author: Gross, J. Forst, J.,

text:
    STATE of Florida, Appellant, v. Charles Wiley WORSHAM, Jr., Appellee.
    No. 4D15-2733
    District Court of Appeal of Florida, Fourth District.
    [March 29, 2017]

      Pamela Jo Bondi, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellant.
    Jack A. Fleischman of Fleischman & Fleischman, P.A., West Palm Beach, for appellee.
   Gross, J.

The state challenges an order granting appellee Charles Worsham’s motion to suppress. Without a warrant, the police downloaded data from the “event data recorder” or “black box” located in Wors-ham’s impounded vehicle. We affirm, concluding there is a reasonable expectation of privacy in the information retained by an event data recorder and downloading that information without a warrant from an impounded car in the absence of exigent circumstances violated the Fourth Amendment.

Worsham was the driver of a vehicle involved in a high speed accident that killed his passenger. The vehicle was impounded. Twelve days after the crash, on October 18, 2013, law enforcement downloaded the information retained on the vehicle’s event data recorder. The police did not apply for a warrant until October 22, 2013. The warrant application was denied because the desired search had already occurred.

.Worsham was later arrested and charged with DUI manslaughter and vehicular homicide. He moved to suppress the downloaded information, arguing the police could not access this data without first obtaining his consent or a search warrant. The state defended the search on the sole ground that Worsham had no privacy interest in the downloaded information, so that no Fourth Amendment search occurred. The trial court granted Wors-ham’s motion.

“A motion to suppress evidence generally involves a mixed question of fact and law. The trial court’s factual determinations will not be disturbed if they are supported by competent substantial evidence, while the constitutional issues are reviewed de novo.” State v. K.C., 207 So.3d 951, 953 (Fla. 4th DCA 2016) (internal citation omitted). An appellate court is bound by the trial court’s findings- of fact unless they are clearly erroneous. Id. The burden is on the defendant to show the search was invalid, “[h]owever, a warrant-less search constitutes a prima facie showing which shifts to the State the burden of showing the search’s legality.” Id. (internal citation omitted).

In Florida, citizens are guaranteed the right to be free from unreasonable searches and seizures by the Fourth Amendment to the Unites States Constitution and section 12 of Florida’s Declaration of Rights. Smallwood v. State, 113 So.3d 724, 730 (Fla. 2013). “The most basic constitutional rule” in the area of Fourth Amendment searches

is that “searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” The exceptions are “jealously and carefully drawn,” and there must be “a showing by those who seek exemption ... that the exigencies of the situation made that course imperative.” “[T]he burden is on those seeking the exemption to show the need for it.”

Id. at 729 (quoting Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971)).

“A Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” State v. Lampley, 817 So.2d 989, 990 (Fla. 4th DCA 2002) (quoting Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001)). This principle has been applied “to hold that a Fourth Amendment search does not occur ... unless ‘the individual manifested a subjective expectation of privacy in the object of the challenged search,’ and ‘society [is] willing to recognize that expectation as reasonable.’ ” Lampley, 817 So.2d at 990-91 (quoting Kyllo, 533 U.S. at 33, 121 S.Ct. 2038)).

Katz v. United States explained “the Fourth Amendment protects people, not places,” so “[w]hat a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” 389 U.S. 347, 351, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). One example is a car’s exterior, which “is thrust into the public eye, and thus to examine it does not constitute a ‘search.’ ” New York v. Class, 475 U.S. 106, 114, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986); see also Cardwell v. Lewis, 417 U.S. 583, 592, 94 S.Ct. 2464, 41 L.Ed.2d 325 (1974) (permitting warrantless search of an automobile’s exterior).

Nevertheless, information someone seeks to “preserve as private,” even where that information is accessible to the public, “may be constitutionally protected.” Katz, 389 U.S. at 351, 88 S.Ct. 507. This is why “a car’s interior as a whole is ... subject to Fourth Amendment protection from unreasonable intrusions by the police.” Class, 475 U.S. at 114-15, 106 S.Ct. 960; see also United States v. Ortiz, 422 U.S. 891, 896, 95 S.Ct. 2585, 45 L.Ed.2d 623 (1975) (“A search, even of an automobile, is a substantial invasion of privacy.”).

A car’s black box is analogous to other electronic storage devices for which courts have recognized a reasonable expectation of privacy. Modern technology facilitates the storage of large quantities of information on small, portable devices. The emerging trend is to require a warrant to search these devices. See Riley v. California, — U.S. —, 134 S.Ct. 2473, 189 L.Ed.2d 430 (2014) (requiring warrant to search cell phone seized incident to arrest); Smallwood, 113 So.3d 724 (requiring warrant to search cell phone in search incident to arrest); State v. K.C., 207 So.3d 951 (requiring warrant to search an “abandoned” but locked cell phone).

Noting that cell phones can access or contain “[t]he most private and secret personal information, Smallwood, 113 So.3d at 732, the Florida Supreme Court has distinguished these computer-like electronic storage devices from other inanimate objects:

[A]nalogizing computers to other physical objects when applying Fourth Amendment law is not an exact fit because computers hold so much personal and sensitive information touching on many private aspects of life.... [TJhere is a far greater potential for the “intermingling” of documents and a consequent invasion of privacy when police execute a search for evidence on a computer.

Id. (quoting United States v. Lucas, 640 F.3d 168, 178 (6th Cir. 2011)). Because of the “very personal and vast nature of the information” they contain, cell phones are “materially distinguishable from the static, limited-capacity cigarette packet in Robinson." Smallwood, 113 So.3d at 732. “[T]he search of a static, non-interactive container, cannot be deemed analogous to the search of a modern electronic device cell phone.” Id. The Smallwood court made clear that the opinion was “narrowly limited to the legal question and facts with which [it] was presented.” Id. at 741. Nonetheless, the court reiterated its desire to protect Fourth Amendment precedent “by ensuring that the exceptions to the warrant requirement remain ‘jealously and carefully drawn.’ ” Id. at 740.

The United States Supreme Court drew a similar distinction between a cell phone and other tangible objects in Riley v. California. The Court held that the search incident to arrest exception did not apply bécause neither rationale-the interest in protecting officer safety or preventing destruction of evidence-justified the warrant-less search of cell phone data. Riley, 134 S.Ct. at 2486-88. “Cell phones differ in both a quantitative and a qualitative sense from other objects that might be kept on an arrestee’s person. The term ‘cell phone’ is itself misleading shorthand; many of these devices are in fact minicomputers ....” Id. at 2489.

Searches of these “minicomputers,” with their “immense storage capacity,” are far more intrusive than searches' prior to the “digital age,” which were “limited by physical realities and tended as a general matter to constitute only a narrow intrusion on privacy.” Id. The capacity of these devices “allows even just one type of information to convey far more than previously possible.” Id. The Court concluded, “[t]he fact that technology now allows an individual to carry such information in his hand does not make the information any less worthy of the protection for which the Founders fought.” Id. at 2495.

It is an issue of first impression in Florida whether a warrant is required to .search an impounded vehicle’s electronic data recorder or black box. An event data recorder is a device installed in a vehicle to record “crash data” or technical vehicle and occupant information for a period of time before, during, and after a crash. NHTSA, Event Data Recorders, 49 C.F.R. § 563,5 (2015). Approximately 96% of cars manufactured since 2013 are equipped with event data recorders. Black box 101: Understanding event data recorders, Consumer Reports, http://www.eonsumer reports.org/cro/2012/10/black-box-101-understanding-event-data-recorders/index. htm, (published Jan. 2014).

Most of these devices are programmed either to activate during ah event or record information in a continuous loop, writing over data again and again until the vehicle is in a collision. Michelle V. Rafter, Decoding What's in Your Car’s Black Box, Edmunds, https://www.edmunds.com/cart echnology/cardilack-box-recorders-capture-crash-data.html (updated July 22, 2014). However, if triggered, the device can record multiple events. 49 C.F.R. § 563.9,

The National Highway Traffic Safety Administration has standardized the minimum requirements for electronic data recorders, mandating that the devices record 15 specific data inputs, including braking, stability control engagement, ignition cycle, engine rpm, steering, and the severity and duration of a crash. 49 C.F.R. § 563,7. Along with these required data inputs, the devices may record additional information like location or cruise control status and some .devices can even perform diagnostic examinations to determine whether the vehicle’s systems are operating properly. See Decoding ‘The Black Box’ with Expert Advice, American Bar Assoc. GP Solo Law Trends & News, http://www.americanbar. org/content/newsletter/publications/law_ trends_news_practice_area_e_newsletter_ home/decodingblackbox.html (May 2005); Vehicular Data Recorder Download, Collection, and Analysis, Collision Research and Analysis Inc., http://collisionresearch, com/services/event-data-recorder-O.

The information contained in a vehicle’s black box is fairly difficult to obtain. The data retrieval kit necessary to extract the information is expensive and each manufacturer’s data recorder requires a different type of cable to connect with the, diagnostic port. Rafter, supra. The downloaded data must then be interpreted by a specialist with extensive training. Id.; see also Melissa Massheder Torres, The Automotive Black Box, 55 Rev. Der. P.R. 191, 192 (2015).

The record reflects that the black box in Worsham’s vehicle recorded speed and braking data, the car’s change in velocity, steering input,' yaw rate, angular rate, safety belt status, system voltage, and airbag warning lamp information.

Extracting and interpreting the information from a car’s black box is not like putting a car on a lift and examining- the brakes or tires. Because the recorded data ■is not exposed to the public, and because the stored data is so difficult to extract and interpret, we hold there is a reasonable expectation of privacy in that information, protected by the Fourth Amendment, which required law enforcement in the absence of exigent circumstances to obtain a warrant before extracting the information from an impounded vehicle.

Although electronic data recorders do not yet store the same quantity of information as a cell phone, nor is it of the same personal nature, the rationale for requiring a warrant to search a cell phone is informative in determining whether a warrant is necessary to search an immobilized vehicle’s data recorder. These recorders document more than what is voluntarily conveyed to the public and the information is inherently different from the tangible “mechanical” parts of a vehicle. Just as cell phones evolved to contain more and more personal information, as the electronic systems in cars have gotten more complex, the data recorders are able to record more information. The difficulty in extracting such information buttresses an expectation of-privacy.

