author: HAZOURI, J.

text:
    Leotis LESTER, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 4D09-1730.
    District Court of Appeal of Florida, Fourth District.
    Sept. 28, 2011.

      Philip J. Massa, Regional Counsel, and Nancy Jack, Assistant Regional Counsel, Office of Criminal Conflict and Civil Regional Counsel, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellee.
   HAZOURI, J.

Leotis Lester, Jr., appeals from his conviction for first degree murder and attempted robbery of Mark Thibault. Lester raises two points on appeal. We affirm in all respects and choose to address his second point on appeal that the trial court erred in admitting into evidence an out-of-court identification made by the deceased victim under the dying declaration exception of the hearsay rule.

Prior to Thibault’s death, Boynton Beach Police Department detective Christopher Crawford, who had been monitoring Thibault’s condition, met with Thibault on January 26, 2007, in his hospital room to show him a photo lineup. Thibault could not speak, but blinked once for no and twice for yes when asked about each photo. When Detective Crawford showed him Lester’s picture and asked him if he was the person who shot him, Thibault blinked twice. He blinked once for all other pictures.

Lester argues that Detective Crawford’s testimony as to Thibault’s identification of Lester in the photo lineup was inadmissible hearsay because it did not meet the requirements of the dying declaration exception to the hearsay rule. He argues that there was no evidence that Thibault believed his death was imminent or that he had no hope of recovery. We disagree.

Dr. Eugenio Rodriguez treated Thibault when he was brought to the hospital on January 20, 2007. He had a gunshot wound to the left side of his neck, had been intubated, and was in critical condition. The bullet went in though his carotid artery and into the spinal cord, transecting them both. His brain had stopped receiving blood, causing injury and severe damage because of the loss of oxygen. He had a severe spinal cord injury and was a quadriplegic. He needed assistance in breathing. Surgery was necessary for the massive bleeding. Rodriguez opined that someone with that injury would most probably die in the first three days, or if he survived, it would be in a vegetative state.

Dr. Adel Monsor began treating Thi-bault on January 24, 2007, in the trauma intensive care unit. Thibault was totally dependent on the ventilator and had a tracheostomy. Thibault had also had a stroke of the left hemisphere of the brain. He could not speak, but Monsor communicated with him through eye blinks and head nods. Thibault was appropriately responsive. The gunshot wound disconnected the phrenic nerves which caused his diaphragm to not work. He was unable to breathe on his own. The damage to the spinal cord and the brain were not repairable, nor would they regenerate. After Monsor saw Thibault the first day, it was his prognosis that Thibault would not survive his hospitalization. On that first day he explained to Thibault the severity of his injuries. He did not specifically tell Thi-bault that he was not likely to survive because that would create a barrier between him and Thibault.

On January 25, 2007, Thibault developed pneumonia and a staph infection. On January 26, 2007, Thibault had a fever, was anemic, and a neck infection started to evolve. Dr. Monsor told Thibault he was deteriorating. Thibault was more comfortable with him by that time. He told Thi-bault he was developing more complications and getting sicker, which Thibault acknowledged. On January 29, 2007, he specifically told Thibault his prognosis was death. Thibault agreed to a DNR.

After the doctors’ testimony, there was argument on the issue of dying declaration. Lester argued that there was no proof that Thibault had a state of mind at the time of the ID that appreciated the near and inevitable approach of death and was without any hope of recovery. The court found:

The Court does, however, after hearing the medical testimony presented, as well as the other evidence, find that Mr. Thi-bault did at the time of this utterance and that being the testimony would be the blinking and the — when he was shown various pictures, did in fact, know his death was immanent [sic] and inevitable. The Court does find that based on the evidence that he did entertain no hope whatsoever of recovery.
The Court does believe that this is a dying declaration and does qualify under the evidence code and therefore I’m going [sic] grant the State’s motion to admit the evidence.

Section 90.804(2)(b), Florida Statutes (2007), provides an exception to the hearsay rule for “a statement made by a declarant while reasonably believing that his or her death was imminent, concerning the physical cause or instrumentalities of what the declarant believed to be impending death or the circumstances surrounding impending death.” In Hayward v. State, 24 So.3d 17 (Fla.2009), the supreme court held:

Pursuant to section 90.804(2)(b), Florida Statutes (2007), and this Court’s prior rulings, the deceased must have known and “appreciated his condition as being that of an approach to certain and immediate death,” although it is not necessary that the declarant “make express utterances” that he would never recover. Henry v. State, 613 So.2d 429, 431 (Fla. 1992) (quoting Lester v. State, 37 Fla. 382, 20 So. 232, 233 (1896)). “Rather, the court should satisfy itself, on the totality of the circumstances,” that the deceased knew he was dying. Id. (quoting Lester, 20 So. at 233). This Court has said the “absence of all hope of recovery, and appreciation by the de-clarant of his speedy and inevitable death, are a preliminary foundation that must always be laid to make such declarations admissible.” McRane v. State, 142 Fla. 240, 194 So. 632, 636 (1940) (quoting Lester, 20 So. at 233). Further, the declarant must not have merely considered himself in imminent danger, but he must have “believed he was without hope of recovery.” Dixon v. State, 13 Fla. 636, 640 (1869); see also Morris v. State, 100 Fla. 850, 130 So. 582, 584 (1930) (“[The declarant] knew unquestionably, that he had been mortally wounded.”).

Id. at 30-31. Although the admissibility of evidence is generally reviewed for abuse of discretion, “whether a proper and sufficient predicate has been established for the admission of a statement under the dying declaration hearsay exception is a mixed question of law and fact that is reviewed under a ‘clearly erroneous’ standard.” Jones v. State, 36 So.3d 903, 908 (Fla. 4th DCA 2010) (citations omitted).

In Labon v. State, 868 So.2d 1222 (Fla. 3d DCA 2004), the victim was shot and admitted to the hospital for a penetrating wound to the head, neck, and torso. A detective came to the trauma center and spoke with the victim shortly before his surgery and while he was in critical care. The victim was in pain, but able to communicate. He had lost sensation to his legs, had IV tubes draining blood from him and he was going into emergency surgery. He told the detective that the defendant shot him. He died eleven days later from complications of the gunshot wound to the neck. The district court affirmed the admission of this dying declaration by the trial court holding:

A declarant need not make express utterances regarding knowledge of impending death in order for the statement to be admitted as a dying declaration. However, the court must be satisfied that the deceased knew and appreciated the severity of his or her condition as one where he or she was facing imminent death.

Id. at 1223 (internal citations omitted).

In Williams v. State, 967 So.2d 735 (Fla. 2007), the victim was stabbed in the back and in the heart, told the 911 operator that she was dying, and made statements as to who stabbed her. As well, she made statements to a detective after she regained consciousness from general anesthesia and was expressing her fear of dying. The court further noted:

Also relevant to [her] perception of her imminent death following her surgery is a recognition that she was attached to medical machinery, including a respirator, a heart monitor, and two chest tubes, of which she was clearly aware. Despite supportive attempts by hospital personnel, there is no clear evidence from the record that [she] believed she had any hope of recovery. Under these facts, we conclude that the admission of the hospital statements as dying declarations was not clearly erroneous.

Id. at 749.

As indicated from the testimony of the doctors, by the date of the statement given by Thibault, he was completely paralyzed below the neck, could not breathe on his own, had developed pneumonia and a staph infection, and had been told by the doctor of his condition and by January 26, 2007, that his condition was deteriorating. He was aware of what was happening to him because the doctor could speak to him and he would respond appropriately with the eye blinks. He was always in the intensive care unit. From these circumstances, we conclude that the trial court’s admission of Thibault’s identification as a dying declaration was not clearly erroneous.

Affirmed.

MAY, C.J., and CONNER, J., concur.


source: Caselaw Access Project

author: KELLY, Judge. LaROSE, Judge,

license: Public Domain

text:
    Dave P. SHARMA, Individually, and as President and Director of Shri Saraswati Devi Mandir, Inc., a Florida nonprofit corporation, Appellant, v. Narine RAMLAL; Naraine Annirude; Puchoon Surujal, a/k/a Pucoon Surujlal; and Rajendra Singh, Appellees.
    No. 2D10-5211.
    District Court of Appeal of Florida, Second District.
    Nov. 2, 2011.
    Rehearing Denied Dec. 13, 2011.

      Charles A. Samarkos and Kimberly Sharpe of Johnson, Pope, Bokor, Ruppel & Burns, LLP, Clearwater, and Katharine Ballingrud of Katharine H. Ballingrud, P.A., Orlando, for Appellant.
    Thomas S. Rutherford, Tampa, for Ap-pellees.
   KELLY, Judge.

Dave P. Sharma, individually, and as President and Director of Shri Saraswati Devi Mandir, Inc., appeals from the final summary judgment rendered in favor of the appellees, Narine Ramlal, Naraine An-nirude, Puchoon Surujal and Rajendra Singh. Because the appellees failed to carry their burden of showing that no genuine issues of material fact remain, we reverse and remand for further proceedings. See Fla. R. Civ. P. 1.510(c); Volusia Cnty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla.2000) (“Summary judgment is proper if there is no genuine issue of material fact and if the moving party is entitled to a judgment as a matter of law.”); Holl v. Talcott, 191 So.2d 40, 48 (Fla.1966) (“the burden to prove the nonexistence of genuine triable issues is on the moving party.”).

Reversed and remanded.

KHOUZAM, J„ Concurs.

LaROSE, J., Concurs with opinion.

LaROSE, Judge,

Concurring.

I fully concur that this case must be reversed and remanded for further proceedings in the trial court. Appellees failed to establish that no genuine issues of material fact remained. Consequently, the grant of summary judgment was unwarranted.

On a more fundamental matter, I question appellees’ standing to sue. See Wiccan Religious Coop. of Fla., Inc. v. Zin-gale, 898 So.2d 134, 135 (Fla. 1st DCA 2005), review dismissed, 944 So.2d 233 (Fla.2006) (holding that taxpayer, a religious organization, lacked standing to bring challenge alleging unconstitutionality of sales tax exemption statute; taxpayer benefited from exemption and, thus, failed to have adverse interest necessary for standing and was not a proper party to assert challenge). Appellees, apparently in their individual capacities, sued appellants. The alleged causes of action, however, may very well belong to the nonprofit corporation. Such derivative claims cannot be asserted in individual capacities. See, e.g., Stein v. Schecter, 478 So.2d 1072, 1072-73 (Fla. 3d DCA 1985).

