circuit court’s order is quashed. Our decision is without prejudice for the state to move to modify bond on remand.

STEVENSON, C.J., STONE and HAZOURI, JJ., concur.


author: MAY, J.

text:
    Frank PIACITELLI, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-3562.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.
    Frank Piacitelli, Fort Lauderdale, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Melynda L. Melear, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals an order summarily denying his motion to correct illegal sentence, filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure, and his subsequent motion for rehearing. He argues that the imposition of a PRR sentence consecutive to an un-enhanced sentence for another crime arising out of the same criminal episode constitutes an illegal sentence. We agree and reverse.

The State charged the defendant with first degree murder with a firearm, and attempted first degree murder with a firearm of a second victim. The jury convicted him of both counts as charged. The jury found the defendant actually possessed and discharged a firearm, but did not inflict death as a result of discharging a firearm as to count I. With regard to count II, the jury found the defendant actually possessed and discharged a firearm, and inflicted serious bodily injury as a result of discharging a firearm. The trial court sentenced him to life in prison with a twenty-year mandatory minimum on count I and to a consecutive term of life as a Prison Releasee Reoffender (PRR) on count II, with a twenty-year mandatory minimum.

The defendant filed a pro se rule 3.800(a) motion to correct illegal sentence, in which he claimed that his sentence was illegal because the trial court imposed an enhanced sentence on count II as a PRR consecutively to the un-enhanced sentence on count I even though both offenses arose from the same criminal episode. The trial court summarily denied the motion for the reasons contained in the State’s response and denied the defendant’s subsequent motion for rehearing.

The defendant argues that an enhanced PRR sentence imposed consecutively to an un-enhanced sentence for another count arising out of the same criminal episode constitutes an illegal sentence. We agree.

Recently, this court addressed a similar issue in Pledger v. State, 944 So.2d 1135 (Fla. 4th DCA 2006). In Pledger, we reversed the trial court’s imposition of consecutive PRR sentences for convictions that arose out of the same criminal episode. We then remanded the case for re-sentencing.

We are aware that the Fifth District has taken the position that PRR sentencing does not constitute a sentence “enhancement,” thereby avoiding the concerns of Hale v. State, 630 So.2d 521 (Fla.1993). See Reeves v. State, 920 So.2d 724 (Fla. 5th DCA) (affirming imposition of a single PRR sentence followed by consecutive criminal punishment code sentences for counts arising out of a single criminal episode), review granted, 933 So.2d 521 (Fla. 2006).

This court, however, has consistently applied Hale to PRR sentencing. See, e.g., McIntyre v. State, 757 So.2d 1288 (Fla. 4th DCA) (reversing sentences for counts II and III where PRR life sentences for counts II and III were run consecutive to non-PRR sentence of life without parole), review dismissed, 767 So.2d 458 (Fla. 2000); Philmore v. State, 760 So.2d 1063 (Fla. 4th DCA 2000). We reach the same result here and certify conflict with Reeves.

Reversed and Remanded for Re-Sentencing.

STEVENSON, C.J., and TAYLOR, J., concur.


author: WARNER, J.

text:
    Thomas A. LEAHY, d/b/a Far East Accents, Appellant, v. James H. BATMASIAN, etc., et al., Appellees.
    No. 4D06-245.
    District Court of Appeal of Florida, Fourth District.
    May 2, 2007.
    Rehearing Denied July 13, 2007.

      Nancy Little Hoffman of Nancy Little Hoffman, P.A., Pompano Beach, for appellant.

      Alexander D. Varkas, Robert A. Swee-tapple and Peter Sosin of Sweetapple, Broeker, Varkas, Feltman & Sosin, Boca Raton, for appellees.
   WARNER, J.

In this complicated landlord-tenant proceeding, the trial court granted summary judgment to the landlord on the tenant’s complaint for damages for wrongful eviction. The court found that the complaint was barred by res judicata, because the tenant had not raised the issue in prior proceedings where the landlord had sued for eviction and damages and the tenant counterclaimed for constructive eviction based upon premises defects. We affirm the summary judgment concluding that res judicata bars the present suit.

Appellant Leahy entered into a lease with landlord Batmasian in 1993. When Leahy failed to pay the full amount of the rent claimed in 1994, Batmasian filed suit to evict Leahy and for unpaid rent. Leahy counterclaimed for constructive eviction due to premises defects and fraudulent inducement. Leahy actually vacated the premises shortly after the suit was filed.

The suit for unpaid rent and counterclaim for constructive eviction continued until 1999. When the court compelled Batmasian to produce various financial records at Leahy’s request, Batmasian represented that most of the documents were unrelated to the pending claims, with which Leahy’s counsel agreed. The documents were not produced. In 2001, Bat-masian agreed to dismiss his claim for unpaid rent in return for Leahy’s dismissal of his claim for fraudulent inducement. Leahy’s claim for constructive eviction remained.

Leahy, while unrepresented by counsel, discovered some documents in 2002 which he contended showed that Batmasian had overcharged him on rent. Had rent been calculated properly, he would have been current and not subject to eviction. Based upon this newly discovered evidence, he moved to amend his complaint for the seventh time to add a wrongful eviction claim. During the hearing, the trial court indicated that it would not consider the claim without the filing of the proposed amended complaint, but Batmasian explained that denying on that basis was probably not sustainable. Batmasian then offered other reasons for denying the claim. The trial court entered a simple denial of the motion without elaborating a reason.

