author: WHATLEY, Judge.

text:
    Sean P. TEELUCKSINGH, Appellant, v. Tara TEELUCKSINGH, Appellee.
    No. 2D06-3695.
    District Court of Appeal of Florida, Second District.
    July 8, 2009.
    Elizabeth S. Wheeler of Bert & Wheeler, P.A., Brandon, for Appellant.
    No appearance for Appellee.
   WHATLEY, Judge.

Sean P. Teelucksingh appeals the final judgment of dissolution of his marriage to Tara Teelucksingh. We reverse and remand for a new final hearing.

The Husband argues that the trial court failed to comply with the mandatory provision of Florida Family Law Rule of Procedure 12.440(a). Rule 12.440 provides that Florida Rule of Civil Procedure 1.440 shall govern the setting of actions for trial in family law matters, with specified exceptions and additions. Rule 12.440(a) specifies that “[i]f the court finds the action ready to be set for trial, it shall enter an order setting the action for trial, fixing a date for trial ....” See Reyes v. Reeves Southeastern Corp., 895 So.2d 1274, 1274 (Fla. 2d DCA 2005) (“Once a party files a proper notice of trial, it is the court’s duty to set the cause for trial.”); Bennett v. Continental Chemicals Inc., 492 So.2d 724 (Fla. 1st DCA 1986) (holding that strict compliance with rule 1.440 is mandatory and disapproving local practice of attorney setting case for trial by reserving time on judge’s calendar and sending notice to other party).

In the present case, after the Husband’s attorney had withdrawn, the Wife’s attorney served a notice of final hearing informing the Husband that the cause would be called up for a final hearing on the date and time that a prior order of the court informed him a case management conference would be held. On the date and at the time specified, a final hearing was in fact held without an order to that effect ever having been entered by the trial court. In the final judgment, the trial court’s only comment about any appearance by the Husband was its notation “that the Husband is in Federal Prison in Yazoo, MS. The Court further notes that notice of this hearing was sent to him by counsel for the Wife.” As our discussion above reveals, the court itself was required to enter an order setting the action for trial; the Wife’s having sent the Husband notice did not satisfy rule 12.440(a). Accordingly, we reverse the final judgment of dissolution and remand for a new hearing held in accordance with the requirements of rule 12.440(a).

We note for purposes of the new final hearing that in the judgment we are reversing, the trial court failed to make findings in support of its equitable distribution of the parties’ assets as required by section 61.075(3), Florida Statutes (2007). Specifically, the trial court awarded the Wife sole ownership of the parties’ three pieces of nonhomestead marital property without any explanation for the unequal distribution. See § 61.075(3)(d); Montalvo v. Montalvo, 949 So.2d 350 (Fla. 4th DCA 2007). In addition, the court failed to address marital liabilities, which each party asserted in their petitions should be equitably distributed.

Reversed and remanded.

ALTENBERND and KELLY, JJ, Concur.


source: Caselaw Access Project

author: BARFIELD, J. CLARK, J.,

license: Public Domain

text:
    MERCURY INSURANCE COMPANY OF FLORIDA, Appellant, v. SHANDS TEACHING HOSPITAL AND CLINICS, INC., Appellee.
    No. 1D08-1198.
    District Court of Appeal of Florida, First District.
    July 21, 2009.
    Rehearing Denied Oct. 5, 2009.
    Lora A. Dunlap and Jeffrey W. Kirshe-man of Fisher, Rushmer, Werrenrath, Dickson, Talley & Dunlap, P.A., Orlando, for Appellant/Cross Appellee.
    Joel W. Walters, Walters Livine Klin-gensmith & Thomison, P.A., Sarasota, for Appellee/Cross Appellant.
   BARFIELD, J.

This is an appeal and cross-appeal of a final judgment in an action for damages for impairment of a hospital lien under chapter 88-589, Laws of Florida (“Alachua County Hospital Lien Law”). Mercury Insurance Company of Florida (Mercury) asserts, inter alia, that chapter 88-539, as well as the Alachua County ordinance enacted pursuant to that law, violates article III, section 11(a)(9), of the Florida Constitution. We agree and reverse the final judgment.

Essentially, the challenged statute entitles any “charitable hospital” located in Alachua County to a lien “for all reasonable charges for hospital care, treatment, and maintenance of ill or injured persons” upon “all causes of action, suits, claims, counterclaims, and demands accruing to such persons” and upon “all judgments, settlements, and settlement agreements rendered or entered into by virtue thereof,” arising from the illness or the injuries necessitating the hospital care, except for workers’ compensation injuries. It provides that no release or satisfaction of such a cause of action shall be valid as against the lien “unless such lienholder shall join therein or execute a release of such lien,” and that any acceptance of such a release or satisfaction “shall prima facie constitute an impairment of such lien,” entitling the lienholder hospital to an action at law to recover “the reasonable cost of such hospital care, treatment, and maintenance.” It further provides: “If the lienholder shall prevail in such action, the lienholder shall be entitled to recover from the defendant, in addition to costs otherwise allowed by law, all reasonable attorney’s fees and expenses incident to the matter.” The hospital lien at issue attached to assets of a patient hospitalized at Shands, including the patient’s cause of action against the tortfeasor, Mercury’s insured, who injured the patient in a vehicle accident, thereby necessitating the patient’s hospitalization.

Article III, section 11(a)(9), of the Florida Constitution provides that “[tjhere shall be no special law or general law of local application pertaining to ... creation, enforcement, extension or impairment of liens based on private contracts, or fixing of interest rates on private contracts.” We find that chapter 88-539 is a special law which creates a lien based on a private contract between Shands and its patient, in violation of article III, section 11(a)(9), of the Florida Constitution.

The Florida Hospital Association, writing as amicus curiae, argues that Shands’ hospital lien is not based on a private contract, but stems from a public pact with the hospital, which is required by federal law to provide emergency service. We find that the lien does not attach to the public’s assets, but rather to the assets of the patient whose contract with the hospital is a private one, and therefore reject the argument of amicus.

While there may be a noble purpose in the Florida Legislature’s allowing this hospital lien, doing so by means of a special law is not legal. If the legislature wishes to grant such lien rights, it should do so by general law which is applicable to all hospitals, not just to a select few.

The judgment is REVERSED and the case is REMANDED to the trial court with directions to enter judgment in favor of Mercury Insurance Company of Florida, and to consider Mercury’s claim for attorney fees pursuant to its proposal for settlement. We find no merit to the other issues raised on appeal and cross-appeal.

THOMAS, J., concurs and CLARK, J., concurs with written opinion.

CLARK, J.,

Concurring.

It is well settled that a legislative enactment is presumed to be constitutional. Lawnwood Med. Ctr., Inc., v. Seeger, M.D., 990 So.2d 503 (Fla.2008); see also, Fla. Dep’t. of Revenue v. City of Gainesville, 918 So.2d 250 (Fla.2005). This presumption is no different whether the law is a special or local law. See Lawnwood. However, legislative enactments must remain within the bounds of the constitutional limits upon the Legislature’s power. The Florida Constitution is more restrictive upon the Legislature’s authority to enact special laws than upon general laws. The constitutional limitation on the legislative power to enact laws “must be enforced as written,” and when interpreting a constitutional provision, “less latitude is permitted [than for statutory construction] because it is presumed that they have been more carefully and deliberately framed than statutes.” Lawnwood, 990 So.2d at 511 (citing Dept of Envtl. Prot. v. Millender, 666 So.2d 882, 886 (Fla.1996)).

The special law challenged here creates a lien in favor of non-profit charitable hospitals in Alachua County for the costs of hospital care upon the legal claims and settlements of patients treated by the hospital. The special law further provides for enforcement when the lien is impaired. A patient’s release of his or her claims against any party without the participation of the hospital “shall prima facie constitute an impairment of such lien,” entitling the lienholder hospital to an action at law to recover “the reasonable cost of such hospital care, treatment, and maintenance,” reasonable attorneys’ fees, and costs. Ch. 88-539, § 4, Laws of Fla.

In this case, Krystal Price was injured by a vehicle insured by Mercury Insurance Company in December 2005. As a result, Ms. Price was admitted to Shands Hospital and received medical care valued at $38,418.20 from the hospital. Pursuant to chapter 88-539, Laws of Florida, Shands perfected and recorded its statutory lien upon Ms. Price’s causes of action and settlements in connection with her injuries. Mercury Insurance was served a copy of the lien by certified mail but despite this notice of Shands’ interest, Mercury Insurance obtained a release from liability from Ms. Price on April 14, 2006 and paid her $10,000.00 for such settlement. Shands Hospital did not participate in the transaction between Mercury and Ms. Price. On May 25, 2006, Mercury Insurance paid Shands $10,000.00 and Shands filed suit to enforce its lien for the remaining amount of $28,418.20 in reasonable medical care expenses.

In denying cross-motions for summary judgment, the trial court rejected Mercury’s assertion that chapter 88-539, Laws of Florida, violated article III, section 11(a)(9) of the Florida Constitution. Ultimately, the trial court found that Mercury Insurance Company had impaired Shands’ lien, damaged Shands in the amount of $10,000.00 and that Shands was entitled to attorneys’ fees and costs pursuant to Section 4 of the special law.

The clear language of article III, section 11(a)(9), of the Florida Constitution prohibits special laws “pertaining to ... creation, enforcement, extension or impairment of liens based on private contracts, or fixing of interest rates on private contracts.” Hospitals have a contractual relationship with each patient, either express or implied. Where the patient is admitted in an emergency situation, quasi-contract theory applies because the patient has accepted the medical services and in so doing, is deemed to have agreed to pay for them. The contract is implied so as to avoid unjust enrichment. Nursing Care Servs., Inc. v. Dobos, 380 So.2d 516 (Fla. 4th DCA 1980); see also Variety Children’s Hosp., Inc. v. Vigliotti, 385 So.2d 1052 (Fla. 3d DCA 1980).

