author: COHEN, J.

text:
    Lamont RILEY, Appellant, v. STATE Of Florida, Appellee.
    No. 5B11-3253.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2013.
    Wayne Fetzer Henderson, St. Augustine, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Rebecca Roark Wall, Assistant Attorney General, Daytona Beach, for Appellee.
   COHEN, J.

Lamont Riley was convicted of first-degree murder for the death of Cecil Mills. Mills was shot after he went to his daughter’s home, interrupting Riley and his co-defendants as they burglarized it. On appeal, Riley argues the trial court erred in failing to suppress the recording of a conversation he had with his girlfriend in an interview room at the police station. We disagree and affirm.

Following the murder, Riley was developed as a suspect and brought to the police station for questioning. After denying involvement in Mills’ death, Riley was released from custody. Law enforcement soon discovered additional evidence inculpating Riley, and he was arrested and once again transported to the police station. Prior to being interviewed, Riley requested that the detective let his girlfriend, Takita Thomas, know what was happening. During the ensuing interview with law enforcement, Riley admitted to being present when the burglary and murder occurred, and stated that his shooting of Mills was accidental.

As the interview was concluding, the detective asked Riley if he wanted his girlfriend to come to the station. Riley responded affirmatively, and the detective called Thomas, allowing her to come to the station with food and cigarettes for Riley. Upon her arrival, Thomas was permitted to take those items to Riley in the interview room wherein the two remained alone. The room was monitored and their conversation recorded. During the conversation, Riley leaned in close to Thomas and whispered. Contrary to the story he told law enforcement, Riley admitted to Thomas that he intentionally shot Mills. Thomas had not been told what to say or ask Riley by law enforcement, and she was unaware that the conversation was being monitored. Riley likewise testified he was unaware that the conversation was being recorded, although the trial court found his actions of leaning forward and whispering to Thomas belied this claim.

Initially, Riley moved to suppress the statement made to law enforcement. The trial court granted the motion based on law enforcement’s failure to honor Riley’s repeated requests for counsel. Riley then moved to suppress the admission made during his conversation with Thomas, arguing a violation of his constitutional rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and a violation of his reasonable expectation of privacy. That motion was denied and Riley was ultimately convicted by a jury.

Riley’s Miranda argument presupposes the functional equivalent of interrogation. See Arizona v. Mauro, 481 U.S. 520, 107 S.Ct. 1931, 95 L.Ed.2d 458 (1987); Lowe v. State, 650 So.2d 969 (Fla.1994). In Arizona v. Mauro, the United States Supreme Court addressed a similar situation after Mauro invoked his right to remain silent following the death of his child. Mauro’s wife — also a suspect in the child’s death and in custody — was being questioned in another room of the police station and demanded to speak with her husband. She was allowed to do so in the presence of a police officer. Mauro’s statements during that conversation were utilized at trial to refute his claim of insanity. Relying on Rhode Island v. Innis, 446 U.S. 291, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980), the Arizona Supreme Court held that allowing Mauro to speak with his wife in the presence of a police officer constituted an interrogation within the meaning of Miranda. Reversing the Arizona Supreme Court, the Supreme Court held the purpose underlying Miranda — to prevent government officials from using the coercive nature of confinement to extract confessions — was not implicated under those circumstances. 481 U.S. at 530, 107 S.Ct. 1931. Accordingly, the Court concluded Mauro was not subjected to interrogation or its functional equivalent within the meaning of Miranda. Id.

In Lowe v. State, officers investigating a homicide proceeded to a police station where Lowe and his girlfriend had gone to discuss an unrelated matter. The two were separated, although the girlfriend could hear the substance of the questions directed at Lowe. Lowe denied involvement and then invoked his right to remain silent. Lowe’s girlfriend asked to speak to Lowe and agreed to have the conversation recorded. That conversation was not prompted by the police. Reviewing the admissibility of the incriminating statement that followed, the Florida Supreme Court agreed with the trial court that the conversation with the girlfriend did not constitute an interrogation under Mauro because the police did not employ the girlfriend as an agent to coerce a confession from Lowe. 650 So.2d at 974.

Like the girlfriend in Lowe, Thomas was not an agent of the police. She was not instructed on what to say or do, or prompted in any fashion to elicit a confession or admission from Riley. Her presence at the station was initiated by Riley’s request to keep her informed as to what was going on, albeit, no doubt, law enforcement hoped to gather evidence as a result of the meeting. Neither Thomas nor Riley had requested or been led to believe their conversation would be kept private.

Riley relies on Cox v. State, 26 So.3d 666 (Fla. 4th DCA 2010), in support of his argument that the conversation with Thomas was violative of both the earlier invocation of his right to remain silent and his reasonable expectation of privacy. Generally, voluntary jailhouse conversations are not entitled to a reasonable expectation of privacy. See Allen v. State, 636 So.2d 494, 496 (Fla.1994). However, as recognized in Allen and found in Cox, such an expectation of privacy may be reasonable “when law enforcement deliberately fosters an expectation of privacy, especially for the purpose of circumventing a defendant’s right to counsel.... ” Cox, 26 So.3d at 676; see also State v. Calhoun, 479 So.2d 241, 244-45 (Fla. 4th DCA 1985).

In the instant case, it appears there was no attempt by law enforcement to foster an expectation of privacy. No law enforcement officer suggested the meeting would be private, nor did the conduct of Riley and Thomas reflect an expectation of privacy. The remaining issue raised on appeal is without merit. Accordingly, we affirm.

AFFIRMED.

PALMER and LAWSON, JJ., concur.

      . The evidence adduced at trial indicated that Riley's codefendant shot Mills several times after Mills threatened to call the police. Riley then stood over Mills and shot him once more.

      . A different circuit judge handled this motion.


source: Caselaw Access Project

author: ORFINGER, C.J.

license: Public Domain

text:
    Jaren Ashley HARE, Appellant, v. STATE Of Florida, Appellee. Charles Jason Darnell, Appellant, v. State Of Florida, Appellee.
    No. 5D11-3134.
    District Court of Appeal of Florida, Fifth District.
    Jan. 25, 2013.

      James S. Purdy, Public Defender, and Thomas A. Lukashow, Assistant Public Defender, Daytona Beach, for Appellant, Jaren Ashley Hare.
    James S. Purdy, Public Defender, and Susan A. Fagan, Assistant Public Defender, Daytona Beach, for Appellant, Charles Jason Darnell.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Megan Saillant, Assistant Attorney General, Daytona Beach, for Ap-pellee.
   ORFINGER, C.J.

Jaren A. Hare and Charles J. Darnell (“Appellants”) appeal their convictions of aggravated manslaughter of a child by culpable negligence. We affirm these convictions without discussion. However, we agree with Appellants that their additional convictions of child neglect, arising from the same criminal act, violated double jeopardy principles.

The double jeopardy clause in both the state and federal constitutions protects criminal defendants from multiple convictions and punishments for the same offense. McKnight v. State, 906 So.2d 368, 370 (Fla. 5th DCA 2005). Determining whether double jeopardy is violated is a legal determination, which we review de novo. Pizzo v. State, 945 So.2d 1203, 1206 (Fla.2006).

“The prevailing standard for determining the constitutionality of multiple convictions for offenses arising from the same criminal transaction is whether the Legislature ‘intended to authorize separate punishments for the two crimes.’ ” Valdes v. State, 3 So.3d 1067, 1070 (Fla.2009) (quoting M.P. v. State, 682 So.2d 79, 81 (Fla.1996)). Absent clear legislative intent to authorize separate punishments, courts employ the Blockburge “same elements” test, ie., “whether each offense has an element that the other does not,” codified at section 775.021(4)(a), Florida Statutes (2009). If each of the offenses has an element that the other does not, the court must then determine if one of the exceptions set forth in section 775.021(4)(b) applies to preclude separate convictions and sentences. Valdes, 3 So.3d at 1070.

Aggravated manslaughter of a child by culpable negligence requires the State to prove the defendant caused the death of a person under the age of eighteen “by culpable negligence under s. 827.03(3),” the criminal child neglect statute. § 782.07(3), Fla. Stat. (2009); Fla. Std. Jury. Inst. (Crim.) 7.7; see Ramos v. State, 89 So.3d 1119, 1120 n. 1 (Fla. 1st DCA 2012); Koenig v. State, 757 So.2d 595, 596 (Fla. 5th DCA 2000). In turn, to prove child neglect under section 827.03(3), Florida Statutes (2009), the State is required to prove that the defendant acted willfully or with culpable negligence in creating a situation or allowing a dangerous condition to occur. See § 827.03(3)(c), Fla. Stat. (2009); Fla. Std. Jury Inst. (Crim.) 16.5, 16.6; Parrish v. State, 66 So.3d 1030, 1032 (Fla. 1st DCA 2011); Arnold v. State, 755 So.2d 796, 797 (Fla. 2d DCA 2000). Neglect of a child, resulting in great bodily harm, is a second-degree felony. § 827.03(3)(b), Fla. Stat. (2009). Neglect that results in the death of the child is a first-degree felony. Koenig, 757 So.2d at 596.

Double jeopardy principles prohibit convictions for “[ojffenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.” § 775.021(4)(b)3., Fla. Stat. (2009). This exception applies only to category one or necessarily lesser included offenses and not to category two or permissive lesser included offenses. State v. Florida, 894 So.2d 941, 947 (Fla.2005), receded from on other grounds by Valdes, 3 So.3d 1067; Lott v. State, 74 So.3d 556, 559 (Fla. 5th DCA 2011). Necessarily lesser included offenses are offenses in which the statutory elements of the lesser included offense are always subsumed within those of the charged offense. Coicou v. State, 39 So.3d 237, 243 (Fla.2010); Sanders v. State, 944 So.2d 203, 206 (Fla.2006).

Based on the elements of these crimes as defined by law, it is not possible to commit the offense of aggravated manslaughter of a child by culpable negligence, without committing the lesser offense of criminal child neglect. Although aggravated manslaughter of a child by culpable negligence contains an additional element that is not an element of child neglect, that is, death, all of the elements of criminal child neglect are included in the offense of aggravated manslaughter of a child by culpable negligence. Child neglect is thus a necessarily lesser included offense of aggravated manslaughter of a child by culpable negligence. Consequently, double jeopardy prohibits convictions for both aggravated manslaughter of a child by eulpa-ble negligence and child neglect as separate offenses when, as here, the offense emanated from the same criminal act. See generally Gress v. State, 85 So.3d 1185 (Fla. 5th DCA 2012) (holding that appellant’s conviction for culpable negligence violated double jeopardy as it arose from same criminal episode and involved same victim, and thus was lesser offense subsumed by greater offense of neglect of child causing great bodily harm, permanent disfigurement, or permanent disability); Koenig, 757 So.2d at 596 (stating that section 782.07(3), in effect, adds a third “culpably negligent” charge by criminalizing neglect that causes death of child); see also Pizzo, 945 So.2d at 1206 (holding that lesser offenses are those in which elements of lesser offense are always subsumed within greater, without regard to charging argument or evidence at trial).