Shortly thereafter, the court held a trial on Leahy’s complaint of constructive eviction due to premises defects. It found for Batmasian and entered final judgment in his favor. Leahy did not appeal the final judgment.

Instead, Leahy filed a new complaint alleging a cause of action for breach of the contract based upon breach of the covenant of quiet enjoyment through wrongful eviction. The complaint followed the allegations of his motion to amend his claim in the prior suit and alleged that the documents showing the overcharging of rent had been “fraudulently concealed” from him by Batmasian in the first lawsuit, and he had only discovered them by other means in 2002. He claimed damages as a result of Batmasian’s overcharging. The damages claimed were essentially the same as those claimed in the prior suit.

Batmasian answered and raised the following affirmative defenses: (1) the claims were precluded by the expiration of the statute of limitations, (2) the claims were barred by res judicata, and (3) the claims should have been asserted as compulsory counterclaims in the prior action. He then moved for summary judgment, which the trial court granted on various bases, including res judicata.

Leahy then moved to amend his claims again to assert claims of fraud in the inducement of the contract and negligent misrepresentation. The court denied these claims as being compulsory in the prior action. It then entered final summary judgment on all claims. From these orders, Leahy appeals.

Leahy contends res judicata does not apply because there was no identity in the causes of action. “For res judicata to apply, there must be four identities: (1) identity of thing sued for, (2) identity of cause of action, (3) identity of persons and parties to the action, and (4) identity of quality or capacity of persons for or against whom the claim is made.” Burns v. DaimlerChrysler Corp., 914 So.2d 451, 458 (Fla. 4th DCA 2005). Identity of the causes of action is established when “ ‘the facts or evidence necessary to maintain the suit are the same in both actions.’ ” Tyson v. Viacom, Inc., 890 So.2d 1205, 1209 (Fla. 4th DCA 2005)(quoting Albrecht v. State, 444 So.2d 8, 12 (Fla.1984)).

Contrary to Leahy’s contention, in this case there is an identity of the causes of action. Both the 1994 action and the 2004 action were causes of action for breach of the same lease, resulting in the same damages. The difference between the two actions consisted of the different terms of the contract and underlying facts on which each alleged breach was based. However, the single act upon which damages were predicated was Leahy’s wrongful eviction.

Courts have often relied on the following statement regarding the application of res judicata:

A judgment on the merits rendered in a former suit between the same parties or their privies, upon the same cause of action, by a court of competent jurisdiction, is conclusive not only as to every matter which was offered and received to sustain or defeat the claim, but as to every other matter which might with propriety have been litigated and determined in that action.

Kimbrell v. Paige, 448 So.2d 1009, 1012 (Fla.1984) (quoting Wade v. Clower, 94 Fla. 817, 114 So. 548, 552 (1927)). However, as Judge Gross noted in his concurring opinion in Tyson, the supreme court actually has a more narrow view of what that means. He noted that in Hay v. Salisbury, 92 Fla. 446, 109 So. 617, 621 (1926), the supreme court explained this area of law:

The test of the identity of causes of action, for the purpose of determining the question of res adjudicata, is the identity of the facts essential to the maintenance of the suits.
When the second suit is between the same parties as the first and on the same cause of action, the judgment in the former is conclusive in the latter, not only as to every question which was decided, but also as to every other matter which the parties might have litigated and had determined within the issues as they were made or tendered by the pleadings or as incident to or essentially connected with the subject-matter of the litigation, whether the same, as a matter of fact, were or were not considered. As to such matters a new suit on the same cause of action cannot be maintained between the same parties. This rule applies to every question falling within the purview of the original action, both in respect to matters of claim and defense, which could have been presented by the exercise of due diligence.

Id. (citations omitted) (emphasis added). Thus, the question which must be asked to determine the application of res judicata is whether the essential elements of the cause of action, and thus the ultimate facts to be proved, are the same. For instance, in Woodson v. Woodson, 89 So.2d 665 (Fla. 1956), a widow first filed suit for wrongful death of her husband on a theory of gross negligence of the driver. After that suit failed, she then filed a wrongful death action against the same defendant, alleging a private carrier for hire relationship and simple negligence. The court held that res judicata, barred the second suit. Both suits were for wrongful death of the husband, and required the widow to bring all theories of recovery in the first suit, even though the specific facts necessary to prove one theory of recovery were different than the other theory.

We followed this rationale in Signo v. Florida Farm Bureau Casualty Insurance Co., 454 So.2d 3 (Fla. 4th DCA 1984). There, the plaintiff sued the defendants for damages due to an automobile accident. She alleged that the defendants were negligent in hiring the driver of the vehicle which hit her. After the trial court granted summary judgment which was affirmed on appeal, the plaintiff brought a new claim that the same defendants were bail-ees of the vehicle and liable for its negligent operation. Our court held that the second action was barred by res judicata, as the original cause of action was for negligence and the second suit was merely a different theory of negligence.

Similarly, Leahy sued Batmasian for breach of contract and alleged damages. The second suit also alleged a breach of the same contract, resulting in the eviction of Leahy, and alleged the same damages. Just as in Woodson and Signo, the cause of action and theory of recovery was the same — breach of contract. The essential elements of both causes of action were 1) the existence of a contract; 2) breach of that contract through Leahy’s wrongful eviction; and 3) damages. The fact that the method of breach asserted is different in each complaint is akin to different theories of negligence which do not escape the bar of the doctrine of res judicata. Therefore the second complaint is barred by the doctrine of res judicata.