Shri Saraswati Devi Mandir, Inc., is a Hindu temple established as a nonprofit corporation under the Internal Revenue Code. Dave P. Sharma is a Hindu priest and president of the church.

Our record suggests that disputes between Mr. Sharma and segments of the congregation arose over forms of worship. Neither we nor the trial court was asked to entangle ourselves in that ecclesiastical matter. See Mendes v. da Silva, 980 So.2d 631, 632 (Fla. 2d DCA 2008) (citing Malicki v. Doe, 814 So.2d 347 (Fla.2002)); Archdiocese of Miami, Inc. v. Miñagorri, 954 So.2d 640, 641 (Fla. 3d DCA 2007), review dismissed, 985 So.2d 1086 (Fla. 2008), cert. denied, 555 U.S. 1102, 129 S.Ct. 936, 173 L.Ed.2d 113 (2009); House of God Which is the Church of the Living God, the Pillar and Ground of the Truth Without Controversy, Inc. v. White, 792 So.2d 491, 493 (Fla. 4th DCA 2001). What is sure, however, is that the dispute spiraled into a battle over corporate governance, control, and management.

As a result, the appellees — directors, and members of the temple — sued Mr. Sharma and the temple. They asserted causes of action for declaratory judgment, fraud, breach of fiduciary duty, accounting, and injunctive relief. I see nothing in the complaint indicating that appellees brought their causes of action in a representative capacity. Yet, much of the relief requested in the complaint, if granted, should rightfully inure to the temple’s benefit.

If the causes of action are indeed derivative, the appellees have not alleged compliance with the presuit requirements of section 617.07401, Florida Statutes (2009), applicable to nonprofit corporations. Moreover, they have asserted no basis as to why they can maintain this lawsuit. Although the appellees dismissed all causes of action save the one for declaratory relief, an action for declaratory relief may be brought as a derivative claim. See, e.g., C.A.T., LLC v. Island Developers, Ltd., 827 So.2d 373, 374 (Fla. 3d DCA 2002).

It does not appear that this issue was addressed at any point in the proceedings before the trial court. Nonetheless, I hope that upon remand any relief that may be awarded will be carefully considered with an eye towards ensuring that the interests of proper parties are acknowledged. See Mt. Olive Primitive Baptist Church of Jacksonville v. Harris, 860 So.2d 520, 521 (Fla. 1st DCA 2003).


author: PER CURIAM. ORFINGER, C.J.,

text:
    Dimitry THELAMOUR, Appellant, v. STATE of Florida, Appellee.
    No. 5D09-3676.
    District Court of Appeal of Florida, Fifth District.
    Nov. 10, 2011.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Rock McGuigan, Assistant Attorney General, Daytona Beach, for Appellee.
   PER CURIAM.

AFFIRMED.

SAWAYA and MONACO, JJ., concur.

ORFINGER, C.J., dissents, with opinion.

ORFINGER, C.J.,

dissenting.

This case involved a shooting. The victim and Dimitry Thelamour were friends, at least until this incident. They travelled together to a cookout where the victim was shot. After the shooting, the victim passed out and woke up in the hospital. He told the police that Thelamour shot him, but indicated he did not want to press charges against him. However, a few days later, the victim changed his mind when he discovered that his apartment had been burglarized and he suspected that Thelam-our was the perpetrator.

The primary issue in dispute at trial was the shooter’s identity and, more specifically, the victim’s ability to identify the shooter. On cross-examination, the victim denied telling his former roommate, Goodwin Aine, that he did not know who shot him. Defense counsel subsequently called Aine to impeach the victim by testifying that the ■victim told him that he did not know who shot him. However, before the jury could hear that testimony, the State objected, arguing that the victim’s alleged out-of-court statement to Aine was hearsay. Defense counsel responded, asserting that the testimony was not hearsay because it was being used to impeach the victim with a prior inconsistent statement, and was not being offered to prove the truth of the matter asserted. Having considered the matter further, the State withdrew its hearsay objection, conceding that the testimony was admissible under defense counsel’s theory. Nonetheless, the trial court concluded that the testimony was inadmissible hearsay and excluded it. The trial court’s ruling was clear error.

On appeal, the State concedes that the trial court erred in excluding Aine’s impeachment testimony. See Tarner v. State, 938 So.2d 635, 637 (Fla. 5th DCA 2006) (“A statement offered to impeach a witness is not hearsay because it is not offered to prove the truth of the matter asserted. Rather, it is offered to show why the witness is not trustworthy.”). However, the State argues that the error was harmless. Apparently, that view is shared by my colleagues and is one from which I respectfully dissent.

“The [harmless error] test is not a sufficiency-of-the-evidence, a correct result, a not clearly wrong, a substantial evidence, a more probable than not, a clear and convincing, or even an overwhelming evidence test. Harmless error is not a device for the appellate court to substitute itself for the trier-of-fact by simply weighing the evidence. The focus is on the effect of the error on the trier-of-fact. The question is whether there is a reasonable possibility that the error affected the verdict.” State v. DiGuilio, 491 So.2d 1129, 1139 (Fla. 1986). Applying that test here, I cannot conclude that the improper exclusion of the impeachment testimony was harmless. The only serious dispute in this matter was the identity of the shooter. Only the victim could identify the shooter, and to the extent that the victim’s roommate’s testimony could have impeached him, I believe it was harmful error to exclude it. Finally, I believe this case is indistinguishable from, and controlled by, our recent decision in Marshall v. State, 68 So.3d 374 (Fla. 5th DCA 2011). As a result, I respectfully dissent and would reverse the matter for a new trial.


author: DAMOORGIAN., J.

text:
    Milagro D. ESCOBAR, Appellant, v. Jose A. ESCOBAR, Appellee.
    No. 4D10-4310.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 2011.

      Paul Kim and Lisa Daniels of The Law Offices of Lisa L. Daniels, P.A., Boca Ra-ton, for appellant.
    No appearance for appellee.
   DAMOORGIAN., J.

Appellant, Milagro Escobar, timely appeals an order denying Appellee’s, Jose Escobar’s, supplemental petition for modification of child support, which reduced Appellee’s child support obligation from six hundred dollars bi-weekly to six hundred dollars semi-monthly retroactive to the 2004 final judgment of dissolution of marriage.

Milagro Escobar (hereinafter “Former Wife”) and Jose Escobar (hereinafter “Former Husband”) were previously married and have three children together from that marriage. The Former Husband filed a petition for dissolution of marriage with dependent or minor children in 2003, which ultimately led to the parties entering into a marital settlement agreement determining the Former Husband’s child support obligation. The agreement was incorporated into the final judgment of dissolution of marriage.

The marital settlement agreement established that the Former Husband would be responsible for paying six hundred dollars “every two weeks” or “bi-weekly” in child support “until the youngest minor Child attainted] the age of eighteen or graduated] from High School, whichever occurs later but not to extend beyond the age of 19, becomes emancipated or dies.” However, in the “Alimony” section, the agreement stated that child support would be paid at the rate of twelve hundred dollars per month.

Beginning in 2006, the Former Husband attempted through various motions to terminate child support for his older children as they attained the age of majority. In doing so, he also sought to recover any child support paid for those children from that point. In one of his motions, the Former Husband also sought clarification with regard to the calculation of child support, pointing to the conflict between the “Child Support” and “Alimony” sections in the agreement. These attempts were denied, with the court concluding that there was no ambiguity in the language of the parties’ agreement and explaining that the Former Husband “had agreed to pay child support of $600.00 every 2 weeks whether there were 3, 2 or 1 remaining minor Child.” Finally in 2009, the Former Husband filed a supplemental petition for modification of child support, alleging that his middle child was turning eighteen in May of 2009. Again, the Former Husband requested his child support be reduced because only one of his children had not reached the age of majority.

The trial court set the Former Husband’s petition for a non-jury trial. Following the trial, the trial court entered an order denying the Former Husband’s supplemental petition for modification of child support. The trial court’s order noted that the Former Husband was not making what he earned before because his position changed in 2009, but the Former Husband had not pled the change in circumstances. Concluding that the sole basis pled by the Former Husband for modification of the child support was the legal emancipation of two of the three minor children, the court nonetheless determined that the Former Husband could have a legal basis to modify his child support downward in the future based on a permanent downward change in income if properly pled.

In relevant part, the order on appeal also stated:

Unfortunately for the Former Husband he made a very bad bargain. He agreed that despite the legal emancipation by majority or otherwise of the 2 elder Children that “... Child Support shall continue until the youngest minor Child attains the age of eighteen....” He also contracted "... to pay the sum of $600.00 bi-weekly....” Accordingly, the Former Husband who reasonably anticipated, knew or should have known that the older 2 Children would legally emancipate nevertheless agreed to pay $1,200.00 per month for the remaining minor Child.
The Court concludes, however, from the totality of the MEMORANDUM OF AGREEMENT (specifically the child support and alimony provisions) and the parties’ testimony that the Former Husband is obliged to pay child support of $1,200.00 per month which must be charged at the rate of $600.00 twice monthly (or 24 installments) rather than bi-weekly (which is 26 installments) per year.

(Emphasis supplied). In its final disposition, the court ruled that the assessments were modified retroactively, giving the Former Husband a credit balance of $9,186.44.

On appeal, the Former Wife argues that the trial court erred when it revised the child support to a semi-monthly basis instead of bi-weekly because the court had previously held in its 2006 order that the agreement was unambiguous, requiring biweekly payments. Therefore, since no appeal was taken from that order, the Former Wife contends the trial court had no jurisdiction to now conclude that the agreement may be given a different interpretation. We agree.

The standard of review governing a trial court’s decision to modify child support is abuse of discretion. See Cordell v. Cordell, 30 So.3d 647, 649 (Fla. Sd DCA 2010) (reviewing a trial court’s decision to modify child support retroactive to the date of the final judgment for an abuse of discretion) (citations omitted). However, because we are required to determine whether the doctrine of res judicata prohibits the trial court from revisiting the 2006 order, the standard of review is de novo. Engle v. Liggett Group, Inc., 945 So.2d 1246, 1259 (Fla.2006).