Recently enacted federal legislation enhances the notion that there is an expectation of privacy in information contained in an automobile data recorder. The Driver Privacy Act of 2015 states that “[a]ny data retained by an event data recorder ... is the property of the owner ... of the motor vehicle in which the event data recorder is installed.” § 24302(a), 49 U.S.C. § 30101 note (2015). The general rule of the statute is that “[d]ata recorded or transmitted by an event data recorder ... may not be accessed by a person other than an owner ... of the motor vehicle in which the event data recorder is installed.” § 24302(b) (emphasis added). There are only five exceptions to this rule, which include authorization'from a court or administrative authority or consent of the owner. § 24302(b)(l)-(5).'

A state court in California has addressed the Fourth Amendment’s application to a vehicle’s data recorder. That authority is not persuasive or controlling and was decided prior to the passing of the Driver Privacy Act of 2015.

People v. Diaz, held that the defendant lacked a privacy interest in his vehicle’s speed and braking data, obtained from the “sensing diagnostic module” after a fatal accident, 213 Cal.App.4th 743, 153 Cal.Rptr.3d 90 (2013). It was undisputed the search was conducted without a warrant, over a year after the accident. Id. at 96. There was testimony about the defendant’s speed at the time of the accident, but the officer conceded this was based on the information downloaded from the vehicle’s sensing diagnostic module. Id. at 94.

The coürt concluded that the defendant failed to demonstrate “a subjective expectation of privacy in the SDM’s recorded data because she was driving on the public roadway, and others could observe her vehicle’s movements, braking, and speed, either directly or through the use of technology such as radar guns or automated cameras.” Id. at 102. Since the diagnostic module “merely captured' information defendant knowingly exposed to the public,” downloading that information without a warrant was not a violation of the Fourth Amendment. Id. (citing Smith v. Maryland 442 U.S. 735, 741-45, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979) (holding installation of a pen register did not violate the Fourth Amendment because it- only recorded information “voluntarily conveyed ... in the ordinary course of business.”)).

Diaz is unpersuasive. It relied on Smith v. Maryland, which found no expectation of privacy in information “voluntarily conveyed” to a third party. 422 U.S. at 745, 99 S.Ct. 2577. However, when addressing digital devices, the Supreme Court has moved away from the Smith rationale. In United States v. Jones, the Court could have relied on Smith when considering the constitutionality of placing á GPS tracking device on a vehicle without a warrant, since the vehicle’s position “had been voluntarily conveyed to the public.” 565 U.S. 400, 132 S.Ct. 945, 951, 181 L.Ed.2d 911 (2012). Instead, the Court relied on a trespass theory to find that while “mere visual observation does not constitute a search,” attaching a device to the vehicle or reaching into a vehicle’s interior constitutes “encroach[ment] on a protected area.” Id. at 952-53.

Additionally, the Diaz court’s reliance on Smith v. Maryland seems misplaced because,, as the opinion acknowledged, sensory diagnostic modules can record much more information than what is observable to the public, including “the throttle, steering, suspension, brakes, tires, and wheels.” 213 Cal.App.4th at 748, 153 Cal.Rptr.3d 90. We disagree with Diaz that all black box data is “exposed to the public.”

Although the issue was not before the Court, the majority in Jones acknowledged that acquiring data “through electronic means, without an accompanying trespass,” could still be “an unconstitutional invasion of privacy.” Id. at 953.

In his concurring opinion, Justice Alito expressed a preference for analyzing the case by “asking whether [Jones’s] reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.” 132 S.Ct. at 958. Justice Alito observed that the Katz expectation-of-privacy test,

rests on the assumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations. Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant, changes in popular attitudes. New technology may provide increased convenience or security at the expense of privacy, and many people may find the trade off worthwhile.

Id. at 962. Under Justice Alito’s approach, the constant, unrelenting black box surveillance of driving conditions could contribute to a reasonable expectation of privacy in the recorded data. Considering that the data is difficult to access and not all of the recorded information is exposed to the public, Worsham had a reasonable expectation of privacy, and we agree with the trial court that a warrant was required before police could search the black box.

Affirmed.

Klingensmith, J., concurs.

Forst, J., dissents with opinion.

Forst, J.,

dissenting.

I respectfully dissent. There are not many court opinions addressing a warrant-less search of the “black box” event data recorder (“EDR”) attached to an individual’s motor vehicle. An opinion by a “Justice Court” in New York (similar to a circuit court in Florida) and an appellate court in California appear to be the only published precedent addressing the instant matter. Obviously, searches of EDRs in motor vehicles were not on the minds of the first United States Congress when the Fourth Amendment was introduced in 1789, and the United States Constitution’s right to privacy sheds no light on the subject (particularly since there is no provision actually describing such a right to privacy).

Thus, there is no definitive answer to the question posed in this case—whether the warrantless search of Appellee’s car’s EDR constituted a violation of his Fourth Amendment protection against unreasonable searches. Nonetheless, contrary to the well-reasoned majority opinion, I conclude that the “search” of the EDR attached to Appellee’s vehicle was not a search or seizure protected by the Fourth Amendment, as Appellee did not have a reasonable expectation of privacy with respect to the data in this particular EDR.

Background

The relevant facts are set forth in the majority opinion.

Analysis

As noted in the majority opinion, “[a] Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” State v. Lampley, 817 So.2d 989, 990 (Fla. 4th DCA 2002) (quoting Kyllo v. United States, 533 U.S. 27, 33, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001)). The reverse is also true: “a Fourth Amendment search does not occur ... unless ‘the individual manifested a subjective expectation' of privacy in the object of the challenged search,’ and ‘society [is] willing to recognize that expectation as reasonable.’ ” Id, at 991 (alterations in original) (quoting Kyllo, 533 U.S. at 33, 121 S.Ct. 2038).

In contrast to a cellular phone, an EDR does not contain ‘⅛ broad array of private information” such as photos, passwords, and other “sensitive records previously found in the home.” Riley v. California, — U.S. —, 134 S.Ct. 2473, 2491, 189 L.Ed.2d 430 (2014). Significantly, the EDR in the instant case did not contain GPS information relative to the vehicle’s travels, which may be subject to privacy protection. See United States v. Jones, 565 U.S. 400, 415-17, 132 S.Ct. 945, 181 L.Ed.2d 911 (2012) (Sotomayor, J., concurring) (expressing concern with GPS information which “reflects a wealth of detail about [a person’s] familial, political, professional, religious, and. sexual associations”). As noted in the majority opinion, the EDR in this case was only recording speed and braking data,- the car’s change in velocity, steering input, yaw rate, angular rate, safety belt status, system voltage, and airbag warning lamp information. Moreover, this data had not been knowingly inputted by Appellee; in fact, it is likely that Appel-lee did not even know that the vehicle he was driving had an EDR, Therefore, it would be quite a stretch to conclude that Appellee sought to preserve this information as “private.”

The majority opinion references the United States Supreme Court’s Riley decision as well as this Court’s recent opinion in State v. K.C., 207 So.3d 951 (Fla. 4th DCA 2016). Both cases involved cell phones. As distinguished from an EDR attached to an undercarriage of a motor vehicle, cell 'phones are usually carried close to an individual’s body, generally in a pants or shirt pocket or in a purse or belt case. The database of the EDR in this case carries extremely non-private, non-confidential information, such as the vehicle’s yaw rate; a cell phone, on the other hand, “collects in one place many distinct types of information—an address, a note, a prescription, a bank statement, a video—that reveal much more in combination than any isolated record.” Riley, 134 S.Ct. at 2489. A reasonably prudent seller of his/her used cellphone or personal computer would clear the hard drive of all personal information;. the seller of a used vehicle would be unlikely to take similar action with, respect to the vehicle’s EDR.

In our KG. opinion, we emphasized that, though abandoned by the phone’s owner, “[the] contents [of the cell phone] were still protected by a password, clearly indicating an intention to protect the privacy of all of the digital material on the cell phone or'able to be accessed by it.” K.C., 207 So.3d at 955. The private data in a cell phone is, for the most part, created by the owner and is password protected by the owner for his/her own benefit and privacy,’ The data on the EDR, however, was not' created by the owner and was not protected by a password by or for the benefit of the owner (even though there apparently was a password-like encryption on the data). This data is collected and stored in the interest of public safety, including the safety of the vehicle’s driver.

In the aforementioned New York Cfmst-mann decision which involved a prosecution for speeding and failing to • exercise due care, the court held that the motorist had only a diminished expectation of privacy following an accident with respect to the vehicle’s mechanical areas, and therefore retrieval by law enforcement of data stored to the vehicle’s SDM did not constitute an unreasonable search and seizure. Christmann, 776 N.Y.S.2d at 441-42; see also People v. Quackenbush, 88 N.Y.2d 534, 647 N.Y.S.2d 150, 670 N.E.2d 434, 439-40 (1996) (similar, and specifically referring to the diminished expectation of privacy yielding to the overwhelming state interest in investigating fatal accidents).

The California case of Diaz involved -a situation similar to the instant case. Diaz, 153 Cal.Rptr.3d 90, There was a motor vehicle accident and,, as part of their investigation, law enforcement personnel, without a warrant, downloaded the SDM. Id. at 96. The California Court of Appeal affirmed the trial court’s ruling that there was no reasonable expectation of privacy with respect to' the data in the SDM, finding the defendant failed to demonstrate “a subjective expectation of privacy in the SDM’s recordéd data because she was driving on the public roadway, and others could observe- her vehicle’s movements, braking, and speed, either directly or through the usd of technology such as radar guns or automated cameras.” Id. at 102. “[Technology merely captured information defendant knowingly exposed to the public—the speed at which she was travelling and whether she applied her brakes before the impact.” Id.

