author: MARSTILLER, J.

text:
    STATE of Florida, Appellant, v. Thomas MURPHY, Appellee. Thomas Murphy, Appellant, v. State of Florida, Appellee.
    Nos. 1D12-4514, 1D12-4810.
    District Court of Appeal of Florida, First District.
    Oct. 9, 2013.
    Rehearing Denied Nov. 7, 2013.

      Pamela Jo Bondi, Attorney General, and Heather Flanagan Ross, Assistant Attorney General, Tallahassee, for State of Florida.
    Nancy A. Daniels, Public Defender, and Richard M. Summa, Assistant Public Defender, Tallahassee, for Thomas Murphy.
   MARSTILLER, J.

The State charged Thomas Murphy with using a computer service to solicit a person believed to be the parent of a child to engage in unlawful sexual conduct with a person believed to be the child, and with thereafter traveling for the purpose of engaging in unlawful sexual conduct with a person believed to be a minor. See § 847.0135(3)(b), (4)(b), Fla. Stat. (2011). The charges arose after Murphy answered an advertisement posted on the Internet site www.craigslist.org (“craigslist”), and arranged to have sex with a 14-year-old girl. The advertisement was placed by a law enforcement officer posing as the girl’s father. A jury found Murphy guilty of both felonies. Departing downward from the 42-month prison sentence indicated on Murphy’s sentencing score sheet, the trial court withheld adjudication and placed Murphy on concurrent terms of nine months in jail, followed by five years’ sex-offender probation.

Seeking reversal of the verdicts and sentences, Murphy argues that: (1) he was entitled to judgment of acquittal because the State presented no evidence establishing he had solicited a person believed to be the parent of a child; (2) law enforcement’s undercover operation constituted objective entrapment; and (3) separate punishments for using a computer service to solicit sex with a minor and traveling to meet a minor after using a computer service to solicit sex violate double jeopardy principles. The State cross-appeals the downward departure sentence, arguing there was no competent, substantial evidence supporting the mitigating factors the trial court relied on to depart from the minimum 42-month prison term yielded by Murphy’s sentencing score sheet, and that the trial court abused its discretion in departing from the minimum sentence. For the reasons explained below, we affirm on all issues.

A. Murphy’s Appeal

1. Motion for judgment of acquittal

The provisions of section 847.0135, Florida Statutes (2011), under which the State charged and prosecuted Murphy, state in pertinent part:

(3) CERTAIN USES OF COMPUTER SERVICES OR DEVICES PROHIBITED. — Any person who knowingly uses a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to:
(b) Solicit, lure, or entice, or attempt to solicit, lure, or entice a parent, legal guardian, or custodian of a child or a person believed to be a parent, legal guardian, or custodian of a child to consent to the participation of such child in any act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any sexual conduct, commits a felony of the third degree[.]
(4) TRAVELING TO MEET A MINOR. — Any person who travels any distance either within this state, to this state, or from this state ... for the purpose of engaging in any illegal act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in other unlawful sexual conduct with a child or with another person believed by the person to be a child after using a computer online service, Internet service, local bulletin board service, or any other device capable of electronic data storage or transmission to:
(b) Solicit, lure, or entice, or attempt to solicit, lure, or entice a parent, legal guardian, or custodian of a child or a person believed to be a parent, legal guardian, or custodian of a child to consent to the participation of such child in any act described in chapter 794, chapter 800, or chapter 827, or to otherwise engage in any sexual conduct, commits a felony of the second degree[.]

Murphy asserts that the trial court erred by denying his motion for judgment of acquittal because the State’s evidence failed to establish he solicited, lured, or enticed someone believed to be a parent to consent to his having sex with the person’s child.

“In reviewing a motion for judgment of acquittal, a de novo standard of review applies. Generally, an appellate court will not reverse a conviction that is supported by competent, substantial evidence. There is sufficient evidence to sustain a conviction if, after viewing the evidence in the light most favorable to the State, a rational trier of fact could find the existence of the elements of the crime beyond a reasonable doubt.” Johnston v. State, 863 So.2d 271, 283 (Fla.2003) (citations omitted).

At Murphy’s trial, the State put on evidence showing that the Tallahassee Police Department participated with the Internet Crimes Against Children Task Force in conducting an online undercover operation intended to discover and apprehend people seeking to sexually exploit children. Officer Russell Huston placed an advertisement on craigslist with the tagline, “Need a discreet male for young female — w4m (NE TLH).” The body of the ad read, “Contact me with a face pic and I will provide details. Be serious and discreet!” and included an email address.

Murphy, as well as others, responded to the ad. The State’s evidence included the following email conversation between Murphy and Officer Huston, which occurred over the course of approximately five hours:

MURPHY: Hey there just seeing if you were still looking for a guy to meet up with if so hit me back.
HUSTON: Hey man... .she likes your pic... full disclosure... Im her dad.she is 14, almost 15. older looking for her age. She had a bad first experience and looking for an older, patient experienced guy to show her how it should really be. I’m ju[s]t here to make sure some serial killer doesn’t come over. Let me know if you’re still interested and tell me about yourself.
MURPHY: This has to be spam there’s no way this is real. If your real can I see a pic?
HUSTON: its real and we need to talk a bit before i send you my 14 year old daughters pic
MURPHY: Wow Ok well what do you need to know?
HUSTON: If you’re Ok with her age, tell me about yourself. Id also like to show her your face pic to see if she is interested.
MURPHY: Well I’m 22 im a massage therapist im really down to earth and chill. I love music and I love the outdoors.
HUSTON: do you have a plan about what you want to show her?
MURPHY: Not really just make sure she has a good time and not take advantage of her. I mean what did you have in mind for her?
HUSTON: totally up to whoever comes over... .but i need someone who knows what they want..if thats not ■ you.. .no hard feelings
MURPHY: I mean I was goin to-make love to her and show her all guys aren’t pieces of shit really I. mean that’s what you want to show her right I just don’t want to overstep my bounds ya know
HUSTON: well i think she would be ok with that.. .would you take any steps not to hurt her? she might be a little small for you
MURPHY: Of course I’m not trying to tear her up lol
HUSTON: and would you bring protection? last thing need is for her to get pregnant and DCF finding out?
MURPHY: Of course I’m not lookin to have a kid either.
HUSTON: Ok great.. .can i show her your face pic?
MURPHY: Yea of course. U still have it right.
HUSTON: yeah.. .just wanted ur permission. .... are you up for this tonight? we are still up
MURPHY: Yea that’s fine

In the remaining exchanges, the men arranged for Murphy’s arrival at the agreed-upon location where he would have sex with the 14-year-old girl.

Murphy argues that this evidence fails to show solicitation, luring, or enticement on his part in order to obtain the father’s consent. Rather, he argues, the evidence establishes that the father offered the teenage daughter for sex, and that he accepted the offer; he did not need to further obtain consent. Considering the evidence de novo, in the light most favorable to the State, we conclude the above-quoted email communication was sufficient for the jury to find Murphy solicited, lured, or enticed the father into letting him have sex with the 14-year~old girl. The email messages between the men reflect Murphy’s efforts to satisfy the father’s concerns and requirements for a “patient experienced guy” — demonstrating himself to be the right man for the job — in order to obtain the father’s consent.

Murphy relies on Randall v. State, 919 So.2d 695 (Fla. 4th DCA 2006), and Stumpf v. State, 677 So.2d 1298 (Fla. 5th DCA 1996), to argue that merely describing what he intended to do to the girl did not constitute solicitation. Those cases involved defendants charged with soliciting a minor to commit a lewd or lascivious act. See § 800.04(6), Fla. Stat. The court in Randall held that the defendant’s statement to a minor saying he “wanted” to lick her vagina did not, as a matter of law, constitute soliciting the minor to commit an unlawful act. Randall, 919 So.2d at 697. Similarly, the court in Stumpf held the defendant’s statement to a minor that he intended to perform oral sex on the child was a threat to make the child a victim of a crime, but was not solicitation. Stumpf, 677 So.2d at 1298.

We find Randall and Stumpf inapposite. Murphy did not simply describe what he intended to do, as did the defendants in those cases. He also described himself (“Well I’m 22 im a massage therapist im really down to earth and chill. I love music and I love the outdoors.”), and responded to the father’s concerns (“not take advantage of her”; “show her all guys aren’t pieces of shit”; “not trying to tear her up”; “not trying to have a kid either”), soliciting the father’s consent and trying to close the deal. Moreover, the statutory provisions under which Murphy was charged proscribe “soliciting], lur[ing], or entic[ing] a parent ... of a child or a person believed to be a parent ... to consent to” the child’s participation in prohibited sexual conduct. Even if we agreed with Murphy that his statements did not rise to the level of solicitation, they decidedly constituted luring or enticing the father into allowing his 14-year-old daughter to participate in unlawful sexual activity. Finding the State’s evidence sufficient to sustain Murphy’s convictions, we affirm the trial court’s denial of Murphy’s motion for judgment of acquittal.

2. Objective entrapment

Florida recognizes two theories of defense based on entrapment: subjective entrapment, codified in section 777.201, Florida Statutes, and objective entrapment, definitively established in Munoz v. State, 629 So.2d 90, 99 (Fla.1993). Subjective entrapment focuses on whether conduct by law enforcement induced, encouraged, or caused the defendant to commit a crime when he or she was not predisposed to do so. See § 777.201, Fla. Stat.; Jones v. State, 114 So.3d 1123, 1126 (Fla. 1st DCA 2013). Objective entrapment occurs when egregious law enforcement conduct amounts to a violation of the defendant’s right to due process under article I, section 9, of the Florida Constitution. See Munoz, 629 So.2d at 99; Gennette v. State, No. 1D12-3407, slip op. at 9 n. 5,124 So.3d 273, 2013 WL 4873490 (Fla. 1st DCA Sept. 13, 2013) (describing objective entrapment as “government action [ ] so egregious that even a predisposed defendant’s due process rights are violated”).

Murphy’s claim of objective entrapment is not directed specifically to the undercover investigative technique law enforcement employed here, in which Officer Huston placed an advertisement in a section of craigslist akin to the “Personals” in a newspaper, and pretended to be the father of a teenage girl looking for a man to have sex with her. Rather, Murphy challenges, on general principle, law enforcement’s use of sex — i.e., creating the possibility of a sexual encounter — as a lure. He argues that doing so preys on (what he describes as) the most sensitive of human frailties — the primal urge for sex — and preys on sensitive human emotions. Such law enforcement activity is egregious, he argues, and constitutes objective entrapment.

