source: Caselaw Access Project

author: DAVIS, Judge.

license: Public Domain

text:
    Honorable Rick SCOTT, Governor Of The State Of Florida and The State Of Florida, Appellants, v. GALAXY FIREWORKS, INC. and Itzhak Dickstein, Appellees.
    No. 2D11-1583.
    District Court of Appeal of Florida, Second District.
    Dec. 5, 2012.
    Rehearing Denied April 2, 2013.
    Pamela Jo Bondi, Attorney General, Scott D. Makar, Solicitor General, Louis F. Hubener, Chief Deputy Solicitor General, and Courtney Brewer, Deputy Solicitor General, Tallahassee, for Appellants.
    Kristin A. Norse, Stuart C. Markman, and Robert W. Ritsch of Kynes, Markman & Felman, P.A., Tampa; Steven G. Wenzel and Matthew Fenton of Wenzel, Fenton & Cabassa, P.A., Tampa; and Gregory S. Rix, Tampa, for Appellees.
   DAVIS, Judge.

The State of Florida appeals the final judgment entered in favor of Galaxy Fireworks and Itzhak Dickstein (Appellees) by which they were awarded $1 million in damages plus prejudgment interest in an inverse condemnation case. We reverse.

Appellees are major retailers of fireworks in the State of Florida. They filed their inverse condemnation action in response to Executive Order 98-165, which was entered in 1998 by then Governor Lawton Chiles and forbade the sale, use, or discharge of fireworks or sparklers for the period of June 25 through July 9,1998. In their complaint, Appellees claimed that the prohibition of the sale of their fireworks during the Fourth of July holiday deprived them of the economic benefit of their inventories. This, they argue, was a compensable taking in violation of the Fifth Amendment of the United States Constitution.

In 1998, a dry spring led into a drier summer that resulted in brush fires breaking out across the state. In response to these dangerous conditions, the governor issued his order prohibiting the sale, use, or discharge of fireworks, hoping to reduce the danger of additional fires accidentally being started by the explosion of the fireworks.

Appellees argued below that generally they realize approximately seventy percent of their annual profits during the Fourth of July holiday season and that it takes them approximately two months leading up to the holiday to prepare for the big sales period. Although Appellees stipulated that the executive order was a proper use of the State’s police power, they maintained that the result was a compen-sable taking of their profits.

On April 11, 2005, the trial court entered final summary judgment in favor of the State, determining that there was no com-pensable taking. However, this court reversed that final order, concluding that summary judgment was improper because there remained a material issue of fact regarding the scope of the executive order’s limitation of transporting the fireworks. See Galaxy Fireworks, Inc. v. Bush, 927 So.2d 995 (Fla. 2d DCA 2006). On remand, the trial court held a bench trial and determined that there had been a compensable taking and that the damages would be decided by jury trial. The parties, however, stipulated that the damages would be $1 million plus prejudgment interest. Accordingly, the trial court entered a final judgment in the amount of $1,108,494.40 in favor of Appellees. It is this final judgment that the State now challenges.

Initially, we note that there are no contested issues of fact in this case. The State presented evidence regarding the dry and dangerous conditions of the summer of 1998, and Appellees did not dispute that fact. Based on that and the parties’ stipulation as to the amount of damages, the only issue before this court is whether, as a matter of law, Executive Order 98-165 resulted in a compensable taking of Appellees’ inventories. After applying the three factors promulgated by the United States Supreme Court in Penn Central Transportation Co. v. City of New York, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978), we conclude that it did not.

The Fifth Amendment to the United States Constitution provides that private property shall not “be taken for public use without just compensation.” This most often implicates the eminent domain power of the state exercised in the taking of title to real property from an individual for a public use. However, the courts have interpreted this guaranty to apply not only to real property but to personal property as well. See, e.g., Andrus v. Allard, 444 U.S. 51, 100 S.Ct. 318, 62 L.Ed.2d 210 (1979) (addressing the issue of whether the Eagle Protection Act and the Migratory Bird Treaty Act amounted to a compensa-ble taking of the personal property of ap-pellees who were engaged in the trade of Native American artifacts partially composed of bird feathers). Additionally, this protection was originally understood to apply to direct appropriations of property, i.e., situations in which an owner was permanently deprived of the title to his or her property. However, in Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922), the United States Supreme Court ruled that to restrain the use of private property by regulation in conjunction with the state’s police power also might result in a compensable taking. The Court concluded that “if regulation goes too far[,] it will be recognized as a taking.” Id. at 415. But the Court offered little insight in Pennsylvania Coal into when and under what circumstances a regulation goes too far.

However, in Penn Central, 438 U.S. 104, 98 S.Ct. 2646, 57 L.Ed.2d 631 (1978) the Court set forth three factors to be considered in determining whether a regulation amounts to a compensable taking. In that case, the owners of certain real property in downtown Manhattan had plans to expand a building that sat on the property by constructing additional stories above an existing rail station. Id. at 116. The City of New York denied the permits for the construction, citing the historic preservation plan that the city had adopted pursuant to its police power. Id. at 117. The property owners argued that denying them the use of their property by the restrictions imposed by the historic plan resulted in a compensable taking of their property. Id. at 119.

In addressing the owners’ argument, the Supreme Court set forth the following three factors to be considered in determining whether there has been a compensable taking: (1) “[t]he economic impact of the regulation on the claimant,” (2) “the character of the governmental action,” and (3) “the extent to which the regulation has interfered with distinct investment-backed expectations.” Penn Central, 438 U.S. at 124. Applying these three factors to the instant case, we conclude that the executive order here did not amount to a com-pensable taking.

First, the limitation on the sale of the fireworks for a two-week period was not a total denial of the value of the property to Appellees. Appellees maintained their ownership of their fireworks inventories, had the right to transfer their inventories to an out-of-state location where sales were permitted, and in fact did sell the same inventories after the expiration of the two-week ban on sales. Appellees were not denied the value of their property, only the profits that might have been earned in the State of Florida during that specific time period — profits that ultimately were realized by the subsequent sale of the assets.

Second, with regard to the character of the government action, the executive order here was, as Appellees stipulated below, a valid exercise of the state’s police power. The need for the limitation was the dangerous conditions that temporarily existed in the state at that particular time. Such a temporary limitation on the right to sell required by the widespread dangerous conditions mitigates against this being considered a compensable taking. See Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 426, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) (“As Penn Central affirms, the Court has often upheld substantial regulation of an owner’s use of his property where deemed necessary to promote the public interest.”); see also Keshbro, Inc. v. City of Miami, 801 So.2d 864 (Fla.2001) (concluding that a city’s regulation temporarily prohibiting the total use of a motel was not a compensable taking when done so under the exercise of the city’s police power).

Finally, the limitation was not an interference with Appellees’ investment-backed expectations. Regardless of the executive order, the sale of fireworks is a heavily regulated business. In fact, Appellees complain that one of the reasons they could not easily transport the inventory for sale elsewhere is that Florida’s closest neighbor, the State of Georgia, had banned all sales. As such, it would be reasonable to conclude that Appellees were on notice of the possibility, if not the probability, that further regulations may be enacted from time to time. See Chang v. United States, 859 F.2d 893 (Fed.Cir.1988) (concluding that there was no compensable taking of certain contractual rights where President Reagan’s imposition of sanctions against Libya could not have interfered with investment-backed expectations when such a possibility was or should have been known prior to making the contracts); see also Concrete Pipe & Prods. of Cal., Inc. v. Constr. Laborers Pension Trust for S. Cal., 508 U.S. 602, 113 S.Ct. 2264, 124 L.Ed.2d 539 (1993) (denying compensable taking claim for the interference of contractual rights involving ERISA when Congress changed the rules of the program); cf. Lucas v. South Carolina Coastal Council, 505 U.S. 1003, 1027-28, 112 S.Ct. 2886, 120 L.Ed.2d 798 (1992) (“[B]y reason of the State’s traditionally high degree of control over commercial dealings, [the property owner] ought to be aware of the possibility that new regulation might even render his property economically worthless (at least if the property’s only economically productive use is sale or manufacture for sale).” (citing Andrus, 444 U.S. at 66-67)).

In Andrus, the Court considered a limitation on the sale of Native American artifacts and determined that the limitation was not a compensable taking.

[T]he denial of one traditional property right does not always amount to a taking. At least where an owner possesses a full “bundle” of property rights, the destruction of one “strand” of the bundle is not a taking, because the aggregate must be viewed in its entirety. In this case, it is crucial that appellees retain the rights to possess and transport their property....

444 U.S. at 65-66 (citations omitted). Although the Andrus Court noted that the restriction at issue there denied the owner of the “most profitable” use of the property, it concluded that such fact was not dispositive. Id. at 66. The Court held that “the simple prohibition of the sale of lawfully acquired property in this ease does not effect a taking in violation of the Fifth Amendment.” Id. at 67-68.