In Tyson we explained that our result in Signo relied more on the principle against splitting a cause of action, an aspect of res judicata. That principle was explained in Mims v. Reid, 98 So.2d 498 (Fla.1957):

The law does not permit the owner of a single or entire cause of action or an entire indivisible demand to divide or split that cause of action so as to make it the subject of several actions, without the consent of the defendant. All damages sustained or accruing to one as a result of a single wrongful act must be claimed or recovered in one action or not at all. The law presumes that a single cause of action can be tried and determined in one suit, and will not permit the plaintiff to maintain more than one action against the same party for the same cause. This rule is founded on the plainest and most substantial justice— namely, that litigation should have an end, and that no person should be unnecessarily harassed with a multiplicity of suits. If the first suit is effective and available, and affords ample remedy to the plaintiff, the second suit is unnecessary and consequently vexatious. The rule against splitting causes of action is closely related to the doctrine of res judicata in this respect.

Id. at 500-01 (citation omitted). As Judge Gross noted in his concurring opinion in Tyson, “For the purpose of applying the rule against splitting a cause of action, ‘cause of action’ is defined as ‘the right which a party has to institute a judicial proceeding’ ” 890 So.2d at 1220-21 (quoting Shearn v. Orlando Funeral Home, Inc., 88 So.2d 591, 593 (Fla.1956)). Here, that right was a breach of contract action. Thus, whether termed res judicata or splitting a cause of action, those doctrines would bar recovery for the breach of contract in the second suit.

To overcome the bar, Leahy asserts that Batmasian is precluded from asserting res judicata or splitting a cause of action by the doctrine of judicial estop-pel, because Batmasian’s attorney objected to the assertion of the claim in the prior proceeding. In Blumberg v. USAA Casualty Insurance Co., 790 So.2d 1061 (Fla. 2001), the supreme court discussed the doctrine of judicial estoppel, quoting from Chase & Co. v. Little, 116 Fla. 667, 156 So. 609, 610 (1934):

A claim made or position taken in a former action or judicial proceeding will, in general, estop the party to make an inconsistent claim or to take a conflicting position in a subsequent action or judicial proceeding to the prejudice of the adverse party.
In order to work an estoppel, the position assumed in the former trial must have been successfully maintained. In proceedings terminating in a judgment, the positions must be clearly inconsistent, the parties must be the same and the same questions must be involved. So, the party claiming the estoppel must have been misled and have changed his position; and an estoppel is not raised by conduct of one party to a suit, unless by reason thereof the other party has been so placed as to make it to act in reliance upon it unjust to him to allow that first party to subsequently change his position. There can be no estoppel where both parties are equally in possession of all the facts pertaining to the matter relied on as an estoppel; where the conduct relied on to create the es-toppel was caused by the act of the party claiming the estoppel, or where the positions taken involved solely a question of law.

Id. at 1066. See also Grau v. Provident Life & Accident Ins. Co., 899 So.2d 396 (Fla. 4th DCA 2005).

Leahy argues that Batmasian’s argument against the motion to amend to assert the new breach of contract claim in the prior suit prevents him from asserting the bar of res judicata in this suit. Just before trial in the prior suit, Leahy moved to amend his counterclaim for breach of contract to assert his newly discovered claim. This was the seventh time he sought to amend his counterclaim. Without first hearing from Batmasian, the trial court stated that it would deny the claim because Leahy had not filed a proposed amended complaint. Batmasian asked to be heard and did not rely on the lack of a proposed pleading. Instead, he argued that to allow the amendment would be a classic case of abuse of the amendment process, and the amendment would be futile because the claim was barred by the statute of limitations. Counsel also challenged the allegation that he had fraudulently misrepresented anything in connection with the production of documents. Finally, he asserted that the proposed amendment constituted a different cause of action requiring proof of different facts which should result in denial of the motion to amend. The trial court made little comment at the hearing and entered an order of denial without explanation.

Under the principles set forth in Blum-berg, no judicial estoppel has been proved. While Batmasian did argue to the judge that the causes of action were different in objecting to the amendment, the judge’s simple denial does not mean that Batma-sian was successful on that position. The judge had already announced his intention to deny because no proposed pleading had been filed. Further, Batmasian also argued that the amendment process was being abused. We have often said that Florida’s liberal policy of amendment gradually diminishes as the case proceeds to trial. See, e.g., Noble v. Martin Mem’l Hosp. Ass’n, Inc., 710 So.2d 567 (Fla. 4th DCA 1997). Given that Leahy was asking for the seventh time to amend his pleading just before trial, the trial court may have very well exercised its discretion to deny the motion on that ground. Thus, because we cannot say that Batmasian succeeded in asserting his position as to the cause of action, judicial estoppel does not apply.

In Kellogg v. Fowler, White, Burnett, Hurley, Banick & Strickroot, P.A., 807 So.2d 669 (Fla. 4th DCA 2001), we held that Fowler White could not assert res judicata or estoppel by judgment in a second suit, where it opposed a motion to amend to add the claim in the first suit between the parties. However, in the pri- or suit the firm opposed the motion to amend by claiming that the proposed claim was not yet mature and thus could not be brought in the first suit. It further alleged that res judicata would not bar a subsequent suit. Kellogg is distinguishable from this case. Fowler White’s argument in the prior suit invited the assertion of a second suit because it alleged that the claim was not mature and would not be barred by res judicata. Nowhere in this suit did Batmasian suggest that the claims raised could be asserted in a subsequent suit.

