author: ALTENBERND, Judge.

text:
    DEPARTMENT OF CHILDREN AND FAMILY SERVICES, Appellant/Cross-Appellee, v. Mark CHAPMAN, Individually, and as Personal Representative of the Estate of Gregory Chapman, Deceased, and as Personal Representative of the Estate of Barbara Chapman, Deceased; Kathy Ruff; William Ruff; and Melissa Lagotte, Appellees/Cross-Appellants.
    No. 2D07-4978.
    District Court of Appeal of Florida, Second District.
    April 15, 2009.
    Rehearing Denied May 26, 2009.

      Scot E. Samis of Abbey, Adams, Byel-ick, Kienan, Mueller, Marone & Samis, L.L.P., St. Petersburg, for Appellant/Cross-Appellee.
    Joseph D. Magri of Merkle & Magri, P.A., Tampa, for Appellees/Cross-Appel-lants.
    Bill McCollum, Attorney General; Scott D. Makar, Solicitor General; and Charles B. Upton, II, Deputy Solicitor General, Tallahassee, for Amicus Curiae the State of Florida.
   ALTENBERND, Judge.

The Department of Children and Family Services (DCF) appeals the judgments entered in favor of two families who each claim that a substance abuse counselor licensed by DCF seriously harmed their child. The Chapmans claim that their ten-year-old son committed suicide because of the professional negligence and outrageous misconduct of the counselor, Robert Taylor. The Ruffs claim that their sixteen-year-old daughter suffered mental injuries and severe symptoms of parental alienation due to Mr. Taylor’s misconduct. There is no dispute among the parties that Mr. Taylor’s actions were deplorable and legally actionable and that he should be liable to these families for his extraordinary misconduct.

DCF licensed Mr. Taylor to treat adults with substance abuse problems in 1995. However, DCF did not employ Mr. Taylor or refer the Chapmans or the Ruffs to him for his counseling services. The families maintain that DCF was negligent when licensing him because he submitted false academic credentials and had a prior criminal record in Florida that DCF did not find in its background check. The families maintain that DCF’s negligence continued throughout the 1990s because it failed to adequately investigate complaints about Mr. Taylor, including claims that he was improperly treating minors without a license. The jury found in favor of the families and returned a large verdict against DCF. For purposes of this opinion, we assume that DCF was negligent in licensing Mr. Taylor and that its proper handling of his license would have prevented the suicide of the Chapman’s son and the psychological injuries suffered by everyone in the Ruff household.

The dispositive issue in this case is whether DCF’s statutory duty to license and monitor the activities of substance abuse counselors creates a duty in tort owing to a counselor’s client when a counselor, whom DCF never should have licensed or whose license DCF should have suspended, harms a client who has no relationship with DCF greater than that of any other citizen. We conclude that the role of DCF in this situation involves a governmental regulatory duty to the general public and does not create a duty of care in tort to individual members of the general public. Accordingly, we reverse the judgments on appeal and remand for ' entry of judgment in favor of DCF. Because the case law from the Florida Supreme Court is open to legitimate debate about the status of the “general duty” doctrine, we certify a question of great public importance at the conclusion of this opinion.

I. DCF’S ADMINISTRATION OF THE STATUTORY REGULATIONS REQUIRING LICENSURE OF SUBSTANCE ABUSE COUNSELORS

Chapter 397 of the Florida Statutes is entitled and addresses “Substance Abuse Services.” This body of law is generally administered by DCF. See § 397.311(8), Fla. Stat. (2008). The statutes mandate that DCF fulfill a long list of “duties of the department.”. See § 397.321. These duties include “[assuming] responsibility for licensing and regulating licensable service components delivering substance abuse services on behalf of service providers.” § 397.321(6).

Any person who wishes to act as a substance abuse service provider must apply to the State, through DCF as the administrating agency, and receive a license. See §§ 397.401, .403. Licenses are often issued on a probationary basis and then transformed into regular licenses. § 397.409. Obviously, employees of DCF evaluate the applicants and monitor the licensees, especially during the probationary period. Service providers are subject to background checks, the nature of which has varied considerably since 1994. See § 397.451.

Nothing in chapter 397 creates any express cause of action for the benefit of individual members of the public. “Clients” have statutory rights, especially in connection with their relationship with a “service provider,” but these rights appear to create no express legal rights as to DCF that would control the outcome of this case. See § 397.501. Indeed, the statutory provision on clients’ rights ends with a limitation of liability and immunity subsection that provides some protection to service providers against civil claims brought by clients. See § 397.501(10). That subsection does not appear to address the issue in this case.

II. DCF’S DEFICIENT ADMINISTRATION OF THE STATUTORY REGULATIONS IN THIS CASE

The above-described statutes first became pertinent to this case in 1994 when DCF discovered that Robert Taylor was acting as a substance abuse counselor without a license. Tony Edwards, an employee of DCF who was in charge of licensing counselors in District Six, contacted Mr. Taylor. In December 1994, after some delay, Mr. Taylor came into the DCF offices with his application. Because Mr. Taylor said that he did not intend to treat minors, Mr. Edwards did not perform the more extensive background check required prior to the issuance of such a license. Mr. Taylor sought a “master-level” license, which required completion of a master’s degree from a recognized university. On his application, Mr. Taylor listed a degree from National-Louis University. That school is a recognized university, but Mr. Taylor did not actually graduate from National-Louis University. Mr. Edwards testified that he tided without success to determine whether Mr. Taylor obtained that degree, but he obviously issued a probationary license without confirming this fact or discovering that the application was fraudulent.

In fact, Mr. Taylor not only did not have a master’s degree, he was a convicted felon in Florida. His record included a criminal episode where he defrauded a family by posing as an adoption specialist promising to obtain a baby for the family in exchange for payment. DCF apparently did not become aware of this criminal record until years later.

Despite his promise not to treat minors, Mr. Taylor treated scores of minors. He counseled young girls to go into exotic dancing, stole money from clients, and allegedly caused a client, who was a physician’s daughter, to overdose and almost die.

After Mr. Taylor received his license, DCF received several complaints against him, including complaints from licensed doctors, primarily about financial issues. In the fall of 1997, DCF received written reports from a physician that Mr. Taylor was treating juvenile clients. At least in hindsight, it is hard to comprehend how DCF allowed Mr. Taylor to keep his license for this period of time.

The Ruffs took their daughter to Mr. Taylor in December 1997. At the time, she had a very poor relationship with her parents, and Mr. Taylor was one of three counselors that the Hillsborough County Sheriffs Office suggested to the Ruff family. She treated with him until June 1998. Without unnecessarily revealing private details, this court can fairly say that Mr. Taylor tried to bilk money from the Ruff family, told various lies to different family members in order to create animosity among them, and tried to use the animosity to his advantage. The experience caused great harm to all members of the family.

The Chapmans took them ten-year-old son to see Mr. Taylor in 1998. He had an attention deficit disorder, had been acting out, and had symptoms that worsened over time. The Chapmans ran a scuba diving business. One of their customers was a deputy sheriff who checked with the Hills-borough County Sheriffs Office and received Mr. Taylor’s name from them to give to the Chapmans. Again, without unnecessarily discussing private details, the treatment ended on May 10, 1998, when this young boy committed suicide. A psychiatrist testified, without opposition, that the faulty treatment by this eon artist was the cause of the child’s suicide.

Mr. Taylor was prosecuted for his unlicensed activities and is now serving a long prison sentence. The two families brought a single, consolidated civil action against DCF and the Hillsborough County Sheriffs Office. The trial court entered summary judgment in favor of the sheriffs office in 2003. The trial court denied DCF’s motion for summary judgment, and the case proceeded to trial in August 2007. The jury returned a verdict in favor of the plaintiffs totaling nearly $6 million. However, the trial court reduced the judgment to $400,000 in light of the statutory limitations on damages against a state agency. See § 768.28(5), Fla. Stat. (1997). DCF then filed this appeal.

III. A BRIEF HISTORY OF THE DEVELOPMENT OF GOVERNMENTAL LIABILITY LAW IN FLORIDA

Article X, section 13, of the Florida Constitution provides that “[provision may be made by general law for bringing suit against the state as to all liabilities now existing or hereafter originating.” This provision implicitly recognizes that sovereign immunity was the prevailing common law in Florida at the time the constitution was written. See Alden v. Maine, 527 U.S. 706, 748-49, 119 S.Ct. 2240, 144 L.Ed.2d 636 (1999) (acknowledging that the common law established the sovereign immunity of states); Fla. Dep’t of Health & Rehabilitative Servs. v. S.A.P., 835 So.2d 1091, 1094 (Fla.2002). The constitution contemplated that the legislature would be empowered to override this common law by a statute of general application. The legislature passed its first general law waiving sovereign immunity in 1973. See § 768.28, Fla. Stat. (1973); ch. 73-313, Laws of Fla.

Section 768.28(1) explained that sovereign immunity was waived, “but only to the extent specified in this act.” It further limited this waiver by explaining that actions could be prosecuted against state agencies or subdivisions under circumstances in which the State would be liable if the State were “a private person.” Id. Because state agencies and subdivisions perform countless functions that a “private person” is not called upon to perform, lawyers immediately disagreed on whether the legislature had waived sovereign immunity for governmental functions.

In light of the long-standing common law of governmental immunity, there was very limited case law in Florida in the mid-1970s addressing the duties that governmental agencies and employees might owe in tort. For many years, sheriffs had been subject to civil actions for certain mistakes of their deputies. See, e.g., Mendez v. Blackburn, 226 So.2d 340 (Fla.1969) (reversing summary judgment in favor of sheriffs office and concluding that the evidence presented a jury issue of whether sheriffs office was liable for deputies’ abuse of power after deputies beat plaintiff during arrest); Holland, for Use & Benefit of Williams v. Mayes, 155 Fla. 129, 19 So.2d 709 (1944) (finding that the Escam-bia County Sheriffs Office could be liable for the death of a constable killed when the sheriff and its deputies tried to apprehend a suspect); Malone v. Howell, 140 Fla. 693, 192 So. 224 (1939) (noting that sheriffs can be civilly liable for the acts and omissions of their deputies committed by virtue of their offices). This case law, however, primarily concerned intentional torts and had limited usefulness in the analysis of section 768.28.

