author: ALTENBERND, Judge. WALLACE, Judge,

text:
    DEPARTMENT OF TRANSPORTATION, Appellant, v. CSX TRANSPORTATION, INC., Appellee.
    No. 2D12-1097.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 2013.

      Marc A. Peoples, Assistant General Counsel, Department of Transportation, Tallahassee, for Appellant.
    Jose A. Gutierrez, Daniel J. Fleming, Payone V. Puksahome of Melkus, Fleming <& Gutierrez, P.L., Tampa, for Appellee.
   ALTENBERND, Judge.

The Department of Transportation (DOT) appeals a judgment that awarded $502,462.22 as indemnity to CSX Transportation. The judgment indemnified CSX for the amount of a settlement and related attorneys’ fees paid by CSX to resolve a negligence action arising from an accident at a railroad crossing. DOT maintains that the indemnity clause, which was the sole consideration for a crossing agreement between DOT and CSX, is invalid because DOT’S predecessor had no legal authority to enter into the agreement. In the alternative, DOT argues that the collectible portion of any judgment entered for breach of the crossing agreement must be limited to $200,000, the amount authorized by section 768.28(5), Florida Statutes (2002). It maintains that CSX must seek any additional payment of the judgment from the Florida Legislature. We conclude that the agreement is enforceable and affirm the judgment in its entirety. At the end of this opinion, we certify these issues to the supreme court as questions of great public importance.

I. THE EARLY HISTORY OF THIS INDEMNITY AGREEMENT

In 1936, during the midst of the Great Depression, the State of Florida wanted to build a road in Pasco County on the abandoned right-of-way of an old logging railway that had served Fivay, Florida. Fi-vay had been a very prosperous logging community around 1910, but it was little more than a ghost town by the mid-1980s. To build this road, the State Road Department needed to cross an active railroad line operated by the Seaboard Air Line Railway Company.

During the depression, the railroad was in receivership. Accordingly, the State Road Department negotiated a crossing agreement with the receiver. We have attached a replica of that agreement as Appendix A to this opinion. The agreement essentially permitted the State Road Department, as a licensee, to build and maintain a road that crossed the railroad tracks. The State did not buy or lease the land. The sole consideration for this license was an indemnity agreement in paragraph nine of the license by which the State Road Department agreed to protect the railroad from any loss related to the State Road Department’s activities at the crossing.

The State Road Department built this rural road, State Road 210, and the crossing agreement undoubtedly was filed away in the filing cabinets of one or both parties. One imagines that on a daily basis a few cars and a few horse-drawn vehicles crossed the railroad tracks in 1939 when the population of Pasco County was less than 14,000.

II. THE ACCIDENT

On October, 29, 2002, a husband and wife were riding eastbound in their car on State Road 52 near Giddens Road. A truck, heading westbound, went over some railroad tracks owned by CSX. The crossing was allegedly in poor maintenance, and a trailer behind the truck disconnected. The trailer and its load of lumber struck the couple’s car, killing the husband and badly injuring the wife. State Road 52 is the successor number for State Road 210. The railroad crossing is the subject of the 1936 crossing agreement; CSX is the successor in interest to the Seaboard Air Line Railway Company, and DOT is the successor to the State Road Department. By 2002, this road was a major highway, connecting 1-75 on the east to the newly constructed Suncoast Parkway on the west.

The wife, on her own behalf and as personal representative of the estate of her husband, filed suit against CSX in 2004. The truck driver who dropped the trailer was apparently never identified and was not a party to the lawsuit. CSX brought DOT into this action as a third-party defendant in 2008. Ultimately, following a settlement with the plaintiffs, the trial court entered this judgment requiring DOT to indemnify CSX in the amount of $125,000 for the settlement of this lawsuit and $377,462.22 for the expenses arising from its failure to defend the suit.

III. THE ENFORCEABILITY OF THE CROSSING AGREEMENT

The only issues on appeal concern the enforceability of the crossing agreement. DOT maintains the indemnity clause is void because the State Road Department never had authority to enter into an indemnity agreement. In the alternative, it argues that any judgment under the agreement is subject to the statutory limitation under sovereign immunity. We reject both arguments.

Concerning the argument that the State Road Department had no authority to enter into this agreement, we note that the issue is similar to the issue addressed in American Home Assurance Co. v. National Railroad Passenger Corp., 908 So.2d 459 (Fla.2005). American Home involved a comparable agreement negotiated by a utility authority that was a municipal agency. Id. at 463. The supreme court enforced the agreement, but it emphasized that it was not resolving the issue as to a state subdivision or agency. Id. at 473-74. As for a private property owner, the supreme court enforced such an agreement more than fifty years ago. See Russell v. Martin, 88 So.2d 315 (Fla.1956).

In deciding this issue, we observe that DOT underestimates the ramifications of its position for itself, for Florida’s sixty-seven counties, and perhaps for other state agencies and subdivisions. DOT regards the indemnity agreement as an incidental provision in this contract, assuming that its enforceability can be severed from the overall licensing agreement. But the indemnity agreement is the sole consideration that the State has provided to CSX for this long-standing license to use its property. If we were to rule in favor of DOT and hold that the indemnity agreement has always been void, then there would never have been any consideration provided by DOT for this crossing agreement. The agreement arguably would be an “illusory contract.” See Pan-Am Tobacco Coi’p. v. Dep’t ofCorr., 471 So.2d 4, 5 (Fla.1984). While one would hope that CSX would take no drastic steps in response to such a holding, CSX arguably would have the right to treat the entire agreement as void. Even if our ruling did not render the entire agreement void, CSX would have the right to terminate the agreement in ninety days under paragraph 10 of the agreement. At that point, CSX might be entitled to prevent any vehicles from crossing its tracks, effectively closing State Road 52.

The agreement in question is obviously a standardized agreement. Our record does not establish how many comparable agreements may be filed in dusty file cabinets of counties and other state agencies and subdivisions, but DOT admitted at oral argument that it is aware of other similar agreements. Certainly, there are hundreds of such crossings involving county roads in Florida. We know from legal research that similar indemnity agreements were common both for crossing agreements and sidetrack agreements. When Florida was a sparsely populated state, such agreements were a low-cost arrangement to permit economic development near railroad tracks. The railroad undoubtedly hoped that the development would eventually foster greater use of its services by persons not in privity under the crossing or sidetrack agreements. If we were to hold that such agreements with the state were void from inception, the immediate impact on Florida is impossible to calculate from this record, but it could be far greater than the judgment on appeal. Thus, we do not deny that there are practical reasons for this court to enforce this long-standing agreement.

DOT characterizes this issue as a challenge to the State Road Department’s authority to enter into an indemnity contract in 1936. We conclude that the issue is somewhat more complex. This is not a case in which a contractor was building a road and, over and above a monetary payment for the construction project, the state agreed to indemnify the road builder for certain risks. Nor is this an indemnity agreement that is incidental to a primary contract under which the state was receiving grant funds. Cf. Op. Att’y Gen. Fla. 78-20 (1978). The indemnity agreement applies to losses arising only in connection with the DOT’S obligations to perform under this agreement; DOT is not indemnifying CSX for negligent acts of CSX or others.

DOT is actually challenging a contract by which it obtained right-of-way. The State Road Department wanted to enter into the contracts necessary to build a road. There is no question that the State Road Department had the authority to build a road. It also had the authority to obtain the right-of-way to build the road. Thus, DOT must agree that the State Road Department could have purchased the land or paid an annual fee for its use. In all probability it could have taken the land by eminent domain. Rather than bind the state to a lump sum payment at the inception of this contract or to annual payments throughout the term of this agreement, the State Road Department obtained the right-of-way through a license that apparently was free of charge for its first sixty-five years.

This is also a contract creating continuing obligations. The parties in 1936 did not enter into a contract that was fully executed in a year or two. DOT has had an obligation to maintain, repair, and reconstruct its road on this property at all times, and CSX has had an obligation to give DOT access to the property for those purposes. Never, until CSX asked DOT to pay the consideration for this ongoing agreement, did DOT claim it was not bound by this contract or that the railroad was not entitled to the benefits of this agreement.

The nature of the risk involved in this contract is also noteworthy. When a railroad crossing is dangerously rough, it is either the result of a failure to maintain the tracks or a failure to maintain the road, or a combination of both. The railroad has no claim to any immunity or to any cap upon its liability. It cannot bind members of the public to its agreement with DOT as to which entity will maintain the property that is owned by the railroad and licensed to the state. It knows, as this case demonstrates, that it will be the defendant of first choice when the other option is a governmental entity. In the absence of an indemnity clause as the consideration for this crossing agreement, the railroad would have little choice but to charge a state agency an annual fee sufficient to insure the risk fully.

Thus, the issue in this case is whether DOT, as the successor to the State Road Department, is bound by the written agreement under which the railroad has fully performed for sixty-five years and has provided DOT with a right-of-way in exchange only for an agreement that DOT indemnify the railroad for all loss “arising or growing out of the construction, condition, maintenance, alteration or removal of the highway.” Despite the reservations concerning indemnification agreements discussed in American Home, we conclude that the crossing agreement is enforceable in this context and that DOT is bound by this agreement. DOT and its predecessor had the authority to enter into contracts necessary to build and maintain this road, and the use of a limited indemnity agreement as the sole consideration for the contract to obtain right-of-way did not render it unenforceable when a condition requiring indemnity finally occurred.

