source: Caselaw Access Project

author: MONACO, J.

license: Public Domain

text:
    STATE of Florida, Appellant, v. Darwyn RUSHING, Appellee.
    No. 5D10-2985.
    District Court of Appeal of Florida, Fifth District.
    July 1, 2011.
    Rehearing Denied Aug. 10, 2011.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kellie A. Nielan, Assistant
    Attorney General, Daytona Beach, for Appellant.
    Reed C. Cary, Melbourne, for Appellee,
   MONACO, J.

The State of Florida appeals an order of the trial court granting the motion of the appellee, Darwyn Rushing, to suppress evidence that was seized from his home pursuant to a search warrant. The trial court held that the supporting affidavit did not establish probable cause, that the search was thus unreasonable, and that the good faith exception did not apply. While the question of whether there was probable cause to underpin the search is a close question, we reverse because the good faith exception is applicable and the evidence seized should not have been suppressed.

The good faith exception to the exclusionary rule has been the subject of much judicial labor. We have learned from the United States Supreme Court that the fact that a search may have been unreasonable does not necessarily mean that the exclusionary rule applies. See Illinois v. Gates, 462 U.S. 213, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The exclusionary rule is not an individual right, but rather it is to be applied only where its effect as a deterrent outweighs the substantial cost of letting a guilty party go free. See United States v. Leon, 468 U.S. 897, 908-09, 104 S.Ct. 3405, 82 L.Ed.2d 677 (1984). In a relatively recent pronouncement on the subject the United States Supreme Court has said:

To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system. As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence. The error in this case does not rise to that level.

Herring v. United States, 555 U.S. 135, 129 S.Ct. 695, 702, 172 L.Ed.2d 496 (2009).

As in Herring, the error, if any, in the present case simply does not measure up to conduct that could be called deliberate, reckless or grossly negligent, and we, therefore, conclude that the good faith exception applies. See also State v. Watt, 946 So.2d 108 (Fla. 5th DCA 2007), review denied, 51 So.3d 1156 (Fla.2010). Accordingly, we reverse the order granting suppression and remand for further action consistent with this opinion.

REVERSED and REMANDED.

PALMER and JACOBUS, JJ., concur.


text:
    James FOSTER, Appellant/Cross-Appellee, v. Cynthia L. FOSTER, Appellee/Cross-Appellant.
    No. 5D10-55.
    District Court of Appeal of Florida, Fifth District.
    July 8, 2011.
    Rehearing Denied Aug. 10, 2011.

      Sharon Thomas, of The Law Offices of Sharon Thomas, P.A., Orlando, for Appellant/Cross-Appellee.
    Cynthia Foster, Winter Garden, pro se.
   MONACO, J.

The Former Husband, James Foster, appeals a final judgment dissolving his marriage to the Former Wife, Cynthia Foster, and resolving certain financial issues between the parties. We affirm in all respects except for the disposition of the matters of life insurance on the life of the Former Husband, and the award of attorney’s fees.

The trial court ordered the Former Husband in the amended final judgment to “continue to carry the life insurance policy he now has through his employer and shall retain the [Former Wife] as beneficiary to ensure the payment of his alimony obligation should he meet an untimely demise.” A court clearly has the authority pursuant to sections 61.08(3) and 61.13(l)(c), Florida Statutes (2010), to protect an award of alimony by requiring a party who is ordered to pay alimony or child support to purchase and maintain a life insurance policy to secure those obligations. In order to support the requirement for life insurance, however, the trial court must make specific evidentiary findings regarding the availability and cost of insurance, the obligor’s ability to pay, and the special circumstances that warrant the requirement for security of the obligation. Kotlarz v. Kotlarz, 21 So.3d 892, 893 (Fla. 1st DCA 2009) (citing Plichta v. Plichta, 899 So.2d 1283, 1287 (Fla. 2d DCA 2005); Burnham v. Burnham, 884 So.2d 390, 392 (Fla. 2d DCA 2004)). The failure to make the necessary findings constitutes reversible error. See Schoditsch v. Schoditsch, 888 So.2d 709 (Fla. 1st DCA 2004).

Moreover, “[t]he amount of insurance must be related to the extent of the obligation being secured.” See Burnham, 884 So.2d at 392 (citing Zangari v. Cunningham, 839 So.2d 918, 920 (Fla. 2d DCA 2003)). It is error, for example, for a trial court to require the obligated spouse to purchase a life insurance policy in an amount that exceeds his support obligation. See Beharry v. Drake, 52 So.3d 790, 793 (Fla. 5th DCA 2010). Accordingly, the trial court must specify whether the insurance is security for unpaid support obligations, in which case only a portion of the proceeds are to be distributed to the beneficiaries upon the spouse’s death to minimize economic harm to the family. See Smith v. Smith, 912 So.2d 702, 705 (Fla. 2d DCA 2005).

The trial court in the present case did not make the required findings of fact necessary to underpin the life insurance requirement. We, accordingly, reverse this portion of the judgment and remand for rendition of the necessary findings.

The Former Husband also argues that he was erroneously ordered to pay the Former Wife’s attorney’s fees. We agree that the trial court abused its discretion in this regard, as well.

When considering the fee issue, a trial court must evaluate the financial need of the requesting party and the financial ability of the other party to pay when determining whether or not to award attorney’s fees. Price v. Price, 951 So.2d 55, 59 (Fla. 5th DCA 2007). If the trial court places the parties in relatively equal financial circumstances after the dissolution, then it should not award attorney’s fees. Matajek v. Skowronska, 927 So.2d 981, 988 (Fla. 5th DCA 2006); Derrevere v. Derrevere, 899 So.2d 1152, 1153 (Fla. 4th DCA 2005). That is to say, one party should not have to substantially deplete his or her overall equitable distribution, or cause the inequitable diminution of an alimony award in order to pay attorney’s fees and costs for the other party. See Conlan v. Conlan, 43 So.3d 931, 934 (Fla. 4th DCA 2010); see also Canakaris v. Canakaris, 382 So.2d 1197, 1205 (Fla.1980).

Here, the trial court put the parties into basically equal financial positions. Based on that parity and on the other factors bearing on this determination, we conclude that the court erred in ordering the Former Husband to pay the Former Wife’s attorney’s fees.

Accordingly, we affirm in part, reverse in part, and remand for further consideration by the trial court consistent with this opinion.

AFFIRMED in part, REVERSED in part, and REMANDED.

LAWSON and JACOBUS, JJ., concur.


author: PER CURIAM.

text:
    Kristina L. STACEY, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-678.
    District Court of Appeal of Florida, Fifth District.
    July 8, 2011.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Pamela J. Roller, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

We affirm Appellant’s convictions and sentences for conspiracy to traffic in 200 grams or more of methamphetamine; trafficking in 200 grams or more of methamphetamine; possession of listed chemical; and tampering with physical evidence. On each of these counts the circumstantial proof was sufficient to support the jury verdict. Based upon double jeopardy grounds, we vacate the conviction and sentence for manufacture of methamphetamine. Ford v. State, 749 So.2d 570 (Fla. 5th DCA 2000).

AFFIRMED IN PART; VACATED IN PART.

GRIFFIN, MONACO and TORPY, JJ., concur.


text:
    Kathleen SMITH, Appellant, v. James W.P. SMITH, Appellee.
    No. 5D11-201.
    District Court of Appeal of Florida, Fifth District.
    July 12, 2011.
    Kathleen Smith, Las Vegas, Nevada, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Smith v. Smith, 62 So.3d 672 (Fla. 5th DCA 2011).

MONACO, EVANDER and COHEN, JJ., concur.


author: EVANDER, J.

text:
    H.L.D., JR., A Child, Appellant, v. STATE of Florida, Appellee.
    Nos. 5D09-2698, 5D09-2699, 5D09-2895.
    District Court of Appeal of Florida, Fifth District.
    Aug. 5, 2011.

      James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Robin A. Compton, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   EVANDER, J.

H.L.D. appeals from an order denying his motion for extraordinary relief from a prior order determining him guilty of two offenses and placing him on six months’ probation. He also appeals from subsequent orders finding him guilty of violating his probation in that such orders were dependent on the validity of the initial order placing him on probation. We conclude that H.L.D.’s motion for extraordinary relief should have been granted because the original trial judge had engaged in improper ex parte communications with a court reporter to obtain the court reporter’s assistance in ascertaining the contents of a CD placed in evidence.

The case commenced when the State filed its petition for delinquency alleging, inter alia, that H.L.D. committed the offenses of aggravated stalking of a minor under sixteen years of age and making harassing telephone calls.

At the subsequent adjudicatory hearing, M.M., the alleged victim, testified that H.L.D. had made repeated threatening calls to her over a two-day period. One of the calls was directed to voicemail, “burned” onto a CD, and then given to a law enforcement officer. M.M. testified that during this recorded call, H.L.D. told her not to go to school, to be afraid of him because he was going to hurt her, and that she “might lose [her] life or get jumped or something at school.”

H.L.D. acknowledged that the recorded telephone call was from him. However, he testified that his purpose in calling M.M. was to get M.M.’s boyfriend’s telephone number because, according to H.L.D., M.M.’s boyfriend had just called and threatened him. H.L.D. denied making any other telephone calls to M.M.

The CD was admitted into evidence. After first hearing the recording, the trial judge stated: “I don’t have any idea what is being said on that tape.” After a second playing, the trial judge stated:

It sounded audible, I’m just going to have to listen to it a couple of times.... Actually, I can understand some of the words. I may have to listen to it a few times to try — to be certain about it. And I’ll listen to it as much as I need to.

At the conclusion of closing arguments, the trial judge advised the parties that he was going to take the recording into the court reporter’s office to listen to it, perhaps at a slower speed, “as many times as I need, to understand it or determine that I’m not able to understand it.”

