author: KELLUM, Judge.

text:
    Raymond Charles STYRON v. STATE of Alabama.
    CR-07-1778.
    Court of Criminal Appeals of Alabama.
    Oct. 9, 2009.

      Rusty Pigott, Foley, for appellant.
    Troy King, atty. gen., and Marc Alan Starrett, asst. atty. gen., for appellee.
   KELLUM, Judge.

The appellant, Raymond Charles Styron, was indicted in September 2006 by a Baldwin County grand jury for committing the following alleged criminal acts against R.D.A., a child under 12 years of age: three counts of sodomy in the first degree, a violation of § 13A-6-63(a)(3), Ala.Code 1975; two counts of sexual abuse in the first degree, a violation of § 13A-6-66(a)(1), Ala.Code 1975; and one count of sexual torture, a violation of § 13A-6-65.1(a)(1) or (3), Ala.Code 1975. Styron was also indicted in September 2006 for committing the following acts against E.A., a child less than 12 years of age: two counts of sodomy in the first degree, a violation of § 13A-6-63(a)(3), Ala.Code 1975; two counts of sexual abuse in the first degree, a violation of § 13A-6-66(a)(3), Ala.Code 1975; one count of rape in the first degree, a violation of § 13A-6-61(a)(1), Ala.Code 1975; and one count of sexual torture, a violation of § 13A-6-65.1(a)(1) or (3), Ala.Code 1975.

Following a trial, the jury found Styron guilty of all counts alleged in the indictments. On the convictions for the offenses committed against R.D.A., the circuit court sentenced Styron to life imprisonment for each conviction of first-degree sodomy and sexual torture. Styron was sentenced to 10 years’ imprisonment for each conviction for first-degree sexual abuse. Regarding the convictions for the offenses committed against E.A., the circuit court sentenced Styron to life imprisonment for the first-degree sodomy convictions, rape conviction, and sexual-torture conviction. Styron was sentenced to 10 years’ imprisonment for each sexual-abuse-in-the-first-degree conviction. In both cases, the circuit court directed that the sentences run concurrently with the first life sentence imposed. The court further ordered Styron to pay a $500 fine for each conviction, $100 to the crime victims compensation fund for each conviction, and a total of $2,868.25 in restitution.

The evidence presented at trial established the following pertinent facts. R.D.A. and E.A. are first cousins. E.J.A. is R.D.A. and E.A.’s aunt. R.D.A. and E.A. were close to E.J.A.’s family and would frequently see each other, spend the night together at the family’s home, and go to the beach together. R.D.A. and E.A., who were eight years old at the time of the alleged abuse, lived with EA.’s mother and stepfather, Styron, and stepbrother, D.S., at the home of their grandparents, J.A. and G.A. Styron and his wife lived in a storage building attached to the grandparents’ house.

On the evening of June 24, 2006, E.J.A. was driving her children, D.A. and M.A., along with E.A. and R.D.A. home; E.A. and R.D.A. were sitting in the backseat of the vehicle with M.A. As she was driving, E.J.A. heard R.D.A. “laughing” and telling the others that Styron “has a generator that he used on my body. It’s supposed to massage my body.” (R. 152.) E.J.A. then asked R.DA. and E.A. where Styron used the “generator.” R.D.A. stated that Styron used it on “his head, his neck, and his private” and that Styron had “stuck it up his butt that morning.” (R. 154.) R.D.A. told E.J.A. that Styron had used the “generator” on him several times. R.D.A. further told E.J.A. that the activity occurred once a month. E.A. told E.J.A. that Styron used the “generator” “in the same area, in the private.” (R. 154.) R.D.A. and E.A. both told E.J.A. that Styron had touched his mouth to their respective “privates.” R.D.A. and E.A. told E.J.A. that the molestation had happened in the storage building attached to G.A.’s and J.A.’s house. E.J.A. testified that she immediately telephoned G.A. and J.A. and told them to come to her house. After discussing the matter with G.A. and J.A., they contacted local law enforcement.

Tony Nolfe, a sergeant with the Baldwin County Sheriffs Department and the supervisor of the unit that investigates sex offenses against children, met with E.J.A., G.A., and J.A. at approximately 11:00 p.m. on June 24, 2006. Sgt. Nolfe briefly spoke with E.J.A. regarding the manner in which the children disclosed the abuse before going to Styron’s residence to question him. Sgt. Nolfe explained that he wanted to question Styron immediately because another child was in the house with Styron. Once at Styron’s residence, Sgt. Nolfe informed Styron of his Miranda rights, and Styron voluntarily waived those rights. Styron also voluntarily consented to the search of the residence. Sgt. Nolfe then performed a cursory search of the residence, where he found in plain view “the vibrator in question sitting on the bedside table where it had been described by one of the children that it should be, or where it should be. And it matched the description.” (R. 182.)

After determining that there had been a valid disclosure, Sgt. Nolfe, along with Deputy Lee Paul, interviewed Styron for several hours. Before beginning the interview, Sgt. Nolfe reasserted Styron’s Miranda rights. Sgt. Nolfe testified that he then told Styron that the officers were there “because the secret was out, that the kids had told their secret.” (R. 191.) Sgt. Nolfe testified that after hearing this, Styron became even more nervous than he had been earlier. When Sgt. Nolfe informed Styron of the children’s statements and his belief that those statements were true, Styron denied them. However, shortly after denying any wrongdoing, Styron admitted to “many, many of these things that he is accused of doing.” (R. 195.)