“[DJefining the limits of due process is difficult because due process is not a technical, fixed concept; rather, it is a general principle of law that prohibits prosecutions brought about by methods offending one’s sense of justice.” Munoz, 629 So.2d at 98. The Fifth District has provided a helpful guide for assessing objective entrapment claims:

The defense of outrageous government conduct or objective entrapment ... requires reviewing the totality of the circumstances “ ‘in order to ascertain whether they offend those canons of decency and fairness which express the notions of justice of English-speaking peoples even toward those charged with the most heinous offenses.’ ” Rochin v. California, 342 U.S. 165, 169, 72 S.Ct. 205, 96 L.Ed. 183 (1952) (quoting Malinski v. New York, 324 U.S. 401, 416-17, 65 S.Ct. 781, 89 L.Ed. 1029 (U.S.1945)). Due process is violated when “ ‘the conduct of law enforcement agents is so outrageous that due process principles would absolutely bar the government from invoking judicial processes to obtain a conviction.’ ” Tercero v. State, 963 So.2d 878, 883 (Fla. 4th DCA 2007) (quoting State v. Glosson, 462 So.2d 1082, 1084 (Fla.1985)). It is a balancing test; the court must weigh the rights of the defendant against the government’s need to combat crime. McDonald v. State, 742 So.2d 830, 831 (Fla. 4th DCA 1999).

Bist v. State, 35 So.3d 936, 939 (Fla. 5th DCA 2010) (emphasis added).

Law enforcement’s use of sex to advance an investigation has been held so egregious as to constitute a violation of due process, where the defendant was lured into criminal activity after the undercover government agent purposely established a sexual relationship with the defendant. See, e.g., Madera v. State, 943 So.2d 960, 962 (Fla. 4th DCA 2006); Curry v. State, 876 So.2d 29, 31 (Fla. 4th DCA 2004). But that sort of “preying” on human frailties and emotions is not present in the instant case. Here, law enforcement was specifically targeting child sex predators, and we see nothing egregious or outrageous in undercover online investigations, like the one conducted here, designed to apprehend people bent on engaging in sexual activity with minors. To hold otherwise would be to tie the hands of law enforcement in combating this type of sex-related crime. Murphy has presented us no appellate court decision, or other persuasive authority, indicating that the government conduct at issue here offends any societal canons of decency and fairness. Accordingly, we reject his claim of objective entrapment.

3. Double Jeopardy

“ ‘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 also Amend. V, U.S. Const.; Art. 1, § 9, Fla. Const. Murphy contends that double jeopardy principles prohibit his being punished both for soliciting a person believed to be a parent to consent to unlawful sexual activity with a child and for traveling to meet the minor after soliciting the person believed to be a parent. This is so, he posits, because the offenses occurred within the same criminal episode, the acts punished do not constitute distinct criminal acts, and the elements of the solicitation offense are subsumed within the traveling offense.

We find no double jeopardy violation here because the Legislature expressly intended to punish both acts. “[Tjhere is no constitutional prohibition against multiple punishments ‘if the Legislature intended separate convictions and sentences for a defendant’s single criminal act[.]’” Harris v. State, 111 So.3d 922, 924 (Fla. 1st DCA 2013) (quoting Hayes, 803 So.2d at 699). The crime of using the Internet to solicit a person believed to be a parent to consent to a child’s participation in unlawful sexual activity is defined in section 847.0135(3)(b), and is designated a third degree felony. The crime of traveling to meet a minor after using the Internet to solicit a person believed to be parent, as described above, is separately established and defined in section 847.134(4)(b), and is designated a second degree felony. In light of clear legislative intent to punish solicitation and traveling after solicitation separately, we conclude Murphy’s sentences for the two crimes do not violate double jeopardy.

B. The State’s Cross-Appeal

The State appeals the sentences imposed by the trial court — withheld adjudications and concurrent terms of nine months in jail, followed by five years’ sex offender probation — which represent a significant downward departure from the 42-month lowest permissible prison sentence yielded by Murphy’s sentencing score sheet. Seeking remand for resentencing, the State argues there was no competent, substantial evidence supporting the mitigating factors the trial court relied on to depart from the score sheet sentence. The State further contends that, even if the evidence does support the trial court’s findings, the court nonetheless abused its discretion in departing so substantially from the minimum score sheet sentence.

Section 921.0026, Florida Statutes (2011), prohibits a downward departure from the lowest permissible sentence, unless the court finds mitigating circumstances or factors that reasonably justify such departure. The statute lists several factors a court may consider, including the two the trial court relied on in this case: that the victim was an initiator, willing participant, aggressor, or provoker of the incident; and that the offense was committed in an unsophisticated manner, and was an isolated incident for which the defendant has shown remorse. See § 921.0026(2)®, (j), Fla. Stat. (2011). The trial court’s decision to impose a downward departure sentence involves two steps, each of which is subject to appellate review. The first step involves determining if there are valid grounds to depart, and this decision “will be sustained on review if the court applied the right rule of law and if competent substantial evidence supports its -ruling.” Banks v. State, 732 So.2d 1065, 1067 (Fla.1999). The second step involves determining whether to depart — a decision that takes into account the totality of circumstances, and is reviewed for abuse of discretion. Id. at 1068.

We conclude the first factor the trial court relied on for departure is not valid. “That the undercover officer was an initiator, willing participant, aggressor, or provoker of the incident is not a proper ground in this case for downward departure pursuant to section 921.0026(2)®, Florida Statutes.” State v. Holsey, 908 So.2d 1159, 1161 (Fla. 1st DCA 2005); see also State v. Grant, 912 So.2d 321, 322 (Fla. 2d DCA 2004) (holding that undercover officer involved in sting operation was not victim of defendant’s drug offense as to support downward departure factor in section 921.0026(2)®).

However, there is competent, substantial evidence in the record to support the departure factor in section 921.0026(2)(j). For this factor, there are three elements: 1) the crime is committed in unsophisticated manner, 2) it was an isolated incident, and 3) the defendant has shown remorse. See State v. Adkison, 56 So.3d 880, 883 (Fla. 1st DCA 2011). The State specifically challenges the trial court’s finding that Murphy’s crimes were committed in an unsophisticated manner. “[A] crime is committed in an unsophisticated manner when the acts constituting the crime are ‘artless, simple and not refined.’ ” State v. Walters, 12 So.3d 298, 301 (Fla. 3d DCA 2009) (quoting Staffney v. State, 826 So.2d 509, 512-13 (Fla. 4th DCA 2002)) (emphasis in original). Here, Murphy used his mobile phone to access craigslist online, answer an ad posted on the web site, and communicate by email with Officer Huston. It was reasonable for the trial court to conclude that such communication tools and modes are so ubiquitous today as to no longer require any level of sophistication to use them.

Having determined there is evi-dentiary support for one mitigating factor under section 921.0026(2), we consider whether the trial court abused its discretion in imposing the downward departure sentence. Although we may disagree with the degree of leniency in the sentence imposed, we cannot say with certainty that “no reasonable person would agree with the trial court’s decision” to impose a downward departure sentence at all. Banks, 732 So.2d at 1068. The record demonstrates that the court considered all the circumstances in the case, including not only the mitigating circumstances in section 921.0026(2), but also that Murphy was 22 years of age at the time of the offenses and had no prior adult criminal record, and the court fully explicated its reasons for showing leniency in sentencing. Because reasonable minds could differ on whether the court should have departed from the minimum prison term, there is no abuse of discretion. Accordingly, we affirm Murphy’s sentences.

AFFIRMED.

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

      . Murphy also was charged with, and pled no contest to, possession of marijuana and possession of drug paraphernalia. See §§ 893.13(6)(b) and 893.147(1), Fla. Stat. (2011). For these misdemeanors, the trial court adjudicated Murphy guilty and sentenced him to 176 days in jail.

      . Bist involved an undercover operation using adults to pose as minors in online chat rooms, and wait for adults to solicit them for sexual activity. The solicitors were arrested upon arriving at a pre-arranged location where they expected to meet the minors. Bist, 35 So.3d at 938. The investigations and arrests were televised nationally on the NBC network program, ''Dateline.” id. Unlike the broad policy argument Murphy advances here, the objective entrapment claim raised in Bist went to specific law enforcement actions; i.e., the adult decoys were not law enforcement officers, but were members of an organization called Perverted Justice, which had a contingent fee arrangement with NBC. The Fifth District found no outrageous conduct by law enforcement. Id. at 940-41.

      . Having so concluded, we need not proceed further to conduct the analysis set forth in Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932), and codified in section 775.021(4), Florida Statutes. See Gordon v. State, 780 So.2d 17, 19-20 (Fla.2001) (stating Blockburger "same elements” test is used "[a]bsent a clear legislative intent to authorize separate punishments for two crimes”).


source: Caselaw Access Project

author: LEWIS, C.J. OSTERHAUS, J.,

license: Public Domain

text:
    OFFICE OF INSURANCE REGULATION AND FINANCIAL SERVICES COMMISSION, Appellants, v. SECURE ENTERPRISES, LLC., Appellee.
    No. 1D12-5521.
    District Court of Appeal of Florida, First District.
    Oct. 11, 2013.

      J. Bruce Culpepper and Stephen H. Thomas, Jr., Tallahassee, for Appellants.
    Mark K. Delegal and Gerald Bryant of Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, Amicus Curiae for Personal Insurance Federation of Florida.
    Amy W. Schrader of GrayRobinson, P.A., Tallahassee, for Appellee.
   LEWIS, C.J.

Appellants, the Office of Insurance Regulation (“OIR”) and the Financial Services Commission, challenge the administrative law judge’s Final Order invalidating in part OIR-B1-1699, entitled ‘Windstorm Loss Reduction Credits” (“Form 1699”), and invalidating in its entirety OIR-B1-1655, entitled “Notice of Premium Discounts for Hurricane Loss Mitigation” (“Form 1655”), and Florida Administrative Code Rule 690-170.0155(k). Appellants contend that the administrative law judge (“ALJ”) erred in determining that Appel-lee, Secure Enterprises, LLC, had standing to challenge Florida Administrative Code Rules 690-170.017 and 690-170.0155 and Forms 1699 and 1655 and in concluding that Rule 69O-17Q.0155(k) and both forms constituted invalid exercises of delegated legislative authority by modifying and contravening section 627.0629(1), Florida Statutes. Because we agree with Appellants that the ALJ erred in finding that Appellee had standing to bring the rule challenge, we reverse the Final Order.