Approximately thirty minutes later, the trial judge returned to the courtroom and advised the parties that after listening to the CD, he believed that it contained threats to both M.M. and her boyfriend. The trial judge then announced that he found M.M.’s testimony regarding repeated phone calls to be credible. H.L.D. was found guilty of aggravated stalking and making harassing telephone calls, and was placed on probation for six months. Adjudication was withheld.

Subsequently, H.L.D. filed a motion for extraordinary relief pursuant to Florida Rule of Juvenile Procedure 8.140, alleging that the trial judge had improperly sought assistance from a court reporter to ascertain the contents of a CD. The motion alleged that defense counsel learned of these actions from the court reporter after the conclusion of the adjudicatory hearing.

The trial judge ultimately recused himself and an evidentiary hearing was held in front of the successor judge. During the evidentiary hearing, the original trial judge testified that after the parties’ closing arguments, he went to the court reporter’s office where he listened to the CD numerous times. There, a court reporter helped the trial judge “understand what was on the recording.” Specifically, the judge testified that “[t]he portions that I could not understand, she [the court reporter] listened to me — she suggested to me what she thought was said, so I listened to them again.... ” When asked whether the court reporter had assisted him in making a ruling in the case, the judge responded:

Well, let me be clear about my answer. It didn’t assist me in making a ruling. It assisted me in understanding what was being said, and it was from understanding what was being said that I made the ruling.

The successor judge denied the motion for extraordinary relief, determining that the original trial judge had not engaged in prohibited ex parte communications with the court reporter because the Code of Judicial Conduct specifically authorizes a judge to consult with court personnel “whose function is to aid the judge in carrying out the judge’s adjudicative responsibilities.” See Fla.Code Jud. Conduct, Canon 3B(7)(c). We respectfully disagree.

In the adjudicatory hearing below, the trial judge had both fact-finding and adjudicative responsibilities. The court reporter assisted the trial judge in his role as the fact-finder. However, a judge may not independently investigate facts outside the presence of the parties except when expressly authorized by law to do so. See Wilson v. Armstrong, 686 So.2d 647 (Fla. 1st DCA 1996) (Canon prohibiting judges from initiating, permitting or considering ex parte communications excludes all ex parte communications in all judicial proceedings except when expressly authorized by law; trial judge engaged in prohibited ex parte communication when he visited estate’s accountant, without beneficiary, to discuss substantive objections to accounting); see also In re Baker, 813 So.2d 36 (Fla.2002) (judge violated Canon 3B(7) when he solicited ex parte communications from computer experts relating to the issue of damages). Here, H.L.D. and M.M. had given conflicting testimony as to the contents of the CD. The court reporter, in essence, provided the trial court with a third interpretation of the contents of the recording. The “evidence” given by the court reporter was done outside the presence of the parties, without their knowledge or consent, and without the opportunity to challenge the court reporter’s statements.

The State argues that there was no misconduct because the trial judge could have requested the court reporter transcribe the CD, which would have required her to interpret its contents. The State’s argument fails, however, because the parties would have been afforded the opportunity to review any transcript prepared and to challenge same. See, e.g., Hadden v. State, 616 So.2d 153 (Fla. 1st DCA 1993); Singleton v. State, 183 So.2d 245 (Fla. 2d DCA 1966). We also reject the State’s suggestion that any error was harmless. The trial court’s order was based, in part, on information received through improper ex parte communications. We cannot conclude that the result would have been the same had the trial judge not received “assistance” from the court reporter. Wilson, 686 So.2d at 649.

On remand, the order finding H.L.D. guilty of aggravated stalking and making harassing telephone calls, and the subsequent orders finding him guilty of violating his probation are to be vacated and a new adjudicatory hearing is to be held.

REVERSED and REMANDED.

SAWAYA and TORPY, JJ., concur.

      . § 784.048(5), Fla. Stat. (2008).

      . § 365.16(l)(b), (d), Fla. Stat. (2008).

      . Rule 8.140. Extraordinary Relief.
      (a) Basis. On motion and upon such terms as are just, the court may relieve a party or the party’s legal representative from an order, judgment, or proceeding for the following reasons:
      (1) Mistake, inadvertence, surprise, or excusable neglect.
      (2) Newly discovered evidence which by due diligence could not have been discovered in time to move for rehearing.
      (3) Fraud (intrinsic or extrinsic), misrepresentation, or other misconduct of any other party.
      (4) That the order or judgment is void.

      . Canon 3B(7) provides:
      (7) A judge shall accord to every person who has a legal interest in a proceeding, or that person’s lawyer, the right to be heard according to law. A judge shall not initiate, permit, or consider ex parte communications, or consider other communications made to the judge outside the presence of the parties concerning a pending or impending proceeding except that:
      (a) Where circumstances require, ex parte communications for scheduling, administrative purposes, or emergencies that do not deal with substantive matters or issues on the merits are authorized, provided:
      (i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result of the ex parte communication, and
      (ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.
      (b) A judge may obtain the advice of a disinterested expert on the law applicable to a proceeding before the judge if the judge gives notice to the parties of the person consulted and the substance of the advice and affords the parties reasonable opportunity to respond.
      (c) A judge may consult with other judges or with court personnel whose function is to aid the judge in carrying out the judge's adjudicative responsibilities.
      (d) A judge may, with the consent of the parties, confer separately with the parties and their lawyers in an effort to mediate or settle matters pending before the judge.
      (e) A judge may initiate or consider any ex parte communications when expressly authorized by law to do so.

      . It is unnecessary to direct that the case be reassigned because the original trial judge has already entered an order of recusal. We find no merit to the second issue raised on appeal by H.L.D.


text:
    Cassandra Shedirica GARVIN, Appellant, v. STATE of Florida, Appellee.
    No. 5D11-418.
    District Court of Appeal of Florida, Fifth District.
    Aug. 5, 2011.
    James S. Purdy, Public Defender, and Robert E. Wildridge, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ann M. Phillips, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   PER CURIAM.

Cassandra Garvin appeals the denial of her motion to withdraw plea. Originally charged with a felony, Garvin pled guilty and was sentenced on a misdemeanor battery charge. We affirm without discussion. See Williams v. State, 316 So.2d 267 (Fla.1975). In our review, however, we noted a scrivener’s error in the judgment. The trial court agreed to a withhold of adjudication; however, the judgment reflected an adjudication of guilt. Therefore, we remand for correction of that scrivener’s error.

AFFIRMED; REMANDED for correction of scrivener’s error.

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


text:
    William Earl JACOBS, Jr., Petitioner, v. STATE of Florida, Respondent.
    No. 5D11-1974.
    District Court of Appeal of Florida, Fifth District.
    Aug. 5, 2011.
    William E. Jacobs, Jr., Lake Butler, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Respondent.
   PER CURIAM.

The petition for belated appeal is granted. A copy of this opinion will be filed with the lower court and be treated as the notice of appeal from the order denying the motion for post-conviction relief in Case No. 08-32394-CFAES in the Circuit Court in and for Volusia County. See Fla. R.App. P. 9.141(c)(5)(D).

PETITION GRANTED.

SAWAYA, LAWSON and COHEN, JJ., concur.


text:
    Ralph CARPENTER, Appellant, v. Brenda CARPENTER, Appellee.
    No. 5D10-2378.
    District Court of Appeal of Florida, Fifth District.
    Aug. 9, 2011.
    Robyn J. Silverman, of Diana Figueroa, P.A., Melbourne, for Appellant.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Applegate v. Barnett Bank, 377 So.2d 1150 (Fla.1979).

ORFINGER, C.J., GRIFFIN and COHEN, JJ., concur.


author: EMAS, J.

text:
    Alba FITO, Horizon General Investments, LLC, Caguy Investment Group, LLC, and 51 W. Shore, LLC, Appellants, v. ATTORNEYS’ TITLE INSURANCE FUND, INC., a Florida corporation, Appellee.
    No. 3D10-1737.
    District Court of Appeal of Florida, Third District.
    Aug. 10, 2011.
    Rehearing Denied April 3, 2012.

      Victor Gutierrez, for appellants.
    Cohen Fox, and Mario M. Ruiz, Miami, and Leonard C. Atkins, IV, for appellee.
    Before SHEPHERD, LAGOA, and EMAS, JJ.
   EMAS, J.

Alba Fito (“Fito”), Horizon General Investments, LLC (“Horizon”), Caguy Investment Group, LLC, and 51 W. Shore, LLC (collectively “appellants”) appeal a final order denying appellants’ motion to alter a final judgment in favor of Attorneys’ Title Insurance Fund, Inc. (“Attorney’s Title”). Because Attorneys’ Title failed to establish its claim for unjust enrichment, we reverse with directions to enter judgment for appellants.

FACTS AND BACKGROUND

Viewing the evidence in a light most favorable to the final judgment, the evidence presented at the non-jury trial established the following:

Attorneys’ Title is a licensed title insurer in Florida. National Title Services, Inc. (“National Title”) conducts real estate closings. National Title acted as an agent of Attorneys’ Title for the purpose of issuing title insurance commitments, policies and endorsements that were underwritten by Attorneys’ Title in connection with the closings.

Fito is neither a real estate broker nor a lender, yet she utilized National Title to orchestrate several real estate transactions, including two properties located in Coral Gables and one in the Brickell area. Fito received significant proceeds from these three transactions, and the proceeds from these transactions were wired directly from National Title to Horizon, an entity owned by Fito. Attorneys’ Title issued a title insurance policy, a commitment letter and a closing protection letter for each of the transactions.