Accordingly, we vacate Appellants’ convictions and sentences for child neglect, but affirm their convictions and sentences of aggravated manslaughter of a child by culpable negligence. See Pizzo, 945 So.2d at 1206.

AFFIRMED in part; VACATED in part.

PALMER and BERGER, JJ., concur.

      . § 782.07(3), Fla. Stat. (2009).

      . § 827.03(3), Fla. Stat. (2009).

      .The Court has consolidated these cases for disposition.

      . Blockburger v. United States, 284 U.S. 299, 52 S.Ct. 180, 76 L.Ed. 306 (1932).

      . Section 775.02 l(4)(a), Florida Statutes (2009), states:
      Whoever, in the course of one criminal transaction or episode, commits an act or acts which constitute one or more separate criminal offenses, upon conviction and adjudication of guilt, shall be sentenced separately for each criminal offense; and the sentencing judge may order the sentences to be served concurrently or consecutively. For the purposes of this subsection, offenses are separate if each offense requires proof of an element that the other does not, without regard to the accusatory pleading or the proof adduced at trial.

      . Section 775.021(4)(b), Florida Statutes (2009), states:
      The intent of the Legislature is to convict and sentence for each criminal offense committed in the course of one criminal episode or transaction and not to allow the principle of lenity as set forth in subsection (1) to determine legislative intent. Exceptions to this rule of construction are:
      1.Offenses which require identical elements of proof.
      2. Offenses which are degrees of the same offense as provided by statute.
      3. Offenses which are lesser offenses the statutory elements of which are subsumed by the greater offense.

      .Section 827.03(3)(a), Florida Statutes (2009), provides:
      (3)(a) "Neglect of a child” means:
      1. A caregiver's failure or omission to provide a child with the care, supervision, and services necessary to maintain the child’s physical and mental health, including, but not limited to, food, nutrition, clothing, shelter, supervision, medicine, and medical services that a prudent person would consider essential for the well-being of the child; or
      2. A caregiver's failure to make a reasonable effort to protect a child from abuse, neglect, or exploitation by another person. Neglect of a child may be based on repeated conduct or on a single incident or omission that results in, or could reasonably be expected to result in, serious physical or mental injury, or a substantial risk of death, to a child.

      . The State conceded this point at oral argument.

      . In this respect, this case differs from our decision in Koenig v. State, 757 So.2d 595 (Fla. 5th DCA 2000), which determined that child abuse is not subsumed in the charge of aggravated manslaughter of a child by culpable negligence.


author: EMAS, J.

text:
    Alec ROSS, Appellant, v. WELLS FARGO BANK, Appellee.
    No. 3D11-3007.
    District Court of Appeal of Florida, Third District.
    Feb. 13, 2013.
    Ritter Chusid Bivona & Cohen, and Gregory J. Ritter and Shawn R. Horwick, for appellant.
    Carlton Fields and Dean A. Morande and Donna L. Eng, West Palm Beach, for appellee.
    Before WELLS, Chief Judge, and CORTIÑAS and EMAS, JJ.
   EMAS, J.

Alec Ross (“Ross”) appeals a non-final order which reinstated Wells Fargo Bank’s (“Wells Fargo”) post-judgment re-foreclosure proceedings against Ross, after that re-foreclosure action had been dismissed for lack of prosecution. We reverse because the trial court lacked subject matter jurisdiction to permit the post-judgment re-foreclosure proceeding.

On March 21, 2008, Wells Fargo filed a Mortgage Foreclosure Complaint against Zion Tarazi, (“Tarazi”). On July 8, 2008, Wells Fargo obtained a final judgment of foreclosure against Tarazi. On November 24, 2008, Wells Fargo filed a motion for leave to file a supplemental complaint to assert a cause of action for re-foreclosure against Tarazi, and to add Ross as a defendant. The trial court granted Wells Fargo’s motion on December 3, 2008. Thereafter, the trial court entered, and later vacated, an order dismissing the re-foreclosure for lack of prosecution. Ross appeals the trial court’s order vacating the dismissal order and reinstating the re-foreclosure action, contending that the trial court was without subject-matter jurisdiction to permit the post-judgment re-foreclosure action to proceed.

Generally, a trial court loses jurisdiction upon the rendition of a final judgment and expiration of the time allotted for altering, modifying or vacating the judgment. Patin v. Popino, 459 So.2d 435 (Fla. 3d DCA 1984). The court retains jurisdiction to the extent such is specifically reserved in the final judgment or to the extent provided by statute or rule of procedure. Ross v. Damas, 31 So.3d 201 (Fla. 3d DCA 2010); Harrell v. Harrell, 515 So.2d 1302 (Fla. 3d DCA 1987). In the instant case, the trial court entered a final judgment of foreclosure against Tarazi on July 8, 2008. That final judgment contained only a general reservation of jurisdiction: “The Court retains jurisdiction of this action to enter further Orders that are proper including, without limitation, writs of possession and deficiency judgments.” The final judgment did not retain jurisdiction to allow for a supplemental complaint to add an omitted party post-judgment. In permitting such a supplemental post-judgment proceeding, the trial court acted in the absence of jurisdiction. Travelers Cas. & Sur. Co. of Am. v. Sidman, 103 So.3d 900 (Fla. 2d DCA 2012); Damas, 31 So.3d at 203; Patin, 459 So.2d at 436. Therefore, the December 3, 2008 order granting Wells Fargo’s motion for leave to file a supplemental complaint to add Ross as a party, the order dismissing the re-foreclosure for lack of prosecution, and the subsequent order vacating that dismissal, are each a nullity.

We reverse and remand with directions to vacate these three orders, to reinstate the final judgment entered on July 8, 2008, and for further proceedings consistent with this opinion.

      . Because we hold the trial court had no jurisdiction to permit the re-foreclosure proceeding, we do not reach Ross’s second claim — that the trial court abused its discretion in vacating the order dismissing the re-foreclosure for lack of prosecution.

      . Wells Fargo argues that Ross’s jurisdictional argument was not properly preserved below and cannot be raised for the first time on appeal. This argument is without merit. See Colucci v. Greenfield, 547 So.2d 224 (Fla. 3d DCA 1989) (holding that the trial court's subject matter jurisdiction may be raised at any time); accord Jared v. Jackson, 483 So.2d 51 (Fla. 4th DCA 1986).

      .Our decision is without prejudice to Wells Fargo filing a separate foreclosure action against the previously-omitted defendant. FNS4, LLC v. Security Bank, N.A., 88 So.3d 215 (Fla. 3d DCA 2011); Abdoney v. York, 903 So.2d 981 (Fla. 2d DCA 2005).


author: ROTHENBERG, J.

text:
    Melania CHEETHAM and Charlie Cheetham, Appellants, v. SOUTHERN OAK INSURANCE COMPANY, Appellee.
    No. 3D11-3277.
    District Court of Appeal of Florida, Third District.
    March 27, 2013.

      Alvarez, Carbonell, Feltman, Jimenez & Gomez, PL, and Paul B. Feltman, for appellants.
    Russo Appellate Firm, P.A., and Elizabeth K. Russo and Susan S. Lerner; Diaz Briscoe Medina, P.A., and Esperanza Diaz Briscoe, Miami, for appellee.
    Before ROTHENBERG, EMAS, and LOGUE, JJ.
   ROTHENBERG, J.

Melania and Charlie Cheetham (collectively, “the Cheethams”) appeal from a final judgment entered in favor of their insurer, Southern Oak Insurance Company (“Southern Oak”), based on the trial court’s finding that the Cheethams’ claimed loss was specifically excluded under their policy. As we conclude the claimed loss does not fall within the exclusion, we reverse the final judgment and remand for further proceedings.

7.FACTS

The Cheethams filed a claim with their insurer, Southern Oak, after their home sustained water damage. After Southern Oak denied the claim, the Cheethams filed suit, claiming the loss was covered by their all-risk homeowners’ insurance policy. In response, Southern Oak asserted that the “Water Damage” exclusion, specifically section A.3.b., was applicable, and, therefore, the Cheethams’ loss was not covered. The relevant provisions of the policy, including the water damage exclusion, provide as follows:

HOMEOWNERS 3 — SPECIAL FORM
SECTION I — PERILS INSURED AGAINST
A. Coverage A — Dwelling And Coverage B — Other Structures
1. We insure against risk of direct physical loss to property described in Coverages A and B.
2. We do not insure, however, for loss:
a. Excluded under Section I — Exclusions;
c. Caused by:
(6) Any of the following:
(a) Wear and tear, marring, deterioration;
Exception To c.(6)
Unless the loss is otherwise excluded, we cover loss to property covered under Coverage A or B resulting from an accidental discharge or overflow of water or steam from within a:
(i) Storm drain, or water, steam or sewer pipe, off the “residence premises”; or
(ii) Plumbing ... system[ ] ... on the “residence premises ”.[] This includes the cost to tear out and replace any part of a building, or other structure, on the “residence premises”, but only when necessary to repair the system.... However, such tear out and replacement coverage only applies to other structures if the water ... causes actual damage to a building on the “residence premises”.
We do not cover loss to the system ... from which this water ... escaped.
For purposes of this provision, a plumbing system ... does not include a sump, sump pump or related equipment or a roof drain, gutter, down spout [sic] or similar fixtures or equipment.
Section I — Exclusion A.3. Water Damage, Paragraphs a. and c. that apply to surface and water below the surface of the ground do not apply to loss by water covered under c.(5) and (6) above.
B. Coverage C — Personal Property
We insure for direct physical loss to the property described in Coverage C caused by any of the following penis unless the loss is excluded in Section I — Exclusions.
12. Accidental Discharge Or Overflow Of Water Or Steam
a. This peril means accidental discharge or overflow of water ... from within a plumbing ... system ....
b. This peril does not include loss:
(1) To the system ... from which the water ... escaped;
(3) On the “residence premises” caused by accidental discharge or overflow which occurs off the “residence premises”; ....
c. In this peril, a plumbing system ... does not include a sump, sump pump or related equipment or a roof drain, gutter, downspout or similar fixtures or equipment.
d. Section I — Exclusion A.3. Water Damage, Paragraphs a. and c. that apply to surface water and water below the surface of the ground do not apply to loss by water covered under this peril.
SECTION I — EXCLUSIONS
A. We do not insure for loss caused directly or indirectly by any of the following. Such loss is excluded regardless of any other cause or event contributing concurrently or in any sequence to the loss. These exclusions apply whether or not the loss event results in widespread damage or affects a substantial area.
3. Water Damage
Water Damage means:
a. Flood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind;
b. Water or water-borne material which backs up through sewers or drains or which overflows or is discharged from a sump, sump pump or related equipment; or
c. Water or water-borne material below the surface of the ground, including water which exerts pressure on or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or other structure;
caused by or resulting from human or animal forces or any act of nature,

(emphasis indicated by underscoring).