We recognize that Florida’s Constitution states that “[n]o money shall be drawn from the treasury except in pursuance of appropriation made by law.” Art. VII, § 1(c), Fla. Const. We do not read this provision to prevent the trial court from having the power to enter a monetary judgment requiring DOT to indemnify CSX for the settlement and defense of the underlying negligence action. A court may not issue an execution to permit state property to be seized to pay such a judgment. At most, by writ of mandamus, a court might require an agency to take the steps necessary to pay the judgment in an orderly fashion. See Florida Dep’t of Env’t Prot. v. ContractPoint Fla. Parks, LLC, 986 So.2d 1260, 1271-72 (Fla.2008).

Concerning the argument that this judgment must be limited to the state’s liability under section 768.28(5), we conclude that DOT’s liability in 2002 to CSX was based on an express written contract. See Pan-Am Tobacco Corp., 471 So.2d at 5-6. The statutes limiting liability in cases of the legislature’s partial waiver of sovereign immunity apply only to judgments recovering damages for tort, not to judgments recovering damages under legal theories that may be analogous to torts. See Provident Mgmt. Corp. v. City of Treasure Island, 796 So.2d 481, 486-87 (Fla.2001).

Because we recognize that this decision could apply to other similar long-standing crossing and sidetrack agreements throughout Florida between railroads and counties or other state agencies and subdivisions and because questions concerning the enforceability of these agreements could affect commerce, we certify the following questions to the supreme court as questions of great public importance:

IS DOT BOUND BY A RAILROAD CROSSING AGREEMENT UNDER WHICH IT RECEIVED A REVOCABLE LICENSE TO USE LAND AS RIGHT-OF-WAY IF THE SOLE CONSIDERATION FOR THE LICENSE WAS AN AGREEMENT TO INDEMNIFY THE RAILROAD FOR LOSSES ARISING OUT OF DOT’S ACTIVITY ON THE LAND? IF SO, IS DOT’S LIABILITY UNDER THE CROSSING AGREEMENT LIMITED BY SECTION 768.28(5), FLORIDA STATUTES (2002)?

Affirmed.

CRENSHAW, J., Concurs.

WALLACE, J., Dissents with opinion.

APPENDIX A

[The actual agreement was produced on a typewriter. The copies in the record are not high quality. This is a replica.]

The Crossing Agreement

GS 82166

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3-23-36

THIS AGREEMENT, made this 29th day of May, 1936, between L.R. Powell, Jr., and Henry W. Anderson, as Receivers of Seaboard Air Line Railway Company, hereinafter designated “Receivers”; and State Road Department of Florida, a body corporate under the laws of the State of Florida, hereinafter designated “Licensee”;

WITNESSETH THAT WHEREAS, the Licensee desires to construct that certain road crossing over the tracks and property of the Receivers at a point 1305 feet, more or less, northwardly from Mile Post 817, as measured front Richmond, Virginia, said crossing being located in or near Fivay, Pasco County, Florida, as shown in RED on blue print 34707, attached hereto as a part hereof;

NOW, THEREFORE, for and in consideration of the premises and mutual advantages accruing to the parties hereto, it is covenanted and agreed by and between them as follows:

1. The Receivers hereby grant unto the Licensees the right and privilege, terminable, and with the limitations, as hereinafter expressed, to locate and continue over and upon said right of way and property, at grade, the said highway.

2. The Licensee will construct and maintain the said highway upon said right of way and property, at such times and in such manner as not to impede, interfere with, hinder or delay the passage of trains, engines and cars of the Receivers.

3. The Licensee shall bear any and all expense of every character incident to the construction, reconstruction, repair, alteration or maintenance of said highway upon said right of way and property, no assessment, levy or expenditure to be made against or required of the Receivers on account of any of the aforesaid matters, or on account of paving, drainage, fences or other improvements in connection therewith; nor shall the Receivers be required to bear the cost of any watchman or gates installed on account of the said highway crossing.

4. The right and privilege herein granted so to locate and construct said highway over and upon said right of way and property is limited to the use of said right of way and property for public highway purposes only, and should said right of way and property, or any part thereof, so occupied by said highway, at any time cease to be used for public highway purposes, or in the event the Licensee shall default in any of its undertakings herein contained, then the Receivers may at any time thereafter, at their option, cancel this agreement by written notification to the Licensee, and in the event of such cancellation all the rights and privileges in and by this agreement to the Licensee granted, and all the estate, right, title and interest of the Licensee, the State of Florida, or the public, in and to the aforesaid right of way and property, shall thereupon cease, determine and revert to the Receivers. It is further understood and agreed that should said right of way and property, or any part thereof, at any time hereafter be needed by the Receivers for railroad purposes, then, upon the expiration of ninety days notice in writing from the Receivers to the Licensee, the said road or highway shall be moved or narrowed by the Licensee to such extent as, in the opinion of the Receivers, may be necessary for the purpose aforesaid. And in any of such events, or in the event of termination of this agreement in any other manner, the Licensee hereby agrees to restore, at its sole cost, said right of way and property so occupied by said highway to approximately the condition thereof prior to the location thereon of said highway.

5. Should the said highway as so located upon said right of way and property at any time, in the opinion of the Chief Engineer or other proper officer of the Receivers, interfere with or retard the drainage of said right of way and property, the Licensee shall upon notice so to do from the Receivers, at its (the Licensee’s) sole cost, remedy such condition of said drainage in manner satisfactory to said Chief Engineer or other proper officer.

6. The Licensee hereby agrees that any industrial tracks, turnouts, or other tracks, which the Receivers shall construct, may, if the Receivers so desire, be constructed across the said highway, the cost of any highway repair or restoration work made necessary as a result of any such track crossing to be borne by the Licensee. It is expressly stipulated that the Receivers will not be required to bear the cost of any watchmen, gates, or any drainage facilities of any character whatever installed on account of any such track crossings which have been or may hereafter he made.

7. It is expressly stipulated that the Licensee shall have no right hereunder to construct, maintain and/or operate, nor to permit or authorize others to construct, maintain and/or operate any electric, telephone or other wires or poles, or any gas, water, sewer or other pipes, mains or conduits, or any street car tracks or other facilities of any kind, upon, over or beneath said highway as permitted to be constructed hereunder.

8. Should any sign posts, or signs or fencing, in the opinion of the Receivers, be necessary at or in the vicinity of the said highway or be required by the Licensee, or other public authority, for the purpose of safeguarding traffic, the Licensee shall, upon being notified so to do by the Receivers, provide and install the said sign posts or signs or fencing.

9. The Licensee will indemnify and save harmless Receivers from and against all loss, damage or expense arising or growing out of the construction, condition, maintenance, alteration or removal of the highway hereinabove described.

10. It is expressly agreed that in the event the Licensee shall, without the written consent of the Receivers first obtained, make any change or alteration in the location of said above described road or highway, and/or construct or extend any other highway upon, over or across the right of way or other property, and/or within one hundred feet of the center line of any railroad track, of the Receivers, then in all or any of such cases the Receivers shall have the right, if they so elect, to terminate this agreement and all the estate, right, title and interest of the Licensee and of the public hereunder upon ninety days prior written notice of the intention so to do. And upon such termination by the Receivers all of said estate, right, title and interest shall cease, determine and revert to the Receivers.

11. It is understood and agreed that the rights and privileges herein set out are granted only to the extent of the Receivers’ right, title and interest in the land to be entered upon and used by the Licensee.

12. The provisions of this contract shall be binding upon and shall inure to the benefit of the Receivers of Seaboard Air Line Railway company (as Receivers, but not individually) [a]nd their successors. Regardless of anything in this contract contained, the continuance of this contract after the said Receivers or their successors cease to control and operate the line of railroad on or along which the property covered by this contract is located shall depend upon such orders as may be entered by the District Court of the United States for the Eastern District of Virginia.

13.Nothing herein or hereby, nor any act of said Receivers nor of the Licensee shall operate as an adoption or affirmance by the said Receivers of the lease between Tampa Northern Railroad Company and Seaboard Air Line Railway Company dated January 5, 1926, and/or agreement as supplemental thereto dated October 1, 1928, or as a waiver of their right to reject or disaffirm said lease and/or agreement supplemental thereto, the Licensee hereby agreeing that the said Receivers reserve in all respects their right hereafter to adopt or to disaffirm and reject said lease and/or agreement supplemental thereto.

IN TESTIMONY WHEREOF, the parties have caused these presents to be duly signed and sealed, the day and year first above written.

[the signatures have not been replicated]

WALLACE, Judge,

Dissenting.

I respectfully dissent. DOT’S predecessor, the State Road Department, did not have specific statutory authority to agree to the indemnity clause in the crossing agreement with the railroad. For this reason, I conclude that the indemnity clause is void and unenforceable.

I. INTRODUCTION

The majority states that “[t]he only issues on appeal concern the enforceability of the crossing agreement.” (maj. op. at § III) I disagree. In my view, the issues on appeal concern the enforceability of the indemnity clause contained in the crossing agreement. The parties agree that DOT has the authority generally to enter into crossing agreements. We are not called upon to address the larger issue of the enforceability of the crossing agreement as a whole.

The majority gives short shrift to DOT’S argument that the indemnity clause is void because it lacked the authority to enter into an agreement to indemnify the railroad. In the second section of this dissent, I will restate DOT’S argument on this issue. Next, I will discuss my disagreements with the majority’s analysis. Before concluding, I will outline a brief proposal for a legislative solution to the problem illustrated by the facts of this case.