The closing files for each of the transactions contained numerous similarities, including multiple final HUD-1 Settlement Statements for the same property. The seller would receive one HUD-1 containing a particular amount for the sale of his property; the lender would receive a different HUD-1 containing a fraudulently inflated amount for the sale of the same property. In reliance on the inflated sales amount, the lender would wire those monies to an escrow account held by National Title. National Title would then distribute those funds to complete the closing. The net difference between the inflated price (i.e., the higher amount provided by the lenders) and the true purchase price (i.e., the lesser amount disbursed to the seller) would be wired from National Title to appellants’ bank accounts. Appellants received approximately $2.35 million as a result of these transactions.

Upon learning of the fraudulent nature of these transactions, the lenders presented claims to Attorneys’ Title. At least three of the four claims pertaining to the transactions were brought under the closing protection letters. Attorneys’ Title subsequently brought suit against appellants, asserting — among other things— that appellants were unjustly enriched at the expense of Attorneys’ Title, innocent homeowners and lenders. At the non-jury trial, Attorneys’ Title established the amount of monies received by appellants. However, Attorneys’ Title introduced no evidence that Attorneys’ Title had paid any claim to any lender, agreed to pay any claim to any lender, or received an assignment of rights or claims from any lender.

At the conclusion of the non-jury trial, the trial court determined that appellants participated in fraudulent real estate transactions and received $2,349,787.27 of escrowed lenders’ funds as a result. The court found that appellants knew the closings were improper, yet actively participated in them. The court further found that the fraudulently inflated sales prices induced the various lenders to fund loans in excess of the values of the property, and that appellants profited unjustly from this fraud. Finally, the court found that the escrowed funds were transferred directly from the escrow account of National Title to appellants’ bank account, and that Attorneys’ Title received a number of claims related to National Title, including claims related to these four transactions.

DISCUSSION AND ANALYSIS

The findings of fact come to us clothed with a presumption of correctness, and these findings will not be disturbed unless appellants can demonstrate that they are clearly erroneous. Tropical Jewelers Inc. v. Bank of America, N.A., 19 So.3d 424 (Fla. 3d DCA 2009). A factual finding made by a trial court in a non-jury trial is clearly erroneous only when there is no substantial evidence to sustain it, it is clearly against the weight of the evidence or it was induced by an erroneous view of the law. In re Donner’s Estate, 364 So.2d 742 (Fla. 3d DCA 1978). We apply a de novo standard to the trial court’s conclusions of law and application of law to the facts. RKR Motors, Inc. v. Associated Uniform Rental & Linen Supply, Inc., 995 So.2d 588 (Fla. 3d DCA 2008).

The elements of a cause of action for unjust enrichment are: (1) plaintiff conferred a benefit upon the defendant, who has knowledge of that benefit; (2) defendant accepts and retains the conferred benefit; and (3) under the circumstances, it would be inequitable for the defendant to retain the benefit without paying for it. N.G.L. Travel Assocs. v. Celebrity Cruises, Inc., 764 So.2d 672 (Fla. 3d DCA 2000).

There is little question that the evidence supported the trial court’s findings that Attorneys’ Title established the second and third elements. The only question is whether Attorney’s Title established the first element: that it was the party who conferred the benefit upon appellants. The evidence at trial established that the funds at issue were provided not by Attorneys’ Title, but by the lenders. At the time of trial, Attorneys’ Title had not expended any funds to appellants. There was no evidence presented to establish that:

— The funds wired to the lenders belonged to Attorneys’ Title;
— Attorneys’ Title paid any claims to any lender for these four transactions;
— Attorneys’ Title processed any claims by any lender for these four transactions;
— Any lender assigned any rights or claims to Attorneys’ Title;
— Attorneys’ Title was subrogated to the lenders’ right to seek the return of the monies provided by the lenders to appellants.

In short, although there was substantial competent evidence to establish that appellants received a benefit conferred, there was no evidence to establish that Attorneys’ Title was the party that conferred such a benefit. “At the core of the law of restitution and unjust enrichment is the principle that a party who has been unjustly enriched at the expense of another is required to make restitution to the other.” Gonzalez v. Eagle Ins. Co., 948 So.2d 1 (Fla. 3d DCA 2006) (emphasis added). The “other,” in the case before us, is not Attorneys’ Title, but the lender in each of the four transactions.

Attorneys’ Title asserts that it was National Title who disbursed the escrowed funds, and that National Title did so as an agent of Attorneys’ Title. While this may be true, it is unavailing. The disbursed funds did not belong to National Title or Attorneys’ Title. Instead, the funds belonged to the lenders, none of whom was involved as plaintiffs in the lawsuit. Absent some evidence that Attorneys’ Title received an assignment of rights from, or stood in the shoes of, the lenders, Attorneys’ Title did not and could not establish that it was the party that conferred the benefit upon appellants.

We recognize that this may appear to be a harsh result, given the substantial competent evidence that appellants engaged in a series of fraudulent transactions and pocketed significant sums of money to which they are not entitled. However, it was not enough for Attorneys’ Title to prove that appellants were unjustly enriched. Attorneys’ Title had to prove that appellants were unjustly enriched by a benefit conferred upon them by Attorneys’ Title. This it failed to do.

Although the theory of unjust enrichment is equitable in nature, Bowleg v. Bowe, 502 So.2d 71 (Fla. 3d DCA 1987), a trial court cannot do equity unless the plaintiff first establishes his claim. “An equity court will never be thwarted from fashioning a decree that will do right and justice between the parties.” Demorizi v. Demorizi, 851 So.2d 243, 246 (Fla. 3d DCA 2003) (emphasis added). Were we to affirm the judgment, we would merely be shifting the funds from one party clearly undeserving of this windfall (appellants) to another party that, based upon the evidence presented, is also undeserving of this windfall (Attorneys’ Title).

We therefore reverse and remand, with directions to enter judgment for the appellants.

      . National Title was an original party to the lawsuit but has since settled with Attorneys’ Title.

      . The closing protection letter is an agreement between the title insurance underwriter (Attorneys' Title) and the lender, which is relied upon by the lender as to fraud or dishonesty on the part of the title insurance underwriter's agent (National Title).

      . The claim for the fourth transaction was triggered under the mortgagee title insurance policy, which could also render Attorneys’ Title liable to the owner and the lender.


author: SAWAYA, J.

text:
    Joshua CASCANET, Appellant/Cross-Appellee, v. Keri Ann ALLEN and John M. Allen, Appellees/Cross-Appellants.
    No. 5D09-2247.
    District Court of Appeal of Florida, Fifth District.
    Aug. 12, 2011.

      Todd R. Schwartz of Ginsberg & Schwartz, Miami, and Nance, Cacciatore, Hamilton, Barger, Nance, & Cacciatore, Melbourne, for Appellant/Cross-Appellee.
    Turner, Martin & Sommer, P.L., Viera, and Elizabeth K. Russo and Susan S. Lerner, of Russo Appellate Firm, P.A., Miami, for Appellees/Cross-Appellants.
   SAWAYA, J.

Joshua Cascanet appeals the final judgment that awarded him only past medical expenses and lost wages as damages for the back injuries he suffered when his vehicle was hit from behind while he was stopped at a red light. Cascanet argues that (1) the trial court erred in allowing the defendants’ independent medical examiner to render opinions to the jury that were not contained in his report; and (2) the trial court abused its discretion in allowing defense counsel’s improper closing argument because, Cascanet contends, it curried sympathy from the jury for the young defendant.

The accident occurred when Cascanet’s car was hit in the rear by a car driven by Keri Ann Allen and owned by her father, John Allen. Cascanet was only twenty years old at the time and Keri Ann was only eighteen. Keri Ann’s car “subma-rined” under the rear of Cascanet’s car, lifting it, propelling it forward, and then dropping it to the ground. Keri Ann’s car was totaled and Cascanet’s car was damaged, but driveable. Cascanet sought emergency room help later that evening after suffering increased pain in his back and legs. It was discovered that Cascanet had suffered two bulging, herniated discs, with possible inclusion of a third.

Cascanet’s subsequent course of treatment over the next few months included trigger point injections, which, he described, made him feel as though he were on fire. These helped for only two hours or so each time. His doctor referred him to a chiropractor, but those treatments were largely unsuccessful in alleviating his pain. A nerve conduction study, which involved the use of electrodes, was performed. This gave him some relief for a few days. However, the pain worsened and Cascanet was referred to a neurosurgeon, who performed a discogram, which involved inserting needles in each disc without anesthesia. The discogram was excruciatingly painful and recovery from that procedure took several weeks.

Cascanet filed suit against John Allen and his daughter, Keri Ann. John’s liability was purely vicarious, based solely on his ownership of the vehicle Keri Ann was driving. John did not appear at trial. Keri Ann sat alone at the defense table with a lawyer who, unbeknownst to the jury, was hired by Keri Ann and John’s insurance company to defend them both in the suit.

Cascanet testified that he still suffers pain from his injuries. He cannot sit or stand for long periods. He cannot do any strenuous activities and is in bed at 9:00 p.m. each night. He has been unable to continue with his hobbies (all mechanical things related to cars), and he could not continue to work as a technician at Sears because he could not lift. He has been employed for over a year as a supervisor at a Firestone store, where his duties do not require that he lift; he does, however, miss the hands-on work that he so enjoyed. The pain continues and, Cascanet testified, it has worsened over time. The choice of surgery is not one he wants to face, nor is it an option suggested by any of his doctors until he cannot take the pain any longer. He struggles with the pain and, occasionally, his boss will allow him to leave his position at Firestone early.

Cascanet’s treating physician, Dr. Dat-ta, testified. Dr. Datta believes that Cas-canet will probably require surgery eventually because none of the nonsurgical treatments have provided lasting relief. Surgery is not to be entered into lightly, however, and the hope is that it can be postponed until Cascanet comes to him with the statement that he cannot go on like he is. Dr. Datta described that Cas-canet’s symptoms were significant enough to warrant the discography, which is “very painful” and is not undertaken unless surgery is being seriously considered. Performing the discogram is “generally the end of the road” and means that every nonoperative option has been exhausted and the next step is surgery. There was, he testified, a 90% probability that Cas-canet will need the surgery in the next ten years and a 50% probability that he will need the surgery in the next two-to-three years. Once Cascanet has the first surgery, more surgery will be required over time due to adjacent segment syndrome.