In 2006, the Legislature amended section 627.0629, entitled “Residential property insurance; rate filings,” to provide:

(1) Effective June 1, 2002, a rate filing for residential property insurance must include actuarially reasonable discounts, credits, or other rate differentials, or appropriate reductions in deductibles, for properties on which fixtures or construction techniques demonstrated to reduce the amount of loss in a windstorm have been installed or implemented. The fixtures or construction techniques shall include, but not be limited to, fixtures or construction techniques which enhance roof strength, roof covering performance, roof-to-wall strength, wall-to-floor-to-foundation strength, opening protection, and window, door, and skylight strength. Credits, discounts, or other rate differentials for fixtures and construction techniques which meet the minimum requirements of the Florida Building Code must be included in the rate filing. All insurance companies must make a rate filing which includes the credits, discounts, or other rate differentials by February 28, 2003. By July 1, 2007, the office shall reevaluate the discounts, credits, other rate differentials, and appropriate reductions in deductibles for fixtures and construction techniques that meet the minimum requirements of the Florida Building Code, based upon actual experience or any other loss relativity studies available to the office. The office shall determine the discounts, credits, other rate differentials, and appropriate reductions in deductibles that reflect the full actuarial value of such revaluation, which may be used by insurers in rate filings.

Ch. 06-12, § 14, Laws of Fla. (Emphasis added). In 2007, the Legislature again amended the statute by deleting the June 1, 2002, language and including the language that “[i]t is the intent of the Legislature that insurers must provide savings to consumers who install or implement windstorm damage mitigation techniques, alterations, or solutions to their properties to prevent windstorm losses.” Ch. 07-1, § 19, Laws of Fla. In response to the 2006 statutory amendment, OIR amended rule 690-170.017 and incorporated Form 1699 by reference. OIR explained in the rule that the residential insurance credits contained within Form 1699 were based upon the study entitled “Development of Loss Relativities for Wind Resistive Features of Residential Structures,” which was a study completed in 2002 by Applied Research Associates, Inc. (“ARA”). Florida’s Department of Community Affairs had contracted with ARA to evaluate the effectiveness of wind resistive features in reducing hurricane damage and loss to single family residences in Florida. According to OIR, ARA’s 2002 study was the only loss relativity study available to it when the Legislature directed it in section 627.0629(1) to reevaluate the insurance discounts and credits.

Pursuant to Form 1699, homeowners are entitled to the same “opening protection” insurance credit for “Windows or All,” meaning that homeowners who upgrade or strengthen only their windows to protect against storm damage receive the same insurance credit as those homeowners who choose to upgrade both their windows and their doors. The discounts provided for in Form 1699 must be used by Florida insurers without modification unless modified credits are supported by detailed alternative studies where all assumptions are available to OIR for review. Fla. Admin. Code R. 690-170.017(2). The record establishes that there are certain insurance companies in Florida who provide different insurance credits than those included in Form 1699. According to OIR, insurance companies are not precluded from providing separate or additional insurance credits to those homeowners who upgrade then-garage doors as long as the credits are sufficiently supported by “detailed alternative studies.”

In May 2012, Appellee filed a rule challenge pursuant to section-120.56, Florida Statutes, in which it contended that rules 690-170.017 and 690-170.0155 and accompanying Forms 1699 and 1655 were invalid exercises of delegated legislative authority and were arbitrary and capricious. Appel-lee, the manufacturer of the Secure Door residential garage door bracing system, challenged the fact that Form 1699 includes an insurance credit for homeowners who upgrade their windows or glazed openings to protect from storm damage but does not include a separate credit for homeowners who upgrade their non-glazed garage doors. Appellee argued that section 627.0629(1) requires that homeowners who upgrade their non-glazed garage doors receive an additional insurance credit. It further contended that Form 1655 failed to provide notice to homeowners about the availability of credits for non-glazed garage doors that were demonstrated to reduce the amount of loss in a windstorm.

As to its standing to challenge the rules and forms, Appellee alleged that it had been substantially and negatively affected because it manufactures a product that would entitle homeowners to a discount on their home insurance policies had OIR properly implemented the statutory requirements of section 627.0629(1). Appel-lee asserted that its Secure Door is a product utilized by Florida homeowners to bring non-glazed garage doors into compliance with the minimum requirements of the Florida Building Code. The product allegedly makes garage doors wind-pressure-resistant but - not impact-resistant. According to Appellee, it had experienced a significant loss of sales over the “last few years” as homeowners and companies who had previously used the Secure Door were opting either to purchase a much more expensive impact-resistant garage door or to make no upgrades at all “as there is no financial incentive by way of insurance credits for homeowners to upgrade garage doors.... ” In support of its argument as to standing, Appellee submitted financial information showing that its revenue from sales of the Secure Door went from $87,700 in 2004 to a high of $1,086,300 in 2007 and then down to $307,300 in 2011; its sales from 2007 to 2011 included sales to Lowe’s stores. It also submitted two affidavits of owners of companies who had once purchased the Secure Door product from Appellee. According to the affidavits, the owners decided to stop purchasing the Secure Door because their customers were no longer receiving an insurance credit for upgrading their garage doors.

In determining that Appellee had standing to bring the rule challenge, the ALJ relied upon several of our prior decisions, including Abbott Laboratories v. Mylan Pharmaceuticals, Inc., 15 So.3d 642 (Fla. 1st DCA 2009), Department of Professional Regulation, Board of Dentistry v. Florida Dental Hygienist Association, 612 So.2d 646 (Fla. 1st DCA 1993), and Televisual Communications, Inc. v. State, Department of Labor and Employment Security/Division of Workers’ Compensation, 667 So.2d 372 (Fla. 1st DCA 1995). With respect to whether Appellee suffered an injury in fact as a result of the rules and forms, the ALJ reasoned that the injury in fact determination did not require the “fine analysis” of Appellee’s year-to-year revenue that both sides undertook at the hearing. He then set forth:

Although [Appellee’s] sales are probably sensitive to the frequency of hurricanes, under Televisual and Dental Hygienist, ... injury-in-fact may be inferred from the likelihood that an annual premium discount for the one-time purchase and installation of [Appellee’s] product, given its low cost, would mean increased sales; therefore, the absence of such a discount would likely cause [Appellee] economic injury.

With respect to whether Appellee’s interests are within the zone of interest protected or regulated by section 627.0629(1), the ALJ reasoned that Appellee’s financial interest was “collaterally” within the zone of interest protected by the statute. According to the ALJ, the legislative mandate requiring the adoption of an extensive set of discounts for mitigative fixtures and construction techniques collaterally protected or regulated those segments of the construction industry, including Appellee, directly providing such mitigative goods and services.

On the merits of the rule challenge, the ALJ agreed with Appellee that Form 1699 was an invalid exercise of delegated legislative authority because of its failure to include an additional insurance credit for garage doors. As a result, the ALJ invalidated page one of the form relating to existing construction; page two of the form addresses new construction. He also invalidated Form 1655 based upon his determination that the notice misled homeowners by suggesting that the only form of opening protection eligible for an insurance discount was shutters and rule 690-170.0155(k) wherein OIR adopted Form 1655. The ALJ declined to invalidate rule 690-170.017 given that a portion of the rule incorporating by reference Form 1699 was still valid as to new construction. This appeal followed.

Standing is a question of law subject to de novo review. Palm Beach Cnty. Envtl. Coal. v. Fla. Dept of Envtl. Prot., 14 So.3d 1076, 1077 (Fla. 4th DCA 2009). Pursuant to section 120.56, Florida Statutes, “Any person substantially affected by a rule or a proposed rule may seek an administrative determination of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.” To establish standing under the “substantially affected” test, a party must show: (1) that the rule or policy will result in a real or immediate injury in fact; and (2) that the alleged interest is within the zone of interest to be protected or regulated. Jacoby v. Fla. Bd. of Med., 917 So.2d 358, 360 (Fla. 1st DCA 2005). To satisfy the sufficiently real and immediate injury in fact element, an injury must not be based on pure speculation or conjecture. Lanoue v. Fla. Dept. of Law Enforcement, 751 So.2d 94, 97 (Fla. 1st DCA 1999).

As stated, the ALJ primarily relied upon three of our previous decisions in finding that Appellee had standing to bring the rule challenge. We agree with Appellants, however, that the ALJ’s reliance upon the decisions was misplaced and that his determination of standing was erroneous. A review of our prior case law is in order.

In Abbott Laboratories, we determined that the act of removing a certain drug manufactured by Abbott Laboratories from the negative drug formulary, which had the effect of allowing pharmacists to freely substitute generic drugs for Abbott’s brand name drug, was a direct injury in fact of sufficient immediacy and reality to grant Abbott and the appellee, the maker of a competing generic drug, standing in the rule challenge proceeding. 15 So.3d at 651 n. 2. We noted that it could not be disputed that both parties’ interests were within the zone of interest regulated by the statutes at issue. Id.

In Department of Professional Regulation, Board of Dentistry, the appellant appealed a final order holding invalid two of its proposed rules. 612 So.2d at 647. Under the pertinent statute, a person desiring to be licensed as a dental hygienist could apply to the appellant to take the licensure examination if, among other things, the person was a graduate of a dental hygiene college or school approved by the appellant or accredited by the Commission on Accreditation of the American Dental Association or its successor agency. Id. The rule at issue, in its then-current form, provided that only those dental hygiene colleges or schools accredited by the Commission or its successor agency were deemed approved by the appellant. Id. A proposed amendment to the rule provided that the Alabama Dental Hygiene Program was determined to be a dental hygiene school or college within the meaning of the pertinent statute. Id. The appellant also proposed a rule establishing criteria for approval of a dental hygiene school or college. Id. The appellee filed a petition challenging the proposed amendment designating the Alabama Dental Hygiene Program as an approved college or school and also challenged the second proposed rule amendment. Id.

In affirming the determination that the appellee had standing, we noted in part that it required “no flight of imagination to reason that if the rule would produce a flood of lesser-trained hygienists, presumably available for employment for less compensation, this would have an economic impact on the existing pool of more highly-trained individuals.” Id. at 649. We further set forth that “those hygienists who are already qualified, licensed and practicing in Florida have a sufficient interest in maintaining the levels of education and competence required for licensing to afford them standing to challenge an unauthorized encroachment upon their practice.” Id. at 651. We determined that the “professional and economic interests” of current dental hygienists were directly affected. Id.