The majority opinion discounts the reasoning in Diaz, finding it neither “persuasive [n]or controlling.” Certainly, it is not controlling. However, it is persuasive, as the trial court’s decision denying the defendant’s motion to suppress, quoted in the District Court’s opinion, is particularly, logical:

“Assuming the defendant had such knowledge [that there was.an SDM.-in the car] and also had an expectation- of privacy, it does not seem that such expectation would be reasonable. These computer modules were placed in cars as safety devices to gather information such as braking and speed, so as to be able to deploy the air bag at an appropriate time. They were not designed, to gather any personal information nor designed or developed by the government to gather incrimination evidence from a driver. One cannot record communication of any kind on them. Indeed, they are not under the control of .the individual driver at all.”
The trial court further held: “[Defendant] had no reasonable expectation of privacy in her speed on a public roadway or when and if she applied her brakes shortly before the crash. If a witness, observed those actions and testified to them, the evidence would be admitted. If an expert in accident reconstruction tes-tilled to them, that evidence would' be admitted. There is no difference in an electronic witness whose memory is much more accurately preserved, both to exonerate and implicate defendants.”

Id. at 97.

The majority opinion maintains that Diaz inappropriately relied on Smith v. Maryland, 442 U.S. 735, 99 S.Ct. 2577, 61 L.Ed.2d 220 (1979), and implies that Jones is the operative Supreme Court precedent for this issue. Actually, the Diaz opinion discusses Jones at some length, noting that the Supreme Court decision was based “on the common law theory of trespass in placing the GPS on the defendant’s personal property, combined with the, police attempt to obtain information,” and the “trespass theory underlying Jones has no relevance [in this SDM search case] and, as the trial court aptly pointed out, the purpose of the SDM was not to obtain information for the police.” Diaz, 153 Cal.Rptr.3d at 101. The majority in the instant case suggests that the Jones opinion’s reliance on this trespass theory when it could have relied on the Smith theory means that Smith is no longer binding precedent. But the fact that the Supreme Court chose to resolve Jones on the narrower trespass grounds rather than to wade into the waters of voluntary conveyance of information from Smith means only that trespass is a viable Fourth Amendment consider ation, not that trespass is the only consid-. eration remaining.

Furthermore, in Jones, the government placed a GPS tracking device on the defendant’s car to monitor the vehicle’s movement and location. Jones, 565 U.S. at 403, 132 S.Ct. 945. By contrast, an EDR is installed on vehicles before they are sold/ leased to a driver and the purpose is not to track the. vehicle’s location or route. Moreover, although -the EDR is placed under the vehicle and most vehicle owners and drivers are unaware that there is such a black box attached to the vehicle, there is no attempt on the part of the government to secretively attach the EDR and have it record this information. Unlike the situation in Jones, the attachment of the .EDR is not directed-at any individual; as noted in the majority opinion, “Approximately 96% of cars manufactured since 2013 are equipped' with event data recorders” and they are installed prior to the conveyance of the vehicle to any individual.

Finally, I take issue, with the majority opinion’s holding that the Driver .Privacy Act of 2015 “enhances’ the notion that there is an expectation of privacy in information contained in an automobile data recorder.” What actually happened is that Congress took note that most vehicles were being sold with EDRs installed by the manufacturer; it determined that the data collected may be sensitive and/or private but not to the extent that extraction of this data by the government would be limited by the Constitution; and it thus chose to fill the void, just as seventeen state legislatures had previously done. Filling the void, where authorized by the Constitution, is a power properly delegated to the legislature, not thé judiciary. '

Conclusion

The data that the government extracted from the vehicle that was owned and driven by Appellee in this case was not information for which Appellee or any other owner/driver had a reasonable expectation of privacy. The data was not personal to Appellee, was not password.protected by Appellee, and was not being collected and maintained solely for the benefit of Appel-lee. The EDR was installed by the vehicle’s manufacturer at the behest of the National Highway Traffic Safety Administration and, as distinct from Jones, the purpose of the data collection is highway and driver safety. See New York v. Class, 475 U.S. 106, 113, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986) (“[A]utomobiles are justifiably the subject of pervasive regulation by the State [and ejvery operator of a motor vehicle must expect the State, in enforcing its regulations, will intrude to some extent upon that operator’s privacy.”).

Accordingly, as the extraction of data from the vehicle’s EDR in the instant case was not a search or seizure protected by the Fourth Amendment, I would reverse the trial court’s suppression of this evidence. Thus, I respectfully dissent.

      . The state raises inevitable discovery and good faith in its brief. We do not reach these issues because they were not preserved in the circuit court. Sunset Harbour Condo. Ass’n v. Robbins, 914 So.2d 925, 928 (Fla. 2005).

        . United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973) (permitting the warrantless search of an arrestee’s person incident to arrest if the officer had probable cause for the arrest).

      . As of this writing, 17 states have laws ad-, dressing event data recorders, which provide under what circumstances the data may be - downloaded. Privacy of Data From Event Data Recorders: State Statutes, National Conference of State Legislatures, http;//www,ncsl.org/ research/telecommunications-and-information-technology/privacy-of-data-from-event-data-recorders.aspx (Jan. 4, 2016). Flor- • ida does not have similar legislation.

      . See U.S.'Gov’t Accountability Off., Report to Chairman, Subcomm. on Privacy, Tech, and the Law, Comm, on the Judiciary, U.S. Senate, (Dec. 2013), http://www.gao.gov/assets/660/659509. pdf; Peter Gareffa, Senate Committee Approves Black Box Privacy Bill, Edmunds, (Apr. 18, 2014), https://www.edmunds.com/car-news/senate-committee-approves-black-boxprivacy-bill.html.

      . In General Motors vehicles, the EDR is also referred to as the "Sensing Diagnostic Module (SDM).” People v. Diaz, 213 Cal.App.4th 743, 153 Cal.Rptr.3d 90, 92 n.2 (2013); People v. Christmann, 3 Misc.3d 309, 776 N.Y.S.2d 437, 438 (Just. Ct. 2004). "The SDM ... has multiple functions; (1) it determines if a severe enough impact has occurred to warrant deployment of the air bag; (2) it monitors the air bag’s components; and (3) it permanently records information.” Bachman v. Gen. Motors Corp., 332 Ill.App.3d 760, 267 Ill.Dec. 125, 776 N.E.2d 262, 271-72 (2002).

      . Christmann, 776 N.Y.S.2d 437.

      . Diaz, 153 Cal.Rptr.3d 90. Diaz is discussed in this opinion. Another California appellate court decision, People v. Xinos, 192 Cal.App.4th 637, 121 Cal.Rptr.3d 496 (Ct. App. 2011), which held that the downloading of data from the vehicle's EDR following an accident violated the driver’s Fourth Amendment rights, is not discussed as it predates Diaz and was ordered not to be officially published. Id. at 507-12.

      .Appellee does not rely upon the Florida Constitution’s Right of Privacy, Article I, Section 23, Further, that provision yields to Article I, Section 12 with respect to "searches and seizures,” with the Florida Constitutional right "construed in conformity with the 4th Amendment to the United States Constitution, as interpreted by the United States Supreme Court.”

      . "A yaw rotation is a movement around the yaw axis of a rigid body that changes the direction it is pointing, to the left or right of its direction of motion. The yaw rate or yaw velocity of a car, aircraft, projectile or other rigid body is the angular velocity of this rotation ...Yaw (rotation), Wikipedia (Mar. 13, 2017, 2:37 PM), https://en.wikipedia.org/wiki/ Yaw_(rotation) (emphasis omitted). Yes, I also didn’t know what this was.


source: Caselaw Access Project

author: Kuntz, J.

license: Public Domain

text:
    PHILADELPHIA FINANCIAL MANAGEMENT OF SAN FRANCISCO, LLC, and Blue Lion Master Fund, L.P., Appellants, v. DJSP ENTERPRISES, INC., David J. Stern, Kumar Gursahaney, and Gary Curson, DPM. Appellees
    No. 4D16-870
    District Court of Appeal of Florida, Fourth District.
    [August 2, 2017]

      Daniel M. Cohen, Matthew E. Miller, and Jonathan W. Cuneo of Cuneo Gilbert & LaDuca, LLP, Washington, -DC; Charles J, LaDuca of Cuneo Gilbert & LaDuca, LLP, Bethesda, MD; Scott R. Shepherd and Nathan Zipperian of Shepherd, Finkelman, Miller & Shah, LLP, Weston; David M. Marek of Liddle & Robinson, L.L.P., New York, NY; Joseph E. White, III and Lester R. Hooker of Saxena White, P.A., Boca Raton; Richard S. Wayne and Thomas P. Glass of Strauss & Troy, LPA, Cincinnati, OH; and Jeffrey P. Harris of Statman Harris & Eyrich, LLC, Cincinnati, OH, for appellants.
    Sharon Kegerreis and Lara O’Donnell Grillo of Berger Singerman LLP, Miami, for appellee DJSP Enterprises, Inc.
    Spencer A. Tew and. Jeffrey A. Tew of Rennert Vogel Mandler & Rodriguez, P.A., Miami, for appellee David J. Stern.
    Dennis A. Nowak and Caitlin M. Trow-bridge of Rumberger, Kirk <& Caldwell, Miami, for appellee Kumar Gursahaney.
   Kuntz, J.

Philadelphia Financial Management of San Francisco, LLC and Blue Lion Master Fund,, L.P. (“the investors”) filed a lawsuit in the .circuit, court asserting claims for fraud and negligent misrepresentation. The court found the claims were barred by the .doctrine of res judicata because they were previously raised in a federal court action, and entered final summary judgment in favor of the defendants.

The investors raise two issues on appeal. First, they argue that res judicata should not have precluded their state court lawsuit due to the discovery of new evidence after the entry of the federal court’s judgment. As to this argument, we affirm without further discussion. See, e.g., Jarvis v. Analytical Lab. Servs., 499 Fed.Appx. 137, 140 (3d Cir. 2012) (citing L-Tec Elecs. Corp. v. Cougar Elec. Org., Inc., 198 F.3d 85, 88 (2d Cir. 1999)) (“Newly discovered evidence does not prevent the application of res judicata unless it was either fraudulently concealed or it could not have been discovered with due diligence.”).