After the plaintiff rested his case, the defense presented only one witness — Dr. Lawrence Robinson, an orthopedic surgeon the defendants had hired to perform an independent medical exam (IME) of Cascanet. Dr. Robinson examined Cas-canet on January 23, 2007, and prepared a written report. This report states that “[sjensation was diminished over the an-terolateral thighs bilaterally in a nonder-matomal distribution.... ” It further states that diagnostic studies reveal “disc herniation at the L4-5 level and disc protrusion/herniation at LB-4 also central with some accompanying secondary spinal stenosis.” The report goes on to state:

Based on review of medical records and the patient’s history, Mr. Cascanet’s chronic back and radiating leg complaints likely are causally related to the motor vehicle accident in which he was involved on 9/29/05. He has been through an extensive course of therapy and passive treatment'and there is little further that can be offered from a conservative treatment standpoint. Certainly, completion of a series of lumbar epidural blocks focused on the left L5 nerve root and [sic] might allow some relief though the duration of the effect is unpredictable. He is a large man who is obese and weight loss effort would also be advisable. He should be doing a regular exercise program for lumbar and abdominal strengthening and stretching within his tolerance.
Surgical treatment may eventually be indicated though I also would agree that postponing surgical treatment as long as possible is advisable. He may require lumbar discectomies and/or fusion. The long term prognosis for multi-level dis-cectomies and fusion, however, is guarded especially in a young, large patient. Return to heavy labor would be inadvisable.
I am in agreement with continued conservative care with oral medicines to be taken occasionally for breakthrough pain.

(Emphasis added). Five months after making this written report, Dr. Robinson prepared an addendum based on his review of additional medical records. In that addendum, he states:

At Mr. Cascanet’s most recent office visit with Dr. Datta, his pain was indicated to be chronic and moderately severe. Conservative care with physical therapy had been ineffective, but epidural blocks reportedly had not been completed despite previous discussions to this effect. Mr. Cascanet was not interested in pursuing surgical options. Lumbar epidural blocks were recommended with follow-up after completion of injections.
Based on my review of these additional records, my opinion has not changed. Mr. Cascanet’s back and leg complaints appear to be causally related to the motor vehicle accident in which he was involved on 9/29/05. My treatment recommendations also remain unchanged.

Cascanet’s attorney did not depose Dr. Robinson after receiving these reports, which basically confirmed the diagnosis and prognosis of Cascanet’s doctors. At trial, before Dr. Robinson took the stand, Cascanet’s attorney made a motion in li-mine to ensure that the doctor’s testimony would not include any new opinions. Defense counsel agreed that it would not.

Despite the concession made by defense counsel in the presence of the trial judge that Dr. Robinson would not offer opinions that were not contained in his report, Dr. Robinson was actually allowed to testify that “many studies” have shown that spontaneous recovery of the disc herniations was possible because disc herniations can heal themselves and that Cascanet might never require surgery. He was also allowed to testify, despite the opinion in his written report that attributed Cascanet’s thigh pain to the accident, that there were other possible causes of that pain. These new opinions were discussed and argued to the jury by defense counsel during his closing argument. But that was a portent of what Cascanet was to face from defense counsel’s closing argument.

With the very young Keri Ann sitting alone at the defense table, her attorney was allowed to argue, over Cascanet’s objections, that there was “[n]o need to burden my client with some hundreds of thousands of dollars, if not $1 million worth of money they’re asking for here. Is it fair that she be burdened....” The argument continued:

As I said, we think it’s fair to burden $23,000, whatever the medical bills were, that’s a fair burden to be placed here. Those are the bills in the past, those were the bills that were incurred at the scene to make this gentleman better off. Is it fair for a burden of $210, the 30 hours, six, seven dollars an hour? Absolutely. But what it looks — the term come to mind is, kind of an old football term, “piling on,” you’ve heard.
This system is designed to be fair, the system is designed to be reasonable, designed for justice, not just for him— and, fairly, it is for him, but it’s also justice for my client, also, folks. Absolutely, justice should be for her, because this is, too, her only day to have someone stand before you and try to present to you the evidence in a fair and reasonable way to make this fair and reasonable for what happened on a day that was a bad day for her as well.

The jury retired and returned its verdict in two hours. It awarded Cascanet $23,764.57, which represented his past medical bills and lost wages. It awarded no future economic or non-economic damages and found that Cascanet had not sustained a permanent injury. Cascanet unsuccessfully moved for a new trial on the improper allowance of Dr. Robinson’s testimony revealing previously undisclosed opinions and defense counsel’s improper closing remarks. Cascanet appeals, arguing that these errors deprived him of a fair trial.

We believe the trial court erred when it allowed Dr. Robinson to testify that there were other possible causes of the thigh pain Cascanet continued to feel and that spontaneous recovery of the disc herniations may occur. These opinions were not reflected in Dr. Robinson’s written IME report or his addendum and thus were not properly presented to the jury. Rule 1.360(b), Florida Rules of Civil Procedure, requires that “the party requesting the examination to be made shall deliver to the other party a copy of a detailed written report of the examiner setting out the examiner’s findings, including results of all tests made, diagnosis, and conclusions, with similar reports of all earlier examinations of the same condition.” This rule was promulgated to require disclosure of the opinions of expert witnesses who render IME reports so that the other side may take those opinions into account in preparing to defend or prosecute the case. Office Depot, Inc. v. Miller, 584 So.2d 587, 589-91 (Fla. 4th DCA 1991). Allowing the IME expert to render opinions that are not contained in the report violates the purpose and spirit of the rule. Suarez-Burgos v. Morhaim, 745 So.2d 368 (Fla. 4th DCA 1999), review denied, 767 So.2d 461 (Fla.2000); Office Depot, 584 So.2d 587; see also Tetrault v. Fairchild, 799 So.2d 226 (Fla. 5th DCA 2001).

In Suarez-Burgos, for example, the appellate court agreed with the trial court that a new trial was required because the IME doctor’s trial testimony was contrary to his written report. The court explained:

Rule 1.360(b) requires the disclosure of all opinions and conclusions reached by the expert which the expert plans to testify to at trial. There is no requirement or need for the opposing party to take the deposition of every expert where the party has been provided a report pursuant to the mandatory requirements of Rule 1.360(b). Nor is it necessary to exhaustively question the expert to discover whether the expert has come to other significant opinions not expressed in the report. Indeed, such requirements would fuel the ever increasing cost of litigation. Thus, a litigant who receives a report of the examination conducted under the rule should be confident that the report lists all of the mayor conclusions of the examining expert. See Office Depot, Inc., 584 So.2d at 590. In this case, Dr. Mack opined at trial that the plaintiff did not suffer permanent injury as a result of the accident. This opinion was the most significant opinion in the case. Thus, the plaintiff could claim surprise under Binger v. King Pest Control as a result of Dr. Mack’s failure to include this opinion in his report. See 401 So.2d 1310, 1314 (Fla.1981) (testimony of a witness can be excluded where witness was not disclosed causing surprise to opposing party); see also Department of Health & Rehabilitative Servs. v. J.B., 675 So.2d 241, 244 (Fla. 4th DCA 1996) (recognizing Binger applies equally to situations involving the presentation of an undisclosed change of opinion).
At trial, Dr. Mack for the first time unequivocally testified that the plaintiff received no permanent injury as a result of the accident in question in this suit. Moreover, he admitted that some of his conclusions were based on material he had seen just hours before testifying. We think that this modification could be viewed as either a reversal of prior opinions, or the admission of opinions not contained in the reports furnished pursuant to Rule 1.360(b). In either case, the plaintiff could claim surprise and prejudice, which would support the trial court’s order granting the renewed motion for mistrial. As such, appellants have failed to show that the trial court’s ruling was such a patent abuse of the broad discretion afforded to it that reversal of its ruling is required. We therefore affirm.

Suarez-Burgos, 745 So.2d at 370-72 (emphasis added).

There was nothing in Dr. Robinson’s initial report or his addendum to alert Cascanet that Dr. Robinson would testify that discs heal themselves or that there were other possible causes of the thigh pain. Rather, the doctor’s reports unambiguously confirmed the diagnosis of herniated discs and reflected his opinion that Cascanet’s chronic back and leg pain were “likely causally related” to the car accident. Dr. Robinson even agreed that there was little more that could be offered Cascanet from a conservative treatment standpoint. To Cascanet’s surprise, Dr. Robinson testified at trial that there were other possible sources of the leg pain and that there had been studies showing that herniated discs could be reabsorbed. Just as in Suarez-Burgos, Cascanet’s attorney could not have been prepared to rebut or effectively cross-examine the doctor on his new theory for the leg pain or to attack the “many studies” showing instances of herniated disc re-absorption.