Approximately two hours into the interview, Styron admitted that he had molested the children. Sgt. Nolfe testified:

“[Styron] said that he was sorry, that he did love them and he did not want to hurt them, and that he wanted to do whatever he could do to make sure that they were okay mentally, that he would, he would help make sure that they were okay because that was something that was important to him, he said.
“He went on to tell me that if they ever said it hurt he would stop. ‘They knew that if I hurt them, they could tell me to stop.’ And that was sort of the dam-breaking sort of statement that opened up the subsequent statements.”

(R. 195-96.)

Styron explained to Sgt. Nolfe that the abuse of the children arose from his “curiosity” and physical excitement. Sgt. Nolfe testified:

“I did ask him about — it’s a standard question — about his sex life with his wife and what led, you know, why would this have gotten started with the children? He said that [he and his wife] had a normal sex life and that it got started with the children just out of curiosity, or they would be playing around or wrestling and that he would become physically excited and one thing would lead to another.
“... [H]e said that he did not know how the sexual stuff started with the kids other than just being a progressive thing, to paraphrase.”

(R. 197.)

Styron told Sgt. Nolfe that the molestation of the children started approximately one year ago, after the children moved into the storage building and only occurred when his wife was not at home. Styron informed Sgt. Nolfe that it would only rarely be just him and R.D.A., but would frequently be just him and E.A., and then occasionally all three of them together. Sometimes Styron and the children would be clothed and sometimes they would be nude or in some state of disrobe.

Styron described in detail to Sgt. Nolfe his molestation of E.A. Styron referred to the sexual acts committed as “playing.” (R. 205.) Styron estimated that he had performed oral sex on E.A. approximately 20 times. Styron made E.A. manually stimulate his penis several times. Sgt. Nolfe testified that Styron

“stated that he only had [E.A.] masturbate him or fondle him on several occasions, several times, but said that he made sure — he was very adamant, strangely — that he never ejaculated on her, that she didn’t like that and thought it was gross. And he went on to say that she wouldn’t perform oral sex on him for the same reason, that she thought it was gross, and he wouldn’t make her do anything that she didn’t want to do, is what he told me.”

(R. 202.) However, Styron later admitted to Sgt. Nolfe that he had had E.A. manually stimulate him to orgasm just “the day before yesterday.” (R. 205.) Styron claimed that he did not have sexual intercourse with E.A. because he “would tear her apart” and “hurt her.” (R. 203.) However, Styron admitted to inserting his penis into E.A.’s vagina. Sgt. Nolfe testified:

“[Styron] said that he would sort of kneel between [E.A.’s] legs or have her on the side of the bed and the he would rub himself around, I guess, just inside her vaginal area or between the labia, and that he would do that to the point of ejaculation, and just kind of push against her a little bit but never in her.”

(R. 203.) Styron further described to Sgt. Nolfe how he had penetrated E.A.’s vagina with a vibrator once and penetrated E.A.’s vagina with his pinky finger.

Styron also admitted to the molestation of R.D.A. Styron told Sgt. Nolfe that he inserted a vibrator into R.D.A.’s anus in E.A.’s presence. Styron told Sgt. Nolfe that as recently as the morning of June 24, 2006, he had asked R.D.A. “if he could get his noodle hard, and asked him if he would try to get his noodle hard.” (R. 205.) Styron referred to his penis as a “noodle.” Styron described to Sgt. Nolfe how he and R.D.A. would often “play with each other until they were erect, and that that happened a lot.” (R. 208.) Styron further stated that he had performed oral sex on R.D.A. approximately three times and that he had R.D.A. perform oral sex on him approximately three times. Styron described the molestation of the children as “something special.” (R. 208.)

Tammy Burns, a social worker with the Alabama Department of Human Resources who specialized in responding to reports of child sexual and physical abuse, arranged to interview the children shortly after learning about the allegations of sexual abuse. On June 28, 2006, Burns interviewed E.A. and R.D.A., who arrived for the interview with only their families, outside the presence of law enforcement. Burns testified that E.A. told her that Styron was her stepfather. E.A. described to Burns numerous incidents of sexual contact that had occurred in the bedroom shared by Styron and E.A.’s mother, R.S. E.A. told Burns that Styron “touched [her] front private with his front private, and hurt, put it inside.” (R. 268.) E.A. described to Burns “penile/vaginal penetration” and “penile/rectal penetration.” (R. 272.) E.A. described how Styron put his mouth on her vagina, touched her vagina with his hand, and touched her vagina with his penis. E.A. further told Burns that Styron digitally penetrated her vagina, inserted his finger and penis into her rectum, and penetrated her vagina and rectum with a vibrator. E.A. also described to Burns how Styron made her rub his penis with her hand. Burns testified that E.A. told her that Styron forced her and R.D.A. to engage in sexual acts with each other while he watched and that she had been with R.D.A. when Styron molested him. E.A. explained to Burns that Styron rewarded her with gifts for keeping their “secret.” (R. 273.)