II. DOT LACKED THE AUTHORITY TO AGREE TO INDEMNIFY THE RAILROAD

DOT is an agency of the state. § 20.23, Fla. Stat. (2002). As a state agency, the DOT is a creature of statute and has only such powers as may be conferred on it by statute. See Fla. Elections Comm’n v. Davis, 44 So.3d 1211, 1215 (Fla. 1st DCA 2010) (quoting State ex rel. Greenberg v. State Bd. of Dentistry, 297 So.2d 628, 634 (Fla. 1st DCA 1974)). The long-established rule is that “[sjtate agencies may exercise only those powers which are expressly granted by statute or which are necessarily implied from such express powers.” Op. Att’y Gen. Fla. 78-20 (1978) (citing State v. Atl. Coast Line R.R., 56 Fla. 617, 47 So. 969, 978-79 (1908)).

Florida’s constitution and statutes impose strict limits on the expenditures of public funds by state agencies. In accordance with article VII, section 1(c) of the Florida Constitution, “[n]o money shall be drawn from the treasury except in pursuance of appropriation made by law.” A legislative enactment reinforces this constitutional command in no uncertain terms:

No agency or branch of state government shall contract to spend, or enter into any agreement to spend, any moneys in excess of the amount appropriated to such agency or branch unless specifically authorized by law, and any contract or agreement in violation of this chapter shall be null and void.

§ 216.311(1), Fla. Stat. (2002).

DOT currently has specific statutory authority to enter into many different kinds of contracts. See § 337.02, Fla. Stat. (2013) (contracts to purchase commodities such as materials, machinery, tools, equipment, and supplies); § 337.026(2) (contracts to purchase construction aggregate materials); § 337.03(1) (contracts to purchase surplus property from the federal government); § 337.107 (contracts for right-of-way services); § 337.1075 (contracts for transportation-related planning services); § 337.11(1) (contracts for road construction and maintenance); § 337.111 (contracts for the installation of monuments and memorials to military veterans at highway rest areas). However, the current statutes do not — and the statutes in effect in 1936 did not — authorize the DOT to enter into an indemnity agreement of the type at issue in this case.

Notably, section 337.108(2) provides that the DOT “may agree to hold harmless and indemnify a contractor for damages when the contractor discovers or encounters hazardous materials or pollutants during the performance of services for the department. ...” The legislature enacted section 337.108 in 1992. Ch. 92-152, § 125, at 1607-08, Laws of Fla. The DOT informs us that section 337.108 “is the only statute the DOT is aware of that authorizes the DOT to agree to indemnify or otherwise bind the state in that regard.” Undeniably, section 387.108(2) is not applicable to the indemnity clause under review.

The enactment of section 337.108 demonstrates that the legislature knows how to authorize DOT to agree to indemnify a contract party. Under the doctrine of in-clusio unius est exclusio alterius, the legislature’s authorization of an indemnity agreement in one very specific instance regarding hazardous materials and pollutants supports the conclusion that the DOT is prohibited from entering into indemnification agreements in all other instances. See Indus. Fire & Cas. Ins. Co. v. Kwechin, 447 So.2d 1337, 1339 (Fla. 1983); Miulli v. Fla. High Sch. Athletic Ass’n, Inc., 998 So.2d 1155, 1157 (Fla. 2d DCA2008); Davis, 44 So.3d at 1215.

Florida’s Attorney General has specifically addressed the question whether a state agency such as the DOT may agree to an indemnity clause contained in a contract to which it was otherwise authorized to enter. In 1978, Palm Beach County requested an opinion from the Attorney General on the following question: “Are there any legal constraints which would limit the power of a state agency to enter into an indemnification agreement?” Op. Att’y Gen. Fla. 78-20 (1978). The Attorney General’s response was unequivocal:

There being no express statutory power here, the state agencies acting as your county’s subgrantees are without authority to execute indemnification contracts of the type you have mentioned or to anywise bind the state in that regard. If any of these state agencies did enter into such an indemnification contract, any judgment in a suit thereupon would be of no legal force or effect, not merely because consent thereto has not been duly given nor sovereign immunity duly waived as to such a suit, but also because a claim against the state cannot be paid by a state agency unless a statute exists empowering it to pay such claims, and the Legislature has appropriated funds for such purpose, and the claim has been audited and approved as provided by law. Florida Development Commission v. Dickinson, 229 So.2d 6, 8 ([Fla. 1st DCA] 1969), cert, denied, 237 So.2d 530 (Fla.1970); AGO 071-28; accord Attorney General Opinions 077-12 and 076-46.

Id. The Attorney General concluded his opinion as follows:

[Constitutional and legal constraints limiting the power of a state agency to enter into an indemnification agreement imposing contractual liability upon the state do exist, and that, at least with regard to indemnification agreements of the type you have mentioned, these constraints render nugatory and unenforceable as against the state or its agencies any such agreement entered into by a state agency.

Id.

Under this reasoning, the absence of any specific statutory authorization for the indemnity clause in the crossing agreement compels the conclusion that the clause has “no legal force or effect” and is “nugatory and unenforceable” against the DOT. Id.; see also § 216.311(1); Am. Home Assur. Co. v. Nat’l R.R. Passenger Corp., 908 So.2d 459, 475 (Fla.2005) (“Florida’s Constitution expressly limits the state’s ability to expend funds and enter contracts by requiring specific statutory authority.”) “Although an opinion of the Attorney General is not binding on a court, it is entitled to careful consideration and generally should be regarded as highly persuasive.” State v. Family Bank of Hallandale, 623 So.2d 474, 478 (Fla.1993) (citing Lowry v. Parole & Prob. Comm’n, 473 So.2d 1248,1249 (Fla.1985), and Beverly v. Div. of Beverage of Dep’t of Bus. Reg., 282 So.2d 657, 660 (Fla. 1st DCA 1973)).

CSX concedes that DOT must have specific statutory authority to enter into contracts. It argues that DOT had the necessary authority to enter into a crossing agreement such as the one at issue in this case. However, as DOT points out, it “must have specific authority to agree to indemnify another, and it makes no difference if the agreement stands alone or is part of a larger contract whose overall purpose is authorized.” An agency cannot evade the prohibition against incurring unauthorized obligations simply by including a prohibited agreement in another contract. It was just such a proposed arrangement which prompted Palm Beach County to make the inquiry that resulted in the issuance of Attorney General Opinion 78-20.

Finally, as the majority notes, the supreme court’s decision in the American Home case does not address the question that we are called upon to decide here. In the American Home case, the entity that had negotiated a comparable agreement containing an indemnity clause was a municipal agency. 908 So.2d at 463-64. The supreme court did not address the question of whether an indemnity agreement was enforceable against a state agency such as DOT. Id. at 473-74.

In closing, DOT reminds us that the state’s waiver of sovereign immunity for contractual obligations is limited “to suits on express, written contracts into which the state agency has the statutory authority to enter.” Pan-Am Tobacco Corp. v. Dep’t of Co'rr., 471 So.2d 4, 6 (Fla.1984). The indemnity clause at issue here does not qualify as such a contract because DOT lacked the statutory authority to enter into it.

III. CONSIDERATION OF THE MAJORITY’S ANALYSIS

The majority does not address the issue of DOT’s authority to enter into an agreement to indemnify CSX. Instead, the majority reframes the issue before us as one of equitable estoppel. I have several disagreements with the majority’s estoppel analysis.

First, the majority repeatedly states that the indemnity clause was “the sole consideration” for the crossing agreement. I think that this is incorrect. The agreement gave the DOT the right to locate a highway crossing over the railroad’s track at the designated location near Fivay. However, DOT also assumed the liability for the cost of the construction, repair, and maintenance of the crossing, plus the responsibility for safety measures such as “the cost of any watchman or gates.” By assuming the obligation to construct the crossing and to pay for its maintenance and continuing costs, DOT bound itself to do something that it was not otherwise obligated to do. This was a sufficient consideration for the railroad’s promise. See Mangus v. Present, 135 So.2d 417, 418 (Fla.1961); Lake Sarasota, Inc. v. Pan Am. Sur. Co., 140 So.2d 139, 142 (Fla. 2d DCA 1962); Fontainbleau Hotel Corp. v. Crossman, 323 F.2d 937, 942 (5th Cir.1963) (applying Florida law).

Second, the majority’s “parade of horri-bles” argument is both unsupported by the record and addresses issues not properly before us. The majority conjures a disquieting scenario of the dire consequences it suggests may occur if this court declines to affirm the trial court’s decision to enforce the indemnity clause contained in the crossing agreement. According to the majority, a reversal of the judgment might prompt CSX to cancel not only the crossing agreement under review but also its other crossing agreements with DOT. The result, the majority warns, may be the closing of many important roads around the state.

Based on my review of the record, I think that this court lacks sufficient information to predict the impact of a reversal of the final judgment in this case. DOT certainly has many capable lawyers. I think that it is fair to assume that some of these lawyers have carefully considered the state-wide implications of DOT’s decision to contest CSX’s claim for indemnity in this case. More importantly, the question of CSX’s right to treat the crossing agreement under review and others like it as void or to cancel such agreements is not before us. Accordingly, we ought not to address the question of what CSX could or could not do in the event of a decision holding the indemnity clause to be void and unenforceable. See Lightsee v. First Nat’l Bank of Melbourne, 132 So.2d 776, 778 (Fla. 2d DCA 1961) (“We are not authorized to pass upon issues other than those properly presented on appeal.”).