In this case, the application of chapter 88-539 was based upon the contract between Shands and Ms. Price resulting from the provision of medical services by Shands and Ms. Price’s acceptance of these services. This was a private contract under which Ms. Price owed a debt to Shands for the cost of her medical treatment. While Shands might have had a cause of action against Ms. Price for breach of this contract, chapter 88-539 allowed the hospital to avoid contract litigation and proceed directly to enforce its statutory lien upon one of Ms. Price’s assets, her interest in a lawsuit or other claim against the person or insurer of the person who caused her injuries.

Because chapter 88-539 is a special law which creates a hospital’s lien upon a patient’s interest in the patient’s legal claims, it is a special law “pertaining to: ... creation, enforcement, extension or impairment of liens based on private contracts.” I agree that it is prohibited by article III, section 11(a)(9), of the Florida Constitution.

      . The Special law provides in part as follows: Section 1. Any nonprofit coiporation operating a hospital that has qualified ... as a charitable hospital, located in Alachua County, shall be entitled to a lien for all reasonable charges for hospital care, treatment, and maintenance of ill or injured persons upon any and all causes of action, suits, claims, counterclaims, and demands accruing to such persons ... and upon all judgments, settlements, and settlement agreements rendered or entered into by virtue thereof, on account of illness or injuries giving rise to such causes of action, suits, settlements, or settlement agreements and which necessitate or shall have necessitated such hospital care, treatment and maintenance.


author: WELLS, Judge.

text:
    NOVA SOUTHEASTERN UNIVERSITY OF the HEALTH SCIENCES, INC., d/b/a College of Osteopathic Medicine, Appellants/Cross-appellees, v. Keith M. SHARICK, Appellee/Cross-appellant.
    Nos. 3D08-2507, 3D08-2705, 3D08-2802.
    District Court of Appeal of Florida, Third District.
    Aug. 26, 2009.
    Rehearing Denied Nov. 9, 2009.

      Panza, Maurer & Maynard, Richard A. Beauchamp and Mark A. Emanuele, Fort Lauderdale, for appellant/cross-appellee.
    Mandina & Ginsberg; Philip D. Parrish, Miami, for appellee/cross-appellant.
    Before RAMIREZ, C.J., and WELLS, and SUAREZ, JJ.
   WELLS, Judge.

Nova Southeastern University of the Health Sciences, Inc., d/b/a College of Osteopathic Medicine “(Nova”) appeals from the denial of its motions for a directed verdict and a new trial, and from orders awarding prejudgment interest and costs to Keith Sharick, a former student at its College of Osteopathic Medicine. Sharick cross-appeals the order awarding prejudgment interest. For the following reasons, we affirm each of the orders on appeal with the exception of the order on prejudgment interest.

This appeal arises from Sharick’s dismissal from Nova’s College of Osteopathic Medicine in March 1993, just two months before he was to receive a degree in osteopathic medicine (“a DO degree”). After exhausting the university’s appeal process, Sharick brought the instant action, seeking specific performance and damages from Nova.

The first trial in this matter took place in August 1998 and resulted in a jury determination that Sharick’s dismissal from the osteopathic medicine program was arbitrary, capricious and/or lacked any discernable rational basis. But, because the trial court only permitted the jury to consider damages with respect to tuition expenses, Sharick was awarded only $45,000 in damages.

In Sharick v. Southeastern University of Health Sciences, Inc., 780 So.2d 136 (Fla. 3d DCA 2000) (“Sharick I”), this Court concluded that the trial court had erred in refusing to allow Sharick to plead and prove damages stemming from lost earning capacity and ordered a new trial on damages on remand:

In this case, the jury found that the university’s decision to dismiss Sharick was arbitrary, capricious, and/or lacking any discernable rational basis. This determination is supported by competent, substantial evidence. Southeastern has not challenged the propriety of the adverse jury verdict on cross-appeal. Therefore, the sole issue presently before the court is the appropriate measure of damages for Sharick’s wrongful dismissal less than two months prior to when he expected to graduate and obtain his degree as a doctor of osteopathic medicine (DO).
In valuing the loss of this degree within the context of an arbitrary, capricious or bad faith deprivation of such, we conclude that it is appropriate to consider the possibility of lost future earnings. ...
The record in this case establishes that but for Sharick’s dismissal from the university, he would have obtained his DO degree some two months thereafter. As the fact of Sharick’s damage as the result of Southeastern’s breach of contract can be proved with certainty, we reverse and remand for a new trial on damages. Upon retrial, Sharick must be afforded the opportunity to plead and prove damages in the form of the loss of earning capacity that would reasonably have resulted had he received his DO degree. There is testimony in the present record suggesting that Sharick would have been foreclosed from enrolling or graduating elsewhere based upon the timing and nature of his dismissal from Southeastern. We conclude that this is an appropriate issue for the jury upon retrial. If the jury finds that it is no longer possible for Sharick to obtain a DO degree, then Southeastern would be foreclosed from complaining of the resulting uncertainty in proof of damage caused by its wrongful actions. Furthermore, there is evidence from which a jury could reasonably conclude that but for the wrongful deprivation of this degree, Sharick would have been able to practice in some capacity as a doctor of osteopathy. •
... Accordingly, the extent or amount of the resulting impairment to Sharick’s earning capacity may be determined by a jury based upon reasonable inference. Upon retrial, both parties are free to present evidence as to what impact Sharick’s academic and clinical performance may have had upon his ultimate success as an osteopathic physician. Alternatively, we recognize the potential for mitigation of damages if Sharick fails to establish that it would be impossible for him to obtain a DO degree at another institution. In that event, the appropriate measure of damages would only be the reproduction cost of acquiring the degree elsewhere. This would include a calculation of the present value of his lost income during the time period needed to acquire the degree, coupled with the tuition and associated costs incurred at the new school.

Sharick, 780 So.2d at 138-141 (footnotes omitted) (citations omitted).

The re-trial on damages took place in January 2008. At the conclusion of that trial, the jury was asked to decide whether Sharick could obtain a DO degree from another institution. If Sharick could obtain a DO degree from another institution, the jury was asked to award Sharick an amount equal to the lost income for the time period needed to obtain that degree. If he could not obtain a DO degree elsewhere, the jury was asked to award Shar-ick an amount that would compensate him for the earnings that he had lost in past and that he would lose in the future.

On February 4, 2008, the jury determined that Sharick could not obtain a DO degree from another institution, awarding him $813,000 for earnings lost in the past and $3.5 million (present value) for earnings that he would lose in the future. Final judgment for these two amounts was entered on August 29, 2008. Although prejudgment interest was denied on the past earnings award through the date of the verdict because the verdict form did not fix the date of Sharick’s loss, $269,087 in prejudgment interest nonetheless was awarded on both the past and future lost earning awards from the date of the verdict through the date of the final judgment. In a separate order, $32,118.58 in costs was awarded to Sharick.

Nova timely filed a motion for new trial, alleging numerous errors with respect to evidentiary rulings, the jury instructions, and the jury verdict. This motion, along with Nova’s motion for directed verdict, on which the lower court had previously reserved ruling, was denied.

In the school’s consolidated appeals, Nova again raises many of the arguments made below regarding evidentiary rulings, the jury instructions and the jury verdict. With the exception of the prejudgment interest award, we find no reversible error. As to the prejudgment interest award, we agree that the court below correctly refused to award prejudgment interest on the loss of past earnings award because the jury failed to fix a date of that loss. See Argonaut Ins. Co. v. May Plumbing Co., 474 So.2d 212, 215 (Fla.1985) (finding that prejudgment interest is awardable based on a mathematical computation “[o]nce a verdict has liquidated the damages as of a date certain”); cf. Herrero v. Pearce, 571 So.2d 96, 97 (Fla. 1st DCA 1990) (where a monetary judgment was entered against a father requiring him to pay back child support, ordering that prejudgment interest be calculated at the statutory rate “from each monthly date of loss when [the father] should have made each payment”); Metro. Dade County v. Bouterse, Perez & Fabregas Architects Planners, Inc., 463 So.2d 526, 527 (Fla. 3d DCA 1985) (where a party breached a contract calling for progress payments over a period of time, finding that prejudgment interest should be calculated on each progress payment from the date it would have become due). We also agree that no such interest was proper in this case as to the loss of future earnings. See Mission Square, Inc. v. O’Malley’s, Inc., 783 So.2d 1151, 1152 (Fla. 1st DCA 2001) (finding that prejudgment interest is not recoverable where a judgment awards the present value of lost future damages, explaining that “[b]ecause present value actually replaces future losses, and takes into account an interest rate, it would be incongruent to tack onto the present value figure an additional interest rate representing a time prior to the time future losses begin to occur”). Because no prejudgment interest was appropriate in this case, awarding such interest between the date of the verdict and the date of the judgment was error.

Accordingly, that portion of the final judgment awarding prejudgment interest on past and future damages from the date of the verdict to the date of the final judgment is reversed. The remainder of the judgment as well as the cost order are otherwise affirmed.

Affirmed in part, reversed in part.


author: PER CURIAM.

text:
    Bradley LAMB, Petitioner, v. Walter A. McNEIL, Secretary, Florida Department of Corrections, Respondent.
    No. 1D09-2250.
    District Court of Appeal of Florida, First District.
    Sept. 14, 2009.
    Rehearing Denied Oct. 28, 2009.

      Bradley Lamb, pro se, Petitioner.
    Bill McCollum, Attorney General, and LaDawna Murphy, Assistant Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

Bradley R. Lamb petitions this court for certiorari review of an order of the circuit court denying his petition for writ of mandamus, in which he challenged the outcome of a prison disciplinary proceeding. We grant the petition, quash the circuit court’s order, and remand for further proceedings relating to two issues.

First, Lamb alleged in his petition below that he requested a videotape be produced as evidence at his disciplinary hearing but the videotape was not considered. He argued that despite prison officials’ summary conclusion that the videotape did not support his version of events, the investigator failed to comply with rule 33-601.305(4), Florida Administrative Code, which requires preparation of a report containing “a detailed description of why the tape did not provide evidence to support the inmate’s statement.” Respondent failed to provide the circuit court a copy of that report, and in the absence of that document, the circuit court could not properly address petitioner’s claim.