Leahy claims that Batmasian’s counsel misrepresented the relevance of discovery which would have revealed the existence of this new claim, but this does not allow him to file a new lawsuit on this newly discovered evidence. The “fraud” alleged constitutes intrinsic fraud. See Arrieta-Gimenez v. Arrieta-Negron, 551 So.2d 1184 (Fla.1989). Thus, Leahy should have either appealed the first final judgment or moved for relief under Florida Rule of Civil Procedure 1.540(b). He cannot file a separate lawsuit to obtain relief.

For these reasons, we conclude that Le-ahy’s second suit was barred by the doctrines of res judicata or splitting the cause of action, and Batmasian was not judicially estopped from making the argument in this case. We therefore affirm the final summary judgment of the trial court.

Affirmed.

STEVENSON, C.J., and TAYLOR, J., concur.


author: POLSTON, J. KAHN, J.,

text:
    Jim ZINGALE, as Executive Director of the Florida Department of Revenue, an Agency of the State; Wayne Weeks, Clay County Property Appraiser, Appellants, v. The CROSSINGS AT FLEMING ISLAND COMMUNITY DEVELOPMENT DISTRICT, a Unit of Special Purpose Government, and Jimmy Weeks, Tax Collector, Clay County, Florida, Appellees.
    Nos. 1D06-2026, 1D06-2158.
    District Court of Appeal of Florida, First District.
    May 8, 2007.
    Rehearing Denied July 19, 2007.

      Bill McCollum, Attorney General, and Nicholas Bykowsky, Assistant Attorney General, Tallahassee; Larry E. Levy, of The Law Firm, Tallahassee, for Appellants.
    Robert M. Bradley, Jr. of Kopelousos & Bradley, P.A., Orange Park; Don H. Lester, of Lester & Mitchell, P.A., Jacksonville, for Appellees.
   POLSTON, J.

Appellants Wayne Weeks, the Clay County Property Appraiser, and the Florida Department of Revenue, appeal from the trial court’s amended final judgment, after a bench trial, finding several properties owned and operated by appellee, The Crossings at Fleming Island Community Development District, exempt from ad va-lorem taxation for the tax years 2000 through 2002, and ruling that the Appraiser does not have standing to assert that the applicable statute is unconstitutional.

We affirm the trial court’s ruling that the property is exempt under the statutes. However, because we hold that the Appraiser has standing, in his defensive procedural posture of the case, to assert that section 189.403(1), Florida Statutes (1999) (defining a special district as a “municipality” for property tax exemption purposes), is void and in violation of the Florida Constitution, we reverse and remand for the trial court to address the Appraiser’s affirmative defense on this constitutional issue.

I. BACKGROUND

The District filed the complaints for declaratory and injunctive relief against appellants. The District is a community development district (CDD) established in Clay County, Florida by general law, as set forth in Chapter 190, Florida Statutes. Pursuant to such statutes, a CDD, such as the District, is a local and independent unit of special-purpose government, created to manage growth and development across the state, as well as to serve the residential and recreational needs of the citizens. The District, in particular, is a residential community in Clay County, which owns and operates several public recreational facilities.

The properties and facilities at issue in this appeal include (1) The Eagle Harbor Golf Club (“golf course”), encompassing an eighteen-hole course, but excluding the bar, restaurant, and pro shop; (2) the Southern Swim and Tennis Center, including an adult swimming pool, a water slide, a children’s pool, a grilling area, a volleyball court, tennis courts, and a maintenance building; (3) a Northern Swim Center; and finally (4) four pedestrian playgrounds.

The District asserted that a CDD is a municipality, as that term is used in Florida Statutes, and thus these several properties listed are entitled to an ad valorem tax exemption that was improperly denied by the Clay County Property Appraiser. Alternatively, the District asserted that it was entitled to equitable relief, in the form of a tax exemption, because the Appraiser denied the District an ad valorem tax exemption in violation of equal protection, as well as Florida’s uniformity and equality laws.

In response to the complaints for each tax year, the Appraiser raised as his first affirmative defense that section 189.403(1), Florida Statutes, the provision which defines a special district as a “municipality” for property tax exemption purposes, is void and in violation of the Florida Constitution. In response, the District filed a motion to strike this affirmative defense, arguing that the Appraiser is required to presume that legislation is valid, and consequently lacks standing to challenge the constitutionality of section 189.403(1). The trial court granted the District’s motion to strike the affirmative defense.

At the bench trial, the District presented two witnesses: Mr. Thomas Platt, Vice-Chairman of the Board of Supervisors for the District, and Mr. Roger Suggs, the Assistant Property Appraiser for Clay County. Mr. Platt testified that the Crossings at Fleming Island was created as a CDD, a unit of local government to serve Florida’s goals of managing growth, building infrastructure, and providing recreational facilities for the community. He described the general characteristics of the District as follows, (i) that its governing body is a Board of Supervisors, comprised of five elected supervisors, serving four-year terms; (ii) that its supervisors are subject to standard conflict of interest laws and provisions applicable to all public officials; (iii) that its meetings, activities and documents are subject to Florida’s “Government in the Sunshine” laws, such that all meetings must be duly noticed and conducted in public; and finally, (iv) that the Board has the authority to levy non-ad valorem taxes, in the form of special assessments, against the residents of the District.