Here, the sale of fireworks is highly regulated due to the potential danger resulting from their discharge. Appellees voluntarily invested in their inventories knowing that the regulation of the sale and use of such was subject to change from time to time and from locality to locality. The temporary limitation on the sale of the fireworks under these facts does not rise to such, an interference with investment-backed expectations as to constitute a com-pensable taking.

Therefore, our application of the Penn Central factors to the instant case leads us to conclude that the executive order at issue did not amount to a compensable taking of Appellees’ fireworks inventories. Accordingly, we reverse the trial court’s final judgment.

Reversed.

KHOUZAM and CRENSHAW, JJ., Concur.


author: SILBERMAN, Chief Judge.

text:
    Abel LIMONES, Sr., and Sanjuana Castillo, individually and as natural parents and next friends of Abel Limones, Jr., Appellants, v. SCHOOL DISTRICT OF LEE COUNTY and School Board of Lee County, Appellees.
    No. 2D11-5191.
    District Court of Appeal of Florida, Second District.
    Feb. 6, 2013.
    Rehearing Denied April 8, 2013.

      Matthew Moore and David C. Rash of Aters Law Firm, Miami, for Appellants.
    J. Matthew Belcastro and Traci T. McKee of Henderson, Franklin, Starnes & Holt, P.A., Fort Myers, for Appellees.
   SILBERMAN, Chief Judge.

Abel Limones, Sr., and Sanjuana Castillo, Plaintiffs below in this negligence action they filed on behalf of their teenage son Abel Limones, Jr., seek review of the final summary judgment in favor of the defendant, the School Board of Lee County. This tragic case involves severe brain injury to Abel, a high school athlete. The cause of action arose when Abel collapsed on the field during a high school soccer game. When he stopped breathing and had no discernible pulse, his coach and a nurse bystander performed CPR. But Abel was not resuscitated until emergency personnel arrived and used a defibrillator. Plaintiffs alleged that the School Board was negligent in failing to maintain an automated external defibrillator (AED) on or near the soccer field, to make it available for use, or in failing to actually use an AED on Abel. Plaintiffs also alleged that this negligence caused Abel to suffer severe and permanent brain damage. In the final summary judgment, the court determined that the School Board did not have a duty to make available, diagnose the need for, or use an AED and that, even if it did, the School Board was statutorily immune from an action on that basis. We affirm.

The soccer game between East Lee County High School and Riverdale High School took place at Riverdale’s soccer field on November 13, 2008. Abel, who was playing for East Lee County, abruptly collapsed on the field at about 7:40 p.m. Abel lost consciousness, stopped breathing, and had no discernible pulse within three minutes. Riverdale’s Assistant Principal called 9-1-1 at 7:43 p.m. while East Lee County’s coach, Thomas Busatta, and a nurse bystander performed CPR. Coach Busatta testified that he called for an AED but no one responded. No one else, including the nurse who was helping Coach Busatta perform CPR, said they heard Coach Busatta call for an AED. Sadly, it appears that there was an AED on a golf cart that was parked near the soccer field’s end zone. The Fire Department arrived at the soccer field at 7:50 p.m. and used a defibrillator to deliver a shock to Abel’s heart with no success. Emergency Medical Service personnel arrived on the scene almost simultaneously and changed out the Fire Department’s defibrillator for their own. They delivered four additional shocks and administered a series of intravenous medications. Abel was resuscitated at 8:06 p.m., which was twenty-three minutes after the 9-1-1 call.

Plaintiffs procured an expert who submitted an affidavit ascribing Abel’s brain damage to the failure to use an AED sooner as follows:

Had an AED been provided to Thomas Busatta when he requested it and had it been used on Abel Limones, Jr. within 1 to 2 minutes of the time he became unconscious, stopped breathing, and had no pulse, Abel Limones, Jr. would not have required so many additional defi-brillations or shocks and would not have sustained the permanent and catastrophic anoxic brain injury leaving him in a near persistent vegetative state requiring life-long 24 hour care.

In accordance with this expert opinion, Plaintiffs pursued two separate negligence theories below. First, they asserted a general negligence claim against the School Board based on its common law duty to provide a reasonably safe environment for Abel. Second, they asserted a negligence claim based on the School Board’s failure to adhere to the terms of section 1006.165, Florida Statutes (2008), which governs AED requirements at certain public schools. The trial court granted summary judgment based on its conclusions that there was no common law duty to make available, diagnose the need for, or use an AED and that section 1006.165 likewise did not establish a cause of action for negligence. The trial court also concluded that, even if there was such a duty, the School Board was entitled to immunity under the Cardiac Arrest Survival Act.

These are legal questions that we review de novo. See Univ. of Fla. Bd. of Trs. v. Stone, 92 So.3d 264, 267 (Fla. 1st DCA 2012) (holding that the issue of statutory immunity from a negligence action is reviewed de novo); L.A. Fitness Int'l, LLC v. Mayer, 980 So.2d 550, 557 (Fla. 4th DCA 2008) (holding that review of a trial court’s ruling regarding the existence of a duty of care is de novo).

I. Common Law Duty

A. School Board’s Duty to Student Athletes

Florida courts generally recognize a school’s duty to adequately supervise its students, and this duty extends to athletic events. See Leahy v. Sch. Bd. of Hernando Cnty., 450 So.2d 883, 885 (Fla. 5th DCA 1984) (citing Rupp v. Bryant, 417 So.2d 658 (Fla.1982)). This common law duty arises from the idea that the school stands “ ‘partially in place of the student’s parents.’ ” Id. (quoting Rupp, 417 So.2d at 666). The school’s duties regarding athletic activities include (1) providing adequate instruction, (2) supplying appropriate equipment, (3) reasonably selecting or matching athletes, (4) properly supervising the event, and (5) utilizing appropriate post-injury efforts to protect the injury against aggravation. Id. Thus, as specifically relevant to this case, the School Board had a common law duty to use appropriate post-injury efforts to protect Abel’s injury against aggravation.

Once a determination is made that a duty to use appropriate post-injury efforts exists, the court must determine the scope and extent of the duty. Cerny v. Cedar Bluffs Junior/Senior Pub. Sch., 262 Neb. 66, 628 N.W.2d 697, 703 (2001). Generally this standard is an objective “reasonably prudent person standard,” which is what a reasonably prudent person would have done under the circumstances. Id. at 703-04. But the analysis of the scope and extent of a school’s duty in a sports setting depends largely on the particular facts and the circumstances of the case. Id.

The question before this court is whether reasonably prudent post-injury efforts for Abel would have required making available, diagnosing the need for, or using an AED. Florida’s district courts have not addressed a school district’s duties in this context. But the Fourth District has concluded that a business owner does not have a common law duty to provide CPR or maintain or use an AED when a business invitee collapses while exercising at the owner’s facility. See L.A. Fitness, 980 So.2d at 559, 562.

In L.A. Fitness, a health club patron suffered cardiac arrest and collapsed during his workout. Id. at 552. An employee of the health club, who was certified in CPR, believed the patron was having a stroke or seizure. 9-1-1 was called, but CPR was not performed on the patron. Id. at 552-53. The health club did not have an AED on the premises. Id. at 555.

In determining whether the health club had a duty to perform CPR or to maintain or use an AED, the court looked to the Restatement of Torts. Id. at 557. The Restatement provides “ ‘that a proprietor is under an ordinary duty of care to render aid to an invitee after he knows or has reason to know the invitee is ill or injured.’” Id. (quoting Restatement (Second) of Torts § 314A (1965)). The Restatement described this duty as requiring a proprietor to “ ‘give such first aid as he reasonably can, and take reasonable steps to turn the sick man over to a physician, or to those who will look after him and see that medical assistance is obtained.’ ” Id. (quoting Restatement (Second) of Torts § 314A cmt. f (1965)).

The Fourth District noted that courts from other jurisdictions have uniformly refused to extend a business owner’s duty from calling for medical assistance within a reasonable amount of time to providing “medical care or medical rescue services” which included services like using an AED, applying oxygen, or intubation. See L.A. Fitness, 980 So.2d at 558-59 (and cases cited therein). And the court analogized performing CPR to the use of the Heimlich maneuver, which courts in other jurisdictions have held was not included in a business owner’s duty to render aid to invitees. See id. at 559-60 (and cases cited therein).

For further guidance, the Fourth District looked to a Connecticut case in which the court examined the American Red Cross and American Heart Association’s Guidelines for First Aid. Id. at 559 (citing Pacello v. Wyndam Int’l, 41 Conn. L. Rptr. 193 (Conn.Super.Ct.2006)). Based on the absence of CPR from those guidelines, the court concluded that CPR is something more than first aid. The court explained that, while CPR is “widely known” and “relatively simple,” it nonetheless requires training and re-certification. Id. Thus, while CPR is routine for emergency medical responders, “non-medical employees certified in CPR remain laymen and should have discretion in deciding when to utilize the procedure.” Id. The court applied this rationale to the maintenance and use of an AED as well. Id. at 561-62.