R.D.A., who was 10 years old at the time of trial, testified that during the time that he lived with Styron, E.A., and E.A.’s mother, Styron touched his “front private part” with his mouth and made him touch Styron’s erect “front private part.” (R. 113, 116.) Styron also put his penis into R.D.A.’s mouth. R.D.A. further testified that Styron took a white vibrator and “put it up my butt.” (R. 118.) Styron told R.D.A. that he was going to “suck [R.D.A.’s] noodle,” and, after doing so, he would tell R.D.A. that it was his turn to reciprocate. (R. 120.)

R.D.A. testified that he would sometimes be in a bedroom with Styron and E.A. R.D.A. described watching Styron touch E.A.’s “front private part.” R.D.A. testified that he also saw Styron touch and place his mouth on E.A.’s “front private part” and also saw Styron insert his penis into her body. (R. 121.) According to R.D.A., Styron used his cellular telephone to photograph him with R.D.A. and E.A. while engaging in sexual activities. Styron told R.D.A. and E.A. that they could not tell anyone about what he had done to them.

Dr. Raymon Peterson, a medical doctor who regularly examines children for possible indications of sexual abuse, examined E.A. and R.D.A. in a special examination room at Thomas Hospital. Dr. Peterson testified that one seldom finds during an examination physical indications of sexual abuse in children. However, Dr. Peterson testified that his examination of E.A. revealed small hematomas and two small bruises at the base of her hymen “on the forward part of the vagina.” (R. 243.) Dr. Peterson stated that the bruises contained bright red blood, which indicated that they were recent. E.A. also had two small fissures in her rectum, but Dr. Peterson explained that such fissures were commonly found in normal children who have large bowel movements. Dr. Peterson concluded that the bruises and hema-toma stemmed from “some kind of trauma.” (R. 245.)

Dr. Peterson testified that he examined R.D.A.’s rectum and determined that it was normal. However, Dr. Peterson noted that it was uncommon to find any damage in the area of the sphincter or the anus. Dr. Peterson found that R.D.A.’s genitalia were also normal.

Styron’s defense counsel rested without putting on any evidence. After both sides had rested and the court instructed the jury on the law applicable to Styron’s case, the jury found Styron guilty of all charges set out in the indictments. This appeal followed.

Styron’s sole contention on appeal is that the circuit court erred in admitting, over his objection, the testimony of E.J.A. and Burns because, he argues, their testimony violated his rights under the Confrontation Clause and the United States Supreme Court’s decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). Specifically, Styron contends that E.A.’s out-of-court descriptions to E.J.A. and Burns of her sexual molestation constituted “testimonial” statements under Crawford and that their admission into evidence without allowing Styron to cross-examine E.A. “tainted” his convictions in the cases of both E.A. and R.D.A.; Styron maintains that this error was not harmless. In the alternative, Styron argues that his convictions for the offenses committed against E.A. should be reversed.

The record indicates that at the conclusion of R.D.A.’s testimony, the State called E.A., who was nine years old at the time of trial, to testify. After asking E.A. several questions in the presence of the jury and receiving no response, the circuit court determined that E.A. had “just completely frozen up.” (R. 135.) Out of the presence of the jury, the circuit court further questioned E.A. and received no oral response. Defense counsel then moved to disqualify E.A. as a witness based on her inability to testify and his doubt that she would respond to cross-examination. The State then moved to admit E.A.’s out-of-court statements. The circuit court granted the State’s motion, finding:

“Well, it appears to the Court from its attempts on two separate occasions, before and after the break, to talk to the child, that the child is unavailable to testify because of the child’s inability to communicate about the offense because of fear or a similar reason. And obviously the Court is not a child psychologist and I don’t know why [E.A.] is choosing not to speak, but I think she said she was nine. I think that was the only thing that she said.
“That’s the only thing I recall [E.A.] saying. And in response to one of [the prosecutor’s] questions about, do you know the difference between telling the truth or telling a lie, she nodded her head up and down. And that’s been the extent of her ability to communicate. So the Court will grant the State’s request to use out-of-court statements on behalf of [E.A.].”

(R. 143-44.)

In Crawford v. Washington, supra, the United States Supreme Court held that the admission of a wife’s out-of-court statements to police officers, regarding an incident in which the defendant, her husband, allegedly stabbed the victim, violated the Confrontation Clause. The Supreme Court stated that, regardless of whether an out-of-court statement is deemed reliable by the trial court, an out-of-court statement by a witness that is testimonial is barred under the Sixth Amendment’s Confrontation Clause, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Crawford v. Washington, 541 U.S. at 68, 124 S.Ct. 1354. Although the Supreme Court held that Crawford applied to testimonial statements, it declined to provide a comprehensive definition of testimonial statements, stating merely that “[whatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” 541 U.S. at 68, 124 S.Ct. 1354.

In Davis v. Washington, 547 U.S. 813, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), the United States Supreme Court expounded on what types of statements were testimonial statements:

“Statements are nontestimonial- when made in the course of police interrogation under circumstances objectively indicating that the primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency. They are testimonial when the circumstances objectively indicate that there is no such ongoing emergency, and that the primary purpose of the interrogation is to establish or prove past events potentially relevant to later criminal prosecution.”