For the twenty-year period preceding the enactment of section 786.28, municipalities had also been liable in tort for some claims. See Modlin v. City of Miami Beach, 201 So.2d 70 (Fla.1967); Hargrove v. Town of Cocoa Beach, 96 So.2d 130 (Fla.1957). Lacking better precedent, the debate surrounding the meaning and scope of section 768.28 tended to center upon these two supreme court decisions discussing municipal liability.

In Hargrove, the supreme court had held that a municipal corporation did not have immunity and could be liable for the torts of police officers under the doctrine of respondeat superior similar to a private corporation. 96 So.2d at 133. In Modlin, the supreme court narrowed the broadest reaches of Hargrove, holding that while generally a municipal corporation had no immunity greater than that of a private corporation, its liability was dependent upon an actionable duty. 201 So.2d at 75. The court then explained the long-existing distinction between duties owed to the general public and those owed to an identifiable individual. Id. at 75-76. Because the duty of a building inspector to inspect buildings adequately was regarded as a general duty, the court held that a person who had been harmed by a defect that could have been discovered by an ordinary and reasonable building inspector possessed no cause of action because the municipality did not owe the individual a special duty of care. Id. at 76.

The notion that a duty owed to all was a duty owed to none seemed odd to many legal thinkers and had its critics. Thus, when lawyers began to argue that section 768.28 had not waived immunity for matters that fell within the category of “general duties,” the supreme court was quick to respond. In Commercial Carrier Corp. v. Indian River County, 371 So.2d 1010, 1015 (Fla.1979), Justice Sundberg explained:

First, we believe it to be circuitous reasoning to conclude that no cause of action exists for a negligent act or omission by an agent of the state or its political subdivisions where the duty breached is said to be owed to the public at large but not to any particular person. This is the “general duty” — “special duty” dichotomy emanating from Mod-lin ....

Justice Sundberg went on to conclude that this “circuitous reasoning” had “no continuing vitality” after the legislature implemented section 768.28. Id. at 1016. Having ended the era of Modlin, the supreme court went on to address the question: “What, then, is the scope of waiver contemplated by section 768.28?” Id. The long discussion that followed attempted to place section 768.28 in a posture where case law under the Federal Tort Claims Act might be instructive. Id. at 1016-17. In rejecting the general-special duty analysis, the court substituted a new approach that sought to determine functions of the government that were “discretionary” and thereby immune from suit. Id. at 1022. It summarized its holding as follows:

[W]e, too, hold that although section 768.28 evinces the intent of our legislature to waive sovereign immunity on a broad basis, nevertheless, certain “discretionary” governmental functions remain immune from tort liability. This is so because certain functions of coordinate branches of government may not be subjected to scrutiny by judge or jury as to the wisdom of their performance. In order to identify those functions, we adopt the analysis of Johnson v. State, supra, [69 Cal.2d 782, 73 Cal.Rptr. 240, 447 P.2d 352 (1968) ] which distinguishes between the “planning” and “operational” levels of decision-making by governmental agencies. In pursuance of this case-by-case method of proceeding, we commend utilization of the preliminary test iterated in Evangelical United Brethren Church v. State, supra, [67 Wash.2d 246, 407 P.2d 440 (1965) ] as a useful tool for analysis.

Id.

The large body of case law that followed the decision in Commercial Cartier demonstrates, with all due respect to Justice Sundberg, that the new distinction was no more predictive or adequate than the old general duty-special duty dichotomy. Perhaps it was inevitable that, because the new statute “waiv[ed] sovereign immunity,” the initial focus in Commercial Carti er centered on waiver of immunity, just as it had in Hargrove. See § 768.28(1). This focus tended to blur or obscure the fact that in normal legal analysis, a judge or lawyer would first need to decide what tort duties the State owed before deciding whether the causes of action brought for the breach of those duties were barred or could be avoided under the defense of sovereign immunity.

Just as the supreme court decided that the broad ruling in Hargrove needed to be narrowed and explained in Modlin, the court engaged in a similar re-examination of Commercial Carrier in a series of cases that were argued and decided together. Trianon Park Condominium Ass’n v. City of Hialeah, 468 So.2d 912 (Fla.1985), was the lead case in this series. Notably, Justice Overton, who dissented in Commercial Carrier, either wrote or supported the majority opinions in these cases. It is also noteworthy that Justice Sundberg left the bench before the court issued these decisions.

In Trianon Park, the court essentially returned to the same issue presented in Modlin: whether a municipality could be liable in tort for the negligence of a building inspector. Id. at 914. The court reached the same result as it had in Modlin with a somewhat different analysis. The court first rephrased the issue before it from one involving the retention of sovereign immunity to one involving the existence of a duty in tort owing to the plaintiffs. Id. Then, after discussing the positions of the respective parties in the case, the court noted, “It is apparent from the decisions of the district courts of appeal that the courts and the bar are having difficulty interpreting the purpose of section 768.28 and applying the principles set forth in Commercial Gamer.” Id. at 917. Finally, in a lengthy discussion, the court shifted the analysis from concepts of sovereign immunity, as discussed in Commercial Car-riel-, to concepts of duties owed by governmental entities in tort. Id. at 917-19. The opinion described four categories of governmental activity: “(I) legislative, permitting, licensing, and executive officer functions; (II) enforcement of laws and the protection of the public safety; (III) capital improvements and property control operations; and (IV) providing professional, educational, and general services for the health and welfare of the citizens.” Id. at 919. It gave general guidance concerning the scope of the legal duties in tort arising within these four categories. Id. at 919-22. It then concluded that statutes giving governmental entities discretionary power to enforce laws for the general public do not create causes of action for individual citizens. Id. at 922-23.

The majority in Trianon Park expressly said that the court was not receding from Commercial Carrier. Id. at 923. It also did not suggest that it was returning to the analysis of Modlin. However, Justice Ehrlich presented a compelling argument that the court had simply restated the “general duty-special duty” dichotomy in alternative words. Id. at 923-26 (Ehrlich, J., dissenting).

Three years later, in Department of Health & Rehabilitative Services v. Yamuni, 529 So.2d 258 (Fla.1988), the supreme court held that DCF’s predecessor, the Department of Health and Rehabilitative Services (HRS), could be liable for the negligent failure of a case worker to detect the existence of child abuse after the case worker failed to remove the child from his mother’s care despite numerous abuse reports. After the case worker left the child with his mother, the mother badly burned the child. Id. at 259. Yamuni, the child’s adoptive mother, then sued HRS for negligence and recovered a large jury verdict. Id.

In Yamuni, the supreme court’s analysis first focused on sovereign immunity and relied extensively on the Commercial Car-net analysis. Id. at 259-60. As to the issue of the scope and extent of any waiver of sovereign immunity, the court did not discuss Trianon Park. Instead, it discussed Reddish v. Smith, 468 So.2d 929 (Fla.1985), one of the cases decided at the same time as Trianon Park. Id. at 260-61. The court concluded its discussion of Reddish■ by writing: “We recede from any suggestion in Reddish that there has been no waiver of immunity for activities performed only by the government and not private persons. The only government activities for which there is no waiver of immunity are basic policy making decisions at the planning level.” Id. at 261 (citing Com.mercial Carrier, 371 So.2d at 1022). The opinion then engaged in a lengthy discussion of the statutory duties of HRS. Ultimately, the case appears to hold that HRS has a duty in tort to fulfill statutory obligations to prevent child abuse and that a child’s guardian can sue for HRS’s negligence in fulfilling these obligations. Id. at 261-62. Yamuni classified HRS’s duties as existing under category IV of Trianon Park and described the categories as “only a rough guide.” Id. at 261.

Finally, in 2004, the supreme court decided Pollock v. Florida Department of Highway Patrol, 882 So.2d 928 (Fla.2004). In Pollock, the court held that the Florida Department of Highway Patrol (FHP) did not have a duty to remove a stalled vehicle from the road for the benefit of users of the highway who were killed when their car collided with the stalled vehicle. Citing Trianon Park, the court explained that “[pjatrolling the state highways, controlling the flow of traffic, and enforcing the traffic laws are duties FHP owes to the general public, as opposed to an individual person.” Id. at 935. The court then distinguished between duties owed to the general public and “[a] special tort duty” that arises “when law enforcement officers become directly involved in circumstances which place people within a ‘zone of risk.’ ” Id. This analysis seems reminiscent of Modlin, and Justice Pariente pointed this out in her dissent. Id. at 940.

Based on this line of cases, the trial court and the parties below disputed whether DCF could argue that its statutory duties relating to the licensure and discipline of substance abuse counselors involved a “general duty,” for which no tort duty existed, or a statutory obligation generating a duty in tort for which sovereign immunity had been waived. The trial court ultimately decided that, under the analysis in Yamuni, the two families stated a cause of action against DCF. In light of the language in Yamuni, this ruling was not unreasonable. However, we now conclude that the direct relationship that existed between the child and HRS in Yamuni is distinguishable from the distant connection between the Chapmans or the Ruffs and DCF. We conclude that DCF does not owe a duty in tort in the context of this case. However, we admit that the precedent from the supreme court might allow us to reach the opposite result if we focused on the line of cases beginning with Commercial Carrier and not upon the somewhat separate line of cases focusing on Trianon Park.