Second, they argue the federal court’s judgment was not a final adjudication on the merits of their state claims and, therefore, the state lawsuit was not barred by res judicata. For the reasons explained below, we disagree and affirm the circuit court’s detailed order applying res judicata as a bar to the investors’ state court complaint.

Background

Analyzing the applicability of res judica-ta to the complaint in this case requires a brief review of the investors’ three lawsuits against the defendants:

a. The first federal lawsuit: Philadelphia Financial Management of San Francisco, LLC v. DJSP Enterprises., Inc., No. 0:10-cv-61261-WJZ, 2011 WL 4591541 (S.D. Fla. Sept. 30, 2011);
b. The second federal lawsuit: Philadelphia Financial Management of San Francisco, LLC v. DJSP Enterprises., Inc., No. 0:12-cv-61018-WJZ, 2013 WL 12080186 (S.D. Fla. Sept. 12, 2013), adopted by ECF No. 44 (Oct. 2, 2013), aff'd, 572 Fed.Appx. 713 (11th Cir. 2014); and
c. The instant state court action.

a. The First Federal Lawsuit

In 2010, several investors filed a lawsuit in the United States District Court for the Southern District of Florida against DJSP Enterprises, Inc., David J. Stern, and Kumar Gursahaney. See Phila. Fin. Mgmt. of S.F., LLC v. DJSP Enters., Inc., No. 0:10-cv-61261-WJZ, 2011 WL 4591541 (S.D. Fla. Sept. 30, 2011). The investors “pled a securities-fraud claim against all Defendants under Section 10(b) of the Securities Exchange Act of 1934 (‘the Act’) and SEC Rule 10b-5, as well as a controlling-persons claim against Stern and Gursahaney under Section 20(a) of the Act.” Id. at *8.

Judge Zloch dismissed the investors’ amended complaint in the first federal lawsuit without prejudice, denying a request for further amendment for failure to sufficiently advise the court as to the substance of any potential amendments. Id. at *17-18.

b. The Second Federal Lawsuit

In 2012, the investors filed the second federal lawsuit in the Southern District of Florida, See Phila. Fin. Mgmt. of S.F., LLC v. DJSP Enters., Inc., No. 0:12-cv-61018-WJZ, 2013 WL 12080186 (S.D. Fla. Sept. 12, 2013), adopted by ECF No. 44 (Oct. 2, 2013), aff'd, 572 Fed.Appx. 713 (11th Cir. 2014).

With the exception of additional paragraphs that did “not add material facts to the original allegations,” and two slightly amended paragraphs, the complaint filed in the second federal lawsuit was factually similar to the complaint in the first federal lawsuit. Id. at *2, *4. The investors argued to the federal court that the complaint itself was different because “it allege[d] two common-law claims,” state law claims of fraud and negligent misrepresentation. Id. at *5. Notably, the investors asserted that the district court had jurisdiction over the state law claims under both 28 U.S.G. § 1332 (diversity jurisdiction) and 28 U.S.C. § 1367(a) (supplemental jurisdiction).

Magistrate Judge Hunt issued a report and recommendation to Judge Zloch: concluding the complaint.filed in the second federal lawsuit was substantially similar to the complaint that was dismissed in the first federal lawsuit and it failed to cure any deficiencies; and recommending dismissal. Id. at *4. The report and recommendation also noted that while the court could exercise supplemental jurisdiction over the pendent state law claims, there was a presumption against pendent jurisdiction and the investors failed to address the issue in their briefing. Therefore, the magistrate judge recommended the state law claims be dismissed,, as well. Id. Later, Judge Zloch overruled the investors’ objections and adopted the magistrate judge’s report and recommendation.

The investors appealed the district court’s dismissal of the second federal lawsuit, and the Eleventh Circuit affirmed. Phila. Fin. Mgmt. of S.F., LLC v. DJSP Enters., Inc., 572 Fed.Appx. 713 (11th Cir. 2014). With regard to the investors’ state law claims, the Eleventh Circuit determined the issues were waived, stating, “In their appellate brief, the plaintiffs do not challenge the dismissal of the state-laws claims or the denial of their Rule 59(e) motion. As such, we consider these issues abandoned.” Id. at 718 n.3 (citation omitted). ' '

c. The State Court Lawsuit

After the Southern District dismissed the second federal lawsuit, but two weeks before the Eleventh Circuit affirmed the dismissal, the investors filed this lawsuit in the Broward County Circuit Court. The state court complaint named the same defendants and asserted the same state law claims at' issue in the "second federal lawsuit.

The defendants filed a.motion for summary-judgment, arguing that the investors were required to proceed with the state law claims in federal court—the forum the investors themselves had selected. The state circuit court determined: the federal district court’s dismissal of the second federal lawsuit was a final judgment on the merits; the state court action was precluded because there was a basis for subject matter jurisdiction in the federal action which the investors did not pursue; the state court action arose out of the same transaction or series of transactions as the federal action; and “all the elements of the doctrine of res judicata are present.” Therefore, the court granted the motion for summary judgment and entered judgment in favor of the defendants.

The investors appealed the court’s judgment, challenging the court’s application of the doctrine of res judicata.

Analysis

We review the trial court’s application of the doctrine of res judicata de novo. Philip Morris USA, Inc. v. Douglas, 110 So.3d 419, 427 (Fla. 2013).

a. Governing Law

First, we must determine whether state or federal preclusion principles apply. Generally, our ease law instructs that when res judicata is asserted based upon a prior federal court judgment, we apply federal claim preclusion principles. Dalbon v. Women’s Specialty Retailing Grp., 674 So.2d 799, 801 (Fla. 4th DCA 1996); Andujar v. Nat’l Prop. & Cas. Underwriters, 659 So.2d 1214, 1216 (Fla. 4th DCA 1995). As explained below, we would state it differently if we were writing on a clean slate.

The Supreme Court of the United States “has the last word on the claim-preclusive effect of all federal judgments” and we must apply whatever “federal rule that th[e] Court deem[s] appropriate.” Semtek Int’l Inc. v. Lockheed Martin Corp., 531 U.S. 497, 507-08, 121 S.Ct. 1021, 149 L.Ed.2d 32 (2001) (emphasis in original). The Supreme Court has directed that we apply federal common law when analyzing the preclusive effect of a federal judgment. Id. at 508, 121 S.Ct. 1021. However, “[tjhat federal common law determines the preclusive effect of an earlier [federal] judgment against a party ... has likely caused confusion” in the federal case law and our own. CSX Transp., Inc. v. Gen. Mills, Inc., 846 F.3d 1333, 1337 (11th Cir. 2017).

The confusion that the Eleventh Circuit discussed in General Mills exists because “federal common law” is misunderstood and applied inconsistently. Our case law is correct that we apply federal common law when addressing the preclu-sive impact of a federal court’s judgment. However, our case law after Semtek does not distinguish between the judgments of a federal court when exercising its federal question jurisdiction and judgments of a federal court when exercising its diversity jurisdiction over the plaintiffs claims. We uniformly apply a preclusion standard that was borrowed from the federal courts. Consequently, we have confused the law that Semtek compels us to follow.

Based upon Semtek, “federal common law” applies when determining the preclusive impact of a prior federal judgment. However, “the federal common law contains different rules of claim preclusion that change depending on the form of jurisdiction exercised by the federal court that rendered the underlying judgment.” Dan Ryan Builders, Inc. v. Crystal Ridge Dev., Inc., No. 16-0401, 803 S.E.2d 519, 529, 2017 WL 2537018, at *9 (W. Va. June 8, 2017).

When a federal court enters a judgment exercising its federal question jurisdiction, federal preclusion principles apply. Heck v. Humphrey, 512 U.S. 477, 488 n.9, 114 S.Ct. 2364, 129 L.Ed.2d 388 (1994). However, when a federal court enters a judgment exercising its diversity jurisdiction, the federal common law borrows from the state law where the action is pending. Semtek, 531 U.S. at 508, 121 S.Ct. 1021. In other words, when analyzing the preclusive effect of a judgment issued by a federal court exercising its diversity jurisdiction courts apply federal common law which, in that instance, requires application of the forum state’s law. Id.; see also Taylor v. Sturgell, 553 U.S. 880, 891, 128 S.Ct. 2161, 171 L.Ed.2d 155 (2008) (citing Semtek, 531 U.S. at 508, 121 S.Ct. 1021) (“For judgments in diversity cases, federal law incorporates the rules of preclusion applied by the State in which the rendering court sits.”).

Thus, this court’s prior decisions looked to the federal preclusion standard when we could, in fact we should, have looked to our own. Because we need not cede our state laws and rules to the federal system when not compelled to do so, in the appropriate case—one where the correct application of Semtek impacts the result—we may need to determine whether our language should be refined to more accurately reflect the Supreme Court’s holding. However, as explained below, this is not that case. In this case, we will apply federal common law principles as directed by Semtek except when our case law issued after Semtek compels us to do otherwise. In re Rule 9.331, 416 So.2d 1127, 1128 (Fla. 1982) (“[A] three-judge panel of a district court should not overrule or recede from a prior panel’s ruling on an identical point of the law.”); see also Bryan A. Garner, The Law of Judicial Precedent 303 (2016) (“With an intermediate appellate court, an earlier horizontal precedent nearly always rules.”).

b. Res Judicata Generally

Res judicata is a term applied to various forms of preclusion. See generally 18 Charles Alan Wright et al., Federal Practice and Procedure § 4402 (2d ed. 2002). It is also a term that is applied inconsistently. See Douglas, 110 So.3d at 433, 437; see also R.J. Reynolds Tobacco Co. v. Marotta, 214 So.3d 590, 593 (Fla. 2017).