We are unable to distinguish L.A. Fitness and the cases cited therein in a manner that would support finding a common law duty on behalf of the School Board in this case. The fact that a school stands partially in the place of parents does not create a duty on the school to itself provide medical care or rescue such as through the use of an AED. Also, although the sources of the legal duty are different for school boards and business owners, the circumstances under which the AEDs would be provided and used are strikingly similar. Thus, we conclude that under the current state of the law, the School Board had no common law duty to make available, diagnose the need for, or use an AED on Abel. But we caution that the existence of a duty to utilize appropriate post-injury efforts is not necessarily the same for all high school sports or athletes and is definitely not a stagnant proposition. As one commentator has aptly noted, “It may also not be enough for school districts-to assume that what may have been acceptable in the past will continue to be acceptable in the future. The law surrounding the duty to provide prompt medical [care] is still evolving.” John P. Lenich, J.D., One Strike and You’re Out: An Overview of Negligence and High School Athletics, 40 Ed. Law Rep. 1, 31 (1987).

B. Undertaker’s Doctrine

Plaintiffs alternatively argue that the School Board undertook a duty to safeguard Abel by acquiring an AED and training personnel in its use and that it failed to safeguard him by not using the AED. “It is clearly established that one who undertakes to act, even when under no obligation to do so, thereby becomes obligated to act with reasonable care.” Union Park Mem’l Chapel v. Hutt, 670 So.2d 64, 66-67 (Fla.1996). This doctrine, which is commonly referred to as the “undertaker’s doctrine,” is codified in the Restatement of Torts as follows:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other’s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other’s reliance upon the undertaking.

Restatement (Second) of Torts § 323 (1965).

However, Plaintiffs have failed to establish that the School Board’s action in acquiring the AED and training personnel in its use compelled the School Board to ensure that the AED would be used in these circumstances. And Plaintiffs failed to show that the School Board’s acquisition of the AED and its training procedures either increased the risk of harm to Abel or caused Abel to rely upon such acquisition or training to his detriment. See Rotolo v. San Jose Sports & Entm’t, LLC, 151 Cal.App.4th 307, 59 Cal.Rptr.3d 770, 792 (2007) (rejecting application of undertaker’s doctrine to create a duty to make an AED available and/or use it on a teenage hockey player based on a hockey arena’s installation of an AED therein). Thus, the undertaker’s doctrine is inapplicable.

II. Duty Under Section 1006.165

Section 1006.165, Florida Statutes (2008), governs AED requirements at pub-lie schools that are part of the Florida High School Athletic Association (FHSAA), such as Riverdale and East Lee County. That section provides as follows:

(1) Each public school that is a member of the Florida High School Athletic Association must have an operational automated external defibrillator on the school grounds. Public and private partnerships are encouraged to cover the cost associated with the purchase and placement of the defibrillator and training in the use of the defibrillator.
(2) Each school must ensure that all employees or volunteers who are reasonably expected to use the device obtain appropriate training, including completion of a course in cardiopulmonary resuscitation or a basic first aid course that includes cardiopulmonary resuscitation training, and demonstrated proficiency in the use of an automated external defibrillator.
(3) The location of each automated external defibrillator must be registered with a local emergency medical services medical director.
(4) The use of automated external defibrillators by employees and volunteers is covered under s. 768.13 and 768.1325.

§ 1006.165. There are no reported eases citing this statute, but its terms are very succinct. The only requirements that subsections (1) through (3) impose are to have an operational AED on school grounds, to register its location, and to provide appropriate training. We decline to decide today whether subsections (1) through (3) create a private cause of action for negligence because there is no question that the School Board complied with these requirements.

The body of section 1006.165 does not set forth requirements regarding the school’s use of the AED it is required to maintain. Instead, subsection (4) provides that the “use” of AEDs in FHSAA high schools is governed by sections 768.13 and 768.1325. We therefore look to these sections to determine whether the School Board had a duty to make available, diagnose the need for, or use an AED in the circumstances of this case.

III. Duty Under Sections 768.13 and 768.1325

Section 768.13, Florida Statutes (2008), is known as the “Good Samaritan Act.” § 768.13(1). This statute provides immunity from civil liability to any person “who gratuitously and in good faith renders emergency care or treatment” under certain circumstances in emergency situations outside a hospital or doctor’s office. See § 768.13(2)(a). To qualify for such immunity,, the person rendering aid must have done so without objection by the patient and must have “act[ed] as an ordinary reasonably prudent person would have acted under the same or similar circumstances.” Id. This immunity extends to both acts and omissions and includes diagnosis. § 768.13(2)(b)2. While this provision requires a person who undertakes a duty to render aid to do so reasonably, this provision does not set forth a duty to render aid. See L.A. Fitness, 980 So.2d at 561 n. 2.

Section 768.1325, Florida Statutes (2008), is known as the “Cardiac Arrest Survival Act.” § 768.1325(1). This statute provides immunity from civil liability for those who use or attempt to use an AED and for “any person who acquired the device and makes it available for use.” See § 768.1325(3). Immunity applies provided that harm from the use or attempted use is.not attributable to the person’s (1) failure to maintain and test the AED or (2) failure to provide any appropriate training in the use of the AED. Id. And there are certain other exceptions to immunity that are not at issue given the facts alleged in this case. § 768.1325(4).

As with the immunity provision in section 768.13, section 768.1325 does not create a legal duty to render aid through the use of an AED. While immunity in subsection (3) extends to those who acquire an AED and “make[ ] it available for use,” the statute does not require the use of an AED in a given situation. Cf. Atcovitz v. Gulph Mills Tennis Club, Inc., 571 Pa. 580, 812 A.2d 1218, 1224 (2002) (“Simply, the existence of a civil immunity provision for Good Samaritans who use an AED in an emergency situation cannot impose a duty on a business establishment to acquire, maintain, and use such a device on its premises.”).

Furthermore, in order for a statute to set forth a private cause of action, the legislature must have clearly set forth such an intent therein. Murthy v. N. SinHa Corp., 644 So.2d 983, 985-86 (Fla.1994) (“In general, a statute that does not purport to establish civil liability but merely makes provision to secure the safety or welfare of the public as an entity, will not be construed as establishing a civil liability.” (quoting Moyant v. Beattie, 561 So,2d 1319, 1320 (Fla. 4th DCA 1990))); see also Miulli v. Fla. High Sch. Athletic Ass’n, 998 So.2d 1155, 1157 (Fla. 2d DCA 2008) (holding that statute which requires FHSAA to adopt bylaws that require students to pass a medical evaluation prior to participating in high school sports does not create a private cause of action). In fact, section 768.1325(5) expressly declares that it “does not establish any cause of action.”

IV. Immunity Under the Cardiac Arrest Survival Act

As discussed previously, this statute provides immunity from civil liability for “any person who acquired the device and makes it available for use.” § 768.1325(3). Plaintiffs assert that the School Board is not entitled to immunity under this statute because the School Board is not a “person” as contemplated by the Cardiac Arrest Survival Act and did not make the AED available for use in this case. We reject the first argument and conclude that the School Board qualifies as a “person” under this statute. See § 1.01(3), Fla. Stat. (2008) (“The word ‘person’ includes individuals, children, firms, associations, joint adventures, partnerships, estates, trusts, business trusts, syndicates, fiduciaries, corporations, and all other groups or combinations”). As to Plaintiffs’ second argument, the School Board made the AED available for use by having it in the end zone of the soccer field. The fact that bystanders did not hear or respond to Coach Busatta’s call for an AED does not eliminate the School Board’s immunity under the statute.

V. Conclusion

In conclusion, the School Board’s common law duty to use appropriate post-injury efforts to protect Abel’s injury against aggravation did not include a duty to maintain, make available, or use an AED. And the School Board did not voluntarily undertake the duty to use an AED by acquiring one and providing training on its use as required by section 1006.165. Furthermore, section 1006.165 does not require the School Board to do anything more than have an operational AED on school grounds, register its location, and provide appropriate training. And neither the Good Samaritan Act nor the Cardiac Arrest Survival Act sets forth a duty to use an AED. Finally, even if there had been such a duty, the School Board would have been entitled to immunity from civil liability under the Cardiac Arrest Survival Act because under the terms of that Act, it acquired an AED and made it available for use by having it in the end zone of the soccer field. We therefore affirm the final summary judgment entered by the trial court in favor of the School Board.

Affirmed.

CASANUEVA and BLACK, JJ„ Concur.

      . Although Plaintiffs named both the School District of Lee County and the School Board of Lee County as defendants, the trial court and opposing counsel only recognized the School Board of Lee County as a proper defendant. On appeal, Plaintiffs concede that the School Board of Lee County is the proper defendant and adopt the trial court's position in its final summary judgment order that the School District of Lee County, to the extent it may exist, is an “a/k/a” of the School Board of Lee County.

      . The emergency responders who first arrived used a "semi-automatic defibrillator,” not an automated external defibrillator, or AED.