Mr. Platt also testified about the nature of the specific properties at issue in this case. First, the golf course, though originally developed and run as a private venture, was later purchased by the District and is currently run as a public recreation facility. Members of the public, both residents and non-residents of the District, are charged a single monthly “user fee” for unlimited use and enjoyment of the facilities. The user fee is set by the Board at a level sufficient to pay for the operation and maintenance of the golf facility, as well as to retire the District’s existing debt. Mr. Platt testified that when the Board made its decision to purchase the golf course, it issued municipal bonds to raise the necessary funds. User fees, as well as special assessments against District residents, are used to retire the bonds. The golf course is not a for-profit venture. Regarding the day-to-day management of the golf course, the Board employs East West Partners, a management company, who in turn hires the necessary managers and employees. The management company reports directly to the Board, and is charged with implementing policy as set by the Board.

Mr. Platt also testified about the District’s northern and southern swim centers. These facilities are apparently funded through two sources. District residents pay special assessments levied by the Board, while non-residents pay a yearly “user fee.” Similar to the golf club, the Board never sets the level of the special assessments, nor the user fees, with a profit motive in mind. Finally, Mr. Platt described the four pedestrian playgrounds. The playgrounds, like the swim centers, are funded through special assessments on the residents of the community. Each playground is open and free to the public.

At the conclusion of the trial, the court entered final judgment in favor of the District, holding:

4. The court determines, based on the record in these consolidated cases, that the purposes for which several Properties are used encompass activities that are essential to the health, morals, safety and general welfare of the people within the District. The Properties entitled to exemption are' as follows: the golf course (excluding the bar, restaurant and pro shop); the Southern Swim and Tennis Center; the Northern Swim Center; Country Walk Playground; Harbor Lake Playground; Brookstone Playground; and Pine Lake Playground. The Tax Collector shall refund those ad valorem taxes paid on the exempt Properties in accord with the provisions therefor in Florida law.
5. The court determines, based on the record in these consolidated cases, that the purposes for which the following Properties are used do not encompass activities that are essential to the health, morals, safety and general welfare of the people within the District and are not exempt from taxation: the bar, restaurant and pro shop; a 620 acre Wetlands Conservation Area; the Pine Lake Recreation/Green Belt; the Second Wetlands Conservation Area; the Third Wetlands Conservation Area; the First Pine Lake Retention Pond; and Second Pine Lake Retention Pond.
6. The Court further finds that in the years 2000, 2001, and 2002, the Appraiser acted in a manner contrary to the uniformity and equality requirements of Florida Law by the disparity of treatment of the District’s property in assessment from that of other property of similar character and use owned by other entities in Clay County. This finding of disparate treatment is a separate and independent basis for the relief granted to the District in this Amended Final Judgment.

The Appraiser argues on appeal that the trial court erred by (i) finding that the golf course and Southern Swim and Tennis Center were entitled to ad valorem tax exemption under Florida law, (ii) granting the District’s motion to strike his affirmative defense that section 189.403(1), Florida Statutes (1999) is unconstitutional, and (iii) denying a motion for recusal. The Department of Revenue also argues on appeal that the trial court erred by finding that the property was entitled to ad valo-rem tax exemption, and challenges all of the exemptions.

II. TAX EXEMPT PROPERTY

Section 189.403(1), Florida Statutes (1999), states:

(1) “Special district” means a local unit of special purpose, as opposed to general-purpose, government within a limited boundary, created by general law, special act, local ordinance, or by rule of the Governor and Cabinet. The special purpose or purposes of special districts are implemented by specialized functions and related prescribed powers. For the purpose of s. 196.199(1), special districts shall be treated as municipalities. The term does not include a school district, a community college district, a special improvement district created pursuant to s. 285.17, a municipal service taxing or benefit unit as specified in s. 125.01, or a board which provides electrical service and which is a political subdivision of a municipality or is part of a municipality.

(Emphasis added).

Section 196.199(1), Florida Statutes (1999), the statutory exemption for government property, provides:

(1) Property owned and used by the following governmental units shall be exempt from taxation under the following conditions:
(c) All property of the several political subdivisions and municipalities of this state or of entities created by general or special law and composed entirely of governmental agencies, or property conveyed to a nonprofit corporation which would revert to the governmental agency, which is used for governmental, municipal, or public purposes shall be exempt from ad valorem taxation, except as otherwise provided by law.

(Emphasis added).

The Department of Revenue argues that the Florida Supreme Court, in Florida Department of Revenue v. City of Gainesville, 918 So.2d 250 (Fla.2005), narrowed what should be considered as exempt municipal property. Under that more narrow definition, the Department argues that the trial court erred by treating the District’s golf course, swimming pools, tennis courts, and playgrounds as exempt property. We disagree, and affirm the trial court’s ruling that these properties are exempt.

In Gainesville, the Florida Supreme Court reviewed this court’s decision “holding unconstitutional a law that requires payment by a municipality of ad valorem taxes on property owned and used exclusively by the municipality to provide telecommunications services to the public.” Id. at 252-53. The Court held that “[b]e-cause we conclude that providing telecommunications services does not as a matter of law always serve municipal or public purposes, ad valorem taxation of a municipality’s telecommunications facilities is not facially unconstitutional.” Id. at 253.