Regarding the closing argument issue, the courts have consistently prohibited a party from currying sympathy from the jury for a favorable verdict and asking a jury to consider the economic status of either party or the potential impact a substantial verdict would have on a defendant. Samuels v. Torres, 29 So.3d 1193 (Fla. 5th DCA 2010); Hollenbeck v. Hooks, 993 So.2d 50, 51 (Fla. 1st DCA 2008), review denied, 8 So.3d 358 (Fla.2009); State Farm Mut. Auto. Ins. Co. v. Revuelta, 901 So.2d 377 (Fla. 3d DCA 2005); Padrino v. Resnick, 615 So.2d 698 (Fla. 3d DCA 1992); Batlemento v. Dove Fountain, Inc., 593 So.2d 234 (Fla. 5th DCA 1991), review denied, 601 So.2d 551 (Fla.1992). While Keri Ann was seated alone at the defense table, as she had been throughout the entire trial, the jury was asked to consider whether it was “fair” to “burden” her with a substantial damage award and that it was “a bad day for her as well.” This was nothing more than an attempt to conjure sympathy for the young defendant to reduce the damage award by improperly asking the jury to weigh the effect a substantial award would have on her while ignoring her absent father, who was also a defendant, and ignoring the fact that there was insurance coverage. This stratagem was successful, as demonstrated by the quick return of the jury verdict finding no permanent injury, when there was undisputed evidence of the two herniated lumbar discs and unchallenged testimony of Cascanet’s continued pain and prospects for the future. The impact this improper argument had on the jury is also readily discernable from the fact that the jury awarded Cascanet almost the exact amount defense counsel said was a fair burden for his client and by the jury’s failure to award any amount for future economic and non-economic damages, despite the uncontradicted evidence that Cascanet will need medical care in the future, including surgery, and Cascanet’s inability to perform the kind of work that he did in the past.

We conclude that the combination of the errors in allowing the IME doctor to testify regarding new opinions not expressed in his report and allowing the improper closing arguments deprived Cascanet of a fair trial. Accordingly, we reverse the judgment under review and remand this case for a new trial.

AFFIRMED in part; REVERSED in part; and REMANDED.

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

      . Keri Ann Allen and her father, John, have cross-appealed. They argue that the court erred in finding Cascanet’s proposal for settlement ambiguous and in refusing to enforce it. We affirm as to that issue.


author: GRIFFIN, J.

text:
    ST. JOHNS RIVER WATER MANAGEMENT DISTRICT, Appellant, v. Frank H. MOLICA and Linda M. Molica, Appellees.
    No. 5D09-2460.
    District Court of Appeal of Florida, Fifth District.
    Aug. 19, 2011.
    Rehearing Denied Sept. 23, 2011.

      William H. Congdon, Palatka, for Appellant.
    Bill J. McCabe, Longwood, and Benjamin Y. Saxon, II, Melbourne, for Appel-lees.
   GRIFFIN, J.

St. Johns River Water Management District [“the District”] appeals a final declaratory judgment in which the trial court decreed that the District lacked authority to take administrative action against Frank H. Molica and Linda M. Molica [“the Molieas”] for the clearing, dredging and filling of wetlands on approximately three and one-half acres of their land, which they use for agriculture. Although the legislative scheme is about as clear as ditch water, we conclude that the District does have that authority. Accordingly, we reverse.

On August 8, 2008, the District filed an administrative complaint and proposed order directed to the Molieas’ activities, which included the following findings of fact and conclusions of law:

FINDINGS OF FACT
1[.] The District, a special taxing district created by Chapter 373, Florida Statutes (FS), is charged with the duty to prevent harm to the water resources of the District, and to administer and enforce Chapter 373, FS, and the rules promulgated thereunder[.]
2[.] The District is specifically authorized to administer and enforce the management and storage of surface waters and the environmental resource permitting programs in Sections 373[.]413 and 373[.]416, FS[.] In part, the District has implemented these statutes through Chapter 40C-4, Florida Administrative Code (FAC)[.]
3[.] Respondents own or control approximately 3[.]47 acres of real property, hereinafter “the property”, located in Brevard County, Floridaf.] The Bre-vard County Property Appraiser identifies the real property as Parcel No[.] 24-36-15-00-00764 0-0000 00 and gives it a location of the southwest quarter of the southeast quarter and part of lot 4 lying east of North Tropical Trail as described in ORB 173 Page 154 of the official records of Brevard County, Florida[.] 4[.] Beginning in 2004, Respondents cleared vegetation on the property, excavated earth on the property, including dredging in a hardwood swamp wetland on the property, and placed fill in the hardwood swamp wetland on the property[.]
5[.] The Respondents undertook land clearing, dredging, and filling in the wetland on the property without having a current, valid permit from the District^] 6[J Rule 40C~4[.]041(2)(b)8, FAC, states that a permit must be obtained from the District prior to construction of a surface water management system which is wholly or partially in a wetland[.]
CONCLUSIONS OF LAW
7[.] The District has jurisdiction over Respondents, the subject property, and the activities thereon described in paragraphs 4 and 5 above[.] Sections 373[.]069(2)(c), 373[.]413, 373[.]414, 373[.]416, FS[J
8[.] The District is authorized to administer and enforce the permitting programs established by section 373[.]413, 327[.]414, and 373[.]416, FS[J The District has implemented these statutes, in part, through Chapter 40C-4, FAC, and the Applicant’s Handbook Management and Storage of Surface Waters (A H), incorporated by reference in rule 40C-4[.]091, FAC[J
9[.] Rule 40C-4[.]041(2)(b)8, FAC, requires that a permit be obtained “prior to the construction [or] operation of a surface water management system which is wholly or partially located in, on, or over any wetland[.]”
10[.] The term “construction is defined in rule 40C-4[.]021(7), FAC, to mean “any activity including land clearing [or] earth moving which will result in the creation of a system[.]” The term “operation” means “to cause or to allow a system to function[.]” Rule 20(11), A H[J
11[.] Rule 40C-4[.]021(27), FAC, defines “surface water management system” or “systems” to include areas of dredging or filling in wetlands[.]
12[.] Respondents’ activities described in paragraphs 4 and 5 constitute the construction and operation of a surface water management system and are prohibited unless authorized by a permit issued by the District[.] Therefore, the Respondents’ activities described in paragraphs 4 and 5 constitute a violation of Part IV of Chapter 373, FS, and Chapter 40C-4, FAC, in that the Respondents did not obtain a permit from the District prior to undertaking the construction or operation^] Sections 373[.]413(1), 373[.]416(1), 373[.]430(l)(b), FS, and rules 40C-4[.]041(1) and (2), FAC[J

The Molicas requested an evidentiary hearing and an administrative law judge entered a notice of hearing, describing the issue to be heard as follows:

ISSUE Whether Respondents should take certain corrective actions for allegedly dredging and filling property in Brevard County, Florida, without a permit, as alleged in the Administrative Complaint and Proposed Order issued on August 8, 2008[.]

The Molicas thereafter filed a complaint in the circuit court seeking declaratory judgment with respect to their rights under Chapter 373, Part IV, Florida Statutes and sought a temporary injunction with respect to the administrative action. After several amendments by the Molicas, the case proceeded on their second amended complaint. There, they presented the issues in dispute as follows:

Issues in Dispute
7[.] Plaintiffs intend, and seek to, utilize the FARM in furtherance of their aforesaid agricultural activities, and said activities include, or may include, without restriction as to location on the property, the building of access roads, reservoirs or cisterns, the building of contours for watering, the changing of the topography of the land, and the planting of palms trees and other vegetation in various locations, all contained within the FARM[.] Defendant has informed Plaintiffs that their farming activities are restricted, and it is Defendant’s contention(s) variously, and they have so stated to Plaintiffs, that Plaintiffs’ property is a “stormwater management system”, or is a “works”, or is not following agricultural practices, or contains a “wetland”, which can change in location or new ones develop over time, and therefore Plaintiffs must apply for, obtain, and pay for, a permit before they can continue with and do the aforementioned activities on the FARM[.] It is Plaintiffs’ belief that they are not required to obtain a permit for those activities on their FARM because it is not within the permitting ambit of Chapter 373, Part IV, FS [.] Plaintiffs also dispute Defendant’s communication to Plaintiffs that once a permit is issued to Plaintiffs, they must allow Defendant to inspect their FARM upon Defendant’s demand to do so, or be subject to a civil or administrative action being brought against them[.] It is Plaintiffs’ belief that Defendant has no authority to cause or require Plaintiffs to submit their privately owned FARM to inspections by Defendant under Chapter 373 Part IV FS[.]

The trial court heard the Molicas’ motion for summary judgment in which they contended that the District lacked authority under the color of Chapter 373, Part IV, Florida Statutes, over their property and could not require them to obtain a permit for clearing, dredging or filling. Specifically, the Molicas contended: “The Defendant’s attempt to exercise permitting authority over Plaintiffs’ property is beyond that which is specifically contained in the statutes and is an impermissible attempt to enlarge the scope of its statutory regulatory authority....” The Molicas asserted: “Plaintiffs ... do not believe that the existence or non existence of a ‘wetland’ or the farming thereon, is the determinative material fact as to the rights of the parties.” The Molicas referenced sections 373.403, 373.406, 373.413, and 373.416, Florida Statutes, and stated:

7[.] The uncontroverted facts show that Plaintiffs’ property does not contain a stormwater management system, dam, impoundment, reservoir, appurtenant work or works, it does not contain any drainage ditches, canals, conduits, channels, culverts, pipes, pumps, open wells, nor any other artificial structure upon it[.] Furthermore, even if a system for water management was present on the property, which there is not, Plaintiffs’ property, would be exempt pursuant to ... the exemptions provided in Section 373[.]406, FS [.]

Two affidavits were filed in support of the motion for summary judgment. In one of the affidavits, Richard Kern, a civil engineer, stated that the Molicas’ “property d[id] not contain a stormwater management system, dam, impoundment, reservoir, appurtenant works, or works as those terms are defined in Section 373[.]403, Florida Statutes, and as those words are commonly used and understood to mean in civil engineering” and that “from a civil engineering standpoint th[e] property, having no artificial structures that extend beyond its boundaries, and using no ground water, is a closed system.” In the other affidavit, Brooks Humphrys, an individual, working in the field of agriculture who designed and managed irrigation and stormwater systems, stated:

7[.] That before the Plaintiffs purchased this property, and since that time, it has contained no stormwater management system, dam, impoundment, reservoir, appurtenant work or works, as those' terms are commonly used and understood to mean in the agricultural industry and as those terms are defined in Section 373[.]403, Florida Statutes ....
8[.] That this property does not contain any artificial structures such as ditches, canals, conduits, channels, culverts, wells or pumps which drain water off of or onto it[.] There are no improvements on this property except for a utility power pole[.] All of Plaintiffs’ farm equipment, including a tractor and implements are kept on this property[.]
9[.] That except for rainfall, there is no water usage or consumption at all with respect to Plaintiffs’ farming activities on this property!.]
10[.] That based upon Affiant’s education, job experience, and observations on this property, it is his opinion and belief that there is no “works” or “system” at all on this property!.] However, if the property is considered to contain a “system” of some sort, that system would fall within the meaning of and be a closed system!.]

