text:
    Raymond ROBINSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-3381.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2014.
    Rehearing Denied July 25, 2014.

      Carey Haughwout, Public Defender, and Emily Ross-Booker and Elizabeth Pohm, Assistant Public Defenders, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   MAY, J.

The defendant appeals his conviction and sentence for aggravated battery. He argues that his counsel was ineffective, resulting in his conviction. We agree. This is one of those rare instances where defense counsel’s ineffectiveness is apparent on the face of the record. We therefore reverse and remand the case for the trial court to vacate the sentence and conviction, and for proceedings consistent with this opinion.

The State charged the defendant with aggravated battery for a fight that occurred between the defendant and the victim. It was a classic case of “he said, he said” with each participant claiming that the other was the aggressor. The defendant’s then girlfriend was the only other person to witness the altercation. Defense counsel admitted he failed to timely subpoena the girlfriend for trial. As a result, she failed to appear and the case went to the jury based on the testimony of the two participants to the fight.

The jury found the defendant guilty of aggravated battery. At the sentencing hearing, defense counsel asked the trial court to downwardly depart and sentence the defendant to time served. He argued that the victim was actually the aggressor, and but for his failure to secure the girlfriend as a witness, the defendant would have been acquitted.

The girlfriend appeared at the sentencing and testified to the facts surrounding the altercation. Her testimony was consistent with the defendant’s version of the facts and inconsistent with the victim’s testimony. She testified that the victim had stalked her and taunted the defendant pri- or to the altercation. She believed that the victim thought he had a chance to reunite with her if the defendant was not in the picture.

The court sentenced the defendant to thirty-six months in prison with credit for time served. From his conviction and sentence, the defendant now appeals. He argues that his counsel’s deficiency in failing to timely subpoena the only other witness to the event prejudiced him. We agree.

We do not usually address ineffective assistance of counsel claims on direct appeal.

With rare exceptions, ineffective assistance of counsel claims should be raised in a motion for post-conviction relief because they are generally fact-specific. “Only in cases where the incompetence and ineffectiveness of counsel is apparent on the face of the record and prejudice to the defendant is obvious do appellate courts address this issue on direct appeal.”

Aversano v. State, 966 So.2d 493, 494-95 (Fla. 4th DCA 2007) (citations omitted). To establish such a claim, the defendant must show the deficiency in counsel’s performance and prejudice to the defendant. Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

This case presents that rare instance where counsel’s deficiency and the resulting prejudice are apparent from the record. At the sentencing, defense counsel practically admitted he was ineffective in failing to secure the girlfriend as a witness: ‘Well, Judge, on that point, I beg your pardon for interrupting. It’s my fault that she [wasn’t] here. It’s my fault. His attorney’s fault that she was not placed under subpoena earlier and given fuller notice.... I’m contending that there’s — you know, there’s some element of my own ineffectiveness here.”

As can easily be seen from the transcript of the sentencing hearing, the defendant’s former girlfriend would have testified consistently with the defendant and inconsistently with the victim. She also provided a motive for the victim to have attacked the defendant.

Although this case comes before us on direct appeal, it is virtually indistinguishable from the facts in Pew v. State, 639 So.2d 693 (Fla. 5th DCA 1994).

In Pew, defense counsel failed to subpoena key witnesses, who would have testified that Pew was not involved in the robbery with which he was charged. “Because counsel’s failure to subpoena Pew’s key witnesses was a deficiency which so affected the fairness and reliability of the proceeding that confidence in the outcome is undermined,” the court reversed the order denying his motion for post-conviction relief, vacated the conviction, and remanded the case for a new trial. Id. at 694 (internal quotations omitted); see also Terrero v. State, 839 So.2d 873, 875 (Fla. 3d DCA 2003) (reversing and remanding where the facts were indistinguishable from those in Pew).

Here, there were three people at the scene of the altercation. The defendant and victim testified at trial, each giving a significantly different version of the facts. The only other person to witness the event was the defendant’s former girlfriend. The defendant has sustained his burden of establishing deficient performance, which was basically admitted by his counsel at the sentencing hearing. Prejudice is apparent on the face of this record.

We therefore reverse and remand the case to the trial court to vacate the sentence and conviction and for proceedings consistent with this opinion.

Reversed and Remanded.

DAMOORGIAN, C.J., and WARNER, J., concur.

      . We note the defendant received three years in prison on August 22, 2012, with credit for time served. He was released on April 4, 2014.


source: Caselaw Access Project

author: GROSS, J.

license: Public Domain

text:
    Robert F. ELBAUM, Appellant, v. Denise J. ELBAUM, Appellee.
    No. 4D13-1423.
    District Court of Appeal of Florida, Fourth District.
    June 18, 2014.

      E. Ross Zimmerman of Zimmerman & Bayne, P.A., Tamarac, for appellant.
    Stephen Rakusin and Rae L. Mosier of The Rakusin Law Firm, Fort Lauderdale, for appellee.
   GROSS, J.

Robert Elbaum appeals from a final order dismissing with prejudice his petition to terminate or modify his alimony obligations. We affirm because the marital settlement agreement unambiguously limited the ability to modify alimony to specific situations not raised in the petition.

After seventeen years of marriage, former husband and appellee Denise Elbaum were divorced. The 2007 final judgment dissolving their marriage incorporated a marital settlement agreement (the “Agreement”) requiring former husband to pay former wife $2,000 per month in permanent alimony until former husband reaches 62 years of age — an amount former wife acknowledged in the Agreement was “fair, adequate, and satisfactory to her and in keeping with her accustomed standard of living and her reasonable requirements and giving consideration of her own ability to provide for her own support and having contemplated all her present and future needs.” Aside from the age limitation, the Agreement provided that the alimony obligation would be terminable only upon former wife’s “remarriage” or the death of either party.

Article XII of the Agreement set forth the limited circumstances under which either party could seek alimony modification, providing, in pertinent part, as follows:

The parties acknowledge that they have been advised by counsel of the law in Florida concerning modification of permanent alimony. The alimony provided for herein shall be non-modifiable except in the event of an unforeseen circumstance involving the business of the [Former] Husband or the health of the [Former] Husband affecting his ability to work, and only in the event the [Former] Husband receives no business income as a result of unforeseen circumstance(s) or the health of the [Former] Husband.

(Emphasis added). As the agreement described, these limitations on modification served as a quid pro quo, with both parties foregoing potential future grounds for modification. As Article XII continues:

[E]ach party fully understands and has been advised that he or she may be entitled to some additional amount or form of alimony, either rehabilitative or permanent. Said form of alimony could be due now or in the future, but specifically and unequivocally waives any and all entitlement thereto, as well as any right to a modification of same now or in the future. Each party fully understands that they may have been entitled to some additional amount or form of alimony other than as set forth above. However, after being fully advised and after having a specific understanding of all the various different types of alimony, each party specifically waives any right or entitlement. Each party acknowledges that this waiver is irrevocable and that there is no change or potential change in circumstances in the financial ability of either party, or, in the future ability or disability, physical or otherwise of either party which could, or will permit, either of them to obtain permanent, periodic, lump sum, rehabilitative alimony or modification from the other party and, therefore, waives any future right of modification although none exists.

Procedural Posture

In 2012, former husband filed a petition seeking to modify or terminate his alimony obligation on the grounds that former wife’s needs had decreased since she was in a “supportive relationship” where she had been cohabitating and mingling assets with her partner for at least two years. Former wife moved to dismiss the petition, arguing that the Agreement unambiguously contemplated that modification or termination of former husband’s alimony obligation would be limited to those circumstances enunciated in Article XII. The circuit court granted former wife’s motion to dismiss, finding the agreement was “clear and unambiguous” in stating “that the alimony was non-modifiable” except in situations involving “a decrease in the business, poor health of the [Former] Husband, the Former Husband reaching the age of 62, or the Wife’s remarriage.” As to former husband’s requested basis for departure, the trial court reasoned that

[t]he parties were aware at the time when the Agreement was executed that cohabitation is something which would normally allow for a modification. That was foreseeable and contemplated, because Florida Statute 61.13(3) was in effect at the time this Agreement was entered into.

As his sole issue on appeal, former husband argues that Article XII’s language stating that the alimony was “sufficient and adequate for the former wife based upon her then current circumstances, needs, and earning capacity” suggested “that a change in such circumstances would permit her to seek a modification.”

Standard of Review

“We review de novo a trial court’s final disposition on a motion to dismiss for failure to state a cause of action.” Magnum Capital, LLC v. Carter & Assocs., LLC, 905 So.2d 220, 221 (Fla. 1st DCA 2005). “When determining the merits of a motion to dismiss, a court may not go beyond the four corners of the complaint and must accept the facts alleged therein and exhibits attached as true, with all reasonable inferences drawn in favor of the pleader.” Regis Ins. Co. v. Miami Mgmt., Inc., 902 So.2d 966, 968 (Fla. 4th DCA 2005). The trial court’s “ ‘interpretation of the wording and meaning of the marital settlement agreement, as incorporated into the final judgment, is subject to de novo review.’ ” Kipp v. Kipp, 844 So.2d 691, 693 (Fla. 4th DCA 2003) (quoting McIlmoil v. McIlmoil, 784 So.2d 557, 561 (Fla. 1st DCA 2001)).

Analysis

A marital settlement agreement is a contract “ ‘subject to interpretation like any other contract.’ ” Riera v. Riera, 86 So.3d 1163, 1166 (Fla. 3d DCA 2012) (quoting Ballantyne v. Ballantyne, 666 So.2d 957, 958 (Fla. 1st DCA 1996)). “Accordingly, terms contained in such agreements should be given their plain meaning and ‘not be disturbed unless found to be ambiguous or in need of clarification, modification, or interpretation.’ ” Schmachtenberg v. Schmachtenberg, 34 So.3d 28, 33 (Fla. 3d DCA 2010) (quoting Ballantyne, 666 So.2d at 958). “[T]he goal is to arrive at a reasonable interpretation of the text of the entire agreement in order to accomplish the agreement’s stated meaning and purpose.” Avellone v. Avellone, 951 So.2d 80, 83 (Fla. 1st DCA 2007) (citing Delissio v. Delissio, 821 So.2d 350, 353 (Fla. 1st DCA 2002)).