      . See Wallace v. Dean, 3 So.3d 1035, 1052 (Fla.2009).


author: VILLANTI, Judge.

text:
    ROI THI DO and Chau Thai Ha, Appellants, v. LINCOLN BENEFIT LIFE COMPANY, a foreign corporation, Appellee.
    No. 2D12-2142.
    District Court of Appeal of Florida, Second District.
    Feb. 15, 2013.
    Rehearing Denied April 8, 2013.

      Andrea T. Smith and Timothy E. Kiley of Peterson & Myers, P.A., Lakeland, for Appellants.
    Monterey Campbell, III, and Kristie Hatcher-Bolin of GrayRobinson, P.A., Lakeland; Grace Yang of GrayRobinson, P.A., Tampa; and Cleve J. Glenn and Christina M. Putnam of Seyfarth Shaw, LLP, Houston, TX, for Appellee.
   VILLANTI, Judge.

Roi Thi Do and Chau Thai Ha, the plaintiffs below, appeal the trial court’s summary judgment in favor of Lincoln Benefit Life Company. We affirm because there were no material issues of disputed facts precluding summary judgment on the issues of whether the application for life insurance was signed by the insured and whether the insured did not consent in writing to the insurance contract and its terms.

This case arose from Lincoln’s refusal to pay life insurance benefits to Thi Do and Thai Ha. Thi Do was the daughter of Van Do, an elderly Vietnamese man who sought to purchase a replacement life insurance policy in 2008. Thai Ha was Thi Do’s boyfriend; they had a child together. Thi Do and Thai Ha own a business located in the same shopping center as an insurance agent, Mr. Horvath. Thai Ha had used Horvath’s services in the past, so he arranged a meeting between Van Do and Horvath in Horvath’s office to discuss life insurance in November 2008.

Thai Ha, Van Do, Van Do’s wife, and Horvath were present at the meeting, which took place in Horvath’s office. Upon arriving at the meeting, Thai Ha introduced Van Do and his wife as his “mother-in-law” and “father-in-law.” Although the parties dispute exactly what information was exchanged at this meeting, some facts are undisputed: (1) Thai Ha served as translator for Van Do and his wife at the meeting because he had better command of the English language; (2) Van Do and his wife left the meeting without signing an application for life insurance; (3) Van Do did not sign an application at the meeting because he needed time to think about the purchase; and (4) Van Do did not meet with or speak to Horvath again after this meeting.

According to Thai Ha, a week or so after the meeting Van Do called him on the phone and told him to “go ahead and sign for him.” Thai Ha then contacted Horvath and told him that Van Do wanted to purchase the life insurance policy. Horvath filled out the insurance application, gave Thai Ha a copy of the application, and mailed another copy of it to Van Do. It is undisputed that Van Do did not sign, the insurance application. Instead, Thai Ha signed Van Do’s name to the insurance application and delivered it to Horvath without disclosing that he had signed the form. Thai Ha subsequently signed an amendment to the insurance application and other documents related to the application. Thi Do and Thai Ha were the beneficiaries of Van Do’s $500,000 policy.

After receiving the application for insurance, the insurance company conducted a telephonic interview of the person who they thought was the prospective insured, Van Do. Thai Ha posed as Van Do during that interview and answered Lincoln’s questions, never disclosing to Lincoln’s representative that he was not speaking with Van Do himself.

Lincoln also required a paramedical exam of prospective insureds, and Van Do submitted to that exam at his residence on January 6, 2009. The exam was conducted by an independent third party, ExamOne, a subsidiary of Quest Diagnostics. As part of the exam, ExamOne obtained Van Do’s blood and urine samples and he underwent an electrocardiogram. ExamOne required Van Do to sign an ExamOne consent form. It is undisputed that this ExamOne consent form was the only document linked to the insurance application process which Van Do actually signed. The consent form reflected that ExamOne was gathering medical information from Van Do because he had applied for $500,000 in life insurance from Lincoln. The consent form contained no substantive information regarding the terms of the life insurance policy. The form stated, “I voluntarily consent to the testing of my blood, urine and/or oral fluid specimen(s).... If a blood specimen(s) was drawn, I did voluntarily consent to the withdrawal of blood from me by needle or lancet.”

Lincoln issued the life insurance policy in February 2009, and Van Do paid the premiums on the policy via an automatic debit to his bank account. In late 2009, Van Do was diagnosed with terminal cancer and decided to return to his native Vietnam, where he died on March 27, 2010. Because the death occurred during the first two years after issuance of the policy, Lincoln conducted a routine investigation. As a result, Lincoln learned that the signature on the application for insurance was not Van Do’s. Lincoln then rescinded the policy, returned the $18,000 that Van Do had paid in premiums, and declined to pay survivor benefits to Thi Do and Thai Ha.

Thereafter, Thi Do and Thai Ha filed suit against Lincoln asserting claims for declaratory judgment and breach of contract. After discovery, the parties filed motions for summary judgment. Lincoln’s motion argued that the plaintiffs’ recovery under the policy was barred because Van Do did not sign the policy documents and did not provide any other form of written consent to the policy and its terms prior to issuance of the policy. Specifically, Lincoln argued that there had been no compliance with section 627.404(5), Florida Statutes (2011), which required written consent to the insurance contract and its terms. Therefore, Lincoln argued it could rescind the policy. For the same reason, Lincoln argued that Thi Do and Thai Ha’s breach of contract and declaratory judgment claims failed because there was no binding insurance contract.

Thi Do and Thai Ha countered that Van Do had signed the ExamOne consent form and that the form was part of the insurance application. They argued Van Do’s signature on the ExamOne form was tantamount to his signature on the application, thereby satisfying the requirements of section 627.404(5). After a summary judgment hearing, the trial court granted summary judgment in favor of Lincoln, holding:

In their respective arguments, the Parties contested whether VAN DO’s execution/signing of the EXAMONE Form constitutes “written consent” by the insured to legally procure life insurance, regardless if the EXAMONE Form is part or not part of the Application, under section 627.404(5), Florida Statutes (2012)....
The Court finds that VAN DO did NOT apply for NOR consented in writing to the Application and Insurance Policy and its terms; consequently the Insurance Policy, a contract of insurance with VAN DO as the primary insured, was NOT effectuated.

This appeal followed.

Thi Do and Thai Ha make two arguments on appeal. First, the trial court erred in finding that Van Do did not consent in writing to the insurance application because the ExamOne paramedical exam consent form signed by Van Do met the statutory written consent requirement. Second, the trial court erred in entering summary judgment based upon the issue of whether Van Do “applied for” the life insurance policy because that issue was not presented to the court for determination. For the reasons explained below, we reject both arguments.

Section 627.404(5), Florida Statutes (2011), reads:

A contract of insurance upon a person ... may not be effectuated unless, on or before the time of entering into such contract, the person insured, having legal capacity to contract, applies for or consents in writing to the contract and its terms....

(Emphasis added.) In concluding that Van Do had not applied for, or consented in writing to, the insurance contact and its terms as required by the statute, the trial court was guided by the case of Hilfiger v. Transamenca Occidental Life Insurance Co., 256 Va. 265, 505 S.E.2d 190 (1998). Hilfiger is, in fact, very similar to this case.

In Hilfiger, Mr. Hilfiger Junior filled out an application for life insurance upon the life of his father, Mr. Hilfiger Senior. Id. at 191. Junior answered all questions on his father’s behalf and signed Senior’s name in the application form. Id. The insurance agent signed the application as a “witness to all signatures.” Id. Senior neither saw the life insurance application nor gave Junior written consent to sign for him. Id. As in this case, Junior claimed that he and Senior had talked about the policy and that Senior gave him oral authorization to take out the policy, which named Junior as beneficiary. Id.

Senior underwent a medical exam in connection with the insurance application. As in this case, during that exam Senior signed a consent form called “PART II of an Application for Insurance to the Trans-america Occidental Life.” Id. The form did not identify the type of insurance applied for, who the proposed beneficiary was, or the amount of coverage sought and, as in this case, Junior also signed an amendment to the insurance policy. Id. Virginia also has a statute similar to Florida’s:

No contract of insurance upon a person shall be made or effectuated unless at the time of the making of the contract the individual insured, being of full age and competent to contract for the insurance contract (i) applies for insurance, or (ii) consents in writing to the insurance contract.

Id. at 192 (emphasis added). When Senior died and the insurance company refused to pay the beneficiary, Junior sued in federal court. Id. The federal court concluded that the policy was void because its execution did not comply with the statute and granted summary judgment in favor of the insurance company. Id. It then certified a question to the Virginia Supreme Court.

In addressing the certified question, the Virginia Supreme Court explained that the purpose of the statute was to require unequivocal evidence that an insured approved of the contract of insurance on his life. Id. The court rejected the argument that Senior’s participation in the medical exam and his signature on the medical exam consent form somehow reflected written consent to the insurance contract. Id. at 193. Although the medical consent form stated that it was a part of an application for insurance, it contained none of the terms of the insurance contract and could not, therefore, be considered as consent in writing to the insurance contract. Id. The Virginia Supreme Court also held that Senior’s oral authorization for his son to take out the policy did not constitute “ ‘applying’ for the policy” as required by the statute because “[i]f oral authorization alone were enough to satisfy the application requirement, the written consent alternative [of the statute] would be rendered superfluous.” Id. at 192.