547 U.S. at 822, 126 S.Ct. 2266.

Alabama law authorizes the admission of an out-of-court statement made by a child under the age of 12 under certain circumstances. See § 15-25-81, Ala.Code 1975. Section 15-25-32, Ala.Code 1975, provides:

“An out-of-court statement may be admitted as provided in Section 15-25-31, if:
“(1) The child testifies at the proceeding, or testifies by means of video tape deposition as provided by Section 15-25-2, or testifies by means of closed circuit television as is provided in Section 15-25-3, and at the time of such testimony is subject to cross-examination about the out-of-court statements; or
“(2)a. The child is found by the court to be unavailable to testify on any of these grounds:
“1. The child’s death;
“2. The court finds that there are reasonable grounds to believe that the defendant or someone acting on behalf of the defendant has intentionally removed the child from the jurisdiction of the court;
“3. The child’s total failure of memory;
“4. The child’s physical or mental disability;
“5. The child’s incompetency, including the child’s inability to communicate about the offense because of fear or a similar reason; or
“6. Substantial likelihood that the child would suffer severe emotional trauma from testifying at the proceeding or by means of closed circuit television; and
“b. The child’s out-of-court statement is shown to the reasonable satisfaction of the court to possess particularized guarantees of trustworthiness.”

Although the United States Supreme Court’s decision in Crawford effectively abrogated subsection b. of § 15-25-32(2), § 15-25-32 still requires the declarant’s unavailability in order to admit an out-of-court statement made by a child under the age of 12.

Statements to E.J.A.

It is undisputed that E.A. was unable to communicate at trial about the offense. After several attempts to get E.A. to respond to questioning, defense counsel moved to disqualify E.A. as a witness based on her inability to testify and counsel’s doubt that she would respond to cross-examination. Styron does not question on appeal E.A.’s unavailability to testify. Therefore, a detailed discussion of the applicability of § 15-25-31 is unnecessary in this case.

The record indicates that the statements made by E.A. and R.D.A. while riding in E.J.A.’s vehicle were spontaneous statements made outside the scope of a police interrogation. While taking E.A. and R.D.A. home, E.J.A. overheard the children laughing and discussing a “generator” being used on their bodies and on their “private[s].” The comments made by E.A. and R.D.A. prompted E.J.A. to question the children further and ultimately led to the discovery that Styron had sexually molested E.A. and R.D.A. At the time E.J.A. questioned the children, she clearly did so out of concern for the children in her role as the children’s aunt and not in contemplation of a criminal investigation or trial. Accordingly, the statements E.A. and R.D.A. made to E.J.A. were nontesti-monial under Crawford. Spontaneous utterances and responses to inquiries by family members under the circumstances of the instant case do not bear the indicia of “formal statements] to government officers,” but are instead more analogous to “a casual remark to an acquaintance.” Crawford, 541 U.S. at 51, 124 S.Ct. 1354. Therefore, the circuit court did not err in admitting E.J.A.’s testimony regarding E.A.’s out-of-court statements pursuant to § 15-25-31.

Statements to Bums

Regarding statements by E.A. and R.D.A. to Burns, the record establishes that after E.J.A. discovered that the children had been molested, law-enforcement officers were called to investigate the children’s claims. After briefly questioning E.J.A., Sgt. Nolfe went to Styron’s residence to question him. Within hours of initiating his questioning of Styron, Styron confessed to molesting E.A. and R.D.A. Burns, a DHR employee, was immediately notified about the allegations of molestation and arranged to interview E.A. and R.D.A. Four days after E.A. and R.D.A. reported the molestation by Styron, Burns interviewed the children at a local hospital outside the presence of law-enforcement officers.

Burns interviewed the children in her capacity as an employee of DHR specializing in child sexual-abuse claims. At the time Burns interviewed E.A. and R.D.A., a criminal investigation into the claims against Styron was well underway. The State contends that the evidence established that the “primary purpose” of Burns’s interaction with the children was not to further a criminal investigation, but instead was to assist the children in obtaining treatment for any damage, physical or otherwise, that might have stemmed from the alleged abuse. Although the evidence does support the State’s contention insofar as Burns was charged with attending to E.A.’s and R.D.A.’s mental and physical well-being in the aftermath of the allegations of molestation, the evidence also indicates that Burns was the first government employee to interview the children regarding the molestation allegations. Sgt. Nolfe spoke with E.J.A., but did not speak with the children. Certainly, statements made to Burns might be used to corroborate the statements made by the children to E.J.A. Under the circumstances of the instant case, Burns’s interview with the children was closely tied to the continuing criminal investigation of the molestation of E.A. and R.D.A. Therefore, E.A.’s and R.D.A.’s statements to Burns fit within the scope of “testimonial” hearsay that Crawford v. Washington holds is subject to the Confrontation Clause. Accordingly, the circuit court erred when it allowed Burns to testify regarding E.A.’s statements that Styron committed improper sexual acts with her on several occasions.

Harmless-Error Analysis

Having concluded that the circuit court erred in admitting Burns’s testimony regarding E.A.’s statements, we must now determine whether the error warrants reversal. Rule 45, Ala. R.App. P., states:

“No judgment may be reversed or set aside, nor a new trial granted in any ... criminal case on the ground of misdirection of the jury, the giving or refusal of special charges or the improper admission or rejection of evidence, ... unless in the opinion of the court to which the appeal is taken or application is made, after examination of the entire cause, it should appear that the error complained of has probably injuriously affected substantial rights of the parties.”