IV. WHEN THE LEGISLATURE PLACES A STATUTORY DUTY TO REGULATE MEMBERS OF A TRADE OR PROFESSION ON AN EXECUTIVE AGENCY, IN THE ABSENCE OF A STATUTORY RIGHT OF ACTION AGAINST THE AGENCY, GENERALLY THE JUDICIARY SHOULD RECOGNIZE NO DUTY IN TORT

The preceding discussion of the development of the case law addressing governmental liability in Florida convinces us that a debatable claim against a governmental agency or subdivision should normally first be examined to determine whether the agency owes a duty in tort. The supreme court’s recent decision in Wallace v. Dean, 3 So.3d 1035 (Fla.2009), further supports this approach. Only if such a duty exists is it necessary to decide whether the agency retains sovereign, or governmental, immunity to protect it from the claim. It appears to this court that, in most situations, if such a tort duty exists, then governmental immunity is most often waived. Accordingly, if no actionable duty exists under the guidelines in Trianon Park, then the parties rarely need to struggle through the difficult analysis of Commercial Gamer to determine whether the governmental conduct falls within the ambit of a discretionary decision immune from suit. In performing this analysis, it is important to identify the issue in the case as precisely and narrowly as possible because the case law tends to use the rules in Commercial Carrier and Trianon Park as rough guidelines only.

In this case, the dispositive issue is whether DCF’s statutory duty to license and monitor the activities of substance abuse counselors created a duty in tort when a counselor, whom DCF never should have licensed or whose license DCF should have suspended, harms a client who has no relationship with DCF greater than that of any other citizen. It is important to observe that in this context DCF is an executive agency fulfilling regulatory duties established by the legislature. Thus, there are no common law duties involved in this case or duties that seem even comparable to common law duties.

When the legislature creates a regulatory statute that does not expressly create a private right of action against the private individuals who are regulated by the statute, the courts have been cautious about concluding that the statute creates a private right of action against them. See Murthy v. N. Sinha Corp., 644 So.2d 983 (Fla.1994); Miulli v. Fla. High Sch. Athletic Ass’n, 998 So.2d 1155 (Fla. 2d DCA 2008). In this case, the question is similar — whether the legislature intended to create a private right of action against a governmental agency that is tasked with regulating the private individual.

When the legislature decides to create regulatory duties for the executive branch to fulfill, there are good reasons for the judiciary to hesitate to assume that the legislature intended to create a duty that is actionable against the executive agency. The first, and most obvious, reason is that the legislature is free to expressly create such a duty within the statutory enactment if it determines that private lawsuits would be beneficial to achieving the goals that the regulatory process was created to achieve.

The second reason is equally important — although more complex to explain— and relates to the broad deference that courts have always recognized for public policy decisions within the legislative process. In short, the judiciary significantly alters the economic justification for a regulatory statute when it creates a duty in tort from a statutory requirement. There are valid reasons to allow the legislature alone to decide whether it is cost-effective to impose a level of liability on a government agency that negligently performs a statutory requirement.

When the legislature decided to license and regulate substance abuse counselors, it clearly had a valid health and safety reason to create the statute requiring such regulation. See § 397.305(2) (asserting that the act’s purpose is “to provide for a comprehensive continuum of accessible and quality substance abuse prevention, intervention, and treatment services”). The legislative process is often somewhat intuitive, but the legislature clearly concluded that unlicensed substance abuse counselors were, or would become, a cost to society that could be reduced by regulation. In this case, for example, it is obvious that a single rogue counselor caused damage that, measured in dollars, is very high.

As an example, assume hypothetically that the legislature estimated that unlicensed practitioners within an unregulated business cost the public $100 million in damages annually. Then, after studying the issue, the legislature concluded that creating a regulatory process administered by an executive agency would cost $10 million and prevent $50 million in damage to the public. The legislature might reasonably enact and fund such a statutory scheme regulating the business and its practitioners because doing so would save the public $40 million annually.

However, if the judiciary decided to transform these statutory duties into tort duties, then the executive agency administering the statutes would be subject to suit each time it negligently licensed a practitioner or failed to suspend a license. As a result, a sizable portion of the $50 million in costs that the program was unable to prevent would be transformed into contingent liabilities of the administering agency. The regulatory program with a budget of $10 million would suddenly need to increase its budget to cover the costs associated with this additional $50 million in contingent liability.

This scenario makes it unlikely, or at least less likely, that the legislature would pass an otherwise beneficial statute aimed at regulating the business because the legislature would hesitate to expose the administering agency to unforeseen and uncontrollable liability for the damages the regulation failed to prevent. In economic terms, such a judicial ruling takes an external cost, or externality of the regulated business, and transforms it into a cost for all taxpayers to bear instead of an internalized cost for the regulated business to bear.

Given that it is appropriate for the legislature to decide independently if a regulatory process is cost-effective, the judiciary interferes in that process when it creates duties in tort from statutory requirements without the legislature’s expressly authorizing a private right of action. Tort law is often justified as a method to impose costs on defendants, such as businesses that create defective products or landowners who create dangerous conditions, in order to minimize the total social costs of these activities. If tort law is, in part, designed to make our government and our society run with greater economic efficiency, then it should encourage, rather than discourage, the legislative process by which we as a society decide to regulate activities that generate social costs. If courts, by imposing government tort liability for the negligent implementation of regulatory statutes, cause the legislature not to enact beneficial regulatory statutes, then tort law is performing a task completely opposite of its intended function.

This economic reasoning, at least in the context of governmental regulation, explains why a statutory “duty to, all” should generally be a duty to none in tort. In this situation, the judiciary normally should allow the legislature to decide whether the regulations will work better, or reduce the cost to the public, if the governmental agencies implementing the regulations have some degree of risk associated with failing to act with reasonable care. In the words of the constitution, when it comes to the field of executive agencies regulating trades and professions, the liabilities' “hereafter originating” should typically originate in the legislature. Art. X, § 13, Fla. Const.

Accordingly, under the general guidelines provided in' Trianon Park, we hold that the statutory duties of DCF in section 897.321 are general duties owing to the public and that, at least without some special relationship that would justify a specific member of the public’s relying upon DCF, these statutes do not create an actionable duty that would permit the families to recover in this case. Accordingly, we reverse the judgment on appeal and remand for the entry of judgment in favor of DCF.

Y. CERTIFIED QUESTION

Because this area of the law is still somewhat unpredictable in light of the case law discussed in section III and because it affects both the legislature in its decision to enact regulatory statutes and the members of the public in understanding their rights against governmental regulatory agencies, we certify the following question of great public importance, which we believe to be dispositive in this case:

AFTER THE LEGISLATURE CREATED A STATUTORY DUTY REQUIRING DCF TO LICENSE AND MONITOR THE ACTIVITIES OF SUBSTANCE ABUSE COUNSELORS, DOES A DUTY IN TORT ARISE, OWING BY DCF TO A COUNSELOR’S CLIENT:
(1) WHEN DCF NEGLIGENTLY LICENSES THE COUNSELOR,
(2) WHEN THE COUNSELOR HARMS A CLIENT, AND
(3) WHEN THE CLIENT HAS NO RELATIONSHIP WITH DCF GREATER THAN THAT OF ANY OTHER CITIZEN?

Reversed and remanded.

DAVIS and VILLANTI, JJ., Concur.

      . The statutes in effect at the time of these events would have been the statutes applicable between 1994 and 1998. We use the current statutes in this section of the opinion because the dispositive issue is not affected by any changes in the statutes.

      . The records of the Department of Corrections reflect that Mr. Taylor is serving a prison sentence for organized fraud and multiple counts of grand theft and is not expected to be released from prison until 2095, assuming he lives to be 141 years old. Florida Department of Corrections, http://www.dc.state.fl.us/ ActiveInmates/detail.asp?Bookmark= 17& From=list&SessionID=648984716 (last visited Feb. 25, 2009).

      . The two families have challenged this amount on cross-appeal, claiming that the lawsuit involves a larger number of claims. In light of our result in this opinion, we do not reach the cross-appeal.

      . See, e.g., Davis v. State, Dep’t of Con., 460 So.2d 452 (Fla. 1st DCA 1984) (certifying the question of whether the Department of Corrections' inmate classification is a discretionary function entitling the State to sovereign immunity); Broward County v. Payne, 437 So.2d 719, 721 (Fla. 4th DCA 1983) (noting the courts' continuing “uncertainty as to the delineation between operations and planning” level governmental functions); Ralph v. City of Daytona Beach, 412 So.2d 875 (Fla. 5th DCA 1982) (disputing whether the city’s decision to undertake traffic control on its beaches is a planning level function entitling the city to sovereign immunity), quashed, 471 So.2d 1 (Fla. 1983); Ingham v. State, Dep’t of Transp., 399 So.2d 1028 (Fla. 1st DCA 1981) (Shaw, J., dissenting) (arguing that the trial court improperly dismissed the plaintiff's complaint because the State’s construction, maintenance, and repair of a state road is an operational level activity that is not within the State's sovereign immunity); Bellavance v. State, 390 So.2d 422 (Fla. 1st DCA 1980) (determining that the decision to release an involuntarily-committed patient from a state mental hospital was not a "discretionary” decision that allowed the State to invoke sovereign immunity).

      . The other cases were Reddish v. Smith, 468 So.2d 929 (Fla.1985); Everton v. Willard, 468 So.2d 936 (Fla.1985); Carter v. City of Stuart, 468 So.2d 955 (Fla.1985); Duvall v. City of Cape Coral, 468 So.2d 961 (Fla.1985); City of Daytona Beach v. Huhn, 468 So.2d 963 (Fla. 1985); and Rodriguez v. City of Cape Coral, 468 So.2d 963 (Fla.1985).

      . For example, the parties have cited no case that places a duty in tort upon a voluntary private organization that issues '‘certifications” or other credentials claiming that doctors or lawyers or other highly trained professionals have a special level of proficiency. This case is distinguishable from cases in which a governmental agency is liable due to the "undertakers doctrine.” See Wallace v. Dean, 3 So.3d 1035 (Fla.2009).