In Televisual Communications, Inc., the appellant sought review of a final order dismissing its rule challenge petition for lack of standing. 667 So.2d at 372. We noted that the appellant alleged that it was a publisher of educational materials useful to health care practitioners and had specialized in the production of medical educational video programs for five years. Id. at 373. The proposed rules at issue established procedures and requirements to implement the certification of health care providers and established the procedures and criteria for the approval of the minimum five-hour training course required for physician certification in accordance with a workers’ compensation statute. Id. The appellant challenged the portion of the proposed rules that required the presence of an instructor during the five-hour training course if audio-visual material was to be utilized. Id. The requirement would not allow the use of correspondence courses to meet the training course requirement. Id. At a hearing, the appellant’s president testified that his company would produce VHS tapes with handouts and that the material would cover all topics required under the pertinent statute. Id. He also testified that, -without the instructor requirement, the appellant could double its existing sales. Id. The hearing officer determined that the ■ appellant lacked standing to challenge the proposed rules while noting the appellant’s argument that it would be precluded from marketing a home study course and would, as a result, fail to realize profits from the sale of videos that it might otherwise garner if the rule allowed home study. Id. The hearing officer also determined that the potential financial impact to the appellant was speculative. Id. In reversing, we set forth in part:

The hearing officer'erred, however, in concluding that the proposed rule does not purport to subject [the appellant], or those similarly situated, to regulation or control. The proposed rules require physicians to enroll in and complete a training course approved by the Division. The proposed rules also set forth the criteria which must be met in order to obtain approval of a course. In addition to the requirement at issue, that a qualified and approved instructor must be present during presentation of audiovisual materials, the proposed rules set forth the required qualifications of instructors or authors, method of verifying attendance, and subject matter to be covered. The rules also provide for revocation of approval of a course upon certain grounds. In summary, the rule purports to regulate the industry that provides the medium for education of health care providers.
The hearing officer correctly noted that [the appellant] was not a health care provider ... but failed to recognize that [the appellant] was indeed affected by the proposed rule which has the collateral effect of regulating [its] industry. Moreover, the hearing officer erred in concluding that the evidence of financial impact was too speculative to support the existence of standing.

Id. at 374. In support of our statement that the hearing officer erred in concluding that the existence of financial impact was too speculative, we cited to Department of Professional Regulation, Board of Chiropractic v. Sherman College of Straight Chiropractic, 682 So.2d 559, 559-60 (Fla. 1st DCA 1995), where we found no error in the determination that the appellee college had standing to challenge rule amendments where the weight of the evidence showed that the amendments caused the appellee’s school enrollment to drop. Id.

While the ALJ correctly reasoned based upon the foregoing cases that economic injury may satisfy the injury in fact element of the pertinent standing test, the facts of this case are distinguishable from the situations addressed in those cases. Abbott Laboratories and Department of Professional Regulation, Board of Dentistry both dealt with economic competition, which is something that is not present in this case. It is reasonable to conclude as we did in those two cases that allowing either a generic drug to enter the pharmaceutical market or less-educated dental hygienists to enter the field of hygienists in Florida would result in economic harm to a brand-name drug manufacturer or dental hygienists currently working in the state. Unlike the situations in Abbott Laboratories and Department of Professional Regulation, Board of Dentistry, a manufacturer in this case is claiming economic harm based upon the absence of an insurance credit that Florida homeowners have never been provided. Had this been a situation where OIR eliminated an existing insurance credit for garage doors, Appellee’s injury in fact argument would be much stronger. However, as it stands, Appellee has no protected economic right that has been impaired by the rules and forms at issue. See State, Bd. of Optometry, 538 So.2d at 881.

With respect to the ALJ’s reliance upon Televisual Communications, Inc., he reasoned that in that case, the appellant’s president’s testimony of a potential doubling in sales, “evidently without more,” was held not to be speculative. The ALJ also reasoned that that case, along with the other cases he relied upon, illustrated the “legitimate role of reasoning and inference in determining whether a challenge has proved sufficient economic injury to prove injury-in-fact.” Yet, not only was our holding in Televisual Communications, Inc. predicated on the testimony that the appellant could double its sales if instructors were not required to be present during the presentation of audio-visual materials, but it was also based on the fact that the rules at issue regulated the industry that provided the medium for education of health care providers. In other words, the proposed rule had the “collateral effect of regulating [the appellant’s] industry.” As OIR argues in this case, neither the statute nor the rules at issue regulate, either directly or indirectly, Ap-pellee’s industry.

Furthermore, as we have previously explained, an injury must not be based on conjecture. See Lanoue, 751 So.2d at 97. While acknowledging that Appellee’s sales are “probably sensitive” to the frequency of hurricanes, the ALJ found that the injury in fact element “may be inferred from the likelihood that an annual premium discount for the one-time purchase and installation of [Appellee’s] product, given its low cost, would mean increased sales” and that, as a result, the absence of such a discount would “likely cause” Appellee economic injury. These findings confirm that Appellee failed to show that the rules and forms at issue have resulted in a “real or immediate” injury in fact sufficient to satisfy the substantially affected test.

We also agree with OIR that the ALJ erred in finding that Appellee’s interest fell within the zone of interest to be protected or regulated by section 627.0629 or the pertinent rules. As section 627.0629(1) expressly provides, the Legislature intended that “insurers provide savings to consumers who install or implement windstorm damage mitigation techniques, alterations, or solutions to their ' properties to prevent windstorm losses.” Nothing in the language of the statute indicates that the purpose behind it was to increase manufacturers’ sales. While such a financial benefit to manufacturers of certain products has presumably resulted from the existence of insurance credits, we do not find that that type of financial interest is the type that section 627.0629(1) was intended to regulate or protect. The statute, was instead clearly designed to protect consumers who choose to strengthen their homes against storm damage and insurers by lessening their financial exposure when storm damage occurs. As such, Appellee failed to satisfy the required zone of interest element. Cf. Jacoby, 917 So.2d at 359-60 (holding that the appellant, a physician with a valid New York medical license, met the zone of interest test to challenge rules relating to licensure restrictions and the appellee’s non-rule policy of denying a license to anyone with a probationary license in another state); Lanoue, 751 So.2d at 99 (holding that because the appellant was charged with DUI and had his license suspended and because both the offense and suspension were addressed in the statutory scheme at issue, the appellant had an interest within the zone of interest regulated by the statutes and rules and had standing to challenge the rules).

For the foregoing reasons, we conclude that the ALJ erred in determining that Appellee had standing to challenge the rules and forms at issue. We, therefore, REVERSE the Final Order.

MARSTILLER, J., concurs.

OSTERHAUS, J., concurs with opinion.

OSTERHAUS, J.,

concurring.

I concur in the result for the reason noted in footnote 3 of the majority opinion.

      . It is undisputed that Florida homeowners have never received a separate or additional insurance credit for upgrading or strengthening their garage doors.

      . We also noted in Televisual Communications, Inc. that the hearing officer erroneously relied upon State, Board of Optometry v. Florida Society of Ophthalmology, 538 So.2d 878 (Fla. 1st DCA 1988). In that case, we explained that a certain statute authorized optometrists to administer topical ocular drugs. 538 So.2d at 879. That practice had previously fallen within the exclusive domain of allopathic and osteopathic physicians. Id. We reversed the hearing officer's conclusion that certain appellees had standing to- maintain the rule challenge under section 120.56. Id. In doing so, we noted that the appellees’ right to administer topical ocular drugs was no longer exclusively reserved to their field of practice and that they were no longer in a position to assert a protected economic right that had been impaired by the subject rule. Id. at 881. We reasoned that the appellees were not subject to regulation or control by the rule and could not predicate standing on the notion that the application of the challenged rule would prevent or obstruct their practicing ophthalmic medicine. Id.

      . We note that if Appellee had standing in this case, we would reverse the Final Order on the merits because, in our opinion, the rules and forms at issue do not contravene or modify section 627.0629(1) and, therefore, do not constitute an invalid exercise of delegated legislative authority.


author: PER CURIAM.

text:
    John M. WATSON, Jr., Husband, Appellant, v. Sharon Lee WATSON, Wife, Appellee.
    No. 1D12-5646.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2013.

      Daniel W. Uhlfelder, Santa Rosa Beach, for Appellant.
    Mark D. Davis, DeFuniak Springs, for Appellee.
   PER CURIAM.

We have for review a Final Judgment of Dissolution of Marriage. John M. Watson, Jr., the appellant and former husband, challenges the trial court’s equitable distribution, as well as the alimony, child support, and attorney’s fees awarded to Sharon Lee Watson, the appellee and former wife. As explained below, we reverse and remand.

I. Facts

The former husband initiated these proceedings by filing his Petition for Dissolution of Marriage, in response to which the former wife filed her Amended Answer. In her Amended Answer, the former wife asserted that she should be awarded alimony based on her need and his ability to pay, and that the former husband should be ordered to pay child support until their minor child turned nineteen or graduated from high school.

Subsequently, the trial court held a Final Hearing at which both the former husband and the former wife testified and presented evidence concerning their respective incomes, personal property located at rental storage facilities, personal and child support expenses, educational levels, earning capacities, and contributions to the marriage. Following the hearing, the trial court issued its Final Judgment, including findings as to the contribution each spouse made to the marriage, to the care and education of the children and services rendered as homemaker; as to the economic circumstances of the parties; as to the duration of the marriage; and as to the desirability of retaining any asset intact and free from any claim by the other party.

Concerning alimony, the trial court found that the former wife has a need for alimony and the former husband has the ability to pay, and that the marriage was of long duration and permanent periodic alimony was the only fair and reasonable form of spousal support under the circumstances. The trial court made findings as to the standard of living established during the marriage; as to the age and physical condition of each party; as to the financial resources of each party; as to the earning capacities, educational levels, and employa-bility of each party; as to the contribution of each party to the marriage; and as to all the sources of income available to each party.

Concerning child support, the trial court found that the parties were married from the date of separation, November 2010, until their minor child, Devin, was emancipated, May 2012; that Devin lived primarily with the former wife; that the former husband provided some money to Devin during that period, but did not provide any child support to the former wife; and that the child support guidelines filed by the former wife at the final hearing would be controlling on the question of child support.

Based upon the findings, the trial court ordered the former husband to pay the former wife retroactive child support from November 2010 to May 2012. The trial court ordered that each party receive the personal property presently in their respective possessions, and that the former wife would receive all the personal property in the storage facilities. The trial court ordered the former husband to pay prospective and retroactive permanent periodic alimony to the former wife. The trial court ordered the former husband to contribute to the former wife’s attorney’s fees and costs, based on her need and his ability to pay, and reserved jurisdiction to set the amount. Thereafter, the former wife filed her motion to tax attorney’s fees and costs. Following the denial of his motion for rehearing, the former husband instituted this appeal.