The District filed a response to the Moli-cas’ motion for summary judgment, in which it argued in part that it had authority to regulate wetland filling under Chapter 378, Part IV, Florida Statutes, that there existed a dispute of material fact with respect to wetland filling on the Moli-cas’ property, and that it would be improper to grant a declaration on summary judgment that the District did not have regulatory authority with respect to the Molicas’ property. In support of its argument, the District asserted:

Even if Plaintiffs were allowed by this Court to re-litigate their past wetland filling in this proceeding, summary judgment related to the past filling of wetlands must be denied because wetland filling is clearly within the regulatory jurisdiction of [the] [District] under Part IV of Chapter 373[.] By definition, “[t]he terms ‘surface water management system’ or ‘system’ include areas of dredging or filling, as those terms are defined in subsections 373[.]403(13) and 373[.]403(14), FS[J” [Rule] 40C-4[.]021(27), FAC. Thus, the placing of fill in a wetland is the construction of a “surface water management system," and activity that requires a permit under rule UOC-lp[]0⅛1 of the Florida Administrative Code[.] That rule states, in pertinent part
(b) An individual, standard, or general permit is required prior to the construction, alteration, operation, maintenance, abandonment or removal of a surface water management system which
8 Is wholly or partially located in, on, or over any wetland or other surface water, excluding the following activities
Rule 40C-4[.]041(2)(b) of the Florida Administrative Code

(Emphasis added). (Footnotes omitted).

The District filed four affidavits, including the affidavit of Mark Crosby and of Lance David Hart. Mark Crosby, a District engineer, stated in his affidavit:

5. During my inspection of the property on those two days, I did not observe anything that would qualify as a “closed system” as that term is used in Chapter 373 of the Florida Statutes and in the District’s rules.
6. During rainfall events, once the ground is saturated, rainfall runoff is not retained on the Molica property, but instead will flow off of the property and be discharged onto property of others.

Lance David Hart, a District employee whose “primary job duty at the District involve[d] determining the presence and extent of wetlands on real property,” stated in his affidavit that it was his “opinion that fill material ha[d] been placed in wetlands on the Molica property.”

After a hearing, the trial court granted the Molicas’ motion and entered a final declaratory judgment in favor of the Moli-cas. In the final declaratory judgment, the trial court said:

1[.] That Plaintiffs own the property located at 2050 N Tropical Tr[ai]l, Merritt Island, Brevard County, Florida, which consists of approximately three and one half acres, which is legally described as....
2[.] That the Plaintiffs’ property has always been zoned for agricultural use and used for agricultural purposes and no other purpose since at least the 1950’s[.] The Plaintiffs purchased the property in 1990 and have used the property only for agricultural and silvi-culture purposes which include a citrus grove and more recently palm production, and, Plaintiffs have been engaged in those occupations on that land since its purchase by them[.]
3[.] That since the Plaintiffsf] ownership of this property beginning in 1990, it has contained no stormwater management system, dam, impoundment, reservoir, appurtenant works or works, as those terms are commonly used and understood to mean in the agricultural industry and from a civil engineering standpoint, and as defined in Chapter 373, Part IV, Florida Statutes [.]
4[.] That Plaintiffs’ said property contains no pumps, open wells or artificial structures such as ditches, canals, conduits, channels, or culverts which drain water off of or onto it, it uses rainwater only[J
5[.] If a system exists at all on this property, it would meet the criteria of a closed system as provided for in section 373[.]406(3), Florida Statutes, which is an exemption from the provisions of Chapter 373, Part IV, Florida Statutes[.] 6[.] There is no record evidence that establishes that the subject property contains a system or structure which would require the Plaintiffs to obtain a permit within the meaning and purview of Chapter 373, Part IV, Florida Statutes, or ever has since its ownership by Plaintiffs[.]
IT IS THEREUPON ADJUDGED AND DECREED AS FOLLOWS
A[.] The Defendant lacks authority to take administrative action under Chapter 373, Part IV, Florida Statutes, with respect to the Plaintiffs’ use of this land since the beginning of their ownership to the date of this Order and a Final Judgment rendered pursuant hereto,
B[.] Because of the foregoing findings, the remaining issue with respect to the agricultural use exemption found in section 373[.]406(2), Florida Statutes, is moot, and,
C[.] Jurisdiction is reserved as to attorney’s fees and costs[.]

The District contends that the Molicas were not entitled to summary judgment because (1) it is uncontroverted on the record that wetlands were filled on the Molicas’ property and (2) the filling of the wetlands constituted the construction of a surface water management system that required a permit. The basic issue presented is whether the District exceeded its statutorily delegated authority under Chapter 373, Part IV, Florida Statutes by creating an administrative rule that requires a permit in order to fill a wetland.

The rule at issue is Rule 40C-4.041 of the Florida Administrative Code, which provides in part:

(1) Unless expressly exempt, an individual or general environmental resource permit must be obtained from the District under Chapter 40C-4, 40C^10, 40C-42, 40C^4 or 40C-400, F.A.C., pri- or to the construction, alteration, operation, maintenance, abandonment or removal of any stormwater management system, dam, impoundment, reservoir, appurtenant work or works, including dredging or filling, and for the maintenance and operation of existing agricultural surface water management systems or the construction of new agricultural surface water management systems.
(2) The District issues four types of environmental resource permits: conceptual approval permits, individual permits, standard permits, and general permits.
(b) An individual, standard, or general permit is required prior to the construction, alteration, operation, maintenance, abandonment or removal of a surface water management system which:
8. Is wholly or partially located in, on, or over any wetland or other surface water, excluding the following activities:
a. Filling any ditch that was constructed in uplands and which provides drainage or water conveyance only for areas owned or controlled by the person performing the filling; or
b. Construction and alteration of outfall pipes less than 20 feet in length in wetlands or other surface waters, and associated headwalls, erosion control devices, and energy dissipation structures.

(Emphasis added). Rule 40C-4.041 thus requires a party to obtain a permit for the construction, alteration, operation, maintenance, abandonment, or removal of a surface water management system if the system is wholly or partially located in, on, or over a wetland, and the activity does not fall under the filling of a ditch exception and/or the construction/alteration of outfall pipes exception.

Rule 400^4.021(27) of the Florida Administrative Code defines the term “surface water management system” as follows:

“Surface water management system” or “system” means a stormwater management system, dam, impoundment, reservoir, appurtenant work, or works, or any combination thereof. The terms “surface water management system” or “system” include areas of dredging or filling, as those terms are defined in subsections 378.403(13) and 373.403(14), F.S.

Under rule 40C-4.021(27), a surface water management system includes areas of filling as defined in section 373.403(14), Florida Statutes. Section 373.403(14), Florida Statutes, defines the term “filling” as follows: “ ‘[Falling’ means the deposition, by any means, of materials in surface waters or wetlands.... ” The Molieas’ contention is that there is no statutory authority for the District to regulate the draining and filling of wetlands through the promulgation of rule 40C-4.041.

Chapter 373, Part IV, Florida Statutes addresses the management and storage of surface waters. Section 373.413, Florida Statutes, entitled “Permits for construction or alteration,” provides in part:

(1) Except for the exemptions set forth herein, the governing board or the department may require such permits and impose such reasonable conditions as are necessary to assure that the construction or alteration of any stormwa-ter management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of this part and applicable rules promulgated thereto and will not be harmful to the water resources of the district. The department or the governing board may delineate areas within the district wherein permits may be required.

Similarly, section 373.416, Florida Statutes, entitled “Permits for maintenance or operation,” provides in part:

(1) Except for the exemptions set forth in this part, the governing board or department may require such permits and impose such reasonable conditions as are necessary to assure that the operation or maintenance of any stormwater management system, dam, impoundment, reservoir, appurtenant work, or works will comply with the provisions of this part and applicable rules promulgated thereto, will not be inconsistent with the overall objectives of the district, and will not be harmful to the water resources of the district.

Therefore, pursuant to sections 373.413(1) and 373.416(1), the governing board (the District) may require that a party obtain a permit for the construction, alteration, maintenance, or operation of a stormwater management system, dam, impoundment, reservoir, appurtenant work, or works. The Molicas contend that sections 373.413(1) and 373.416(1) are the only authority within chapter 373, Part IV, for the District to require a permit and that, because dredging and filling is neither the construction, alteration, maintenance or operation of any of the six statutorily referenced items: (1) stormwater, management system, (2) dam, (3) impoundment, (4) reservoir, (5) appurtenant work or (6) works, the District lacks the power to require a permit for dredge and/or fill.

In its motion to dismiss the Molicas’ second amended complaint, the District asserted, in part, that:

Section 373[.]403(5), Florida Statutes, defines the term “works” to mean all artificial structures and other construction that is placed in or across the waters in the state[.]” Section 373[.]019(20), Florida Statutes, defines the term “water” or “waters of the state” to mean “any and all water on or beneath the surface of the ground including natural or artificial watercourses, lakes, ponds, diffused surface water[.]” Section 373[.]019(19), Florida Statutes, defines the term “surface water” to mean “water upon the surface of the earth, whether contained in bounds or diffused[.]” Section 373[.]019(22), Florida Statutes, defines the term “wetlands” to mean “those areas that are inundated or saturated by surface water or groundwater at a frequency and a duration sufficient to support, and or under normal circumstances do support, a prevalence of vegetation typically adopted for life in saturated soils[.]” The long and short of these provisions of the Florida Statutes is that construction in wetlands is regulated by section 373[.]413, Florida Statutes, because wetlands are waters of the state and a “work” is construction in “waters of the state[.]”