Under section 61.14(l)(b)l., Florida Statutes (2012), a court may reduce or terminate alimony if “a supportive relationship has existed between the obligee and a person with whom the obligee resides.” As we have explained:

[Sjection 61.14(l)(b) requires the court to determine if an alimony obligee has entered into a relationship that provides the economic support equivalent to a marriage, and if so, the court may reduce or terminate alimony as the equities require. Section 61.14(l)(b) is actually a codification of prior case law which held that, in post dissolution matters, cohabitation can be a basis for reduction or termination of alimony awards.

Linstroth v. Dorgan, 2 So.3d 305, 307 (Fla. 4th DCA 2008). “A supportive relationship is a relationship that ‘takes the financial place of a marriage and necessarily decreases the need of the obligee.’ ” Overton v. Overton, 34 So.3d 759, 761 (Fla. 1st DCA 2010) (quoting French v. French, 4 So.3d 5, 6 (Fla. 4th DCA 2009)).

The parties may waive this statutory right to seek “modification of alimony provisions in a settlement agreement if the language in the agreement clearly and unambiguously expresses waiver or if the interpretation of the agreement as a whole can lead to no other conclusion but waiver.” Hahamovitch v. Hahamovitch, 133 So.3d 1008, 1016 (Fla. 4th DCA 2014), rev. granted, No. SC14-277, 2014 WL 1682898 (Fla. Apr. 22, 2014) (citing Tapp v. Tapp, 887 So.2d 442, 444 (Fla. 2d DCA 2004)). Waiver, in this context, “encompasses not only the intentional or voluntary relinquishment of a known right, but also conduct that warrants an inference of the relinquishment of a known right.” Singer v. Singer, 442 So.2d 1020, 1022 (Fla. 3d DCA 1983).

Applying these principles, this case is nearly identical to that confronted in Smith v. Smith, 110 So.3d 108 (Fla. 4th DCA 2013). In Smith, the parties’ marital settlement agreement provided:

2. Said alimony shall be non-modifiable by the parties, in either amount or duration, regardless of any change in circumstances of either party.
3. This alimony shall terminate on the Husband’s death, the Wife’s death, or the Wife’s remarriage, whichever shall first occur.

Id. at 110. The former husband in Smith petitioned to terminate his alimony obligation on the grounds that the former wife was in a supportive relationship. Id. at 109. The former wife successfully moved for judgment on the pleadings, and relied on the language of the agreement. Id. Upon these facts, we affirmed the judgment, reasoning as follows:

Viewed as a whole, the parties’ agreement unambiguously provided that all alimony was non-modifiable and would cease only upon the occurrence of the death of either of the parties, or [the former wife’s] remarriage. To be sure, the concept of a supportive relationship as a possible termination event was something the parties could have contemplated at the time they entered into their agreement. They chose not to do so.

Id. at 110 (citation omitted). The sentiment, therefore, was “that a party to a marital settlement agreement may not invoke Florida’s supportive relationship statute in order to modify or terminate an alimony obligation where such action is prohibited under the terms of the agreement.” Id. at 109.

In this case, the Agreement’s Article XII unambiguously provided that former husband’s alimony obligation would be “non-modifiable” absent “unforeseen circumstances” involving the deterioration of former husband’s health or business. Both parties acknowledged that they had been informed that other grounds for modification existed. To allow modification in this circumstance would eviscerate the term “non-modifiable.”

The former husband attempts to rely upon Centeno v. Centeno, 109 So.3d 1259 (Fla. 2d DCA 2013), and Cook v. Cook, 94 So.3d 683 (Fla. 4th DCA 2012). Neither case controls.

In Centeno, the former husband filed a petition for a downward modification of the amounts of his alimony and child support obligations. 109 So.3d at 1260. The parties’ agreement provided that, “Except as set forth below, the term of the rehabilitative alimony shall be non-modifiable[;] however, since the alimony is insufficient to meet the needs of the wife as established during the parties’ marriage, the amount of the alimony shall be modifiable.” Id. at 1259-60. The agreement then set forth certain conditions under which the amount and term of alimony could be reduced or extended, depending on whether the wife remarried. Id. at 1260. These paragraphs ended with statements that “[t]he payments established by this paragraph shall be non-modifiable ... as to amount and duration.” Id.

The circuit court concluded that the phrase “since the alimony is insufficient to meet the needs of the wife” limited the parties’ rights to modify to only the wife’s right to seek an increase. Id. The Second District disagreed, reasoning that the “language does not clearly and plainly state that such would be the only circumstance under which modification may occur.” Id. at 1260-61. The court further stated:

We conclude that the language of the instant MSA also describes one set of facts under which the amount of rehabilitative alimony may be modified but does not in clear and express terms limit modification to only that one set of facts. The terms are not a clear and unambiguous waiver by the Former Husband of his statutory right to seek modification, and we decline the invitation to read the language as a condition precedent to his seeking relief.

Id. at 1261 (emphasis added). Thus, the Centeno marital settlement agreement did not contain the same unambiguous limitations on the grounds for modification that existed in this case.

Cook involved a marital settlement agreement that required the former husband to pay $1 annually in alimony, but conditioned modification as follows:

This amount may be modified upon any modification in custody of the minor children, such that the alimony obligation would be increased. It is the intent of the parties that the wife be able to modify this amount at any time there is a modification to the custody provisions of this [a]greement.

94 So.3d at 684. Relying upon this provision, the trial court declined the former wife’s request to modify the former husband’s alimony obligation, finding that the marital agreement “provided that alimony was modifiable only in the event that custody was modified.” Id. at 684. In reversing, we found the language related to alimony modification not to be a condition precedent, since it “allows for the modification of alimony if there is a modification to the custody restrictions but does not restrict the modification of alimony to only those circumstances.” Id. at 685. Thus, the provision was neither a “limiting clause” nor the unequivocal waiver that exists in this case. Id.

Here, Article XII of the Agreement “in clear and express terms” limits modification to situations involving the deterioration of former husband’s health or business. The language leaves no room for interpretation and makes it clear that the parties contemplated no other circumstance where the amount of alimony could be modified.

Affirmed.

GERBER and FORST, JJ., concur.


author: SALTER, J.

text:
    Yulexi EXPOSITO, etc., Appellant, v. PUBLIC HEALTH TRUST OF MIAMI-DADE COUNTY, et al., Appellees.
    Nos. 3D13-713, 3D12-2599.
    District Court of Appeal of Florida, Third District.
    June 18, 2014.

      Diez-Arguelles & Tejedor, and Maria D. Tejedor and Carlos Diez-Arguelles, Orlando; Barbara Green, for appellant.
    R.A. Cuevas, Jr., and Eric K. Gressman, Miami, for appellees.
    Before ROTHENBERG, SALTER and FERNANDEZ, JJ.
   SALTER, J.

Yulexi Expósito, individually and on behalf of her minor daughter Stephanie Gonzalez, appeals final orders and judgments: dismissing her amended complaint with prejudice; denying her motion for clarification, rehearing, and leave to amend; and striking an exhibit showing proof of mailing of a statutory notice to the defendants pursuant to section 768.28, Florida Statutes (2010). We reverse and vacate the final orders and judgments below as to the remaining defendants, and we remand the case to the trial court with directions to allow Ms. Expósito to file and serve her proposed second amended complaint.

I. Proceedings Below

The remaining defendants in the ease, appellees here, are the Public Health Trust and three doctors. Stephanie was born (together with a twin sister) at Jackson Memorial Hospital in Miami on July 11, 2005. Stephanie was born prematurely and has suffered from seizures, cerebral palsy, spastic quadriplegia, cortical blindness, and encephalopathy.

On July 6, 2009, the attorneys for Ms. Expósito sent written notices of claim under section 768.28(6) by certified mail, return receipt requested, to the Florida Department of Financial Services, the Public Health Trust of Miami-Dade County, the University of Miami School of Medicine, the CEO of Jackson Memorial Hospital, and the five doctors later named as defendants. The “date of incident” was shown on the notice to have been July 11, 2005.

On July 10, 2010, Ms. Expósito filed her original complaint alleging medical malpractice by the defendants. The original and amended complaints included an allegation regarding conditions precedent: “All statutorily required conditions precedent to the maintenance of this action have been performed, have occurred, or have been waived. Plaintiffs have complied with all requirements of applicable Florida Statutes, prior to the filing of this action.” Specific compliance with section 768.26(6) was not separately alleged, although Ms. Exposito’s proposed second amended complaint would have added such an allegation (and would have attached copies of the statutory notices of claim and return postal receipts).

The defendants moved to dismiss the original and amended complaints based on their argument (among others) that Ms. Exposito’s claims were governed by the Florida Birth-Related Neurological Injury Compensation Plan, sections 766.301-.316, Florida Statutes (2010), and were thus required to be determined in the first instance by the Florida Birth-Related Neurological Injury Association (NICA). The circuit court stayed the lawsuit until the claim could be presented to NICA. An administrative law judge dismissed the NICA claim for the simple reason that Stephanie’s low birth weight disqualified her from the statutory plan, and this Court affirmed. Univ. of Miami v. Exposito, 87 So.3d 803 (Fla. 3d DCA 2012).

The circuit court then heard the defendants’ motions to dismiss the amended complaint on other grounds. The defendants argued that Ms. Exposito’s claims were barred by the statute of limitations; that she failed to comply with section 768.26(6) by not filing her notices of claim “within three years of the incident;” that the doctors could not be personally liable under section 768.26(9); that the lawsuit was barred by section 768.13 (Florida’s “Good Samaritan Act”), because Stephanie’s alleged injuries occurred during a medical emergency; and that she failed to comply with the medical malpractice pre-suit requirements imposed by Chapter 766, Florida Statutes (2010), and Florida Rule of Civil Procedure 1.650.