Secondly, petitioner asserted that the disciplinary action was not reviewed and approved by the institutional warden, as required by rule 33-601.309(2), Florida Administrative Code. Rather than demonstrating otherwise, respondent merely argued that petitioner had failed to exhaust his administrative remedies concerning this claim. The circuit court’s order does not address either the merits of petitioner’s claim or respondent’s assertion that it is procedurally barred, and we conclude that under the circumstances, it is appropriate to remand the matter to the circuit court in order to adjudicate this issue. See Morris v. Fla. Parole Comm’n, 991 So.2d 431 (Fla. 1st DCA 2008); Presley v. Fla. Parole Comm’n, 904 So.2d 573 (Fla. 1st DCA 2005).

Accordingly, the petition for writ of certiorari is GRANTED, the order denying Lamb’s petition for writ of mandamus is QUASHED, and the matter is REMANDED to the circuit court for further proceedings consistent herewith.

WEBSTER, DAVIS, and LEWIS, JJ., concur.


text:
    Steve URSI, Petitioner, v. Gina URSI, Respondent.
    No. 3D09-2501.
    District Court of Appeal of Florida, Third District.
    Sept. 15, 2009.
    Rehearing Denied Oct. 1, 2009.
    Tracy Belinda Newmark, Hollywood, for petitioner.
    Barry Franklin, for respondent.

      Before RAMIREZ, C.J., and LAGOA and SALTER, JJ.
   PER CURIAM.

Denied. See Ellis v. Henning, 678 So.2d 825, 827 (Fla. 4th DCA 1996) (“Without a transcript or sworn factual allegations concerning the context in which the trial judge’s alleged comments arose, we do not find that the allegations in plaintiffs motions to disqualify set forth a legally sufficient ground for recusal.... A trial judge’s expression of dissatisfaction with counsel or a client’s behavior alone does not give rise to a reasonable belief that the trial judge is biased and the client cannot receive a fair trial.”).


author: SUAREZ, J. SCHWARTZ, Senior Judge

text:
    BANCO INDUSTRIAL DE VENEZUELA, C.A., Miami Agency, etc., and BIV Investments and Management, Inc., etc., a/k/a BIV Inversores y Promotores, Appellants/Cross-Appellees, v. Esperanza DE SAAD and Joseph Beeler, P.A., Appellees/Cross-Appellants.
    No. 3B08-1713.
    District Court of Appeal of Florida, Third District.
    Sept. 16, 2009.
    Rehearing and Rehearing En Banc Denied Dec. 2, 2009.

      Hogan & Hartson, Carol A. Licko, Richard C. Lorenzo, Mark R. Cheskin, and Brian L. Lerner, Miami, and Jessica L. Ellsworth, Washington, D.C., pro hac vice, for appellants/cross-appellees.
    William L. Richey; H. Eugene Lindsey and Milton M. Ferrell, Miami, for appel-lee/cross-appellant, Joseph Beeler; Petros & Elegant and William L. Petros, Coral Gables; Hicks, Porter, Ebenfeld & Stein and Mark Hicks, Dinah S. Stein and Shannon Kain, Miami, for appellee/cross-appel-lant, Esperanza de Saad.
    Before SUAREZ and SALTER, JJ., and SCHWARTZ, Senior Judge.
   SUAREZ, J.

Banco Industrial De Venezuela, C.A. (“Banco”), and BIV Investments and Management, Inc. (“BIV”), appeal a final summary judgment in favor of Esperanza de Saad (“de Saad”) and Joseph Beeler, P.A. (“Beeler”), in an action for statutory indemnification and breach of contract. We affirm the trial court’s grant of final summary judgment on both the count for statutory indemnification and the count for breach of contract.

FACTS AND PROCEDURE BELOW

De Saad is the former vice-president and general manager of Banco’s Miami agency, BIV. As part of an undercover sting operation involving a U.S. Customs confidential informant, de Saad was alleged to have facilitated the deposit of approximately $4 million in drug proceeds into BIV accounts. On May 19, 1998, the United States charged de Saad with ten counts of money laundering and one count of conspiracy to launder money while acting in her capacity as the vice-president of BIV. De Saad retained the services of attorney Beeler to represent her in the criminal proceedings. As part of their fee agreement, de Saad assigned Beeler her right to seek indemnification for attorney’s fees and costs under sections 607.0850(1) and (3), Florida Statutes (1999). After a lengthy trial in which the jury found her guilty on all counts, the trial judge granted de Saad’s motion for judgment of acquittal as to all counts finding that the United States had failed to prove all of the necessary elements of the alleged crimes. The United States filed an appeal of the trial court’s acquittal. Seven months after her acquittal, de Saad was charged and pled guilty to one count of money structuring on the condition that the government drop the appeal of the judgment of acquittal on the money laundering and conspiracy charges. The government dropped the appeal. De Saad then sought from BIV her past wages pursuant to her contract of employment and also sought indemnification for attorney’s fees incurred in her defense of the money laundering and conspiracy charges. BIV denied both claims.

De Saad then filed the present state court action against BIV. Her amended complaint seeks statutory indemnification pursuant to section 607.0850 to recover the costs and attorney’s fees in defending the money laundering charges and claims past wages based on breach of her Employment Contract with BIV. Beeler filed a complaint in intervention based on the assigned right to attorney’s fees and costs in defending de Saad on the money laundering charges. De Saad, Beeler and BIV moved for summary judgment on the indemnification claims. The trial court entered summary judgment on liability in favor of de Saad and Beeler on the statutory indemnification counts. The trial court held a bench trial on indemnification damages and awarded de Saad $2,895,096.41 on the indemnification claim and Beeler $1,636,168.13. Following the bench trial, both sides moved for summary judgment on the breach of contract claims. The trial judge granted summary judgment on the breach of contract claims in favor of de Saad and Beeler. On the breach of contract claims, the trial court entered final summary judgment in favor of de Saad and Beeler and awarded $1,058,023.82 to de Saad exclusively. This appeal followed.

BTVS APPEAL OF THE FINAL SUMMARY JUDGMENT FOR INDEMNIFICATION

BIV contends on appeal that the trial court did not apply the correct law on the claims for indemnification. We disagree. BIV argues, in support of its appeal, that a question remains, under the terms of sections 607.0850(1) and (3), as to whether or not de Saad’s acquittal meets the statutory requirements of being “successful on the merits or otherwise,” and whether the acts with which she was charged were performed by “reason of the fact” that she was an officer of the corporation. Section 607.0850, Florida Statutes (1999) provides in pertinent part:

607.0850 Indemnification of officers, directors, employees, and agents.—

(1) A corporation shall have power to indemnify any person who was or is a party to any proceeding (other than an action by, or in the right of, the corporation), by reason of the fact that he or she is or was a director, officer, employee, or agent of the corporation ....
(3) To the extent that a director, officer, employee, or agent of a corporation has been successful on the merits or othenm.se in defense of any proceeding referred to in subsection (1) or subsection (2), or in defense of any claim, issue, or matter therein, he or she shall be indemnified against expenses actually and reasonably incurred by him or her in connection therewith.

(emphasis supplied)

The case of Perconti v. Thornton Oil Corp., No. CIV. A. 18630-N.C., 2002 WL 982419 (Del.Ch.2002) interprets a Delaware statute, which is strikingly similar to section 607.0850, in a factually similar situation to the present. That case deals with indemnification of a corporate officer in defense of a lawsuit. Perconti was charged with twenty counts of embezzlement from Thornton Oil Corporation. Perconti went to trial, a mistrial was declared, and the charges against him were dismissed. The Delaware statute, as does the Florida Statute, requires that the former director or officer of the corporation who seeks indemnification must have been both “successful on the merits or otherwise” and must have been prosecuted “by reason of the fact” that the person was a director, officer, employee or agent of the corporation.

Perconti filed an action for statutory indemnification to recover expenses incurred in defending the criminal suit. Thornton Oil Corporation contended that indemnification was precluded because Perconti’s activities were undertaken for personal gain and not for corporate purpose. The Court of Chancery held that:

[t]he right of a ‘successful’ corporate officer to indemnification derives from his status as a corporate officer. If the conduct resulting in the prosecution was done in his capacity as a corporate officer, without regard to what his motivation may have been, then the ensuing prosecution was “by reason of the fact that” he was a corporate officer.

Perconti, 2002 WL 982419, at *4.

The court went on to hold that the statute “[ajssures indemnification to the corporate officer who has been ‘successful’ in the criminal proceeding. It does not require a determination that the corporate officer was ‘innocent’.” Perconti, at *4; see Merritt-Chapman & Scott Corp. v. Wolfson, 321 A.2d 138, 141 (Del.Super.Ct.1974) (holding that any result other than conviction must be considered success). The Delaware court found that dismissal of the charges was equivalent to “success on the merits” under the statute. It concluded that there were no material facts in dispute, and that Perconti, as a matter of law, was entitled to summary judgment indemnifying him in accordance with the indemnification statute. We follow the Delaware court’s holding and likewise find that the trial court correctly granted final summary judgment in favor of de Saad and Beeler on the statutory indemnification claims, as de Saad was prosecuted “by reason of the fact” that she was an director, officer, employee, or agent of the corporation and was acquitted because she was “successful on the merits or otherwise.” See Investors Ins. Group, Inc. v. Kling, 712 So.2d 1258 (Fla. 1st DCA 1998).

BIVS APPEAL OF THE FINAL SUMMARY JUDGMENT FOR BREACH OF CONTRACT

BIV contends the trial court erred in granting de Saad’s motion for summary judgment for breach of the Employment Contract claiming that disputed issues of material fact exist as to the meaning of the contract and which party breached it. BIV suspended de Saad but never terminated her employment as provided for in the Contract of Employment. BIV suspended her without pay and relies on the personnel manual which specifies grounds for suspension of an employee when certain charges are pending for clarification. The Manual provides for suspension, but only until the charges are clarified. It does not provide for indefinite suspension. As de Saad points out, the term “clarification” is defined as “to make clear or easier to understand.” Webster’s II New Collegiate Dictionary 206 (2001). We do not equate the meaning of clarification to be the same as the meaning of resolution or disposition. Certainly, the charges against de Saad were clarified, if not by the United States’s filing of the Second Superseding Indictment, they were clarified by BIV’s findings in its own internal audit after de Saad’s indictment. Once the charges against de Saad were “clarified,” BIV had two options under the Contract. It could either pay her the compensation as required under the contract or terminate her under one of the justified reasons for termination under the Contract. BIV did neither. Therefore, we agree with the trial court’s finding that BIV breached the Contract and affirm the Summary Final Judgment entered in favor of de Saad and Beeler. See Paladyne Corp. v. Weindruch, 867 So.2d 630 (Fla. 5th DCA 2004); Barakat v. Broward County Hous. Auth., 771 So.2d 1193 (Fla. 4th DCA 2000).