Additionally, the District claims the authority, under section 373.414, Florida Statutes, entitled “Additional criteria for activities in surface waters and wetlands,” to require permitting for dredge or fill of wetlands:

(1) As part of an applicant’s demonstration that an activity regulated under this part will not be harmful to the water resources or will not be inconsistent with the overall objectives of the district, the governing board or the department shall require the applicant to provide reasonable assurance that state water quality standards applicable to waters as defined in s. 403.031(13) will not be violated and reasonable assurance that such activity in, on, or over surface waters or wetlands, as delineated in s. 373.421(1), is not contrary to the public interest. However, if such an activity significantly degrades or is within an Outstanding Florida Water, as provided by department rule, the applicant must provide reasonable assurance that the proposed activity will be clearly in the public interest.
(3) It is the intent of the Legislature to provide for the use of certain wetlands as a natural means of stormwater management and to incorporate these waters into comprehensive stormwater management when such use is compatible with the ecological characteristics of such waters and with sound resource management. To accomplish this, the governing board or the department is authorized to establish by rule performance standards for the issuance of permits for the use of certain wetlands for stormwater management. The compliance with such standards creates a presumption that the discharge from the stormwater management system meets state water quality standards.
(7) This section shall not be construed to diminish the jurisdiction or authority granted prior to the effective date of this act to the water management districts or the department pursuant to this part, including their jurisdiction and authority-over isolated wetlands. The provisions of this section shall be deemed supplemental to the existing jurisdiction and authority under this part.
(9)The department and the governing boards, on or before July 1, 1994, shall adopt rules to incorporate the provisions of this section, relying primarily on the existing rules of the department and the water management districts, into the rules governing the management and storage of surface waters. Such rules shall seek to achieve a statewide, coordinated and consistent permitting approach to activities regulated under this part. Variations in permitting criteria in the rules of individual water management districts or the department shall only be provided to address differing physical or natural characteristics. Such rules adopted pursuant to this subsection shall include the special criteria adopted pursuant to s. 403.061(29) and may include the special criteria adopted pursuant to s. 403.061(34). Such rules shall include a provision requiring that a notice of intent to deny or a permit denial based upon this section shall contain an explanation of the reasons for such denial and an explanation, in general terms, of what changes, if any, are necessary to address such reasons for denial. Such rules may establish exemptions and general permits, if such exemptions and general permits do not allow significant adverse impacts to occur individually or cumulatively. Such rules may require submission of proof of financial responsibility which may include the posting of a bond or other form of surety prior to the commencement of construction to provide reasonable assurance that any activity permitted pursuant to this section, including any mitigation for such permitted activity, will be completed in accordance with the terms and conditions of the permit once the construction is commenced. Until rules adopted pursuant to this subsection become effective, existing rules adopted under this part and rules adopted pursuant to the authority of ss. 403.91-403.929 shall be deemed authorized under this part and shall remain in full force and effect. Neither the department nor the governing boards are limited or prohibited from amending any such rules.
(10) The department in consultation with the water management districts by rule shall establish water quality criteria for wetlands, which criteria give appropriate recognition to the water quality of such wetlands in their natural state.
(11)(a) In addition to the statutory exemptions applicable to this part, dredging and filling permitted under rules adopted pursuant to ss. 403.91-403.929, 1984 Supplement to the Florida Statutes 1983, as amended, or exempted from regulation under such rules, shall be exempt from the rules adopted pursuant to subsection (9) if the dredging and filling activity did not require a permit under rules adopted pursuant to this part prior to the effective date of the rules adopted pursuant to subsection (9). The exemption from the rules adopted pursuant to subsection (9) shall extend to:
1. The activities approved by said chapter 403 permit for the term of the permit; or
2. Dredging and filling exempted from regulation under rules adopted pursuant to ss. 403.91-403.929, 1984 Supplement to the Florida Statutes 1983, as amended, which is commenced prior to the effective date of the rules adopted pursuant to subsection (9), is completed within 5 years after the effective date of such rules, and regarding which, at all times during construction, the terms of the dredge and fill exemption continue to be met.
(b) This exemption shall also apply to any modification of such permit which does not constitute a substantial modification. For the purposes of this paragraph, a substantial modification is one which is reasonably expected to lead to substantially different environmental impacts. This exemption shall also apply to a modification which lessens the environmental impact. A modification qualifying for this exemption shall be reviewed under the rules adopted pursuant to ss. 403.91-403.929, 1984 Supplement to the Florida Statutes 1983, as amended, in existence prior to the effective date of the rules adopted under subsection (9).

Under the terms of section 373.414, Florida Statutes, the governing board (the District) is authorized to require a permit applicant to provide reasonable assurances that the activity regulated under Chapter 373, Part IV, for which the permit is sought is not contrary to the public interest if the activity will occur in, on, or over surface waters or wetlands and must adopt rules to satisfy the provisions of the section. Furthermore, the dredging and filling activity that was previously addressed in Chapter 403, Part VIII, Florida Statutes, is now covered in Chapter 373, Part IV.

The Legislature’s transfer of wetlands protection to Chapter 373 and the consolidation of multiple permits, including dredge and fill permits, into a single “environmental resource permit” was apparently designed to be “extremely broad” in scope and to “ ‘capture virtually every type of artificial or natural structure or construction that can be used to connect to, draw water from, drain water into, or be placed across surface water [including] all structures and constructions that can have an effect on surface waters.’ ” Mary Jane Angelo, Charles Lobdell & Tara Boonstra, Exalting the Corporate Form Over Environmental Protection the Corporate Shell Game and the Enforcement of Water Management Law in Florida, 17 J. Land Use & Envtl. L. 89, 94-95 (Fall 2001). (Footnotes omitted).

Contrary to the trial court’s conclusion that the Molicas were entitled to a declaratory judgment that the District lacked authority to take administrative action under Chapter 378, Part IV, with respect to the Molieas’ property, the Legislature did intend to give, and has given, the District the authority under Chapter 373, Part IV, to regulate dredging and filling of wetlands. To that extent, rule 40C-4.041 is not invalid. Whether that power was properly exercised in the case of the Moli-cas’ property, including whether the property qualified as an “exempt closed system” under section 373.406(3), Florida Statutes, are issues for the administrative proceeding.

REVERSED and REMANDED.

COHEN and JACOBUS, JJ., concur.

      . The District likely intended to reference section 373.414, Florida Statutes.

      . This issue should have been decided in a proceeding brought under section 120.56, Florida Statutes (2008), but the claim arguably qualifies for judicial relief pursuant to the narrow exception for actions taken without colorable statutory authority, and the issue was not raised by the District below. See State, Dep't of Revenue v. Brock, 576 So.2d 848 (Fla. 1st DCA 1991). Compare Wexler v. Lepore, 878 So.2d 1276 (Fla. 4th DCA 2004). See also Samoff v. Fla. Dep’t of Highway Safety & Motor Vehicles, 825 So.2d 351, 355 (Fla.2002). At most, however, the court’s scope of review is limited to the question of lack of colorable authority for the District to promulgate the rule at issue.

      . Section 373.403, Florida Statutes provides definitions for terms, providing in pertinent part:
      (1) "Dam” means any artificial or natural barrier, with appurtenant works, raised to obstruct or impound, or which does obstruct or impound, any of the surface waters of the state.
      (2) "Appurtenant works” means any artificial improvements to a dam which might affect the safety of such dam or, when employed, might affect the holding capacity of such dam or of the reservoir or impoundment created by such dam.
      (3) "Impoundment” means any lake, reservoir, pond, or other containment of surface water occupying a bed or depression in the earth’s surface and having a discernible shoreline.
      (4) "Reservoir” means any artificial or natural holding area which contains or will contain the water impounded by a dam.
      (5) "Works” means all artificial structures, including, but not limited to, ditches, canals, conduits, channels, culverts, pipes, and other construction that connects to, draws water from, drains water into, or is placed in or across the waters in the state.
      (6)"Closed system” means any reservoir or works located entirely within agricultural lands owned or controlled by the user and which requires water only for the filling, replenishing, and maintaining the water level thereof.

      (8) “Maintenance” or "repairs” means remedial work of a nature as may affect the safety of any dam, impoundment, reservoir, or appurtenant work or works, but excludes routine custodial maintenance.

      (10) "Stormwater management system” means a system which is designed and constructed or implemented to control discharges which are necessitated by rainfall events, incorporating methods to collect, convey, store, absorb, inhibit, treat, use, or reuse water to prevent or reduce flooding, overdrainage, environmental degradation, and water pollution or otherwise affect the quantity and quality of discharges from the system.

      (13) “Dredging” means excavation, by any means, in surface waters or wetlands, as delineated in s. 373.421(1). It also means the excavation, or creation, of a water body which is, or is to be, connected to surface waters or wetlands, as delineated in s. 373.421(1), directly or via an excavated water body or series of water bodies.
      (14) "Filling” means the deposition, by any means, of materials in surface waters or wetlands, as delineated in s. 373.421(1).