At the July 2012 hearing on the motions to dismiss the amended complaint, the defendants raised two of these arguments: that the doctors were agents of the Public Health Trust and were thus immune under section 768.28(9), and that Ms. Expósito had failed to allege compliance with section 768.28(6) specifically, including the filing of the required notice of claim “within three years of the incident.” The trial court took the matter under advisement, and in the interim the defendants submitted an amended motion to dismiss and a motion to strike the statutory notice of claim forms that Ms. Expósito had produced because they were provided over three years after “the incident.” The amended motion argued that the amended complaint should be dismissed with prejudice.

The trial court notified counsel that it found the defendants’ motions persuasive, the statutory notices of claim would be stricken, and the motion to dismiss the amended complaint would be granted. Defense counsel was instructed to prepare the order. Ms. Exposito’s counsel asked the court to withhold entering such an order until the court could consider counsel’s motion to further amend the complaint and memoranda addressing whether a dismissal should be with or without prejudice. The trial court agreed not to enter an order of dismissal until those issues could be heard.

Ms. Expósito then filed her motion to amend and proposed second amended complaint. The proposed second amended complaint included specific allegations regarding service of the July 6, 2009, notices of claim under section 768.28(6), and copies of those notices (and the return receipts evidencing delivery) were attached. In separate counts, the proposed second amended complaint alleged that the Public Health Trust had breached a non-delega-ble duty and that it was vicariously liable for the acts and omissions of its residents and attending staff. Separate counts were alleged against each physician defendant for negligence and, in the alternative, for negligence constituting bad faith, malicious purpose, or willful and wanton disregard of human rights, safety, or property. Ms. Exposito’s motion for clarification also argued that the facts and legal relationships among the University of Miami, Public Health Trust, and defendant doctors had not yet been established via discovery. The Public Health Trust and doctors responded with renewed claims of immunity and the bar of the three-year notice requirement in section 768.28, as measured from “the incident,” Stephanie’s birth.

In September 2012, the trial court entered three orders: granting the defendants’ motion to dismiss the amended complaint with prejudice; denying Ms. Exposito’s motions for clarification, rehearing, and leave to file the second amended complaint; and striking the statutory notices of claim and return receipts. This appeal ensued.

II. Analysis

Section 768.28(6)(a) and (b) provides, in pertinent part:

(6)(a) An action may not be instituted on a claim against the state or one of its agencies or subdivisions unless the claimant presents the claim in writing to the appropriate agency, and also, except as to any claim against a municipality or the Florida Space Authority, presents such claim in writing to the Department of Financial Services, within 3 years after such claim accrues and the Department of Financial Services or the appropriate agency denies the claim in writing ...
(b) For purposes of this section, the requirements of notice to the agency and denial of the claim pursuant to paragraph (a) are conditions precedent to maintaining an action but shall not be deemed to be elements of the cause of action and shall not affect the date on which the cause of action accrues.

We first reject the defendants’ argument that the first amended complaint was subject to dismissal because Ms. Ex-posito alleged generally that statutory conditions precedent “have been performed, have occurred, or have been waived.” The allegation complies with the plain language of Florida Rule of Civil Procedure 1.120(c), and section 768.28 does not require greater specificity in the complaint. The defendants rely on Wright v. Polk County Public Health Trust Unit, 601 So.2d 1318 (Fla. 2d DCA 1992), which upheld the dismissal of a complaint that did not specifically allege compliance with the statute. We need not decide that issue, however, because in the present case Ms. Expósito proffered actual notices and a proposed second amended complaint that would have cured this alleged shortcoming.

We next reject the defendants’ argument that the three-year time period in section 768.28(6) runs from the date of Stephanie’s birth—the “incident,” according to the defendants. The plain language of that section states that the three years begins from the date “such claim accrues,” and “accrual” can be a mixed factual and legal conclusion. Section 95.031(1), Florida Statutes (2010), states that a “cause of action accrues when the last element constituting the cause of action occurs.” That definition is clearly different than the more restrictive formulation advanced by the defendants, the occurrence of a single “incident.”

A cause of action for medical malpractice may accrue at a date later than the “incident” establishing some, but less than all, of the elements of a plaintiffs claim. Tanner v. Hartog, 618 So.2d 177, 181 (Fla.1993). Section 95.11(4)(b), Florida Statutes (2013), recognizes the distinction between “the incident giving rise to the action”—in the present case, Stephanie’s birth—and discovery that an actionable incident of medical malpractice occurred:

(b) An action for medical malpractice shall be commenced within 2 years from the time the incident giving rise to the action occurred or within 2 years from the time the incident is discovered, or should have been discovered with the exercise of due diligence; however, in no event shall the action be commenced later than 4 years from the date of the incident or occurrence out of which the cause of action accrued, except that this 4-year period shall not bar an action brought on behalf of a minor on or before the child’s eighth birthday.

A bar based on accrual and alleged untimeliness, whether under section 768.28(6) or section 95.11(4)(b), ordinarily should be pled as an affirmative defense and is not appropriate for disposition on the face of a complaint. Cabral v. City of Miami Beach, 76 So.3d 324, 326 (Fla. 3d DCA 2011). In the present case, we express no opinion as to the remaining defendants’ rights to raise and argue untimeliness in response to the second amended complaint, and to move for summary judgment on that point should they elect to do so.

On this record, we conclude that the first amended complaint should not have been dismissed with prejudice. Ms. Expósito had not abused the privilege of amending, there was no demonstration of prejudice by the defendants, and it was not established that the proposed amendment would be futile. Hemingway v. Bresney, 733 So.2d 1135 (Fla. 4th DCA 1999). We find the defendants’ remaining arguments unpersuasive and reject them without further discussion.

III. Conclusion

For the reasons set forth, we reverse the three orders below, reinstate the case, and remand for service of the second amended complaint and further proceedings consistent with this opinion.

Reversed and remanded.

      . Three of the original defendants (the University of Miami School of Medicine and two doctors) have settled separately with Ms. Ex-pósito.

      . This Court also granted appellate attorney's fees and costs to Ms. Expósito under section 57.105, Florida Statutes (2011), and Florida Rule of Appellate Procedure 9.410(b), as a sanction for the defendants’ appeal from the administrative law judge's NICA ruling.

      . We take this occasion to criticize the defendants/appellees’ remarkable flurry of post-argument "notices of additional authority” and “motions to supplement the record.” After oral argument in May 2014, counsel for the appellees filed and served five such notices and amended notices of additional authority apprising us of ten opinions dating from 1948 through 2003, together with narrative constituting additional argument. After oral argument, the appellees also sought to supplement the record with documents filed in the lower tribunal after the notices of appeal were filed. We initially granted the motion to supplement, but after further review we vacate that May 28, 2014, order and strike the post-argument motion to supplement the record. We caution counsel for the appellees to review Florida Rules of Appellate Procedure 9.200(f) and 9.225, as well as Brown & Williamson Tobacco Corp. v. Young, 690 So.2d 1377 (Fla. 1st DCA 1997), regarding such filings.


author: MORRIS, Judge.

text:
    Kirk M. ALDERMAN, Appellant, v. Faylene A. THOMAS, Appellee.
    No. 2D13-898.
    District Court of Appeal of Florida, Second District.
    June 20, 2014.

      Mark A. Neumaier, Tampa, for Appellant.
    No appearance for Appellee.
   MORRIS, Judge.

Kirk M. Alderman appeals a final judgment of injunction for protection against dating violence. Because Faylene A. Thomas did not demonstrate that she had reasonable cause to believe she is in imminent danger of becoming the victim of another act of dating violence, we reverse the final judgment of injunction.

Section 784.046(2)(b), Florida Statutes (2012), provides in pertinent part:

Any person who is the victim of dating violence and has reasonable cause to believe he or she is in imminent danger of becoming the victim of another act of dating violence, or any person who has reasonable cause to believe he or she is in imminent danger of becoming the victim of an act of dating violence, or the parent or legal guardian of any minor child who is living at home and who seeks an injunction for protection against dating violence on behalf of that minor child, has standing in the circuit court to file a sworn petition for an injunction for protection against dating violence.

Under this provision, an adult in a dating relationship may seek an injunction under two sets of circumstances: (1) if that person is a victim of dating violence and has reasonable cause to believe he or she is in imminent danger of becoming the victim of another act of dating violence or (2) if that person has reasonable cause to believe he or she is in imminent danger of becoming the victim of an act of dating violence. In either case, the person must have reasonable cause to believe he or she is in imminent danger of becoming the victim of an act of dating violence in the future. See Acevedo v. Williams, 985 So.2d 669, 669-70 (Fla. 1st DCA 2008) (noting that “in cases of dating violence,” section 784.046(2)(b) “permits any person who is a victim of such violence ... to file a petition for such an injunction whenever there is reasonable cause to believe the petitioner ... is in imminent danger of suffering dating violence”). It is not sufficient to have been the victim of one incident of dating violence in the past.

In this case, Thomas presented evidence from which the trial court could properly find that she had been the victim of dating violence by Alderman at her house on August 31, 2012. However, Thomas failed to present evidence that she had reasonable cause to believe she was in imminent danger of becoming the victim of dating violence by Alderman in the future. At the first evidentiary hearing, Thomas testified that she had “put up with a year of stalking from this man.” She testified that Alderman had shown up at her son’s bus stop one morning trying to talk to her son and that he “has done things that’s [sic] inappropriate.” She also testified that two of her keys are missing and that she has had to change the locks. She testified that she has text messages from him and that he had created Facebook pages so that he could follow her and her son. She stated that she feels “insecure and unsafe with” Alderman and that he scares her. When the trial judge asked her whether she was in fear of his coming over to her house and doing something to her, Thomas answered, “Yes, sir, because my house has been broken into and my jewelry’s missing.” She also stated that she had threatened to call 911 before and that he had “sat outside the car for hours or on [her] front porch for hours.” The trial court asked if Alderman had ever made any threats to do her bodily harm, and she said “[n]ot until that night” in August. Thomas stated that she filed the petition for injunction “because of past history and what happened at [her] home.”

Alderman testified that he had not spoken to her on the phone or gone by her house since the incident on August 31. Alderman said that he wanted to stay away from Thomas. Alderman denied stalking Thomas on Facebook.