The Cheethams’ claim was tried. At trial, it was undisputed that due to age and deterioration, a pipe located on the “residence premises” broke and/or collapsed. As the pipe was located underneath the ground, debris entered the pipe, forming a blockage, which ultimately caused waste water and/or material to back up through the blocked pipe and into the “residence premises” through drains. At the close of the evidence, based on the undisputed facts, Southern Oak renewed its motion for a directed verdict, arguing that the relevant policy provisions were unambiguous and that the Cheethams’ claimed loss was excluded under the policy. The trial court granted Southern Oak’s motion for a directed verdict, finding that the relevant policy provisions were unambiguous and that the Cheethams’ loss was excluded by section A.3.b. The trial court entered final judgment in favor of Southern Oak, and the Cheethams’ appeal followed.

II. ISSUES

The issues before this Court are (1) whether the all-risk policy is ambiguous where it provides for coverage for the “accidental discharge” of water “within a ... plumbing ... system ... on the ‘residence premises’” caused by “deterioration,” but excludes “water damage” caused by “[wjater or water-borne material which backs up through sewers or drains,” and (2) whether the exclusion applies when a pipe located within the plumbing system of the “residence premises” breaks due to deterioration, causing debris to enter the pipé and forming a blockage, and as a result of the blockage, waste water and/or material backed up through the blocked pipe “within” the “plumbing system” and then into the “residence premises” through drains.

III. ANALYSIS

We review de novo the trial court’s granting of Southern Oak’s motion for a directed verdict based on its finding that the policy excluded coverage for the claimed loss. See Diaz v. Impex of Doral, Inc., 7 So.3d 591, 593 (Fla. 3d DCA 2009) (“The standard of review of a trial court’s ruling on a motion for directed verdict is de novo.”); see also Fayad v. Clarendon Nat’l Ins. Co., 899 So.2d 1082, 1085 (Fla. 2005) (holding that whether specific damage “comes within the scope of the exclusionary clause is a question of law”); State Farm Mut. Auto. Ins. Co. v. Parrish, 873 So.2d 547, 549 (Fla. 5th DCA 2004) (“When the interpretation of an insurance contract is in question, the applicable standard of review is de novo.”); Liberty Mut. Ins. Co. v. Weiss, 790 So.2d 475, 476 (Fla. 3d DCA 2001) (holding that when the cause of loss is undisputed, whether the loss is covered by the insurance policy is a question of law).

In determining whether the Cheethams’ all-risk insurance policy excludes coverage for their claimed loss, we are guided by the following principles of insurance contract interpretation:

We begin with the guiding principle that insurance contracts are construed in accordance with “the plain language of the policfy] as bargained for by the parties.” Auto-Owners Ins. Co. v. Anderson, 756 So.2d 29, 33 (Fla.2000) (quoting Prudential Prop. & Cas. Ins. Co. v. Swindal, 622 So.2d 467, 470 (Fla.1993)) (alteration in original). However, if the salient policy language is susceptible to two reasonable interpretations, one providing coverage and the other excluding coverage, the policy is considered ambiguous. See Anderson, 756 So.2d at 34; Swire Pac. Holdings, Inc. v. Zurich Ins. Co., 845 So.2d 161, 165 (Fla.2003). Ambiguous coverage provisions are construed strictly against the insurer that drafted the policy and liberally in favor of the insured. See Anderson, 756 So.2d at 34; State Farm Fire & Cas. Co. v. CTC Dev. Corp., 720 So.2d 1072, 1076 (Fla.1998); Deni Assocs. of Florida, Inc. v. State Farm Fire & Cas. Ins. Co., 711 So.2d 1135, 1138 (Fla.1998). Further, ambiguous “exclusionary clauses are construed even more strictly against the insurer than coverage clauses.” Anderson, 756 So.2d at 34; see also Demshar v. AAACon Auto Transport, Inc., 337 So.2d 963, 965 (Fla.1976) (“Exclusionary clauses in liability insurance policies are always strictly construed.”). Thus, the insurer is held responsible for clearly setting forth what damages are excluded from coverage under the terms of the policy.

Fayad, 899 So.2d at 1086. Based on these principles, we must examine the all-risk policy, as a whole, to determine if it is ambiguous. However, we note that an insurance policy is not ambiguous “simply because it is complex or requires analysis,” Garcia v. Fed. Ins. Co., 969 So.2d 288, 291 (Fla.2007), or because relevant words used within the policy are not defined by the policy. Old Dominion Ins. Co. v. Elysee, Inc., 601 So.2d 1243, 1246 (Fla. 1st DCA 1992).

The portion of the Cheethams’ all-risk policy titled, “Section I — Perils Insured Against,” provides, in relevant part, that Southern Oak “insure[s] against risk of direct physical loss” to the dwelling or other structures, but does not insure for any loss “[ejxcluded by Section I — Exclusions ” or caused by “deterioration.” (emphasis added). Thus, at first glance, without examining the “Section I — Exclusions,” it would appear that the claimed loss would not be covered because the loss was caused by a deteriorated pipe. However, the policy includes an exception to the no-coverage provision involving “deterioration,” which provides, in pertinent part, as follows:

Exception To c.(6)
Unless the loss is otherwise excluded, we cover loss to property covered under Coverage A [Dwelling] or B [Other Structures] resulting from an accidental discharge or overflow of water ... from within a:
(ii) Plumbing ... system ... on the “residence premises ” ....

(emphasis indicated by underscoring). Therefore, based on paragraph (ii) under “Exception To c.(6),” an “accidental discharge” of water from within a plumbing system caused by deterioration is a covered loss, “[u]nless the loss is otherwise excluded.” Exclusions pertaining to water damage are found in Section I A.3. of the policy.

SECTION I — EXCLUSIONS
A. We do not insure for loss caused directly or indirectly by any of the following....
3. Water Damage
Water Damage means:
a. Flood, surface water, waves, tidal water, overflow of a body of water, or spray from any of these, whether or not driven by wind;
b. Water or water-borne material which backs up through sewers or drains or which overflows or is discharged from a sump, sump pump or related equipment; or
c. Water or water-borne material below the surface of the ground, including water which exerts pressure on or seeps or leaks through a building, sidewalk, driveway, foundation, swimming pool or other structure;
caused by or resulting from human or animal forces or any act of nature.

(emphasis indicated by underscoring).

Paragraphs a. and c. of the water damage exclusion reflect that there will be no coverage for water damage to the residence premises, which were caused by outside forces unrelated to the residence premises’ plumbing system. For example, paragraph a. excludes coverage for water damage caused by “[fjlood, surface water, waves, tidal water, or the overflow of a body of water,” and paragraph b. excludes coverage for water damage caused by “water or water-borne material below the surface of the ground.” Likewise, the water damage excluded in paragraph c. pertains to damage caused by water not originating from the residence premises’ plumbing system even though the water or waterborne material eventually backs up through a pipe and/or drain within the plumbing system of the residence premises. See Phelps, 294 So.2d at 363 (“When we consider the terminology used in the exclusion clause in pari materia with the affirmative statement of coverage from leaks in the plumbing system, we conclude that the exclusion was intended to relate only to damage from water not emanating from the plumbing system.”).

Based on our de novo review of the relevant policy provisions, we conclude that the exclusions from coverage contemplated by paragraphs a., b., and c. of the water damage exclusion relate to damage caused by water originating from somewhere other than the residence premises’ plumbing system. Because the claimed loss in this case was caused by the deterioration of a pipe within the plumbing system, which caused water or water-borne material emanating from the residence premises’ plumbing system to back up into the residence premises, we find the Cheet-hams’ loss is a covered loss under the policy.

Our interpretation of these provisions is consistent with the First District Court of Appeal’s interpretation of a virtually identical water damage exclusion in the policy reviewed in Old Dominion. In Old Dominion, the insured premises, a store within a mall, sustained water damage when a blockage in the main drain pipe that services the entire mall caused water to back up into the store. The blockage occurred in the main drain pipe that led to the treatment plant, and which was located off the insured premises.

The First District Court of Appeal noted that while “sewer” and “drain” were not defined in the policy issued by Old Dominion, “the mere failure to provide a definition for a term does not render the term ambiguous.” Old Dominion, 601 So.2d at 1245. The First District concluded that “[t]he common understanding of the words ‘sewer’ and ‘drain’ is that they describe devices which carry water and sewage away from property. It is also understood that a plumbing blockage which contains waste from another premises must be a backup from a ‘sewer’ or ‘drain.’ ” Id. After reviewing several out-of-state cases, the court found that “the general understanding in the case law is that a sewer or drain begins at the ... property line.” Thus, the First District concluded that the damages to the store were not covered by the insurance policy, and, therefore, reversed the summary judgment entered in favor of the insured store, and remanded for entry of summary judgment in favor of Old Dominion. Id. at 1245-46; see also Hallsted v. Blue Mountain Convalescent Ctr., Inc., 23 Wash.App. 349, 595 P.2d 574, 575 (1979) (“When the ADDITIONAL EXCLUSIONS clause and Paragraph 15 are read together, it is apparent they are not contradictory. If the cause of the discharge is in the plaintiffs system, E. g., A clogged sink drain which causes water in the plumbing system to overflow, the ADDITIONAL EXCLUSIONS clause does not apply. If the cause of the discharge is outside that system, E. g., a clogged sewer pipe which forces water from outside plaintiffs system to overflow, then the cause is applicable even though the water flowed through plaintiffs plumbing system.”).

IV. CONCLUSION

As we conclude that the relevant policy provisions are not ambiguous, and that section A.3.b. of the water damage exclusion is not applicable, we reverse the final judgment entered in favor Southern Oak and remand for further proceedings.

Reversed and remanded.

      . The Cheethams' policy does not define “plumbing system.” However, dictionary definitions of the term indicate that a "plumbing system” includes any device that is necessary to bring water into a building and any device necessary to remove water and/or sewage away from the building. See http://www. dictionaryofconstruction.com/definition/ plumbing-system.html (defining "plumbing system” as "[ajrrangements of pipes, fixtures, fittings, valves, and traps, in a building which supply water and remove liquid-borne wastes”); http://www.webster-dictionary.org/ definition/plumbing%2 Osystem (defining "plumbing system" as "utility consisting of the pipes and fixtures for the distribution of water ... in a building and for the disposal of sewage”). Therefore, as the pipe that broke is designed to carry waste water and/or material away from the Cheethams’ house and is located on the insured premises, the pipe is a part of the "plumbing system.” See also Hartford Accident & Indent. Co. v. Phelps, 294 So.2d 362, 363 (Fla. 1st DCA 1974) ("[I]t is our view that the pipe which developed the leak was within and a part of the plumbing system of the house although it was buried in the ground below the house.”).