Third, the majority bases its theory for the affirmance of the judgment entirely on an estoppel against DOT, as if DOT were just an ordinary litigant. This approach ignores DOT’s status as a state agency. In order for the state or its agencies to be estopped, the circumstances must be exceptional. Greenhut Constr. Co., Inc. v. Henry A. Knott, Inc., 247 So.2d 517, 524 (Fla. 1st DCA 1971). In addition, the circumstances “must include some positive act on the part of some officer of the state upon which the aggrieved party had a right to rely and did rely to its detriment.” Id. The state may not be estopped by the unauthorized acts or representations of its officers. Id. “[I]t is fundamental that the doctrine of estoppel will not apply to ‘transactions that are forbidden by statute or that are contrary to public policy.’ ” Reedy Creek Improv. Dist. v. State Dep’t of Envtl. Reg., 486 So.2d 642, 647 (Fla. 1st DCA 1986) (quoting Montsdoca v. Highlands Bank & Trust Co., 85 Fla. 158, 95 So. 666, 668 (1923)).

Here, the indemnity clause is not authorized by statute and is contrary to public policy. The person who executed the crossing agreement on behalf of DOT acted without authority in agreeing to the inclusion of the indemnity clause in the agreement. CSX either knew or should have known that the indemnity clause was unauthorized. Under these circumstances, there can be no estoppel against DOT with regard to the indemnity clause. See Reedy Creek, 486 So.2d at 647; Greenhut Constr., 247 So.2d at 524.

Finally, the majority suggests that the $502,462.22 judgment against DOT should be viewed as a deferred payment for a license “that apparently was free of charge for its first sixty-five years.” (maj. op. at § III) Disregarding the effects of inflation and the time-value of money, the majority’s deferred payment theory equates to an annual payment of approximately $7800 by DOT to CSX for the crossing agreement. There is no information in our record concerning the market value of DOT’s license to cross CSX’s railroad tracks. However, in light of DOT’s other obligations for the cost of construction, repair, and maintenance of the grade crossing, $7800 seems to me like a substantial annual payment.

There is a much more serious difficulty with the majority’s effort to support the affirmance of the final judgment with its deferred-payment theory. The problem is that the deferred-payment approach does not take into account the unlimited nature of DOT’s exposure under the indemnity clause. A single $500,000 payment every sixty-five years might be manageable. But another claim might be made next year and the year after that. The claim in this case resulted from an accident involving a fatality. The next claim or claims could easily total five, ten, or fifteen million dollars. If DOT has an unlimited exposure under indemnity clauses similar to the one under review in multiple crossing agreements around the state, the decision to declare such indemnity clauses enforceable could pose a significant challenge to DOT’s budget.

IV. A POSSIBLE LEGISLATIVE APPROACH

The courts are ill-equipped to solve the real problems posed by old crossing agreements containing indemnity clauses such as the one under review in this case. We have only two options; we can declare the indemnity clauses unenforceable, or we can enforce them. As the majority opinion and this dissent suggest, either approach poses difficulties.

A legislative solution to the problem we face may be in order. One possible approach would be legislation validating indemnity clauses in old crossing agreements executed by DOT such as the agreement in this case. In conjunction with such retroactive authorization, DOT’s liability under the indemnity clauses could be limited in amount as in section 768.28(5), Fla. Stat. (2013). Such an approach might minimize the possibility that CSX and other railroads would attempt to cancel or to rescind the crossing agreements, while limiting DOT’s potential liability under such indemnity clauses.

V. CONCLUSION

Because the indemnity clause in the crossing agreement is void and unenforceable, I would reverse the final judgment in favor of CSX and remand for the entry of a final judgment in favor of DOT. I agree with the majority that we should certify the questions raised by this case to the supreme court as questions of great public importance. I would rephrase the questions as follows:

IS DOT BOUND BY AN INDEMNITY CLAUSE FOR WHICH IT HAD NO SPECIFIC STATUTORY AUTHORITY WHEN THE INDEMNITY CLAUSE IS CONTAINED IN A RAILROAD CROSSING AGREEMENT UNDER WHICH IT RECEIVED A REVOCABLE LICENSE TO USE LAND AS RIGHT-OF-WAY IN EXCHANGE FOR THE INDEMNITY CLAUSE AND OTHER CONSIDERATIONS?

IF SO, IS DOT’S LIABILITY UNDER THE INDEMNITY CLAUSE LIMITED BY SECTION 768.28(5), FLORIDA STATUTES (2002)?

      . See History of Fivay, Pasco County, Florida (Sept. 21, 2012) http://www.fivay.org/fivay. html.

      . See Richard L. Forstall, Florida Population of Counties by Decennial Census: 1900 to 1990, U.S. Census Bureau, (Mar. 27, 1995) http://www.census.gov/population/cencounts/ fll90090.txt.

      . See, e.g., Sol Walker & Co. v. Seaboard Coast Line R.R., 362 So.2d 45, 47-48 (Fla. 2d DCA 1978); Brown v. Balt. & Ohio R.R. Co., 805 F.2d 1133, 1135-36 (4th Cir.1986); Chi. &

        Nw. Transp. Co. v. Negus-Sweenie, Inc., 549 F.2d 47, 48 (8th Cir.1977); Harleysville Mut. Ins. Co. v. Reliance Nat’l Ins. Co., 256 F.Supp.2d 413, 415-16 (M.D.N.C.2002); S. Pac. Co. v. Gila River Ranch, Inc., 105 Ariz. 107, 460 P.2d 1 (1969); Langemo v. Mont. Rail Link, Inc., 307 Mont. 293, 38 P.3d 782, 784, 787 (2001); Erie R.R. v. Buffalo & Lacka-wanna Traction Co., 220 A.D. 520, 221 N.Y.S. 680, 681 (N.Y.App.Div.1927); Sommerville v. Pa. R.R., 151 W.Va. 709, 155 S.E.2d 865, 868 (1967).

      . Section 335.141(2)(c), Florida Statutes (2002), discusses maintenance of such crossings. It places the duty to maintain on the railroad, "unless the maintenance has been provided for in another manner by contractual agreement entered into prior to October 1, 1982.” Thus, the statute in effect at the time that DOT had a duty to maintain this crossing to prevent this accident seems to have expressly recognized that a contract like the 1936 contract would control.

      . The dissent is correct that this explanation relies on a concept of estoppel. We simply conclude that the case law permits the application of estoppel in this limited context.

      . As a practical matter, the portion of this judgment that equates to the plaintiff's claim in the initial lawsuit is within the statutory limitation provided by section 768.28(5). It is the reimbursement of attorneys’ fees and costs for failure to defend this action that is the major portion of this judgment.

      . In this dissent, I will refer to both the State Road Department and its successor agency, the Department of Transportation, as “DOT.” I will refer to CSX Transportation, Inc., and its predecessors in interest as "CSX” or "the railroad.”

      . The material in this section of my dissent consists largely of a condensed version of the argument made by DOT in point one of its initial brief.

      . CSX does not dispute DOT's representation that section 337.108 is the only statute that authorizes the DOT to enter into a contract for an indemnity.

      . Absent the crossing agreement, CSX would be obligated to maintain the crossing under current law. Section 335.141 (2)(c), Florida Statutes (2013), provides, in pertinent part, as follows: "Any public railroad crossing opened prior to July 1, 1972, shall be maintained by the railroad company at its own expense, unless the maintenance has been provided for in another manner by contractual agreement entered into prior to October 1, 1982.”

      . A discussion of the constitutionality of such legislation is beyond the scope of this dissent.


source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    Jose O. PEREZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5983.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 2013.

      Jose 0. Perez, pro se.
   WALLACE, Judge.

Jose 0. Perez challenges the order of the postconviction court summarily denying his motion filed in accordance with Florida Rule of Criminal Procedure 3.850. We affirm without comment the denial of all the claims raised in the motion except one. We reverse the denial of Perez’s claim that counsel was ineffective for failing to call witnesses, and we remand for further proceedings on that claim.

Following a jury trial, Perez was convicted of second-degree murder with a firearm. The State presented eyewitness testimony that after Perez had a confrontation with the victim, Perez pulled out a gun and fatally shot him. Then, Perez jumped into the passenger side of a Ford Expedition and left the scene. A deputy heard the gunshots and stopped the Expedition. The deputy testified that Perez was driving the vehicle. The deputy searched the vehicle and its four occupants but found no firearms.

Perez testified at trial that the victim confronted him, took off his shirt, and “clutched,” meaning that the victim pretended to reach for an imaginary gun in his pocket. Perez went back to the Expedition and ducked down when he heard gunshots. When he looked up, his friend Javier Avila was standing over the victim. Perez saw Avila shoot the victim one more time. Avila got into the back seat of the Expedition, and Perez drove away.

In ground three of the motion, Perez claimed that his trial counsel was ineffective for failing to investigate and call Gilbert Guerrero and Ben Gonzalez as witnesses at trial. Perez alleged that these witnesses would testify that they saw Avila shoot the victim and enter the Expedition on the rear passenger side when they fled the scene. They would testify further that when the deputy was behind them with lights and sirens activated, Avila screamed at Perez, “Don’t give up on me man. Don’t nobody say I did nothing man.” Perez alleged further that he gave counsel Guerrero’s and Gonzalez’s addresses and telephone numbers. He advised counsel that he had spoken to Guerrero several times since the incident and Guerrero “stated that he would come testify for the defendant if he had to and would talk to Ben Gonzalez because they both knew that ‘Javier’ shot and killed [the victim].” Perez alleged that before trial, counsel informed him that he had not contacted these witnesses because he thought that, more likely than not, they would not be good witnesses and the jury would not believe them.