The Former Husband did not plead a change in circumstances, as the trial court noted. Rather he petitioned for a modification based on the fact that two of his three minor children had reached the age of majority. Notwithstanding, the order on appeal made a change to the child support payment terms, determining that child support was due semi-monthly instead of bi-weekly despite the existence of a 2006 order. The 2006 order concluded that the agreement was unambiguous and child support payments were due every two weeks. We hold that the 2006 order was res judicata with respect to the payment terms in the agreement and that the trial court did not have the authority to later change those terms. See Sullivan v. Hoff-Sullivan, 58 So.3d 293, 294 (Fla. 1st DCA 2011) (holding that appellee was barred by res judicata from relitigating the interpretation of the parties’ divorce agreement in Florida where a Georgia court had previously entered orders interpreting the parties’ divorce agreement).

We also note that the Former Husband did not allege any ambiguity in the agreement regarding payment terms in his supplemental petition for modification before the trial court. Ambiguity in the marital settlement agreement had been alleged in the Former Husband’s previous motions, which were ruled upon in 2006. Yet the trial court, in ruling on the Former Husband’s petition, modified the payment terms of the support from, bi-weekly to twice a month-twenty-six versus twenty-four installments a year-“to correctly effectuate the terms of the parties’ [marital settlement agreement].” Accordingly, we hold that the trial court also erred in awarding relief not requested. See Cardinal Inv. Group, Inc. v. Giles, 813 So.2d 262, 263 (Fla. 4th DCA 2002) (“[C]ourts are not authorized to grant relief not requested in the pleadings.”); see also Homestead-Miami Speedway, LLC v. City of Miami, 828 So.2d 411, 413 (Fla. 3d DCA 2002) (striking portion of order providing relief that was neither pled nor requested).

Because we are reversing the order on appeal, the Former Wife’s remaining points on appeal are rendered moot.

Reversed.

WARNER and GERBER, JJ., concur.


author: PER CURIAM.

text:
    Delrick JOHNSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D10-2983.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 2011.

      Delrick Johnson, Mayo, pro se.
    No appearance required for appellee.
   PER CURIAM.

Delrick Johnson (Defendant) appeals an order summarily denying his rule 3.800(a) motion to correct illegal sentence. We affirm, but not for the reason provided by the trial court.

Defendant’s first ground was that the same factors which were taken into account to calculate his guidelines score-sheet — including prior offenses, such as the robbery with a deadly weapon that was used to qualify him as a habitual violent felony offender — cannot be used as aggravating circumstances to depart upward from the guidelines. This claim lacks merit. While it is true that factors that already have been taken into account in calculating a guidelines score cannot be used also as aggravating circumstances for a departure sentence, Brown v. State, 763 So.2d 1190, 1192 (Fla. 4th DCA 2000), Defendant was not given an upward departure sentence; he was sentenced pursuant to the habitualization statute and thus was not subject to the sentencing restrictions of the guidelines. § 775.084(4)(e), Fla. Stat. (1989) (providing that sentencing under the habitual offender statute is not subject to the provisions of section 921.001, the statute governing the sentencing guidelines).

Defendant’s second ground was that the evidence presented at his sentencing hearing was insufficient to establish his release date from prison, though he notes that defense counsel conceded his qualification as a habitual felony offender (HFO). Sentencing as a HFO also would have required that the offense for which he was being sentenced was committed within five years of the date of conviction of the last prior felony or within five years of his release from a prior felony conviction. Compare § 775.084(l)(a)2., Fla. Stat. (1989), with § 775.084(l)(b)2., Fla. Stat. (1989). This claim is based on his allegation that the state did not provide a “certified copy” of his release date.

The second ground is not cognizable in a rule 3.800(a) motion; in it, Defendant attacked the process by which he was sentenced, not the legality of the sentence. See, e.g., Ward v. State, 946 So.2d 33 (Fla. 2d DCA 2006) (holding that claim that Department of Corrections affidavit supporting prison releasee reoffender sentence was not admissible was not cognizable in rule 3.800(a) motion to correct sentence). Even if the merits could be reached, the ground would lack merit. According to the motion, the case number for his prior conviction of robbery with a deadly weapon was no. 87-1286. According to the direct appeal opinion, he was convicted of this prior offense in 1987. That prior felony conviction occurred within five years of the date of commission of the instant offense, in 1989. Thus, no proof of release date was necessary.

Affirmed.

MAY, C.J., STEVENSON and LEVINE, JJ., concur.

      . The trial court denied the motion as "repetitive,” but did not attach any portions of the record to demonstrate that the same grounds for relief had been raised previously.


author: POLEN, J.

text:
    LANDMARK AMERICAN INSURANCE COMPANY, Appellant, v. STUDIO IMPORTS, LTD., INC., Appellee.
    Nos. 4D10-5001, 4D10-5073.
    District Court of Appeal of Florida, Fourth District.
    Nov. 16, 2011.
    Anthony J. Russo and Ezequiel Lugo of Butler Pappas Weihmuller Katz Craig, LLP, Tampa, and Lauren D. Levy of Butler Pappas Weihmuller Katz Craig, LLP, Miami, for appellant.
    Kevin H. Fabrikant of Law Offices of Kevin H. Fabrikant & Associates, P.L., Hollywood, for appellee.
   POLEN, J.

Appellant, Landmark American Insurance Company (“Landmark”), appeals a non-final trial court order in which the trial court granted Landmark’s motion to dismiss as to four of six counts of Studio Imports, Ltd., Inc.’s (“Studio”) complaint, but denied Landmark’s motion as to the remaining two, leaving only a breach of contract claim and a bad faith claim to be tried simultaneously. We hold that Landmark should not have to defend against a bad faith claim at the same time as the underlying issue without the appellee first prevailing on the merits. Accordingly, we reverse this matter so the trial court can determine whether the bad faith claim should be abated or dismissed without prejudice.

Landmark and Studio entered into a contract for Landmark to provide insurance coverage to Studio for commercial property, personal property, and business income. In October 2005, Hurricane Wilma caused extensive damage to Studio’s property, which, coincidentally, also resulted in a loss of business income. Studio claimed that Landmark “took an exceedingly and unjustifiably long time to” reimburse Studio for those losses which caused additional damages, such as “loss of goodwill, a damaged reputation with existing and potential customers, ruined business relationships, and ruined banking relationships.” Studio filed a six count complaint, alleging that Landmark breached obligations to Studio under a contract between the parties. Specifically, count II alleged statutory bad faith and unfair claim practices.

Landmark filed a motion to dismiss all six counts of the complaint. A hearing on the motion to dismiss was held. The trial court granted Landmark’s motion to dismiss for all counts except breach of contract and bad faith under section 624.155, Florida Statutes, thus allowing Studio to prosecute both claims simultaneously. Landmark then filed this appeal, asking this court to exercise jurisdiction, issue a writ of certiorari, and quash the written order denying the dismissal of the count for statutory bad faith.

“The standard of review of a trial court’s denial of a motion to dismiss is de novo.” Simpson v. State, 38 So.3d 776, 778 (Fla. 4th DCA 2010).

This court held in State Farm Mutual Automobile Insurance Co. v. Tranchese, 49 So.3d 809 (Fla. 4th DCA 2010), that writ of certiorari is properly granted to abate the cause of action for violation of section 624.155, Florida Statutes, until underlying claim determinations are made. Id. at 809-10. “Where causes of action for both the underlying damages and bad faith are brought in the same action, the appropriate step is to abate the bad faith action until coverage and damages have been determined.” Id. at 810. Additionally, the Supreme Court of Florida held in Blanchard v. State Farm Mutual Automobile Insurance Co., 575 So.2d 1289 (Fla.1991), that “an insured’s underlying first-party action for insurance benefits against the insurer necessarily must be resolved favorably to the insured before the cause of action for bad faith in settlement negotiations can accrue.” Id. at 1291. If a determination regarding liability is not made, a cause of action for bad faith can never ripen. See id.

The First District Court of Appeal applied Blanchard in Vanguard Fire & Casualty Co. v. Golmon, 955 So.2d 591 (Fla. 1st DCA 2006), and determined that cer-tiorari review is properly granted when the trial court departs from essential requirements of law, such as allowing a party “to proceed on [a] statutory bad faith elaim[ ] before the extent of coverage was determined in [a] breach of contract claim.” Id. at 593. The First District quashed the order under review, which would have forced Vanguard to simultaneously “defend against both the breach of contract and bad faith claims.” Id. at 594. Further, the First District provided “that the trial court has authority to abate the statutory claims, rather than to dismiss them, if it appears to the court that abatement would be in the interest of judicial economy.” Id. at 595.

Therefore, we reverse the trial court order, which would require Landmark to defend against both a breach of contract claim and a bad faith claim simultaneously, as the underlying issue must be determined prior to a bad faith claim. The trial court can decide to either dismiss the bad faith claim without prejudice or abate the claim until the underlying breach of contract issue is resolved.

Reversed and Remanded.

GROSS and CONNER, JJ., concur.

      . Section 624.155(l)(b), Florida Statutes, allows a civil action to be brought against an insurer when the insurer does not attempt "in good faith to settle claims [and] it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests.” § 624.155(l)(b)(l), Fla. Stat. (2011).


author: THOMAS, J.

text:
    HSBC BANK USA, N.A., as Trustee for the Registered Holders of Renaissance Home Equity Trust 2006-1, Appellant, v. William J. REED, Teresa K. Reed, et al., Appellees.
    No. 1D10-6209.
    District Court of Appeal of Florida, First District.
    Nov. 16, 2011.
    Rehearing Denied Jan. 10, 2012.
    Katherine J. Walke, Lance E. Forman and Thomas M. Moon of Van Ness Law Firm, P.A., Deerfield Beach, for Appellant.
    Charles G. Brackins and John R. Dowd, Jr., of The Dowd Law Firm, P.A., Fort Walton Beach, for Appellees.
   THOMAS, J.

Appellant appeals the trial court’s Order On Motion To Enforce Settlement Agreement. Appellant contends the trial court erred in finding the Mediated Settlement Agreement (“Settlement Agreement”) enforceable and in defining its terms. Because we find that the trial court was without jurisdiction to enter the Order On Motion To Enforce Settlement Agreement, we quash the order.