      . The policy defines "residence premises” as:
      a. The one family dwelling where you reside;
      b. The two, three or four family dwelling where you reside in at least one of the family units; or
      c. That part of any other building where you reside;
      and which is shown as the "residence premises” in the Declarations.
      "Residence premises” also includes other structures and grounds at that location.

        . Citing to Webster's New World Dictionary, Third College Edition (1988), the court noted that the definition of "sewer” is "a pipe or drain usually underground, used to carry off water and waste matter,” and the definition of "drain” is a "channel or pipe for carrying off water, sewage, etc.” Old Dominion, 601 So.2d at 1245.


author: PER CURIAM.

text:
    Kenneth PATTERSON, Appellant, v. STATE of Florida, Appellee.
    No. 4D12-2296.
    District Court of Appeal of Florida, Fourth District.
    April 3, 2013.
    Rehearing Denied June 14, 2013.
    Kenneth Patterson, Miami, pro se.
    No appearance required for appellee.
   PER CURIAM.

Kenneth Patterson (Defendant) appeals an order denying his motion to correct illegal sentence, filed pursuant to rule 3.800(a), Florida Rules of Criminal Procedure. We affirm, but remand for the circuit court to correct a scrivener’s error.

In 1998, following a jury trial, defendant was convicted of robbery with a firearm. He was sentenced to life in prison both as a habitual violent felony offender (HVFO) and as a prison release reoffender (PRR).

Thereafter, on appeal from the trial court’s denial of defendant’s rule 3.850 motion, this court remanded for resentencing only as a PRR, consistent with Grant v. State, 770 So.2d 655 (Fla.2000). Patterson v. State, 860 So.2d 528 (Fla. 4th DCA 2003). In March 2004, the trial court deleted the HVFO designation. No appeal was taken from that order.

In the instant rule 3.800(a) motion filed in 2012, defendant now challenges his life sentence, claiming the trial court in 2004 failed to orally pronounce any enhancement penalty. The written sentence was consistent. Among the documents which defendant attached to his motion were: a copy of the March 3, 2004 order deleting the habitual offender designation from the sentence; a new sentencing order dated March 3, 2004, containing a note at the top reading “ * Habitual Offender Deleted *,” but leaving the box next to “PRISON RELEASEE REOFFENDER” unchecked; and, a court disposition order dated March 3, 2004, providing only “life sentence to remain only delete the habitual offender.” Defendant argued that because his sentencing guidelines scoresheet generated a maximum sentence of less than ten years, and the trial court did not orally pronounce the PRR designation, a life sentence could not legally be imposed. Defendant noted in his motion that the sentencing error in his case was clear on the face of the record — he now was sentenced to life, but without any enhancement, which was an illegal sentence. He requested resentencing pursuant to the applicable guidelines. Defendant cited cases such as Akins v. State, 98 So.3d 60 (Fla. 2d DCA 2009) (reversing summary denial of 3.800(a) motion and holding that trial court, which imposed sentence on revocation of probation without mentioning defendant’s habitual felony offender status, then later modified sentence to clarify it was imposed as HFO sentence, violated double jeopardy), approved, 69 So.3d 261 (Fla.2011), and cases cited therein.

The trial court summarily denied the motion, explaining that deleting the habitual offender designation, rather than conducting a new sentencing hearing, was not illegal, and that the motion was frivolous.

This appeal followed. In his initial brief, defendant states that he was transported back to the Broward County Jail but a new sentencing hearing was not held; instead, the trial court merely stated that the HVFO designation was deleted. It did not re-pronounce the PRR life sentence but entered a written order reflecting a life term without any enhancing designation. This court had remanded for resentencing, but resentencing did not take place. The unenhanced life term, not as a PRR, exceeds the guidelines maximum sentence, which is less than ten years.

We distinguish this case from those defendant cited in that in those cases, the various sentencing courts had discretion to impose a sentence without habitualization, but the trial court in this case had no discretion to sentence defendant without PRR status; defendant already had been sentenced as a PRR, and this court’s decision requiring resentencing did not authorize the trial court to do anything other than to maintain that sentence, eliminating only the habitual sentence. Defendant’s allegation that no resentencing hearing was held only supports the conclusion that all the trial court did was delete the HVFO sentence.

Thus, we affirm, but direct the trial court on remand to correct the scrivener’s error in omitting to check the PRR box on the sentencing order.

Affirmed but Remanded.

WARNER, POLEN and CIKLIN, JJ., concur.


author: LAGOA, J.

text:
    STATE of Florida, DEPARTMENT OF HIGHWAY SAFETY AND MOTOR VEHICLES, BUREAU OF ADMINISTRATIVE REVIEWS, Petitioner, v. Jose J. FERNANDEZ, Respondent.
    No. 3D12-581.
    District Court of Appeal of Florida, Third District.
    April 3, 2013.

      Stephen D. Hurm, General Counsel, and Damaris E. Reynolds, Assistant General Counsel, Lake Worth, for petitioner.
    Halford G. Schuhmacher, Marathon, for respondent.
    Before LAGOA, SALTER, and FERNANDEZ, JJ.
   LAGOA, J.

The State of Florida, Department of Highway Safety and Motor Vehicles, Bureau of Administrative Reviews (“Department” or “Petitioner”) petitions this Court for a writ of certiorari to review an order from the Sixteenth Judicial Circuit’s Appellate Division. That order quashed an administrative hearing officer’s suspension of Jose Fernandez’s (“Fernandez” or “Respondent”) driver’s license for his refusal to submit to a breath, blood, or urine test incident to an arrest for driving under the influence. For the reasons stated below, we grant the Department’s petition for writ of certiorari and quash the Appellate Division’s order.

I. FACTUAL AND PROCEDURAL HISTORY

Officers from the Key West Police Department arrested Fernandez for driving under the influence following a traffic stop that was conducted shortly after witnesses observed Fernandez’s Jeep swerve into a lane designated for oncoming traffic, crash into a parked vehicle, and drive away dragging part of the Jeep’s front bumper along the pavement. While interviewing Fernandez at the scene, the officers observed that Fernandez had red, glassy eyes, slurred speech, and the smell of alcohol on his breath. Fernandez refused to submit to roadside sobriety exercises.

After placing Fernandez under arrest, the officers asked Fernandez to provide a breath sample to measure the amount of alcohol Fernandez had consumed. Fernandez declined to submit to the breath test.

The officers gave Fernandez various implied consent warnings, including a warning that failure to submit to the breath test would result in suspension of Fernandez’s driving license for at least one year. Fernandez maintained his refusal and his license was suspended administratively pursuant to section 322.2615, Florida Statutes (2011).

Fernandez requested a formal review of his license suspension. The Department scheduled the hearing for October 12, 2011, at the Bureau of Administrative Reviews (“Bureau”) in Marathon, Florida. In advance of the hearing, Fernandez submitted to the Department four subpoenas directed to certain Key West Police Department officers. The Department issued the subpoenas, but modified their form by adding stamped language requiring the officers to appear telephonically from their duty stations.

Rather than serve the modified subpoenas, Fernandez’s attorney, Halford Schuh-macher, drafted new subpoenas for his own signature that required the officers to appear in person. Mr. Schuhmacher’s subpoenas were returned non-served after the Key West Police Department’s patrol liaison refused to accept service, explaining that she was not authorized to accept service of subpoenas other than those approved by the Bureau.

On October 12, 2011, Fernandez’s attorney appeared at the Bureau and requested a continuance of the hearing to seek enforcement of the subpoenas. The hearing officer, appearing telephonically from Miami, continued the hearing until November 1, 2011, and sent Fernandez a notice of hearing that indicated the continued proceedings would take place at the hearing officer’s business address in Miami, Florida.

On November 1, 2011, Fernandez’s Miami counsel appeared in person at the Miami address identified in the notice of hearing, and Mr. Schuhmacher appeared telephonically on Fernandez’s behalf. Before taking evidence, the hearing officer overruled several objections and denied various motions argued by Fernandez’s attorneys, including motions to invalidate the license suspension based on the police department’s refusal to accept service of Mr. Schuhmacher’s subpoenas and improper venue. Fernandez did not attend or participate in the formal review hearing and no witnesses testified. The only evidence received by the hearing officer consisted of the documents forwarded to the Department by the Key West Police Department. Following the hearing, the hearing officer entered an order affirming the Department’s suspension of Fernandez’s driving license.

Fernandez filed a petition for first-tier certiorari review in the Appellate Division of the Sixteenth Judicial Circuit Court. The Appellate Division granted certiorari and quashed the hearing officer’s order, reasoning that the hearing officer failed to convene the formal review hearing “in Monroe County” by appearing telephoni-cally from an office in Miami in contravention of section 322.2615(6)(b), Florida Statutes (2011) (requiring that a formal hearing be “held before a hearing officer”) (emphasis added), and Florida Administrative Code Rule 15A-6.009, (providing that, absent driver’s consent, venue for formal review hearing is in the judicial circuit where the notice of suspension was issued). The Appellate Division concluded that the hearing officer’s failure to appear in person in Monroe County deprived Fernandez of the right “to be physically present before the hearing officer” and thereby violated procedural due process:

[Tjhere has been no legislative authorization, nor has any rule or case been cited which unequivocally allows the Department, to have the presiding hearing officer “appear” by telephone in the judicial circuit where venue is mandated unless the “consent of the driver” to a change of venue is first obtained, pursuant to F.A.C. Rule 15-A-6.009 and Fla. R. Jud. Adm. 2.530(d)(1).... [T]he Court finds that the failure to accord a hearing at which the hearing officer physically appears in the statutorily designated judicial circuit, and wherein a Petitioner has the right to physically appear before the hearing officer for the hearing, does not comply with Section 322.2615(6)(b) or the rules set forth above.

The Department timely filed this petition for second-tier certiorari seeking review of the Appellate Division’s opinion.

II ANALYSIS

The standard governing the disposition of a petition for second-tier certio-rari in a district court is narrow: “[T]he district court must determine whether the decision of the circuit court ... is a depar-tare from the essential requirements of law resulting in a miscarriage of justice.” Nader v. Fla. Dep’t of Highway Safety & Motor Vehicles, 87 So.3d 712, 725 (Fla.2012); see also State, Dep’t of Highway Safety & Motor Vehicles v. Freeman, 63 So.3d 23, 25-26 (Fla. 3d DCA 2011). The circuit court’s decision is said to depart from the essential requirements of law where the circuit court fails to afford procedural due process or fails to apply the correct law. Nader, 87 So.3d at 722-23 (quoting Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530-31 (Fla.1995)).