At the second evidentiary hearing, Deputy Cruz testified that a concerned neighbor called regarding the incident in August. When Cruz spoke to Thomas, she was upset and told him that she had never been in a situation like that before. Alderman’s son testified that his father had been arrested before in Texas, but the son could not remember if Alderman had to participate in anger management classes. Alderman’s counsel called Thomas to testify, and he asked her if Alderman had texted her only three times since the August incident. Thomas said Alderman had texted her “[w]ay more than three text messages,” but she did not testify to the nature of those messages. She testified that Alderman sent her twenty to thirty texts in early September, but she admitted that she did not include that information in her petition. Thomas believed that Aider-man broke into her house and stole a $2000 diamond ring that he had given her and that he had wanted back when they had broken up one time before. She admitted that she filed charges against him for theft on September 17 and then filed the petition for injunction on September 18. She also testified to the following:

There’s been several events throughout the year where he has shown up at my son’s bus stop, told my son not to show up there at the bus stop. He has driven by the house while I’ve been sitting outside. He has sent emails, texts. He is just a person that does not go away.

She testified that he stalked her before the breakup and that he “becomes a bully” and “threatening,” but she did not provide any further details. She admitted that she filed the petition based on Alderman’s continuing contact and the fact that her house had been burglarized.

Alderman testified that he stopped by Thomas’s son’s bus stop nine months ago, looking for Thomas. He also said that after the incident in August, he texted Thomas requesting to pick up some of his equipment from her house and to express his sympathy upon her father’s death. He testified that Thomas had texted him to let him know that she had laid her father to rest. He testified that she never indicated that she was afraid of him and that she never asked him to stop texting her. Alderman denied that he had a history of violence against women, but he admitted that he had been arrested in Texas based on an allegation made by his ex-wife during their divorce proceedings. He denied that he had a warrant out in Biloxi, Mississippi, relating to his ex-wife.

At the conclusion of the second eviden-tiary hearing, the trial court found that violence had occurred and that “the evidence is sufficient to show that [Thomas] is in fear of future violence.”

A review of the transcripts leads us to conclude that while Thomas may have been the victim of one act of dating violence in August 2012, she did not present evidence establishing an objectively reasonable fear that she is in imminent danger of becoming the victim of another act of dating violence. See Randolph v. Rich, 58 So.3d 290, 292 (Fla. 1st DCA 2011) (holding, in the context of domestic violence injunctions, that “the law requires that the party seeking the injunction must present sufficient evidence to establish the objective reasonableness of his or her fear that the danger of violence is ‘imminent’ ”). Thomas did not present any evidence that Alderman had threatened her or had done anything else that would support an objective fear of imminent danger. Cf. Waler v. Lovett, 905 So.2d 972, 973 (Fla. 5th DCA 2005) (holding that petition for dating violence injunction was sufficient where petitioner alleged that respondent had committed incidents of violence against her and had threatened her by telling “her that she was ‘dead’ ”). She testified that Alderman was a bully and had threatened her, but with the exception of her testimony regarding the incident in August 2012, the entirety of her testimony regarding Alderman’s behavior was eonclusory and vague.

Thomas did testify that Alderman had “stalked” her, and stalking is considered “violence” for purposes of section 784.046. See § 784.046(l)(a). But stalking occurs when a person “'willfully, maliciously, and repeatedly follows, harasses, or cyber-stalks another person.” § 784.048(2). “ ‘Harass’ means to engage in a course of conduct directed at a specific person which causes substantial emotional distress to that person and serves no legitimate purpose.” § 784.048(l)(a). Most of Alderman’s “stalking” behavior, according to Thomas, occurred while the two of them were dating, and it consisted of Aider-man’s emailing, texting, driving by Thomas’s house, and “not go[ing] away.” Because the parties were dating on and off during this time and because Thomas did not testify to the nature of these communications or how she reacted to them, it cannot be said that this behavior constituted stalking or would reasonably cause Thomas to fear that she would be the victim of stalking in the future.

The only evidence of Alderman’s behavior after the incident in August 2012, when the parties broke up, was Thomas’s general testimony of the “many” texts Alderman sent to Thomas in early September 2012 and the Facebook stalking. Thomas did not specify or explain the nature of these communications from Alderman, and she did not testify regarding her emotional responses after receiving these communications or that she asked Alderman to stop contacting her. In fact, Thomas admitted she texted Alderman during this period of time, and Alderman testified that he text-ed Thomas on two occasions, once to seek the return of his belongings and once to express his condolences upon the death of her father. Therefore, Thomas failed to demonstrate that Alderman’s actions caused her substantial emotional distress, that they served no legitimate purpose, that they were done willfully or maliciously, and that she had an objective fear that they would continue in the future. Cf. Werner v. Scharlop, 867 So.2d 1172, 1173 (Fla. 4th DCA 2004) (holding that respondent’s behavior caused substantial emotional distress when he “continued to call, write letters and send e-mails to the victim” for a year, despite petitioner’s repeatedly telling him “that she wanted no further contact with him”). Her vague testimony was insufficient to show that she had reasonable cause to believe she was in imminent danger of becoming the victim of future stalking by Alderman, especially in light of Alderman’s testimony that he wants nothing more to do with Thomas.

Because there was no competent, substantial evidence that Thomas reasonably believed she was in imminent danger of becoming the victim of another act of dating violence, the trial court abused its discretion in entering the final judgment of injunction. See Arnold v. Santana, 122 So.3d 512, 513 (Fla. 1st DCA 2013) (holding that a trial court has broad discretion in entering an injunction for protection against violence but that it must be supported by competent, substantial evidence). We also note that Thomas’s petition was insufficient because she failed to allege facts demonstrating that she reasonably believed she was in imminent danger of becoming the victim of another act of dating violence.

In light of our reversal, we do not address Alderman’s other arguments except to point out that the approved form for a dating violence injunction is defective because it does not require a petitioner to allege that he or she has reasonable cause to believe he or she is in imminent danger of becoming the victim of an act of dating violence. Florida Family Law Rule of Procedure Form 12.980(n) provides in section III, paragraph 8, for a petitioner to explain how he or she “genuinely fears dating violence by Respondent,” but there is no mention of a fear of “imminent danger of becoming the victim of an act of dating violence,” as required under section 784.046(2)(b). We suggest that the Family Law Rules Committee examine form 12.980(n) to determine if it is in need of amendment.

Reversed and remanded.

ALTENBERND and WALLACE, JJ., Concur.

      . Thomas has chosen not to appear in this appeal.

      . We note that "[s]ection 784.046(2) contains three separate and distinct causes of action” for injunctions against violence and that "each cause of action contains allegations that differ from the other two.” Morrell v. Chadick, 965 So.2d 1277, 1279-80 (Fla. 2d DCA 2007).


author: ALTENBERND, Judge.

text:
    John McCUE and McCue Holdings, LLC, Appellants, v. HERITAGE FARMS PROPERTY ASSOCIATION, INC., a Florida not-forprofit corporation, Appellee.
    No. 2D13-3644.
    District Court of Appeal of Florida, Second District.
    June 20, 2014.

      P. Brandon Perkins and Brett C. Powell of The Powell Law Firm, Fort Myers; and Scott Kuhn of Kuhn Law Firm, P.A., Fort Myers, for Appellants.
    Aaron A. Haak of Knott, Ebelini, Hart, Fort Myers, for Appellee.
   ALTENBERND, Judge.

John McCue and McCue Holdings, LLC, appeal an order granting a temporary injunction in favor of Heritage Farms Property Association, Inc. (the Association). The order enjoined them from using the roads within the subdivision regulated by the Association to transport or deliver equipment, material, or personnel to improve adjacent property owned by McCue Holdings, LLC. We reverse and remand for further proceedings.

Mr. McCue lives in the Heritage Farms subdivision in Lee County. Immediately behind his lot in the subdivision, there are forty-one acres of unimproved, agricultural land that are owned by McCue Holdings, LLC. These acres are not a part of the subdivision. According to Mr. McCue, he is the “sole owner” of the LLC. The acreage cannot be easily accessed except by using the road system inside Heritage Farms or by building a temporary bridge over a canal in another location.

In June of 2013, Mr. McCue trailered a bobcat, which is a skid-steer tractor, to his residence to clear a portion of his lot to build a fence. He then proceeded to use the bobcat to clear a portion of the acreage. At the hearing in this case, Mr. McCue testified without dispute that he had permits to perform this work. Although it appears from the testimony at the hearing that the Association is primarily concerned about Mr. McCue’s decision to clear the acreage, the Association filed an action to enjoin him from using its road system to transport the bobcat or any other items to the LLC’s acreage.

Following the short evidentiary hearing, the trial court announced that it was granting a temporary injunction because Mr. McCue had used the roads to access the LLC’s acreage. The trial court then entered an order entitled “Order Granting Plaintiffs Emergency Verified Motion for Temporary Injunction.” The order contains no findings. It states that the motion is granted and that the Association “is entitled to issuance of a temporary injunction” enjoining Mr. McCue and McCue Holdings, LLC, from utilizing the Heritage Farms road system to transport items “for the purpose of improvement or benefit of’ the acreage. The order directs the parties to coordinate and schedule a hearing to determine the amount of the bond that is to be given in conjunction with the temporary injunction.

Upon first reviewing this order, this court believed that it might have been a preliminary order and that the trial court intended to enter a separate order granting a temporary injunction. However, based on the supplemental appendix provided by the parties, it is clear that the order on appeal was intended to be the order granting a temporary injunction.

Critically, the order does not “specify the reasons for entry,” as required by Florida Rule of Civil Procedure 1.610(c). This court has long held that this proviso requires the injunction to include specific findings regarding the likelihood of irrepa-rabie harm, unavailability of an adequate remedy at law, substantial likelihood of success on the merits, and considerations of public policy. See Bellach v. Huggs of Naples, Inc., 704 So.2d 679, 680 (Fla. 2d DCA 1997) (reversing temporary injunction that failed to require the movant to post bond and failed to include the required specific findings); Richard v. Behavioral Healthcare Options, Inc., 647 So.2d 976, 978 (Fla. 2d DCA 1994) (quoted in Bellach, 704 So.2d at 680); see also Milin v. Nw. Fla. Land, L.C., 870 So.2d 135, 187 (Fla. 1st DCA 2003). The order on appeal does not specify any reasons for entry of the temporary injunction.