      . Justice Overton opined that creating new duties of care and tort liabilities after the legislature enacted regulatory laws “would, in effect, make the governments and their taxpayers virtual insurers of the activities regulated.” Trianon Park, 468 So.2d at 922.

      . See id. at 922-23 (arguing that creating tort liability when government enacts and enforces laws "would result in a substantial fiscal impact on governmental entities which was never intended by the legislature,” constrain the development of new programs, and reduce government regulations intended to protect the public).

      .By way of a more concrete example, if the legislature wished to internalize the public costs of substance abuse counselors, one method would be to require the counselors to purchase liability insurance to cover these claims. This approach gives the counselors an economic incentive to provide services competently, which in turn reduces the costs. Simply passing these costs on to the taxpayers through lawsuits against the regulating agency is, in all likelihood, a far less efficient approach to cost avoidance in this scenario.


source: Caselaw Access Project

author: HAZOURI, J.

license: Public Domain

text:
    Bob SHIVER, Appellant, v. Edward WHARTON and Janet Geismar, Appellees.
    No. 4D08-2404.
    District Court of Appeal of Florida, Fourth District.
    April 15, 2009.

      Michael P. Hamaway of Mombach, Boyle & Hardin, P.A., Fort Lauderdale, for appellant.
    Stacey E. Trien and Susan E. Trench of Goldstein, Tanen & Trench, P.A., Miami, for appellees.
   HAZOURI, J.

The Appellant, Bob Shiver, contends that the trial court erred by denying his motion to vacate under Florida Rules of Civil Procedure 1.540(b)(1) and 1.540(b)(4). We disagree, as the trial court did not abuse its discretion in denying the motion.

The Appellees, Edward Wharton and Janet Geismar, owned and operated a fire alarm and burglar alarm company named Hi-Rise Safety Systems, Inc. Shiver, a large shareholder and sole director of several companies which sold, installed, and maintained fire and burglar alarm systems, approached Wharton and Geismar with a proposal to purchase stock in them company. Shiver allegedly told Wharton and Geismar that he was aggregating companies to create a synergy of national companies. He told them that he would operate and manage the companies and, through the use of his skills and experience, would increase Hi-Rise’s revenues and be able to repay them $3,000,000.00 over several years. Based on this proposition, Wharton and Geismar sold all of the stock in Hi-Rise to one of Shiver’s companies, Aerwav Integrations Services, Inc., for approximately $4,000,000.00. This amount was payable in cash and the issuance of certain AIS Class B and C preferred and common stock, which Shiver was to redeem on predetermined dates for the remainder of the purchase price of Hi-Rise. Shiver, however, defaulted on his obligation to redeem the stock and make payments, and has failed to cure this default.

Wharton and Geismar brought an action against Bob Shiver for fraud in the inducement, fraud in the execution, and breach of contract. On October 17, 2005, service of process for these claims was personally served on Shiver at 26 Chapin Road, Suite 1112, Pine Brook, NJ, 07058. Shiver appeared in this action on November 8, 2005, when his then-attorney, Gerald Wald, filed a motion to dismiss.

Before the hearing on the motion to dismiss, Wald withdrew as counsel. Shiver did not attend the hearing on the motion to dismiss. The trial court denied the motion to dismiss and gave Shiver ten days to answer the complaint.

On February 10, 2006, because Shiver had not answered the complaint, Wharton and Geismar filed a motion for default judgment, which was noticed for hearing on February 27, 2006. Both the motion and notice of hearing were mailed to Shiver at the Chapin Road address. Shiver failed to file an answer or appear at the February 27 hearing, which resulted in the trial court entering a default judgment against Shiver as to all issues of liability. This order was sent to Shiver at the Cha-pin Road address.

On March 10, 2006, Wharton and Geis-mar filed a motion for summary judgment as to damages. This motion was mailed to the Chapin Road address. A hearing on this motion was scheduled for April 21, 2006. A copy of the notice of hearing was mailed to Shiver at the Chapin Road address. At the hearing, the trial court entered an order granting partial summary judgment, awarding liquidated damages for breach of contract. As to the issue of damages for fraud, the trial court ordered a jury trial. A copy of this order was mailed to the Chapin Road address.

Before trial, Wharton and Geismar sent a process server to the Chapin Road address with a letter notifying Shiver of the trial date. On October 17, 2006, the server went to the Chapin Road address, where the secretary said Shiver was not present, but would return shortly. When Shiver did not return, the server left the notice with the secretary.

On October 19, 2006, a jury, in the absence of Shiver, awarded to Wharton and Geismar damages for the fraud counts. A final judgment was entered on October 25, 2006. On May 10, 2007, Shiver filed a Chapter 7 petition in the United States Bankruptcy Court for the Southern District of New York, which resulted in an automatic stay being placed on the Florida judgments. On September 20, 2007, Shiver, in bankruptcy court, filed a motion to lift the automatic stay on the Florida judgments for the purpose of giving him a chance to vacate them.

On October 25, 2007, the U.S. Bankruptcy Court entered an order granting relief from the automatic stay. On November 30, 2007, Shiver filed his motion to vacate the Florida judgments in the Florida trial court. The trial court denied the rule 1.540(b)(1) motion as untimely. It also denied the rule 1.540(b)(4) motion, holding that the final judgment was not void because Shiver received proper notice before it was entered.

“ ‘A trial court has broad discretion in determining whether to grant relief from a judgment.’ ” Morrison v. West, 953 So.2d 755, 757 (Fla. 4th DCA 2007) (quoting Kroner v. Singer Asset Fin. Co., 814 So.2d 454, 456 (Fla. 4th DCA 2001)). As such, an appellate court typically ‘review[s] orders of the trial court’ ” on motions to vacate pursuant to rule 1.540(b) “ ‘for abuse of discretion.’ ” Id. (quoting Kroner, 814 So.2d at 456).

The trial court acted properly by dismissing the rule 1.540(b)(1) as untimely. Although the proceeding was stayed by the Bankruptcy Court, Shiver still failed to timely file his motion to vacate the Florida judgments. Specifically, under the Federal Bankruptcy Code, when a bankruptcy claim is filed, nonbankruptcy proceedings concerning the subject matter of the bankruptcy are automatically stayed. See 11 U.S.C. § 362 (2006). If an “order [is] entered in a nonbankruptcy proceeding,” and if the period of time applicable to that order “has not expired before the date of the filing of the [bankruptcy] petition,” then the period of time in the nonbank-ruptcy order “does not expire until the later of — (1) the end of such period, including any suspension of such period occurring on or after the commencement of the case; or (2) 30 days after notice of the termination or expiration of the stay under section 362, 922, 1201, or 1301 of this title, as the case may be, with respect to such claim.” 11 U.S.C. § 108(c).

In this case, the nonbankruptcy order was the final judgment entered on October 25, 2006. The period of time given to a party by rule 1.540(b)(1) to move to vacate is one year, giving Shiver until October 25, 2007 to move to vacate. See Fla. R. Civ. P. 1.540(b). Shiver filed for bankruptcy on May 10, 2007, which was before the expiration of the one year period allotted by rule 1.540(b). Shiver’s stay, however, was not lifted until October 25, 2007, exactly one year from when the final judgment was entered. By lifting the stay at the same time the rule 1.540 period expired, Shiver now had thirty days to move to vacate under rule 1.540(b)(1), as the thirty-day period was the later of the end of the time allotted by rule 1.540(b) or 30 days from termination of the stay. Because Shiver filed his motion to vacate on November 30, 2007, which was more than thirty days from when the stay was lifted, Shiver’s opportunity to move to vacate under rule 1.540(b)(1) had expired. Therefore, the trial court acted properly in denying Shiver’s motion to vacate under rule 1.540(b)(1) as untimely.

The trial court also did not abuse its discretion in denying Shiver’s motion to vacate the final judgment as void under 1.540(b)(4). This is because Shiver received proper notice of the proceedings leading up to the default and final judgments. As a result, the judgments were not void because Shiver’s due process rights were not violated.

The purpose of “[rjule 1.540(b)(4)” is to “provide[] relief from void judgments. Relief from a void judgment may be granted at any time.” Viets v. Am. Recruiters Enters., 922 So.2d 1090, 1095 (Fla. 4th DCA 2006). A judgment is void if, in the proceedings leading up to the judgment, there is “[a] violation of the due process guarantee of notice and an opportunity to be heard.... Generally, due process requires fair notice and a real opportunity to be heard and defend in an orderly procedure before judgment is rendered.” Id. (emphasis in original).

In this case, Shiver’s due process rights were not violated because he received notice of the proceedings leading up to the default and final judgments. This is because Shiver never gave the trial court an address other than the Chapin Road address. In fact, during the pendency of the proceedings, Shiver, who knew about the proceedings and appeared via his motion to dismiss, made no effort to check on the proceeding’s status. Shiver’s receipt of notice of the proceedings through the mailings to the Chapin Road address was also evidenced when the process server went to the Chapin Road address to notify Shiver of trial. Although the server did not personally serve Shiver, the secretary told the server that Shiver would return shortly. This showed that Shiver still occupied the Chapin Road address, and that the mailings to the Chapin Road address had been, and were still, a viable means of notification.

Therefore, the trial court did not abuse its discretion in denying the motion to vacate the default and final judgments as void under rule 1.540(b)(4). We, accordingly, affirm.

Affirmed.

WARNER, J., and SHAHOOD, GEORGE A., Senior Judge, concur.


text:
    Gary NIKOLITS, as Property Appraiser of Palm Beach County, Florida, Appellant, v. VERIZON WIRELESS PERSONAL COMMUNICATIONS L.P., f/k/a Primeco Personal Communications, L.P., a Delaware limited partnership; John K. Clark, as Tax Collector of Palm Beach County, Florida; and James Zingale, as Executive Director of the Department of Revenue for the State of Florida, Appellees.
    No. 4D08-1389.
    District Court of Appeal of Florida, Fourth District.
    April 15, 2009.