To establish a facially sufficient claim of failure to call a witness, the defendant must provide the identity of the prospective witness, the substance of the witness’s testimony, an explanation about how the omission of this evidence prejudiced the outcome of the trial, and an assertion that the witness was available to testify. See Barthel v. State, 882 So.2d 1054, 1054-55 (Fla. 2d DCA 2004) (citing Nelson v. State, 875 So.2d 579, 582-83 (Fla.2004)). To establish prejudice, the defendant must show, based on the circumstances of the case, “ ‘that there is a likelihood that the deficient conduct affected the outcome of the court proceedings.’ ” Nelson, 875 So.2d at 583 (quoting Smith v. State, 445 So.2d 323, 325 (Fla.1983)). In the present case, Perez sufficiently alleged prejudice when he asserted that the witnesses’ testimony would have established a reasonable doubt and that, absent counsel’s deficient performance, the outcome of the proceedings would have been different.

The postconviction court found Perez’s claim to be facially insufficient because Perez did not allege that the witnesses would have been available to testify as required by Nelson. The postconviction court noted that Perez had amended grounds six and seven but had failed to amend ground three. However, the post-conviction court had not previously dismissed this ground as facially insufficient.

Perez’s claim that he advised counsel that he had spoken with Guerrero several times since the incident and that Guerrero told him that he would testify at trial on his behalf was a sufficient allegation that Guerrero was available to testify. However, Perez merely alleged that Guerrero told him that he would talk to Gonzalez about testifying. This did not constitute a sufficient allegation that Gonzalez would have been available to testify. In Spera v. State, 971 So.2d 754, 762 (Fla. 2007), the Supreme Court of Florida held that a defendant should only be allowed to amend facially insufficient rule 3.850 pleadings if they can be amended in good faith. In this instance, Perez should have been provided with an opportunity to amend the claim to allege that Gonzalez was available to testify, if he can do so in good faith.

Although the postconviction court found that the claim was facially insufficient, it also denied the claim on the merits. The court found that Gonzalez’s and Guerrero’s testimony would have been cumulative to that of Perez, citing to Darling v. State, 966 So.2d 366 (Fla.2007). In Darling, the Supreme Court of Florida held that trial counsel was not ineffective for failing to call Darling’s father to testify in the penalty phase of a murder trial regarding his abuse of Darling when Darling was a child. Id. at 377. Although the father’s testimony would have been more detailed, Darling’s psychiatrist, his mother, and his sister had testified to the abuse, and counsel was not ineffective in failing to present cumulative evidence under these circumstances. Id.

However, this court has held in two prior cases that the alleged testimony of witnesses who had not been called was not cumulative even though the testimony may have duplicated the defendant’s trial testimony to some extent. Solorzano v. State, 25 So.3d 19 (Fla. 2d DCA 2009); Balmori v. State, 985 So.2d 646 (Fla. 2d DCA 2008). In Solorzano, this court concluded that the testimony of a relatively disinterested witness would have differed in quality from that provided by Solarzano and his other witness, who was too drunk to walk unaided. Therefore, the jury would have given greater weight to the testimony of the disinterested witness. 25 So.3d at 25. Because of the difference in the quality of the testimony, we held that the trial court abused its discretion in finding the testimony to be cumulative and in denying relief on this ground. Id.

In Balmori, the police found a trafficking amount of heroin in Balmori’s vehicle when he was stopped while driving from Miami to Sarasota. 985 So.2d at 647. Balmori alleged that he advised counsel of documentary evidence and the testimony of potential witnesses that would have supported the defense theory that he had been “set up.” Id. at 648. This court reversed and remanded for further proceedings on Balmori’s claims, stating:

We find that, taking all of the allegations in claims three and five of Mr. Balmori’s postconviction motion as true where not refuted by the record, providing independent business records would have corroborated his claims that he drove to Miami for a legitimate reason and that others had access to his vehicle immediately before the trip. To be sure, this documentary evidence may have been duplicative of the content of Mr. Balmo-ri’s testimony, but it was not duplicative of its evidentiary value. Instead, the force of this evidence would have been incremental in value to Mr. Balmori’s testimony. Similarly, the testimony of the witnesses who were not interviewed or called to testify by counsel — especially where they were independent of Mr. Balmori — would likely have incrementally increased his credibility with the jury.

Id. at 650. This court concluded: “Because we are required to accept Mr. Bal-mori’s allegations as true for the purpose of this review, the corroborating evidence and testimony could possibly have provided the incremental amount of reasonable doubt necessary to win an acquittal.” Id. at 651.

In this case, accepting Perez’s sworn allegations as true, we conclude that the testimony of Guerrero and Gonzalez would likely have incrementally increased Perez’s credibility with the jury even though these witnesses may not have been independent of Perez. Some of the testimony of the State’s two eyewitnesses was contradictory, and the testimony of Gonzalez and Guerrero that Avila was the shooter and Perez was the driver as they fled the scene was consistent with the testimony of the deputy who stopped the Expedition almost immediately after hearing gunshots and determined that Perez was driving. Furthermore, there is no indication that Guerrero and Gonzalez were charged with any offense arising out of this incident, and the jury may have found them more credible than Perez.

The postconviction court also found that the failure to call the witnesses constituted trial strategy because Perez alleged that counsel had determined that the jury would not believe them. A facially sufficient claim that counsel was ineffective in failing to call witnesses generally requires an evidentiary hearing. See Jacobs v. State, 880 So.2d 548, 555 (Fla.2004). The purpose of the evidentiary hearing is to determine whether trial counsel acted reasonably in not presenting the alleged exculpatory evidence. Id. The Jacobs court held that the presence of evidence of guilt in the record in that case did not rebut the claim. Id. Furthermore, this court has held that although attorneys are given great latitude with regard to strategy and trial tactics, a denial of a claim of ineffective assistance based on a finding that counsel was engaging in reasonable trial strategy generally should only be made after an evidentiary hearing. Porter v. State, 626 So.2d 268, 269 (Fla. 2d DCA 1993).

Therefore, we reverse that portion of the order denying ground three of Perez’s motion. On remand, the postconviction court shall provide Perez with a reasonable time to amend the claim if he can do so in good faith to allege that Gonzalez was available to testify. If Perez is able to present a facially sufficient claim that counsel was ineffective in failing to call both Guerrero and Gonzalez to testify at trial, the postconviction court shall conduct an evidentiary hearing on the claim as a whole. Otherwise, the court shall conduct a hearing on the claim only to the extent that counsel was ineffective in failing to call Guerrero.

Affirmed in part, reversed in part, and remanded.

NORTHCUTT and SILBERMAN, JJ., Concur.


author: PER CURIAM.

text:
    Heather CIAMBRONE, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-599.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 2013.

      Heather Ciambrone, pro se.
   PER CURIAM.

Heather Ciambrone appeals the circuit court’s summary denial of her motion for postconviction relief filed under Florida Rule of Criminal Procedure 3.850. Although Ciambrone raised ten claims of ineffective assistance of counsel, we find no merit in three of those claims, the denial of which we affirm without discussion. We reverse the summary denial of the seven remaining claims and remand to the post-conviction court for reconsideration of those claims.

Ciambrone was charged in July 1995 with the first-degree murder of her adopted son, Lucas. She was found incompetent to proceed until March 2000. In 2001, she entered a plea of no contest to second-degree murder and was sentenced to fifty-five years in prison. In 2006, this court reversed the denial of Ciambrone’s rule 3.850 motion, concluding her plea was involuntary due to her counsel’s incorrect advice regarding the amount of time she could expect to serve in prison. Ciam-brone v. State, 938 So.2d 550 (Fla. 2d DCA 2006). Ciambrone withdrew her plea and was tried by jury in May 2007. She was found guilty of first-degree felony murder, with the underlying felony of aggravated child abuse, and was sentenced to life without the possibility of parole. We affirmed Ciambrone’s conviction and sentence on direct appeal. Ciambrone v. State, 38 So.3d 139 (Fla. 2d DCA 2010) (table).

Ciambrone filed a motion under rule 3.800(a), arguing the State alleged the murder was a continuing crime that commenced with the first acts of aggravated child abuse in 1993, so she was entitled to be sentenced to life without the possibility of parole for twenty-five years, the sentence that applied in 1993. We affirmed the postconviction court’s rejection of her argument in Ciambrone v. State, 93 So.3d 1176 (Fla. 2d DCA 2012).

In this proceeding, Ciambrone claims she was denied her constitutional right to the effective assistance of counsel; we address each of her claims in turn.

In order for a defendant to prevail on a claim of ineffective assistance of counsel, a defendant must show deficient performance — that counsel’s representation fell below an objective standard of reasonableness; and prejudice — a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have differed. Strickland v. Washington, 466 U.S. 668, 690-91, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Regarding the reasonableness of representation, the United States Supreme Court has explained that a decision to focus on one potentially reasonable trial strategy is justified by a tactical decision only after a trial attorney conducts a thorough investigation. Sears v. Upton, 561 U.S.-, 130 S.Ct. 3259, 3265, 177 L.Ed.2d 1025 (2010) (per curiam). In assessing prejudice, courts must consider the totality of the evidence presented in postconviction, along with the evidence adduced at trial, to determine whether there is a reasonable probability that the outcome would have differed. Id. at 3266-67.

When, as in this case, a rule 3.850 motion is summarily denied without an evidentiary hearing, we must accept as true the defendant’s factual allegations that are not conclusively refuted by the record. See Peede v. State, 748 So.2d 253, 257 (Fla.1999) (citing Lightboume v. Dug-ger, 549 So.2d 1364, 1365 (Fla.1989)). In reviewing the postconviction court’s summary denial of Ciambrone’s allegations regarding trial counsel’s investigation and preparation for trial, we are constrained by the limited record before us, namely trial counsel’s concession less than a month before trial that “I will not be able to provide even minimally competent representation to Ms. Ciambrone, should her trial begin on May 7.”