Facts

On December 30, 2008, Appellant initiated a foreclosure action as a result of Appellees’ default on their promissory note and mortgage. On June 7, 2010, Appellees filed a motion for mediation. Two days later, on June 9, 2010, the trial court entered a final judgment in mortgage foreclosure in favor of Appellant, which included an award of attorney’s fees and costs. At some point after the final judgment was entered, the trial court conducted a hearing on Appellees’ motion for mediation, but for reasons that have not been made clear to this court, a transcript of this hearing was not included in the record. Twenty days after the entry of the final judgment, on June 29, 2010, nunc pro tunc June 9, 2010, the trial court entered an order purportedly requiring post-judgment mediation. During the post-judgment mediation, the parties signed what is now the disputed Settlement Agreement.

Appellees filed a Motion to Enforce Settlement Agreement, asserting that the parties reached a final settlement at the mediation conference and that the proposed Modification Agreement deviated from the parties’ Settlement Agreement on a number of terms. Appellant filed a reply to Appellees’ motion, arguing that the Settlement Agreement was actually a conditional agreement pending execution of the Modification Agreement and receipt of the first payment from Appellees.

A hearing was held on Appellees’ motion. A transcript of this proceeding was not provided by either party on appeal. Pursuant to rules 9.200(a)(4) and 9.200(b)(4), Florida Rules of Appellate Procedure, the parties provided a stipulated statement of the proceedings, indicating that the court did not swear any witnesses, take any testimony, or admit any evidence into the record. The trial court’s Order On Motion To Enforce Settlement purportedly modified a number of terms of the note and mortgage.

Analysis

Although not raised by either party, the Order On Motion To Enforce Settlement, entered after entry of the final judgment, is not a valid order. “Once a final judgment has been rendered and the time for filing a petition for rehearing or motion for new trial has passed the court loses all jurisdiction over the cause other than to see that proper entry of the judgment or decree is made and the rights determined and fixed by it are properly enforced.” Seddon v. Harpster, 438 So.2d 165, 168 (Fla. 5th DCA 1983); see also Pruitt v. Brock, 437 So.2d 768, 772-773 (Fla. 1st DCA 1983) (holding that “ ‘[i]t is the established law of this state that a trial court loses jurisdiction of a case at the expiration of the time for filing a petition for rehearing ...’”) (citation omitted). Although from the record it appears that the trial court was attempting to correct the parties’ failure to attend mandatory mediation, it was without jurisdiction to issue the order requiring post-judgment mediation and the Order On Motion To Enforce Settlement Agreement, because it had not vacated the final judgment entered on June 9, 2010.

We do not address whether this order precludes relief pursuant to rule 1.540(b)(5), Florida Rules of Civil Procedure.

The trial court’s Order On Motion To Enforce Settlement Agreement is QUASHED.

ROBERTS and CLARK, JJ., concur.


text:
    Michael BERRIOS, Appellant, v. DEUK SPINE, et al., Appellee.
    No. 5D09-2857.
    District Court of Appeal of Florida, Fifth District.
    Nov. 18, 2011.
    Rehearing and Rehearing En Banc Denied Jan. 10, 2012.
    Dale T. Gobel and Kimberly D. Webb, of Gobel Flakes, LLC, Orlando, for Appellant.
    Martin J. Jaffe and Keith R. Mitnik, of Morgan & Morgan, P.A., Orlando, for Ap-pellee, Krystal Pennea.
    Kimberly P. Simoes, of The Simoes Law Group, P.A., DeLand, for Appellees, Millennium Medical Management, LLC a/k/a Deuk Spine, et al.
    Bard D. Rockenbach and Nichole J. Se-gal, of Burlington & Rockenbach, P.A., West Palm Beach, Amicus Curiae, for Florida Justice Association.
   PER CURIAM.

Michael Berrios [“Berrios”] timely appeals the trial court’s order dismissing with prejudice his counterclaim against Krystal M. Pennea [“Pennea”] and Millennium Medical Management, LLC, a/k/a Deuk Spine Institute, Deuk Spine Institute, M.D., and Deuk Spine [“Deuk Spine”]. Berrios contends that the trial court erred by dismissing his counterclaim with prejudice. We affirm.

On May 4, 2009, Pennea brought suit against Berrios, alleging that Berrios “negligently operated and/or maintained [a] motor vehicle so that it collided with [her] motor vehicle,” causing her to be injured. She received treatment for certain of her injuries from Deuk Spine. Among his affirmative defenses, Berrios asserted:

8.Lastly, Plaintiff [sic] denies Plaintiffs damages to the extent that she claims payment on invoices that are not lawful or not properly payable as provided by Florida Law. More specifically, Defendant denies that the statements submitted for The Deuk Spine Institute are properly payable.

Berrios also filed a “counterclaim,” seeking to make Deuk Spine a party to the lawsuit for declaratory relief. Berrios alleged in pertinent part:

8. As part of the underlying claim for damages related to the accident, Pennea is requesting compensation for the charges from Deuk Spine Institute. Pennea’s counsel executed a “Letter of Protection” relating to the charges submitted by the Deuk Spine Institute, making the Deuk Spine Institute an interested party in this litigation, as the Deuk Spine Institute has a contingent interest in this litigation.
9. Deuk Spine Institute allegedly billed Pennea in excess of $50,000 for various treatments and tests. See the related invoices attached hereto as Exhibit “A” and incorporated herein as if fully restated.
10. Berrios questions whether or not the bills (and the services underlying those bills) submitted by Deuk Spine Institute were in compliance with all relevant applicable criminal, civil, and administrative requirements of state and federal law related to the provision of medical services, whether the bills were related to the accident underlying this action, and whether the charges constitute reasonable charges for which either Berrios or Pennea should be responsible.

Berrios further alleged:

16. Defendant believes that the bills submitted by Deuk are not compensable, represent bills for services that were not performed, and represent an unreasonable and excessive fee for the service performed. Defendant believes that neither Berrios nor Pennea should be responsible for any of the billed charges, or alternatively, that neither party should be responsible for the full amount of the billed charges.

Berrios requested that the trial court determine the following:

a. Whether the bills and the services underlying those bills submitted by Deuk Spine Institute were in compliance with all relevant applicable criminal, civil, and administrative requirements of state and federal law related to the provision of medical services, and as such, whether either Berrios or Pennea is responsible for the payment of such bills;
b. Whether the charges submitted by Deuk Spine Institute constitute compen-sable charges payable by either Berrios or Pennea;
c. Whether the charges submitted by Deuk Spine Institute constitute excessive, and thus non-compensable, charges for which neither Berrios nor Pennea is responsible.
d. Whether Berrios or Pennea is responsible for any, or the full amount, of the charges submitted by Deuk Spine Institute.

Deuk Spine filed a motion to dismiss Berrios’ counterclaim or, in the alternative, a motion for a more definite statement. In its motion, Deuk Spine argued:

6. As set forth herein, Berrios’s declaratory action fails because (1) the Defendant does not have standing to sue the Plaintiffs medical provider for declaratory relief, (2) declaratory relief is not available to re-assert affirmative defenses to a tort claim; (B) Berrios has not asserted a basis upon which declaratory relief would be useful in clarifying any legal relations at issue (4) Berrios nor Pennea can assert violations of “criminal, civil, and administrative requirements” as a basis for non-payment of the medical bills, and (5) Berrios cannot obtain a declaration of the rights and liabilities of the Plaintiff to her medical provider.

It also filed a supplemental memorandum of law in support of its motion to dismiss the counterclaim, arguing:

In addition to the arguments set forth in [Deuk Spine’s] Motion to Dismiss filed June 10, 2009, the “Counterclaim” filed by Defendant Berrios must be dismissed because Berrios cannot state a cause of action against Plaintiff Pennea. Berr-ios[’] entitlement to add [Deuk Spine] to the litigation pursuant to Florida Rule of Civil Procedure 1.170 is contingent upon his first having a valid cause of action against the Plaintiff[], Since Berrios does not possess the threshold requirement of a valid cause of action against Pennea, there is no basis upon which to determine whether the presence of additional parties is required to grant complete relief.

Pennea filed a motion to dismiss Berrios’ counterclaim with prejudice, arguing:

6. Berrios’s declaratory action fails because (1) declaratory relief is not available to re-assert affirmative defenses to a tort claim; and (2) Berrios cannot obtain a declaration of the rights and liabilities of the Plaintiff to her medical provider.

After conducting a hearing on Deuk Spine’s motion to dismiss, the trial court entered an order of dismissal. In the order, the trial court said:

1. Defendant BERRIOS is only liable for, and Plaintiff PENNEA is only entitled to recover, “[t]he reasonable [value] [or] [expense] of [hospitalization and] medical [and nursing] care and treatment necessarily or reasonably obtained by (claimant) in the past [or to be so obtained in the future]. Florida Standard Jury Instruction 6.2(b).
2. The extent of defendant’s liability for plaintiffs medical expenses will be completely determined through Plaintiffs Complaint and no additional parties are required for a full adjudication of this issue or to grant complete relief to the parties.

A trial court’s dismissal of a complaint for declaratory judgment is subject to an abuse of discretion standard of review. Orange Cnty. v. Expedia, Inc., 985 So.2d 622, 624 (Fla. 5th DCA 2008).

Notwithstanding the trial court’s succinct ruling, Berrios contends on appeal that he properly stated a cause of action for declaratory judgment. The question presented is whether Berrios is entitled to join Pennea’s health care provider as a third party defendant in order to obtain a declaratory judgment that its invoices are not “lawful” or otherwise are “not properly payable.” We are told this is one of multiple cases in this district in which the insured defendant in a personal injury lawsuit is seeking to make a third party provider of health care services to the plaintiff a party to the lawsuit.