Affirmed.

SALTER, J., concurs.

SCHWARTZ, Senior Judge

(specially concurring in part).

I concur as to the result only in the court’s disposition of the breach of contract issue. I do so without specifically ruling on — because the bank did not make the argument either below or on appeal — the possibility that the legal effect of the employer’s actions in “suspending” de Saad without pay amounted to what would have been an appropriate discharge for cause and should have been treated as such, notwithstanding that it was called something else. See Miami-Dade County v. Valdes, 9 So.3d 17, 18 n. 2 (Fla. 3d DCA 2009) (“Legal consequences are ‘determined not by what [something] is called, but by what it does’ and is.” (quoting Boyd v. Boyd, 478 So.2d 356, 357 (Fla. 3d DCA 1985), review denied, 488 So.2d 67 (Fla. 1986))); Scharf v. Smith, 498 So.2d 686, 686 n. 1 (Fla. 3d DCA 1986); Levitz Furniture Co. of E. Region, Inc. v. Cont’l Equities, Inc., 411 So.2d 221, 224 (Fla. 3d DCA 1982), 419 So.2d 1196 (Fla.1982). See also Walls v. Endel, 20 Fla. 86 (1883); 205 Jacksonville, LLC v. A-Affordable Air, LLC, 16 So.3d 974 (Fla. 3d DCA 2009). Because such a discharge would have been fully justified by the contract and the facts of the case, and because the mere unfortunate, but insignificant use of a euphemism has resulted in de Saad’s being paid at her contract rate for years of no work after she could have and should have been (and probably was) fired, it seems to me that we may have upheld a serious wrong.

I agree entirely with the court as to the indemnification issue.

      . BIV counterclaimed for damages for expenses, attorney’s fees and costs incurred in the internal investigation.

      . See Beeler v. Banco Indus, de Venezuela, 834 So.2d 952 (Fla. 3d DCA 2003).

      . The Delaware statute reads as follows:
      To the extent that a present or former director or officer of a corporation has been successful on the merits or otherwise in defense of any action, suit or proceeding referred to in subsections (a) and (b) of this section, or in defense of any claim, issue or matter therein, such person shall be indemnified against expenses (including attorneys’ fees) actually and reasonably incurred by such person in connection therewith.

      (a) A corporation shall have power to indemnify any person who was or is a party ... to any ... completed action, suit or proceeding, whether civil, criminal, administrative or investigative (other than an action by or in the right of the corporation) by reason of the fact that the person is or was a director, officer, employee or agent of the corporation....
      8 Del. C. § 145(c) (emphasis supplied).

      . We reject Appellants' contention that subsection (7) of 607.0850 proscribes indemnification to the Appellees because of the criminal charges filed against de Saad. We find that the proscription against indemnification in subsection (7) applies to voluntary indemnification by the corporation separate and apart from the mandatory indemnification required by subsections (1) and (3). Compare Alternative Dev., Inc. v. St. Lucie Club & Apartment Homes Condo. Ass’n, 608 So.2d 822 (Fla. 4th DCA 1992).

      .VI. Term of the Contract

      The term of this Contract shall be two (2) years and two (2) months, starting on December 1, 1997, renewable automatically for periods of two (2) years. “THE EMPLOYER" may terminate this Contract at any time, prior to the date of termination, only for a justified reason, if "THE EMPLOYEE" is involved in any of the following situations:

      If she is arrested or imprisoned for a felony, fraud, insubordination, dishonest behavior, not related to the obligations set [sic] forth herein, immorality, drug abuse, negligence, larceny, or malfeasance.

      . Because of the disposition and resolution of the issues on the main appeal in favor of Appellees, we need not address the issues on cross appeal.

      . Quite coincidentally, the following appeared in a recent article about an erring teacher: "Without discussion, board members suspended [her] without pay Tuesday — an effective termination....” Patricia Mazzei, Teach

        er Accused of Pushing Boy is Fired, Miami Herald, August 19, 2009, at 4B (emphasis added).


text:
    Sue Ann COLE, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4052.
    District Court of Appeal of Florida, First District.
    Sept. 17, 2009.
    Rehearing Denied Oct. 27, 2009.
    Sue Ann Cole, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

KAHN, WEBSTER, and ROBERTS, JJ., concur.


author: BARFIELD, J.

text:
    KILLEARN HOMES ASSOCIATION, INC., Appellant, v. VISCONTI FAMILY LIMITED PARTNERSHIP and the Lamar Company L.L.C. a Louisiana limited liability company doing business in Florida as the Lamar Companies, Appellees.
    No. 1D08-5681.
    District Court of Appeal of Florida, First District.
    Sept. 17, 2009.
    Rehearing Denied Oct. 27, 2009.

      M. Stephen Turner, Kelly Overstreet Johnson, and Jennifer A. Winegardner, Broad and Cassel, Tallahassee, for Appellant.
    Gerald S. Livingston, William H. Hughes, III, and J. Breck Brannen, Pennington, Moore, Wilkinson, Bell & Dunbar, P.A., Tallahassee, for Appellees.
   BARFIELD, J.

The appellant challenges a final summary judgment, raising two issues: I. Whether the trial court erred in granting final summary judgment in favor of the appellees based on its narrow construction of the term “building” in a deed restriction, allowing appellees to erect a billboard without prior approval; and II. whether the trial court erred in finding that there is no claim against Lamar for tortious interference of the appellant’s contract with appellee Visconti. We affirm as to the issue II without discussion.

We reverse the final summary judgment as to the issue I, holding that the trial court erred by granting final summary judgment for Visconti and Lamar based on its ruling that the term “building” as used in the Killearn deed restriction was not ambiguous, in spite of clear indications that the term has been susceptible to different interpretations by the courts as well as by the parties in this case. Furthermore, the trial court erred by interpreting the ambiguous term “building” in accord with the definition used in the Tallahassee Land Development Code without fully applying relevant concepts of law to interpret the purpose and intent of the restriction by looking at the language of the restriction as a whole and allowing extrinsic evidence to ascertain the purpose and intent. See Strama v. Union Fidelity Life Ins. Co., 793 So.2d 1129 (Fla. 1st DCA 2001).

The restriction at issue reads as follows: No building shall be erected, placed or altered on said tract until the construction plans and specifications and a plan showing the location of the structure or structures and landscaping upon said tract or parcel have been approved by the President of Killearn Properties, Inc., as to quality of workmanship and materials, harmony of external design with existing or proposed structures in the Killearn Estates Subdivision, and location with respect to topographical and finished grade elevation.

The trial court expressly found that the term “building” as used in the covenant was not ambiguous even though another Second Circuit judge construed the same term in the same deed restriction a few years earlier and interpreted the restriction more broadly, finding that it applied to the construction of a cell phone tower. The fact that two circuit court judges have interpreted the same covenant terms in two different ways demonstrates that the term in dispute is reasonably susceptible to more than one interpretation. Furthermore, where, as here, each side argues that the language is clear and unambiguous, but ascribes different meaning to the “unambiguous” language, the provision is rendered ambiguous, and summary judgment is improper. See Campaniello v. Amici Partnership, 832 So.2d 870 (Fla. 4th DCA 2002). Therefore, there is a genuine issue of material fact as to the interpretation of an ambiguous provision, precluding summary judgment in this case. See Strama, 793 So.2d at 1132.

In addition, we find that the trial court erred by construing the term “building” in accord with the definition of “building” in the Tallahassee Land Development Code. It was improper for the court to look to an outside source to determine the meaning of the word “building” as used in the restriction, rather than first considering the language of the deed restriction as a whole. See Strama, 793 So.2d at 1133— 34 (reversing a summary judgment for an insurer where the trial court improperly relied on workers’ compensation law to interpret the term “total disability” in an insurance contract, and the trial court did not properly resolve the contract ambiguity); Gem Estates Mobile Home Village Ass’n, Inc. v. Bluhm, 885 So.2d 435 (Fla. 2d DCA 2004).

In Gem Estates, the Second District reversed a trial court’s interpretation of language in a private land restriction where the trial court had applied the definition set forth in the Florida Mobile Home Act, Chapter 723, Florida Statutes. In reversing, the Second District held that the trial court’s reliance on the statutory definition to interpret a term of a restrictive covenant was “entirely misplaced.” Id. at 438-39. The court specifically stated,

The sole function of that definition [in statute] is to demarcate — together with other pertinent provisions of chapter 723 — the type of properties to which the protections of the Mobile Home Act are applicable. The definition has no application outside the context of chapter 723.

Id. Likewise, the sole function of the definition of “building” in the Tallahassee Land Development Code is only to demarcate the types of buildings controlled by that code. Government regulation of land use does not control the meaning or application of a deed restriction. Id.

When the terms of a written document are ambiguous and susceptible to different interpretations, extrinsic evidence may be considered by the court to ascertain the intent of the parties or to explain or clarify the ambiguous term. Friedman v. Virginia Metal Products Corp., 56 So.2d 515, 517 (Fla. 1952); Emerald Pointe Property Owners’ Ass’n, Inc. v. Commercial Constr. Industries, 978 So.2d 873 (Fla. 4th DCA 2008). On remand the trial court may consider extrinsic evidence to ascertain the intent of the parties or to explain or clarify the ambiguous term “building” in the deed restriction.

The final summary judgment is AFFIRMED in part, REVERSED in part, and REMANDED to the trial court for further proceedings.

DAVIS and ROBERTS, JJ., concur.