In Ground I, Ciambrone alleged her attorney was ineffective for announcing he was ready for trial on January 17, 2007, before he had adequately reviewed the sixty boxes of documents that made up her case file and investigated the witnesses referenced therein. The record before us shows that Ciambrone’s attorney stated he would be ready for trial in March 2007 and objected to the State’s motion to continue the trial on March 23, 2007. But on April 5, 2007, Ciambrone’s attorney moved to continue the trial, which was set for May 7, 2007. He argued he was representing a man in a capital trial in April and “I will not be able to provide even minimally competent representation to Ms. Ciambrone, should her trial begin on May 7.” Ciambrone cites several instances in the record, after trial counsel announced he was ready for trial, where both trial counsel and the State question trial counsel’s ability to review the voluminous documents and prepare for trial in such limited time. Ciambrone further alleged her attorney’s decision to announce he was ready for trial before adequately reviewing her file undermined confidence in the outcome of her trial because the trial court used it as a basis to deny counsel’s later motion for a continuance. As a result, trial counsel was not prepared and did not present exculpatory evidence.

The postconviction court denied this ground: “the record reflects that defense counsel had, in fact, reviewed the case file, met with Defendant, argued with pretrial motions, and subpoenaed several witnesses.” In support of this conclusion, the court referenced pretrial motion hearings attached to the State’s response and attached trial counsel’s motion for a continuance, in which he stated that he “made every possible effort” to be ready for trial by March 26, 2007, but that due to the intervening capital trial, the “complex to the point of overwhelming” nature of the case, and the fact that the State’s expert had not yet provided a report, he could not effectively represent Ciambrone at a May 7, 2007, trial. The court also attached the transcript of the hearing on the motion to continue, in which defense counsel seemingly argues he would have been ready in March, but the intervening continuance, during which a trial date was set on a capital case and the State procured an expert who had not yet issued a report, changed the circumstances.

These attachments do not conclusively refute Ciambrone’s allegations that her attorney announced he was ready for trial before he was, in fact, ready; that State witnesses were not effectively challenged; and that exculpatory evidence was not presented as a result. The attachments show counsel provided assistance, but the attachments do not indicate whether the assistance was reasonably effective, given the facts of this particular case. See Wiggins v. Smith, 539 U.S. 510, 522-23, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (explaining that to determine whether a tactical decision is reasonable, the focus should be whether the investigation supporting counsel’s decision was itself reasonable); see also Sears, 130 S.Ct. at 3265 (explaining that although a decision might be reasonable in the abstract, it does not obviate the need to analyze whether counsel’s failure to conduct an adequate investigation before arriving at a particular decision prejudiced the defendant). This court has repeatedly held that an evaluation of strategic decisions generally requires an evidentiary hearing. See McCann v. State, 854 So.2d 788, 790-92 (Fla. 2d DCA 2003) (reversing summary denial where the trial court did not fully address this claim and it was not refuted by attachments to the trial court’s order); Duncan v. State, 776 So.2d 287, 290 n. 2 (Fla. 2d DCA 2000) (“We caution the trial court that a conclusion that counsel’s failure to object was a conscious tactical decision is rarely appropriate for summary denial but should instead be made after an evidentia-ry hearing.” (citing Comfort v. State, 597 So.2d 944 (Fla. 2d DCA 1992))). Based on the record before us, this case is no exception.

Similarly, in Ground II, Ciambrone alleged that trial counsel was ineffective for objecting to the State’s motion for a continuance even though he later admitted he was not ready for trial. As a result, many of the potential witnesses referenced within the sixty boxes of documents that made up her case file did not testify. As with the previous claim, the court did not attach portions of the record which conclusively refute Ciambrone’s claim, so we cannot affirm the court’s summary denial of this claim. See Chambers v. State, 613 So.2d 118 (Fla. 2d DCA 1993) (reversing summary denial of ineffective assistance of counsel claims where the record was insufficient to support the trial court’s findings).

Ciambrone alleged in Ground III that trial counsel was ineffective for failing to file a motion to preclude the State from asserting a theory of guilt in her trial that was inconsistent with the theory of guilt it argued in Joseph Ciambrone’s trial. Ci-ambrone alleged that the State argued in Joseph’s trial that he inflicted the blunt head trauma that killed her son but then argued at her trial that she inflicted the fatal blow. The court denied this ground, citing the transcript from Mr. Ciambrone’s 1997 trial: “Although the State made a fleeting reference that Mr. Ciambrone ‘may have struck the final blow,’ the State made it clear that ‘it doesn’t matter.’ ” The court then found this argument permissible under State v. Gates, 826 So.2d 1064 (Fla. 2d DCA 2002), because “the State was not inconsistent when it argued in Defendant’s trial that she had committed the final blow.”

Joseph Ciambrone’s 1997 trial transcript does not appear to have been properly made part of the official court record in Heather Ciambrone’s case. Based on the limited record before us, it appears that the postconviction court could not rely on the transcript of Joseph Ciam-brone’s trial to summarily deny relief. See Cintron v. State, 504 So.2d 795, 796 (Fla. 2d DCA 1987) (holding the phrase “files and records” used in rule 3.850 excludes matters outside the official court record). Accordingly, we must reverse summary denial and remand the case for the post-conviction court to attach documents that are properly before it and that conclusively refute Ciambrone’s allegation or to hold an evidentiary hearing on this issue. See Maddry v. State, 649 So.2d 334, 335 (Fla. 1st DCA 1995) (“The affidavit of a single witness, which was not a part of the record at the time the motion was filed, cannot be employed to refute Maddry’s claims of ineffective assistance of counsel, or to obviate the necessity of an evidentiary hearing.”); Havis v. State, 555 So.2d 417, 418 (Fla. 1st DCA 1989) (“The phrase ‘files and records’ does not include factual affidavits presented to the court after the motion has been filed. Rather, this affidavit raises a new factual matter which must be considered at an evidentiary hearing on the motion.”).

In Ground V, Ciambrone alleged her attorney’s failure to call the psychologist who conducted the pre-adoption interviews of the victim and the victim’s sister constituted ineffective assistance. According to Ciambrone, the psychologist was deposed in 1997, and his testimony would have refuted the State’s evidence that the victim was normal before adoption and that Ci-ambrone was responsible for his violent and explosive behavior. She further alleged the psychologist could have impeached the testimony of the victim’s sister regarding the abuse by explaining that the sister’s interpretation of the events was unreliable due to her psychological frailties.

The postconviction court held that Ciambrone was not prejudiced by her attorney’s failure to call this witness because the State acknowledged in closing that the victim “had his problems” and the testimony would have been cumulative to that of other witnesses. Yet the closing argument cited by the court seemingly refers to problems after the psychologist conducted the evaluations and after the victim came to live with Ciambrone. The portions of the record the court attached describe the victim’s violent behavior that occurred after the victim was adopted by Ciambrone. These record attachments do not conclusively refute Ciambrone’s allegations, so we must reverse summary denial on this issue. See Chambers, 613 So.2d at 118; ComfoH v. State, 597 So.2d 944, 945 (Fla. 2d DCA 1992); Johnson v. State, 840 So.2d 369, 370 (Fla. 1st DCA 2003) (reversing summary denial where the trial transcript attached to the record in support of denial did not negate potential benefit of proposed testimony).

As for the court’s conclusion that the psychologist’s testimony “about Brenda’s [the victim’s sister] character for truthfulness in 1992 would have little to no relevance as to her truthfulness in 1997,” the court seems to have misunderstood Ciambrone’s claim. Ciambrone claimed the psychologist would have testified that the victim’s sister’s “interpretation of events” would be unreliable because of her confused thinking, selective listening, high level of social anxiety, and “her attitude towards adults and strangers is that she must please them to avoid any physical or emotional harm.” The sister’s ability to comprehend the events at the time they occurred is a different issue from her ability to recall the events as she perceived them. The court’s attachments do not conclusively refute this claim, so we must reverse. See McCann, 854 So.2d at 791 (reversing summary denial because the trial court did not fully address the claim and it was not refuted by attachments to the trial court’s order).

Ciambrone alleged in Ground VI that her attorney was ineffective for failing to call Dr. Richard Souviron, DDS, as an expert to testify the bite marks on the victim came from a child and not an adult. The court found that Ciambrone was not prejudiced because the State did not argue the bite marks were caused by an adult and conceded the victim “had his problems.” Further, the defense presented witnesses who testified the victim bit himself. However, the portions of the record the court attached contain testimony from four witnesses about incidents that occurred one to three-and-a-half years before the victim died, and the State argued in closing that the victim’s bruises, cuts, abrasions, lacerations, and scars were evidence of aggravated abuse. Based on this record, we cannot conclude these attachments conclusively refute Ciambrone’s claim that evidence the victim hurt himself at or near the time he died would undermine confidence in the outcome. See, e.g., McCann, 854 So.2d at 791; Patterson v. State, 845 So.2d 311, 312 (Fla. 2d DCA 2003).

In Ground VII, Ciambrone alleged her trial counsel was ineffective for not presenting several available witnesses who were found by her plea attorney and who could offer testimony that would have supported Ciambrone’s defense and countered the State’s testimony that she was abusive. In total, Ciambrone proffered testimony of twenty-eight available witnesses who were not called at trial and who would have offered favorable evidence. She categorized the evidence as: twenty-two witnesses, ten of whom are medical professionals, who would have refuted the State’s evidence that the victim did not suffer mental illness or emotional disturbances; fourteen witnesses, at least six of whom are medical professionals, who could have testified regarding the victim’s self-mutilating behavior; eight witnesses who could have refuted the State’s evidence that she hated the victim; twelve witnesses who could have refuted the State’s argument that she was abusive; twenty witnesses who could have testified regarding the victim’s violent and aggressive behavior; and one witness who could have countered the State’s contention that the victim’s sister changed her story favoring Ciambrone to one that supported the State because she feared returning home.