Because Pennea brought a negligence action against Berrios seeking damages that include payment of medical expenses, Berrios holds the right to challenge the reasonableness and necessity of the medical expenses, just as he would any other claim. Any challenge by Berrios with respect to the reasonableness and necessity of the medical expenses can be — and has been — asserted as an affirmative defense in Pennea’s negligence action. During the hearing on Deuk Spine’s motion to dismiss Berrios’ counterclaim, the following exchange took place between Berrios’ counsel and the trial court:

[BERRIOS’ COUNSEL]: And we believe that those bills are not lawfully compensable.
THE COURT: What about 6.2? That’s an issue in every case. I’ve got to instruct that jury. And the plaintiff cannot recover the bills unless they’re reasonable and necessary.
[BERRIOS’ COUNSEL]: That’s true. THE COURT: That’s it.
[BERRIOS’ COUNSEL]: That’s entirely correct, Judge.
THE COURT: It’s already an issue, what do you need to counterclaim for?
[BERRIOS’ COUNSEL]: That doesn’t get to the next issue as to whether or not the bills are lawful. For example, if the doctor is not licensed in the State of Florida, then those bills would not be compensable.
THE COURT: Well, you can say they weren’t reasonable and they weren’t necessary.
[BERRIOS’ COUNSEL]: And, Judge, that—
THE COURT: They weren’t reasonable. They went to some quack who wasn’t licensed. You can argue that.

Berrios is liable for Pennea’s medical bills only to the extent that the medical expenses are reasonable and necessary. Whether Deuk Spine, as the provider associated with the medical expenses, acted “in an unlawful manner” is an issue that Berr-ios can raise to the extent it affects the reasonableness of the medical bills. If, as Berrios hints, Deuk Spine was not licensed in the State of Florida to perform the medical procedure on Pennea for which it billed her, Pennea’s medical expenses associated with the medical procedures performed by Deuk Spine may not be reasonable medical expenses.

While the existence of another available remedy does not preclude a judgment for declaratory relief, a viable declaratory claim must be asserted and exceptional circumstances must be shown for the prosecution of such a claim where there is a pending suit at the time the action is initiated, and the issues raised in the action can be resolved in the pending suit. See Taylor v. Cooper, 60 So.2d 534, 535 (Fla.1952) (finding that declaratory de-cree statute “[could not] be invoked because [it][was] of the opinion that [it] should follow the almost universal rule to the effect that if at the time the proceeding for a declaratory decree is initiated a suit is already pending which involves the same issues and in which litigation the plaintiff in the declaratory decree action may secure full, adequate and complete relief, such bill for declaratory decree will not be permitted to stand”); Kies v. Fla. Ins. Guar. Ass’n, 435 So.2d 410, 411 (Fla. 5th DCA 1983) (“[t]he resolution of the cross-claim and counterclaim turned on facts which were common to the claim raised by the amended complaint and the affirmative defense” and that “[t]he trial court should not have entertained a separate action for declaratory judgment on an issue properly raised in the pleadings in the main action, and already before the court”).

Relying on Stuart v. Hertz Corp., 351 So.2d 703 (Fla.1977), the Florida Justice Association, appearing as amicus curiae, urges that Berrios cannot bring Deuk Spine into Pennea’s negligence action because such a practice would undermine the physician/patient relationship. It would discourage physicians from treating patients who may have to file suit to recover compensation for their injuries because of the risk that they will be dragged into the litigation. In Stuart, the Florida Supreme Court held that “the initial tortfeasor, [could] not file a third-party complaint seeking indemnity for the alleged aggravation of the injuries by the negligence of the treating physician.” 351 So.2d at 706. It reasoned:

An active tortfeasor should not be permitted to confuse and obfuscate the issue of his liability by forcing the plaintiff to concurrently litigate a complex malpractice suit in order to proceed with a simple personal injury suit. To hold otherwise would in effect permit a defendant to determine the time and manner, indeed the appropriateness, of a plaintiffs action for malpractice. This decision eliminates the traditional policy of allowing the plaintiff to choose the time, forum and manner in which to press his claim....
The choice of when and whether to sue his treating physician for medical malpractice is a personal one which rightfully belongs to the patient. A complete outsider, and a tortfeasor at that, must not be allowed to undermine the patient-physician relationship, nor make the plaintiffs case against the original tort-feasor longer and more complex through the use of a third-party practice rule which was adopted for the purpose of expediting and simplifying litigation.
The complex issues of liability to be resolved in a medical malpractice action are foreign to the resolution of liability in the typical personal injury suit. Indeed Fla. R. Civ. P. 1.180 itself recognizes that not all third party claims should be allowed to proceed by providing that any party may, in addition to a motion to strike, move for its severance or separate trial. The courts in the past have exercised this discretion in furtherance of convenience or to avoid prejudice, or when separate trials are conducive to expedition and economy....
In summary, to allow a third party action for indemnity, as in the case sub judice, would not only incorrectly expand traditional concepts of indemnity to the point of making it indistinguishable from contribution, but also expand the applicability of the third-party rule and make it a tool whereby the tortfea-sor is allowed to complicate the issues to be resolved in a personal injury suit and prolong the litigation through the filing of a third-party malpractice action.

Id. (citations omitted). Berrios counters that Stuart is not relevant because “the question is not who is legally responsible for the damages at issue, but are non-compensable, unlawful, unpaid medical bills even damages at all.” We do not find that distinction persuasive.

Berrios’ attempt to append this “legality” challenge to Pennea’s personal injury lawsuit will delay, complicate and increase the expense of an otherwise straight-forward suit to recover damages for personal injury. Allowing the personal injury defendant to sue any or all of the plaintiffs health care providers and join them in the litigation would also subject Deuk Spine to direct participation in the litigation, including the broad discovery obligations of a party. Berrios responds that where a proper cause of action has been pled and the party pleading it has a good faith basis for asserting its claims, the fact that the health care providers do not want to be a party to the suit or to respond to discovery does not mean the suit is nothing more than harassment. Perhaps not, but where the claim is (at best) marginal and the adverse impact on the personal injury plaintiff seeking compensation for her injuries and the health care providers Berrios seeks to add to the lawsuit is great, the trial court is well within its discretion not to allow it. If Berrios has a legally cognizable claim to assert against Deuk Spine based on “illegality,” it can be brought independently.

AFFIRMED.

GRIFFIN, PALMER, JJ., and PERRY, B., Associate Judge, concur.

      . If not subject to dismissal for the reason stated by the trial judge, the complaint should be dismissed for failing to state a cause of action. Florida is a fact-pleading state; "not lawful” and "not properly payable” are conclusions, not facts.


text:
    John MINOR, Petitioner, v. STATE of Florida, Respondent.
    No. 1D11-5882.
    District Court of Appeal of Florida, First District.
    Nov. 21, 2011.
    Rehearing Denied Jan. 11, 2012.
    John Minor, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Fla. R.App. P. 9.141(d)(6)(C).

PADOVANO, LEWIS, and CLARK, JJ., concur.


author: WETHERELL, J.

text:
    Nikia NEWSOME, Appellant, v. AGENCY FOR PERSONS WITH DISABILITIES, Appellee.
    No. 1D11-2287.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2011.
    Rehearing Denied Jan. 10, 2012.

      Melissa B. Long of Three Rivers Legal Services, Inc., Jacksonville, for Appellant.
    Michael Palecki, General Counsel, and Melissa Ellen Dinwoodie, Agency for Persons With Disabilities, Tallahassee, for Ap-pellee.
   WETHERELL, J.

Appellant, a developmentally disabled adult receiving services through the Home and Community-Based Services Medicaid waiver program, seeks review of a final order of the Agency for Persons with Disabilities (Agency) assigning her to Tier Three of the program. Appellant argues that the Agency misinterpreted and misapplied Florida Administrative Code Rule 65G-4.0027(4) in determining her tier assignment. We agree and reverse.

The Agency is responsible for implementing programs for persons with developmental disabilities with the goal of allowing such persons “to live as independently as possible in their own homes or communities and to achieve productive lives as close to normal as possible.” § 393.066, Fla. Stat. One of the programs implemented by the Agency is the waiver program established by section 393.0661, Florida Statutes. The waiver program assigns eligible individuals to one of four statutorily-defined tiers based on the nature and extent of the individual’s service needs. See § 393.0661(3), Fla. Stat.; Fla. Admin. Code R. 65G-4.0026 through 65G-4.0Q291. The tier system is intended to balance the delivery of services to eligible individuals with the availability of appropriated funds. See § 393.0661, Fla. Stat.

Appellant was diagnosed with mental retardation, cerebral palsy, and scoliosis. She is non-ambulatory, incontinent, and non-verbal. She lives at home with her mother and is fed through a gastric tube. The services Appellant receives under the waiver program are reflected on a cost plan approved by the Agency; the services consist of Personal Care Assistance, Adult Day Training, Transportation, Consumable Medical Supplies, Durable Medical Equipment, Adult Dental, Respite Care, and Waiver Support Coordination. These services amount to approximately $72,000.

In May 2010, the Agency notified Appellant of her initial assignment to Tier Three, which requires her to adjust her cost plan to comply with the then-applicable $35,000 expenditure limit for that tier. Appellant, through her mother, challenged the tier assignment, arguing that Appellant should have been assigned to Tier One, which at the time, did not have an expenditure limit. After an evidentiary hearing, the hearing officer entered a recommended order agreeing with the Agency that Appellant’s service needs can be met in Tier Three and, therefore, she did not qualify for Tier One. The Agency adopted the hearing officer’s recommended order in its final order and this timely appeal followed.

Under the waiver program, Tier One is limited to individuals who have intensive medical or adaptive service needs that cannot be met in the lower tiers and that are essential for avoiding institutionalization, and individuals who possess exceptional behavioral problems and present a substantial risk to themselves or others. See § 393.0661(3)(a), Fla. Stat.; Fla. Admin. Code R. 65G-4.0027(1). The parties agree, and the hearing officer found, that Appellant has “intense medical needs” and that she does not qualify for Tier Two or Tier Four. The only dispute is whether Appellant’s service needs can be met in Tier Three.

The Agency reasoned in its final order that Appellant’s service needs can be met in Tier Three because her cost plan includes $32,761 of Personal Care Assistance, which together with the $1,571.40 in the cost plan for Waiver Support Coordination, is less than the $35,000 expenditure cap in Tier Three. The Agency did not consider any of the other services in Appellant’s cost plan because, unlike Personal Care Assistance, none of the other services were listed in rule 65G-4.0027(4). That rule lists 17 specific services and states that those services “if approved through the Agency’s prior authorization process, will be used as the primary basis for making an assignment ... to Tier One.” Fla. Admin. Code R. 65G-4.0027(4)(a) through (q).