Although we do not mandate that the trial court deny the motion for temporary injunction on remand, from our review of the transcript there appears to be very little evidence of any irreparable harm to the Association’s streets if they are used occasionally to transport some equipment to Mr. McCue’s lot, from which he would then transfer the equipment to the acreage. From the testimony at the hearing it appears that such equipment can be transported on the streets by other residents to perform heavy landscaping on other lots within the subdivision. Oddly, Mr. McCue has appealed this injunction even though he testified that he had no intention of using the Association’s streets to transport any future items related to the clearing of the acreage.

We simply reverse the order on appeal and remand for further proceedings in this action in which the Association seeks both damages and a permanent injunction.

Reversed and remanded.

DAVIS, C.J., and KHOUZAM, J„ Concur.


author: VILLANTI, Judge.

text:
    Fagner BARROS-DIAS, Appellant, v. STATE of Florida, Appellee.
    No. 2D08-1074.
    District Court of Appeal of Florida, Second District.
    June 20, 2014.
    Howard L. Dimmig, II, Public Defender, and Maureen E. Surber, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Richard M. Fishkin and Diana K. Bock, Assistant Attorneys General, Tampa, for Appellee.
   ON REMAND FROM THE SUPREME COURT OF FLORIDA

VILLANTI, Judge.

Fagner Barros-Dias appealed his conviction and sentence for second-degree murder. This court affirmed the conviction and sentence based on our prior opinion in Zeigler v. State, 18 So.3d 1239,1245-46 (Fla. 2d DCA 2009), which held that the standard jury instruction on voluntary manslaughter that was in effect at the time of Barros-Dias’ trial in 2007 was not fundamentally erroneous, and the decisions in Salonko v. State, 42 So.3d 801 (Fla. 1st DCA 2010), and Singh v. State, 36 So.3d 848 (Fla. 4th DCA 2010), which held that fundamental error did not occur if the manslaughter instruction read by the court gave the jury the option to find the defendant guilty of manslaughter by culpable negligence. See Barros-Dias v. State, 41 So.3d 370 (Fla. 2d DCA 2010).

Subsequently however, in Haygood v. State, 109 So.3d 735, 737 (Fla.2013), the Florida Supreme Court held that giving the erroneous manslaughter by act jury instruction constitutes fundamental error even if the instruction on manslaughter by culpable negligence is given when the evidence actually presented at trial would not support a conviction for manslaughter by culpable negligence. Based on Haygood, the supreme court quashed this court’s opinion in Barros-Dias and remanded for reconsideration in light of Haygood. See Barros-Dias v. State, No. SC10-1682, 2014 WL 815114 (Fla.2014).

On remand, we requested supplemental briefing from the parties as to whether the evidence presented at trial was such that Barros-Dias would be entitled to a new trial under Haygood. Barros-Dias argues that he falls squarely within the holding of Haygood, and the State properly concedes that the evidence considered in light of the holding of Haygood mandates that Bar-ros-Dias receive a new trial. Hence, upon reconsideration in light of Haygood, we reverse Barros-Dias’ conviction for second-degree murder and remand for a new trial with proper instructions.

Reversed and remanded for a new trial.

WALLACE and LaROSE, JJ„ Concur.


author: SILBERMAN, Judge.

text:
    A.O.L., Appellant, v. STATE of Florida, Appellee.
    No. 2D13-4122.
    District Court of Appeal of Florida, Second District.
    June 20, 2014.

      Howard L. Dimmig, II, Public Defender, and Clark E. Green, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Gillian N. Leytham, Assistant Attorney General, Tampa, for Appel-lee.
   SILBERMAN, Judge.

The sole issue in this appeal is whether the trial court erred when it imposed restitution on a juvenile defendant who was absent from the hearing and who had not waived her right to be present. The State concedes error, and we reverse.

A.O.L. entered a plea of guilty to the delinquent acts of burglary of an unoccupied dwelling and two counts of second-degree grand theft. Adjudication was withheld and she was placed on probation. The victims sought restitution for damage done to their home and for property stolen during the burglary. Although apparently noticed for a restitution hearing, A.O.L. failed to appear; but the homeowners were present, and the trial court decided to go ahead with the hearing in spite of the defense attorney’s objection. The trial court made specific findings on the record about the amount of restitution due to the victims and later memorialized the amounts in a final judgment.

Both parties have cited settled case law for the proposition that defendants have a constitutional right to be present at a restitution hearing and, if they do not validly waive that right, it is reversible error to conduct the hearing and impose restitution in their absence. See M.W.G. v. State, 945 So.2d 597, 600 (Fla. 2d DCA 2006); T.A.S. v. State, 892 So.2d 1233, 1234 (Fla. 2d DCA 2005). This case is virtually identical to C.C.N. v. State, 1 So.3d 1151 (Fla. 2d DCA 2009), in which the trial court failed to inquire about the circumstances of the juvenile’s absence or make any findings concerning whether the juvenile had voluntarily waived the right to be present. As in this case, no sworn evidence demonstrated that the defendant had actually received notice of the restitution hearing. Although a defendant may waive the right to be present and may appear constructively through counsel, the court nevertheless must first “ ‘determine that the defendant’s waiver of the right to be present is knowing, intelligent, and voluntary.’ ” Id. at 1152 (quoting M.W.G., 945 So.2d at 600). The State carries the burden of proving the validity of the juvenile’s waiver by competent, substantial evidence. C.C.N., 1 So.3d at 1152.

The trial court in this case implicitly found that the juvenile had waived her right to be present based on an unsworn statement that A.O.L. and her mother had received notice of the hearing, but the court’s assumption of waiver was not supported by competent, substantial evidence. Accordingly, we must reverse the final judgment of restitution and remand for a new restitution hearing at which A.O.L. must be present. Alternatively, if A.O.L. does not attend, the State must demonstrate by competent, substantial evidence that she validly waived her constitutional right to be present.

Reversed and remanded for further proceedings.

CASANUEVA and BLACK, JJ, Concur.

      . A.O.L. filed a notice of appeal based on the trial court’s oral findings. Because this court lacks jurisdiction to review an oral order of this nature, we relinquished jurisdiction for the trial court to render a final judgment of restitution reflecting the oral findings.


text:
    Jeffrey S. GROVE, Appellant, v. Karen B. GROVE, Appellee.
    No. 2D13-4679.
    District Court of Appeal of Florida, Second District.
    June 20, 2014.
    Timothy W. Weber and Joseph P. Kenny of Weber, Crabb & Wein, P.A., St. Petersburg, for Appellant.
    Michael J. Park and Joseph R. Park of Park, Ossian, Barnaky & Park, P.A., Clearwater, for Appellee.
   SILBERMAN, Judge.

Jeffrey S. Grove (the Husband) appeals the nonfinal Amended Order on Wife’s Motion for Temporary Relief (the Amended Order) and raises two issues. First, he challenges the award of temporary alimony in favor of Karen B. Grove (the Wife). We affirm this issue without discussion. Second, the Husband challenges paragraph H of the Amended Order that requires the parties to comply with the “Notice to Litigation Parties with Minor Children” that the Wife served at the commencement of the litigation (the Notice). We reverse that portion of the Amended Order and remand for the trial court to strike paragraph H of the order.

Paragraph H of the Amended Order provides:

The Court hereby incorporates as part of this Temporary Order the provisions of the Notice to Litigation Parties with Minor Children served at the commencement of this case consistent with the procedures of the Sixth Judicial Circuit. The Court hereby directs that the obligations addressed therein shall be henceforth observed by the parties, and each of the parties shall comply with the express terms and provisions thereof without exception.

The Husband contends that the trial court in effect entered an overly broad injunction that mandates his compliance but without notice to him that the court would consider this issue. The Notice contained in the appendix was served on the Husband and is signed by the Wife’s counsel. The issue of compliance with the Notice was not mentioned in the Wife’s motion or at the hearings on her motion.

Thus, the Husband was not on notice that the trial court was going to mandate compliance with the Notice that concerned his financial affairs and the minor child, including contact, parenting, and other aspects of his relationship with the child. This violated his due process rights. See Mizrahi v. Mizrahi, 867 So.2d 1211, 1214 (Fla. 3d DCA 2004) (stating that modification of a travel restriction regarding the children without notice to the father violated his due process rights); Cummings v. Cummings, 662 So.2d 769, 770 (Fla. 4th DCA 1995) (stating that modification of travel restriction without notice to the wife violated her due process rights).

Therefore, we reverse the Amended Order as to Paragraph H and remand for the trial court to strike that paragraph. The trial court may reconsider the matter after notice to the Husband.

Affirmed in part, reversed in part, and remanded.

ALTENBERND and MORRIS, JJ., Concur.

      . The Wife refers to the Notice as an administrative order and asserts that it was issued by the chief judge of the circuit. However, no administrative order has been provided to this court in response to our order directing submission of any such administrative order.


author: THOMAS, J.

text:
    SOUTH BROWARD HOSPITAL DISTRICT, d/b/a Memorial Healthcare System, Appellant, v. STATE of Florida, AGENCY FOR HEALTH CARE ADMINISTRATION, Appellee.
    No. 1D13-4838.
    District Court of Appeal of Florida, First District.
    June 24, 2014.

      F. Philip Blank and David R. Osborne of Blank & Meenan, P.A., Tallahassee, for Appellant.
    Tracy Cooper George, Chief Appellate Counsel, Agency for Health Care Administration, Tallahassee, for Appellee.
   THOMAS, J.

South Broward Hospital District d/b/a Memorial Healthcare System (Appellant) seeks review of a final order entered by the Secretary of the Agency for Health Care Administration (AHCA) dismissing Appellant’s request for a formal administrative hearing pursuant to sections 120.569 and 120.57(1), Florida Statutes. We agree with Appellant and conclude that it has met the requirements for third-party standing under Agrico Chemical Co. v. Department of Environmental Regulation, 406 So.2d 478, 479 (Fla. 2d DCA 1981). Accordingly, we reverse and remand for an administrative hearing pursuant to section 120.57, Florida Statutes.