The postconviction court denied this claim, finding all of the proffered testimony would be cumulative, except for that which would refute the State’s witnesses who testified Ciambrone hated the victim. In support of its findings that the testimony would be cumulative, the court attached trial testimony from seven defense witnesses. But the attachments reveal that those witnesses had very limited contact or no contact with the victim in the year or two preceding his death. None of the witnesses had contact with the victim before he lived with Ciambrone. The victim’s sister was the primary witness to the abuse and her story changed, so evidence regarding the sister’s inconsistent versions of Ciambrone’s actions could have possibly been used as impeachment.

Though some of the proffered testimony may very well be cumulative, without an evidentiary hearing it is impossible to conclusively determine that the testimony of twenty-eight witnesses would not have added substance to the defense or challenged the State’s case. And to the extent the court relied on the prosecutor’s admission in closing that the victim was not “normal” to deny this claim, the full context of that statement, with emphasis added, is:

Lucas Ciambrone was only three and a half years old when he went to the Ciambrone home. In fact, in February of 1992, he was three[-]and[-]a[-]half, he had been with them about three months. That’s when he went to the Life Management Center. And the history provided to Dr. Srur was provided by the foster parents, which makes sense because a three-and-a-half-year-old or four-year-old is not going to be able to do that. So they rely a great deal on information provided by parents or foster parents; makes sense.
But it depends on whether that information is accurate. Was it accurate in this case, provided by Ms. Ciambrone and Mr. Ciambrone? They observed behavior, no question, he was acting out, he was having tantrums, but was three[-]and[-]a half[-]years[-]old. There’s no question that Lucas at that time, Pedro, had his problems, plenty of evidence of that.

The court’s attachments do not conclusively refute this claim. See McCann, 854 So.2d at 791; Patterson, 845 So.2d at 312 (reversing where record attachments did not conclusively refute the defendant’s allegation that counsel failed to investigate four witnesses, whose testimony would have impeached the State’s witnesses, refuted the State’s witnesses’ testimony, and shown that other people were involved in the death of the victim); Johnson, 840 So.2d at 370 (holding the trial transcript attached to summary denial did not negate potential benefit of witnesses who would have supported the defendant’s claim of self-defense); Williams v. State, 642 So.2d 67, 69 (Fla. 1st DCA 1994) (reversing summary denial “because the trial court failed to assemble a record from which it could be conclusively determined that Williams is entitled to no relief.”).

The postconviction court found that testimony that Ciambrone did not hate the victim would not have affected the outcome of the trial because the State’s evidence that she hated the victim, evidently from more than one witness, was not a feature of the trial and hate was not an element of the offense. The court did not attach portions of the record to show the testimony was not a feature of the trial, so we cannot affirm summary denial. See, e.g., Hamilton v. State, 979 So.2d 420, 421 (Fla. 2d DCA 2008) (“Because the documents that the court attached to support its denial of Hamilton’s claim did not conclusively refute that claim, we must remand this claim to the postconviction court for an evidentiary hearing or for the attachment of appropriate documents that do refute the claim.”).

Ciambrone’s final claim was that the cumulative effect of her attorney’s deficiencies prejudiced her. The postconviction court denied the claim, finding that because all of the other claims of ineffective assistance of counsel were without merit, this claim also fails. As the record before us does not conclusively refute several of Ciambrone’s allegations of ineffective assistance, this issue should also be reconsidered on remand. See Sears, 130 S.Ct. at 3266-67 (explaining the Strickland prejudice analysis takes into account the evidence adduced in postconviction proceedings that could have been presented at trial, along with the evidence at trial, to assess whether there is a reasonable probability the outcome would have differed).

In conclusion, we affirm the postconviction court’s order as to Grounds IV, VIII, and IX of Ciambrone’s rule 3.850 motion. We reverse the summary denial of Grounds I, II, III, V, VI, VII, and X and remand these claims to the postconviction court.

Upon remand, if the postconviction court should again summarily deny any of these claims, it must attach record support conclusively refuting Ciambrone’s allegations. Otherwise, the court must hold an eviden-tiary hearing.

Affirmed in part, reversed in part, and remanded.

CASANUEVA, SILBERMAN, and CRENSHAW, JJ., Concur.

      . Heather Ciambrone and her husband, Joseph Ciambrone, were separately indicted in 1995 for the death of their son, Lucas. Mr. Ciambrone was convicted and sentenced to life in prison in 1997.


author: CASANUEVA, Judge.

text:
    Marlon BLANDIN, Appellant, v. STATE of Florida, Appellee.
    No. 2D13-846.
    District Court of Appeal of Florida, Second District.
    Dec. 11, 2013.
   CASANUEVA, Judge.

Marlon Blandin appeals the summary denial of his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. Although Mr. Blan-din raised four grounds for relief, we find no merit in three of those grounds, which we affirm without discussion. We reverse the summary denial of the remaining ground and remand to the postconviction court for reconsideration of the claims within it.

On January 17, 2008, a jury found Marlon Blandin guilty of second-degree murder. On January 28, 2008, Mr. Blandin filed a motion for new trial, followed by an amended motion for new trial on February 4, 2008. The amended motion contained several grounds, including claims of ineffective assistance of counsel. The State argued that the ineffective assistance of counsel claims were premature, and the sentencing court denied the motion without comment or explanation. Thereafter, Mr. Blandin was sentenced to seventeen years in prison. Mr. Blandin’s appellate attorney did not challenge the sentencing court’s denial of the ineffective assistance of counsel claims on direct appeal. This court affirmed Mr. Blandin’s conviction and sentence without a written opinion. Blandin v. State, 27 So.3d 31 (Fla. 2d DCA 2010) (table).

Mr. Blandin filed a timely motion for postconviction relief pursuant to Florida Rule of Criminal Procedure 3.850, raising in Ground I the ineffective assistance of counsel claims that were previously raised in his amended motion for new trial. In summarily denying these claims, the postconviction court erroneously found them to be barred by the doctrines of res judicata and collateral estoppel.

In Corzo v. State, 806 So.2d 642, 645 (Fla. 2d DCA 2002), this court held that when an ineffective assistance of counsel claim is raised on direct appeal and the appellant’s conviction and sentence are affirmed without a written opinion, the law of the case does not establish that this court rejected the claim on the merits. This court reversed the order summarily denying Corzo’s rule 3.850 motion, explaining:

Because of the strict rules limiting claims for ineffective assistance of counsel on direct appeal, the appellate courts typically reject the issue as both premature and requiring evidence beyond the appellate record. Accordingly, unless a direct appeal is affirmed with a written opinion that expressly addresses the issue of ineffective assistance of counsel, an affirmance on direct appeal should rarely, if ever, be treated as a procedural bar to a claim for ineffective assistance of counsel on a postconviction motion.

Id. at 645; see also Acosta v. State, 884 So.2d 278, 279 (Fla. 2d DCA 2004) (holding that the defendant’s ineffective assistance of counsel claims, which were raised in a motion for a new trial and challenged on direct appeal, were not barred in postcon-viction by the doctrine of res judicata because the defendant’s conviction and sentence were affirmed without a written opinion expressly addressing the claims of ineffective assistance of counsel); Kam/pjf v. State, 443 So.2d 401, 402 (Fla. 4th DCA 1984) (holding that the postconviction court erred in finding the ineffective assistance of counsel claim proeedurally barred because the court’s opinion did “not comment specifically on the ineffective counsel argument, and the overall holding that the evidence was sufficient to support the jury’s verdict [could not] be viewed as an adjudication on the merits” of the ineffective assistance claim).

Mr. Blandin’s case cannot be distinguished on the fact that his appellate attorney did not raise the ineffective assistance of counsel claims on direct appeal. Presumably, Mr. Blandin’s appellate attorney relied on Florida law which, with few exceptions, requires claims of ineffective assistance of counsel to be litigated in postconviction proceedings. See Bruno v. State, 807 So.2d 55, 63 (Fla.2001) (“A defendant thus has little choice: As a rule, he or she can only raise an ineffectiveness claim via a rule 3.850 motion.”); Williams v. State, 438 So.2d 781, 786 (Fla.1983) (holding Williams “improperly attempted to raise the question of ineffective assistance of counsel in an amended motion for a new trial. In so doing, Williams failed to provide the trial court with sworn allegations necessary to prevent unfounded complaints in motions for post-conviction relief’). We cannot conclude that Mr. Blandin’s ineffective assistance of counsel claims were denied on the merits, so the doctrines of res judicata and collateral es-toppel cannot bar consideration of those claims in postconviction proceedings.

Accordingly, we affirm the postconviction court’s order summarily denying relief on Grounds II, III, and IV and reverse the order as to Ground 1 and remand for the postconviction court to hold an evidentiary hearing or attach portions of the record that conclusively show that Mr. Blandin is not entitled to relief.

Affirmed in part, reversed in part, and remanded.

KELLY and SLEET, JJ„ Concur.