We review the Agency’s interpretation of the rule de novo, but we give deference to the Agency’s interpretation unless it is contrary to the plain language of the rule or is clearly erroneous. See Fla. Hosp. v. Agency for Health Care Admin., 823 So.2d 844, 847 (Fla. 1st DCA 2002).

Appellant contends that, contrary to the interpretation adopted by the Agency in the final order, the plain language of rule 65G-4.0027(4) does not limit consideration of the client’s needs to only the services listed in the rule. We agree. The rule states that the listed services are to be used as the “primary basis” for tier assignment; it does not state that the listed services are the only services to be considered. Indeed, the Agency’s representative at the hearing testified that the rule would not necessarily preclude a higher tier assignment for a client who was receiving listed services in an amount less than the cap for a lower tier where the client had other intensive needs. This testimony conflicts with the Agency’s narrow reading of the rule, as does the Agency’s inclusion of the Waiver Support Coordination services in determining whether the individual’s needs can be met under the expenditure caps in the lower tiers because Waiver Support Coordination is not a service specifically listed in rule 65G-4.0027(4). Finally, the Agency’s narrow interpretation of this rule is inconsistent with the proposition stated in rule 65G-4.0026(l)(c) that “[t]he services authorized in an approved cost plan shall be key indicators of a tier assignment because they directly reflect the level of medical, adaptive or behavioral needs of a client.”

We need not determine in this case whether all of the services on the approved cost plan must be considered in determining tier assignment, or whether the Agency may limit its consideration to only those services directly related to the client’s intensive medical needs or behavioral problems. The outcome of this case is the same under either measure. Appellant’s cost plan includes $72,000 of services, which exceeds the expenditure limit for Tier Three. Moreover, the record reflects that in addition to the $34,332.40 of Personal Care Assistance and Waiver Support Coordination services considered by the Agency, Appellant’s cost plan includes $1,036.02 for Consumable Medical Supplies, which were found medically necessary by the Agency and are directly related to Appellant’s intensive medical needs; and, even when only these services are considered, Appellant’s needs exceed the expenditure limit for Tier Three. Accordingly, the Agency erred in determining that Appellant’s service needs can be met in Tier Three.

In sum, for the reasons stated above, we reverse the final order and remand with directions that Appellant be assigned to Tier One.

REVERSED and REMANDED with directions.

MARSTILLER and SWANSON, JJ., concur.

       This case was initially referred to the Division of Administrative Hearings to conduct the hearing requested by Appellant, but the case was subsequently transferred to a hearing officer with the Department of Children and Family Services (DCF) after section 393.125(l)(a), Florida Statutes, was amended to require the hearing in cases such as this to be provided by DCF pursuant to section 409.285, Florida Statutes. See ch. 2010-157, Laws of Fla., at § 3.


author: BENTON, C.J.

text:
    Darnell M. GOINGS, Appellant, v. STATE of Florida, Appellee.
    No. 1D10-5229.
    District Court of Appeal of Florida, First District.
    Nov. 22, 2011.

      Nancy A. Daniels, Public Defender, and Glenna Joyce Reeves, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, Jay Kubica, Assistant Attorney General, and Thomas D. Winokur, Assistant Attorney General, Tallahassee, for Appellee.
   BENTON, C.J.

Darnell Goings appeals his conviction and sentence for “sexual battery by familial or custodial authority,” in violation of section 794.011(8)(b), Florida Statutes (1993). He argues here — as he did in his unsuccessful motion to dismiss below— that the statute of limitations should have precluded his further prosecution. Unpersuaded, we affirm.

He does not argue — and has no basis for any argument-that the information was not filed in timely fashion. See § 775.15(2)(a), Fla. Stat. (1993) (requiring that the prosecution be commenced within four years of commission of the offense). On March 11, 1996, a warrant issued for his arrest. Three days later, the state filed formal charges: An information accused Mr. Goings of committing sexual battery between April 1, 1995 and May 30, 1995, on a sixteen-year-old girl held in the Franklin County jail, while he was working there for the Franklin County Sheriffs office.

In his motion to dismiss pursuant to Florida Rule of Criminal Procedure 3.190, he contended that the delay in executing the arrest warrant or capias was unreasonable: The arrest warrant or capias was finally executed on November 30, 2009, some fifteen years after charges were laid. The statute in force at the time of the offense defined commencement of prosecution as filing the information or indictment, but with a proviso:

A prosecution is commenced when either an indictment or information is filed, provided the capias, summons, or other process issued on such indictment or information is executed without unreasonable delay. In determining what is reasonable, inability to locate the defendant after diligent search or the defendant’s absence from the state shall be considered.

§ 775.15(5), Fla. Stat. (1993) (emphasis supplied). Attributing the delay in executing the capias to Mr. Goings’s continuous absence from Florida, the trial court denied the motion. Mr. Goings then pleaded no contest, reserving the right to appeal denial of his motion to dismiss. The only argument he makes on appeal is that the motion should have been granted because “the state failed to conduct a diligent search to locate” him. Initial Brief, p. 11.

At issue is whether the arrest warrant or capias was served on Mr. Goings “without unreasonable delay.” § 775.15(5), Fla. Stat. (1993). At the hearing on the motion, an investigator with the State Attorney’s Office testified that once he received certain DNA test results, he set out to arrest Mr. Goings. He first spoke to Mr. Goings’s attorney, but learned nothing about his whereabouts from the attorney. He then visited Mr. Goings’s last known employer, and obtained a forwarding address for him in Port St. Joe. When he went to the Port St. Joe address, he was told that Mr. Goings had “gone up north.” Mr. Goings himself testified that he moved to the Washington, D.C. area in January of 1996, and lived there until he was arrested on these charges.

On cross-examination, the investigator testified that he did not personally enter a copy of appellant’s arrest warrant into a state or national database, but that he understood that the Sheriffs Office had. He did testify that later, in August of 2002, he “ran” Mr. Goings’s name in a computer program, one that did not exist in 1996, and found several addresses for him, from 1996 forward, including two in Ohio, two in Maryland, and several in Washington, D.C. A subsequent search in criminal and civil court databases revealed that Mr. Goings had received traffic tickets in Maryland in May of 1996 and June of 2006, and that somebody had filed a civil action against him in Maryland in 2000. The investigator testified that he was not aware, at the time, that Mr. Goings had been arrested in 1996 and in 2002.

Under section 775.15(5), the state had the burden to show an “inability to locate the defendant after diligent search or the defendant’s absence from the state.” § 775.15(5), Fla. Stat. (1993) (emphasis supplied). See Kidd v. State, 985 So.2d 1180,1181 (Fla. 4th DCA 2008) (“The state has the burden of proving that prosecution is not barred by the statute of limitations. Cunnell v. State, 920 So.2d 810 (Fla. 2d DCA 2006); Berntson v. State, 804 So.2d 406 (Fla. 4th DCA 2001); Neal v. State, 697 So.2d 903 (Fla. 2d DCA 1997); State v. Picklesimer, 606 So.2d 473 (Fla. 4th DCA 1992).”); Brown v. State, 674 So.2d 738, 740 (Fla. 2d DCA 1995). Mr. Goings argues that the state did not conduct a diligent search, in part because the state did not follow up on information it learned from the computer searches performed in 2002 and thereafter. But the state showed it searched diligently until after Mr. Goings left the state, and the parties agree that he was continuously absent from the state from 1996 until he was arrested in 2009.

Section 775.15(5) does not require any other showing. The record amply supports the learned trial judge’s determination that execution of the capias did not entail unreasonable delay within the meaning of the statute. Cf Fleming v. State, 524 So.2d 1146, 1147 (Fla. 1st DCA 1988) (trial court erred in denying Fleming’s motion to dismiss on the ground that the statute of limitations had expired when “the state offered no evidence to explain the four-year delay in executing the capi-as”).

We are not concerned here with the judicially created exception (since apparently abolished by the Legislature) available to a defendant who proves his absence from the state did not actually hinder the prosecution because Florida authorities knew the accused was in custody elsewhere, and amenable to extradition. In the present case, although Mr. Goings testified that he was in custody out of state in 1996 and again in 2002, he did not establish that anybody in Florida was aware that he was in custody, until long after the fact. The state’s showing that Mr. Goings left the state soon after the arrest warrant or capias issued and remained continuously absent from the state until his arrest proved the reasonableness of the delay, within the meaning of section 775.15(5).

Since the jailhouse encounter, the Legislature has amended section 775.15(6), Florida Statutes (1993), to add: “This provision shall not extend the period of limitation otherwise applicable by more than 3 years, but shall not be construed to limit the prosecution of a defendant who has been timely charged by indictment or information or other charging document and who has not been arrested due to his or her absence from this state or has not been extradited for prosecution from another state.” Ch. 97-90, § 1, at 514, Laws of Fla. This amendment to the statute of limitations is not retroactive, and does not control here. See Torgerson v. State, 964 So.2d 178, 179 (Fla. 4th DCA 2007); Lett v. State, 837 So.2d 614, 615 n. 1 (Fla. 4th DCA 2003); State v. Shamy, 759 So.2d 728, 730 (Fla. 4th DCA 2000) (the statute of limitations applicable is the one in effect when the crime was committed).

It can be argued that section 775.15(6), Florida Statutes (1993), has no application in the present case because, as the parties agree, the information was filed before even the primary four-year limitations period had run. Cf. Pearson v. State, 867 So.2d 517, 519 (Fla. 1st DCA 2004) (ruling prosecution timely where information was filed a year after the primary limitations period because “the appellant was continuously absent from the state and his absence resulted in the tolling of the statute of limitations”). Section 775.15(6) provides:

The period of limitation does not run during any time when the defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state, but in no case shall this provision extend the period of limitation otherwise applicable by more than 3 years.

§ 775.15(6), Fla. Stat. (1993). This subsection “allows the statute of limitations for commencing prosecution (ie., filing an information or an indictment) to be tolled for the period when the ‘defendant is continuously absent from the state or has no reasonably ascertainable place of abode or work within the state.’ ” State v. Picklesimer, 606 So.2d 473, 475 (Fla. 4th DCA 1992). Subsection (6) “is not an absolute limitation upon prosecution after a specified time period,” but “merely allows for a delay of commencement of that prosecution for specified reasons.” Id. See also King v. State, 687 So.2d 917, 919 (Fla. 5th DCA 1997) (agreeing with Picklesimer that “subsections 775.15(5) and (6) are independent provisions”). In the present case, the filing of the information commenced the prosecution, long before the limitations period had run.