The dispute underlying this appeal stems from section 409.915, Florida Statutes (2012). Section 409.915 addresses county contributions to Medicaid, noting that “[although the state is responsible for the full portion of the state share of the matching funds required for the Medicaid program, in order to acquire a certain portion of these funds, the state shall charge the counties for certain items of care and service as provided in this section.” The statute provides that “[e]ach county shall contribute its pro rata share of the total county participation based upon statements rendered by [AHCA].” § 409.915(4), Fla. Stat. The statute, recognizing that disputes would likely arise between the counties and AHCA over alleged errors in the statements, also provides that “[a] county may use the process developed under subsection (10) to request a refund if it determines that the statement rendered by [AHCA] contains errors.” Id. Under subsection (10), the Legislature provided that AHCA, in consultation with the Department of Revenue and the Florida Association of Counties, had to develop a refund process which “[a]llows counties to submit to the agency written requests for refunds ...” and requires AHCA to make a determination as to whether a refund request is appropriate. § 409.915(10), Fla. Stat. The statute grants AHCA the ability to adopt rules to administer it. § 409.915(12), Fla. Stat.

As well as addressing counties’ contributions to Medicaid and the refund process, section 409.915(5) also allows a county, in which a special taxing district or authority is located, to “divide the county’s financial responsibility for this purpose proportionately” and requires each district or authority to furnish its share of the county’s contribution in time for the county to comply with section 409.915(3).

Pursuant to section 409.915(12), AHCA adopted rules to administer the statute. In particular, AHCA adopted rule 59G-1.025 of the Florida Administrative Code, which allows counties to submit either advanced refund requests or back-end refund requests (BERR). If AHCA denies any portion of a county’s BERR, it provides the county with a notice of administrative rights under sections 120.569, 120.57, and 120.573, Florida Statutes.

Utilizing the refund process under rule 59G-1.025, Broward County filed a BERR for a Medicaid contribution invoice that included sums that Appellant was obligated to pay as part of its share as a special taxing district.

AHCA sent a Final Determination Notice regarding this BERR, granting in part and denying part. Broward County did not seek review of AHCA’s determination; however, Appellant filed a request for a formal administrative hearing pursuant to sections 120.569 and 120.57(1), Florida Statutes, asserting that it was affected by AHCA’s determination because it had been charged $149,943.24 of the $478,228.73 that AHCA declined to refund the county. The Secretary of AHCA entered an order dismissing Appellant’s request for a formal administrative hearing, concluding that Appellant lacked standing because its substantial interests had not been affected by AHCA’s determination because the monies were owed by Broward County, not Appellant, and Broward County merely decided to exercise its discretion afforded under section 409.915(5) to request that Appellant pay Broward County a share of the monies owed by the county to AHCA. The order concluded that it was not AHCA’s determination that resulted in the injury to Appellant, but Broward County’s decision to seek a share of the monies owed to AHCA. AHCA concluded that the statute was designed to protect the counties so that they were not incorrectly billed by AHCA, and it was not designed to protect Appellant.

“Whether a party has standing to bring an action is a question of law that is to be reviewed de novo.” Mid-Chattahoo chee River Users v. Fla. Dep’t of Envtl. Prot, 948 So.2d 794, 796 (Fla. 1st DCA 2006) (citing Hospice of Palm Beach County, Inc. v. State, Agency for Health Care Admin., 876 So.2d 4, 7 (Fla. 1st DCA 2004)). For purposes of this appeal, we must accept the allegations in Appellant’s petition as true. Id. We, however, find that we are not required to give any deference to AHCA’s legal analysis in the order on appeal, as the standing issue involves the application of general principles of administrative law, over which AHCA has no special expertise. See Ft. Myers Real Estate Holdings, LLC v. Dep’t of Bus. & Prof'l Regulation, Div. of Pari-Mutuel Wagering, 53 So.3d 1158, 1160 (Fla. 1st DCA 2011) (citing Doyle v. Dep’t of Bus. Regulation, 794 So.2d 686, 690 (Fla. 1st DCA 2001)).

On appeal, Appellant does not assert that it has standing to challenge AHCA’s decision as a named party, but asserts that AHCA erred in concluding that it had not met the requirements under the Agrico standing test. This court has held that the Agrico test only applies to third parties. See Maverick Media Group, Inc. v. State, Dep’t of Transp., 791 So.2d 491, 491 (Fla. 1st DCA 2001).

In Agrico, the appellant’s competitors sought to intervene in its petition for a construction permit, arguing that their economic interests would be affected. 406 So.2d at 479. The department granted the competitors’ standing to intervene based upon the hearing officer’s recommended order. Id. at 480-81. The Second District reversed and found that, pursuant to section 120.52(10)(b), Florida Statutes, the competitors only had standing to intervene if they could establish that they had a substantial interest in the outcome of the proceedings by showing that: (1) they would “suffer injury in fact which is of sufficient immediacy to entitle [them] to a section 120.57 hearing, and 2) that [their] substantial injury is of a type or nature which the proceeding is designed to protect.” Id. at 482. “The first aspect of the test deals with the degree of injury. The second deals with the nature of the injury.” Id.

This court has held that the reason for requiring a party to have standing to participate in either a judicial or administrative hearing is “to ensure that a party has a ‘sufficient interest in the outcome of the litigation which warrants the court’s entertaining it’ and to assure that a party has a personal stake in the outcome so he will adequately represent the interest he asserts.” Gregory v. Indian River Cnty., 610 So.2d 547, 554 (Fla. 1st DCA 1992) (quoting Gen. Dev. Corp. v. Kirk, 251 So.2d 284, 286 (Fla. 2d DCA 1971)).

Under the first prong of Agrico, the injury-in-fact standard is met by a showing that the petitioner has sustained actual or immediate threatened injury at the time the petition was filed, and “[t]he injury or threat of injury must be both real and immediate, not conjectural or hypothetical.” See Village Park Mobile Home Ass’n v. State, Dep’t of Bus. Regulation, 506 So.2d 426, 433 (Fla. 1st DCA 1987) (concluding that appellants’ “speculative concerns” did not demonstrate any immediate injury-in-fact, the feared results of an inaccurate, unfair prospectus had not happened, and a remedy other than the prospectus approval process existed if the feared results occurred). Under the second prong, Appellant must establish that its injury is the type of injury that the proceeding is designed to protect. Agrico, 406 So.2d at 482. “With respect to the second prong, this factor usually requires that ‘the injury is of the type that the statute pursuant to which the agency has acted is designed to protect.’ ” Menorah Manor, Inc. v. Agency for Health Care Admin., 908 So.2d 1100, 1104 (Fla. 1st DCA 2005) (quoting Fairbanks, Inc. v. State, Dep’t of Transp., 635 So.2d 58, 59 (Fla. 1st DCA 1994)).

Here, we find that Appellant has established a substantial interest and has met both prongs of the Agrico test. Under the first prong, Appellant has established a real and immediate injury, as Appellant’s petition for an administrative hearing alleges that it will not receive a refund of almost $150,000 as a result of AHCA’s decision to deny Broward County’s refund request. Appellant has also established that the injury, i.e., being required to contribute funds that Appellant alleges AHCA erroneously charged to the county, is the type that section 409.915 was designed to protect.

Accordingly, we reverse AHCA’s final order dismissing Appellant’s request for a formal administrative hearing for lack of standing, and remand with directions that AHCA refer the request to the Division of Administrative Hearings for a formal hearing.

REVERSED and REMANDED.

LEWIS, C.J., and OSTERHAUS, J., concur.


author: CONNER, J.

text:
    STATE of Florida, Appellant, v. E.M., a child, Appellee.
    No. 4D12-4278.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2014.

      Pamela Jo Bondi, Attorney General, Tallahassee, and Katherine Y. Mclntire, Assistant Attorney General, West Palm Beach, for appellant.
    Carey Haughwout, Public Defender, and Narine N. Austin, Assistant Public Defender, West Palm Beach, for appellee.
   CONNER, J.

The State argues that the trial court erred in granting E.M.’s motion in limine to exclude his statements to school officials and determining that its ruling was dispos-itive. We agree the trial court erred in granting the motion in limine and reverse and remand for further proceedings. Because we agree that the trial court erred in granting E.M.’s motion in limine, the issue of whether the trial court’s ruling was dispositive is moot.

E.M., a student at a middle school, was given an internal suspension for violating of the school’s dress code. E.M. told a member of the school security staff (“Security”) that the reason he was out of dress code was that his uniform shirt was “messed up.” Security asked E.M. to show her his “messed up” shirt, and when E.M. opened his backpack to take out the shirt, Security smelled the odor of marijuana. Security asked E.M. if he had any illegal substances in his backpack, and E.M. admitted that he had marijuana. Security searched his backpack and found “two brown bag rolled cigarettes, containing a leafy substance and a cigarette lighter.”

E.M. was sent to the principal’s office, where he admitted to giving marijuana to other students at the school. Other students also admitted to either getting marijuana from E.M., or having knowledge that he was selling marijuana at the school. E.M. also told the principal that he had more marijuana at home. This admission led detectives to contact E.M.’s mother, who signed a consent to search form. After searching E.M.’s room, the detectives found ten additional grams of marijuana.

The State filed a petition charging E.M. as a delinquent child for committing two counts of possession of cannabis with intent to deliver at or near a school. Count one was for the marijuana found in E.M.’s possession at school, and count two was for the marijuana found in E.M.’s room. E.M. filed a motion in limine seeking to exclude the statements he made to school officials pursuant to section 1006.09(2)(a), Florida Statutes (2014). E.M. argued that section 1006.09(2)(a) is “somewhat of an immunity statute,” and because he admitted to his unlawful possession of the drugs prior to his arrest, that this information, which led to his arrest, could not be used in the subsequent criminal trial against him. After a hearing, the trial court entered an order granting E.M.’s motion, ordering “that information divulged by child, [E.M.], on [date] to school administrators and staff of [middle school], shall not be admissible at trial against the child.” The trial court also determined that its ruling was disposi-tive.