      J. Christopher Woolsey, Gaylord A. Wood, Jr., and B. Jordan Stuart of Wood & Stuart, P.A., Bunnell, and Jay Jacknin and Jeffrey Clyman of Christiansen & Jacknin, West Palm Beach, for appellant.
    Elliot H. Scherker and Brigid F. Cech Samóle of Greenberg Traurig, P.A., Miami, and Philip R. Sellinger and Douglas R. Weider of Greenberg Traurig, LLP, Flor-ham Park, New Jersey, for appellee Verizon Wireless Personal Communications L.P., f/k/a Primeco Personal Communications, L.P., a Delaware limited partnership.
   HAZOURI, J.

In 2005, the Appellant, Gary R. Nikolits, Palm Beach County’s Property Appraiser, assessed as tangible personal property for purposes of ad valorem taxation computer software, i.e., “Wireless Services Software,” of the Appellee, Verizon Wireless Personal Communications, L.P. Verizon paid the tax under protest. Nikolits appeals the final judgment following a nonju-ry trial wherein the trial court found that the tax levied was improper. We agree with the trial court’s ruling and affirm because: (1) The Wireless Services Software meets the definition of “computer software” provided by section 192.001(19), Florida Statutes (2008), excluding it from taxation; (2) the Wireless Services Software does not meet the embedded software exception to section 192.001(19); and (3) “computer software” is intangible personal property, placing it outside the taxing power of Palm Beach County.

This appeal involves issues concerning matters of fact and matters of law. In examining the issues regarding the trial court’s “findings of fact from disputed evidence,” they are upheld if supported by “competent, substantial evidence.” Acoustic Innovations, Inc. v. Schafer, 976 So.2d 1139, 1143 (Fla. 4th DCA 2008). In reviewing matters of law, we conduct a de novo review. Id.

Verizon operates a mobile switching center in Jupiter, Florida, which contains a computer system known as the Autoplex 1000. The Autoplex consists of a network of computers. Run on the computers are three types of software: boot software, operating system software, and the Wireless Services Software. The taxability of the boot software and the operating system software is not at issue.

The Wireless Services Software enables Verizon to provide to their customers the ability to make a phone call with a cellular phone, as well as send text messages, operate a GPS navigator, and browse the Internet. The Wireless Services Software resides in the Autoplex system, as the Autoplex is the hardware needed to execute the Wireless Services Software.

The Wireless Service Software itself consists of approximately 1,000 separate programs. Ten percent of these programs are needed for basic call processing. The other programs are used for various diagnostic tools, various report generators, and as tools to verify that the software has been installed properly. This means the Autoplex system will still process voice calls even if up to ninety percent of the Wireless Services Software is uninstalled. If all of the Wireless Services Software is uninstalled, the Autoplex processing system would still be up and running, and one could still read e-mail and do those kinds of things on those computers using the tools that come with the operating system.

The trial court found that the Wireless Services Software fit the definition of “computer software” provided by section 192.001(19). It also found that the Wireless Services Software did not fit the “embedded software” exception to the “computer software” definition in section 192.001(19). These findings are supported by competent substantial evidence.

Section 192.001(19) states that:

(19) “Computer software” means any information, program, or routine, or any set of one or more programs, routines, or collections of information used or intended for use to convey information or to cause one or more computers or pieces of computer-related peripheral equipment, or any combination thereof, to perform a task or set of tasks. Without limiting the generality of the definition provided in this subsection, the term includes operating and applications programs and all related documentation. Computer software does not include embedded software that resides permanently in the internal memory of a computer or computer-related peripheral equipment and that is not removable without terminating the operation of the computer or equipment. Computer software constitutes personal property only to the extent of the value of the unmounted or uninstalled medium on or in which the information, program, or routine is stored or transmitted, and, after installation or mounting by any person, computer software does not increase the value of the computer or computer-related peripheral equipment, or any combination thereof.

If the Wireless Services Software fits this definition, then, in accordance with the plain meaning of section 192.001(19), it is not taxable as tangible personal property. If, however, the computer software is “embedded software that resides permanently in the internal memory of a computer ... and [ ] is not removable without terminating the operation of the computer or equipment,” § 192.001(19), it is excluded from the tax exception provided by section 192.001(19) and becomes taxable as tangible personal property.

Nikolits contends the trial court erred because the Autoplex system is not a computer and, as a result, its software is not “computer software.” However, there is competent, substantial evidence to support the trial court’s treatment of the Au-toplex system as a computer, as expert witnesses deemed the Autoplex system a “network of computers.” There is also competent, substantial evidence to support the trial court’s finding that the Wireless Services Software is “computer software” defined by section 192.001(19), and does not fall within the “embedded software” exception. As a result, the Software is not taxable as tangible personal property.

The Wireless Services Software, as “computer software,” is intangible personal property and is therefore outside of the taxing power of Palm Beach County. In so holding, we agree with the Fifth District’s reasoning in Gilreath v. General Electric Co., 751 So.2d 705, 707 (Fla. 5th DCA 2000).

Under the Florida Constitution, local governments and counties have the power “to levy and collect ad valorem taxes on real property and tangible personal property.” Id. (citing Art. VII § 9, Fla. Const.). “The power to tax intangible personal property, however, is reserved only to the State.” Id. at 707-08 (citing Art. VII, §§ 1(a), 2, & 9(a), Fla. Const.). As such, “if the [computer] software is intangible personal property, the County was without authority to assess or collect taxes on it.” Id. at 708.

For purposes of taxation, the Florida Legislature has provided the following definitions of tangible personal property and intangible personal property:

(b) “Intangible personal property” means money, all evidences of debt owed to the taxpayer, all evidences of ownership in a corporation or other business organization having multiple owners, and all other forms of property where value is based upon that which the property represents rather than its own intrinsic value.
(d) “Tangible personal property” means all goods, chattels, and other articles of value (but does not include the vehicular items enumerated in s. 1(b), Art. VII of the State Constitution and elsewhere defined) capable of manual possession and whose chief value is intrinsic to the article itself.

§ 192.001(ll)(b), (d), Fla. Stat. (2008).

In Gilreath, the Fifth District rendered a decision on the same question discussed in this issue, i.e., whether “computer software,” as defined under section 192.001(19), is tangible or intangible personal property. In that case, the court examined section 192.001(19), noting that the definition

made a sharp distinction between the information, program or routine (the “imperceptible binary impulses”), and the medium on which the information, program or routine is carried. That is to say, as the court interprets this amendment, the Legislature determined that the disk or tape itself was tangible personal property, but the information, program or routine was not. The remainder of the statute clearly indicates that the information, program or routine is not subject to local taxation, because it “does not increase the value of the computer or computer-related peripheral equipment, or any combination thereof.”

Gilreath, 751 So.2d at 708-09.

The court also held that “ ‘the fact that tangible property is used to store or transmit the software’s binary instructions does not change the character of what is fundamentally a classic form of intellectual property’ ” that is, in fact, “intangible property.” Id. at 709 (quoting Ne. Datacom, Inc. v. City of Wallingford, 212 Conn. 639, 563 A.2d 688, 691 (1989)).

A close examination of the definition of tangible personal property contained in section 192.001 compels the same result. In particular, that definition states that tangible personal property is “all goods, chattels, and other articles of value ... capable of manual possession and whose chief value is intrinsic to the article itself.” § 192.001(ll)(d). Although computer software’s value is intrinsic in and of itself, as the “essence of the property is the software itself, and not the tangible medium on which the software might be stored,” Gilreath, 751 So.2d at 708, it is property incapable of manual possession. This is because, software, itself, is “not capable of being ‘seen, weighed, measured, felt or otherwise perceived by the senses.’ ” Id. (quoting Dallas Cent. Appraisal Dist. v. Tech Data Corp., 930 S.W.2d 119, 122 (Tex.App.1996)). Rather, the tangible medium on which it is transported and transmitted is the means by which the property is manually possessed.

Therefore, we agree with the Fifth District’s decision in Gilreath and hold that “computer software” is intangible personal property. As such, we affirm the trial court’s decision that the Wireless Services Software is not taxable by Palm Beach County, as it is intangible personal property, which is property outside a county’s taxing authority.

Ajfi.'nned.

WARNER, J., and SHAHOOD, GEORGE A., Senior Judge, concur.


text:
    Joseph BARATTA, Appellant, v. BRADFORD ELECTRIC, INC., and Elcon Electrical Contractors Corp., Appellees.
    No. 4D08-968.
    District Court of Appeal of Florida, Fourth District.
    April 15, 2009.

      Rocco G. Marucci of Rocco G. Marueei, P.A., Fort Lauderdale, for appellant.
    Steven P. Befera of Befera Law Firm, Miami, for appellee Bradford Electric, Inc.
   HAZOURI, J.

Joseph Baratta appeals from the trial court’s order granting Bradford Electric Inc.’s Motion for Enforcement of Settlement. The settlement arose from a personal injury negligence action brought by Baratta against Bradford and Eicon Electrical Contractors Corp. Eicon Electrical Contractors Corp. is not a party to this appeal. The settlement offer by Bradford Electric was made pursuant to section 768.79, Florida Statutes (2008), and Florida Rule of Civil Procedure 1.442 as a proposal for settlement. Baratta contends that because the proposal for settlement was not accepted within thirty days it should have been deemed rejected and unenforceable. The trial court rejected Baratta’s contention and enforced the settlement. We affirm.

On May 3, 2007, Bradford filed a proposal for settlement with Baratta, which had attached to it a release of claims and a hold harmless agreement. The terms of the settlement provided that:

a. BRADFORD proposes to BARAT-TA to settle all claims ... for payment of the total amount of FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00)....
b. BARATTA shall execute a full release of all claims against BRADFORD (attached hereto is a proposed Release of Claims).
d. BARATTA shall execute a Hold Harmless Agreement agreeing to defend and indemnify BRADFORD, its carriers and attorneys against all liens. (Attached hereto is a proposed Hold Harmless Agreement).