On the other hand, there is support for the contrary view. Some cases suggest that subsection (6) automatically bars (further) prosecution three years after the primary limitations period expires. See Lett, 837 So.2d at 615 (stating that the statute of limitations could have been extended a maximum of three years if the defendant was continuously absent from the state, but deciding the case on the basis that the twenty-year delay in serving capias was not reasonable); Robinson v. State, 773 So.2d 1266, 1266-67 (Fla. 5th DCA 2000) (finding that the state failed to show that delay was reasonable under section 775.15(5), but noting that “in any event, section 775.15(6) ... which specifically considers a defendant’s absence from the state and permits the period of limitation to be extended therefor, limits such extension to a maximum of three years”). Similarly, in McGregor v. State, 933 So.2d 1244, 1245 (Fla. 1st DCA 2006), we ruled that appellant had stated a legally sufficient claim for relief in his postconviction motion when he alleged counsel was ineffective for failing to inform him of a viable defense based on the statute of limitations. We said that, even if the statute of limitations was extended under section 775.15(6), it could have been extended for only three years, and that the capias was executed outside the extended time period. Id. But we did not indicate whether the prosecution had been initiated within the limitations period, as it was here and in Pickle-simer.

In any event, we need not decide the subsection (6) issue in the present case. By not raising the point in his initial brief, Mr. Goings waived the argument that the trial court erred in denying his motion to dismiss merely because the prosecution remained pending more than three years beyond the four-year primary limitations period. See Jones v. State, 966 So.2d 319, 330 (Fla.2007); Hall v. State, 823 So.2d 757, 763 (Fla.2002) (“ ‘[A]n issue not raised in an initial brief is deemed abandoned and may not be raised for the first time in a reply brief.’ ” (quoting J.A.B. Enters, v. Gibbons, 596 So.2d 1247, 1250 (Fla. 4th DCA 1992))); Williams v. State, 845 So.2d 987, 989 (Fla. 1st DCA 2003). This omission moots the question in the present case, just as the statutory amendment moots the question in any similarly prolonged prosecution for offenses occurring on or after July 1, 1997. See Ch. 97-90, § 7, at 521, Laws of Fla.

Affirmed.

HAWKES and ROWE, JJ„ concur.

      . Appellant attaches no significance to the fact that the arrest warrant issued before the information was filed, arguing only that the “state failed to establish that it conducted a diligent search to locate appellant,” specifically:
      The state conducted no follow-up investigation to locate appellant in 2002 when it discovered that appellant had been living in the Washington D.C. area. Appellant's arrest some seven years later should be deemed outside the statute of limitations. Summary of the Argument in Appellant's Initial Brief, p. 5.

      . "[T]he limitations period in effect at the time of the incident giving rise to the criminal charges controls the time within which prosecution must be begun.” Perez v. State, 545 So.2d 1357, 1358 (Fla.1989). See also Bryson
        v. State, 42 So.3d 852, 854 (Fla. 1st DCA 2010) ("Generally, the controlling statute of limitations is that which is in effect when a crime is committed.” (citing State ex rel. Manucy v. Wadsworth, 293 So.2d 345, 347 (Fla. 1974))); Torgerson v. State, 964 So.2d 178, 179 (Fla. 4th DCA 2007); Rock v. State, 800 So.2d 298, 299 (Fla. 3d DCA 2001); Mercer v. State, 654 So.2d 1221, 1221 (Fla. 5th DCA 1995) (“The limitations period in effect at the time of the action giving rise to the criminal charges controls the time in which prosecution must be initiated.” (citing Rubin v. State, 390 So.2d 322 (Fla.1980))); Heath v. State, 532 So.2d 9, 10 (Fla. 1st DCA 1988) ("[I]t is firmly established law that the statutes in effect at the time of commission of a crime control as to the offenses for which the perpetrator can be convicted, as well as the punishments which may be imposed.”).

      . See Brown v. State, 376 So.2d 382, 384 (Fla. 1979); State v. Ashby, 245 So.2d 225, 228 (Fla. 1971); Vaughn v. State, 711 So.2d 64, 65 (Fla. 1st DCA 1998); Wright v. State, 547 So.2d 258, 259 (Fla. 1st DCA 1989); Howard v. State, 515 So.2d 346, 348 (Fla. 1st DCA 1987); Morgan v. State, 486 So.2d 1356, 1357 (Fla. 1st DCA 1986).

      . Mr. Goings also testified that between March and August of 1996, he was arrested and placed on probation in Virginia for two years.

        . In 1997, the legislature amended section 775.15(5), Florida Statutes, to add: "The failure to execute process on or extradite a defendant in another state who has been charged by information or indictment with a crime in this state shall not constitute an unreasonable delay.” Ch. 97-90, § 1, at 514, Laws of Fla.

      . In State v. Miller, 581 So.2d 641, 642 (Fla. 2d DCA 1991), the state contended that delay in executing a capias on Miller was not unreasonable because it established that he was out of the state in Indiana for at least a portion of the time. The Second District found that assuming the state had met its burden, Miller met his burden in turn by showing that at the time he left the state, there were no charges against him, and that, as soon as Indiana officials notified him of the Florida charges against him, he waived extradition but Florida refused to go and pick him up. Id. Thus, the court found, Miller’s absence from the state had not prevented the state from commencing prosecution. Id. We adopted the Miller holding in Pearson v. State, 867 So.2d 517, 519 (Fla. 1st DCA 2004): "The second district’s holding in Miller appears to be proper because the dispositive issue under section 775.15(5) is whether the state’s delay in prosecution is reasonable. Thus, in considering the reasonableness of the delay, it is appropriate to look to whether the defendant's absence from the state hindered the prosecution.”


text:
    STATE of Florida, Appellant, v. Lawrence B. HOUGHTON, Jr., Appellee.
    No. 4D10-2921.
    District Court of Appeal of Florida, Fourth District.
    Nov. 23, 2011.
    Rehearing Denied Jan. 19, 2012.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Myra J. Fried, Assistant Attorney General, West Palm Beach, for appellant.
    Barbara J. Scheffer, Palm Beach Gardens, for appellee.
   PER CURIAM.

Affirmed. See Mullis v. State, — So.3d —, 2011 WL 3962910 (Fla. 2d DCA 2011); State v. Sun, — So.3d—, 2011 WL 2135646 (Fla. 4th DCA 2011), reh’g denied (July 7, 2011).

POLEN, GROSS and CONNER, JJ., concur.


author: WALLACE, Judge.

text:
    Eric JENSEN and Joyce Jensen, Appellants/Cross-Appellees, v. Cynthia BAILEY, Appellee/Cross-Appellant.
    No. 2D10-939.
    District Court of Appeal of Florida, Second District.
    Nov. 30, 2011.
    Rehearing Denied Jan. 9, 2012.

      Virginia R. Vetter, Tampa, for Appellants/Cross-Appellees.
    Courtney L. Fish and Ronald W. Gregory, II, of Englander & Fischer, LLP, St. Petersburg, for Appellee/Cross-Appellant.
   WALLACE, Judge.

Eric Jensen and Joyce Jensen appeal a final judgment awarding damages against them and in favor of Cynthia Bailey on her claim for the Jensens’ failure to disclose material defects in their residence to Mrs. Bailey under Johnson v. Davis, 480 So.2d 625 (Fla.1985). Because the circuit court found that the Jensens had no knowledge of the defects but improperly found the Jensens liable to Mrs. Bailey under a “should have known” standard, we reverse the final judgment.

I. THE FACTS AND THE PROCEDURAL BACKGROUND

In June 2005, the Jensens entered into a contract with Gene Bailey and Cynthia Bailey for the sale and purchase of the Jensens’ residence in St. Petersburg. Before the parties signed the contract, the Jensens filled out a property disclosure statement for the Baileys’ review. One of the questions on the disclosure statement asked whether the sellers were aware “of any improvements or additions to the property, whether by you or by others, that have been constructed in violation of building codes or without necessary permits?” In response to this question, the Jensens checked the “NO” box. The parties closed the sale in July 2005, and the Baileys took possession of the property.

Approximately two years later, the Baileys filed an action for damages against the Jensens. In their complaint, the Baileys alleged claims for breach of contract, nondisclosure of material defects in the residence under Johnson, and fraudulent concealment. The Jensens filed an answer denying the material allegations of the complaint and raised affirmative defenses. Mr. Bailey died while the action was pending in the circuit court, and Mrs. Bailey continued the action as the sole plaintiff.

II. THE CIRCUIT COURT’S VERDICT AND THE FINAL JUDGMENT

After a bench trial that lasted two days, the circuit court entered a detailed verdict in favor of Mrs. Bailey on her nondisclosure claim under Johnson. In the verdict, the circuit court ruled, in pertinent part, as follows:

At trial two main categories of problems emerged. One was the alleged defective sanitary sewer which caused reoccurring backups into the home. The other was a trio of unpermitted changes in the home which were discovered to be not in conformity with building codes and would thus require reconstruction.
After careful consideration the court finds the evidence insufficient to support [Mrs. Bailey’s] claims regarding the sewer system. On the other hand, the evidence was that ... the [Jensens] had substantial remodeling work done in their master bath, their kitchen[,] and in the bedroom by the installation of [F]rench doors. It was uncontroverted that these three jobs required proper permits. The evidence supports the
conclusion that neither the [Jensens] nor those who they hired obtained the permits. Expert testimony indicated that the work was not properly done, did not conform to the codes applicable when done[,] and would require reconstruction in full conformity with newer[,] more stringent codes.
There was no evidence that the [Jen-sens] actually knew about the failure to obtain permits or the improper work. They[,] like perhaps many trusting people, relied upon the individuals or companies they hired to do the work legally and in a proper fashion.
These facts presented a difficult question regarding the extent to which Florida law will protect a buyer in a residential real estate transaction from material defects which are not actually known to the seller but should have been known by them. As a practical matter, homeowners have a responsibility to obtain proper permits and generally can find no protection from their failure to do so because they merely relied on someone else to do so. Since such permits are required[,] it does not seem an unreasonable conclusion that the homeowner is likewise expected to know whether the permits were actually issued and posted for the construction. These logical assumptions appear to be the foundation for the questions presented to sellers in the typical real property disclosure forms. That is, the owner is expected to know about these important matters with regard to their property because they are in a position to need to know.