II. Analysis

A. Equitable Distribution

A trial court’s rulings regarding equitable distribution are reviewed for abuse of discretion. Boutwell v. Adams, 920 So.2d 151, 153 (Fla. 1st DCA 2006). The distribution of assets and liabilities should be equal, unless an unequal distribution is warranted under the statutory factors. Id. In the event of an unequal distribution, the trial court must include findings to substantiate the disparity. Id.

The former wife argues that the trial court’s distribution should be upheld because, under section 61.075(l)(j), the trial court may consider any factor necessary to do equity and justice when crafting a distribution of assets. According to the former wife’s reasoning, awarding her all of the items in storage, resulting in an unequal distribution, was justified because she had paid the costs to store the items, and testified that their total value was less than half of the storage costs.

While the goal of equity and justice is certainly a factor to be considered in constructing a distribution, it is not the only factor, nor does the statute provide that it should carry more weight than the other enumerated factors. See § 61.075(1), Fla. Stat. (2012). Rather, the statute provides that an unequal distribution can be made if it is justified after “all relevant factors” have been considered, including the factors contained in section 61.075(l)(a)-(j). See Boutwell, 920 So.2d at 158; see also Wagner v. Wagner, 61 So.3d 1141, 1143 (Fla. 1st DCA 2011), reh’g denied, (holding that trial courts must consider the ten factors listed in section 61.075(1) when crafting an unequal distribution of marital assets).

In the Final Judgment section entitled “Findings Relative to Equitable Distribution,” it is apparent that the trial court considered the factors described in sub-parts (a), (b), (c), and (f) of section 61.075(1). The trial court also found that the former wife expended money to preserve the items held in the storage facility, and that the value of those items was less than half the cost of storage. Although this finding is listed under the section entitled “Findings Relative to Alimony,” it is perhaps congruent to the equitable distribution consideration contained in section 61.075(l)(j). Nonetheless, it is evident that the Final Judgment does not address those mandatory factors listed in subparts (d), (e), (g), (h), or (i) of section 61.075(1). Due to the omission of these statutorily mandated findings, we remand the equitable distribution portion of the Final Judgment to allow the trial court to make the requisite findings and, if necessary, craft a new equitable distribution scheme.

B. Alimony and Child Support

Because we remand the equitable distribution, we are constrained to remand both the alimony and retroactive child support awards. See Branch v. Branch, 775 So.2d 406, 408 (Fla. 1st DCA 2000) (reversal and remand of equitable distribution portion of final judgment necessitates remand of other financial aspects of the final judgment). We also note that, as the former wife candidly acknowledged in her Answer Brief and at oral argument, the trial court neglected to include in the Final Judgment all of the statutory findings relative to alimony, as required by section 61.08(2)(g), (h), and (j), Florida Statutes (2012). Therefore, on remand, the trial court should make these findings and, if necessary, tailor the alimony award accordingly. Because we find no abuse of discretion in the retroactive child support award, the trial court need revisit that award only if the equitable distribution is modified when the previously omitted statutory findings are made.

C. Attorney’s Fees

An award of attorney’s fees is reviewed for an abuse of discretion. Shelly L. Hall, M.D., P.A. v. White, 97 So.3d 907, 909 (Fla. 1st DCA 2012), reh’g denied. As stated by the Florida Supreme Court in Stockman v. Downs, 573 So.2d 835, 837-38 (Fla.1991), in general, “a claim for attorney’s fees, whether based on statute or contract, must be pled. Failure to do so constitutes a waiver of the claim.” The Court instructed that “[t]he fundamental concern is one of notice. Modern pleading requirements serve to notify the opposing party of the claims alleged and prevent unfair surprise. Raising entitlement to attorney’s fees only after judgment fails to serve either of these objectives.” Id. at 837 (citation omitted). The Court went on to craft an exception to this general rule: “[w]here a party has notice that an opponent claims entitlement to attorney’s fees, and by its conduct recognizes or acquiesces to that claim or otherwise fails to object to the failure to plead entitlement, that party waives any objection to the failure to plead a claim for attorney’s fees.” Id. at 838 (citation omitted).

Here, the former wife did not request attorney’s fees or costs in her answer to the former husband’s petition for dissolution. According to the transcript in the record, attorney’s fees and costs were not discussed or litigated at the final hearing. The former wife’s initial request for attorney’s fees and costs was embodied in her motion to tax fees and costs against the former husband, which was filed on October 22, 2012; eleven days after the trial court issued the Final Judgment which awarded fees and costs and the same day as the former husband filed his motion for rehearing.

Contrary to the former -wife’s assertion in her Answer Brief, it is not clear from the record that the former husband knew she was seeking fees and costs, or how he reasonably could have known she would be seeking them. This is a case where the general rule from Stockman applies; the former wife is not entitled to fees or costs because she failed to include a request for the same in her pleadings and the former husband was not otherwise on notice that fees and costs were being sought.

III. Conclusion

Accordingly, we reverse the portions of the Final Judgment pertaining to equitable distribution, alimony, and child support, and remand for further proceedings; we reverse the award of attorney’s fees without remand.

BENTON and PADOVANO, JJ., and SENTERFITT, ELIZABETH, Associate Judge, concur.


text:
    BRANDYWINE CONVALESCENT Care and Associated Industries Insurance Company, Inc., Appellants, v. Khemwattie RAGOOBIR, Appellee.
    No. 1D13-0982.
    District Court of Appeal of Florida, First District.
    Oct. 16, 2013.

      Rayford H. Taylor of Casey Gilson, P.C., Atlanta, and John S. Smith of Jones, Hurley & Hand, P.A., Tampa, for Appellants.
    Jeffrey E. Appel and Claude M. Harden, III, of the Appel Harden Law Group, Lakeland, for Appellee.
   PER CURIAM.

In this workers’ compensation appeal, the Employer/Carrier (E/C) argues that the Judge of Compensation Claims (JCC) erred when he failed to accord the expert medical advisor’s (EMA’s) opinion a presumption of correctness and awarded Claimant permanent total disability (PTD) benefits. Because the JCC was not free, on this record, to reject the EMA’s opinion, we reverse.

The JCC here appointed an EMA under section 440.13(9), Florida Statutes (2008), to resolve a conflict in medical opinions regarding Claimant’s work restrictions from the industrial injury. Following an examination and review of medical records, the EMA prepared a report indicating that Claimant is capable of light-duty work with certain specified functional restrictions. In deposition, on direct examination conducted by Claimant’s counsel, the EMA answered affirmatively to a question asking him if. he would defer to the current pain management specialist “for the types and nature of pain management and the status through that specialty.” The EMA was not asked specifically whether he was retracting or receding from his already-stated opinion on Claimant’s work restrictions. On cross examination, however, the EMA’s report was attached to the deposition and the EMA, when asked directly, testified that nothing occurring during direct examination changed his opinions expressed in the report. No re-direct was conducted.

Under the statute, the opinion of an EMA is presumed to be correct “unless there is clear and convincing evidence to the contrary as determined by the [JCC].” § 440.13(9)(c), Fla. Stat. (2008). The JCC here did not make findings of clear and convincing evidence. Instead, the JCC concluded that the EMA’s opinion on physical work restrictions was equivocal and, therefore, inconclusive. Relying on this court’s opinion in Fitzgerald v. Osceola County School Board, 974 So.2d 1161 (Fla. 1st DCA 2008), the JCC then determined that Claimant is incapable of working considering the totality of the medical evidence on work restrictions and without affording the EMA’s opinion a presumption of correctness.

In this case, the JCC’s reliance on the Fitzgerald decision is misplaced. In contrast with the EMA in Fitzgerald, the EMA here clearly rendered an opinion on the issue of physical work restrictions as detailed in his report. The inclusion of the single word “status” in the vague deferral question posed to the EMA does not constitute competent substantial evidence (CSE) that the EMA was retreating from his opinion regarding Claimant’s work restrictions, especially in light of the clarification provided on- cross examination. Furthermore, the JCC’s reliance upon the opinion of Claimant’s vocational specialist as to the meaning of the word “status” in this context was improper — particularly, given that the JCC also conceded that there was no evidence establishing what the word meant to the EMA. Based on the record evidence, no reasonable fact-finder here could conclude that the EMA’s opinion regarding Claimant’s physical work restrictions was either equivocal or inconclusive.

Because the JCC improperly rejected the presumption of correctness that should h.ave been accorded to the EMA’s opinion on physical work restrictions, his conclusion that Claimant is medically incapacitated from performing any kind of work was in error. The record, therefore, does not contain CSE to support a finding of PTD based under the first of the three alternative methods of proving entitlement to PTD benefits described in Blake v. Merck & Co., 43 So.3d 882, 883 (Fla. 1st DCA 2010) (“permanent medical incapacity to engage in at least sedentary employment, within a 50 mile radius of the employee’s residence, due to physical limitations”). See, Office Depot v. Ortega, 931 So.2d 1051,1052 (Fla. 1st DCA 2006) (PTD award reviewed for CSE as to JCC’s findings, and de novo as to interpretation of applicable statutes). As an alternative, however, the JCC also assumed the correctness of the EMA assigned physical restrictions and then concluded that Claimant is PTD under the third method in Blake : “permanent work-related physical restrictions that, while not alone totally disabling, preclude the employee from engaging in at least sedentary employment when combined with vocational factors.” Blake, 43 So.3d at 883.

With regard to the third method of proof of PTD, the JCC accepted the testimony of Claimant’s vocational expert over that of the E/C’s vocational expert. Claimant’s vocational expert, however, evidently assumed that the EMA adopted the opinion of the current pain management physician, and did not consider only the physical work restrictions identified in the EMA report when she opined that Claimant was precluded from sedentary work due to the combination of vocational factors and physical restrictions. For this reason, Claimant’s vocational expert’s opinion does not constitute CSE supporting a finding of PTD under the third method of proof which, by the JCC’s reasoning, assumes the correctness of the EMA opinion on the physical work restrictions.

In his review of the vocational evidence in this case, the JCC noted that the E/C’s vocational expert included in his report his personal observations of Claimant’s pain behavior and rejected his opinion accordingly. The JCC had the right to reject the E/C’s vocational expert’s opinion on this basis. As noted by the E/C, however, it was also improper for both the Claimant’s vocational expert and the JCC to consider personal observations of Claimant’s physical limitation related to pain as a vocational factor. Under section 440.09(1), Florida Statutes, as amended in 1994, pain is com-pensable only with objective relevant medical findings and any disability resulting from a compensable injury also must be established, to a reasonable degree of medical certainty, based on objective relevant medical findings. Therefore, under Florida law, physical limitation related to pain is a medical issue to be addressed only by a medical expert.