      . The legislature said that its intent was "to transfer the protection of wetlands and the permitting of wetlands impacts encompassed by the Warren S. Henderson Wetlands Protection Act of 1984 to chapter 373, Florida Statutes." Ch. 93-213, § 19, at 2137, Laws of Fla. Specifically, the legislature provided:
      It is the intent of the Legislature to transfer the protection of wetlands and the permitting of wetlands impacts encompassed by the Warren S. Henderson Wetlands Protection Act of 1984 to chapter 373, Florida Statutes. It is the further intent of the Legislature that the Department of Environmental Regulation and the water management districts shall consolidate all permits for activities involving dredging and filling, management and storage of surface waters including stormwater control, and the alteration of mangroves into a single type of permit, which shall be known as an "environmental resource permit.”
      Ch. 93-213, § 19, at 2137, Laws of Fla.; see Bruce Wiener & David Dagon, Wetlands Regulation and Mitigation After the Florida Environmental Reorganization Act of 1993, 8 J. Land Use & Envtl. L. 521, 528-53 (Summer 1993) (providing a useful history of Florida's regulation of activities in wetlands and explaining that “[t]he Reorganization Act consolidate[d] dredge and fill permits, management and storage of surface water permits, and permits for the alteration of mangroves into a single ‘environmental resource permit' ”).


text:
    Anthony McFARR, Appellant, v. Michelle McKEE o/b/o J.M. and J.M., children, Appellee.
    No. 5D10-4341.
    District Court of Appeal of Florida, Fifth District.
    Sept. 2, 2011.
    Tatiana Leo and Christopher H. Morrison, of Pratt & Morrison, P.A., Winter Park, for Appellant.
    R. Patrick Phillips, Orlando, for Appel-lee.
   PER CURIAM.

Anthony McFarr appeals an order denying his motion to dissolve a permanent injunction for protection against sexual violence entered by stipulation in June 2009. We affirm in part and reverse in part.

In his motion to modify or dissolve the injunction, McFarr alleged that there was a substantial change of circumstances and that the permanent injunction was obtained by fraud. He further asserted that at the time that he originally stipulated to the entry of the injunction, he was facing criminal charges arising from the alleged misconduct to which the injunction application pertained, and that the party who sought the injunction had filed a civil case against him. However, he alleged that both the civil and criminal matters had been resolved in his favor.

Section 784.046(10), Florida Statutes (2009), allows the court to modify or dissolve an injunction at any time on the motion of an interested party. Likewise, Florida Rule of Family Procedure 12.540 allows a final injunction to be set aside under specified circumstances. In either event, due process requires that McFarr be given an opportunity for a hearing. The trial court did conduct a hearing regarding McFarr’s allegations of fraud, but summarily denied his motion as it pertained to his claim that circumstances had changed. We affirm the trial court’s order insofar as it relates to the fraud allegation. However, due process requires that the trial court afford McFarr a meaningful opportunity to be heard on the remaining claim. See Kugler v. Joosten, 58 So.3d 323 (Fla. 1st DCA 2011); Raymonvil v. Lewis, 46 So.3d 139 (Fla. 5th DCA 2010); McCormick v. Shannon, 32 So.3d 787 (Fla. 2d DCA 2010); Colarusso v. Lupetin, 28 So.3d 238 (Fla. 4th DCA 2010).

AFFIRMED in part; REVERSED in part; REMANDED for further procéed-ings.

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


text:
    FOREMOST INSURANCE COMPANY, Appellant, v. D.R. and D.M., Appellees.
    Nos. 5D10-697, 5D10-2733.
    District Court of Appeal of Florida, Fifth District.
    Oct. 21, 2011.
    Rehearing Denied Dec. 2, 2011.
    R. Steven Rawls and Anthony J. Russo of Butler Pappas Weihmuller Katz Craig LLP, Tampa, for Appellant.
    Steven Wingo of Steven Wingo, P.A., Ocala, Stephen A. Marino, Jr., and Danya J. Pincavage of Ver Ploeg & Lumpkin P.A., Miami, for Appellees.
   PER CURIAM.

Appellant challenges a judgment imposing liability under a mobile homeowner’s insurance policy arising from the sexual battery and molestation of D.R., a minor, by the named insured, D.M., who was D.R.’s stepfather at all relevant times. Although Appellant raises several arguments to avoid liability, we need only address its contention that of D.R.’s claims are expressly excluded under the language of the policy. The policy excludes “[cjlaims which are expected or intended by any of you or performed at any of your direction.” All of the causes of action, however labeled, are based upon the factual contention that D.M. had unlawful and inappropriate sexual relations and contact with D.R. These claims are clearly excluded by the terms of the policy. Landis v. Allstate Ins. Co., 546 So.2d 1051 (Fla.1989).

Accordingly, we reverse both the judgment for damages and the separate judgment awarding attorney’s fees.

REVERSED.

TORPY, COHEN and JACOBUS, JJ., concur.

      . We now consolidate these appeals.


author: COHEN, J.

text:
    Jerrail T. BROWN, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-879.
    District Court of Appeal of Florida, Fifth District.
    Oct. 28, 2011.
    James S. Purdy, Public Defender, and Noel A. Pelella, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Douglas T. Squire, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   COHEN, J.

Following a jury trial, Jerrail T. Brown was convicted of attempted voluntary manslaughter, aggravated battery, and aggravated assault. The sole issue he raises on appeal is the propriety of the mandatory minimum sentence imposed on the attempted voluntary manslaughter offense, pursuant to section 775.087(2), Florida Statutes (2007) (the “10-20-Life” statute). The State properly concedes error. Murray v. State, 491 So.2d 1120, 1128 (Fla.1986); Chambers v. State, 975 So.2d 444, 454 (Fla. 2d DCA 2007). Under section 775.087(2), attempted voluntary manslaughter is not an enumerated offense subjecting an offender to its mandatory minimum provisions. Accordingly, we affirm Brown’s convictions but reverse in part and remand with directions to strike the mandatory minimum sentence imposed on the attempted voluntary manslaughter offense, consistent with this opinion.

CONVICTIONS AFFIRMED; REVERSED in part; REMANDED.

GRIFFIN and MONACO, JJ., concur.


text:
    Donald E. HOLCY, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-3437.
    District Court of Appeal of Florida, Fifth District.
    Nov. 1, 2011.
    Rehearing Denied Dec. 2, 2011.
    James S. Purdy, Public Defender, and Thomas J. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Wesley Heidt, Assistant Attorney General, Daytona Beach, for Appel-lee.
   PER CURIAM.

AFFIRMED. See Flagg v. State, 74 So.3d 138 (Fla. 1st DCA 2011).

TORPY, LAWSON and EVANDER, JJ., concur.


text:
    Tina S. PEDERSEN, Appellant, v. UNEMPLOYMENT APPEALS COMMISSION, Appellee.
    No. 5D10-3686.
    District Court of Appeal of Florida, Fifth District.
    Nov. 4, 2011.
    Rehearing Denied Dec. 1, 2011.
    Tina S. Pedersen, South Daytona, pro se.
    Louis A. Gutierrez, Senior Attorney, Unemployment Appeals Commission, Tallahassee, for Appellee.
   PER CURIAM.

Tina Pedersen appeals from the final order of the Unemployment Appeals Commission denying her benefits. We affirm.

Pedersen was terminated from her employment at a physician’s office after a police search of her home revealed samples of medication removed from her place of employment. A hearing was conducted on May 26, 2010. We have no transcript of that hearing. The issue before the appeals referee was whether Pederson appropriated the samples with the implicit knowledge and consent of the employer. The referee rendered a decision the same day, noting conflicting testimony on that issue and resolving the conflict against Pedersen. Then the referee inadvertently reversed the earlier denial of benefits. On September 15, 2010, a corrected decision was entered affirming the denial of benefits.

Although not contained in the court file, Pedersen timely sought review of the September 15th order. On October 20, 2010, the referee’s determination was upheld by the Unemployment Appeals Commission. This appeal followed.

The lack of a record on appeal is fatal to Pedersen’s appeal. See Wolfson v. Unemployment Appeals Comm’n, 649 So.2d 363, 363 (Fla. 5th DCA 1995) (“[Wlhere the thrust of the argument is fact findings made by the referee, the appellant’s failure to include a copy of the transcript, as part of the record on appeal, is fatal.”) (citation omitted).

AFFIRMED.

GRIFFIN, MONACO and COHEN, JJ., concur.


text:
    Harold M. STREET and Ruth G. Street, Appellants, v. ALLIANZ LIFE INSURANCE COMPANY, etc., et al., Appellees.
    No. 5D11-436.
    District Court of Appeal of Florida, Fifth District.
    Nov. 4, 2011.
    Rehearing Denied Dec. 13, 2011.
    Tucker H. Byrd, James S. Byrd, Jr., J. Carlos Real, and David S. Oliver, of Morgan & Morgan, P.A., Orlando, for Appellants.
    Raul A. Cuervo of Jorden Burt LLP, Washington, DC, and Stephan I. Voudris, Michael C. Shue and Lara E. O’Donnell Grillo, of Jórden Burt, LLP, Miami, for Appellee Allianz Life Insurance Company of North America.
    Keith J. Hesse of Carlton Fields, P.A., Orlando, for Appellees John B. Trumbo and Trumbo Capital Management, LLC.
   PER CURIAM.

Harold and Ruth Street appeal a final order that dismissed with prejudice their negligence claim against Allianz Life Insurance Company of North America. Although we agree with the trial court that any negligence claim related to the Streets’ purchase of Allianz deferred annuities prior to May 19, 2006, would be barred by the statute of limitations, we cannot conclude that the Streets would be unable to state a cause of action as to events that arose after that date. On remand, the Streets should be afforded the opportunity to amend their pleadings. See Crow’n v. Chase Home Fin., 41 So.3d 978, 979 (Fla. 5th DCA 2010) (all doubts should be resolved in favor of allowing amendment unless it clearly appears that allowing amendment would prejudice opposing party, privilege to amend has been abused, or amendment would be futile).

REVERSED and REMANDED.

PALMER, LAWSON and EVANDER, JJ., concur.