Because the trial court’s ruling was based on an interpretation of section 1006.09(2)(a), Florida Statutes (2014), we review de novo. See Pantoja v. State, 59 So.3d 1092, 1095 (Fla.2011).

Section 1006.09(2)(a), titled “Duties of School Principal Relating to Student Discipline and School Safety,” states:

(2) Suspension proceedings, pursuant to rules of the State Board of Education, may be initiated against any enrolled student who is formally charged with a felony, or with a delinquent act which would be a felony if committed by an adult, by a proper prosecuting attorney for an incident which allegedly occurred on property other than public school property, if that incident is shown, in an administrative hearing with notice provided to the parents of the student by the principal of the school pursuant to rules adopted by the State Board of Education and to rules developed pursuant to s. 1001.54, to have an adverse impact on the educational program, discipline, or welfare in the school in which the student is enrolled.... Any student who is subject to discipline or expulsion for unlawful possession or use of any substance controlled under chapter 893 may be entitled to a waiver of the discipline or expulsion:
(a) If the student divulges information leading to the arrest and conviction of the person who supplied the controlled substance to him or her, or if the student voluntarily discloses his or her unlawful possession of the controlled substance prior to his or her arrest. Any information divulged which leads to arrest and conviction is not admissible in evidence in a subsequent criminal trial against the student divulging the information.

§ 1006.09(2)(a), Fla. Stat. (2014) (emphasis added). Notably, there are no cases which have analyzed the issue presented in the instant case: can a student challenge the admissibility of his incriminating statements to school officials and claim that these statements cannot be used against him at trial when the student is the sole target of the prosecution?

Both E.M. and the State agree that the language of the statute is clear and unambiguous. “When the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Felder v. King Motor Co. of S. Fla., 110 So.3d 105, 107 (Fla. 4th DCA 2013). Therefore, we must look to the plain and obvious meaning of the text to determine whether the trial court erred in granting E.M.’s motion in limine.

Subsection (2) of section 1006.09 discusses the suspension or expulsion of students for certain crimes committed off campus. The last sentence of subsection (2) states that a student who is subject to discipline for unlawful possession or use under chapter 893 may be entitled to a waiver of discipline in certain situations.

We agree with the State that the statute does not apply to count one of the petition for delinquency filed against E.M. because the alleged possession occurred on campus. Subsection (2) specifically states it applies to “an incident which allegedly occurred on property other than public school property.” Thus, the statute applies to crimes occurring off campus.

We also note that subsection (2)(a) outlines two methods by which a student can qualify for a waiver of discipline or expulsion:

If the student divulges information leading to the arrest and conviction of the person who supplied the controlled substance to him or her, or if the student voluntarily discloses his or her unlawful possession of the controlled substance prior to his or her arrest.

§ 1006.09(2)(a), Fla. Stat. (2014) (emphasis added). As the statute provides, a student can qualify for possibly obtaining a waiver of discipline: (1) if the student divulges information leading to the arrest and conviction of the person who supplied the controlled substance to him or her (“method one”), or (2) if the student voluntarily discloses his or her unlawful possession of the controlled substance prior to his or her arrest (“method two”). In the instant ease, E.M. did not divulge information that led to the arrest of the person who supplied him with the marijuana, and therefore, he did not qualify under method one. E.M. did, however, admit to his unlawful possession and use of the marijuana prior to his arrest, and therefore met the criteria for method two.

The portion of the statute that provides for the inadmissibility of a student’s statement is the final sentence of subsection (2)(a): “Any information divulged which leads to arrest and conviction is not admissible in evidence in a subsequent criminal trial against the student divulging the information.” In this last sentence, only the method one scenario (the information leading to an arrest and conviction method), is mentioned. Notably, the second method scenario (the admission of his or her own unlawful possession) is missing.

“It is a general canon of statutory construction that, when the legislature includes particular language in one section of a statute but not in another section of the same statute, the omitted language is presumed to have been excluded intentionally.” L.K. v. Dep’t of Juvenile Justice, 917 So.2d 919, 921 (Fla. 1st DCA 2005) (citing Beach v. Great W. Bank, 692 So.2d 146, 152 (Fla.1997); Cason v. Crosby, 892 So.2d 536, 537 (Fla. 1st DCA 2005)). The legislature specifically mentioned the two methods for a student to qualify for a potential waiver of discipline, but in describing the scenario in which a student’s statements become inadmissible, the legislature referred only to the scenario in which the information divulged leads to the arrest and conviction of the person who supplied the controlled substance, which would be someone other than the student. Therefore, the plain meaning of the statute indicates that students who would qualify for a potential waiver of discipline under method two (admitting to his or her own unlawful possession or use of drugs) do not receive the same protection (inadmissibility of incriminating statements) as students who would qualify under method one (giving information that leads to the arrest and conviction of another).

The trial court, in pronouncing the reasoning behind its decision to grant E.M.’s motion in limine, likened the language in section 1006.09(2)(a) to Florida’s accident report privilege, contained in section 316.066(4), Florida Statutes (2014). Section 316.066(4) states in pertinent part:

Except as specified in this subsection, each crash report made by a person involved in a crash and any statement made by such person to a law enforcement officer for the purpose of completing a crash report required by this section shall be without prejudice to the individual so reporting. Such report or statement may not be used as evidence in any trial, civil or criminal.

§ 316.066(4), Fla. Stat. (2014). Within section 316.066(4), the legislature specifically set forth two items which shall be without prejudice to the individual so reporting: (1) the crash report, and (2) any statement made to law enforcement officers. However, unlike section 1006.09(2)(a), when further describing which items become inadmissible at a trial under section 316.066(4), the legislature specifically stated that the inadmissibility applied to both “[s]ueh report or statement.” In contrast, in section 1006.09(2)(a), the legislature stated two methods by which a student could potentially qualify for a waiver of discipline by making statements, but limited the inadmissibility of those statements in a subsequent criminal trial to only one method of qualifying for the waiver of discipline. In this way, section 1006.09(2)(a) is not similar to the accident report privilege.

The statute refers to information which leads to an arrest and conviction, and then makes that information “not admissible in evidence in a subsequent criminal trial against the student divulging the information.” It would be unlikely, if not impossible, for a student to be convicted of a crime, and then still have a subsequent trial based on the same information divulged. Therefore, it seems clear that the legislature intended for the inadmissibility of statements to apply when a student provides information against a third-party, not himself or herself.

Based on the plain meaning of section 1006.09(2)(a), the trial court’s order granting E.M.’s motion in limine to exclude his statements to school officials is reversed, and the case is remanded for further proceedings consistent with this opinion.

Reversed and Remanded.

STEVENSON and FORST, JJ., concur.

      . E.M. was charged with two counts of possession of marijuana with intent to deliver at or near a school pursuant to section 893.13(l)(a)2., Florida Statutes (2014).

      . E.M., for purposes of the motion, stipulated to this fact at the hearing.


author: PER CURIAM.

text:
    Vashika WILLIAMS, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-4062.
    District Court of Appeal of Florida, Fourth District.
    June 25, 2014.

      Vashika Williams, Quincy, pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and James J. Carney, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

The defendant appeals the circuit court’s order denying her Florida Rule of Criminal Procedure 3.801(a) motion seeking additional jail credit. The state concedes that we should remand this case to the circuit court to provide the court with an opportunity to attach to its order records showing the defendant is not entitled to relief. We agree with the state’s concession and reverse and remand for such further proceedings.

The defendant’s motion argued that she is entitled to an additional forty days of credit for her time in the Broward County jail between January and March 2012. The circuit court denied the defendant’s motion, explaining that it already considered the jail records and calculated the amount of time served when it previously corrected her credit and awarded her 391 days of time served. However, the court did not attach to its order any records to show that its previous correction accounted for the additional forty days of credit which the defendant sought in the instant motion.

Pursuant to Florida Rule of Criminal Procedure 3.801(e), which incorporates Florida Rule of Criminal Procedure rule 3.850(f), the circuit court was required to attach records which conclusively refuted the defendant’s motion seeking additional jail credit. See Fla. R. Crim. P. 3.850(f)(5) (“If the denial is based on the records in the case, a copy of that portion of the files and records that conclusively shows that the defendant is entitled to no relief shall be attached to the final order.”). Because the court did not attach such records, we must reverse and remand this case to the circuit court to provide it with an opportunity to do so.

Reversed and remanded for further proceedings.

STEVENSON, MAY and GERBER, JJ., concur.


author: NORTHCUTT, Judge.

text:
    R.A.S., Appellant, v. STATE of Florida, Appellee.
    No. 2D12-4998.
    District Court of Appeal of Florida, Second District.
    June 25, 2014.

      Howard L. Dimmig, II, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Bilal A. Faruqui, Assistant Attorney General, Tampa, for Appellee.
   NORTHCUTT, Judge.

The State filed a petition asserting that R.A.S. was a delinquent child based on his possession of marijuana and drug paraphernalia. R.A.S. moved to suppress the incriminating evidence, but the court denied the motion. He then pleaded no contest to the charges, reserving his right to appeal the court’s ruling on the dispositive suppression issue. We reverse and remand for entry of a judgment of dismissal.

The delinquency allegation stemmed from R.A.S.’s encounter with a Hillsbor-ough County sheriffs deputy who was driving around R.A.S.’s neighborhood looking for him because he had been reported absent from school. The deputy located R.A.S. and asked him to come over to talk to him. R.A.S. told the deputy that he was on his way to school. The deputy offered to give him a ride, and R.A.S. accepted. The deputy then stepped out of his car and told R.A.S. to empty his pockets. R.A.S. emptied all except one back pocket. The deputy then asked if he could “do a weapons patdown” and R.A.S. agreed. The deputy patted the pocket that R.A.S. had failed to empty, and he felt a small “squishy bulge.” He asked what the pocket contained, and R.A.S. pulled out a plastic baggy containing a green, leafy substance.

The circuit court denied the motion to suppress on the theory that R.A.S. voluntarily produced the contraband after the deputy merely asked him what was in the pocket. However, R.A.S.’s disclosure of the contents of his pocket was tainted by an illegal search and seizure that occurred earlier in his encounter with the deputy.