In modem times, the “preclu-sive effect of a judgment is defined by claim preclusion and issue preclusion, which are collectively referred to as res judicata.” Sturgell, 553 U.S. at 892, 128 S.Ct. 2161. More specifically, res judicata is now recognized as a general term for various different forms of preclusion including claim preclusion, and a separate category of defenses commonly referred to as issue preclusion, collateral estoppel; es-toppel by judgment, and direct estoppel. See id. at 892 n.5, 128 S.Ct. 2161; Kaspar Wire Works, Inc. v. Leco Eng’g & Mach., Inc., 575 F.2d 530, 535 (5th Cir. 1978); see also R.J. Reynolds Tobacco Co. v. Brown, 70 So.3d 707, 715 (Fla. 4th DCA 2011); Zikofsky v. Mktg. 10, Inc., 904 So.2d 520, 525 (Fla. 4th DCA 2005).

When applying res judicata to a judgment of a federal court arising pursuant to the court’s diversity jurisdiction, Semtek directs us to apply the “federal common law” which, in that instance, is the law of the forum state. Generally, in Florida, claim preclusion applies “if the subsequent claim satisfies the following four, elements: ‘i) identity in the thing sued for; 2) identity of the cause of action; 3) identity of persons and parties of the action; and 4) identity of the quality in the person for or against whom the claim is made.’ ” W & W Lumber of Palm Beach, Inc. v. Town & Country Builders, Inc., 35 So.3d 79, 83 (Fla. 4th DCA 2010) (quoting Signo v. Fla. Farm Bureau Cas. Ins. Co., 454 So.2d 3, 4 (Fla. 4th DCA 1984)).

However, as noted above, our case law after Semtek requires that we apply a slightly different test. See, e.g., Anderson v. Vanguard Car Rental USA Inc., 60 So.3d 570, 572 (Fla. 4th DCA 2011) (recognizing the requirement to apply the “federal common law” but proceeding to apply a “federal” res judicata test), In this case, we reach the same result regardless of whether “federal common law” looks to state or federal law for purposes res judi-cata. Therefore, we apply the test set forth in our earlier cases from which this panel is bound.

As such, we apply res judicata, or claim preclusion, to the judgment of a federal court when “(1) there has been a final judgment on the merits, (2) rendered by a court of competent jurisdiction, (3) in a case with identical parties, (4) on the same cause of action.” Aronowitz v. Home Diagnostics, Inc., 174 So.3d 1062, 1065-66 (Fla. 4th DCA 2015) (quoting Anderson, 60 So.3d at 572).

c. Res Judicata Applied to the Investors’ Complaint

Of the four parts of the test we set forth in Aronowitz, it is the first part that we focus on in this case. The second, third, and fourth parts of the test are unquestionably satisfied, as the lawsuits involved the same parties, the same causes of action, and a court of competent jurisdiction. Therefore, we analyze only the first part of the test which requires us to determine whether there was a final judgment on the merits.

The investors argue that the federal district court’s dismissal of their second federal lawsuit was not an adjudication on the merits. They argue that this Court “has, without exception, held that dismissals not involving an adjudication of the merits by a federal court, regardless of whether they are effected voluntarily by the" plaintiff, or involuntarily by the court, or some combination of the two, do not preclude the subsequent litigation of those claims in a Florida court.” We disagree.

In Anderson, a pro se plaintiff filed a complaint in federal court asserting both federal and state claims. 60 So.3d at 572. Unlike in this case where the federal complaint .specifically invoked the district court’s diversity jurisdiction, the plaintiff relied exclusively on the federal court’s supplemental jurisdiction over the state law claims. Id. .However, he voluntarily dismissed the state law claims prior to the federal court ruling on them. Id. We determined that res judicata did not bar his claims because the federal and state claims arose under a different sovereign and the state claims were dismissed prior to the adjudication of any claims. Id. at 573. We, focused on the voluntary dismissal and held that “Anderson’s voluntary dismissal of his state law claims in federal court does not bar adjudication of those claims in a Florida state court.” Id

The investors argue that the pro se plaintiff in Anderson could have brought his claims in federal court under both diversity and supplemental jurisdiction. Therefore, according to the investors, the cases are indistinguishable. But Anderson does not state that the plaintiff could have invoked the federal court’s diversity jurisdiction and the record reflects that the he only invoked the federal court’s supplemental jurisdiction over his state law claims.

Here, the investors did not voluntarily dismiss their state law claims. While the magistrate judge’s recommendation was to dismiss the federal lawsuit and to decline exercising supplemental jurisdiction over the state claims, the investors had not relied exclusively on supplemental jurisdiction in bringing those claims. Instead, the investors had relied upon both supplemental jurisdiction and diversity jurisdiction. The magistrate judge may have overlooked that fact because the investors did not address the issue in their briefs in response to the defendants’ motion to dismiss in the federal court. Phila. Fin. Mgmt. of S.F., 2013 WL 12080186, at *5.

The investors sought reconsideration after the district court adopted the magistrate judge’s report and recommendation, but again failed to note that'their complaint had asserted diversity jurisdiction. And, while they appealed the district court’s order, they did not raise the issue on appeal, either, In fact, the Eleventh Circuit addressed the state claims in its opinion noting that “[i]n their appellate brief, the plaintiffs do not challenge the dismissal of the state-laws claims or the denial of their Rule 69(e) motion. As such, we consider these issues abandoned.” Phila. Fin. Mgmt. of S.F., 572 Fed.Appx. at 718 n.3.

The investors clearly knew of the existence of diversity jurisdiction, as they themselves asserted it in their complaint. Yet they abandoned it in opposition to the defendant’s motion to dismiss and on appeal. Therefore, in this state court proceeding, the circuit court appropriately relied upon Kale v. Combined Insurance Co. of America, 924 F.2d 1161 (1st Cir. 1991), in its order dismissing the case based upon res judicata.

In Kale, the court framed the issue as follows:

[W]hen a state-law claim, originally brought pendent to a federal claim, is dismissed without prejudice for want of subject matter jurisdiction following rejection of the joined federal claim on the merits, under circumstances where the plaintiff could have asserted an alternative jurisdictional basis but did not, and the plaintiff thereafter brings a new suit against the same defendant which includes the pendent state-law claim as well as other state-law claims which could have been pleaded in the initial suit; quaere: are the state-law claims in the second suit precluded by the original adjudication?

Id. at 1165. Finding the plaintiffs federal and state claims arose from the same cause of action, the court held that “unless res judicata is to be robbed of its doctrinal significance, [the plaintiff] had an obligation to cluster his theories of recovery in [the first federal action], by whatever necessary, jurisdictional means, or else forever hold his peace.” Id. at 1166.

Kale cited to Shaver v. F.W. Woolworth Co., 840 F.2d 1361 (7th Cir. 1988). In Shaver, the federal court granted summary judgment to the defendant on the plaintiffs federal claims and dismissed the plaintiffs state claims for lack of pendent jurisdiction. The plaintiff knew diversity jurisdiction existed, yet made no effort to pursue his state law claims in the federal court after they were dismissed. The Seventh Circuit found the plaintiffs state law claims were thereafter barred by the doctrine of res judicata. The Seventh Circuit held that “[b]ecause Shaver neglected to assert the existence of diversity jurisdiction in his prior action in order to pursue his breach of contract claims, both the strict test of and the policy behind the res judicata doctrine bars the present action.” Shaver, 840 F.2d at 1367-68.

More recently, the Eleventh Circuit addressed a similar situation. In Shurick v. Boeing Co., 623 F.3d 1114 (11th Cir. 2010), the plaintiff filed a qui tarn lawsuit in federal court and a complaint in state court asserting violations of the Florida Whistleblower Act. The defendant removed the whistleblower action to federal court based upon the federal court’s diversity jurisdiction and the two cases proceeded separately in federal court. In 2008, the federal court dismissed the qui torn action with prejudice and the dismissal was affirmed on appeal. Id. at 1116 (citing United States ex rel. Shurick v. Boeing Co., 330 Fed.Appx. 781 (11th Cir. 2009)). Later, in 2010, the federal court granted summary judgment in the whistleblower action in favor of the defendant. Id. The plaintiff appealed and the Eleventh Circuit sua sponte ordered supplemental briefing regarding the preclusive impact of the dismissal of the qui tam action. Id. The court rejected the plaintiffs argument that he filed his lawsuits in different courts, and also the plaintiffs argument that the claims arose under different sovereigns. Id. at 1117. The court determined that the federal claim and state claim arose from the same nucleus of operative facts and, therefore, the 2008 dismissal of the federal claim required dismissal of the state claim. Id. at 1118.

Here, when the investors filed their second federal lawsuit asserting federal claims and state claims arising from the same cause of action, they invoked the federal court’s diversity jurisdiction over the state law claims. When the federal court dismissed the claims, the investors chose not to appeal the dismissal of the state claims nor otherwise challenge the dismissal. They cannot now proceed on those claims in state court.

Conclusion

In their second federal action the investors invoked the federal court’s diversity jurisdiction over their state law claims which arose under the same nucleus of operative facts as their federal claims. However, facing dismissal of their state law claims for lack of supplemental jurisdiction, the investors failed to defend their claims in federal court by advising the court that they had invoked the court’s diversity jurisdiction. They failed to raise the issue in their motion for reconsideration of the judgment entered against them, and failed to address the claims on appeal to the Eleventh Circuit. These actions led the Eleventh Circuit to conclude that the investors’ state law claims were abandoned.

The investors then proceeded to file the identical state law claims against the same parties in state court. A party cannot sit idly and watch a court of competent jurisdiction decline to hear a dispute, and later try to assert the same claims in a different forum. The district court’s judgment against them, affirmed by the Eleventh Circuit, precluded the investors from proceeding with the same claims in state court. Therefore, the circuit court applied res judicata correctly, and the court’s final summary judgment is affirmed.

Affirmed.

Gross and Conner, JJ., concur.