In T.P. v. State, 911 So.2d 1117 (Ala.Crim.App.2004), this Court discussed the application of the harmless-error analysis to claims alleging a violation of the Confrontation Clause:

“In determining whether the error in this case was harmless, we first look to the Supreme Court’s opinion in Crawford v. Washington[, 541 U.S. 36 (2004) ]. In remanding that ease to the Washington Supreme Court for further proceedings, it noted that the state appellate court had found the confrontation violation ‘not harmless.’ 541 U.S. at 42 n. 1, 124 S.Ct. at 1359 n. 1. From this, we infer that while Crawford v. Washington fundamentally alters the way we analyze claims of error under the Confrontation Clause, the opinion does not change the way we evaluate the effect of any such error. Accordingly, we must now determine whether the constitutional violation in this case is harmless beyond a reasonable doubt. Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see also Perkins v. State, 897 So.2d [457,] 465 [ (Ala.Crim.App.2004) ]; Smith v. State, 898 So.2d [907,] 918 [ (Ala.Crim.App.2004) ].”

911 So.2d at 1124.

Excluding Burns’s testimony regarding E.A.’s statements to her, the State produced ample evidence on which to base a finding that Styron was guilty of multiple counts of sodomy in the first degree, sexual abuse in the first degree, sexual torture, and one count of rape in the first degree.

“A person commits the crime of sodomy in the first degree if:
“(3) He, being 16 years old or older, engages in deviate sexual intercourse with a person who is less than 12 years old.”

§ 13A-6-63(a)(3), Ala.Code 1975. “Deviate sexual intercourse” is defined as “[a]ny act of sexual gratification between persons not married to each other involving the sex organs of one person and the mouth or anus of another.” § 13A-6-60(2), Ala. Code 1975.

A person commits the crime of sexual torture “[b]y penetrating the vagina or anus or mouth of a person who is less than 12 years old with an inanimate object, by a person who is 16 years old or older with the intent to sexually torture or to sexually abuse.” § 13A-6-65.1(3), Ala.Code 1975. Rape in the first degree is defined, in pertinent part, as follows:

“(a) A person commits the crime of rape in the first degree if:
“(1) He or she engages in sexual intercourse with a member of the opposite sex by forcible compulsion.... ”

§ 13A-6-61(a)(l), Ala.Code 1975.

Section 13A-6-66, Ala.Code 1975 — the sexual-abuse statute in effect at the time of the commission of the criminal offenses by Styron — provided, in pertinent part, as follows:

“(a) A person commits the crime of sexual abuse in the first degree if:
“(1) He subjects another person to sexual contact by forcible compulsion; or
“(3) He, being 16 years old or older, subjects another person to sexual contact who is less than 12 years old.”

“Sexual contact” is defined as “[a]ny touching of the sexual or other intimate parts of a person not married to the actor, done for the purpose of gratifying the sexual desire of either party.” § 13A-6-60(3), Ala.Code 1975. This Court has previously held that “ ‘[a]ny touching of the sexual or other intimate parts’ should be construed literally to mean any touching, whether directly or using any inanimate object.” Gunter v. State, 665 So.2d 1008, 1013 (Ala.Crim.App.1995). “Forcible compulsion” is defined as “[pjhysical force that overcomes earnest resistance or a threat, express or implied, that placed a person in fear of immediate death or serious physical injury to himself or another person.” § 13A-6-60(8), Ala.Code 1975. “[Fjorcible compulsion does not exist in a vacuum; rather it is viewed in light of the surrounding circumstances, such as the respective ages of the victim and the perpetrator, the relationship between them, the circumstances under which the act took place, and any injuries the victim suffered.” Ex parte Williford, 931 So.2d 10, 14 (Ala.2005).

At trial, R.D.A. testified that Styron performed oral sex on him, that he made R.D.A. touch his erect penis and perform oral sex, that he put his penis “near” R.D.A.’s rectum, and that he inserted a vibrator into his rectum. R.D.A. further testified that he witnessed Styron touch E.A.’s vagina, place his mouth on E.A.’s vagina, and insert his penis into E.A.’s body. R.D.A. stated that Styron photographed the children as they were engaging in sexual activity. An examination of E.A. by Dr. Peterson revealed physical evidence of molestation in the form of “quite recent” bruising at the base of EA.’s vagina. Dr. Peterson also discovered small hematomas and fissures in E.A.’s rectum. Dr. Peterson opined that the bruising and hematomas were evidence of some type of trauma.

Styron admitted during a police interview to molesting the children. Over the course of a year, Styron engaged in sexual acts with the children that included oral sex, masturbation, and digital stimulation. Styron admitted that he had performed oral sex on E.A. on approximately 20 occasions; that he made her manually stimulate his penis several times; that he inserted his finger and a vibrator into E.A.’s vagina; and that he inserted his penis into E.A.’s vagina and “pushed against her.” (R. 203.) Styron also admitted to inserting a vibrator into R.D.A.’s anus. Styron informed police that he and R.D.A. had played with each other until both were erect and that he and R.D.A. had performed oral sex on one another.

Based on our review of the record, it is “clear beyond a reasonable doubt that the jury would have returned a verdict of guilty” regardless of the circuit court’s failure exclude Burns’s testimony regarding statements E.A. made to her. Ex parte Greathouse, 624 So.2d 208, 210 (Ala.1993). See also Chapman v. California, supra. Therefore, any error on the part of the circuit court was harmless.