We agree with the reasoning in Hilfiger and conclude that Van Do’s written consent to the paramedical exam provided by a third party, ExamOne, was not “consent in writing” to the life insurance contract and its terms, as required by section 627.404(5). The consent form lacked critical information such as the name of the beneficiaries, the terms of the insurance contract, pricing, or any other substantive terms of the insurance contract. We also agree with Hilfiger ⅛ reasoning on the second issue and conclude that Van Do’s purported oral authorization of Thai Ha to sign the insurance application on his behalf did not constitute “applying for” the insurance policy as contemplated by section 627.404(5) and, consequently, cannot be the basis of a contract for life insurance.

We reject Appellants’ additional argument that the trial court erred in deciding that Van Do had not “applied for” life insurance because that issue was not presented to the court for resolution. They argue that the only issue before the trial court was whether Van Do had consented in writing to the terms of the policy. In reality, the arguments presented below, at times, mixed the two issues — whether Van Do had applied for or consented in writing to the insurance contract and its terms. For example, Thi Do and Thai Ha’s response to Lincoln’s summary judgment motion specifically argued that the parties had moved for summary judgment only on the issue of whether Van Do had consented in writing to the contract and that “[t]he issue of whether the insured ‘applied for’ the contract is a matter not before this Court on either of the cross motions for partial summary judgment submitted by the parties.” Yet, their response in opposition to summary judgment also argued that the ExamOne medical consent form was part of the insurance application and that Van Do’s signature on the consent form was tantamount to his signature on the insurance application. It invited the court to “conclude that the ExamOne Form was part of the application.” Notably, during the summary judgment hearing the trial court asked, “What it really all still boils down to is whether or not the consent or whatever you call it for the physical applies — amounts to an application for insurance.” (Emphasis added.) Appellants responded, “that’s certainly one component of it,” but that a signature on the application was not the sole means of complying with the statutory requirement because, “[ejven if it’s not part of the application all the statute requires is written consent to the contract.” (Emphasis added.) Consequently, from the record as a whole, we conclude that the issue of whether Van Do had “applied for” insurance was not only intertwined with the issue of whether Van Do had “consented in writing” to the insurance contract and its terms, but was astutely argued.

We also note that several cases have rejected Appellants’ contention that the phrase “in writing” only modifies the word “consent” in section 627.404(5) and that nothing in the statute requires the application for insurance to be in writing. In Alleman v. Lincoln National Life Insurance Co., 686 F.2d 1195 (10th Cir.1981), the insured did not sign the insurance application or consent in writing to the insurance policy before she died. Utah had a statute which provided:

No life or disability insurance contract upon an individual ... shall be made or effectuated unless at the time of the making of the contract the individual insured, being of competent legal capacity to contract, in writing applies therefore or consents thereto....

Id at 1196. The beneficiary in Alleman argued that the statute required the individual to either apply in writing or consent, but that consent did not have to be in writing and could be verbal. Id The court rejected this argument, holding that the “in writing” provision applied to both the words “applies” and “consents” in the statute. Id “To hold that the consent could be verbal would seriously undermine any requirement that the application be in writing.” Id; see also Wren v. N.Y. Life Ins. Co., 493 F.2d 839 (5th Cir.1974) (reaching the same conclusion in a case where a Georgia statute stated that a policy of life insurance would not be effectuated unless the individual insured “applies for or consents in writing thereto”). Here, it is undisputed that Van Do did not sign the insurance application itself. We agree with the reasoning in Alleman that the purpose of section 627.404(5) is to put the issue of the insured’s consent beyond all doubt. To hold that Van Do could have applied for insurance verbally would seriously undermine the purpose of the statute.

At oral argument, Appellants noted the language of section 627.404(6), which reads, “For purposes of this section, the signature of the proposed insured ... on the application for insurance shall constitute his or her written consent.” Their argument seemed to be that section (6) confirmed that one can “apply” for insurance without doing so in writing. Therefore, they argued, the term “in writing” in the statute only modified the word “consent” and any other interpretation made the language in section 627.404(6) redundant. We are not persuaded by Appellants’ argument because sections 627.404(5) and (6) can be reconciled without undermining the purpose of the statute and without deviating from the conclusion that the statute requires an insured to either apply in writing or consent in writing to the insurance contract and its terms.

Whenever possible, courts should give full effect to all statutory provisions and should construe related statutory provisions in harmony with one another. Am. Home Assur. Co. v. Plaza Materials Corp., 908 So.2d 360, 368 (Fla.2005) (relying on Unruh v. State, 669 So.2d 242, 245 (Fla.1996)). There are circumstances when an insured is not the one who applies for insurance, such as the case of “corporate-owned life insurance,” where the employer applies for life insurance on an employee’s life and the employer owns the life insurance. See Craig E. Behrenfeld, Employer-Owned, Life Insurance After The Pension Protection Act of 2006, 88 Fla. Bar. J. 47 (Feb. 2009). The employee upon whom the policy is taken need not sign the insurance application — the employer signs it. But section 627.404(5) still requires the employee to consent in writing to the insurance contract and its terms. See generally id.; Tresa Baidas, “Secret” Life Insurance Triggers Suits; Employees Claim Lack of Consent, The National Law Journal (Feb. 2, 2009). But this case involves an individual policy, not a corporate-owned life insurance policy. Section 627.404(6) simply clarifies that if a person signs the insurance application, that signature constitutes written consent to the insurance contract and its terms. Therefore, under section 627.404(5), the insured has to either apply in writing or consent in writing to the insurance contract and its terms.

It is undisputed that Van Do did not sign the insurance application, its amendment, or any other document related to the application. And other than arguing that the ExamOne consent form was part of the insurance application, Appellants presented nothing disputing the fact that Van Do did not apply in writing for insurance. Therefore, once the trial court correctly rejected Appellants’ arguments regarding the third-party ExamOne consent form, it was clear that there was no material disputed issue of fact or law. Thus, we affirm the trial court’s order granting summary judgment in favor of Lincoln.

Affirmed.

NORTHCUTT and MORRIS, JJ, Concur.

      . Lincoln’s policy and practice was to conduct an investigation of a benefits claim when the insured’s death occurred during the initial two-year period after issuance of the life insurance policy.


author: ALTENBERND, Judge.

text:
    Jorge Emanuel MARTINEZ, Appellant, v. STATE of Florida, Appellee.
    No. 2D11-2367.
    District Court of Appeal of Florida, Second District.
    March 8, 2013.
    Rehearing Denied April 29, 2013.

      Robert Charles McClain, Melbourne, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Anne Sheer Weiner, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Jorge Emanuel Martinez appeals an order denying his motion for postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850. The motion contained several claims, but we elect to address only one. Mr. Martinez argues that his attorney at sentencing was ineffective when he improperly conceded that Mr. Martinez did not qualify for consideration under the so-called “Romeo and Juliet Statute,” section 948.04354, Florida Statutes (2008). We reverse the order on appeal with regard to claim three of Mr. Martinez’s motion and require the postcon-viction court to provide him a hearing to determine whether the requirement that he register as a sexual offender should be removed.

Mr. Martinez was charged in 2008 with lewd or lascivious battery for events that occurred on October 31 or November 1, 2006. At the time of the events, Mr. Martinez had just turned eighteen. The victim of this battery was a young girl who was fourteen. The difference in age between Mr. Martinez and his victim was approximately three years and ten months. The record reflects substantial disagreement between the victim’s family and Mr. Martinez as to whether this was a case of inappropriate young love or simply a lewd or lascivious battery.

Mr. Martinez entered a negotiated plea in October 2008. The plea was an open plea conditioned on sentencing as a youthful offender. The court held a sentencing hearing in January 2009 and imposed a youthful offender sentence of two years’ community control followed by four years’ probation. The court designated Mr. Martinez as a sexual offender. Mr. Martinez did not appeal.

The problem in this case first arose at the sentencing hearing. Mr. Martinez’s attorney explained to the court that the presentence investigation and apparently a separate clinical psychologist had recommended that Mr. Martinez not be categorized as a sexual offender. However, Mr. Martinez’s attorney informed the trial court that he had “done some research” and was “disappointed to report that [he did] not believe that Mr. Martinez qualified] under [the Romeo and Juliet] statute.” He explained to the trial court that Mr. Martinez had turned eighteen a day or two before these events and then said: “As the court is, I am sure, aware the Romeo and Juliette [sic] Statute is a statute which applies to individuals with a 4-year gap in age and the defendant or offender required to be under the age of 18.” As a result of this interpretation of the statute, Mr. Martinez’s attorney advised the trial court that his client did not qualify for relief.