      . As noted, in this case the investors’ complaint in the second federal lawsuit invoked the court’s federal question jurisdiction over the federal claims and both diversity jurisdiction and supplemental jurisdiction over their remaining claims. However, in his report and . recommendation the magistrate judge declined to exercise supplemental jurisdiction over the state law claims and, therefore, presumably overlooked the fact that the investors had asserted diversity jurisdiction. In this case we. are following our case law which applies the same test for res judicata regardless of whether the federal court was exercising its supplemental or diversity jurisdiction over the state law claims. Therefore, we need not determine whether the federal court was exercising its diversity jurisdiction, as pled by the investors, or its supplemental jurisdiction, as indicated in the magistrate judge's report and recommendation.

      . Our holding in Anderson was based upon the specific facts of that case. In certain circumstances, res judicata applies to a state claim asserted after the entry of judgment by a federal court exercising its supplemental jurisdiction. See generally Restatement (Second) of Judgments § 25 (1982) ("Even if diversity of citizenship between the parties did not exist, the federal court would have had ‘pendent’ jurisdiction to entertain the state theory. Therefore unless it is clear that the federal court would have declined as a matter of discretion to exercise that jurisdiction (for example, because the federal claim, though substantial, was dismissed in advance of trial), the state action is barred."). Res judicata applies in those circumstances because “the doctrine of res judicata not only bars issues that were raised, but it also precludes consideration of issues that could have been raised but were not raised in the first case.” Fla. Dept. of Transp. v. Juliano, 801 So.2d 101, 105 (Fla. 2001).


author: Levine, J.

text:
    The WARWICK CORPORATION, All Sunny Hotels, Inc., and H.E.S. Hotels Corp., Appellants, v. Matthew TURETSKY, Alliant Insurance Services, Inc., Swett & Crawford of Illinois, Inc., Chubb Custom Insurance Company, and Landmark American Insurance Company, Appellees.
    No. 4D16-2567
    District Court of Appeal of Florida, Fourth District.
    [August 16, 2017]

      Joel D. Eaton of Podhurst Orseck, P.A., Miami, and Blaut Weiss Law Group, Plantation, for appellants.
    Lauren D. Levy of Levy Law Group, Coral Gables, for appellee Landmark American Insurance Company.
   Levine, J.

Appellants have two insurance policies for their four hotels. The primary policy limit is $5,000,000 per occurrence and the excess policy limit is $21,035,000 per occurrence, with the excess policy payout not to exceed the listed value of each of the four insured hotels. Appellants argue the excess policy is ambiguous because the “statement of values,” which includes the listed insured value of each of the four hotels, is not attached to the excess insurance policy and is not titled “Statement of Values.” Appellants also claim the excess policy is “illusory” because one of the four insured hotels is valued at $5,000,000, which would equal the total value covered and payable under the primary policy.

We conclude that the policy is unambiguous because the “Statement of Values” was incorporated by reference in the excess policy and sufficiently authenticated. We also conclude that the excess policy is not illusory because the terms of the excess policy do not “completely contradict” each other, and does not completely negate the entirety of- coverage it purportedly provides. We affirm the trial court’s summary judgment to that effect.

Appellants, The Warwick Corporation, All Sunny Hotels, Inc., and H.E.S. Hotels Corp. (collectively ‘Warwick”), had a primary insurance policy with Chubb Insurance Company for $5,000,000, which covered three hotels in New Orleans, Louisiana; Fort Lauderdale, • Florida; and Deerfield Beach, Florida.

Warwick also had an excess insurance policy with Landmark American Insurance Company. The excess policy insured the three hotels referenced above as well as an additional hotel located in St. Thomas in the Virgin Islands. The excess policy insured the four properties for “$21,035,000 Per Occurrence not to exceed values reported,” and covered “All Risk Excluding Flood, Earth Movement and Windstorm/Hail.” The excess policy also contained the following Schedule Limit of Liability endorsement:

It is understood and agreed that the following special terms and conditions apply to this policy:
1. In the event of loss hereunder, liability of the Company shall be limited to the least of the following in any one “occurrence”:
b. 100% of the individually stated value for each scheduled item of property insured at the location which had the loss as shown .on the latest Statement of Values on file with this Company, less applicable deductibles and primary and underlying excess limits. If no value is shown for a scheduled item then there is no coverage for that item ....

No “statement of values” was attached to the Landmark Policy. However, when Warwick’s insurance agent marketed the policy to insurers, the agent used a spreadsheet titled “Property Spreadsheet” to represent the value of the four properties and transmitted the spreadsheet to wholesale brokers and Landmark. The agents, brokers, and Landmark all agreed the spreadsheet was a statement of values. The latest version of the alleged statement of values on file with Landmark stated the total value of the New Orleans hotel was $5,000,000; the value of the Fort Lauder-dale hotel was $7,035,000; the value of the Deerfield Beach hotel was $2,000,000; and the value of the St. Thomas hotel was $12,000,000. The total value of the properties was $26,035,000. The excess coverage for the New Orleans hotel was “shell coverage,” as requested by Warwick, that covered only the building.

Landmark used the alleged statement of values to calculate the Landmark Policy’s premium. Landmark decided to charge the minimum premium, $2,625; to insure the New Orleans property because triggering the policy would require that a single occurrence damage both the New. Orleans property and at least one other property.

Warwick subsequently suffered a loss at the New Orleans hotel that it alleged was in excess of the primary policy. Landmark claimed it was not liable because the policy stated Landmark was liable only for the property’s value, $5,000,000, less the primary insurance, also $5,000,000.

Warwick sued Landmark for a declaratory judgment and breach of contract, claiming Landmark was liable under the excess policy. Both Warwick and Landmark moved for summary judgment. Warwick argued the Landmark Policy was ambiguous because the property spreadsheet used as the statement of values was not titled “Statement of Values,” and Landmark could not cure this ambiguity with extrinsic evidence. Warwick alternatively argued the Landmark Policy was illusory because it did not provide coverage for the New Orleans hotel. Landmark argued that it had sufficiently authenticated the latest statement of values, which was incorporated by reference, and that it was not liable under the unambiguous terms of the excess policy.

The trial court granted Landmark’s motion for summary judgment. The trial court found that Landmark’s policy incorporated the statement of values by reference and that the unambiguous terms of the policy indicated that Landmark was not liable. The trial court refused to rewrite the policy to create liability.

On appeal, Warwick reiterates the argument it made at trial and states the trial court erred in considering extrinsic evidence to resolve the allegedly ambiguous policy.

We review the trial court’s grant of summary-judgment de novo. See Volusia Cty. v. Aberdeen at Ormond Beach, L.P., 760 So.2d 126, 130 (Fla. 2000).

Landmark’s policy is clearly unambiguous. A contract is ambiguous where the language at issue “is reasonably susceptible to more than one interpretation.” Lambert v. Berkley S. Condo. Ass’n, 680 So.2d 588, 590 (Fla. 4th DCA 1996). The terms of Landmark’s policy are not “reasonably susceptible to more than one interpretation.” See id. The policy states that the “Limit Insured” is “$21,035,000 Per Occurrence not to exceed values reported.” (emphasis added). An endorsement to the policy states Landmark’s liability is limited to “100% of the individually stated value for each scheduled item of property insured at the location which had the loss as shorn on the latest Statement of Values on file with [Landmark], less applicable deductibles and primary and underlying excess limits.” (emphasis added). Thus, the policy has a total limit of liability of $21,035,000, but liability for each scheduled item is limited to that item’s individual value.

The fact that the “statement of values” is not titled as such and is not attached to the policy does not render the policy ambiguous. An outside document may be incorporated by reference into a contract. See BGT Grp., Inc. v. Tradewinds Engine Servs., LLC, 62 So.3d 1192, 1194 (Fla. 4th DCA 2011). This outside document must be authenticated, and authenticity is a question of fact. See § 90.901, Fla. Stat. (2016). (stating that authentication requires the proponent of the evidence to offer evidence “to support a finding that the matter in question is what its proponent claims”); Sunbelt Health Care v. Galva, 7 So.3d 556, 559-60 (Fla. 1st DCA 2009). Thus, we find no error in the trial court using extrinsic evidence to resolve the factual question of whether the document titled “Property Spreadsheet” was the latest statement of values on file with Landmark.

We next consider whether the Landmark Policy is illusory because it does not provide the coverage that Warwick claimed it obtained.

‘When limitations or exclusions completely contradict the insuring provisions, insurance coverage becomes illusory.” Purrelli v. State Farm Fire & Cas. Co., 698 So.2d 618, 620 (Fla. 2d DCA 1997). Thus, “[a]n insurance policy cannot grant rights in one paragraph and then retract the very same right in another paragraph called an ‘exclusion.’ ” Tire Kingdom, Inc. v. First S. Ins. Co., 573 So.2d 885, 887 (Fla. 3d DCA 1990). Where a policy contains internally inconsistent language, a court must “adopt[ ] ... the construction [of the policy] that will afford the most coverage.” Id. See also Zucker For BankUnited Fin. Corp. v. U.S. Specialty Ins. Co., 856 F.3d 1343, 1352 (11th Cir. 2017) (“So when a policy exclusion does swallow up an insuring provision, the Florida Courts conclude that the policy is ambiguous, and resolve that ambiguity by ignoring the exclusion.”) (citations omitted).

A policy is illusory only if there is an internal contradiction that completely negates the coverage it expresses to provide. For example, in Purrelli, the policy purported to cover certain intentional torts, but excluded intended acts. 698 So.2d at 619. This policy was illusory as it was effectively “complete nonsense.” Id. at 620 (citation omitted); see also Princeton Express v. DM Ventures USA LLC, 209 F.Supp.3d 1252, 1260 (S.D. Fla. 2016) (stating a policy was illusory where it stated it covered advertising injury and also stated advertising injury was excluded); Certain Underwriters at Lloyds, London Subscribing to Policy No. SA 10092-11581 v. Waveblast Watersports, Inc., 80 F.Supp.3d 1311, 1318-19 (S.D. Fla. 2015) (finding policy illusory where it covered parasailing but excluded watercrafts).