Furthermore, Styron’s contention on appeal that the admission into evidence of E.A.’s statements to E.J.A. and to Burns somehow “tainted” his convictions in the case involving R.D.A. is without merit. As discussed above, E.A.’s statements to E.J.A. were admissible; therefore, we must determine only whether the admission of E.A.’s statements to Burns “tainted” Styron’s conviction in the case of R.D.A. The record establishes that the circuit court limited Burns’s testimony to statements made by E.A. given R.D.A.’s availability to testify at trial. Further, R.D.A. testified in detail regarding the acts of sodomy, sexual abuse, and sexual torture committed by Styron. Accordingly, we find no evidence that the admission of EA’s statements to Burns “tainted” Styron’s conviction in the case of R.D.A.

Based on the foregoing, the circuit court’s judgment is affirmed.

AFFIRMED.

WISE, P.J., and WELCH, WINDOM, and MAIN, JJ., concur.

      . Initials are used throughout the opinion to protect the anonymity of the victim. See Rule 52, Ala. R.App. P.

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

      . Effective July 1, 2006, the Alabama Legislature amended § 13A-6-66, deleted section (a)(3), and enacted § 13A-6-69.1, Ala.Code 1975, separately defining "the crime of sexual abuse of a child less than 12 years old.” It is well settled that the law in effect at the time of the commission of the offense controls the prosecution of the offense. M.H. v. State, 6 So.3d 41 (Ala.Crim.App.2008); Minnifield v. State, 941 So.2d 1000, 1001 (Ala.Crim.App.2005); Hardy v. State, 570 So.2d 871 (Ala.Crim.App.1990).


source: Caselaw Access Project

author: WALLACE, Judge.

license: Public Domain

text:
    TARPON SPRINGS HOSPITAL FOUNDATION, INC., d/b/a Helen Ellis Memorial Hospital; Christine Hilderbrandt, A.R.N.P., C.N.M.; and Florida Birth-Related Neurological Injury Compensation Association, Appellants, v. Allison ANDERSON and Timothy Anderson, individually, and as parents and natural guardians of Samuel J. Anderson, a minor child; West Coast Medical Group, Inc.; Holly Maria Bauer; Matthew H. Conrad, M.D.; Teresa Conrad, M.D.; A. Trent Williams, M.D.; and Tatiana Goodwin, M.D., Appellees.
    Nos. 2D08-4201, 2D08-4226.
    District Court of Appeal of Florida, Second District.
    April 21, 2010.
    Rehearing Denied May 28, 2010.

      G. Bruce Hill and Christopher J. Stein-haus of Hill, Adams, Hall & Schieffelin, P.A., Winter Park, for Appellant Tarpon Springs Hospital Foundation.
    Judith W. Simmons, Mindy McLaughlin, and Gabrielle S. Osborne of Burton, Beytin & McLaughlin, P.A., Tampa, for Appellant Christine Hilderbrandt.
    Wilbur E. Brewton, Kelly B. Plante, and Tana D. Storey of Brewton Plante, P.A., Tallahassee, and Robert J. Grace, Jr., of Stiles, Taylor & Grace, P.A., Tampa, for Appellant Florida Birth-Related Neurological Injury Compensation Association.
    Rebecca Bowen Creed of Mills Creed & Gowdy, P.A., Jacksonville, and James W. Gustafson, Jr., of Searcy Denney Scarola Barnhard & Shipley, P.A., Tallahassee, for Appellees the Andersons.
    No appearance for remaining appellees.
   WALLACE, Judge.

In. these consolidated appeals, Christine Hilderbrandt (Nurse Hilderbrandt); Tarpon Springs Hospital Foundation, Inc., d/b/a Helen Ellis Memorial Hospital (the Hospital); and the Florida Birth-Related Neurological Injury Compensation Association (NICA) challenge the final order in which an administrative law judge (ALJ) determined that Nurse Hilderbrandt was not a participating physician under the Florida Birth-Related Neurological Injury Compensation Plan (the Plan) and that the Hospital failed to comply with the notice provisions of the Plan. We conclude that the ALJ erred in finding that Nurse Hil-derbrandt was not a participating physician under the Plan but correctly ruled that the Hospital failed to comply with the notice provisions of the Plan. Accordingly, we affirm in part, reverse in part, and remand with instructions to modify the final order consistent with this opinion.

I. THE FACTS AND PROCEDURAL HISTORY

Allison Anderson and Timothy Anderson are the natural parents of a male child born at the Hospital on July 29, 2004. During the child’s delivery, Mrs. Anderson was treated by Dr. Matthew Conrad and Nurse Hilderbrandt. Dr. Conrad and Nurse Hilderbrandt were employees of the Hospital at all relevant times. Dr. Conrad was a participating physician under the Plan. In addition, NICA sent Nurse Hil-derbrandt a certificate for the year 2004 for her participation under the Plan. However, as discussed below, whether Nurse Hilderbrandt was a participating physician under the Plan was a disputed issue before the ALJ.

Mrs. Anderson received her prenatal care at West Coast Medical Group, Inc., d/b/a West Coast Obstetrics & Gynecology (West Coast OB/GYN). During Mrs. Anderson’s initial prenatal visit on December 12, 2003, she was given a NICA brochure titled Peace of Mind for an Unexpected Problem and an acknowledgment form that stated, in pertinent part, as follows:

I have been furnished information by [West Coast OB/GYN], prepared by [NICA], and have been advised that M. Conrad MD ... and Christine Hilder-brandt CNM, are participating providers in that program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery or resuscitation. For specifics on the program, I understand I can contact [NICA], P.O. Box 14567, Tallahassee, Florida 32317-4567, 1-800-398-2129. I further acknowledge that I have received a copy of the brochure by NICA.