REVERSED and REMANDED for further proceedings consistent with this opinion and for a determination of Claimant’s ability to engage in at least sedentary employment when vocational factors are combined with the permanent work-related physical restrictions identified in the EMA report.

WOLF, ROBERTS, and MAKAR, JJ., concur.

       Claimant presented no evidence of a job search satisfying the second method of proof: "evidence of permanent work-related physical restrictions coupled with an exhaustive but unsuccessful job search." Blake, 43 So.3d at 883.


author: ALTENBERND, Judge.

text:
    Scottie SMART, Jr., Appellant, v. STATE of Florida, Appellee.
    No. 2D12-5037.
    District Court of Appeal of Florida, Second District.
    Oct. 18, 2013.
    Scottie Smart, Jr., pro se.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Brandon R. Christian, Assistant Attorney General, Tampa, for Appel-lee.
   ALTENBERND, Judge.

Scottie Smart, Jr., appeals the postcon-viction court’s order denying his motion to correct an illegal sentence. We affirm.

Mr. Smart was born on April 17, 1967. In January 1984, when he was sixteen, he received youthful offender sentences for grand theft, battery on a law enforcement officer, and escape. On June 18,1985, less than ten days after his release from prison on these offenses and two months after his eighteenth birthday, Mr. Smart committed a robbery with a weapon and aggravated battery.

Mr. Smart was convicted of these offenses by a jury and sentenced on November 21,1985. For the robbery, he received a sentence of natural life. As part of the sentencing process, the trial court entered an order classifying Mr. Smart as a habitual offender under section 775.084, Florida Statutes (1983). Because he was classified as a habitual offender and the robbery was a first-degree felony, he was eligible to receive a life sentence. See §§ 775.084(4)(a)(l), 812.13(2)(b), Fla. Stat. (1983); State v. Brown, 530 So.2d 51 (Fla. 1988) (holding that the life sentence authorized by section 775.084(4)(a)(l) is not mandatory but may be imposed if a valid ground for upward departure is provided). The court also prepared a guidelines score-sheet under the 1984 guidelines on a category three scoresheet. The points on that scoresheet totaled 266, which resulted in a guidelines sentence of twelve to seventeen years.

The court decided to depart from the guidelines and prepared eight enumerated written reasons for departure. The first reason was that Mr. Smart had been classified as a habitual offender. The other reasons included the defendant’s use ■ of excessive force, his failure to respond to rehabilitation, his escalating pattern of violent criminal conduct, and the fact that he committed the crime within days of his release from prison. Mr. Smart appealed his judgments and sentences to this court. The record and brief from that case no longer exist, but this court affirmed the judgments and sentences without a written opinion in July 1987. Smart v. State, 509 So.2d 935 (Fla. 2d DCA 1987).

Mr. Smart’s case occurred at a time when sentencing law was in a state of transition. The statutes establishing the sentencing guidelines as substantive law became effective for offenses committed on or after July 1, 1984. See ch. 84-328, § 3, at 1773, Laws of Fla.; Smith v. State, 537 So.2d 982, 986 (Fla.1989) (“[Sentencing guidelines, insofar as they limit the length of sentences to be imposed, are substantive in nature.”). Thus, the guidelines applied to Mr. Smart’s June 1985 offenses. The law governing both the grounds for imposing upward departure sentences and the process by which to impose such a sentence was in its infancy. The habitual offender statute that applied at the time had been enacted prior to the guidelines and had not yet been modified to account for the guidelines. See ch. 84-328, § 3. Compare § 775.084, Fla. Stat. (1983), with § 775.084, Fla. Stat. (Supp.1988).

While Mr. Smart’s appeal was pending, the supreme court decided Whitehead v. State, 498 So.2d 863 (Fla.1986). In Whitehead, the court discussed the conflict between the older habitual offender statute and the newer guidelines statute. Id. at 864. It concluded that it could not reconcile the habitual offender statute with the guidelines statute. Id. Because the guidelines provided that they “shall” be applied to “all” felonies, see § 921.001(4)(a), Fla. Stat. (1985), the court essentially held that the guidelines had supplanted habitual offender sentencing and that this older system could not be used for an offense governed by the guidelines. Whitehead, 498 So.2d at 865. It further concluded that the guidelines addressed most of the same considerations addressed by the habitual offender statute and that it would be “double-dipping” to permit an upward departure based on the defendant’s status as a habitual offender. Id. at 866 (citing Hendrix v. State, 475 So.2d 1218, 1220 (Fla.1985)).

After the decision in Whitehead, it was very clear that the first reason announced by the trial judge to impose an upward departure sentence in Mr. Smart’s case was invalid. On the other hand, several of the other reasons were generally regarded at the time as valid reasons. Those reasons eventually were expressly approved by the case law. See Williams v. State, 504 So.2d 392, 393-94 (Fla.1987) (finding the frequency of the defendant’s conduct in view of the short duration from his previous release from incarceration a valid reason for departure); Keys v. State, 500 So.2d 134, 135-36 (Fla.1986) (finding escalation of violent behavior a valid reason for departure); Booker v. State, 482 So.2d 414, 419 (Fla. 2d DCA 1985) (finding the defendant’s failure to respond to rehabilitative efforts a justification for departure); Smith v. State, 454 So.2d 90, 91-92 (Fla. 2d DCA 1984) (affirming as a valid reason for departure the trial court’s finding of the use of excessive force).

Even before Whitehead was decided, the supreme court had resolved the question of how an appellate court should address a case in which one ground for departure was invalid and other grounds were valid. In Albritton v. State, 476 So.2d 158, 160 (Fla.1985), the court held that when faced with one or more invalid grounds, the appellate court should reverse the sentence and remand for resentencing unless the State was able to convince the appellate court beyond a reasonable doubt that the trial court would have imposed the same upward departure sentence in the absence of the invalid reason. See also State v. Young, 476 So.2d 161 (Fla.1985).

As we review Mr. Smart’s case today, the truth is that we do not know whether his attorney brought Whitehead to this court’s attention in 1987. We can neither prove nor disprove whether the court conducted an Albritton analysis before it affirmed Mr. Smart’s sentences. We do know that Mr. Smart never claimed that his appellate attorney was ineffective in this regard.

But the order that we review denies a motion, filed in 2012, seeking re-sentencing on the ground that the life sentence is illegal. It is well established that the validity of reasons provided to support an upward departure sentence cannot be challenged by a motion pursuant to Florida Rule of Criminal Procedure 3.800(a). See Wright v. State, 911 So.2d 81 (Fla.2005). Mr. Smart argues that his situation is different from the usual case in which a defendant challenges the reason for an upward departure sentence. Even if that is true, it is the burden of the defendant, under rule 3.800(a), to demonstrate as a matter of law that the sentence actually imposed could not have been lawfully imposed under any set of circumstances consistent with the applicable law and the existing court records in his case. See Carter v. State, 786 So.2d 1173, 1181 (Fla.2001).

In this case, it is possible and indeed highly probable that this court was aware of Whitehead and performed the analysis required by Albritton, concluding beyond a reasonable doubt that the one invalid reason for departure did not invalidate the trial court’s sentence in light of the other valid reasons. There simply is no reason to conclude today, after a review of his existing court records, that Mr. Smart’s admittedly harsh sentence could not have been imposed under the applicable law.

Mr. Smart argues that he is entitled to relief under the holdings in Johnson v. State, 902 So.2d 276 (Fla. 1st DCA 2005), and Shelton v. State, 739 So.2d 1235 (Fla. 4th DCA 1999). Johnson involved a similar postconviction motion, but the record established that the one and only reason for his upward departure sentence had been the defendant’s status as a habitual offender. 902 So.2d at 278. In Shelton, the upward departure sentence for a 1987 offense was based only on the defendant’s status as a habitual offender. 739 So.2d at 1236. And the defendant’s sentence as a habitual offender for a 1988 offense exceeded the statutory maximum for that offense. Id. at 1237. As explained earlier, Mr. Smart’s armed robbery was a first-degree felony punishable by life imprisonment once he was classified as a habitual offender. Thus, his upward departure sentence does not exceed the statutory maximum for that offense.

Affirmed.

DAVIS, C.J., and CRENSHAW, J., Concur.

      . The judgment describes this conviction as a first-degree life felony. This designation was not based on section 775.082(3)(b), Florida Statutes (1983), but rather on section 775.084(4)(a)(l).


author: SLEET, Judge.

text:
    PHILIP MORRIS USA, INC., (f/k/a Philip Morris Incorporated), a foreign corporation; and R.J. Reynolds Tobacco Company, a foreign corporation, Appellants, v. Theodore HALLGREN, Personal Representative of the Estate of Claire Hallgren, Appellee.
    No. 2D12-2549.
    District Court of Appeal of Florida, Second District.
    Oct. 18, 2013.

      R. Dal Burton of Womble Carlyle San-dridge & Rice, Atlanta, Georgia, and Charles R.A. Morse of Jones Day, New York, New York, for Appellant R.J. Reynolds Tobacco Company.
    William P. Geraghty of Shook, Hardy & Bacon L.L.P., Miami; and Raoul G. Cante-ro and John-Paul Rodriguez of White & Case, Miami; and Joseph H. Lang, Jr. of Carlton Fields, Tampa, for Appellant Philip Morris USA, Inc.
    David J. Sales, Jupiter, Attorney for Appellee.
   SLEET, Judge.

Philip Morris USA, Inc., and R.J. Reynolds Tobacco Company (collectively the “Tobacco Companies”) challenge a final judgment entered after jury trial in favor of Theodore Hallgren, as personal representative of the estate of Claire Hallgren. The final judgment upheld the jury’s award of approximately $1 million in compensatory damages, after factoring in Mrs. Hallgren’s comparative fault, and $1.5 million in punitive damages on claims based on Mrs. Hallgren’s smoking-related death. We affirm.

Mrs. Hallgren died from lung cancer on November 26, 1995, following her sixty-year use of tobacco products manufactured by the Tobacco Companies. Mr. Hall-gren’s second amended complaint, filed under Engle v. Liggett Group, Inc., 945 So.2d 1246 (Fla.2006), asserted four claims against the Tobacco Companies, including: (1) strict liability, (2) fraudulent concealment, (3) conspiracy to commit fraudulent concealment, and (4) negligence. Mr. Hallgren also sought punitive damages on all four claims.