We agree with the District that the procedural posture of the case before us is very different than the facial constitutional challenge in Gainesville. Id. at 256 (ruling that “a determination that a statute is facially unconstitutional means that no set of circumstances exists under which the statute would be valid”). The Court, in Gainesville, defined the issue before it:

The facial constitutionality of the statute imposing a tax obligation on municipally owned and operated telecommunications facilities hinges on whether providing two-way telecommunications services to the public always serves “municipal or public purposes” as contemplated in article VII, section 3(a). If so, the property used exclusively by a municipality to provide these services cannot be taxed, and the legislation requiring payment of taxes on the property as a condition of operation is unconstitutional on its face.

Id.

After reviewing Florida’s constitutional history and related cases, the Court concluded that the “ ‘municipal or public purposes’ for which municipally owned property must be exclusively used in article VII, section 3(a) to qualify for an ad valorem tax exemption encompass activities that are essential to the health, morals, safety, and general welfare of the people within the municipality.” Id. at 264. The Court then noted that municipalities traditionally provide parks and opportunity for recreation, but noted that telecommunications services have been historically provided by the private sector. Id. at 265. The Court stated:

[A] municipality, using infrastructure advantages gained from its pre-existing utility operations, may enter a market in which a high level of service and competition already exists without introducing new levels of service, fostering innovation, or encouraging infrastructure investment. If that is the case, the municipal telecommunications company does not provide a service that is essential to the health, morals, safety, and general welfare of the people within the municipality.
Because this is a facial challenge to the constitutionality of legislation taxing municipal use of municipally owned property, we need not determine whether the specific services provided by the City pass this test. As stated above, in a facial constitutional challenge, we determine only whether there is any set of circumstances under which the challenged enactment might be upheld.... We conclude that in a situation in which municipal telecommunications services do not promote any of the goals set forth above from section 364.01, Florida Statutes, for the benefit of the municipal population, property used to provide those services does not serve “municipal or public purposes” and therefore is not exempt from ad valorem taxation under article VII, section 3(a).

Id. at 265-66 (emphasis added) (footnote omitted).

Unlike the Gainesville case, the trial court addressed, by conducting a bench trial, whether the specific services provided by the District are essential to the health, morals, safety, and general welfare of the people. The trial court held, on the evidence including the background facts described above, that the specified properties were used for a proper municipal purpose and therefore exempt. Significantly, the evidence shows that the property is open to the public and is not operated for profit, notwithstanding that it is operated by a management company. Because the property, for exemption purposes, should be treated the same as parks and recreation opportunities traditionally provided by municipalities, which are explicitly recognized as exempt property by the Court in Gainesville, we agree and affirm the trial court’s ruling on that issue. See Sun Ǹ Lake of Sebring Improvement Dist. v. McIntyre, 800 So.2d 715, 723 (Fla. 2d DCA 2001) (recognizing that “[i]t is possible that a golf course or tennis courts, owned by a municipality and held open to the public, and not operated in conjunction with a for-profit business, may serve an exclusively public purpose;” citing Page v. City of Fernandina Beach, 714 So.2d 1070 (Fla. 1st DCA 1998) (holding that operation of marina by city serves public purpose entitling city to tax exemption), and Am. Golf of Detroit v. City of Huntington Woods, 225 Mich.App. 226, 570 N.W.2d 469 (1997) (likening certain golf courses to public parks)).

However, we agree with the Appraiser that the trial court erred by finding as an alternative basis for granting the exemption, that “the Appraiser acted in a manner contrary to the uniformity and equality requirements of Florida Law by the disparity of treatment of the District’s property in assessment from that of other property of similar character and use owned by other entities in Clay County.” There is not competent substantial evidence to show that the District was treated differently from all, or substantially all, similar properties in Clay County. See Deltona Corp. v. Bailey, 336 So.2d 1163, 1167-68 (Fla.1976) (ruling that it is essential to any equal protection claim premised on allegations of non-uniform tax assessments, to show that the subject property was assessed at a value higher than all, or substantially all, similar properties in the county). Therefore, we agree with the Appraiser that the trial court erred by granting an exemption based on the separate and independent ground of disparate treatment, and reverse on this issue.

III. APPRAISER’S STANDING

The trial court held that the Appraiser does not have standing to assert that section 189.403(1) is void and in violation of the Florida Constitution. The Appraiser argues on appeal that he has standing because he may defensively raise the constitutionality of a statute and, alternatively, he may raise the constitutionality of a statute to protect public funds. Because we agree with the Appraiser that he may defensively raise the constitutionality of section 189.403(1), we do not reach the alternative public funds argument.

Although the District concedes that the Appraiser raises the constitutionality of section 189.403(1) in a defensive posture by raising it as an affirmative defense, it argues that the Appraiser nevertheless does not have standing, citing Sun Ǹ Lake and Justice Bell’s specially concurring opinion in Sunset Harbour Condominium, Association v. Robbins, 914 So.2d 925, 933 (Fla. 2005).

In Sun Ñ Lake, the Second District Court of Appeal noted that the property appraiser was raising the constitutionality of section 189.403(1), the same statute at issue in this case, in a defensive posture but declined to find that the appraiser had standing, following and quoting from Turner v. Hillsborough County Aviation Authority, 739 So.2d 175 (Fla. 2d DCA 1999) (“It both defies logic and violates the rule of State ex rel. Atlantic Coast Railway Co. to suggest that Turner can ignore the law by denying an exemption based on his belief that it is unconstitutional and then be allowed to ask the court to approve his disobedience by upholding his denial”). Sun Ǹ Lake, 800 So.2d at 721-22. The Second District Court of Appeal certified conflict on the standing issue with Fuchs v. Robbins, 738 So.2d 338 (Fla. 3d DCA 1998) (holding, en banc, that the property appraiser had standing to defensively raise constitutionality although the appraiser filed the complaint in circuit court). Id. at 722.