Mrs. Anderson signed and dated the form.

On June 24, 2004, the Andersons went to the Hospital to preregister for the delivery of their son. They were interviewed by a registration clerk, who entered the Andersons’ demographic, employment, insurance, and delivery information (physician’s name and due date) into a computer. Although the ALJ expressly found that it would have been practicable to have done so, the registration clerk did not provide the Andersons with an acknowledgment form or a NICA brochure.

Mrs. Anderson did not return to the Hospital until early on the morning of July 28, 2004. Upon her arrival at the Hospital, Mrs. Anderson signed an acknowledgment form that stated, in pertinent part, as follows:

I have been furnished information by [the Hospital] prepared by [NICA], and have been advised that [the Hospital] participates in that program, wherein certain limited compensation is available in the event certain neurological injury may occur during labor, delivery, or resuscitation. I understand that for specifics on the program I can contact [NICA] as described in the brochure prepared by NICA titled Peace of Mind, for an Unexpected Problem. I further acknowledge that I have received a copy of the brochure.

Mrs. Anderson was diagnosed with false labor and discharged with a prescription for a sleeping aid and instructions to rest. Mrs. Anderson returned home and slept for the remainder of the day.

Mrs. Anderson returned to the Hospital on July 29, 2004. She signed another acknowledgment form identical to the one she had signed the previous day. The nurse on duty at the Hospital called Nurse Hilderbrandt, who gave orders to monitor Mrs. Anderson. Nurse Hilderbrandt later arrived at the Hospital and examined Mrs. Anderson. Nurse Hilderbrandt called Dr. Conrad, who authorized augmentation of labor. Approximately nine hours later, Mrs. Anderson was moved to the operating room where Dr. Conrad performed an emergency cesarean section. At delivery, the child was not breathing. The child was resuscitated but suffered a birth-related neurological injury.

In 2007, the Andersons filed a complaint in the circuit court against Nurse Hilder-brandt, the Hospital, West Coast OB/GYN, and two other defendants. The circuit court proceedings were abated for a determination by the Division of Administrative Hearings concerning whether the child’s injuries were covered by the Plan. The Andersons filed a petition -with NICA. Subsequently, Nurse Hilderbrandt, the Hospital, Dr. Conrad, and other health care providers working at West Coast OB/ GYN were granted leave to intervene. NICA determined that the neurological injury for which the parents were seeking redress was compensable under the Plan and requested a formal administrative hearing before an ALJ.

A final administrative hearing was conducted in April 2008. At that hearing, Nurse Hilderbrandt, the Hospital, Dr. Conrad, and the other health care providers working at West Coast OB/GYN sought to establish the compensability of the claim, their compliance with the notice provisions of the Plan, and their entitlement to immunity under the Plan. Nurse Hilderbrandt submitted a seventy-page document titled West Coast Obstetrics & Gynecology, Certified Nurse Midwife Protocol (the Guidelines). She submitted an “edit copy” that contained numerous handwritten notes because she did not have a copy of the final draft of the Guidelines. The Guidelines addressed multiple situations that Nurse Hilderbrandt was called upon to handle in the course of her practice with West Coast OB/GYN. Nurse Hilderbrandt testified that she was familiar with the Guidelines and used them in the course of her practice on a daily basis.

In addition, Nurse Hilderbrandt testified that she signed protocols that were filed yearly with the Board of Nursing as required by chapter 464, Florida Statutes, and Florida Administrative Code Rule 64B9-4.010. Nurse Hilderbrandt described these protocols as “an outline” of the more detailed Guidelines that she submitted at the hearing. However, Nurse Hilder-brandt did not introduce into evidence a copy of the protocols she filed with the Board of Nursing. She explained that she did not have a copy, and she entered into evidence a letter from the Board of Nursing indicating that the protocol she filed in 2004 could not be located.

In his written final order, the ALJ found that Dr. Conrad and the other health care providers working at West Coast OB/GYN were participating physicians under the Plan and had complied with the notice requirements. The ALJ also found that Nurse Hilderbrandt had filed protocols with the Board of Nursing. Nevertheless, the ALJ concluded that she “failed to establish that [she] was a ‘participating physician’ at the time of [the child’s] birth” because she could not produce the final draft of the Guidelines or the protocols that she had filed with the Board of Nursing to prove that the prearranged plan of treatment required by section 766.314(4)(c), Florida Statutes (2004), existed.

In his written final order, the ALJ also found that if Mrs. Anderson’s contacts with the Hospital on July 28 and 29, 2004, were the only contacts she had with the Hospital, “it would likely be concluded that it was not practicable to have given notice earlier.” However, the ALJ ruled that “since Mrs. Anderson pre-registered for the delivery ... on June 24, 2004, and she was not provided a NICA notice or brochure, ... it must be resolved on the facts of this case that the [H]ospital failed to comply with the notice provisions of the Plan.” The ALJ declined to address the issue of immunity. Nurse Hilderbrandt, the Hospital, and NICA appeal from this final order.