Where, as here, a petition for second-tier certiorari is premised on a circuit court’s failure to apply the correct law, the circuit court’s decision must violate a “clearly established principle of law” resulting in a miscarriage of justice. See Nader, 87 So.3d at 723. “ ‘[C]learly established law1 can derive from a variety of legal sources, including recent controlling case law, rules of court, statutes, and constitutional law.” Id. (quoting Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 890 (Fla.2003)) (emphasis in original). Thus, “a district court may grant a writ of certio-rari after determining that the decision is in conflict with the relevant statute, so long as the legal error is also ‘sufficiently egregious or fundamental to fall within the limited scope’ of certiorari jurisdiction.” Nader, 87 So.3d at 723 (quoting Kaklamanos, 843 So.2d at 890). Because “statutes also constitute ‘clearly established law,’ ... a district court can use second-tier certiorari to correct a circuit court decision that departed from the essential requirements of statutory law.” Nader, 87 So.3d at 727.

The Department argues that the Appellate Division failed to apply the correct law when it read section 322.2615(6)(b), Florida Statutes (2001), Florida Administrative Code Rule 15A-6.009, and Florida Rule of Judicial Administration 2.530(d)(1) to require that the hearing be conducted in the physical presence of the hearing officers.

We find that the Appellate Division’s reading of section 322.2615(6)(b), Florida Statutes, is a departure from the essential requirements of law as it violates a clearly established principle of law by “disobeying] the plain language of the statute.” Nader, 87 So.3d at 723. Section 322.2615(6)(b) provides in relevant part:

[The] formal review hearing shall be held before a hearing officer employed by the department, and the hearing officer shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas [for certain officers and witnesses] ..., regulate the course and conduct of the hearing, question witnesses, and make a ruling on the suspension.

(emphasis added). The Appellate Division construed the words “before a hearing officer” to mean “in the physical presence of a hearing officer.”

The Appellate Division’s statutory construction isolates the words “before a hearing officer” from the subsection’s remaining language, particularly, the terms authorizing the hearing officer to “regulate the course and conduct of the hearing.” § 322.2615(6)(b). Reading the unambiguous terms of the statute together, it is clear that while the Legislature intended a hearing officer to preside over formal review hearings, it left the manner in which the hearing would proceed to the hearing officer’s discretion. Construing the statute to prohibit the hearing officer from appearing telephonically, when appropriate, fails to give meaning to the statute at issue.

This reading of the statute finds support in the rules implemented by the Department to govern formal review hearings. Rule 15A-6.013(5) ensures the driver’s “right to present evidence relevant to the issues, to cross-examine opposing witnesses, to impeach any witness, and to rebut the evidence presented against the driver” at a formal review hearing, but does not indicate the manner in which these rights are to be implemented. And, significantly, Rule 15A-6.013(5) does not guarantee any right to the hearing officer’s physical appearance at a review hearing initiated by the driver, except to the extent the hearing officer’s telephonic appearance implicates the other rights protected in Rule 15A-6.013(5). The hearing officer’s power to “regulate the course and conduct of the hearing,” § 322.2615(6)(b), permits the hearing officer to tailor a proceeding to the circumstances, such that the rights protected in Rule 15A-6.013(5) will not be abridged in a manner inconsistent with due process. “An agency’s statutory construction is entitled to great weight and is not to be overturned on appeal, unless clearly erroneous.” Braman Cadillac, Inc. v. Dep’t of Highway Safety & Motor Vehicles, 584 So.2d 1047, 1050 (Fla. 1st DCA 1991). Because we conclude that the Department’s interpretation of section 322.2615(6)(b) is not clearly erroneous, the Appellate Division’s reading of section 322.2615(6)(b) is contrary to the Department’s interpretation of the statute.

The Appellate Division also relied on Florida Administrative Code Rule 15A-6.009 to conclude that the words “before a hearing officer” in section 322.2615(6)(b) meant “in the hearing officer’s physical presence.” Rule 15A-6.009, however, provides that: “Hearings shall be held in the judicial circuit where the notice of suspension was issued, unless otherwise ordered by the hearing officer with the consent of the driver.” Notably, section 322.2615 offers no direction with respect to the venue of a formal review hearing; it does not expressly authorize a hearing officer to convene a hearing “in Monroe County” via telephone, but neither does it prohibit a hearing officer from doing so; the Legislature here left that to the hearing officer’s discretion. “[GJiving greater weight to a rule implemented pursuant to a statute than to the requirements of the statute violates a clearly established principle of law.” Dep’t of Highway Safety & Motor Vehicles v. Snelson, 817 So.2d 1045, 1048 (Fla. 2d DCA 2002).

In any case, there was no occasion to quash the hearing officer’s order sustaining the suspension of Fernandez’s driving license on the basis of an improper venue because Fernandez never sought to move the November 1st hearing from the Miami location identified in the notice to Monroe County, never objected to the hearing officer’s use of telephonic equipment to convene the hearing, and in fact participated through counsel by telephone at both hearings. Moreover, Fernandez’s Miami attorney physically appeared at the November 1st hearing. To the extent there was any error in the proceeding related to the designation of the hearing officer’s Miami office in the notice of hearing, the error did not prejudice Fernandez.

The Appellate Division also relied on Florida Rule of Judicial Administration 2.530(d)(1) as mandating the physical appearance of the hearing officer with respect to evidentiary hearings. Rule 2.530(d)(1), however, provides that: “A county or circuit court judge, general magistrate, special magistrate, or hearing officer may allow testimony to be taken through communication equipment if all parties consent or if permitted by another applicable rule of procedure.” This rule authorizes a judge to receive a witness’s testimony over the phone with the consent of the parties but has no application to the venue of the hearing itself. “There is no indication that the rule applies to the administrative hearings held by the Department ... to determine whether to uphold driver’s license suspensions.” Lotocki v. Dep’t of Highway Safety & Motor Vehicles, 17 Fla. L. Weekly Supp. 721b (Fla. 4th Cir.Ct.App.Div.2010). Indeed, as Fernandez failed to properly subpoena or otherwise present any witnesses to testify at the review hearing, Rule 2.530(d)(1) had no application to the matter before the Appellate Division.

In sum, the Appellate Division’s failure to apply section 322.2615 according to its clear and unambiguous terms amounted to a failure to apply clearly established law. See Freeman, 63 So.3d at 27 (holding that circuit court’s erroneous interpretation of section 322.2615 “disobeyed the plain language of the statute” and justified issuance of writ of certiorari to correct error).

Lastly, we find that the Appellate Division’s departure from the essential requirements of law is a miscarriage of justice “sufficiently egregious” to merit cer-tiorari review. Nader, 87 So.3d at 723 (quoting Kaklamanos, 843 So.2d at 890). “An important factor to consider when determining whether the circuit court’s error amounts to a ‘miscarriage of justice’ is the adverse precedential effect the error might have on subsequent cases.” Dep’t of Highway Safety & Motor Vehicles v. Hofer, 5 So.3d 766, 772 (Fla. 2d DCA 2009); see also Dep’t of Highway Safety & Motor Vehicles v. Alliston, 813 So.2d 141, 145 (Fla. 2d DCA 2002). Where a circuit court’s decision fails to apply the correct law and establishes “principles of general application binding in subsequent cases,” certiorari review is warranted. Hofer, 5 So.3d at 772; see also Alliston, 813 So.2d at 145 (explaining that certiorari review is appropriate where an error “is pervasive or widespread in its application to numerous other proceedings”).

Here, the State has a strong interest in regulating a citizen’s driving privilege, Dep’t of Highway Safety & Motor Vehicles v. Hogar, 581 So.2d 214 (Fla. 5th DCA 1991), and in keeping the public safe from persons that choose to operate vehicles while using intoxicants. Illinois v. Batchelder, 463 U.S. 1112, 1118, 103 S.Ct. 3513, 77 L.Ed.2d 1267 (1983) (“The interest of the states in depriving the drunk driver of permission to continue operating an automobile is particularly strong.”). A rule mandating the personal appearance of a Miami hearing officer in Monroe County (where the Department lacks any permanent facilities or personnel) would impose a heavy burden on the Department’s limited resources. Thus, while Fernandez’s driving privilege is significant, it is not outweighed by the State’s interest in policing public roadways and would not benefit from the (negligible) additional procedural safeguard that the hearing officer’s personal appearance might offer.

Application of the Appellate Division’s opinion to subsequent suspension cases will require the Department to send hearing officers from Miami to locations throughout Monroe County to conduct in-person review hearings, even in cases (like this one) where no witnesses will testify and consequently, the hearing officer will not be required to make any credibility determinations. This procedure imposes a heavy and unjustified burden on the Department without providing any significant benefit to the driver insofar as due process rights are concerned. Accordingly, the Court is justified in exercising its certiora-ri jurisdiction to quash the Appellate Division’s opinion.

Based on the foregoing, we find that the Appellate Division’s order departed from the essential requirements of law by violating clearly established principles of law which resulted in a miscarriage of justice. Accordingly, we grant the petition and quash the order.

Petition granted.

      . "A law enforcement officer ... shall ... suspend the driving privilege ... of a person who has refused to submit to a urine test or a test of his or her breath-alcohol or blood-alcohol level.” § 322.2615(l)(a), Fla. Stat. (2011).

      . See Fla. Admin. Code R. 15A-6.012(1) (authorizing driver to request the issuance of subpoenas by the clerk or the hearing officer).

      . See Fla. Admin. Code R. 15A-6.012(6) ("A hearing officer is authorized to amend or strike a request for subpoena ... which does not comply with the provisions of this rule.”).

      . One of the subpoenas was returned non-served based on the officer’s training schedule, which prevented him from appearing on October 12, 2011.

      . The record does not reflect whether an enforcement action was filed.

      . The Department asserts that the change in location was an error.

      . Pursuant to section 322.2615(2), Florida Statutes (2011), "[m]aterials submitted to the department by a law enforcement agency or correctional agency shall be considered self-authenticating and shall be in the record for consideration by the hearing officer.” Formal review hearings conducted solely on the basis of police reports and documents are authorized. § 322.2615(11), Fla. Stat. (2011).


author: VILLANTI, Judge.

text:
    BRANCH BANKING AND TRUST COMPANY, successor in interest to Colonial Bank by asset acquisition from the FDIC as receiver for Colonial Bank, Appellant, v. KRAZ, LLC; Bing Charles Kearney, Jr.; Tracy L. Harris, Jr.; and Unknown Tenants # 1-25, Appellees.
    No. 2D12-3051.
    District Court of Appeal of Florida, Second District.
    April 17, 2013.
    Rehearing Denied June 3, 2013.
    John A. Anthony, Kristi Neher Davis-son, Frank A. LaFalce, J. Wade Stidham, and Cheryl Thompson of Anthony & Partners, LLC, Tampa, for Appellant.
    Jesse L. Ray of Jesse Lee Ray Attorney at Law, P.A., Tampa; and Steven L. Bran-nock of Brannock & Humphries, Tampa, for Appellees.
   VILLANTI, Judge.