Section 943.04354 was enacted in 2007; the subsection describing the persons eligible for consideration states:

(1) For purposes of this section, a person shall be considered for removal of the requirement to register as a sexual offender or sexual predator only if the person:
(a) Was or will be convicted or adjudicated delinquent of a violation of s. 794.011, s. 800.04, s. 827.071, or s. 847.0135(5) or the person committed a violation of s. 794.011, s. 800.04, s. 827.071, or s. 847.0135(5) for which adjudication of guilt was or will be withheld, and the person does not have any other conviction, adjudication of delinquency, or withhold of adjudication of guilt for a violation of s. 794.011, s. 800.04, s. 827.071, or s. 847.0135(5);
(b) Is required to register as a sexual offender or sexual predator solely on the basis of this violation; and
(c) Is not more than 4 years older than the victim of this violation who was 14 years of age or older but not more than 17 years of age at the time the person committed this violation.

Mr. Martinez’s attorney misread paragraph (c) of this subsection; the person who cannot be “more than 17 years of age” is “the victim.” In fact and in law, Mr. Martinez was eligible for consideration under this statute.

Before the present postconviction motion was filed, another attorney for Mr. Martinez apparently filed a motion to modify or reduce his sentence pursuant to Florida Rule of Criminal Procedure 3.800(c). The record in this appeal contains the transcript from the hearing on that motion, but not the motion itself. The attorney was not certain why the court had determined at the original sentencing hearing that Mr. Martinez was not eligible for consideration under section 943.04354. But he read the statute to be applicable only to offenses committed after July 1, 2007. Because this offense occurred in 2006, he did not believe the statute applied, and he asked the trial court to apply the “spirit” of this law. The assistant state attorney agreed that the statute did not apply to offenses committed prior to July 1, 2007. The trial court denied the motion.

Both attorneys at this hearing failed to read the entire statute. Subsection (2) provides procedures for use at sentencing hearings for offenses committed on or after July 1, 2007, which is the date the statute became effective. Subsection (3) provides procedures for earlier offenses, allowing for a petition independent of the sentencing hearing. Mr. Martinez happened to be one of those individuals whose offense occurred before July 1, 2007, and whose sentencing hearing occurred after that date. Technically his case falls within subsection (3), but one would have expected his attorney to have filed the petition to be heard at the sentencing hearing. See Clark v. State, 95 So.3d 986, 989 (Fla. 2d DCA 2012).

In short, Mr. Martinez is and always has been eligible for consideration for removal of the requirement that he register as a sexual offender. Because his attorney and the assistant state attorney both misread the statute, the trial court was told that the statute did not apply. This error was first accurately explained in Mr. Martinez’s rule 3.850 motion for postconviction relief. In denying the motion, the trial court seemed to believe that counsel was not ineffective because counsel raised the issue.

We conclude that counsel was ineffective in failing to read the statute with sufficient care to determine that it applied. To the extent that Mr. Martinez wishes to withdraw his plea, this error does not justify such relief. We conclude, however, that he is entitled to have one hearing pursuant to section 943.04354 where the trial court knows that the statute applies and, thus, can exercise its discretion to either grant or deny relief.

Affirmed in part, reversed in part, and remanded.

BLACK; J., and DARAN, STEPHEN L., Associate Senior Judge, Concur.

      . See 800.04, Fla. Stat. (2008).

      . See § 943.0435, Fla. Stat. (2008).

        .See ch. 2007-209, § 3, at 1912-14, Laws of Fla.

      . It is doubtful that the legislature intends this statute to be addressed by a motion under rule 3.800(c). That rule provides for discretionary relief from the trial court to reduce or modify a sentence for sixty days following the sentencing hearing. Subsections 943.04354(2) and (3) state that a person who is denied removal of this requirement cannot further petition under the rule for such removal. A motion under rule 3.800(c) would seem to be such a further petition.

      . Section 943.04354(2), Florida Statutes (2008) provides:
      (2) If a person meets the criteria in subsection (1) and the violation of s. 794.011, s. 800.04, s. 827.071, or s. 847.0135(5) was committed on or after July 1, 2007, the person may move the court that will sentence or dispose of this violation to remove the requirement that the person register as a sexual offender or sexual predator. The person must allege in the motion that he or she meets the criteria in subsection (1) and that removal of the registration requirement will not conflict with federal law. The state attorney must be given notice of the motion at least 21 days before the date of sentencing or disposition of this violation and may present evidence in opposition to the requested relief or may otherwise demonstrate why the motion should be denied. At sentencing or disposition of this violation, the court shall rule on this motion and, if the court determines the person meets the criteria in subsection (1) and the removal of the registration requirement will not conflict with federal law, it may grant the motion and order the removal of the registration requirement. If the court denies the motion, the person is not authorized under this section to petition for removal of the registration requirement.

      . Section 943.04354(3), Florida Statutes (2008) provides:
      (3)(a) This subsection applies to a person who:
      1. Is not a person described in subsection (2) because the violation of s. 794.011, s. 800.04, or s. 827.071 was not committed on or after July 1, 2007;
      2. Is subject to registration as a sexual offender or sexual predator for a violation of s. 794.011, s. 800.04 or s. 827.071; and
      3. Meets the criteria in subsection (1).
      (b) A person.may petition the court in which the sentence or disposition for the violation of s. 794.011, s. 800.04, or s. 827.071 occurred for removal of the requirement to register as a sexual offender or sexual predator. The person must allege in the petition that he or she meets the criteria in subsection (1) and removal of the registration requirement will not conflict with federal law. The state attorney must be given notice of the petition at least 21 days before the hearing on the petition and may present evidence in opposition to the requested relief or may otherwise demonstrate why the petition should be denied. The court shall rule on the petition and, if the court determines the person meets the criteria in subsection (1) and removal of the registration requirement will not conflict with federal law, it may grant the petition and order the removal of the registration requirement. If the court denies the petition, the person is not authorized under this section to file any further petition for removal of the registration requirement.


author: PER CURIAM.

text:
    Mario S. MALDONADO and Omar Garcia, Appellants, v. Juan ROJAS and Roxanne Rojas, his wife; and Juan Rojas and Roxanne Rojas, as natural parents and legal guardians of Andres Rojas, Daniel Rojas, Cruz Rojas, and Ysabel Rojas, minor children, individually and jointly, Appellees.
    No. 2D11-4320.
    District Court of Appeal of Florida, Second District.
    March 8, 2013.
    Rehearing Denied April 29, 2013.
    Elizabeth C. Wheeler of Elizabeth C. Wheeler, P.A., Orlando, for Appellant Mario S. Maldonado.
    John P. Joy and Kelly M. Corcoran of Walton Lantaff Schroeder & Carson, LLP, Fort Lauderdale, for Appellant Omar Garcia.
    Raymond N. Seaford of Ward Seaford, Tampa, for Appellees.

      . Judge Villanti has been substituted for Judge Whatley, who was on the original panel, and he has reviewed a video recording of the oral argument.

   PER CURIAM.

Affirmed. See C.W. Kistler Co. v. Hotel Martinique, 44 So.2d 288 (Fla.1950); Schlosser v. Perez, 832 So.2d 179 (Fla. 2d DCA 2002); Trout v. Apicella, 78 So.3d 681 (Fla. 5th DCA 2012).

CASANUEVA, KELLY, and VILLANTI JJ„ Concur.


text:
    Brian M. CASEY, Petitioner, v. Michael D. CREWS, Secretary, Florida Department of Corrections, et al., Respondents.
    No. 1D13-0806.
    District Court of Appeal of Florida, First District.
    March 12, 2013.
    Rehearing Denied May 3, 2013.
    Brian M. Casey, pro se, Petitioner.
    No appearance for Respondents.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

LEWIS, CLARK, and RAY, 33., concur.


text:
    Torrie O. SMITH, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-4593.
    District Court of Appeal of Florida, First District.
    March 18, 2013.
    Rehearing Denied May 3, 2013.

      Torrie 0. Smith, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DENIED. Denson v. State, 775 So.2d 288, 289 (Fla.2000) (“[A]n extraordinary writ petition cannot be used to litigate or relitigate issues that were or could have been raised on direct appeal or in prior postconviction proceedings.”).

VAN NORTWICK, ROWE, and MAKAR, JJ., concur.


text:
    Jerome J. FERRIER, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-5066.
    District Court of Appeal of Florida, First District.
    March 18, 2013.
    Rehearing Denied May 6, 2013.
    Nancy A. Daniels, Public Defender, and Pamela D. Presnell, Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   PER CURIAM.

Jerome Ferrier appeals his convictions and sentences for six counts of attempted first degree murder and two counts of attempted second degree murder. With respect to counts IX and X, counts alleging attempted second degree murder, at trial, the trial court gave the standard jury instruction for the lesser included offense of attempted voluntary manslaughter. That instruction provided that one of the elements of attempted voluntary manslaughter is that Ferrier committed an act which was intended to cause the death of the victim.