      . In 1998, litigation was initiated over the validity and meaning of the same restriction which is at issue here, when the owner of another covenant-restricted commercial lot allowed a cell-phone tower to be erected that had not been approved prior to construction as required by the restriction. There, the Killearn Homes Association successfully enforced the restriction to compel removal of the cell-phone tower. In that case Second Circuit Court Judge Terry Lewis ruled in a final order entered January 15, 1999, that "|t]he cell phone tower was a building or structure within the meaning of the restrictive covenant,” and "[t]he lot owner violated the restrictive covenants by erecting the tower without obtaining prior approval of the Association.” The lot owner and its lessee (the cell phone company) were ordered to "immediately remove the subject tower and appurtenances” and were "permanently enjoined from recommencing construction thereof without approval of Plaintiff (Association) in compliance with the restrictive covenants.” The 1999 judgment was not appealed.


text:
    Christopher Shawn BRADLEY, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-3822.
    District Court of Appeal of Florida, First District.
    Sept. 17, 2009.
    Rehearing Denied Oct. 27, 2009.
    Christopher Shawn Bradley, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee for Respondent.
   PER CURIAM.

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

KAHN, WEBSTER, and ROBERTS, JJ. concur.


text:
    Daniel KNIGHT, Petitioner, v. STATE of Florida, Respondent.
    No. 1D09-4442.
    District Court of Appeal of Florida, First District.
    Sept. 29, 2009.
    Rehearing Denied Oct. 28, 2009.

      Daniel Knight, pro se, Petitioner.
    Bill McCollum, Attorney General, Tallahassee, for Respondent.
   PER CURIAM.

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

WEBSTER, DAVIS, and LEWIS, JJ., concur.


text:
    Keith WASSERSTROM, Appellant, v. STATE of Florida, Appellee.
    No. 4D08-720.
    District Court of Appeal of Florida, Fourth District.
    Sept. 30, 2009.
    Rehearing Denied Dec. 8, 2009.

      Sheryl J. Lowenthal and Milton Hirsch, Miami, for appellant.
    Bill McCollum, Attorney General, Tallahassee, and Mitchell A. Egber, Assistant Attorney General, West Palm Beach, for appellee.
   PER CURIAM.

This appeal presents the primary question of whether there was sufficient evidence to sustain convictions for two counts of official misconduct of a city commissioner for filing falsified official conflict forms.

The defendant, Keith Wasserstrom, a former Commissioner for the City of Hollywood, was charged with five counts. The trial court granted a judgment of acquittal for the one count of unlawful compensation, and the jury found him not guilty of two counts of official misconduct emanating from the forms filed by the Mayor of Hollywood, Mara Giulianti. The defendant was found guilty of official misconduct for two disclosure forms he filed'on March 23, 2004, and July 7, 2004, respectively.

Wasserstrom’s uncle, Arnold Goldman, entered into a contract to sell a sewage system, called Bio-Native Technologies, to local governments. Goldman’s contract stated that he would receive two dollars per ton of sewage that was treated under contracts he procured. Wasserstrom entered into a separate contract with Goldman to provide legal services to Goldman’s company, Normandy Group, in return for 50% of the money that Goldman received for contracts procured in localities other than the City of Hollywood.

The City of Hollywood published a request for proposal (RFP), in which another company was ranked first and Bio-Native was ranked second. Wasserstrom, along with Mayor Giulianti, did not vote in this proposal and filed the required Memorandum of Voting Conflict, Form 8B. However, Normandy Group actively promoted the Bio-Native system to the City of Hollywood, and Wasserstrom publicly advocated for Bio-Native with city administrators and the Hollywood City Commission.

On March 23, 2004, Wasserstrom filed a Form 8B which stated as follows:

My lawfirm [sic] represents a sales representative of one of the RFP responders, Schwing Bioset, on matters other than Bioset’s responce [sic] to the subject RFP. The lawfirm [sic] represents the sales representative, not Bioset, and the relationship accordingly does not constitute a prohibitted [sic] conflict of doing business with one’s agency or a conflicting contractual relationship. Fla. Stat. s. 112.313(3),(7). Furthermore, the lawfirm [sic] does not represent the sales representative in connection with the RFP response, and accordingly, award of the contract to Bioset would not inure to the special private gain of the [sic], Fla. Stat. s. 112.3143. However, I believe that the lawflrm’s [sic] representation of the sales representative in other matters appears to be a possible conflict of interest. Fla. Stat. s. 286.012.

On July 7, 2004, the Wasserstrom filed another Form 8B, which stated the following:

My lawfirm [sic] represents a company (Normandy Group) which as [sic] a contractual relationship with another company (BioNative Technologies), which in turn has a contractual relationship with one of the respondants [sic] to the RFP (Schwing-Bioset), on matters other than Bioset’s response to the subject RFP. The lawfirm [sic] represents the Normandy Group not Bioset, and the relationship accordingly does not constitute a prohibited conflict of doing business with one’s agency or a conflicting contractual relationship. Fla. Stat. s. 112.313(3), (7). Furthermore, the law-firm [sic] does not represent any of these entities in connection with the RFP response, and accordingly, award of the contract to Bioset would not inure to the special private gain of the lawfirm [sic]. Fla. Stat. s. 112.3143. However, on a strictly voluntary basis (AEO 90-55)[sic], I chose to abstain from voting. Fla. Stat. s. 286.012.

At trial, Goldman testified that Wasser-strom would earn money only if the system was sold to other communities. Goldman believed the utilization of the system by the City of Hollywood would not create any direct benefit to Wasserstrom but would help convince other communities in Broward County to contract for the Bio-Native system. The strategy was that if Goldman could sell the system to Hollywood, other cities would follow suit. Was-serstrom would then make money from the contracts with other localities, such as Fort Lauderdale, Pembroke Pines, or Coral Springs. Goldman also said that Was-serstrom did not want to put any “more” pressure on the City of Hollywood’s utility director to purchase Bio-Native. In an email dated September 2004, Wasserstrom indicated he believed his law firm and his uncle’s company should be paid $50,000 for work already done.

ANALYSIS

Judgment of Acquittal

We review a motion for judgment of acquittal de novo. Pagan v. State, 830 So.2d 792, 803 (Fla.2002). On a defendant’s motion for judgment of acquittal, the defendant admits all facts introduced into evidence as true, and the court views all inferences in the light most favorable to the State. Maglio v. State, 918 So.2d 369, 374 (Fla. 4th DCA 2005). If a rational trier of fact could find the existence of the elements of the charged crime beyond a reasonable doubt, “substantial” evidence exists to sustain the conviction, and a judgment of acquittal is not appropriate. Id.; Aurigemma v. State, 801 So.2d 982, 986 (Fla. 4th DCA 2001). The jury is charged with weighing the credibility of evidence, so the fact that the evidence is contradictory is not grounds for a judgment of acquittal. Williams v. State, 967 So.2d 735, 755 (Fla.2007). A motion for judgment of acquittal should only be granted where “there is no view of the evidence which the jury might take favorable to the opposite party that can be sustained under the law.” Mosley v. State, — So.3d—, —, 2009 WL 2045387, 34 Fla. L. Weekly at S468, S473 (Fla. July 16, 2009) (quoting Williams, 967 So.2d at 755).

Where the “State’s evidence is wholly circumstantial, not only must there be sufficient evidence establishing each element of the offense, but the evidence must also exclude the defendant’s reasonable hypothesis of innocence.” Pagan, 830 So.2d at 803. In a case where the State presents both direct and circumstantial evidence, however, the court does not apply the “special standard of review applicable to circumstantial evidence cases.” Mosley, — So.3d at —, 34 Fla. L. Weekly at S473 (citing Pagan, 830 So.2d at 803).

Wasserstrom was convicted of official misconduct in violation of section 838.022(l)(a), Florida Statutes (2004), which makes it “unlawful for a public servant, with corrupt intent to obtain a benefit for any person or to cause harm to another,” to “[f]alsify, or cause another person to falsify, any official record or official document.” Thus, to establish a prima facie case of official misconduct, the State had to present evidence sufficient to establish that Wasserstrom: (1) was a public servant, (2) acted with corrupt intent, (3) acted to obtain a benefit for any person, and (4) falsified an official record or document.

On appeal, Wasserstrom argues that the two disclaimers that the “lawfirm [sic] does not represent the sales representative in connection with the RFP response, and accordingly, award of the contract to Bios-et would not inure to the special private gain of the lawfirm” [sic] are true and that the State failed to present evidence inconsistent with this “reasonable hypothesis of innocence.”

The State introduced ample evidence of each element of official misconduct such that a reasonable trier of fact could sustain Wasserstrom’s conviction. The falsity of the disclaimer and the intended benefit elements of the State’s case are interrelated. At trial, it was undisputed that Wasserstrom would have benefit-ted if other jurisdictions contracted to use the Bio-Native system. Goldman testified that securing the City of Hollywood contract would help convince other local governments to contract for the system, and Wasserstrom would be compensated when other jurisdictions accepted those contracts. Because Wasserstrom would have benefitted from other jurisdictions’ contracts for Bio-Native, and because the Hollywood contract would pave the way for such contracts, it was a disputed issue of fact as to whether a benefit would “inure to the special private gain” of Wasser-strom and his law firm. Moreover, the fact that the jury asked for the definition of “inure” indicates that it was focused on the truth or falsity of the disclaimer. The State was required to prove only that Was-serstrom misrepresented the underlying facts on the form. See State v. Russ, 778 So.2d 414, 416 (Fla. 1st DCA 2001).

Additionally, the State presented evidence that Wasserstrom believed he was entitled to $50,000 in remuneration for services rendered to Bioset after the Hollywood contract had been executed. While this money could have been for services rendered regarding contracts in other jurisdictions, the record was not clear and the determination of the services for which Wasserstrom sought payment was properly presented to the jury. The jury could reasonably have concluded that Wasser-strom sought payment in part for his work on the Hollywood contract. This evidence is sufficient to establish a prima facie claim of both the elements of intended benefit and false statement.

With respect to corrupt intent, the State presented circumstantial evidence from which the jury could have found that Wasserstrom intended to receive $50,000 from his work related to the Hollywood contract. Additionally, the jury could infer that Wasserstrom invited his uncle, who had no experience in the water treatment business, to sign a contract with Bio-Native for the purpose of hiding Wasserstrom’s own relationship with Bio-Native. Finally, the State presented evidence from which the jury could conclude that Wasserstrom inappropriately pressured the utility director to choose Bio-Native over the top-scoring bid in response to the RFP. All of this evidence could give rise to an inference that Wasserstrom drafted his disclosure forms to hide the full extent of his involvement with Bio-Native and the benefit he would eventually receive.