The Turner decision, that was followed by the court in Sun Ñ Lake, was reviewed by the Florida Supreme Court, along with the Third District Court of Appeal’s decision in Fuchs. See Fuchs v. Robbins, 818 So.2d 460 (Fla.2002). Procedurally, in both Turner and Fuchs, the property appraiser filed a complaint in circuit court to address the value adjustment board ruling in favor of the taxpayer. The Florida Supreme Court stated:

The initial question presented is whether, in an action filed by a property appraiser seeking review of an adverse decision of the VAB which has overturned the appraiser’s ad valorem tax assessment on a subject property, the appraiser may, within an appeal pursuant to section 194.036, Florida Statutes (1997), challenge the validity of a statute on the basis that such statute is contrary to limitations imposed by the United States Constitution or the Florida Constitution. We conclude that an appraiser may not, in that context, challenge the constitutionality of an applicable valuation statute.

Fuchs v. Robbins, 818 So.2d at 463 (emphasis added). The Court chose to specifically limit its holding to the particular procedural context of the two cases it was reviewing. The Court then went on in its discussion to describe two instances in which the property appraiser may have standing to challenge the constitutionality of a statute. Id. at 464.

After recognizing that, historically, an appraiser cannot initiate an independent action challenging the constitutionality of a statute, the Court recognized two exceptions: (1) if the taxing statute at issue involves the disbursement of public funds, and (2) if the constitutionality is raised as a defense in an action initiated by the taxpayer. Id. at 464. Regarding the defensive posture exception, the Court stated:

The appraiser may also raise such a constitutional defense in an action initiated by the taxpayer challenging a property assessment. See Department of Educ. v. Lewis, 416 So.2d 455, 458 (Fla.1982) (observing that, while state officers “must presume legislation affecting their duties to be valid, and do not have standing to initiate litigation for the purpose of determining otherwise,” because, in such case, they do not “have a sufficiently substantial interest or special injury to allow the court to hear the challenge,” if “the operation of a statute is brought into issue in litiga tion brought by another against a [state officer, the officer] may defensively raise the question of the law’s constitutionality ”).

Id. (emphasis added) (alteration in original). The procedural posture of the Appraiser, in the case at bar, falls squarely within the defensive exception described by the Florida Supreme Court. Because Turner provided the basis for the ruling in Sun ff Lake, and the Florida Supreme Court, subsequent to the ruling in Sun Ñ Lake, reviewed Turner and Fuchs, and explicitly ruled that the Appraiser may bring a constitutional challenge in a defensive posture, we decline to follow Sun Ñ Lake as urged by the District.

In Sunset Harbour Condominium, the property appraiser raised a constitutional challenge as an affirmative defense to a suit initiated by taxpayer Sunset Harbour Condominium Association. 914 So.2d at 927. The Florida Supreme Court held that the Association waived any objection to the property appraiser’s constitutional defense, so the standing issue was not reached by the Court. Id. at 928. However, Justice Bell, in a specially concurring opinion, in which Chief Justice Pariente concurred, wrote an opinion “to clear up confusion” regarding the language quoted above from Fuchs v. Robbins, 818 So.2d 460 (Fla.2002).

Justice Bell opined that “there is no adequate support in our case law for the defensive posture dictum in [Fuchs v. Robbins ] and that such a defense is contrary to our holding in State ex rel. Atlantic Coast Line Railway Co. v. State Board of Equalizers, 84 Fla. 592, 94 So. 681 (1922).” Sunset Harbour Condominium, 914 So.2d at 933 (Bell, J., specially concurring). Justice Bell described his opinion as dictum addressing prior dictum of the Court. Id. at 933 n. 7. Without addressing the merits of Justice Bell’s opinion, we follow the explicit language of the majority’s opinion in Fuchs v. Robbins, quoted above, which provides defensive standing to the property appraiser in this case.

In Fuchs v. Robbins, the Court did not overlook Atlantic Coast Line, relied on by Justice Bell. 818 So.2d at 464 n. 3. The Court cited and quoted from Atlantic Coast Line for the general rule that “every law found upon the statute books is presumptively constitutional until declared otherwise by the courts,” and that “ministerial officers must obey it, until in a proper proceeding its constitutionality is judicially passed upon.” Id. But the Court, in the very next sentence of the opinion, recognized the defensive exception to the general rule for standing for property appraisers. Id. at 464. Accordingly, although respectful of Justice Bell’s specially concurring opinion on the issue, we follow the clear dictates of the majority’s ruling in Fuchs v. Robbins.

Conclusion

The District’s property, at issue on appeal, is exempt under the applicable statutes because section 189.403(1), Florida Statutes (1999), defines a special district as a municipality for property tax exemption purposes, and we agree with the trial court that the purposes of the property encompass activities that are essential to the health, morals, safety and general welfare of the people. Accordingly, we affirm the trial court’s ruling that the property is exempt under the statutes.

We also hold that the Appraiser has standing, in his defensive procedural posture of the case, to assert that section 189.403(1) is unconstitutional. Therefore, we reverse and remand for the trial court to address the Appraiser’s affirmative defense on this constitutional issue.

AFFIRMED in part; REVERSED in part and REMANDED with directions.