Recently, the Florida Supreme Court expressly approved our decision in Lamb v. State, 18 So.3d 734, 735 (Fla. 1st DCA 2009), and held that “giving the standard jury instruction on attempted manslaughter by act ... constitutes fundamental error where the defendant is convicted of an offense not more than one step removed from attempted manslaughter.” Williams v. State, — So.3d - (Fla.2013); see also State v. Montgomery, 39 So.3d 252 (Fla.2010). Accordingly, we hold that the trial court committed fundamental error by giving the jury the standard instruction for the lesser included offense of voluntary manslaughter on the attempted second degree murder charges found in counts IX and X. Thus, we reverse the convictions under counts IX and X and remand for a new trial on those counts. We affirm all other issues raised on appeal.

AFFIRMED, in part, REVERSED, in part, and remanded for further proceedings.

VAN NORTWICK, LEWIS, and SWANSON, JJ., concur.


text:
    STATE of Florida, Appellant, v. Kyran Dashoine YOUNG, Appellee.
    No. 2D11-5925.
    District Court of Appeal of Florida, Second District.
    March 20, 2013.
    Rehearing Denied April 30, 2013.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Helene S. Parnés, Assistant Attorney General, Tampa, for Appellant.
    John P. Fleck, Jr., Bradenton, for Ap-pellee.
   PER CURIAM.

The State of Florida appeals the trial court’s order granting Kyran Dashoine Young’s motion to suppress evidence found in his residence pursuant to a search warrant. The affidavit filed in support of the application for a search warrant and the search warrant are identical to those in State v. Jones, 110 So.3d 19 (Fla. 2d DCA 2013), and the trial court addressed the search warrant for these cases simultaneously. For the reasons announced in Jones, we conclude that the affidavit contained sufficient probable cause to support the warrant’s issuance. We therefore reverse the order granting Young’s motion to suppress and remand for further proceedings consistent with Jones.

Reversed and remanded with directions.

CASANUEVA, VILLANTI, and MORRIS, JJ., Concur.


text:
    Terrell D. DUBOSE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D12-5098.
    District Court of Appeal of Florida, First District.
    March 20, 2013.
    Rehearing Denied May 3, 2013.
    Terrell D. Dubose, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, and Trisha Meggs Pate, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

The petition alleging ineffective assistance of appellate counsel is denied on the merits.

WOLF, VAN NORTWICK, and WETHERELL, JJ., concur.


text:
    James Lee BELL, Petitioner, v. STATE of Florida, Respondent.
    No. 1D13-1133.
    District Court of Appeal of Florida, First District.
    March 27, 2013.
    Rehearing Denied May 7, 2013.

      James Lee Bell, pro se, Petitioner.
    Pamela Jo Bondi, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

DISMISSED. See Baker v. State, 878 So.2d 1236 (Fla.2004).

ROWE, RAY, and SWANSON, JJ., concur.


author: MARSTILLER, J.

text:
    James Alvie HARRIS, Appellant, v. STATE of Florida, Appellee.
    No. 1D11-6812.
    District Court of Appeal of Florida, First District.
    March 28, 2013.
    Rehearing Denied May 3, 2013.

      Nancy A. Daniels, Public Defender,.and Shannon L. Doheny, Special Assistant Public Defender, Tallahassee, for Appellant.
    Pamela Jo Bondi, Attorney General, and Donna A. Gerace, Assistant Attorney General, Tallahassee, for Appellee.
   MARSTILLER, J.

James Alvie Harris (“Appellant”) appeals his convictions for felony battery and battery, arguing that they violate double jeopardy. We agree, and reverse the battery conviction.

The State originally charged Appellant with felony battery and domestic battery by strangulation. Count I, charging felony battery, alleged that Appellant

did unlawfully commit battery upon LESLEY M LANG by actually and intentionally touching or striking said person against said person’s will, and caused great bodily harm, permanent disability, or permanent disfigurement to LESLEY M LANG, in violation of Section 784.041, Florida Statutes.

Count II, charging domestic battery by strangulation, alleged that Appellant

did knowingly and intentionally, against the will of LESLEY M LANG, impede the normal breathing or circulation of the blood of LESLEY M LANG, a family or household member, or a person with whom [Appellant] is in a dating relationship, and did create a risk of or cause great bodily harm by applying pressure on the throat or neck of LESLEY M LANG or by blocking the nose or mouth of LESLEY M LANG, in violation of Section 784.041(2)(a) and (3), Florida Statutes.

The evidence adduced at trial showed that Appellant and the victim, his girlfriend, were having an argument on the back patio of their home when Appellant became agitated. He stood up and began shaking the chair the victim was sitting in, causing her to fall and hit her head on the concrete. After the victim stood up, Appellant continued to be physically aggressive by grabbing her arms, pressing her against the house, putting his fingers in her nose and mouth, and spitting on her. The altercation moved from the patio to the yard where Appellant sat on the victim’s chest and proceeded to strangle her, thrice wrapping his hands around her neck and then releasing her. The victim realized then that her clavicle was broken, but she could not say how or when the injury occurred. She also could not remember how or when the pair ended up on the ground in the yard.

The jury found Appellant guilty of felony battery as charged in Count I, and guilty of battery, a misdemeanor and lesser-included offense of domestic battery by strangulation as charged in Count II. The trial court sentenced him to 48 months’ imprisonment followed by 12 months’ community control for the felony battery, and to 12 months’ probation for the battery, consecutive to the first sentence.

Appellant argues that the convictions violate his right to be free from double jeopardy because they arose from a single criminal episode involving one continuous act of battery, with no temporal break between the acts. He argues the convictions further violate double jeopardy principles because the elements of battery are subsumed within felony battery. The State responds that the evidence shows Appellant engaged in six separate acts during the criminal episode, and that the acts are distinguishable spatially, temporally, and in character. Consequently, Appellant’s convictions present no double jeopardy concerns.

‘“The most familiar concept of the term “double jeopardy” is that the Constitution prohibits subjecting a person to multiple prosecutions, convictions and punishments for the same criminal offense.’ ” Partch v. State, 43 So.3d 758, 759 (Fla. 1st DCA 2010) (quoting Valdes v. State, 3 So.3d 1067, 1069 (Fla.2009)); see U.S. Const, amend. V.; Art. 1, § 9, Fla. Const. Multiple convictions and punishments arising out of a single criminal episode thus raise double jeopardy questions.

“[T]he prohibition against double jeopardy does not prohibit multiple convictions and punishments where a defendant commits two or more distinct criminal acts [in one episode].” Hayes v. State, 803 So.2d 695, 700 (Fla.2001) (emphasis in original). But even if the acts are not distinct, there is no constitutional prohibition against multiple punishments “if the Legislature intended separate convictions and sentences for a defendant’s single criminal act[.]” Hayes, 803 So.2d at 699. Section 775.021, Florida Statutes (2010), generally expresses such intent, and provides the framework for analysis:

(4)(a) Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense.... For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.
(b) The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction.... Exceptions to this rule of construction are:
1. Offenses which require identical elements of proof.
2. Offenses which are degrees of the same offense as provided by statute.
3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

Whether the acts committed during a single criminal episode are distinct depends on factors such as whether the acts were separated by a temporal break, intervening acts, or a change in location, and/or whether the defendant formed a new criminal intent between each act. See Partch, 43 So.3d at 761 (citing Hayes, 803 So.2d at 700). The altercation between Appellant and his girlfriend began on the patio of their home where he grabbed her, pushed her, and put his fingers in her nose and mouth, and continued until the pair landed in the yard on the ground with Appellant sitting on his girlfriend choking her. These facts reflect one continuous battery — an uninterrupted series of acts, as opposed to distinct acts separated by time, intervening acts, or different locations. See Olivard v. State, 831 So.2d 823, 823-24 (Fla. 4th DCA 2002) (finding that defendant’s acts occurred in one continuous event where defendant struck victim with a bicycle pump, wrestled him to the ground, and bit his ear off); Gresham v. State, 725 So.2d 419, 420 (Fla. 4th DCA 1999) (viewing defendant’s acts as “a single act” where, during an uninterrupted sequence, defendant pointed a shot gun at her husband, they struggled, he took the gun away, and she grabbed a knife and stabbed him); cf. Saavedra v. State, 576 So.2d 953, 956 (Fla. 1st DCA 1991) (concluding, where defendant sexually assaulted victim near her home and in two different locations in a nearby park, that moving victim to distinguishable locations gave defendant time to pause and reflect between acts).

Finding Appellant’s acts indistinguishable for double jeopardy purposes, we look to section 775.021(4) to determine whether Appellant’s dual convictions nonetheless may stand. The statute provides that an individual shall be punished for all offenses arising out of a single criminal transaction or episode, except offenses that require identical elements of proof, are degrees of the same offense, or are lesser offenses whose elements are subsumed by the elements of the greater offense. See §§ 775.021(4)(b)1.-3., Fla. Stat. (2010). The third exception applies here. Felony battery occurs when a person “(a) [actually and intentionally touches or strikes another person against the will of the other; and (b) [clauses great bodily harm, permanent disability, or permanent disfigurement.” § 784.041(1), Fla. Stat. (2010). Battery occurs when a person “[a]ctually and intentionally touches or strikes another person against the will of the other[.]” § 784.03(1)(a), Fla. Stat. (2010). Because felony battery wholly subsumes battery, section 775.021 precludes punishing Appellant for the lesser offense.