In January 2012, the action proceeded to trial in two phases. In Phase I, the jury found that Mrs. Hallgren was a member of the Engle class and found in favor of Mr. Hallgren on all counts, apportioning fault as follows: fifty percent to Mrs. Hallgren, twenty-five percent to Philip Morris, and twenty-five percent to R.J. Reynolds. The court reduced the compensatory damages award to about $1 million based on Mrs. Hallgren’s comparative fault. During Phase I, the jury also found that Mr. Hallgren was entitled to punitive damages against each defendant. In Phase II, the jury awarded Mr. Hallgren $750,000 in punitive damages against both Philip Morris and R.J. Reynolds. This appeal ensued.

On appeal, the Tobacco Companies argue for reversal on several grounds, contending that the trial court erred by (1) granting Mr. Hallgren’s motion for summary judgment on the Tobacco Companies’ statute of limitations defense, (2) denying the Tobacco Companies’ motions for judgment notwithstanding the verdict and for new trial on Mr. Hallgren’s fraudulent-concealment and conspiracy claims, (3) failing to instruct the jury on a mitigating factor of compensatory damages, (4) permitting an award of punitive damages for Mr. Hallgren’s claims for negligence and strict liability, and (5) granting broad res judicata effect to the Engle Phase I findings. We affirm on all issues.

We write, however, to address the Tobacco Companies’ argument that the trial court erred in permitting an award of punitive damages on Mr. Hallgren’s claims for negligence and strict liability and to certify conflict with the First District’s decision in Soffer v. R.J. Reynolds Tobacco Co., 106 So.3d 456 (Fla. 1st DCA 2012), and the Fourth District’s decision in R.J. Reynolds Tobacco Co. v. Ciccone, 123 So.3d 604 (Fla. 4th DCA Aug. 14, 2013). For the reasons that follow, we find that Mr. Hallgren was entitled to claim punitive damages for his negligence and strict liability claims as well as for his intentional tort claims. Accordingly, we certify conflict with Soffer and identify a question of great public importance.

DISCUSSION

A. Preliminary Matter — Statute of Repose

We first briefly address the Tobacco Companies’ second argument that the trial court erred by denying their motion for judgment notwithstanding the verdict on Mr. Hallgren’s claims for fraudulent concealment and conspiracy to commit fraudulent concealment because those claims were barred by the statute of repose. We reiterate that “a statute of repose runs not from the time a cause of action accrues, but from the date of a discrete act on the part of a defendant.” Laschke v. Brown & Williamson Tobacco Corp., 766 So.2d 1076, 1078 (Fla. 2d DCA 2000) (citing Kush v. Lloyd, 616 So.2d 415, 416 (Fla.1992)). Here, Mr. Hallgren alleged fraudulent concealment and conspiracy to commit fraudulent concealment based upon the Tobacco Companies’ pervasive advertising intended to conceal the health hazards of smoking cigarettes that continued up to and through the time of Mrs. Hallgren’s death in 1995 and the successive, ongoing conspiracy advanced by the tobacco industry to conceal and omit information regarding the health effects of cigarettes and their addictive nature.

The statute of repose begins to run on a claim for fraudulent concealment based on an ongoing pattern of concealment when the last act of concealment on which the plaintiff relied occurs. See Laschke, 766 So.2d at 1079. As to the conspiracy claim, “the critical date for statute of repose purposes should be the date of the last act done in furtherance of the conspiracy.” Id. In this case, the record contains abundant, adequate evidence of not only the Tobacco Companies’ misleading advertising campaigns and the false controversy perpetrated by the tobacco industry that continued until the late 1990s, but also of Mrs. Hallgren’s direct reliance on that misleading advertising. Further, under the First District’s decision in R.J. Reynolds Tobacco Co. v. Martin, the element of reliance for fraudulent concealment may be inferred from evidence of the pervasive and misleading advertising campaigns perpetuated by the Tobacco Companies. See 53 So.3d 1060, 1069-70 (Fla. 1st DCA 2010) (citing Bullock v. Philip Morris USA, Inc., 159 Cal.App.4th 655, 71 Cal.Rptr.3d 775, 792 (2008); Burton v. R.J. Reynolds Tobacco Co., 208 F.Supp.2d 1187, 1203 (D.Kan.2002)). Thus, based on the evidence presented and the inference of reliance permitted under Martin, we conclude that the theories of liability for both the fraudulent-concealment and conspiracy claims are inextricably intertwined and affirmatively demonstrate that Mr. Hall-gren’s claims were not barred by the statute of repose. See Laschke, 766 So.2d at 1079; Martin, 53 So.3d at 1069-70; see also R.J. Reynolds Tobacco Co. v. Webb, 93 So.3d 331, 333 (Fla. 1st DCA 2012); Frazier v. Philip Morris USA, Inc., 89 So.3d 937, 947-48 (Fla. 3d DCA 2012).

B. Punitive Damages

We now turn to the Tobacco Companies’ argument that Mr. Hallgren was precluded from seeking punitive damages on his non-intentional claims of negligence and strict liability. Mr. Hallgren initiated this action pursuant to the Florida Supreme Court’s decision in Engle. Therefore, the Tobacco Companies contend that if Mr. Hallgren is to take advantage of the res judicata effect of the Engle Phase I findings then he is proscribed from seeking punitive damages on his negligence and strict liability claims because the Engle plaintiffs did not seek punitive damages under those theories of liability. As such, they argue that the trial court erred in instructing the jury on punitive damages as to all claims rather than restricting an award of punitive damages to the fraud claims. We disagree.

Whether the res judicata effect of the Engle Phase I findings precludes an Engle progeny plaintiff from, asserting punitive damages for strict liability and negligence is a question of law that is reviewed de novo. See Engle, 945 So.2d at 1274; see also Philip Morris USA, Inc. v. Douglas, 110 So.3d 419, 427 n. 6 (Fla.2013).

In Soffer, the First District tackled this very issue, i.e., whether an Engle progeny plaintiff “is entitled to seek punitive damages as additional relief for [his or] her negligence and strict liability counts.” 106 So.3d at 457. Mrs. Soffer, like Mr. Hallgren, asserted causes of action identical to those asserted by the Engle class: negligence, strict liability, fraudulent concealment, and conspiracy to commit fraudulent concealment. Id. at 459. The jury found for Mrs. Soffer on her strict liability and negligence claims but rejected recovery on her intentional tort claims. The trial court denied Mrs. Soffer’s request to instruct the jury on punitive damages as to the negligence and strict liability claims, finding that recovery of punitive damages was barred by the statutes of limitations for strict liability and negligence claims because the lead plaintiffs in Engle had not timely asserted claims for punitive damages under those theories.

On appeal, the First District recognized that in Engle the Florida Supreme Court “did not pass upon whether progeny plaintiffs were entitled to assert claims for punitive damages under the negligence and strict liability theories previously and specifically disallowed to members of the Engle Class as untimely.” Id. at 458-59. Nevertheless, the First District relied upon the “unique” nature of Engle to hold that progeny plaintiffs “must accept the status and procedural posture of the Engle litigation as they find it; they must accept the parameters that are framed by that litigation — including the absence of a timely claim for punitive damages under negligence and strict liability theories.” Id. at 460. The court further concluded that “tack[ing] on additional punitive damage claims [would] unjustifiably broaden the intended scope and effect of Engle and change the nature of the litigation.” Id. at 461;

We recognize and appreciate the unprecedented significance of the Engle decision, and we agree that the Engle class is benefited by the res judicata effect of the Phase I findings. Nonetheless, we cannot conclude that such benefit precludes an Engle progeny plaintiff from seeking a remedy barred as untimely by the Engle trial court for mere procedural deficiencies. Further, unlike the First District, we conclude that the unique nature of Engle necessitates a finding that progeny plaintiffs are permitted to seek punitive damages on their claims for negligence and strict liability.

First, as noted by the First District, the supreme court did not address this issue in Engle; rather, the supreme court made two holdings with regard to punitive damages, neither of which creates a bar to individual progeny plaintiffs seeking punitive damages for strict liability and negligence claims. When the supreme court concluded that the punitive damages award must be reversed, it decided to de-certify the class and retain the Phase I findings as to claims for negligence, strict liability, fraudulent concealment, and conspiracy to commit fraudulent concealment. Engle, 945 So.2d at 1269. The court held that “[c]lass members can choose to initiate individual damages actions and the Phase I common core findings ... will have res judicata effect in those trials.” Id. By specifically stating that the Phase I common core findings would have res judi-cata effect without declaring the same for the procedural posture of the litigation, the court indicated that the rejected findings (and the issues not passed upon) would not have the same res judicata effect as is generally the case when litigation is declared res judicata. Thus, while Mr. Hall-gren and the Tobacco Companies are clearly bound by the findings the supreme court upheld, they are not similarly bound by the findings not passed upon.

And while Mr. Hallgren benefited from the preclusive effect of the Engle Phase I findings on his substantive claims, he also proved through direct evidence that the Tobacco Companies were liable for punitive damages. We disagree with the conclusion in Soffer that, by virtue of the res judicata effect of the Engle Phase I findings, an established prohibition exists on punitive damages for negligence and strict liability theories as to all class members and that the principles of equitable tolling do not revive claims for punitive damages that were not timely presented in the first instance. See Soffer, 106 So.3d at 459. We find Judge Lewis’s dissent more persuasive because punitive damages are not an independent cause of action. Rather, punitive damages are merely a remedy that must be asserted in conjunction with a substantive claim. As noted by Judge Lewis,

Engle III does not impose a blanket requirement that Engle progeny plaintiffs must file identical claims to the original class. Rather, it suggests that in order to take advantage of the Phase I findings, progeny plaintiffs must file the same claims. Here, Mrs. Soffer was able to take advantage of the Phase I findings because she, in fact, filed the same claims as the original class (strict liability, negligence, fraud, and conspiracy to commit fraud). The only difference is the remedy. The fact that her remedy of punitive damages was more extensive than that sought by the Engle class is not necessarily fatal. First, a claim for punitive damages is “not a separate and distinct cause of action but is auxiliary to, and dependent upon, the .existence of an underlying claim.” See Liggett Group Inc. v. Engle, 853 So.2d 434, 456 (Fla. 3d DCA 2003) (‘Engle II ”), quashed in part by Engle III, 945 So.2d at 1254; see also Country Club of Miami Corp. v. McDaniel, 310 So.2d 436, 437 (Fla. 3d DCA 1975). Second; her reliance on the Phase I findings was not relevant to her claim for punitive damages, which she had to independently prove. See, e.g., Brown, 70 So.3d at 717-18 (clarifying that the plaintiff must prove legal causation and damages). Third, the supreme court retained most of the jury’s Phase I findings, except that it did not retain the finding on entitlement to punitive damages, which -it found to be premature. See Engle III, 945 So.2d at 1269. The supreme court vacated the $145 billion punitive damage award holding, in pertinent part, as follows:
Class members can choose to initiate individual damages actions and the Phase I common core findings we approved above will have res judicata effect in those trials. Id. at 1269, 1276.
Accordingly, in my view, the supreme court did not intend to give res judicata effect to punitive damages claims and specifically allowed class members to initiate “individual damages actions.”