Pursuant to Florida Rule of Civil Procedure 1.442, this offer was to expire in thirty days (June 4, 2007). On June 8, 2007, Baratta’s counsel sent a letter to Bradford’s counsel, requesting an additional twenty days to respond to the proposed settlement. On June 15, 2007, because Baratta’s counsel had not heard from Bradford’s counsel regarding the proposed extension, he e-mailed Bradford’s counsel regarding its status. That same day, Bradford’s counsel responded by way of email, agreeing to the twenty day extension, and thereby giving Baratta “20 more days from the date the offer was originally to expire” to decide whether he wanted to accept it.

On June 20, 2007, Baratta’s counsel sent Bradford’s counsel a letter, which stated:

Thank you for the twenty (20) day extension of the Proposal for Settlement dated May 3, 2007 in the amount of Fifty Thousand Dollars ($50,000). We are requesting that this Settlement remain confidential. After conferring with my client, Mr. Baratta has elected to accept your client’s Proposal for Settlement in the amount of fifty thousand dollars ($50,000).
As further consideration for this acceptance, you have advised that your client Bradford Electric will be taking a position if called to testify, that Eicon was the negligent party in this accident. You have agreed to make available the people from Bradford Electric who can testify as to that position.

In response, Bradford’s counsel sent Ba-ratta’s counsel a letter on June 26, 2007, which stated:

In short, I cannot agree with the supplemental terms suggested in your June 20, 2007 letter. I must insist on acceptance or rejection of the currently pending Proposal for Settlement which now has an expiration date of June 28, 2007.

On June 28, 2007 Baratta’s counsel sent Bradford’s counsel a letter stating the following:

Mr. Baratta has instructed us to accept your client’s Proposal for Settlement in the amount of Fifty Thousand ($50,-000.00) Dollars.

On July 26, 2007, Baratta went to his counsel’s office and signed the Release of Claims and the Hold Harmless Agreement as originally proposed by Bradford. Later that day, Baratta called his counsel and told him he was having second thoughts and wanted to think about it. On the same day, a check for $50,000 was issued to Baratta on behalf of Bradford by its insurance company, CNA. Baratta did not cash the check.

On September 7, 2007 Baratta’s counsel sent to Bradford’s counsel a letter stating that Baratta “has changed his mind about settling with Bradford and during our most recent Mediation with Eicon, allegations were made that new evidence allegedly shows that there w[ere] conversion[s] in other areas of the busway that Bradford installed.” Attached to the letter was the unexecuted check for $50,000, as well as a signed copy of the Release and Hold Harmless Agreement which had “void” written across the front. Bradford filed a motion to enforce settlement with the trial court, alleging that Baratta, by way of the June 28, 2007 letter, “accepted the Proposal for Settlement in the amount of Fifty Thousand Dollars ($50,000.00).” The trial court granted the motion.

Baratta argues that because the proposal for settlement was not initially accepted within thirty days, it was rejected and, therefore, is unenforceable. Baratta further contends that the granting of his request for an extension of time to accept the settlement offer, as well as the subsequent acceptance, are invalid. We disagree.

Bradford made its offer of settlement by referring to section 768.79 and rule 1.442. Although the plain meaning of the statute and the rule of procedure clearly contemplate strict compliance, the statute and the rule implementing the statute apply only when there has been a rejection of a proposal for settlement and the case goes to trial resulting in a judgment. Depending upon which party is making the proposal for settlement, if the final judgment is either twenty-five percent less or twenty-five percent more than the proposal for settlement, only then are the sanctions of attorney’s fees and costs applicable. See § 768.79.

As noted in Wright v. Caruana, 640 So.2d 197 (Fla. 3d DCA 1994), neither section 768.79 nor rule 1.442 prevents an offeree from actually accepting an untimely offer and avoiding trial. Rather, it merely prevents the offer from later serving as a basis for an award of costs and attorney’s fees under the statute. Id. at 198-99; accord Hanzelik v. Grottoli & Hudon Inv. of Am., Inc., 687 So.2d 1363, 1366 (Fla. 4th DCA 1997). In the instant case, there were exchanges of offers and counter offers and a final acceptance by Baratta. There is substantial, competent evidence to support the trial court’s determination that there was a meeting of the minds. An offer and acceptance took place and, therefore, the settlement should be enforced.

Affmned.

WARNER, J., and SHAHOOD, GEORGE A., Senior Judge, concur.

      . Florida Rule of Civil Procedure 1.442(f)(1) provides "[a] proposal shall be deemed rejected unless accepted by delivery of a written notice of acceptance within 30 days after service of the proposal.”

      . See Lanb v. Matetzschk, 906 So.2d 1037 (Fla.2005).


author: PER CURIAM.

text:
    Jeanne SPATZ, Appellant, v. EMBASSY HOME CARE, INC., d/b/a Embassy Retirement Home of Margate, Appellee.
    No. 4D07-4801.
    District Court of Appeal of Florida, Fourth District.
    April 15, 2009.
    Rehearing Denied May 27, 2009.
    David Noel and Jennifer S. Carroll of the Law Offices of Jennifer S. Carroll, P.A., Palm Beach Gardens, for appellant.
    Christopher B. Hopkins of Butzel Long, Palm Beach, for appellee.
   PER CURIAM.

Jeanne Spatz, the plaintiff in a trip and fall case, appeals the entry of final summary judgment in favor of the defendant premises owner. We affirm.

In her complaint, the plaintiff alleged that while at the Embassy Retirement Home of Margate she “tripped and fell when her foot got caught on a loose and unsecured mat, partially covering a carpeted floor.” The plaintiff alleged that the defendant premises owner was negligent for failing to maintain the premises in a reasonably safe condition and negligent for failing to warn her of the alleged dangerous condition. In the plaintiffs deposition, when asked to describe what she tripped on and how she fell, the plaintiff indicated that her foot got caught on a large, unsecured rug that had a pattern and that was a different color from the underlying carpet. In that deposition, the plaintiff also indicated that she had worked at the retirement home as a patient coordinator and that she visited the facility several times a week as her mother and brother were residents. The defendant premises owner moved for summary judgment, asserting that the plaintiffs own deposition established that it was entitled to judgment as a matter of law.

Florida Rule of Civil Procedure 1.510, which governs motions for summary judgment, provides that the adverse, non-moving party “shall identify, by notice mailed to the movant’s attorney at least 5 days prior to the day of the hearing, or delivered no later than 5:00 p.m. 2 business days prior to the day of the hearing, any summary judgment evidence on which the adverse party relies.” Despite the rule’s requirements, plaintiffs counsel filed no response to the motion until the day prior to the hearing. In the late-filed response, the plaintiffs counsel asserted that the plaintiff had tripped at an area near a door’s threshold where there was a loose and unsecured area in the carpet. Plaintiffs counsel attached to the response a photograph, depicting an area of worn carpet in front of a door, and the plaintiffs answer to an interrogatory in which she described the accident as occurring when her “foot got caught under an unsecured piece of carpet” and caused her to fall.

Under these circumstances, the trial court entered summary judgment in favor of the defendant premises owner and refused the plaintiffs counsel’s request for an opportunity to amend the complaint to conform to the newly-asserted version of events regarding the cause of the fall. We find no error in that ruling.

We begin our analysis with two well-recognized principles of law. The first is that when faced with a motion for summary judgment, the trial court is limited to the issues raised by the pleadings. See, e.g., Fernandez v. Fla. Nat’l Coll., Inc., 925 So.2d 1096, 1102 (Fla. 3d DCA), review denied, 941 So.2d 367 (Fla.2006). The second is that a party may not avoid summary judgment by taking a position contrary to the one that he or she has taken in prior sworn testimony. See Stanford v. CSX Transp., Inc., 637 So.2d 37, 38 (Fla. 2d DCA 1994). As a consequence of these principles, the only version of events properly before the trial court was the version alleged in the complaint and described in the plaintiffs deposition, i.e., that she topped and fell because of an unsecured area rug/mat. Application of the open and obvious danger doctrine to these facts entitled the defendant to summary judgment on the negligent failure to warn theory. See, e.g., Aaron v. Palatika Mall, L.L.C., 908 So.2d 574, 576-77 (Fla. 5th DCA 2005) (“The obvious danger doctrine provides that an owner or possessor of land is not liable for injuries to an invitee caused by a dangerous condition on the premises when the danger is known or obvious to the injured party, unless the owner or possessor should anticipate the harm despite the fact that the dangerous condition is open and obvious.”). And, while such doctrine does not discharge a premises owner’s duty to maintain the premises in a reasonably safe condition, see, e.g., Fieldhouse v. Tam Inv. Co., 959 So.2d 1214 (Fla. 4th DCA), review denied, 969 So.2d 1018 (Fla.2007), this is of little help to the plaintiff as she cannot obtain reversal of the lower court’s ruling by arguing that there are issues of fact concerning a version of events that she abandoned.

Lastly, any amendment of the complaint to allege the loose carpet theory asserted by counsel at the summary judgment hearing would be futile because the plaintiff would be confronted with her own deposition testimony, wherein she plainly asserted that she tripped and fell when her foot got caught under an area rug. See Stanford, 637 So.2d at 38. Consequently, we affirm the judgment in favor of the defendant.

Affirmed.

WARNER, STEVENSON and DAMOORGIAN, JJ., concur.


text:
    Warren D. NICOT, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-2059.
    District Court of Appeal of Florida, Fourth District.
    April 15, 2009.
    Warren D. Nicot, Indiantown, pro se.
    Bill McCollum, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals an order summarily denying his 2007 amended motion for post-conviction relief as impermissibly successive and time-barred. Because the amended motion was neither, we reverse.