Accordingly, the State presented a pri-ma facie case sufficient to sustain the charge of official misconduct, and the trial court correctly denied Wasserstrom’s motion for judgment of acquittal.

Remaining Issues

With respect to his argument that the verdicts are inconsistent, Wasserstrom argues that his acquittals for unlawful compensation and official misconduct as to two other disclosure forms are inconsistent with his conviction on the remaining two counts of official misconduct. Inconsistent verdicts, however, are permissible. See Brown v. State, 959 So.2d 218, 220-21 (Fla. 2007). The sole exception to this rule is where “an acquittal on one count negates a necessary element for conviction on another count.” Id. at 221 (quoting Gonzalez v. State, 440 So.2d 514, 515 (Fla. 4th DCA 1983)). For instance, an acquittal on a felony charge can negate the essential felony element of felony murder. Brown, 959 So.2d at 221.

To prove official misconduct, the State was not required to demonstrate that Wasserstrom was compensated unlawfully for the Hollywood contract. Instead, the State was only required to show that Wasserstrom had the intent that a benefit would accrue to “anyone” — including (but not limited to) Wasserstrom or his uncle. The fact that Wasserstrom was acquitted of receiving unlawful compensation himself does not negate the fact that he intended a benefit to accrue to “anyone.” Likewise, the fact that Wasser-strom was acquitted of causing Mayor Gi-ulianti to falsify her disclosure forms has no bearing on and is disconnected from the jury’s conclusion that Wasserstrom knowingly falsified his own disclosure forms. As such, we find that the verdicts were consistent and affirm on this ground.

After reviewing the record of the trial court, we conclude that the State presented sufficient evidence for a jury to convict Wasserstrom of official misconduct, and we affirm.

Affirmed.

DAMOORGIAN, GERBER and LEVINE, JJ., concur.

      . "With corrupt intent" is defined by statute as "acting knowingly and dishonestly for a wrongful purpose.” § 838.014(4), Fla. Stat. (2004).

      . "Benefit” is defined by statute as "gain or advantage,” which includes "the doing of an act beneficial to any person in whose welfare he or she is interested, including any commission, gift, gratuity, property, commercial interest, or any other thing of economic value not authorized by law.” § 838.014(1), Fla. Stat. (2004).

      . The "public official” and "official document" elements were not disputed before the trial court.

      . We do not address Wasserstrom's remaining points on appeal, as we find them to be without merit, and the trial court’s judgment is affirmed on these points.


author: ROTHENBERG, J.

text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. SANTA FE MEDICAL CENTER, a/a/o Telmo Lopez, Respondent.
    No. 3D08-547.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 2009.

      Lara J. Edelstein and Michael J. Nei-mand, Miami, for petitioner.
    Dean A. Mitchell, Ocala; Lopez & Best and Virginia Best, for respondent.

      Before RAMIREZ, C.J., and COPE, GERSTEN, WELLS, SHEPHERD, SUAREZ, CORTINAS, ROTHENBERG, LAGOA, and SALTER, JJ.
   ROTHENBERG, J.

In this petition for certiorari, United Automobile Insurance Company (“United Auto”) seeks quashal of a decision of the Miami-Dade Circuit Court sitting in its appellate capacity (“circuit court”). The decision under review affirms the Miami-Dade County Court’s (“trial court”) order granting summary judgment in favor of Santa Fe Medical Center (“Santa Fe”). Based upon this Court’s en banc review, we grant the petition and quash the decision of the circuit court.

FACTS AND PROCEDURAL HISTORY

Telmo Lopez, the insured, was involved in an automobile accident. He subsequently sought treatment with Santa Fe, and assigned his right to PIP benefits to Santa Fe. Santa Fe, as assignee, submitted bills for Mr. Lopez’s treatment to United Auto, and United Auto denied payment. Thereafter, Santa Fe filed suit against United Auto in the trial court. United Auto answered and filed its affirmative defenses, asserting that it possessed reasonable proof that it was not responsible for the submitted bills, and the payment was not “overdue” because the treatment rendered and the expenses incurred were not reasonable, related, and necessary.

Santa Fe moved for summary judgment. In support of its motion, Santa Fe submitted an affidavit executed by Mr. Lopez’s treating physician, Dr. Francisco Huertas, averring that the treatment rendered by Santa Fe to Mr. Lopez, and the resulting medical expenses incurred by Mr. Lopez, were medically necessary, reasonable, and related to the subject accident. In response, United Auto filed an affidavit submitted by Dr. Millheiser.

On September 18, 2006, the trial court granted Santa Fe’s motion for summary judgment, finding no genuine issue of material fact after rejecting Dr. Millheiser’s affidavit because: (1) it was based upon his review of Mr. Lopez’s treatment records, rather than a physical examination of Mr. Lopez, and (2) Dr. Millheiser did not conduct his review or submit his affidavit within thirty days of United Auto’s receipt of the claim. United Auto appealed to the circuit court.

The two issues before the circuit court were: (1) whether the trial court erred in refusing to consider Dr. Millheiser’s affidavit because it was not based upon his personal examination of the insured, Mr. Lopez; and (2) whether the trial court erred by failing to consider Dr. Millheiser’s affidavit because it was generated more than thirty days after the claim for PIP benefits was submitted by Santa Fe. The circuit court appellate panel concluded that: (1) the trial court properly refused to consider Dr. Millheiser’s affidavit when ruling on Santa Fe’s motion for summary judgment because it was generated more than thirty days after Santa Fe submitted the claim to United Auto, and therefore, it was untimely; and (2) the trial court properly concluded that Dr. Millheiser’s affidavit could not be used to defeat Santa Fe’s motion for summary judgment because the affidavit was not based upon his own physical examination of Mr. Lopez. Thus, the circuit court found that summary judgment was properly granted.

STANDARD OF REVIEW

Our review of this second-tier certiorari petition is limited to whether the petitioner, United Auto, was afforded due process and whether the circuit court appellate panel departed from the essential requirements of law. See Allstate Ins. Co. v. Kaklamanos, 843 So.2d 885, 889 (Fla. 2003). A departure from the essential requirements of law is equivalent to a failure to apply the correct law. Haines City Cmty. Dev. v. Heggs, 658 So.2d 523, 530 (Fla.1995). “[I]n addition to case law dealing with the same issue of law, an interpretation of a statute, a procedural rule, or a constitutional provision may be the basis for granting certiorari review.” Kaklamanos, 843 So.2d at 890.

Because we conclude that: (1) the circuit court [appellate division] has incorrectly interpreted and applied sections 627.736(4)(b) and 627.736(7)(a), Florida Statutes (2003); (2) the circuit court’s interpretation and application of sections 627.736(6)(4)(b) and 627.736(7)(a) are a departure from the essential requirements of law; and (3) the “circuit court’s decision establishes a rule of general application” for future county court cases, “thus exacerbating the effect of the [circuit court appellate panel’s] legal error,” Progressive Express Ins. Co. v. McGrath Cmty. Chiropractic, 913 So.2d 1281, 1287 (Fla. 2d DCA 2005), we grant certiorari review. See also Gould v. State, 974 So.2d 441 (Fla. 2d DCA 2007); State Farm Fla. Ins. Co. v. Lorenzo, 969 So.2d 393, 398 (Fla. 5th DCA 2007).

ANALYSIS

Our analysis involves the application of two subsections of section 627.736 — subsections (4)(b) and (7)(a). Subsection (4)(b) pertains to circumstances where “the insurer has either reduced, omitted, or declined” payment of PIP claims that are reasonable, necessary, and related, whereas subsection (7)(a) sets forth the necessary requirements that an insurer must satisfy before it may withdraw future PIP benefits.

A. Application of section 627.736(4)(b): The circuit court’s failure to consider Dr. Millheiser’s affidavit because it was generated more than thirty days after the claim was submitted

At the hearing on Santa Fe’s motion for summary judgment, the trial court refused to consider Dr. Millheiser’s affidavit, in part, because it was not generated within thirty days of Santa Fe’s submission of the PIP claim or prior to United Auto’s denial of the claim. The circuit court agreed with the trial court, finding that because Dr. Millheiser’s affidavit was obtained more than thirty days after Santa Fe submitted its claim to United Auto, it was untimely. The trial court and the circuit court’s findings are based upon an incorrect interpretation of section 627.736(4)(b). Subsection (4)(b) pertains to the time period for payment of PIP claims that are reasonable, necessary, and related; establishes the insurer’s obligations when reducing or denying payment of a PIP claim; and addresses the insurer’s right to contest the reasonableness of the claim at any time. Subsection (4)(b) provides as follows:

(4) BENEFITS; WHEN DUE.— Benefits due from an insurer under ss. 627.730-627.7405 shall be primary, ... and shall be due and payable as loss accrues, upon receipt of reasonable proof of such loss and the amount of expenses and loss incurred which are covered by the policy issued under ss. 627.730-627.7405.
(b) Personal injury protection insurance benefits paid pursuant to this section shall be overdue if not paid within 30 days after the insurer is furnished written notice of the fact of a covered loss and of the amount of same.... When an insurer pays only a portion of a claim ox- rejects a claim, the insurer shall provide at the time of the partial payment or rejection an itemized specification of each item that the insurer had reduced, omitted, or declined to pay and any information that the insurer desires the claimant to consider related to the medical necessity of the denied treatment or to explain the reasonableness of the reduced charge, provided that this shall not limit the introduction of evidence at trial.... However, notwithstanding the fact that written notice has been furnished to the insurer, any payment shall not be deemed overdue when the insurer has reasonable proof to establish that the insurer is not responsible for payment.... This paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable or that the amount of the charge was in excess of that permitted under, or in violation of, subsection (5). Such assertion by the insurer may be made at any time, including after payment of the claim or after the 30-day time period for payment set forth in this paragraph.

(Emphasis added).