On the other hand, where a limitation on coverage does not “completely swallow[] the insuring provision,” the policy is not illusory. See Auto-Owners Ins. Co. v. Christopher, 749 So.2d 581, 582 (Fla. 5th DCA 2000). For example, in Interline Brands, Inc. v. Chartis Specialty Insurance Co., 749 F.3d 962 (11th Cir. 2014), the insured, a product distribution and marketing corporation, purchased a policy that covered advertising injury. However, the policy excluded advertising injury “arising out of or resulting from, caused directly or indirectly, iñ whole or in part by, any act that violates any statute, ordinance or regulation of any federal, state or local government.” Id. at 964. The insured was sued for sending junk faxes in violation of federal law and the insurer denied coverage. The Eleventh Circuit held the policy was not illusory because

the Exclusion only excludes from coverage violations of a statute, ordinance, or regulation (i.e. not common law) and only in relation to “sending, transmitting or communicating of any material or information.” While this is a significant Exclusion (especially in light of Interline’s business), it does not render the policy absurd or completely contradict the insuring provisions.

Id. at 967; see also Colony Ins. Co. v. Total Contracting & Roofing, Inc., No. 10-23091-CIV, 2011 WL 4962351, *5 (S.D. Fla. Oct. 18, 2011) (stating that for the policy in that case to be illusory it “would need to expressly cover damages from hazardous materials and simultaneously exclude damages arising from hazardous materials”).

In the instant case, the policy’s terms do not “completely contradict” one: another like the terms in Purrelli. See Purrelli, 698 So.2d at 619. Although the limitations op triggering the excess policy are “significant,” these limitations do not “render the policy absurd or completely contradict the insuring provisions.” See Interline Brands, Inc., 749 F.3d at 967.

We recognize, that Landmark will not, barring extraordinary circumstances, normally be liable for damages to the New Orleans hotel because significant distances separate it from the other insured properties and the policy excludes wind, .water, and earth movement. Nevertheless, Landmark proposed at oral argument several examples for which it could be liable under the policy. -For example, arson, riots, or any of the covered actions committed by a conspiracy could damage multiple properties and invoke coverage. Although such circumstances are unlikely, Warwick, a sophisticated, business entity, paid a minimal premium for such minimal coverage. Warwick also purchased coverage for the New Orleans hotel as part of an umbrella insurance policy that insured and covered the four listed hotels. Warwick “chose to buy the policy that it bought. It cannot change that choice now.” See Zucker, 856 F.3d at 1353.

In summary, we affirm the trial court’s entry of summary judgment, and conclude the policy was unambiguous and was not illusory.

Affirmed.

Conner, J., and Small, Lisa, Associate Judge, concur.

      . Including taxes, Warwick paid $6,654.50 to insure the New Orleans hotel. Landmark claims that Warwick received a discount on the policy by lumping the New Orleans hotel with the other, insured properties.

      . Warwick also sued the primary insurer, Chubb, and Warwick’s insurance agents and brokers. Warwick settled with Chubb, and the trial court stayed proceedings against the agents and brokers.

      . Warwick does not argue the trial court erred when it concluded no questions of fact existed towards the statement of values’ authenticity.


author: Gross, J.

text:
    STATE of Florida, Petitioner, v. John CHAPMAN, Respondent.
    No. 4D17-428
    District Court of Appeal of Florida, Fourth District.
    [August 30, 2017]

      Pamela Jo Bondi, Attorney General, Tallahassee, and Leslie Campbell, Assistant Attorney General, West Palm Beach, for petitioner.
    Carey Haughwout, Public Defender, and Gary Lee Caldwell, Assistant Public Defender, West Palm Beach, for respondent.
   Gross, J.

The State’s petition for writ of prohibition is granted. See State v. Lopez, 219 So.3d 865 (Fla. 4th DCA 2017). The trial court’s order precluding death as a possible punishment and precluding the State from death-qualifying the jury is quashed. See State v. Jones, 209 So.3d 6 (Fla. 2d DCA 2016) (granting prohibition and quashing a trial court’s pretrial order precluding the death penalty); see also State v. Bloom, 497 So.2d 2, 3 (Fla. 1986) (“A writ of prohibition is the appropriate remedy when a trial court attempts to interfere with the prosecutorial discretion of a state attorney.”).

The trial court’s ruling that the State could not pursue the death penalty because no constitutional penalty phase procedure was in place at the time has been rejected by the Florida. Supreme Court. See Evans v. State, 213 So.3d 856 (Fla. 2017) (holding that the death penalty statute could be constitutionally applied in pending prosecutions if the jury is unanimous in recommending death). In addition, the Florida Legislature enacted Chapter 2017-1, Laws of Florida (effective March 13, 2017), which amended the portion of the death penalty statute found problematic in Perry v. State, 210 So.3d 630 (Fla. 2016).

We explained in Lopez that the Florida Supreme Court has not receded from its long line of precedent holding that aggravating factors need not be alleged in an indictment. 219 So.3d at. 865 (citations therein). The Florida Supreme Court does not silently overrule itself, and its undisturbed precedent on this issue is binding. Puryear v. State, 810 So.2d 901, 905-06 (Fla. 2002).

The State has brought to our attention that, while this petition was pending in this court, defendants in two. unrelated cases sought a writ of prohibition from the Florida Supreme Court arguing that failure to allege aggravating factors in the indictment precluded the State from seeking the death penalty. After considering a response and reply, the Florida Supreme Court denied those petitions “on the merits.” Luongo v. State, No. SC17-431, 2017 WL 1033694 (Fla. Mar. 17, 2017); Avalos v. State, No. SC17-622, 2017 WL 1409679 (Fla. Apr. 20, 2017) (citing to Luongo).

The defendant in this case argues that these unelaborated decisions have no prec-edential value, see Dep’t of Legal Affairs v. Dist. Court of Appeal, 5th Dist., 434 So.2d 310 (Fla. 1983), but the denial of the petitions “on the merits” appears to have a preclusive effect on any future claims by the defendants in those cases. See Topps v. State, 865 So.2d 1253, 1257-58 (Fla. 2004). This suggests that the Florida Supreme Court does not intend to recede from its precedent on this issue.

The State’s Petition for Writ of Prohibition is granted. The trial court’s order precluding death as a possible punishment and precluding the State from death-qualifying the jury is quashed.

Conner and Klingensmith, JJ., concur.


author: Taylor, J.

text:
    David Timothy CURRY, Appellant, v. STATE of Florida, Appellee.
    No. 4D15-462
    District Court of Appeal of Florida, Fourth District.
    [September 6, 2017]
    Carey Haughwout, Public Defender, and Tatjana Ostapoff, Assistant Public Defender, West Palm Beach, for appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Kimberly T. Acuña, Assistant Attorney General, West Palm Beach, for appellee.
   Taylor, J.

David Curry appeals his convictions and sentences for three sex offenses: Count I—sexual battery on a child by a person in familial or custodial authority; Count II— lewd or lascivious molestation of a child between 12 and 16 years of age, and Count III—lewd or lascivious molestation of a child less than 12 years of age. We affirm appellant’s convictions and sentences for Counts I and III, but reverse as to Count II, because the trial court erred in denying appellant’s motion to dismiss Count II where the statute of limitations had expired for that offense.

The charged offenses stemmed from a 2004 episode in which T.M. and S.M., the daughters of appellant’s former girlfriend, spent the day cleaning appellant’s apartment and then spent the night there.

The state charged appellant with three counts relevant to this appeal, which are paraphrased as follows:

COUNT I: Sexual battery by penile/vaginal penetration of T.M., a child 12 years of áge or older but less than 18, while appellant was in a position of familial or custodial authority, between June 23 and December 31, 2004, in violation of Florida Statute 794.011(8)(b).
COUNT II: Lewd or lascivious molestation of T.M., a child less than 16 years of age, by forcing or enticing her to touch appellant’s genitals in a lewd or lascivious manner, between June 23 and December 31, 2004, in violation of Florida Statute 800.04(5)(c)(2).
COUNT III: Lewd or lascivious molestation of S.M., a person less than 12 years of age, by touching her breasts or genital area or the clothing covering them between June 23 and December 31, 2004, in violation of Florida Statute 800.04(5)(b).

The case proceeded to trial on those counts, arid the evidence established the following facts.

T.M. was born in January 1992, and S.M. was born in June 1994. A few years before the charged crimes occurred, T.M. and S.M. were abandoned by their mother and were sent to live with their grandparents. Appellant, a former boyfriend of their mother, continued to see them.

In 2004, T.M., S.M., and their brother went to appellant’s apartment one day to clean it. At the time, T.M. was 12 years old and S.M. was 10 years old.

While her brother and sister cleaned the living room and kitchen, T.M. cleaned the master bedroom. Appellant was lying on the bed and asked T.M. to massage his leg because he had a cramp. Appellant then asked T.M. to massage his penis, and T.M. complied. Appellant grabbed T.M.’s hand and showed her the motion that he wanted. T.M. told appellant that she “didn’t want to do this,” but appellant simply replied that “it’s helping.”

Appellant then took T.M. to the bathroom, lifted her onto the counter, pulled down her pants and underwear, and had sexual intercourse with her.

T.M., her siblings, and appellant’s .son spent that night at appellant’s house. Appellant’s son and T.M. slept on the bed in the master bedroom, while S.M. and her brother slept on the sleeper couch. During the night, S.M. went into the master bedroom and got on a blanket on the floor. Appellant came in the room and joined S.M. on the floor. Appellant then rubbed S.M.’s breasts, buttocks, and vaginal area over her clothes. When appellant tried to go underneath her clothes, S.M. went into the living room.

On T.M.’s next birthday, appellant gave her a birthday card with condoms taped to the back. T.M.’s grandmother found out about the card, and did not allow appellant to have further contact with T.M. and S.M.

The jury found appellant guilty as charged on all counts. The court adjudicated appellant guilty of each offense, designated him a sexual predator, and sentenced him to consecutive terms of 30 years on Count I, 15 years on Count II, and 15 years on Count 1IL This appeal followed.

As to Count II (lewd or lascivious molestation of a child between the ages of 12 and 16 years), appellant argues that the trial court erred in denying his motion to dismiss this count because the statute of limitations had expired for that offense. We agree for the reasons discussed below.