The defendant was convicted of burglary of a conveyance with a battery and strong arm robbery. This court affirmed his conviction. In 2005, the defendant filed a motion for post-conviction relief. The trial court summarily denied relying upon the State’s response, which had argued that the motion was legally insufficient and could also be denied on its merits.

In 2007, the defendant filed the current amended motion for post-conviction relief raising the same issues. The court did not order a response from the State, but granted the defendant leave to amend and denied the amended motion. In doing so, the trial court stated that it had “most decidedly addressed the merits” of the defendant’s 2005 motion in its prior order. The trial court also found the 2007 amended motion to be time barred.

Unfortunately, the trial court erred in its conclusion that the 2007 amended motion was untimely. The direct appeal of case number 02-18813, to which the amended motion was directed, ended when this court affirmed the judgment, denied rehearing, and issued its mandate on August 5, 2005. See Nicot v. State, 905 So.2d 897 (Fla. 4th DCA 2005). The defendant filed his amended motion on July 16, 2007, within the requisite two years. The trial court mistakenly relied on the finality of a prior case (01-19888) belonging to the defendant to find the amended motion untimely.

The trial court also erred in finding the amended motion successive as to all claims. With regard to the defendant’s claim that defense counsel was ineffective in failing to call witnesses, the State had responded that the claim was legally insufficient because the defendant had failed to name the witnesses, state the substance of their testimony, indicate their availability, and why this failure constituted ineffective assistance of counsel. Without this information, it would have been impossible for the court to have ruled on the merits of this claim.

We therefore reverse and remand the case for attachment of record excerpts refuting the defendant’s claim concerning the failure to call witnesses or an evidentiary hearing. The other claims are either successive, were raised and disposed of on direct appeal, or were refuted by the State’s response.

Reversed and Remanded.

POLEN, HAZOURI and MAY, JJ., concur.


author: PER CURIAM. POLEN, J.,

text:
    Charles MILLER, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-4607.
    District Court of Appeal of Florida, Fourth District.
    April 15, 2009.
    Rehearing Denied June 5, 2009.

      Charles Miller, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Charles Miller appeals the trial court’s denial of his motion to correct an illegal sentence. Miller has repeatedly challenged the life sentence he received for armed robbery following revocation of his probation in 1996 in trial court case number 91-22625CF10A. Beginning with his direct appeal and in several postconviction motions, he has alleged his sentence is illegal based on errors on his guidelines scoresheet.

In the last 3.800(a) motion he claimed that the scoresheet improperly included seventeen “Legal Status” points. This court affirmed the denial of this motion. Miller v. State, 979 So.2d 237 (Fla. 4th DCA 2008).

In the present motion, Miller reargues scoresheet errors that he has previously raised in light of some State concessions in an attempt to show that he could not have received a life sentence.

The State has conceded that Miller should have received only twenty-five points in the “Same Category Priors” section and only fourteen points for victim injury. See Fla. R.Crim. P. 3.701(c); 3.701(d)(15); 3.988(c). The State does not concede that seventeen points should not have been scored for “Legal Status.” The State argues that resolution of this issue would require an evidentiary hearing, and as a result, this is not the proper subject of a rule 3.800(a) motion.

Whether Miller was under legal constraint when he committed the offenses in this case may not be apparent from the face of the record and may require an evidentiary hearing. See Fla. R.Crim. P. 3.701(d)(6) (defining “legal status at time of offense”). Miller has not cited any information in the record that shows he was not under legal constraint when he committed the primary or the additional offense before the court for sentencing, i.e. the 1991 armed robbery and aggravated battery.

However, even if Miller was correct that these seventeen points should not have been added and taking into account the State’s concession regarding the “Same Category Prior” and victim injury points, the record does not reflect that the life sentence is illegal. As the State pointed out in previous responses, the “Prior Record” section of Miller’s scoresheet was not added correctly. Only 152 points are listed in the subtotal for this section. If the points for the listed prior offenses are added correctly the subtotal for this section would be 218 points. Correcting the “Same Category Priors” and victim injury points based on the State’s concessions, the total points on the scoresheet should be 366. If it could be determined from the face of the record that seventeen points should not have been added for “Legal .Status at the Time of Offense,” the total points would be 349. With a two cell bump up from the original sentencing cell for Miller’s successive violations of probation, his permitted sentencing range would still be twenty-two years to life.

Because Miller could have received the same sentence even if all of the alleged scoresheet errors were corrected, he has not shown that his life sentence is illegal. See Brooke v. State, 969 So.2d 238 (Fla.2007).

Miller’s successive challenges to his sentence must stop unless he can show that the face of the record clearly demonstrates that he could not have received a life sentence in this case.

The circuit court’s order is affirmed.

HAZOURI and DAMOORGIAN, JJ., concur.

POLEN, J., concurs specially with opinion.

POLEN, J.,

concurring specially.

I agree with everything in the majority opinion, except I would end the last sentence at the words “must stop.... ”


text:
    Shelby BURNS, Petitioner, v. STATE of Florida, Respondent.
    No. 1D08-6048.
    District Court of Appeal of Florida, First District.
    April 16, 2009.
    Rehearing Denied May 21, 2009.
    Shelby Burns, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. See Fla. R.App. P. 9.141(c)(4)(A).

KAHN, DAVIS, and CLARK, JJ., concur.


author: NORTHCUTT, Chief Judge.

text:
    Ronnie SMITH, Appellant, v. STATE of Florida, Appellee.
    No. 2D07-1446.
    District Court of Appeal of Florida, Second District.
    April 17, 2009.

      James Marion Moorman, Public Defender, and Carol J.Y. Wilson, Assistant Public Defender, Bartow, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and William I. Munsey, Jr., Assistant Attorney General, Tampa, for Appel-lee.
   NORTHCUTT, Chief Judge.

The trial court held a bench trial on Ronnie Smith’s criminal charge without obtaining an effective waiver of Smith’s right to a jury trial. Therefore, we must reverse Smith’s conviction and remand for a new trial.

Smith was charged with violating section 812.155(3), Florida Statutes (2005), for failing to return a cement mixer he leased from Taylor Rental in September 2005. At a pretrial conference, Smith’s attorney announced that the defense was stipulating to a bench trial in exchange for the prosecutor’s agreement not to seek jail time if Smith lost at trial. Smith was present, but the judge did not address him regarding his decision to waive his right to a jury trial, and there was no mention of Smith’s signing a written waiver.

At the nonjury trial three days later, Taylor Rental’s representative testified to facts establishing a prima facie violation of the statute. Smith testified that he had been hospitalized when the mixer was being used at a jobsite, and he said that he only later learned from an employee that the mixer had not been returned to Taylor Rental but rather had been stolen from the jobsite.

Smith argues on appeal that the court erred in conducting a bench trial without a proper waiver of his right to a jury trial. A valid waiver of a criminal defendant’s right to a jury trial requires either a written waiver signed by the defendant or the defendant’s oral waiver after a proper colloquy with the trial judge. Johnson v. State, 994 So.2d 960, 963 (Fla.2008).

The trial judge must ensure that the defendant has validly waived the right to a jury trial before a bench trial may occur. Further, because a defendant’s silence clearly does not constitute a valid waiver, it logically follows that defendants are not required to break their silence (through either a request for a jury trial or an objection to the bench trial) to preserve appellate review of this claim.

Id. (citation omitted).

“Without a proper colloquy, a defendant’s stipulation does not function as a valid waiver of the right to a jury trial; such a waiver must be made knowingly and intelligently.” Johnson, 994 So.2d at 964; see also Zinnerman v. State, 985 So.2d 672, 674 (Fla. 2d DCA 2008) (en banc) (affirming defendant’s waiver of jury trial, which occurred after trial court “advised the defendant of the fundamental difference between a jury trial and a non-jury trial”). The record in this case does not contain a written or oral waiver by Smith. Accordingly, we must reverse and remand for a new trial.

We decline Smith’s invitation to reverse the denial of his motion for judgment of acquittal. But for purposes of retrial, we note that Smith is charged with a violation of the 2005 version of section 812.155(3), which states in pertinent part:

FAILURE TO REDELIVER HIRED OR LEASED PERSONAL PROPERTY.—Whoever, after hiring or leasing any personal property or equipment under an agreement to redeliver the same to the person letting such personal property or equipment or his or her agent at the termination of the period for which it was let, shall, without the consent of such person or persons and with the intent to defraud, abandon or willfully refuse to redeliver such personal property or equipment as agreed, shall, upon conviction, be guilty of a misdemeanor of the second degree, punishable as provided in s. 775.082 or s. 775.083, unless the value of the personal property or equipment is of a value of $300 or more; in that event the violation constitutes a felony of the third degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

§ 812.155(3) (emphasis supplied). The “intent to defraud” language was deleted in 2006. Ch. 2006-51, § 3 at 746, Laws of Fla. Thus, contrary to the trial court’s conclusion below, the State was required to prove Smith’s intent to defraud in order to convict him of the crime charged.

The 2005 statute also provided the State with a permissive inference of fraudulent intent for a violation of section 812.155(3): “failure to redeliver the property or equipment within 5 days after receipt of, or within 5 days after return receipt from, the certified mailing of the demand for return is prima facie evidence of fraudulent intent.” § 812.155(4)(b); see also State v. Rygwelski, 899 So.2d 498, 501 (Fla. 2d DCA 2005) (holding that statute created permissive inference rather than mandatory presumption). Contrary to the trial court’s conclusion below, this permissive inference “allows, but does not require,” the fact-finder to infer fraudulent intent from the failure to return property after the mailing of a certified letter demanding return. 899 So.2d at 501.

Reversed and remanded for a new trial.

FULMER and KHOUZAM, JJ„ Concur.


author: DAVIS, Judge.

text:
    Alexander BAEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-826.
    District Court of Appeal of Florida, Second District.
    April 17, 2009.
   DAVIS, Judge.