The language of section 627.736(4)(b) is clear and unambiguous. Section 627.736(4)(b) imposes on the insurer a thirty-day time period in which to pay PIP benefits, if the claim is reasonable, related, and necessary. Under subsection (4)(b), a claim is due within the thirty-day period only if it is reasonable, related, and necessary. The statutory penalty for failing to pay a claim that is later determined to have been reasonable, related, and necessary, is an assessment of interest against the insurer, see § 627.736(4)(d), and potentially an award of attorney’s fees, see § 627.736(8).

Contrary to the circuit court’s finding, subsection (4)(b) does not preclude an insurer from challenging the submitted claim after the thirty-day time period, or limit the ability of the insurer to obtain and submit proof, after the thirty-day period, that the treatment was not reasonable, necessary, or related. See United Auto. Ins. Co. v. Millennium Diagnostic Imaging Ctr., Inc., 12 So.3d 242, 246 (Fla. 3d DCA 2009) (finding that the thirty-day time period set forth in section 627.736(4)(b) applies to the payment of claims that are necessary, reasonable, and related, and the failure to contest a claim within this thirty-day period does not serve to forever bar a contest to the claim); Bermudez, 980 So.2d 1213,1216-17 (Fla. 3d DCA 2008) (concluding that “section 627.736(4) ... deals with timing as to when PIP benefits that are properly due must be paid by an insurer before they are considered overdue.... [S]ection 627.736(4) expressly provides that ‘[t]his paragraph does not preclude or limit the ability of the insurer to assert that the claim was unrelated, was not medically necessary, or was unreasonable’ ”); AIU Ins. Co. v. Daidone, 760 So.2d 1110, 1112 (Fla. 4th DCA 2000) (holding “that the thirty-day period in section 627.736(4) applies to benefits which are reasonable and necessary as a result of the accident”).

Because the thirty-day period for the payment of PIP benefits contained in section 627.736(4)(b) only applies to the payment of benefits that are reasonable, necessary, and related, and the insurer may contest the claim at any time, we conclude that the trial court departed from the essential requirements of the law in refusing to consider Dr. Millheiser’s affidavit when ruling on Santa Fe’s motion for summary judgment, even though it was generated more than thirty days after Santa Fe submitted the PIP claim.

B. Application of section 627.7.36(7)(a): The circuit court’s failure to consider Dr. Millheiser’s affidavit because it was not based upon his physical examination of the insured

The trial court and the circuit court appellate panel also concluded that United Auto was required to obtain a “valid report” before it could deny payment. The circuit court agreed with the trial court’s refusal to consider Dr. Millheiser’s affidavit because the affidavit did not constitute a “valid report” as required under section 627.736(7)(a). These findings were error because subsection (7)(a) does not require the insurer to obtain a valid report to deny payment of a claim. Subsection (7)(a) only requires that a valid report be obtained when further benefits are withdrawn without the consent of the injured person. Subsection (7)(a), in relevant part, states as follows:

An insurer may not withdraw payment of a treating physician without the consent of the injured person covered by the personal injury protection, unless the insurer first obtains a valid report by a Florida physician licensed under the same chapter as the treating physician whose treatment authorization is sought to be withdrawn, stating that treatment was not reasonable, related, or necessary.

(Emphasis added). As the quoted language reveals, subsection (7)(a) specifies that a valid report is only required for an insurer to withdraw benefits without the consent of the injured person. Since this is a denial, not a withdrawal, of benefits case, subsection (7)(a) does not apply. Thus, United Auto was not required to obtain a “valid report” before denying Santa Fe’s claim.

Because this is a denial case, subsection (4)(b) applies. Subsection (4)(b) provides that the insurer must pay benefits that are reasonable, related, and necessary within thirty days after receiving written notice, and the failure to do so could subject the insurer to penalties. However, if the insurer believes that the claim is not reasonable, related, and necessary and denies the claim, it may obtain and offer reasonable proof at any time to establish that the insurer is not responsible for payment of the claim. “[A]ny payment shall not be deemed overdue when an insurer has reasonable proof to establish that the insurer is not responsible for payment.” § 627.736(4)(b). “Reasonable proof’ is not defined, but it is clear that subsection (4)(b) does not require that a “valid report” be obtained to protect an insurer from being assessed statutory penalties when denying a claim. It is important to note that the statute does not require the insurer to obtain a report or proof under subsection (4)(b) before denying a claim.

In United Automobile Insurance Co. v. Rodriguez, 808 So.2d 82, 87 (Fla.2001), the Florida Supreme Court noted that nowhere in section 627.736(4)(b) does it require that a medical report (let alone a “valid [medical] report”) be obtained showing that the insurer is not responsible for payment:

Amici Allstate Insurance Company and Geico Casualty Company point out that this requirement of a medical report is not mentioned anywhere in section 627.736(4) and they contend it is erroneous. Amici are correct. The statute does not mention “medical report” in this regard; the statute simply says that the insurer must pay benefits within thirty days unless the insurer “has reasonable proof to establish that the insurer is not responsible for the payment.” The statute does not limit “reasonable proof’ to a “medical report.” Thus, to the extent that the present district court opinion defines “reasonable proof’ to mean only a medical report, the district court has rewritten the statute. This too was error.

(Footnotes omitted).

Additionally, Justice Pariente, in her concurring opinion in Rodriguez, explained that the “reasonable proof’ requirement in section 627.736(4)(b) is not synonymous with the “valid report” requirement of section 627.736(7)(a), and that the “reasonable proof’ requirement of section 627.736(4)(b) (relating to the denial of benefits), is only necessary to avoid “overdue” status.

This statute [section 627.736(7)(a)] requires that a PIP insurer obtain a medical report as a condition precedent to withdrawing benefits. Nothing in the language of section 627.736(4)(b) suggests that the “reasonable proof’ necessary to avoid “overdue” status is limited to the “report” necessary to “withdraw” payment of a treating physician under section 627.736(7)(a). See § 627.736(4)(b). In my view, this interpretation of the “reasonable proof’ requirement in section 627.736(4)(b) and the medical report requirement of section 627.736(7)(a) give meaning and effect to both statutory provisions, with each section operating independently of the other.

Rodriguez, 808 So.2d at 89 (Pariente, J., concurring).

In State Farm Mutual Automobile Insurance Co. v. Rhodes & Anderson, D.C., P.A., 18 So.3d 1059 (Fla. 2d DCA 2008), Judge Canady (now Justice Canady) authored a comprehensive opinion addressing the identical question: whether a “valid report” under section 627.736(7)(a) is required before an insurer may deny payment of a claim for PIP benefits. The Second District answered the question in the negative, holding that the insurer’s refusal to pay for certain tests was a denial, not a withdrawal, of payment, and thus the “valid report” requirement in section 627.736(7)(a) did not apply. The court found, instead, that because the claim was denied, the insurer was only required to provide reasonable proof that the insurer was not responsible for the claim. Id. at 1064.

Our interpretation of section 627.736(7)(a) is consistent with this Court’s earlier opinion in United Automobile Insurance Co. v. Viles, 726 So.2d 320 (Fla. 3d DCA 1998). Unlike the instant case, Viles was a withdrawal case. Thus, section 627.736(7)(a) applied, and the insurer was required to obtain a valid report before withdrawing or refusing to pay any further PIP benefits. In Viles, the insurer had paid for some of the chiropractic services provided to the insured, but, believing that the bills were fraudulent and not reasonably related to the accident, refused to pay for additional services without first obtaining a valid physician’s report stating that further treatment was unnecessary, unreasonable, or unrelated. 726 So.2d at 320. This Court concluded that prior to withdrawing payment, the insurer was required to obtain a valid report.

[W]e agree with the trial court’s well reasoned analysis concluding that United Auto was required to first obtain a physician’s report before refusing to pay further medical bills. The statute [section 627.736(7)(a)] plainly provides that an insurer must first obtain the referenced report before electing to withdraw payment.

Viles, 726 So.2d at 321 (emphasis added).

Bermudez was also a withdrawal case. Thus, subsection (7)(a) applied, not subsection (4)(b). In Bermudez, the issue was whether a medical report issued for the withdrawal of PIP benefits may be based on the reporting physician’s review of another physician’s examination, or whether the reviewing physician must perform his own independent physical examination of the insured. 980 So.2d at 1214. This Court concluded that a valid report for the withdrawal of benefits may be based upon the reporting physician’s review of another physician’s examination. “[W]e hold that under section 627.736(7)(a) a medical report issued for the withdrawal of PIP benefits may be based on a physical examination of the insured that is conducted by either the physician preparing the report or another physician’s examination.” Ber-mudez, 980 So.2d at 1215.

Although Bermudez, in dicta, suggests that Viles also applies the section 627.736(7)(a) valid medical report requirement to the denial of PIP benefits, a careful reading of the case demonstrates that it does not. Viles only applies section 627.736(7)(a) to the withdrawal or termination of authorization for further treatment, not to an initial outright denial of benefits. “The statute plainly provides that an insurer must first obtain the referenced report before electing to withdraw payment.” Viles, 726 So.2d at 321 (emphasis added). “[S]ection 627.736(7)(a) sets up a procedural requirement that an insurer cannot withdraw payment of a treating physician unless the decision is supported by an expert that the treatment does not comply with the statutory criteria.” Id. (emphasis added). See also Rhodes & Anderson, 18 So.3d at 1064 (confirming that Viles “only applies to the withdrawal or termination of payments or to the withdrawal or termination of authorization for treatment”; holding that “denial of a single claim for payment does not constitute the withdrawal of a physician’s ‘treatment authorization’ ” and does not implicate section 627.736(7)(a) because that section “does not address situations in which one charge for treatment has been denied by the insurer”).

We, therefore, recede from that portion of Bermudez suggesting that the holding in Viles also applies to denial of benefits cases.

Because this is a denial cáse, section 627.736(7)(a) is not implicated. Therefore, United Auto was not required to obtain a “valid medical report” to deny payment of Santa Fe’s claim, and the circuit court erred in granting Santa Fe’s motion for summary judgment based upon United Auto’s failure to comply with section 627.736(7)(a).