BROWNING, C.J., concurs; KAHN, J., concurs in part and dissents in part with written opinion.

KAHN, J.,

concurring in part and dissenting in part.

I would affirm the trial court’s ruling that the Appraiser does not have standing to challenge the constitutionality of section 189.403(1), Florida Statutes. In all other regards, I agree with the majority opinion.

After reviewing the case law, I find that Justice Bell’s concurring opinion in Sunset Harbour Condominium Ass’n is an accurate and persuasive exposition of the law. See Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925, 933-38 (Fla.2005) (Bell, J., specially concurring). I also agree with the holding of the Second District Court of Appeal in Sun Ǹ Lake of Sebring Improvement District v. McIntyre, to like effect. 800 So.2d 715 (Fla. 2d DCA 2001). See also Turner v. Hillsborough County Aviation Auth., 739 So.2d 175 (Fla. 2d DCA 1999) (finding property appraiser lacked standing to challenge constitutionality of section 196.012). Justice Bell’s opinion in Sunset Harbour Condominium Ass’n amply establishes that the so-called defensive posture exception to standing is aberrational and not a controlling principle of Florida law. Sun Ǹ Lakes, like the present case, sufficiently illustrates the shortcomings of an attempt to bolster the defensive posture exception. In Sun Ñ Lakes, as here, the appraiser attempted to avail himself of the defensive posture exception by unilaterally refusing to follow an unequivocal statute passed by the Florida Legislature. 800 So.2d at 719. When the entity entitled to the statutory exemption then sought to enforce the exemption, the appraiser “defended” by raising the constitutionality of section 189.403(1). See id.

Had the Appraiser not unilaterally determined he would not follow the law, hardly a defensive move, no suit would have been brought and no defenses would have been raised. My review of the case law has led me to conclude that the defensive posture exemption, as it would apply on the present facts, is something of an artificial construct that defeats the rule of State ex rel. Atlantic Coastline R. Co. v. State Board of Equalizers, 84 Fla. 592, 94 So. 681 (1922). Accordingly, I would uphold the trial court’s ruling prohibiting the Appraiser from challenging the constitutionality of the statute and would affirm in all other respects.

      . The final judgment was later amended by the trial court to add assessment of costs and interest, which are not at issue in this appeal.

        . We reject the Appraiser’s argument on recu-sal because his motion for recusal was not timely.

      . The Appraiser’s constitutional challenge is that the legislature is without authority to grant the same exemptions to CDDs as municipalities because there is no basis in the Florida Constitution for such treatment. See Sun Ǹ Lake, 800 So.2d at 720-21 (discussing the constitutional challenge to section 189.403(1) and recognizing that the argument may have merit, but not reaching the merits because of its ruling that the appraiser did not have standing).


author: TAYLOR, J.

text:
    Elroy PHILLIPS, Appellant, v. STATE of Florida, Appellee.
    No. 4D06-1273.
    District Court of Appeal of Florida, Fourth District.
    May 23, 2007.
    Rehearing Denied Aug. 1, 2007.

      Elroy Phillips, Atlanta, GA, pro se.
    Bill McCollum, Attorney General, Tallahassee, and Georgina Jimenez-Orosa, Assistant Attorney General, .West Palm Beach, for appellee.
   TAYLOR, J.

Defendant Elroy Phillips appeals an order denying his Rule 3.850 motion for postconviction relief entered after an evi-dentiary hearing. We affirm.

The defendant entered a plea to felony charges in three separate cases filed in the Palm Beach County circuit court: burglary of a dwelling while armed; possession of cocaine; carrying a concealed firearm; possession of a firearm by a convicted felon, and possession of cocaine with intent to sell. He was adjudicated guilty and sentenced to eighteen months’ probation in one case and concurrent one-year terms of probation in the others.

Subsequently, a federal grand jury indicted the defendant on various firearm and drug charges. He was eventually found guilty of those charges. At sentencing, the defendant’s prior state convictions were used to enhance his federal sentence from twenty years to thirty years.

The defendant filed a motion for post-conviction relief pursuant to Florida Rule of Criminal Procedure 3.850. He alleged that his counsel in the state criminal cases told him that his pleas to the charges were “pleas of convenience,” and that they would never be used against him and would be expunged after completion of probation. Defendant claims that this mis-advice caused him to enter into pleas without full knowledge of the consequences and that, had he known that counsel would not or could not expunge his record, he would not have entered the pleas.

The circuit court conducted an evidentia-ry hearing concerning the defendant’s postconviction claim of ineffective assistance of counsel. After the hearing, the court denied the defendant’s motion.

We affirm the trial court’s denial of the defendant’s motion for postconviction relief based on State v. Dickey, 928 So.2d 1193 (Fla.2006). In Dickey, the Florida Supreme Court resolved conflicting opinions among the five district courts on the question of whether a defense counsel’s wrong advice about the potential for sentence enhancement for a future crime constitutes ineffective assistance of counsel. The court “conclude[d] that allegations of affirmative misadvice by trial counsel on the sentence-enhancing consequences of a defendant’s plea for future criminal behavior in an otherwise facially sufficient motion are not cognizable as an ineffective assistance of counsel claim.” Id. at 1198.

Because the defendant’s claim of ineffective assistance of counsel in this case is not cognizable, we affirm the trial court’s order. We also affirm as to all other points raised in this appeal.

Affirmed.

WARNER and SHAHOOD, JJ., concur.