Alexander Baez challenges the postcon-viction court’s order summarily denying his Florida Rule of Criminal Procedure 3.800(a) motion to correct illegal sentence. We reverse.

In February 1996, Baez entered open guilty pleas in several cases to four counts of robbery with a firearm and one count each of burglary, grand theft auto, and grand theft (“the first set of cases”). The trial court sentenced him to concurrent terms of fifteen years’ prison followed by five years’ probation on the robbery charges, fifteen years on the burglary charge, and five years on each of the grand theft charges. The trial court also imposed a three-year minimum mandatory on one of the robbery counts.

At that same time, Baez also was charged in three separate cases with three counts of burglary of a dwelling (“the second set of cases”). He moved to suppress his statements in those cases, and the trial court granted his motion. The State appealed, and this court reversed the trial court’s order granting the motion to suppress and remanded for further proceedings. See State v. Baez, 704 So.2d 693 (Fla. 2d DCA 1997). In June 1998, on remand, Baez entered negotiated pleas to the second set of cases and was sentenced to three seven-year terms to be served concurrently with each other and with the sentences in the first set of cases.

Subsequently, in a rule 3.800(a) motion, Baez brought a successful Heggs challenge in the first set of cases, and the postconviction court resentenced him on those cases, reducing his fifteen-year terms to thirteen-year terms. However, at that time, the postconviction court also erroneously increased his seven-year negotiated sentences in the second set of cases to thirteen-year terms. Baez raised that error in a second rule 3.800(a) motion, which the postconviction court denied. This court, however, reversed that denial and “remanded for imposition of the sentences originally imposed” in the second set of cases. Baez v. State, 879 So.2d 22, 22 (Fla. 2d DCA 2004).

Baez then filed a third “motion to correct illegal sentence.” By this motion, Baez alleged that the court imposed an illegal sentence when, after correctly finding a Heggs violation in conjunction with the first set of cases, it resentenced him on those cases. Baez maintains that when resentencing on those cases, the court used a newly-prepared 1994 scoresheet, which included additional offense points for the second set of cases. Baez argues that those cases should not have been included in the scoresheet calculation because they were not pending before the court at the original February 1996 sentencing on the first set of cases. Baez further argues that by including the second set of cases as additional offenses on the newly-prepared 1994 scoresheet, the State added 25.2 points to his scoresheet total and changed the high end of his sentencing range from 135.12 months (11.26 years) to 166.625 months (13.89 years). He maintains that because the high end should have been 11.26 years, the thirteen-year sentences that were imposed upon resentencing on the first set of cases are illegal.

In summarily denying this claim, the postconviction court concluded as follows:

Each of the cases, even the cases to which the Defendant pled, were pending before the Court during the December 2000 resentencing, during which the Court specifically stated: “[A]ll of the cases are now before the Court for re-sentencing, I think one guideline sheet is the appropriate way and the required way to score.”

The postconviction court also attached to its order a portion of the transcript of the 2000 resentencing in which the sentencing court stated:

I think that all the cases, had it not been for the appeal [of the order granting the motion to suppress], would have been dealt with at one time, and sentencing on that first batch of cases would have been deferred until the second batch had concluded either by trial or a plea.

We do not agree.

Florida Rule of Criminal Procedure 3.702(d)(1) provides that “[a] comprehensive guidelines scoresheet shall be prepared for each defendant covering all offenses pending before the court for sentencing.” Furthermore, rule 3.702(d)(4) defines an “additional offense” as “any offense, other than the primary offense, pending before the court for sentencing.” In this case, the resentencing in 2000 was not based on a violation of probation, but rather on the fact that the first sentencing hearing had been conducted under laws not constitutionally enacted. Thus the “re-sentencing” in 2000 is actually intended under Heggs to serve as the original sentencing hearing that he should have received in February 1996.

In February 1996, when Baez was sentenced on the first set of cases, the second set was not pending before the court for sentencing, Although the court at the 2000 resentencing — which was based on the Heggs error- — was probably correct in stating that but for the granting of the motion to suppress and the ensuing appeal, all of the cases would have been dealt with in 1996, the fact is they were not. The trial court had granted the motion to suppress, and the State had appealed that decision. As such, those cases were not “pending before the court for sentencing” in February 1996 and should not have been included on the newly-calculated 1994 scoresheet as additional offenses when the court resentenced Baez in 2000 on the first set of cases. See Clark v. State, 572 So.2d 1387, 1390-91 (Fla.1991) (“[A]s a general rule, an offense should not be considered as ‘pending’ before the trial court for sentencing unless a verdict of guilt or a plea of guilty or nolo contendere has been obtained.”). Here, Baez did not enter his pleas to the second set of cases until June 1996.

We therefore reverse Baez’s sentences on the robbery with a firearm counts in cases 96-CF-2379, 96-CF-2922, 96-CF-2923, and 96-CF-2924 and the burglary count in case 96-CF-3272 and remand for resentencing using a 1994 scoresheet that does not include additional offense points for the offenses charged in cases 96-CF-3273, 96-CF-3274, and-96-CF-3275.

Reversed and remanded.

ALTENBERND and LaROSE, JJ., Concur.

      . Heggs v. State, 759 So.2d 620 (Fla.2000).

      . The record before us does not indicate that the trial court made any findings that would justify an upward departure.


author: NOBTHCUTT, Chief Judge.

text:
    In the Interest of L.L-R., a child. J.R., Appellant, v. Department of Children and Family Services and Guardian Ad Litem Program, Appellees.
    No. 2D08-2554.
    District Court of Appeal of Florida, Second District.
    April 17, 2009.

      Linda A. Lorrier of Linda A. Lorrier, P.A., Bradenton, for Appellant.
    Bill McCollum, Attorney General, Tallahassee, and Christopher Perone, Assistant Attorney General, Tampa, for Appellee Department of Children and Family Services.
    Jennifer S. Paullin of Guardian ad Litem Program, Orlando, for Appellee Guardian ad Litem Program.
   NOBTHCUTT, Chief Judge.

J.R., the father of L.L-R., challenges the order terminating his parental rights. The circuit court determined that he had abandoned the child. § 39.806(l)(b), Fla. Stat. (2006). The Department of Children and Family Services concedes that the evidence did not support the court’s ruling. We agree and reverse.

L.L-R. was removed from her mother’s custody in January 2007. The department filed a petition for dependency against both parents but listed J.R.’s whereabouts as “unknown.” Subsequent reports listed the father’s address as “Mexico” or stated that he “has not been located through diligent search.” About a year after L.LR. was taken into the department’s custody, J.R. was finally located in a New Jersey prison. He will remain imprisoned for seven or eight more years. Evidence showed that he is a foreign citizen illegally in this country.

Once the department contacted J.R. and advised him of the proceedings, he wrote the case manager, sent one or two letters to the child, and drew pictures for her. The department never offered J.R. a case plan. Instead, less than two months after he contacted the agency, it proceeded with a petition to terminate his rights based on his abandonment of the child.

At some point, J.R. indicated that he would be willing to relinquish his rights and a telephone hearing was convened for that purpose in April 2008. The court questioned J.R. to determine whether his decision to relinquish his rights was voluntary. In the course of the colloquy, the judge explained that there was no guarantee that J.R. would be kept apprised of the child’s well-being after his parental rights were terminated. At that point, J.R. stated that he didn’t know what to do. The judge wisely determined that J.R. had not voluntarily consented to the termination and proceeded to conduct a trial on the department’s allegation of abandonment.

The 2006 version of section 39.01(1) defines abandonment as:

a situation in which the parent ..., while being able, makes no provision for the child’s support and makes no effort to communicate with the child, which situation is sufficient to evince a willful rejection of parental obligations. If the efforts of the parent ... to support and communicate with the child are, in the opinion of the court, only marginal efforts that do not evince a settled purpose to assume all parental duties, the court may declare the child to be abandoned.

The statute also provides that “[t]he incarceration of a parent ... may support a finding of abandonment.” But incarceration does not constitute abandonment as a matter of law. Rather, it is a factor that courts may consider when determining whether the child has been abandoned. T.H. v. Dep’t of Children & Family Servs., 979 So.2d 1075, 1078 (Fla. 2d DCA 2008). “[T]he parent’s efforts, or lack thereof, to assume parental duties while incarcerated must be considered in light of the limited opportunities to assume those duties while in prison.” Id. at 1080 (citing Wirsing v. Dep’t of Health & Rehabilitative Servs., 498 So.2d 946, 948 (Fla.1986)).

Under this standard, the department failed to present clear and convincing evidence that J.R. abandoned his child. The testimony at trial showed that J.R. communicated with his child as soon as the department informed him of the dependency proceeding. See Wirsing, 498 So.2d at 948 (noting that incarcerated parent’s efforts to communicate with the child were not mere “lip service” and reversing trial court’s finding of abandonment); L.N. v. Dep’t of Children & Family Servs., 884 So.2d 291, 295 (Fla. 2d DCA 2004) (stating that the trial court overlooked the fact that the incarcerated mother communicated with her children to the fullest extent possible and that it improperly found she abandoned the children solely on the basis of her incarceration). J.R. was not given a case plan, and therefore he never had an opportunity to show that he intended to assume parental responsibilities during his incarceration. Accordingly, we reverse the order terminating J.R.’s rights.

The department also points out that the court did not consider the eleven factors used in determining whether the child’s manifest best interest would be served by termination. See § 39.810. We appreciate the department’s forthright concessions about the sufficiency of the evidence in this case. We note that if the department pursues termination of J.R.’s parental rights, the court must also thoroughly address the child’s best interest.

Reversed and remanded.

ALTENBERND and LaROSE, JJ„ Concur.

      . The mother’s rights to the child were also terminated, but she has not appealed the court's ruling.