      . The postconviction court need not reconsider its finding on Mr. Blandin’s claim in Ground I that his trial attorney was ineffective for not objecting to the hearsay statement made by the victim’s brother regarding the victim’s plans to meet Mr. Blandin. As the postconviction court noted, the record shows that defense counsel did object to the hearsay, and the hearsay issue was both raised and rejected in Mr. Blandin’s direct appeal.


text:
    STATE of Florida, Petitioner, v. Stevie JOHNSON, Respondent.
    No. 4D12-3773.
    District Court of Appeal of Florida, Fourth District.
    Dec. 11, 2013.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Melanie Dale Surber, Assistant Attorney General, West Palm Beach, for Petitioner.
    Carey Haughwout, Public Defender, and Anthony Calvello, Assistant Public Defender, West Palm Beach, for Respondent.
   PER CURIAM.

The state appeals an order granting the defendant’s motion in limine and excluding a video recording of a drug transaction. We treat the appeal as a petition for writ of certiorari and grant the petition.

The defendant was charged with possession of cocaine with intent to deliver or sell. The defendant filed a motion in li-mine seeking to exclude a video of the drug transaction involving the defendant and a confidential informant on the grounds that it was testimonial evidence inadmissible under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The trial court granted the motion and excluded the video.

“To obtain certiorari relief from a pretrial evidentiary ruling, the state must show that the ruling was a violation of a clearly established principle of law resulting in a miscarriage of justice.” State v. Sandoval, 125 So.3d 213 (Fla. 4th DCA 2013).

In Crawford, the United States Supreme Court held that out-of-court testimonial statements by a witness are barred under the Confrontation Clause unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. While Crawford did not establish a precise definition for the term “testimonial,” the Court provided some guidance, holding that, at a minimum, statements are testimonial if the declarant made them “at a preliminary hearing, before a grand jury, or at a former trial; and [during] police interrogations.” 541 U.S. at 68, 124 S.Ct. 1354. A statement is also testimonial if it was “made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Id. at 52, 124 S.Ct. 1354 (citation omitted). In Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the Supreme Court elaborated that statements are “testimonial” when “the primary purpose of [an] interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”

In the instant case, the exclusion of the video violated a clearly established principle of law resulting in a miscarriage of justice. The video does not involve a statement made after the crime to prove a past event. Rather, the video depicts the criminal act itself. Thus, it is not testimonial, and Crawford is not implicated. See Davis, 547 U.S. at 826-27, 126 S.Ct. 2266 (holding that 911 tape describing events as they were actually happening was not testimonial and not violative of Crawford); United States v. Underwood, 446 F.3d 1340, 1347 (11th Cir.2006) (holding that recorded conversations between codefen-dant and confidential informant for the purchase of cocaine were not testimonial).

Accordingly, we grant the petition, quash the trial court’s order, and remand for further proceedings consistent with this opinion.

Petition granted.

WARNER, GROSS and LEVINE, JJ., concur.

      . See McPhadder v. State, 475 So.2d 1215 (Fla. 1985) (stating that review of an order striking an electronic recording of statements made by an informant was permitted only by petition for writ of certiorari); State v. Hernandez, 875 So.2d 1271 (Fla. 3d DCA 2004) (treating state's appeal of an order suppressing a recording of a controlled phone call as a petition for certiorari).


author: MAY, J.

text:
    Scott STONE, Appellant, v. Lynn J. STONE, Appellee.
    No. 4D12-4164.
    District Court of Appeal of Florida, Fourth District.
    Dec. 11, 2013.

      Jennifer R. Kuczler of Kuczler & Kuc-zler, P.A., Fort Pierce, for appellant.
    No appearance for appellee.
   MAY, J.

The former husband appeals an Injunction for Protection against Domestic Violence. He argues the court erred in entering the injunction because the former wife failed in her burden of proof. We agree and reverse.

The parties were married in January 2011. The former wife filed for divorce in June 2012. In October 2012, the former wife petitioned for an injunction for protection against domestic violence. The petition alleged that in May 2012 the former husband grabbed the former wife’s arms, forced her onto the bed, and made unwanted sexual advances. He stopped when he understood that his advances were unwelcome. The trial court did not enter a temporary injunction, and held a hearing on October 10, 2012.

The former wife testified that the former husband grabbed her and tried to have sex, but she escaped. She introduced photos showing bruises on her arms. On cross-examination, she admitted that she was moving on the same day and that she may have gotten the bruises from carrying boxes.

The former husband testified that the bruises were not intentional if he caused them at all. If he caused the bruises, they came from “playing around.” On the day in question, the former wife tried to playfully throw him in the pool; he picked her up and carried her into the house, let the dogs lick her, and then let her go.

The former wife further testified that the former husband constantly called and text messaged her. None of his calls or messages was threatening in nature. He was simply trying to convince her not to divorce him. On one occasion, she saw him on a public beach with one of their dogs. She approached him, and had a friendly conversation for four hours.

The former wife’s daughter testified that she saw the former husband outside of her mother’s residence one day. She opened the door and yelled at him, and he ran away. The former husband testified that he was in the neighborhood to pay a neighbor, who did work for him. He ran when the daughter saw him because he did not want her to think he was spying. The neighbor confirmed the former husband’s story.

The trial court entered a Final Judgment of Injunction for Protection Against Domestic Violence. The former husband filed a motion for reconsideration, which was denied. From these orders, the former husband appeals.

The former husband argues the trial court erred in entering the injunction because there was insufficient evidence of either domestic violence or reasonable cause to believe the former wife was in danger of impending violence. We agree and reverse.

“When evaluating whether competent, substantial evidence supports a trial court’s ruling, ‘[Illegal sufficiency ... as opposed to evidentiary weight, is the appropriate concern of an appellate tribunal.’ ” Bñlhart v. BHlhart ex reí. S.L.B., 116 So.3d 617, 619 (Fla. 2d DCA 2013) (quoting Tibbs v. State, 397 So.2d 1120, 1123 (Fla.l981))(alterations in original).

Section 741.30(l)(a), Florida Statutes (2012), confers standing to seek an injunction against domestic violence on any person who has (1) actually been the victim of domestic violence, or (2) who on some other basis has reasonable cause to believe that he or she faces impending danger from such violence. “‘Domestic violence’ means any assault, aggravated assault, battery, aggravated battery, sexual assault, sexual battery, stalking, aggravated stalking, kidnapping, false imprisonment, or any criminal offense resulting in physical injury or death of one family or household member by another family or household member.” § 741.28(2), Fla. Stat. (2012).

The May 2012 incident was the only claim of past domestic violence. The former wife testified that her former husband grabbed her and tried to have sex, but he stopped when he saw that she was not interested. Even so, she claims to have sustained bruises on her arms. The former husband testified that the incident was a form of horseplay with no harmful intent. At the time it occurred, they had been together for six years and were still married.

“Battery” is the actual and intentional touching or striking of another person against their will. § 784.03(l)(a)l., Fla. Stat. (2012). While the former husband admitted to touching the former wife, no one testified that he knew it was against her will. Here, the evidence did not establish that the former husband acted with the purpose of causing an offensive or harmful contact. See Restatement (Second) of Torts § 18, cmt. e & f (1965).

Bonge v. State, 53 So.3d 1231 (Fla. 1st DCA 2011), provides a good factual analogy. There, the defendant forcibly removed his elderly mother from her nursing home. Id. at 1232. His intent was to help her get to the car. Id. However, his mother said she did not want to go because it was cold outside. Id. The First District held that these facts were insufficient to establish a prima facie case of battery. Id. at 1233.

Although the evidence here established that the former husband intended to touch the former wife, there was no evidence to establish that the former husband intended to touch her against her will. The length of time between the incident and the filing of the petition also supports this conclusion. See Gill v. Gill, 50 So.3d 772, 774 (Fla. 2d DCA 2010) (“an isolated incident of domestic violence that occurred years before a petition for injunction is filed will not usually support the issuance of an injunction in the absence of additional current allegations”).

Without proof of actual past domestic violence, the former wife’s petition was reliant on proof that she reasonably believed she faced impending danger from future violence. To support this claim, the former wife introduced three pieces of evidence: (1) phone calls and text messages, (2) the. beach encounter, and (3) the daughter’s sighting of the former husband in the neighborhood.

The petition alleged the former husband excessively called and texted the former wife and family members. The former wife testified that the content involved the former husband asking her to go to dinner, to go on trips with him, and telling her he was going to file for divorce if she did not come back. She testified that none of the phone calls or texts threatened physical violence, but they caused “mental anguish.” The former husband testified that he never texted more than a couple of times a day.

“[T]he statutory definition of ‘domestic violence’ requires some showing of violence or a threat of violence[,] general harassment does not suffice.” Young v. Smith, 901 So.2d 372, 373 (Fla. 2d DCA 2005). There was nothing to suggest the former husband’s phone calls and text messages reasonably caused the former wife to believe she was in imminent danger.

The former wife testified that she saw the former husband on the beach with one of their dogs. She admitted that it was a public beach, and that she approached him. They had a friendly conversation for four hours. Further, the former wife’s daughter testified to seeing the former husband in the neighborhood, but he had a reasonable explanation for this presence. The evidence was simply insufficient to establish a fear of imminent danger. See, e.g., Jones v. Jones, 32 So.3d 772 (Fla. 2d DCA 2010).

Although the injunction has now expired, we reverse and remand with instructions to vacate the injunction due to the collateral consequences such an injunction might cause. See, e.g., Gill, 50 So.3d at 776; Jones, 32 So.3d at 774; Oetbmeier v. Oettmeier, 960 So.2d 902 (Fla. 2d DCA 2007) (reversing and remanding with instructions to vacate based on insufficiency of the evidence).

Reversed and Remanded.

DAMOORGIAN, C.J., and FORST, J., concur.