Branch Banking & Trust Co. (BB & T) seeks review of the final judgment entered in favor of Kraz, LLC, Bing Charles Kear-ney, Jr., and Tracy L. Harris, Jr., (collectively Kraz) in this commercial foreclosure case. Of the twelve issues raised by BB & T, only one has merit, and we reverse the final judgment solely to the extent that it awarded a credit against Kraz’s loan principal for amounts BB & T may have received during the pendency of the foreclosure proceedings pursuant to a Commercial Shared Loss Agreement with the Federal Deposit Insurance Corporation (FDIC). In all other respects, we affirm.

This case comes to us with a lengthy record. However, for purposes of this opinion, the relevant facts are fairly straightforward. BB & T purchased Kraz’s $5,182,128 commercial construction loan, along with numerous other assets, from the FDIC after Colonial Bank, which originated the loan, was closed by the FDIC. The purchase agreement between BB & T and the FDIC included a provision called a Commercial Shared Loss Agreement, which set forth the means by which BB & T and the FDIC would share in any losses that arose from the Colonial loans that BB & T purchased. Under the Commercial Shared Loss Agreement, BB & T was required to submit a quarterly report listing the losses it had sustained during that quarter due to charge-offs taken on the entire pool of Colonial loans, and the Commercial Shared Loss Agreement required the FDIC to pay BB & T a stated percentage of those losses. BB & T was also required to submit a second report detailing any “recoveries,” which were defined as collections received during the quarter on the entire pool of shared loss loans that had been previously charged off. If the amount of net recoveries was positive, BB & T was required to pay a stated percentage of those recoveries to the FDIC. Thus, if BB & T charged off a loan in one quarter, it could include that loan in the charge-off pool for the quarter and it would be paid a portion of that loss by the FDIC. However, if BB & T made a recovery on that charged-off loan in a subsequent quarter, BB & T would essentially have to reimburse the FDIC for the earlier payment by including that recovery on its quarterly report and paying a portion of the recovery to the FDIC.

Shortly after BB & T purchased Colonial’s assets, it declared the Kraz loan to be in default and it filed a foreclosure action against Kraz. During the foreclosure proceedings, a court-appointed receiver collected tenant rents, paid certain expenses, and managed the property in consultation with BB & T. The receiver transmitted the net collected rents to BB & T after the receiver himself was paid, and presumably BB & T applied these funds to reduce Kraz’s indebtedness.

At the trial on the foreclosure complaint, BB & T’s corporate representative, Oscar Bruni, admitted that BB & T “may have” received payment under the Commercial Shared Loss Agreement as a result of the default declared on the Kraz loan. Bruni testified that he would have to make a telephone call to BB & T’s accounting department to determine for sure whether any such payment had been received and the exact amount of the payment; however, no one asked Bruni to make this call. Kraz’s banking expert, James Howard, testified that BB & T’s shared loss payment on the loan could be “as much as $1.8 million.” However, neither Bruni nor any other witness testified as to whether, in fact, BB & T had received such a payment and, if so, what the exact amount of the payment was.

At the conclusion of the foreclosure trial, the trial court found that Kraz had not been in default under the terms of the loan when BB & T declared the default. Having reached this conclusion, the trial court denied BB & T’s request to foreclose on the property, and it set about creating an equitable remedy that would return the parties to the financial positions they would have been in had the improper default not been declared. As part of that remedy, the trial court reinstated the loan, ordered BB & T to write off the default interest and late fees it had charged, and ordered an accounting of the funds turned over to BB & T by the receiver during the course of the foreclosure proceedings. In addition, the court ordered BB & T to credit the principal of the Kraz loan with the shared loss payment that BB & T had allegedly received on this loan pursuant to the Commercial Shared Loss Agreement. Specifically, the trial court ordered

that [BB & T] shall, within thirty (30) days of the entry of this Final Judgment, credit the principal of the Note with all payments received by [BB & T] from the FDIC concerning this loan per Mr. Bruni’s and Mr. Howard’s testimony.... No payments shall be due from [Kraz] until [BB & T] credits all such payments it has received against the principal....

The stated purpose of this credit was to prevent BB & T from “double-dipping” by receiving payments on the loan both from the FDIC and Kraz.

In this appeal, BB & T argues, among other things, that the credit ordered for the alleged shared loss payment constituted an abuse of discretion. On this single issue, we agree because Kraz presented no evidence to establish that BB & T actually received any payment under the Commercial Shared Loss Agreement based on a charge-off of the Kraz loan. Instead, the only testimony was that it was possible that BB & T may have received a payment of as much as $1.8 million from the FDIC but that further evidence would be needed to be sure. This testimony is legally insufficient to support a finding that BB & T had, in fact, received a payment of $1.8 million as a result of charge-offs on the Kraz loan. See, e.g., Taylor v. Lee, 884 So.2d 222, 224 (Fla. 2d DCA 2004) (“ ‘[TJhere must be some reasonable basis in the evidence to support the amount [of damages] awarded.’ ” (quoting Camper Corral, Inc. v. Perantoni, 801 So.2d 990, 991 (Fla. 2d DCA 2001)) (alteration in original)); Schimpf v. Reger, 691 So.2d 579, 580 (Fla. 2d DCA 1997) (“Damages cannot be based upon speculation and guesswork, ... but must have some reasonable basis in fact.”). Thus, in the absence of any legally sufficient evidence to support this credit against the principal of Kraz’s loan, we must reverse this portion of the final judgment and remand for correction.

While we base our reversal on the lack of evidence to support this credit, we also note that even if Kraz had presented additional evidence concerning BB & T’s receipt of funds from the FDIC, the terms of the Commercial Shared Loss Agreement would not support the trial court’s decision to award a credit based on that payment because the Commercial Shared Loss Agreement specifically requires BB & T to reimburse the FDIC if it makes any recovery on the note from Kraz. As discussed above, the Commercial Shared Loss Agreement requires BB & T to reimburse the FDIC for recoveries it makes on loans that were charged off in prior quarters. Thus, if Kraz makes payments on the reinstated loan, those payments would constitute “recoveries” under the Commercial Shared Loss Agreement, and BB & T would be required to repay the FDIC based on those recoveries. Hence, even assuming that BB & T in fact received $1.8 million from the FDIC for charge-offs on the Kraz loan, BB & T will not receive a windfall when Kraz makes payments on the loan because BB & T will be required to reimburse the FDIC to the extent of those payments. The trial court’s rationale for ordering this credit — to prevent BB & T from “double-dipping” — is erroneous because the Commercial Shared Loss Agreement prevents such double-dipping by its own terms.

Moreover, we agree with BB & T that if a borrower could have the principal of his or her loan reduced due to a shared loss payment received from the FDIC during the course of foreclosure proceedings, then FDIC-regulated sales of closed banks’ assets would come to a halt. If the possibility existed that a trial court, using its legal or equitable powers, could grant the relief given Kraz in this case, no bank purchasing a closed bank’s loans would take seriously its responsibility to attempt to collect on those loans. Ironically, the relief afforded to Kraz by the trial court actually results in double-dipping in reverse — with the purchasing bank being compelled to both forgive the debtor for that portion of the debt paid by the FDIC and also repay the FDIC for the forgiven amount. Such a result turns the concept of equity on its head.

In sum, we hold that to the extent that the final judgment ordered BB & T to reduce the principal balance due from Kraz by any shared loss payment BB & T allegedly received from the FDIC, that judgment constituted an abuse of discretion. Accordingly, we reverse on this basis and remand for correction of this portion of the final judgment. In all other respects, we affirm.

Affirmed in part, reversed in part, and remanded for further proceedings.

CASANUEVA and KELLY, JJ., Concur.

      . The Commercial Shared Loss Agreement, which is a complex twenty-seven-page document, applies to residential and commercial loans, real estate, and certain securities purchased by BB & T from the FDIC. For purposes of this opinion, however, we focus solely on the provisions relating to BB & T’s purchase of residential and commercial loans from the FDIC.

      . Because the Commercial Shared Loss Agreement allowed BB & T to deduct the expenses incurred in obtaining quarterly recoveries from the amount of gross recoveries received in the same quarter, it was possible that net recoveries in any one quarterly period could be negative.

      . In addition to its initial brief and reply brief, BB & T submitted a fourteen-page "Motion to Certify Question” approximately one week before oral argument. This motion, which included two exhibits as additional evidence, included numerous arguments raised for the first time concerning the impropriety of the credit for the alleged shared loss payment. Because these arguments were not raised in BB & T’s initial brief, they are not properly before this court. Cf. Polyglycoat Corp. v. Hirsch Distribs., Inc., 442 So.2d 958, 960 (Fla. 4th DCA 1983) ("When points, positions, facts and supporting authorities are omitted from the brief, a court is entitled to believe that such are waived, abandoned, or deemed by counsel to be unworthy.”). Further, the exhibits attached to this motion as additional evidence are not properly before this court. See, e.g., Supinski v. Omni Healthcare, P.A., 853 So.2d 526, 532 n. 2 (Fla. 5th DCA 2003) ("It is elemental that appellate courts will not consider evidence that was not presented to the trial court for its consideration in making its decisions.”); Hillsborough Cnty. Bd. of Cnty. Comm'rs v. Pub. Employees Relations Comm’n, 424 So.2d 132, 134 (Fla. 1st DCA 1982) (same). Thus, while we have read these materials, they have played no part in our decision.


text:
    Duane REID, Appellant, v. STATE of Florida, Appellee.
    No. 4D13-155.
    District Court of Appeal of Florida, Fourth District.
    April 17, 2013.
    Rehearing Denied May 29, 2013.
    A. Randall Haas, Fort Lauderdale, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

Duane Reid, charged below with ten felony drug offenses, petitions this Court for a writ of prohibition to prevent his continued prosecution. For the reasons that follow, we deny the petition on the merits.

Petitioner was initially arrested for eighteen felony charges in October, 2007. (Case No. 07-19338CF10A). On November 20, 2007, the Broward State Attorney’s Office (hereinafter “state”) filed a “no information” decision. As a result, Petitioner was released from the Broward County jail on November 30, 2007.