Law enforcement may take a child into custody if the officer has reasonable grounds to believe the child is a truant. § 984.13(l)(b), Fla. Stat. (2012). But truancy is not a crime, and a custodial detention for this purpose is not an arrest. A.B.S. v. State, 51 So.3d 1181, 1182 (Fla. 2d DCA 2010); L.C. v. State, 23 So.3d 1215, 1218 (Fla. 3d DCA 2009). Therefore, the warrant requirement exception for searches incident to arrest did not apply in this situation. Cf. A.B.S., 51 So.3d at 1182.

It is also the case that an officer may conduct a pat-down for weapons before placing a truant in his vehicle, but he is not authorized to conduct a full search. See id.; L.C., 23 So.3d at 1219 (“Although we appreciate the concern of officer safety, we are aware of no case that stands for the proposition officers can search an individual without having performed a pat-down simply because the individual is being placed in a police vehicle.”); Op. Att’y Gen. Fla. 11-08 (2011) (stating that when an officer has taken a juvenile into custody pursuant to section 984.13, the officer “may perform a limited frisk or pat-down for weapons before placing the minor in a law enforcement vehicle”).

By directing R.A.S. to empty his pockets, the deputy essentially conducted an unauthorized full search. Cf. E.B. v. State, 866 So.2d 200, 203 (Fla. 2d DCA 2004) (citing Sanders v. State, 732 So.2d 20, 21 (Fla. 1st DCA 1999), for the proposition that a pat-down does not include a search into a detainee’s pockets). Ordering someone to remove items from his pockets has the same legal effect as an officer actually reaching into the pockets to search. Sanders, 732 So.2d at 21. The deputy did not have a reason to think that R.A.S. was carrying a weapon or contraband. Thus, the initial search had no legal basis.

When R.A.S. did not remove the contents of his back pocket, the deputy asked for and obtained the youth’s consent to conduct a pat-down search of that pocket. But the illegal search had already tainted his consent and rendered any evidence discovered as “fruit of the poisonous tree.” See Grant v. State, 978 So.2d 862, 863 (Fla. 2d DCA 2008) (citing Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963)).

We recognize that, at the outset, the deputy properly could have conducted a pat-down for weapons instead of the illegal search. But he did not feel an object that remotely resembled a weapon in R.A.S.’s back pocket. As the L.C. court explained, when law enforcement is arresting a criminal suspect, the officer may conduct a warrantless search incident to that arrest in order to disarm a suspect before taking him into custody “and to preserve evidence for trial.” 23 So.3d at 1218. But when taking a truant into custody, the only concern is for officer safety — no crime has been committed and, accordingly, there is no need to preserve evidence of a crime. The deputy here knew that the “squishy object” in R.A.S.’s pocket was not a weapon. Therefore, he had no legal basis for questioning R.A.S. further about the contents of the pocket. R.A.S.’s production of the contraband was a direct consequence of the initial illegal search and seizure, and there was no “unequivocal break” in the chain of illegality. See Grant, 978 So.2d at 864; J.R.H. v. State, 428 So.2d 786, 788 (Fla. 2d DCA 1983).

We reverse the denial of the motion to suppress and remand for the court to enter a judgment of dismissal.

CASANUEVA and VILLANTI, JJ., concur.


author: WALLACE, Judge.

text:
    STAR INSURANCE COMPANY, a Michigan corporation, Petitioner, v. Jorge L. DOMINGUEZ, as Personal Representative of the Estate of Darcia Lynn Dominguez, deceased, and Hillsborough County, a political subdivision of the State of Florida, Respondents.
    No. 2D13-5009.
    District Court of Appeal of Florida, Second District.
    June 25, 2014.

      Scot E. Samis and Lauren S. Curtis of Traub, Lieberman, Straus & Shrewsberry, L.L.P. St. Petersburg; and Jennifer J. Kennedy of Butler Pappas Weihmuller Katz Craig, LLP, Tampa, for Petitioner.
    Richard A. Harrison of Richard A. Harrison, P.A., Tampa, and David B. Mishael of David B. Mishael, P.A., Miami, and Ian G. Osur of Ian G. Osur P.A., Miami, for Respondent Dominguez.
    Stephen M. Todd, Sr., Assistant County Attorney, Tampa, for Respondent Hills-borough County.
   WALLACE, Judge.

Star Insurance Company (Star) petitions for review by certiorari of an order denying its motion to dismiss an action for a declaratory judgment brought by Jorge L. Dominguez, as Personal Representative of the Estate of Darcia Lynn Dominguez, deceased, to determine the nature and extent of coverage under a liability insurance policy issued by Star to Hillsborough County (the County). Because Mr. Dominguez has not met the conditions precedent of the nonjoinder statute, section 627.4136, Florida Statutes (2012), we grant the writ and quash the order denying the motion to dismiss.

I. THE FACTS AND PROCEDURAL BACKGROUND

On February 6, 2010, Darcia Lynn Dominguez was killed after the vehicle that she was driving struck a tractor-trailer rig owned and operated by the County. Star had issued a public entity excess liability insurance and excess worker’s compensation insurance policy to the County. The policy was in effect from October 1, 2009, to October 1, 2010. The policy provided for excess automobile coverage above the County’s limit of liability under sovereign immunity. The excess coverage was subject to a self-insured retention (the SIR) of $350,000 per occurrence.

In April 2013, Mr. Dominguez filed a first amended complaint against the County and Star. The first amended complaint included two counts. In the first count, Mr. Dominguez asserted a wrongful death claim against the County. The second count sought a declaratory judgment concerning the applicability, interpretation, and enforceability of the policy’s SIR and whether the policy’s excess coverage is available on the wrongful death claim. It is undisputed that Mr. Dominguez has not obtained a judgment against the County on the wrongful death claim and that the claim has not been settled.

Star moved to dismiss count two of the first amended complaint on several grounds, including the nonoccurrence of the conditions precedent of the nonjoinder statute. At a hearing on the motion, counsel for Mr. Dominguez acknowledged that the purpose of count two was to obtain a determination of coverage — before the occurrence of a judgment or settlement— under the County’s policy issued by Star. Counsel explained to the circuit court, “We’re asking for a declaratory judgment that says under the policy and Florida law, “You, the County, and you, the plaintiff, may enter into that settlement within policy limits. And the County, you have not waived your coverage.’ ” Counsel for Star argued that, on the undisputed facts, the nonjoinder statute required the dismissal of count two of the first amended complaint. However, the circuit court declined to dismiss count two. In the order under review, the circuit court denied Star’s motion to dismiss count two and instead severed count two from the wrongful death claim. Star’s petition for a writ of'certio-rari followed.

II. DISCUSSION

Here, Star argues that the circuit court’s denial of its motion to dismiss Mr. Dominguez’s action to determine the question of coverage in the face of the undisputed nonoccurrence of the conditions precedent of the nonjoinder statute constitutes a departure from the essential requirements of the law. Star argues further that it will suffer irreparable harm by reason of the circuit court’s order because it will be required to defend an action that should be barred by the nonjoinder statute. We agree. See S. Owners Ins. Co. v. Mathieu, 67 So.3d 1156, 1158 (Fla. 2d DCA 2011); Universal Sec. Ins. Co. v. Spreadbury, 524 So.2d 1167, 1168 (Fla. 2d DCA 1988) (construing the 1985 version of the nonjoinder statute, which was then numbered as section 627.7262); Lantana Ins., Ltd. v. Thornton, 118 So.3d 250, 251 (Fla. 3d DCA 2013); see also Dollar Sys., Inc. v. Elvia, 967 So.2d 447, 449 (Fla. 4th DCA 2007) (affirming the dismissal of an action brought by a third party against an insurer to determine coverage issues where neither of the conditions of the nonjoinder statute had been satisfied).

Mr. Dominguez makes two arguments in support of the circuit court’s order. First, he contends that Star cannot satisfy the jurisdictional prerequisite of irreparable harm because the severance of count two from the wrongful death action will prevent the jury from learning about the existence of the County’s insurance coverage. We rejected a similar argument in Mathieu:

We likewise reject the Mathieus’ argument that because their declaratory judgment action was initiated in a separate proceeding from the underlying negligence action, it was not subject to dismissal. Section 627.4136(1) expressly states that a cause of action against an insurance company by a party who is not its insured does not accrue until a settlement or verdict has been obtained. To allow a party to avoid the application of section 6274136 by merely instituting a separate action would result in insurers having to litigate claims which have not yet accrued and for which the insurer might ultimately bear no liability. Such an interpretation would nullify the protection offered by section 6274136.

67 So.3d at 1159 (second emphasis added). Moreover, the cases upon which Mr. Dominguez relies in support of the circuit court’s order all involve actions brought by insureds, not strangers to the insurance contract such as Mr. Dominguez.

Second, Mr. Dominguez argues “that Star has waived this condition precedent [of the nonjoinder statute] by its own actions and conduct that have prevented [Mr.] Dominguez and the County from entering into a settlement.” We reject this waiver argument because it is unsupported by any authority and is inconsistent with the language and the purpose of the non-joinder statute. Star did not waive the protection of the nonjoinder statute. On the contrary, Star timely asserted its rights by moving to dismiss count two of the first amended complaint.

III. CONCLUSION

The circuit court’s order denying Star’s motion to dismiss the declaratory judgment action brought against it by Mr. Dominguez constitutes a departure from the essential requirements of the law causing irreparable harm to Star that cannot be remedied on appeal. Accordingly, we grant the petition and quash the circuit court’s order, and remand for further proceedings consistent with this opinion.

Petition granted; order quashed.

KHOUZAM and BLACK, JJ., Concur.

      . See § 768.28(5), Fla. Stat. (2009). We cite to the 2009 version of section 768.28(5) because it was in effect when the cause of action accrued. Differently, we cite the 2012 version of the nonjoinder statute because it was in effect when Mr. Dominguez filed the first amended complaint that includes the action against Star for a declaratory judgment.

      . The County has filed a response to the petition criticizing Star’s interpretation of the policy. Along with Mr. Dominguez, the County urges us to deny Star’s petition. Notably, the County itself has not filed an action against Star to obtain a declaratory judgment concerning the County's rights and obligations under the policy.