Soffer, 106 So.3d at 463 (Lewis, J., dissenting) (emphasis added).

The Tobacco Companies have failed to provide any express language or implication from Engle to support their position. Here, and in Soffer, they have resorted to citing Hromyak v. Tyco International Ltd., 942 So.2d 1022 (Fla. 4th DCA 2006), and Forzley v. AVCO Corp. Electronics Division, 826 F.2d 974 (11th Cir.1987). We find their reliance on these cases misplaced.

In Hromyak, the Fourth District affirmed the trial court’s decision holding that a stockholder’s claims were not tolled during the pendency of a class action pursuant to the doctrine of class action tolling because the stockholder’s claims were not the same as those asserted in the underlying class action. 942 So.2d at 1023. Hromyak circumscribes the claims subject to tolling that may be asserted in an individual action following decertification of a class, but it does not suggest any limitation on the remedies that can be sought. Id.; see also Soffer, 106 So.3d at 463-64 (Lewis, J., dissenting).

In Forzley, the Eleventh Circuit Court of Appeals, in a diversity case, applied Saudi Arabian law to conclude that the plaintiff was properly terminated from his employment under Saudi labor law for an extended absence and that his termination' for a work-related hernia was without cause. 826 F.2d 974. The Tobacco-Companies cited the specific portion of this case wherein the Eleventh Circuit held that the plaintiffs claim for retroactive overtime pay was barred by the applicable statute of limitations because it did not arise out of the transaction or occurrence of the original complaint and could not relate back to those claims asserted in the original pleading pursuant to Federal Rule of Civil Procedure 15(c). Id. at 981. Like Hromyak, Forzley addressed a situation in which the plaintiff sought to amend his complaint to assert an additional claim, not an additional remedy.

Unlike the plaintiffs in Hromyak and Forzley, Mr. Hallgren asserted identical claims to those asserted in Engle — negligence, strict liability, fraudulent concealment, and conspiracy to commit fraudulent concealment. The only difference is the extent of the remedy sought. Adding a claim for punitive damages does not materially alter the claims for negligence and strict liability.

Furthermore, Engle plainly contemplates the filing of wrongful death actions, and Mr. Hallgren filed his wrongful death lawsuit within the additional one-year tolling period permitted by the supreme court. See Engle, 945 So.2d at 1277. As a result, the statute of limitations was tolled on his substantive claims. The Tobacco Companies argue that permitting Mr. Hallgren to add the remedy of punitive damages to his claims for negligence and strict liability results in substantial prejudice because Mr. Hallgren benefited from the tolling of his claims during the Engle litigation. What the Tobacco Companies fail to recognize is that a claim for punitive damages is not subject to a separate time limitation apart from the substantive claim to which it is linked. Accordingly, because Mr. Hallgren’s substantive claims were timely under the En-gle mandate, so too was the addition of his remedy for punitive damages.

Moreover, the Engle class plaintiffs were only denied the opportunity to claim punitive damages for negligence and strict liability because the trial court deemed their motion to amend the complaint to assert punitive damages for negligence and strict liability untimely. See Soffer, 106 So.3d at 458. Although that decision was within the sound discretion of the Engle trial court, it is not one that provides any cogent reason for barring individual progeny plaintiffs from asserting punitive damages for the non-intentional tort claims.

Soffer asserts that progeny plaintiffs are required to accept the “procedural posture of the Engle litigation as they find it.” 106 So.3d at 460. But when the Engle trial court’s judgment as to issues of punitive damages was reversed, the class members seeking punitive damages had to effectively start over in order to plead, prove, and collect punitive damages. If the supreme court had not opted to decertify the class and had instead remanded for a new trial, the class would have been free to renew its motion to amend the complaint to add the remedy of punitive damages to all of its substantive claims. See generally Fla. R. Civ. P. 1.190. Thus, we conclude that Mr. Hallgren was entitled to assert a claim for punitive damages on his claims for negligence and strict liability because, as the Soffer majority recognized, he was in the “same position [class members] would have been in had they filed a complaint identical to the Engle class-action complaint on the same date the original complaint was filed.” Soffer, 106 So.3d at 460.

Also, in this context, the unique nature of Engle cannot be ignored. In Philip Morris USA, Inc. v. Douglas, the Florida Supreme Court clarified that,

[b]y holding that the [Engle ] Phase I findings are entitled to “res judicata effect,” our decision .in Engle allowed members of the decertified class to pick up litigation of the approved six causes of action right where the class left off— i.e., with the Engle defendants’ common liability for those claims established.

110 So.3d at 432. Practically speaking, however, a progeny plaintiff is still required to file a new complaint and go through the procedural morass of initiating a new cause of action. And a progeny plaintiff must still prove the “individual aspects of the claims specific to each plaintiff,” including damages. Id. Because the decision preventing the Engle class from amending its complaint to seek punitive damages for negligence was merely procedural and was not decided on the merits, we conclude that the res judicata effect of the Phase I findings does not preclude progeny plaintiffs from seeking punitive damages- on those claims. See id. at 433 (recognizing “that a ‘purely technical,’ non-merits judgment ‘may not be used as a basis for the operation of the doctrine of res judicata’ ” (quoting Kent v. Sutker, 40 So.2d 145, 147 (Fla.1949))); McCormack v. Abbott Labs., 617 F.Supp. 1521, 1524 (D.Mass.1985) (specifically noting that following decertification of a class action, individual plaintiffs are “bound by all rulings of substantive law” (emphasis added)).

In arguing that Engle limits Mr. Hall-gren to punitive damages, for only intentional torts, the Tobacco Companies actually seek to expand the res judicata effect of Engle. See Soffer, 106 So.3d at 462 (Lewis, J., dissenting). In our view, the supreme court has neither expressly nor impliedly expanded its Engle res judicata parameters to limit Engle progeny plaintiffs’ ability to pursue the remedy of punitive damages. Because Mr. Hallgren liim ited his claims to those pleaded by the Engle class, he was free to independently prove punitive damages for all approved claims.

Last, we find no surprise or prejudice to the Tobacco Companies in allowing Engle progeny plaintiffs to seek punitive damages for negligence and strict liability claims. From the inception, it was no secret that the Engle class members were seeking punitive damages as a remedy on all of their substantive claims. The Tobacco Companies had sufficient notice and ample time to prepare their defense to those remedies. In Engle, however, the trial court precluded the class from seeking punitive damages on the non-intentional tort claims merely through a procedural defect — timeliness. Unlike Engle, in this case there was no suggestion that Mr. Hallgren’s claim seeking punitive damages on all claims was untimely, nor any suggestion that the Tobacco Companies experienced any prejudice. Accordingly, the Tobacco Companies should not benefit from an unjustifiable expansion of the res judicata effect of Engle, which applies only to the substantive claims, to exclude a proper and timely pleaded remedy sought under those claims.

CONCLUSION

Under these circumstances, Mr. Hall-gren should not be limited to the pretrial procedural order on the Engle class’s proposed amendment. Once the class’s punitive damage award was reversed, and each class member was required to seek punitive damages anew, progeny plaintiffs were free to assert any remedies available under the law. .Tacking on the remedy of punitive damages to the negligence and strict liability claims does not materially alter the substantive claims, and it does not materially differ from the punitive damages sought by the Engle class on the intentional tort claims. Considered in light of the supreme court’s decision to allow Engle progeny plaintiffs to “initiate individual damages actions,” one simply cannot infer that the supreme court intended to place a limitation upon progeny plaintiffs’ ability to pursue punitive damages as a remedy. The Engle Phase I findings simply closed the door on any new or additional substantive claims and permitted each plaintiff to independently prove his or her respective damages, including punitive damages, at separate trials.

Accordingly, we affirm the trial court’s ruling that punitive damages can be awarded for negligence and strict liability claims as well as for the intentional tort claims brought under Engle, and we certify conflict with the First District’s decision in Soffer and the Fourth District’s decision in Ciccone. Additionally, we certify the following question to be of great public importance:

ARE MEMBERS OF THE ENGLE CLASS WHO PURSUE INDIVIDUAL DAMAGES ACTIONS IN ACCORDANCE WITH THE DECISION IN ENGLE V. LIGGETT GROUP, INC., 945 So.2d 1246 (Fla.2006), ENTITLED TO PURSUE PUNITIVE DAMAGES UNDER CLAIMS FOR STRICT LIABILITY AND NEGLIGENCE?

Affirmed; conflict certified; question certified.

NORTHCUTT and KELLY, JJ„ Concur.

      . In Engle, the Florida Supreme Court decer-tified a class action brought against several cigarette manufacturers, including Philip Morris and R.J. Reynolds, after the action had proceeded through trial. 945 So.2d at 1269. After decertifying the class, the court provided a one-year period in which former class members could initiate individual actions against the tobacco defendants. Id. The court further provided that several factual findings common to all class members would be given res judicata effect in those individual actions. Id. These findings are commonly referred to as the Engle Phase I findings.

      . The Engle class comprises "[a]ll [Florida] citizens and residents, and their survivors, who have suffered, presently suffer or who have died from diseases and medical conditions caused by their addiction to cigarettes that contain nicotine.” R.J. Reynolds Tobacco Co. v. Engle, 672 So.2d 39, 40 (Fla. 3d DCA 1996).

      . Recently, in Ciccone, the Fourth District agreed with and adopted the analysis provided by the First District in Soffer. See 123 So.3d at 610.

      . First, the court held that it was error for the jury to consider entitlement to punitive damages during Phase I of the trial because the jury’s determination of punitive damages in Phase I occurred before the jury determined liability in Phase II. Engle, 945 So.2d at 1263. Second, it found the punitive damage award to the class based on the intentional tort theories clearly excessive because it would practically bankrupt some of the defendants. Id. at 1265 n. 8.