Subsequently, on March 25, 2008 the state filed an information and re-alleged eight of the previously charged crimes in case no. 07-19338CF10A, as well as two additional charges. This “new” prosecution was assigned Case No. 08-5822CF10A. Arraignment for this new case was set on April 9, 2008. Notice for that court hearing was sent to a Plantation address provided by Petitioner to the Bro-ward County jail upon his release. The address of Petitioner’s arrest, which was listed as his then-residence in the probable cause affidavit in case no. 08-5822CF10A, was in Weston, not Plantation. When Petitioner failed to appear at arraignment, a capias warrant was issued, which was executed on December 23, 2011, out-of-state.

Petitioner’s attorney, who had represented him throughout these two prosecutions, filed a motion for discharge on February 3, 2012, contending that the state’s failure to provide Petitioner with actual notice of the re-filing of criminal charges entitled him to discharge based on Fla. R. Crim. P. 3.191(p)(3) without the necessity of filing a notice of expiration of speedy trial. After denying the state’s motion to strike Petitioner’s motion for discharge as premature, the trial court held three separate hearings in March and November 2012 on the motion. At these hearings, Petitioner and his brother testified that Petitioner was living in Weston, not Plantation, in October 2007 at the time of Petitioner’s arrest. Petitioner denied telling the arresting deputy sheriff that he lived in Plantation. That deputy testified to the contrary, stating that Petitioner indicated he was living in Plantation at an address where Petitioner was listed as “on the utilities.” The same deputy also explained that while he did not look for Petitioner at either the Weston or Plantation addresses listed as potential residences for Petitioner to serve the arrest warrant for the “refiled” case no. 08-5822CF10A, the deputy unsuccessfully searched for Petitioner in multiple locations and cities in Broward County from March to May, 2008.

The trial court denied Petitioner’s motion for discharge finding the state’s effort to notify Petitioner of the arraignment date for the charges in case no. 08-5822CF10A were “sufficient” under State v. Ingraham, 43 So.3d 164 (Fla. 4th DCA 2010), to require Petitioner to file a notice of expiration of speedy trial before being entitled to seek discharge under Rule 3.191. The trial court’s order specifically rejected as not credible Petitioner’s claim that he did not tell any law enforcement officer he lived in Plantation, rather than Weston.

In response, Petitioner’s attorney filed a petition for writ of prohibition with this court arguing that because Petitioner was not brought to trial on or before April 11, 2008 (175 days after his October 17, 2007 arrest), his continued prosecution was beyond the speedy trial period of Rule 3.191(a), entitling him to discharge. Petitioner also argued that his failure to file a notice of expiration of speedy trial before moving for discharge was excused by the failure of the state to provide him with actual notice of the “new” prosecution in case no. 08-5822CF10A. That case was in part based on conduct for which he was initially charged in case no. 07-19338CF10A, but for which the state had misled him to believe that no further prosecution was forthcoming based on the “no information” filed in the latter case. Petitioner contends that cases such as State v. Morris, 662 So.2d 378 (Fla. 4th DCA 1995), Puzio v. State, 969 So.2d 1197 (Fla. 1st DCA 2007), and Cordero v. State, 686 So.2d 737 (Fla. 3d DCA 1997), allow a criminal defendant, who was “lulled” into believing termination of his initial prosecution by a nolle prosse or “no information” decision meant he did not need to seek enforcement of his speedy trial right as to that prosecution, to enforce Rule 3.191 upon re-prosecution.

Prohibition is the appropriate remedy when a criminal defendant has been denied his right to a speedy trial due to wrongful denial of a motion for discharge filed under Rule 3.191, Dempsey v. State, 82 So.3d 928, 929 (Fla. 4th DCA 2011). The standard of review here is de novo as to the trial court’s denial of discharge, but deferential as to factual findings of that court which are supported by competent, substantial evidence, State v. Nelson, 26 So.3d 570, 574 (Fla.2010).

In Petitioner’s case, we find that while Morris, Cordero, and Puzio, all remain valid authority to grant the writ sought where no effort is made to timely notify a criminal defendant of re-instituted charges. Ingraham, applies. Here, the state made some effort to notify the defendant of the continued prosecution. In Ingraham, we held that to balance the right of a criminal defendant to timely assertion of his right to a speedy trial with the state’s right to prosecute a defendant, it was appropriate to consider the sufficiency of the state’s effort to locate and notify the defendant of a “new” or “renewed” prosecution on a “case-by-case” basis. 43 So.3d at 168.

Based on the trial court’s acceptance of state witness testimony that Petitioner informed the arresting deputy and the Broward County jail that his residence was in Plantation, not in Weston, the sending of notice of the arraignment date in case no. 08-5822CF10A to the Plantation address constituted sufficient notice to require him to file a notice of expiration of speedy trial before moving for discharge under Rule 3.191(p)(3), Fla. R. Crim. P. See also Fla. R. Crim. P. 3.030(a) and Fla. R. Jud. Admin. 2.516(b)(2). Further efforts to locate Petitioner by the arresting/investigating deputy, who visited locations in multiple cities in Broward County from March through May, 2008, certainly met the sufficiency requirements of Ingraham.

As a result, we deny the petition for writ of prohibition.

Petition denied.

MAY, C.J., GROSS and CIKLIN, JJ., concur.


author: LOGUE, J.

text:
    Jorge RUBIO, Appellant, v. ARCHDIOCESE OF MIAMI, INC., et al., Appellees.
    No. 3D12-85.
    District Court of Appeal of Florida, Third District.
    April 17, 2013.

      Herman, Mermelstein & Horowitz, P.A., and Jeffrey M. Herman and Stuart S. Mermelstein, Miami, for appellant.
    Gaebe, Mullen, Antonelli & DiMatteo, and Elaine D. Walter, Michael A. Mullen, and Joseph M. Winsby, Michael A. Mullen, for appellees.
    Before LAGOA, SALTER and LOGUE, JJ.
   LOGUE, J.

In this case, Jorge Rubio sued the Archdiocese of Miami, Inc. for negligence and vicarious liability related to alleged sexual abuse that he suffered as a child at the hands of his parish priest. The complaint at issue, however, was not filed until approximately thirty-five years after the alleged abuse ended. For the reasons stated below, we agree with the trial court that the statute of limitations barred Ru-bio’s claims. We therefore affirm the dismissal of the complaint.

I.

The amended complaint contains the following factual allegations, which we take as true only for the purpose of assessing whether the complaint survives the Archdiocese’s motion to dismiss. Rubio was a devout Catholic who served as an altar boy at Our Lady of Divine Providence when he was child. Starting when he turned ten years old, for a two-year period from 1976 to 1977, Rubio was sexually abused by his parish priest, a man named Francisco Carrera. The abuse followed the classic pattern in which the sexual predator groomed his selected child-victim with compliments and special favors. In Ru-bio’s case, the sexual predator used his position as a priest employed by the Archdiocese to prepare, commit, and conceal the abuse. The Archdiocese knew of Carr-era’s history of molesting underage boys, but nevertheless continued to hold Carrera out as a priest and spiritual leader. When it became of aware of Carrera’s misconduct, the Archdiocese failed to report the sexual abuse as required by law. Instead, the Archdiocese transferred Carrera to different parishes, and ultimately to Spain, to conceal his criminal behavior from his parishioners and the public. This conduct was part of a systematic cover-up that reached to the highest levels of the Vatican. The Archdiocese was negligent in hiring and retaining Carrera, and was vicariously liable, as the employer, for Carr-era’s misconduct. These are the pertinent allegations in the sixteen-page complaint.

It is undisputed that Rubio’s initial complaint was not filed until May 2011, approximately thirty-five years after the alleged abuse, at which time Rubio was forty-five years old. The Archdiocese moved to dismiss the complaint on statute of limitations grounds. The trial court dismissed the amended complaint with prejudice. This appeal followed.

II.

Normally, a claim for injuries based on another party’s negligent conduct must be filed within four years of the incident under the applicable statute of limitations. § 95.051, Fla. Stat. (2011). Rubio seeks to overcome the statute of limitations by the application of the doctrine of equitable es-toppel. We conclude that equitable estop-pel does not apply in this case because Rubio has not alleged any facts indicating the Archdiocese caused or induced him to refrain from filing suit within the limitations period.

The doctrine of equitable estoppel typically applies to avoid a statute of limitations defense where the injured party recognized the basis for the suit but the party that caused the injury induced the injured party to forbear from filing suit during the limitations period. Major League Baseball v. Morsani, 790 So.2d 1071, 1078 (Fla.2001). As explained by the Court,

a main purpose of the statute of limitations is to protect defendants from unfair surprise and stale claims. A prime purpose of the doctrine of equitable es-toppel, on the other hand, is to prevent a party from profiting from his or her wrongdoing. Logic dictates that a defendant cannot be taken by surprise by the late filing of a suit when the defendant’s own actions are responsible for the tardiness of the filing. The two concepts, i.e., the statute of limitations and equitable estoppel, thus work hand in hand to achieve a common goal, the prevention of injustice.

Id.

The Fourth District Court of Appeal has held that equitable estoppel did not apply to avoid the statute of limitations defense in a case with facts virtually identical to the instant case. In John Doe No. 23 v. Archdiocese of Miami, Inc., 965 So.2d 1186, 1187 (Fla. 4th DCA 2007), the plaintiff filed suit against the Archdiocese of Miami alleging that he had been sexually abused by a teacher and a clergyman at a Catholic high school more than thirty years earlier. In response to the Archdiocese’s statute of limitations defense, John Doe No. 28 asserted that the doctrine of equitable estoppel should apply because the Archdiocese had concealed its knowledge that its employees had abused other students. Id.

In rejecting this argument, the Fourth District noted that “[t]o assert equitable estoppel, the defendant must have engaged in wrongful conduct which ‘induced another into forbearing suit within the applicable limitations period.’ ” Id. (quoting Morsani, 790 So.2d at 1079). The district court observed, however, that during the time available to file the suit under the statute of limitations, the plaintiff knew the abuse had occurred, knew the identity of the abusers, and knew the abusers worked for the Archdiocese. John Doe No. 23, 965 So.2d at 1188. In light of this knowledge, the plaintiff’s failure to allege acts by the Archdiocese that “explain how he was induced by the Archdiocese to wait almost three decades to sue for abuse” precluded application of equitable estoppel. Id. at 1187-88. Concluding that equitable estoppel did not apply, the court held that the complaint had been properly dismissed. Id. at 1188.

We agree with the Fourth District’s decision in John Doe No. 23. As the court found in that case, so too, here, Rubio knew the abuse had occurred, knew the identity of the abuser, and knew the abuser worked for the Archdiocese. Yet, the amended complaint fails to allege any acts of the Archdiocese towards Rubio that caused him to delay filing his claims for the three decades that elapsed since the time he had allegedly been abused as a child. As such, there is simply no basis upon which to apply the doctrine of equitable estoppel.