The original information was filed on April 8, 2010. Count II alleged that between March 24, 2004, and December 31, 2004, appellant committed the offense of lewd and lascivious molestation of a child between the ages of 12 and 16 years, a second degree felony under section 800.04(5)(e), Florida Statutes (2004).

The applicable statute of limitations in 2004 for a second degree felony is three years from the date the crime was committed. See § 775.15(2)(b), Fla. Stat. (2004). However, the limitations period for a violation of section 800.04, Florida Statutes, does not begin to run until the victim has reached the age of 18 or the violation is reported tó a law enforcement agency or other governmental agency, whichever occurs earlier:

If the victim of a violation of ... s. 800.04 ... is under the age of 18, the applicable period of limitation, if any, does not begin to run until the victim has reached the age of 18 or the violation is reported to a law enforcement agency or other governmental agency, whichever occurs earlier. Such law enforcement agency or other governmental agency shall promptly report such aller gation to the state attorney for the judicial circuit in which the alleged violation occurred.

§ 775.15(7)(a), Fla. Stat. (2004).

Appellant moved to dismiss Count II, arguing that the statute of limitations for that offense had expired. T.M., the alleged victim of Count II, reached the age of 18 in January 2010. Thus, the statute of limitations would have been extended three years from her 18th birthday, until January 2013. However, because T.M. reported the incident to a governmental agency, the Department of Children and Families (DCF), on or about August 7, 2006, appellant argued that the three-year limitations period from the reporting date expired in. August 2009.

The state responded that although the offense was first reported to a DCF case worker- in August of 2006, the report to DCF in 2006 did not trigger the running of the statute of limitations because the case worker did not report the allegations to any law enforcement agency or to the State Attorney’s Office. According to the state, the statute of limitations did not begin to run until August 2008, when T.M. reported the sexual abuse to'a deputy with the Polk County Sheriffs Office.

The state' attached- to 'its response a copy of the 2006 DCF report. The DCF report stated that T.M. “was raped” by appellant, relating that T.M. was cleaning appellant’s bedroom “when he forced .her to have sexual intercourse with.him.” The DCF report also made reference to T.M. being “sexually abused by the alleged perpetrator.” The DCF report further stated that the children were safe with their grandparents and that the grandparents had stopped the children from any further contact with appellant. According to the DCF report, judicial action was not needed. The DCF report did not specifically mention the allegation that appellant forced T.M. to massage his penis.

Following a brief hearing, the trial court entered a written order denying appellant’s motion to dismiss Count II. As an initial matter, the trial court stated that it “appears that allegations of [the conduct alleged in the information] were reported to the Department of Children and Families (“DCF”) on or about 8/7/06.” Although the trial court found that DCF constituted a governmental agency within the meaning of section 775.15, Florida Statutes, the trial court concluded that “the statute of limitations in this case would have been triggered, when the allegations were reported to the State Attorney.” The trial court reasoned: “A common sense reading of the statute leads the court to conclude that the allegations would have to be reported to the state attorney. To hold otherwise would reduce the reporting obligation to a gratuitous directive having no real consequence.”

Appellant contends on appeal that because T.M. reported the allegations against appellant to DCF in 2006, which was more than three years before the date that appellant’s prosecution commenced, the statute of limitations for Count II had run and the trial court erred in denying his motion to dismiss that charge.

In response, the state argues, for the first time on appeal, that the statute of limitations was .not triggered in 2006 because the DCF report makes no mention of the conduct underlying Count II, namely, that appellant forced T.M. to stroke or massage his penis. In addition, the state argues that the trial court correctly construed the statute of limitations to mean that the limitations period does not commence until the allegations are reported to the State Attorney’s Office.

• Because this case involves the -interpretation of a statute, of limitations, the standard of review is de novo. Bryson v. State, 42 So.3d 852, 853-54 (Fla. 1st DCA 2010).

When construing a statute, courts must first look to the statute’s plain language. State v. Hackley, 95 So.3d 92, 93 (Fla. 2012). “[Significance and effect must be given to every word, phrase, sentence, and part of the statute if possible, and words in a statute should not be construed as mere surplusage.” Hechtman v. Nations Title Ins. of N.Y., 840 So.2d 993, 996 (Fla. 2003).

If the meaning of the statute “is clear and unambiguous, courts will not .look behind the statute’s plain language for legislative intent or resort to rules of statutory construction to ascertain intent,” Daniels v. Fla. Dep’t of Health, 898 So.2d 61, 64 (Fla. 2005), “Courts should not construe unambiguous statutes in a manner that would extend, modify, or limit their terms or the obvious implications as provided by the Legislature.” State v. Chubbuck, 141 So.3d 1163, 1170 (Fla. 2014). “[T]he statute’s plain and ordinary meaning must control, unless this leads to an unreasonable result or a result clearly contrary to legislative intent,” Daniels, 898 So.2d at 64.

The issue in this case is whether the limitations period for a violation of Section 800,04 commences when the violation is reported to “a law enforcement agency or other governmental agency,” or, instead, when the agency reports the allegation to the State Attorney’s Office.

Under the plain language of Section 775.15(7)(a), Florida Statutes (2004), the statute of limitation's begins to 'run whén “the victim has reached the age of 18 or the violation is reported to a law enforcement agency or other governmental agency, whichever occurs earlier.” Although the next sentence of the statute requires the governmental agency that learned of the allegation to “promptly report Such allegation to' the state attorney,” this requirement does not modify the commencement of the limitations period. Therefore, once the alleged violation is reported to a governmental agency, the statute of limitations begins to run regardless of when the allegation is reported to the State Attorney’s Office. . . ,

Applying the statute as written does not mean that the requirement of prompt notification to the State Attorney is mere sur-plusage. In fact, the Legislature may have included this requirement precisely because the statute of limitations is triggered by reporting a violation to any governmental agency. In other words, because a report of the violation to any governmental agency triggers the statute of limitations, the Legislature may have imposed this duty of providing prompt notification to the State Attorney, recognizing that “the clock is ticking” and that time is of the essence.

The state’s suggested interpretation of the limitations period would require us to rewrite the statute. The statute as written does not require a violation to be reported both to a governmental agency and to the State Attorney in order for the limitations period to begin to run. If a violation of an enumerated sexual offense is reported to a “law enforcement or other governmental agency” before the victim reaches age 18, it is this reporting date that triggers the statute of limitations, See Brown v. State, 179 So.3d 466, 469 (Fla. 4th DCA 2015) (explaining that, under an earlier version of section 775.15(7), “because the crimes were reported to a ‘law enforcement or other governmental agency’ before either victim reached age 16, it was the reporting date that triggered the statute of limitations”).

The state’s reliance upon Dankert v. State, 859 So.2d 1221 (Fla. 2d DCA 2003), is misplaced. There, the Second District held that the statute of limitations for the defendant’s violations of section 800.04, Florida Statutes, began to run on the date HRS received a report that the defendant was sexually molesting children in his care. Id. at 1222-24. The court found that the state had notice of the molestation in November 1993 and that “all of the requirements of section 775.15(7) were satisfied at that time.” Id. at 1224. The court reasoned that “the statute simply requires that the alleged violation be reported to law enforcement or to another governmental agency and that the agency report the alleged violation to the state attorney.” Id. at 1223. The court thus rejected the state’s argument that the report to HRS was insufficient to trigger the statute of limitations where HRS did not uncover any information that would corroborate the allegations. Id.

To the extent Dankert might suggest that the governmental agency must report the alleged violation to the State Attorney’s Office before the statute of limitations commences, such a suggestion was merely dicta. The Dankert opinion states that HRS promptly reported the results of its investigation to the State Attorney, so the Dankert court did not address the precise issue in this case—namely, whether a governmental agency’s failure to report an alleged violation of section 800.04 to the State Attorney prevents the statute of limitations from commencing.

As mentioned above, the state argues on appeal—for the first time—that the statute of limitations was not triggered in 2006 because the DCF report makes no specific mention of the precise conduct underlying Count II, namely, that appellant forced T.M. to massage his penis. The state did not make this argument below in response to the motion to dismiss. It merely conceded that the offense was reported to a governmental agency in August 2006 and did not draw any distinction regarding the reporting of multiple sexual acts that occurred during the same criminal episode. Thus, because the state conceded below that the offense was reported to DCF in August 2006, we find that the state is bound by its factual concession to the trial court. See U.S. Bank, N.A. v. Vogel, 137 So.3d 491, 494 (Fla. 4th DCA 2014) (a party is bound by a factual concession made by that party’s attorney before the trial judge); Holub v. Holub, 54 So.3d 585, 587 (Fla. 1st DCA 2011) (same).

In sum, as the state conceded below, the violation was reported to a governmental agency in August 2006 when T.M; reported to DCF that appellant sexually abused her. The statute of limitations began to run at that time. Although the statute also requires the governmental agency that learned of the allegation to “promptly report such allegation to the state attorney,” this requirement does not modify the commencement of the limitations period. Thus, the three-year statute of limitations for Count II expired by the time the state initiated its prosecution of appellant in 2010. Accordingly, we reverse the denial of appellant’s motion to dismiss Count II of the information, but otherwise affirm appellant’s convictions and sentences on the remaining counts.

Affirmed in part, and Reversed in part.

Damoorgian and Kuntz, JJ., concur.

      . It is unclear from the Dankert opinion as to exactly when the HRS investigator submitted his report to the State Attorney’s Office. Notably, however, the Dankert court found that the statute of limitations began to run on the date HRS learned of the alleged molestation.

      . We decline to apply the tipsy coachman doctrine under these circumstances. The record before us does not permit us to affirm appellant’s conviction for Count II based on the state’s argument that “there was no report of the conduct underlying count two to DCF in 2006.” On this record, we do not know the full extent of what T.M. told the DCF case worker. Had the state raised this argument, below, the trial court could have held an evidentiary hearing to resolve the issue. Instead, the state simply conceded that the offensé was reported to a governmental agency in August 2006.