Accordingly, we vacate Appellant’s conviction for misdemeanor battery (Count II). See State v. Barton, 523 So.2d 152, 153 (Fla.1988).

AFFIRMED in part; REVERSED in part.

PADOVANO, MARSTILLER, and SWANSON, JJ„ concur.


author: VAN NORTWICK, J.

text:
    Elizabeth Ann CONWAY, Appellant, v. Michael Warren CONWAY, Appellee.
    No. 1D12-2357.
    District Court of Appeal of Florida, First District.
    April 3, 2013.
    Rehearing Denied May 3, 2013.

      Mark V. Murray, Tallahassee, for Appellant.
    Kristin Adamson, Tallahassee, for Ap-pellee.
   VAN NORTWICK, J.

Elizabeth Ann Conway, the Former Wife, appeals the trial court’s Final Order awarding her $31,850.85 in additional alimony, but declining to award her prejudgment interest or attorney’s fees. As explained below, we affirm the additional alimony award, but reverse and remand on the issues of prejudgment interest and attorney’s fees.

The Former Wife filed a motion to enforce the terms of a Marital Settlement Agreement (MSA) that was incorporated in the Final Judgment of Dissolution of Marriage between her and Michael Warren Conway, the Former Husband, entered in September 2004. Under the MSA, the Former Husband was required to pay the Former Wife 30% of “any bonuses he receives” in 2004, and 20% of any bonuses received each year thereafter as long as his alimony obligation persisted.

Here, the parties agree that resolution of the ease is largely determined by what the parties meant in using the terms “bonus” and “receives” in the MSA. The MSA does not provide whether the Former Wife’s share of the Former Husband’s bonuses should be calculated from his gross or net bonus. The Former Wife argues that “bonus” refers to the gross, pre-tax compensation the Former Husband was paid by his employer, and that “receives” means the gross, pre-tax bonus earned by the Former Husband. By calculating her share from the net bonuses, the Former Wife argues that the Former Husband had significantly underpaid her. The Former Husband argues that “bonus” refers to his net, after-tax remuneration, and that “receives” relates to the money that actually reaches his pocket, because he does not “receive” the amounts withheld from his bonus, which are transferred directly to the government.

This court reviews a trial court’s interpretation of an MSA, as with any contract, under the de novo standard of review. Delissio v. Delissio, 821 So.2d 350, 353 (Fla. 1st DCA 2002). When interpreting a contract, a court should ascribe terms their plain meaning and attempt to place itself as close as possible to the position occupied by the parties at the time the contract was executed, keeping in mind the goal to be accomplished by the agreement. Id. This court has stated that a latent ambiguity occurs in a contract when “the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or extraneous evidence creates a necessity for interpretation or a choice among two or more possible meanings.” Duval Motors Co. v. Rogers, 73 So.3d 261, 265 n. 2 (Fla. 1st DCA 2011). Furthermore, we have observed that a contract’s silence on the parties’ rights can create a latent ambiguity. Southern Crane Rentals, Inc. v. City of Gainesville, 429 So.2d 771, 773 (Fla. 1st DCA 1983).

Parol evidence may be admitted to “explain, clarify, or elucidate the ambiguous term.” Strama v. Union Fidelity Life Ins. Co., 793 So.2d 1129, 1132 (Fla. 1st DCA 2001). Once it is determined that parol evidence is necessary to establish the parties’ intent, the court’s finding as to intent is a question of fact. Centennial Mortgage, Inc. v. SG/SC, Ltd., 772 So.2d 564, 566 (Fla. 1st DCA 2000). A trial court’s findings of fact are reviewed to determine whether they are supported by competent substantial evidence. Hunter v. State, 87 So.3d 1273, 1275 (Fla. 1st DCA 2012). When evaluating intent as to an ambiguous portion of a contract, the court must look to the parties’ “subsequent acts, and the circumstances existing at the time of entering into the contract or the modification.” Russell v. Gill, 715 So.2d 1114, 1116 (Fla. 1st DCA 1998).

Although the MSA appears straightforward and clear after initial reading, the parties’ conflicting interpretations indicate an unanticipated ambiguity. See Duval Motors, 73 So.3d at 265 n. 2. Therefore, the trial court acted appropriately in looking to parol evidence to determine the proper construction in accord with the parties’ original intent.

The trial court heard testimony and argument from both parties as to their intent in drafting the MSA. The trial court also looked to the parties’ conduct follow-mg their divorce. After weighing all the evidence, the trial court found that the parties intended that the Former Wife’s share of the Former Husband’s bonuses be deducted from his net bonus. There was competent substantial evidence to support this finding, such as testimony that the Former Wife took the checks provided to her without protest for many years. The record also contains evidence that for at least two of the years, the Former Wife was in possession of documentation as to the Former Husband’s gross and net bonus amounts, as well as the check representing her additional alimony. Thus, it can reasonably be inferred that she could have ascertained how her additional alimony was being calculated relatively easily, and object to the method if she thought it did not comport with her understanding of the MSA.

There was also competent substantial evidence that the Former Husband underpaid the Former Wife $28,140.85 in additional alimony. The record also reflects that the Former Husband received a $65,000 bonus in 2006 from which he should have paid the Former Wife $8,710, although he actually paid her nothing. The sum of these two amounts is $81,850.85, the amount the trial court ordered the Former Husband to pay the Former Wife. Thus, we affirm the trial court’s interpretation of the MSA, as well as the amount of the additional alimony awarded to the Former Wife.

The second issue on appeal is whether the trial court erred in declining to award the Former Wife prejudgment interest on her additional alimony award. A trial court’s decision on whether or not to award prejudgment interest is reviewed under the de novo standard. Wood v. Unknown Personal Representative of Estate of Burnette, 56 So.3d 74, 76 (Fla. 2nd DCA 2011). We have consistently reversed trial court orders that fail to award prejudgment interest on support arrearages. See Miller v. Miller, 679 So.2d 858 (Fla. 1st DCA 1996); Nelson-Higdon v. Higdon, 680 So.2d 524 (Fla. 1st DCA 1996); Thurman v. Thurman, 637 So.2d 64, 65 (Fla. 1st DCA 1994).

In this case, the trial court did not elaborate in its Final Order as to why it was declining to award any prejudgment interest. The fact that the trial court awarded the Former Wife an amount she was owed from the Former Husband’s bonuses indicates that she had a right to the amounts she was underpaid each year. See Ulander v. Ulander, 824 So.2d 309, 310 (Fla. 1st DCA 2002) (where we reversed a trial court’s failure to award prejudgment interest on a former husband’s support arrear-age, stating that a support obligation enshrined in a final judgment dissolution of marriage becomes a vested right of the payee when the payments are due). Accordingly, we conclude that the trial court erred in failing to grant the Former Wife prejudgment interest on her additional alimony award.

Lastly, we turn to the question of whether the trial court erred by not awarding prevailing party attorney’s fees to the Former Wife pursuant to the MSA. The Florida Supreme Court has explained that “the party prevailing on the significant issues in the litigation is the party that should be considered the prevailing party for attorney’s fees.” Moritz v. Hoyt Enters., Inc., 604 So.2d 807, 810 (Fla.1992). This court has held that “a party may recover attorney’s fees as the prevailing party, if statute or contract so provides.” Bessey v. Difilippo, 951 So.2d 992, 995 n. 6 (Fla. 1st DCA 2007). Moreover, a trial court lacks the discretion to decline to enforce a prevailing party attorney’s fees award once one party is deemed to have prevailed under the contract. Tierra Holdings, Ltd. v. Mercantile Bank, 78 So.3d 558, 568 (Fla. 1st DCA 2011). Paragraph 8.02 of the MSA states, “[i]n any action to enforce the provisions of this Agreement, the prevailing party shall be entitled to recover reasonable attorney’s fees and costs.”

Here, the MSA provides for an award of attorney’s fees to the prevailing party in an action to enforce the MSA. The Former Wife brought a motion to enforce the MSA. The central issue below was whether the Former Wife was due additional alimony from the Former Husband pursuant to the MSA. The trial court found that the Former Wife was entitled to over $30,000 in additional alimony from the Former Husband. Thus, we conclude that the Former Wife was the prevailing party on the significant issue of the underlying action. Accordingly, the trial court erred when it concluded that neither party prevailed and denied the Former Wife attorney’s fees under the MSA.

We AFFIRM the trial court’s award of additional alimony to the Former Wife, but REVERSE the trial court’s decision not to award her prejudgment interest and attorney’s fees as the prevailing party, and REMAND with instructions for the trial court to calculate an appropriate amount of prejudgment interest on the additional alimony award, as well as attorney’s fees for the Former Wife.

LEWIS and SWANSON, JJ., concur.