The circuit court concluded “that the proofs support a Johnson v. Davis claim [that] the [Jensens] should have known about the absence of permits and reported same in the disclosure statement. As a result[, Mrs. Bailey is] entitled to relief.” Based on the verdict, the circuit court entered a final judgment in favor of Mrs. Bailey and against the Jensens for $33,370 in damages, plus $13,787.31 in prejudgment interest. The Jensens’ appeal followed, and Mrs. Bailey filed a cross-appeal.

III. THE PARTIES’ ARGUMENTS

On their direct appeal, the Jensens make several arguments. However, we need only address the Jensens’ argument that the circuit court erred in finding them liable to Mrs. Bailey on her nondisclosure claim based on a “should have known” standard. On the cross-appeal, Mrs. Bailey contends that the circuit court erred in finding that the Jensens did not have actual knowledge of the asserted material defects in the residence.

IY. FRAMING THE ISSUES

This case requires us to decide whether liability under the rule in Johnson may be based on a finding of the seller’s constructive knowledge of an undisclosed material defect instead of his or her actual knowledge. We conclude that to hold the seller liable under Johnson, the buyer must prove the seller’s actual knowledge of an undisclosed material defect. Accordingly, on the direct appeal, we reverse the circuit court’s final judgment finding the Jensens liable to Mrs. Bailey under a “should have known” standard.

On the cross-appeal, we affirm. The circuit court’s finding that the Jensens did not have actual knowledge of the asserted undisclosed material defects is supported by substantial, competent evidence, and the issue raised on the cross-appeal does not warrant further discussion. We turn now to an examination of the issue raised on the Jensens’ direct appeal concerning the knowledge element under Johnson.

Y. DISCUSSION

A nondisclosure claim under Johnson has four elements: (1) the seller of a home must have knowledge of a defect in the property, (2) the defect must materially affect the value of the property, (3) the defect must be not readily observable and must be unknown to the buyer, and (4) the buyer must establish that the seller failed to disclose the defect to the buyer. 480 So.2d at 629. Here, we address the first element, the seller’s knowledge of a defect in the property.

Notably, the only consideration pertinent to the seller’s state of mind under Johnson is knowledge of a defect materially affecting the value of the property at the time the seller enters into the contract with the buyer. Billian v. Mobil Corp., 710 So.2d 984, 988 (Fla. 4th DCA 1998). As the Fourth District has explained:

Johnson does not specify any state of mind element with regard to the act of non-disclosure for the cause of action it identifies.... Significantly, Johnson casts the cause of action in terms of “duty,” a concept drawn from the law of negligence. If the facts of a case give rise to a duty to disclose under Johnson, the seller’s state of mind motivating the failure to disclose is immaterial; the forgetful or unsophisticated seller is just as liable as the knowing dissembler.

Id. Thus the critical issue under the first element of liability under Johnson is the seller’s knowledge, not his or her intent. The question raised by this case is whether anything less than actual knowledge is sufficient to satisfy the first element.

The late Chief Justice Joseph Boyd dissented in Johnson, and he raised this question in his dissent. Chief Justice Boyd expressed his fear that the majority’s holding in Johnson would lead to “making the seller a guarantor of the good condition of the property” and thus “significantly burden the alienability of property.” 480 So.2d at 631 (Boyd, C.J., dissenting). He predicted that the courts would ultimately construe Johnson’s requirement of actual knowledge to permit a finding of liability based on constructive knowledge:

The trend will proceed somewhat as follows. At first, the cause of action will require proof of actual knowledge of the undisclosed defect on the part of the seller. But in many cases the courts will allow it to be shown by circumstantial evidence. Then a rule of constructive knowledge will develop based on the reasoning that if the seller did not know of the defect, he should have known about it before attempting to sell the property. Thus the burden of inspection will shift from the buyer to the seller. Ultimately the courts will be in the position of imposing implied warranties and guaranties on all sellers of real property.

Id. This case proves that Chief Justice Boyd’s fear about the eventual effect of the majority’s holding in Johnson was not completely unjustified. Here, the circuit court found the Jensens liable to Mrs. Bailey in the absence of proof of their actual knowledge of the asserted material defects based on a “should have known” standard.

However, this court has consistently reversed judgments in favor of the buyer for nondisclosure under Johnson in the absence of proof of the seller’s actual knowledge of the defect. See Brown v. Carter, 13 So.3d 111, 113-14 (Fla. 2d DCA 2009); Spitale v. Smith, 721 So.2d 341, 345 (Fla. 2d DCA 1998); Slitor v. Elias, 544 So.2d 255, 258-59 (Fla. 2d DCA 1989). In Slitor, we said:

Johnson does not convert a seller of a house into a guarantor of the condition of the house. As we have said, to prove
a cause of action under Johnson, a buyer of a house must prove the seller’s knowledge of a defect which materially affected the value of the house. While knowledge in this regard can be proven by circumstantial evidence, it must nevertheless be proven by competent, sufficient evidence which, as we have explained, did not exist here.

Id. (citation omitted). Other Florida courts have recognized that liability for nondisclosure under Johnson requires proof of the seller’s actual knowledge of the defect. See Billian, 710 So.2d at 988 (“Johnson creates a duty to disclose where a seller knows of certain facts under circumstances giving rise to the duty.” (emphasis added)); Haskell Co. v. Lane Co., 612 So.2d 669, 674 (Fla. 1st DCA 1993) (quoting Slitor, 544 So.2d at 258, for the proposition that “Johnson does not convert a seller of a house into a guarantor of the condition of the house”).

In reaching a contrary conclusion, the circuit court relied on two cases, Nystrom v. Cabada, 652 So.2d 1266 (Fla. 2d DCA 1995), and Revitz v. Terrell, 572 So.2d 996 (Fla. 3d DCA 1990). The circuit court concluded that each of these cases supported the use of a “should have known” liability standard for nondisclosure claims under Johnson. We read these cases differently.

In the Nystrom case, Mr. Nystrom, acting as his own contractor, had constructed the residence in question and had occupied it for one year before selling it. 652 So.2d at 1267. Although Mr. Nystrom was not a licensed contractor, he had extensive experience in the construction industry and had performed all of the carpentry work in the house. Id. at 1268. After the buyer moved into the house, she discovered that it had numerous structural defects. Id. at 1267. An engineering firm issued a report concluding that the house “was a ‘hazardous building’ in regard to high-wind resistance.” Id. In the buyer’s action against Mr. and Mrs. Nystrom, the trial court ruled in favor of the buyer. Id. at 1268.

On appeal, this court affirmed the trial court’s finding of liability in favor of the buyer. Id. In upholding the trial court’s determination of the Nystroms’ liability, this court said: “Since the serious structural defects which the experts found to exist all arose from the carpentry, the record supports the finding that Mr. Nys-trom knew or should have known of these defects and had a duty to disclose them to [the buyer] under Johnson v. Davis, 480 So.2d 625 (Fla.1985).” Id. at 1268 (emphasis added).

To be sure, the Nystrom court used the questionable “should have known” language in stating its conclusion in favor of the buyer on the liability issue. However, the facts in Nystrom showed that Mr. Nystrom, who had extensive experience in construction, built the residence, performed all of the carpentry work, and lived in the residence for one year before selling it to the buyer. The problems in the house resulted directly from the defective carpentry that Mr. Nystrom personally performed. It follows that Mr. Nystrom certainly had to know about the serious defects in the home because he had built it and lived in it before selling it to the buyer. Under these circumstances, the Nystrom court’s use of the phrase “should have known” is a convenient or shorthand way to express the conclusion that the buyer established Mr. Nystroms’ actual knowledge of the defects in the property through circumstantial evidence. Nys-trom does not support using a “should have known” standard to find the Jensens liable for nondisclosure under Johnson on the very different facts in this case.

Revitz, the other case relied upon by the circuit court, involved a failure by the sellers’ real estate agent to disclose to the buyer defects in a residence relating to building code violations and the availability of low-cost flood insurance for the property. 572 So.2d at 996-97. The trial court ruled in favor of the sellers based on a finding that the undisclosed defects were not material as a matter of law. Id. at 998. On appeal, the Third District found that the trial court had used an incorrect test in determining that the undisclosed items were immaterial. Id. at 998-99. For this reason, the Third District reversed the final judgment for the sellers and remanded the case to the trial court for further proceedings. Id. at 999.

In Revitz, the trial court did not make any findings concerning the real estate agent’s knowledge of the undisclosed defects. Id. at 998 n. 6. Referring to the undisclosed problems, the Third District said that “[a]ssuming that the sellers’] agent knew, or reasonably should have known, ... there was a duty to disclose that fact to the buyer.” Id. at 998 (emphasis added). The Third District emphasized the evidence in the record tending to establish that the sellers’ agent must have known of the undisclosed defects. Id. at 998 n. 6. The emphasis in the opinion on this evidence suggests that the Revitz court, like the Nystrom court, was using the phrase “should have known” as a shorthand reference to circumstantial evidence establishing the agent’s actual knowledge. However, this question need not detain us. As the Third District said in its opinion, the basis for the reversal of the final judgment was “the trial court’s misinterpretation of Florida law” on the issue of whether the undisclosed defects were material. Id. It follows that the Third District’s discussion of the agent’s knowledge of the undisclosed defects was dicta. Accordingly, Revitz does not support the circuit court’s decision to base a determination of the Jensens’ liability on a “should have known” standard. Furthermore, the circuit court was obligated to follow this court’s decisions in Brown, Spi-tale, and Slitor, which require proof of the seller’s actual knowledge of the defect to establish liability under Johnson.

VI. CONCLUSION

On the direct appeal, we reverse the final judgment in favor of Mrs. Bailey and remand for the entry of a final judgment in favor of the Jensens. On the cross-appeal, we find no error and affirm the circuit court’s finding that the Jensens had no actual knowledge of the asserted material defects.

Affirmed in part, reversed in part, and remanded with directions.

SILBERMAN, C.J., and CASANUEVA, J., Concur.