CONCLUSION

We grant the instant petition because the circuit court departed from the essential requirements of law by incorrectly interpreting the language of subsections (4)(b) and (7)(a) of section 627.736, and by failing to apply the correct law set forth in subsection (4)(b). In granting the petition, we clarify that subsection (4)(b) pertains to the time period for payment of PIP benefits if the claim is reasonable, related, and necessary. Subsection (4)(b) provides that when an insured seeks payment of PIP benefits from the insurer, the insurer must pay the claim within thirty days if the claim is reasonable, related, and necessary. If the insurer believes the claim is not reasonable, related, and necessary, it may: (1) deny the claim; or (2) pay the claim until it obtains a valid medical report under subsection (7)(a) and withdraw further payment. “Reasonable proof” when defending an insurer’s decision to deny payment of a claim under subsection (4)(b) does not require that the insurer obtain a valid report pursuant to subsection (7)(a), and the insurer may contest its responsibility to pay a claim at any time, and present evidence obtained after the thirty-day period has expired. Subsection (7)(a), which requires that the insurer obtain a valid medical report, only applies to instances where the insurer withdraws the payment of further PIP benefits, not to the denial or reduction of the benefits claimed.

Petition granted; decision quashed.


text:
    UNITED AUTOMOBILE INSURANCE COMPANY, Petitioner, v. TOTAL REHAB & MEDICAL CENTER, INC., Respondent.
    No. 3D09-611.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 2009.
    Lara J. Edelstein, for petitioner.
    Panter, Panter & Sampedro and Christian Carrazana, Miami, for respondent.
    Before GERSTEN, CORTIÑAS, and SALTER, JJ.
   PER CURIAM.

We grant the petition for certiorari on the authority of our decision in United Automobile Insurance Company v. Santa Fe Medical Center, 21 So.3d 60, 2009 WL 3188957 (Fla. 3d DCA 2009).


author: COPE, J.

text:
    Raed ALDIN, Appellant, v. The STATE of Florida, Appellee.
    No. 3D07-2932.
    District Court of Appeal of Florida, Third District.
    Oct. 7, 2009.

      Carlos J. Martinez, Public Defender, and Gwendolyn Powell Braswell, Assistant Public Defender, for appellant.
    Bill McCollum, Attorney General, and Nikole Hiciano, Assistant Attorney General, for appellee.
    Before COPE, LAGOA and SALTER, JJ.
   COPE, J.

Raed Aldin appeals his convictions for burglary and theft. He argues that evidence was seized from his car in violation of the Fourth Amendment and should not have been introduced at his trial. We conclude that this argument is well taken.

A burglary occurred at a residence in Miami Beach. A cellphone was stolen along with jewelry and other items. At the request of the lead detective, the cellphone was left activated so that the police could try to track any subsequent usage.

The police learned that a call had been made from the stolen cellphone to an individual named Mohammed Samad. Upon speaking with Samad, the detective obtained the name and address of defendant-appellant Aldin.

The defendant resided in an apartment behind a home in the City of Miami. The police placed the defendant’s residence under surveillance. At about 1 a.m., the defendant arrived in his van, and parked on the street in front of the residence. The detective and other officers approached for a consensual encounter. The detective informed the defendant that he was investigating a stolen cellphone. The defendant agreed to speak with him. The detective administered Miranda warnings.

The detective advised the defendant that the police had information that he had made calls from a stolen cellphone. According to the detective, the defendant said, “Yes, I know what phone you are talking about. And I have that phone.” He told the detective that the phone was inside his apartment.

The detective asked if the officers could go inside to retrieve the cellphone, and the defendant said yes. The defendant let the officers into the apartment, retrieved the cellphone from underneath a loaf of bread, and gave it to the detective.

While inside the apartment, the detective noticed several items that had been reported as stolen. The detective asked the defendant what items in the apartment were stolen. The defendant replied that it would be easier to ask him what in the apartment was not stolen.

The defendant was arrested and taken to the police station. The detective again administered Miranda rights, which the defendant waived.

The defendant signed a form consenting to the search of his residence, but not his vehicle. There was a clause on the consent form authorizing the police to search his automobile. The defendant crossed out the paragraph on the form which authorized the automobile search.

The police returned to the apartment and conducted a search. The defendant’s van was towed to the police station and was searched there. The officers found tool boxes and work gloves.

Prior to trial, the defendant moved to suppress the evidence taken from the apartment and the car. The motion was denied, and the evidence was introduced at trial. The defendant was convicted of burglary and grand theft as charged. He has appealed.

The defendant contends that the trial court erred in denying the motion to suppress the items taken from his van. We agree.

The defendant’s interrogation at the police station began at 2:05 a.m. and concluded around 6:00 a.m. The defendant signed a form consenting to a search of his apartment, but did not consent to a search of the van.

The officers arranged for the van to be towed to the police station. According to the testimony, the police did so because the defendant had admitted in his statement to the detectives that he had used the van to commit the crimes. At the station the van was opened and the contents were photographed. The items seized included a pair of gloves and some tool boxes.

Because there was no consent and no search warrant, the question is whether the search may be upheld under an exception to the warrant requirement. The State contends that the search in this case qualifies as a plain view search. The State argues that the gloves and tool boxes could be seen through the windows of the van, and accordingly it was permissible to enter the van to seize the evidence. The State is incorrect.

The Florida Supreme Court has explained:

[A] warrantless seizure of evidence found in plain view is admissible if at the time of the search: (1) the seizing officer was legitimately in a place where the object could be plainly viewed; (2) the incriminating nature of the seized object was immediately apparent to the police officer; and (3) the seizing officer had a lawful right of access to the object itself. With regard to the third requirement, the [High] Court explained that the seizing officer may lawfully seize an incriminating object if the officer has probable cause prior to the seizure and it was discovered within the parameters of a validly executed search warrant or one of the exceptions to the [Fourth Amendment’s general] warrant [requirement].

Lynch v. State, 2 So.3d 47, 67 (Fla.2008) (citation omitted) (brackets in original) (quoting Rimmer v. State, 825 So.2d 304, 313 (Fla.2002)). Thus the fact that the officers could see the items through the windows did not provide an independent basis for entry into the van.

The State also argues that the search is a permissible automobile search. Under the circumstances of this case, we disagree.

In Arizona v. Gant, — U.S. —, 129 S.Ct. 1710,173 L.Ed.2d 485 (2009), the United States Supreme Court clarified when the police may conduct a search of a vehicle incident to an arrest of the driver or a passenger. The Court stated:

Police may search a vehicle incident to a recent occupant’s arrest only if the arrestee is within reaching distance of the passenger compartment at the time of the search or it is reasonable to believe the vehicle contains evidence of the offense of arrest. When these justifications are absent, a search of an arres-tee’s vehicle will be unreasonable unless police obtain a warrant or show that another exception to the warrant requirement applies.

Id. at 1723-24,129 S.Ct. 1710.

The encounter with the defendant in this case began at 1:00 a.m., followed by arrest and transportation to the police station. The defendant denied consent to search the van at 6:00 a.m. The van was later towed away and searched. The search of the van cannot be considered a search incident to a recent occupant’s arrest. Under Gant, the search was uni'easonable. Id. See generally Phillip A. Hubbart, Making Sense of Search and Seizure Law 263-64 (2005).

The State argues that the evidence is admissible under the inevitable discovery rule. That rule is applicable “where it can be shown that, had the evidence in question not been obtained by the challenged police conduct, it ‘ultimately or inevitably would have been discovered by lawful means.’ ” Craig v. State, 510 So.2d 857, 862 (Fla.1987). The State has not demonstrated how the evidence would have inevitably been discovered.

The State argues alternatively that the failure to grant the motion to suppress evidence was harmless error. To establish harmless error, we must be satisfied that the error was harmless beyond a reasonable doubt. State v. DiGuilio, 491 So.2d 1129, 1139 (Fla.1986). In this case the defendant took the stand at trial and denied making the incriminating statements attributed to him. He stated that the property in the apartment had been brought there by his friend Mohammed Samad, including the cellphone.

In response to the defendant’s testimony, the State argued that the gloves which had been found in the van corroborated the detective’s testimony that the defendant had confessed. The detective had testified that the defendant told him he committed the burglary while wearing gloves. The State argued that the gloves were physical evidence which corroborated the detective’s testimony.

During jury deliberations, the jury sent out a note at one point stating that it was deadlocked 4-2, but eventually voted to convict. In light of the other evidence in the case, we are unable to say that the error is harmless beyond a reasonable doubt.

Turning to the remaining issues in the ease, the defendant argues that the trial court erred by allowing the detective to testify that, in answer to the question, “What items in your apartment are stolen?”, the defendant said that it would have been easier if the detective asked him what items were not stolen. The defendant maintains that allowing this testimony suggested that the defendant was involved in more crimes than the charged crime. We see no abuse of discretion in the trial court’s ruling. The detective testified about what the defendant himself said, and the statement is in the nature of inseparable crimes evidence. See Wright v. State, 19 So.3d 277, 292 (Fla. 2009) (inseparable crime “evidence is admissible because it is a relevant and interwoven part of the conduct that is at issue.”). The defense has not cited any authority which would require the editing of the defendant’s own statement in this context.

The defense also contends that the trial court should have excluded some of the photographs taken at the defendant’s apartment. During the consent search, the State collected the items which they believed to be stolen and took photographs. Eventually the police connected these items to a total of seventeen burglaries in Miami Beach. However, this particular case was tried separately.

The defendant requested exclusion of several of the photographs on the ground that the pictures included objects that had been taken in other burglaries, not this burglary. During the trial, the court sustained the objection to one photo, and overruled the objection to the remaining photos. Each photo included one or more objects that had been stolen from the victim, and there was no duplication. We see no abuse of discretion in allowing the photographs into evidence so that the victim could identify the stolen items. If on remand there is a practical way to mask the photographs so as to limit each photo to items of property owned by the victim in this case, the defendant may make such a request.

We affirm as to the claimed Richardson error without comment.

Affirmed in part, reversed in part, and remanded for a new trial.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).

      . The defendant does not challenge that part of the suppression order which denied the motion to suppress the evidence obtained from the apartment.

      . These rules are a narrowing construction of the Court’s earlier decision in New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981).

      . Richardson v. State, 246 So.2d 771 (Fla. 1971).