Rubio, however, argues that his case should come within the rule announced by the Florida Supreme Court in Florida Department of Health & Rehabilitative Services. v. S.A.P., 835 So.2d 1091 (Fla.2002). S.A.P. involved a minor who had been burnt, beaten, and otherwise seriously abused at the age of four, while she was in a foster care placement that was supervised by the Department of Health and Rehabilitative Services. Id. at 1093. Because the abuse occurred at a young age, S.A.P. for years did not remember it. Id. at 1099. At the time of the abuse, the Department was the only legal entity (besides the foster parents who committed the abuse) who were in a position to assert and protect S.A.P.’s legal rights. Instead of protecting her legal rights when the abuse finally came to light, the Department allegedly falsified government reports, altered government records, and obstructed a law enforcement investigation to actively conceal its misdeeds. Id. With respect to the Department’s supervisory duties, the complaint alleged that the Department

falsified records so that it appeared that the case worker had conducted monthly supervision visits with [S.A.P.] and her sister. The records reveal that the foster home was frequently visited and that S.A.P. and her sister were doing fine. Had any interested adult examined these records prior to December 21, 1992, they would have been misled into believing that the department had reasonably, appropriately, and lawfully discharged its supervision duties.

Id. Moreover, in terms of timing: S.A.P. was abused in 1979; an internal departmental report documenting its wrong-doing was released at the end of 1992; she reached the age of majority in 1994; and she filed her lawsuit in 1995. Id. at 1094. The Court held that the Department, under these facts, was equitably estopped from asserting a statute of limitations defense. Id. at 1100.

S.A.P. is distinguishable from the instant matter. In S.AP., the plaintiff was a foster child at the time of the alleged abuse, and therefore a ward of the state within the ostensible protection and care of the Department. This relationship in S.A.P. caused the Department’s alleged actions to constitute such an egregious violation of their duty towards S.A.P. The very people tasked with protecting S.A.P. not only failed entirely in the discharge of that duty, but also violated laws and falsified government records to conceal their negligence, such that S.A.P., who had no active memory of the abuse until her late teen years, was unaware the Department had engaged in any wrongdoing until the results of an internal investigation were released in 1992. Moreover, S.A.P. filed her complaint within three years of this information coming to light. The Florida Supreme Court explicitly recognized that its holding in S:A.P. “is consistent with this Court’s reliance upon the principle that our courts will not protect defendants who are directly responsible for delays of filing because of their own willful acts.” Id. at 1094.

Concerning the holding of S.A.P., we find Justice Raoul Cantero’s dissenting opinion in Ryan v. Lobo De Gonzalez, 921 So.2d 572, 577 (Fla.2005) (Cantero, J., dissenting), persuasive. He wrote that “[s]everal facts in S.A.P. render that case unique” and indicated that the holding of S.A.P. should be narrowly construed:

We simply determined that, where a four-year-old child was sexually abused by foster parents; where the state actively concealed the abuse, obstructed a police investigation, and falsified records; and where the plaintiff filed suit within three years after the release of documents admitting the abuse, the doctrine of equitable estoppel prevented the state from asserting a statute of limitations defense.

Id.

Here, although Rubio asserts that the Archdiocese took actions to conceal Carr-era’s sexual abuse of Rubio and other boys, the amended complaint does not allege that the Archdiocese stood in the role of Rubio’s parents, which was essentially the role of the Department in S.A.P. It does not allege the Archdiocese falsified government reports or altered government records, or obstructed a law enforcement investigation. Moreover, the delay of three decades in the instant matter bears no relationship to the delay of three years past the revelation of the abuse in S.A.P. Accordingly, as did the Fourth District before us, we decline to extend S.A.P. to these facts. See John Doe No. 23, 965 So.2d at 1187.

III.

Rubio also asserts that equitable estop-pel should apply here because the Archdiocese breached its affirmative duty to disclose its knowledge of Carrera’s conduct, which it owed to Rubio because of the fiduciary relationship between the parties. As did the Fourth District in John Doe No. 23, we fail to see how any such fiduciary duty, even if one is assumed, caused Rubio to delay in filing his claim for over three decades. 965 So.2d at 1187-88. Similarly, we do not see how the Archdiocese’s alleged failure to report the sexual abuse, even if required by law at the time, caused Rubio to refrain from filing suit for thirty years.

IY.

In upholding the dismissal of the complaint in this case because of the delay of several decades in filing the claim, we are mindful that society benefits when survivors of child sexual abuse come forward and bear witness to what they were forced to endure as children. We certainly do not intend to discredit the courage of these survivors who break the silence that shielded their abusers. We hold only that Rubio’s lawsuit for money damages cannot be filed so long after the alleged injury was inflicted.

      . See, e.g., Fla. Dep't of Health & Rehabilitative Servs. v. S.A.P., 835 So.2d 1091, 1094 (Fla.2002) ("Because this case is before us on the trial court’s dismissal of S.A.P.’s second amended complaint, we must take all the factual allegations in her complaint as true and construe all reasonable inferences from those facts in her favor.”).


author: GROSS, J.

text:
    George W. TAYLOR, Appellant, v. Sherry B. TAYLOR, Appellee.
    No. 4D11-4832.
    District Court of Appeal of Florida, Fourth District.
    April 24, 2013.
    Rehearing Denied June 21, 2013.

      Susan R. Brown of Susan R. Brown, P.A., Hollywood, for appellant.
    William G. Crawford, Jr. of McDonald & Crawford, P.A., Fort Lauderdale, for ap-pellee.
   GROSS, J.

We affirm all aspects of the final judgment of dissolution save one-we reverse the award of the marital home as lump sum alimony and remand for division of the home according to the principles of equitable distribution.

After 22 years of marriage, the wife filed a dissolution action on May 8, 2008. There was a final hearing, which only the wife attended, and the circuit court entered a final judgment of dissolution on October 16, 2008. On February 28, 2009, the wife remarried.

In 2011, we reversed the final judgment because the husband did not have notice of the final hearing. See Taylor v. Taylor, 67 So.3d 359 (Fla. 4th DCA 2011). On remand, the husband appeared at the final hearing and represented himself.

The parties’ only significant asset was a marital home valued at $380,000. In the final judgment, the circuit court awarded the wife the husband’s “one-half interest in the marital residence as lump sum alimony” based on the rationale that the husband had demonstrated hostility against providing any spousal support. Reasoning that the wife was entitled to permanent alimony, the court observed that “to award the Wife any kind of monthly support will only encourage the Husband to continue to defeat the Wife’s right to support by in some way concealing or hiding his true earnings.”

The problem with the lump sum alimony award was that the original justification for the award had evaporated by the time of the 2011 hearing. In evaluating the need for spousal support, the court could not ignore the wife’s 2009 remarriage. Although the court correctly made the dissolution aspect of the judgment nunc pro tunc to October 16, 2008, the financial aspects of the 2011 judgment involved facts developed at the 2011 trial which the husband attended. Therefore, the 2011 judgment necessarily involved something more than memorializing a “previously taken judicial act,” making a nunc pro tunc order on all aspects of the dissolution inappropriate. Merritt v. Merritt, 802 So.2d 1206, 1209 (Fla. 2d DCA 2002) (quoting Whack v. Seminole Mem’l Hosp., Inc., 456 So.2d 561, 563 (Fla. 5th DCA 1984)); Briseno v. Perry, 417 So.2d 813, 814 (Fla. 5th DCA 1982).

Section 61.08(1), Florida Statutes (2008), authorizes permanent alimony “payments in lump sum.” Lump sum alimony is “not actually a third type of alimony” but “a means to accomplish the ends of rehabilitative or permanent alimony.” Borchard v. Borchard, 730 So.2d 748, 751 (Fla. 2d DCA 1999). It differs from other alimony remedies in that it may be comprised of real property, such as a spouse’s half-interest in a marital home, and it “establishes a fixed monetary obligation that vests immediately, is nonmodifiable, and does not terminate when the payee remarries or when the payor dies.” Pipitone v. Pipitone, 23 So.3d 131, 137 (Fla. 2d DCA 2009) (citing Borchard, 730 So.2d at 751); see also Halberstadt v. Halberstadt, 72 So.2d 810, 811 (Fla.1954) (permitting an award of real property as lump sum alimony); Simpson v. Simpson, 678 So.2d 882, 882 (Fla. 3d DCA 1996) (same).

To award lump sum alimony for the purposes of spousal support, the trial court must find “proof of special circumstances, where other forms of alimony are not available or appropriate.” Greene v. Greene, 895 So.2d 503, 512 (Fla. 5th DCA 2005) (footnote omitted). As this Court has explained,

two predicates have evolved for the award of lump-sum alimony. The first of these is that the trial court must find some special necessity for lump-sum payment of alimony. If support is needed, there must exist unusual circumstances which would require a non-modifiable award of support. These findings of special circumstances must be something above and beyond the justifications for an award of permanent periodic alimony.

Rosario v. Rosario, 945 So.2d 629, 632 (Fla. 4th DCA 2006) (citations omitted).

In the case at hand, the trial court was justified in finding, based upon the husband’s threats and history of non-payment, that “unusual circumstances” existed which justified the imposition of lump sum alimony over permanent periodic payments. See Coltea v. Coltea, 856 So.2d 1047, 1051 (Fla. 4th DCA 2003) (en banc) (approving a trial court’s award of lump sum alimony which “was intended to secure the payment of support by a spouse/parent with a history of refusing to pay such support”).

However, there was no “special necessity” for lump sum alimony because the wife’s remarriage terminated her entitlement to permanent alimony on February 28, 2009. Canakaris v. Canakaris, 382 So.2d 1197, 1202 (Fla.1980) (stating that, “[a]s a general rule, permanent periodic alimony is terminated upon the death of either spouse or the remarriage of the receiving spouse.” (citations omitted)). Therefore, the award of the husband’s entire share in the marital home constituted an abuse of discretion. See Jessee v. Jessee, 839 So.2d 842, 843 (Fla. 3d DCA 2003) (“Where the circumstances show no necessity nor legal justification, a distribution of marital property that creates such an inequitable impact constitutes an abuse of discretion.”); Perez v. Perez, 882 So.2d 537, 539 (Fla. 3d DCA 2004) (reversing where awarding the husband’s $50,000 share of the equity in the marital home as lump-sum alimony resulted in the wife retaining 82% of the parties’ assets); Rosario, 945 So.2d at 631-33 (reversing where, by virtue of receiving the husband’s interest in the marital home, the wife received 94% of the marital assets).

We therefore reverse the award of lump sum alimony and remand to the trial court to divide the marital home according to section 61.075, Florida Statutes (2008). We affirm the other aspects of the final judgment.

Affirmed in part, reversed in part, and remanded.

WARNER and CIKLIN, JJ., concur.