II. STANDARD OF REVIEW

We “will not disturb the ALJ’s findings of fact unless they are not supported by competent substantial evidence.” Univ. of Miami v. Ruiz, 916 So.2d 865, 868 (Fla. 3d DCA 2005). However, we review de novo the ALJ’s interpretation of the Plan. See Fla. Birth-Related, Neurological Injury Comp. Ass’n v. Fla. Div. of Admin. Hearings, 948 So.2d 705, 709-10 (Fla.2007). We are authorized to set aside or modify the ALJ’s final order if we find that the ALJ’s interpretation of the Plan is erroneous. Romine v. Fla. Birth Related Neurological Injury Comp. Ass’n, 842 So.2d 148, 150 n. 4 (Fla. 5th DCA 2003); Gugelmin v. Div. of Admin. Hearings, 815 So.2d 764, 767 (Fla. 4th DCA 2002); see § 120.68(7)(d), Fla. Stat. (2004) (“The court shall remand a case ... or set aside agency action, as appropriate, when it finds that ... [t]he agency has erroneously interpreted a provision of law and a correct interpretation compels a particular action. ...”).

III. NURSE HILDERBRANDT’S PREARRANGED PLAN OF TREATMENT

A. The Parties’Arguments

Nurse Hilderbrandt and NICA contend that the ALJ ignored the plain language of section 766.314(4)(c) and instead “created additional and burdensome requirements that do not exist.” They argue that the ALJ improperly required proof of a written protocol to establish the existence of the prearranged plan of treatment required by section 766.314(4)(c). In response, the Andersons claim that the ALJ correctly interpreted section 766.314(4)(c) as requiring proof of a written protocol because the Nurse Practice Act, §§ 464.001-.027, Fla. Stat. (2004), and rule 64B9-4.010 permit certified nurse midwives to practice only if they are supervised by a licensed physician and governed by a written protocol filed with the Board of Nursing.

B. The ALJ’s Interpretation of Section 766.314

The Plan treats certified nurse midwives as “participating physicians” if two conditions are met. First, nurse midwives must pay “50 percent of the physician assessment required by [the Plan].” § 766.314(4)(c). Second, they must be “supervised by a participating physician who has paid the assessment required by [the Plan].” Id: Under the Plan, “[supervision for nurse midwives shall require that the supervising physician will be easily available and have a prearranged plan of treatment for specified patient problems which the supervised certified nurse midwife may carry out in the absence of any complicating features.” Id.

The ALJ found that Nurse Hilderbrandt had paid the required assessment and that she was supervised by a participating physician who would be easily available. But the ALJ ruled that Nurse Hilderbrandt did not have a prearranged plan of treatment based on her “failure to offer the [written] protocols she claimed were in place.” The ALJ interpreted section 766.314(4)(c) to require proof that the prearranged plan of treatment was reduced to writing. We conclude that the ALJ’s interpretation of section 766.314(4)(c) was erroneous.

The supreme court teaches that “[w]hen the language of the statute is clear and unambiguous and conveys a clear and definite meaning, there is no occasion for resorting to the rules of statutory interpretation and construction; the statute must be given its plain and obvious meaning.” Holly v. Auld, 450 So.2d 217, 219 (Fla. 1984) (alteration in original) (quoting A.R. Douglass, Inc. v. McRainey, 102 Fla. 1141, 137 So. 157, 159 (1931)). Courts are “without power to construe an unambiguous statute in a way which would extend, modify, or limit, its express terms or its reasonable and obvious implications. To do so would be an abrogation of legislative power.” Id. (emphasis omitted) (quoting Am. Bankers Life Assurance Co. of Fla. v. Williams, 212 So.2d 777, 778 (Fla. 1st DCA 1968)).

The ALJ interpreted “prearranged plan of treatment” as a written document. However, the plain language of section 766.314(4)(c) does not indicate that the prearranged plan of treatment must be in writing. The term “prearranged plan of treatment” is not defined by the statute or the case law. “When necessary, the plain and ordinary meaning of words can be ascertained by reference to a dictionary.” Seagrave v. State, 802 So.2d 281, 286 (Fla.2001). The dictionary definitions of the words “prearrange,” “plan,” and “treatment” do not lend support to the ALJ’s interpretation of the statute as requiring a written document. Thus, based on the plain language of section 766.314(4)(c), a “prearranged plan of treatment” is not required to be a written document.

The Andersons’ argument that section 766.314(4)(c) should be interpreted in light of the Nurse Practice Act and rule 64B9-4.010 is unpersuasive for two reasons. First, the Nurse Practice Act and rule 64B9-4.010 should not be used to ascertain the plain and ordinary meaning of “prearranged plan of treatment.” “In the absence of a statutory definition, resort may be had to case law or related statutory provisions which define the term....” Jones v. Williams Pawn & Gun, Inc., 800 So.2d 267, 270 (Fla. 4th DCA 2001) (citing State v. Barnes, 686 So.2d 633, 637 (Fla. 2d DCA 1996)). In Cason v. Florida Department of Management Services, 944 So.2d 306, 308 (Fla.2006), the supreme court interpreted the term “taxpayer” as used in section 194.171, Florida Statutes (2006). Because section 194.171 did not define “taxpayer,” the supreme court looked at the definition of “taxpayer” in section 192.001(13), Florida Statutes (2006). 944 So.2d at 313. Here, unlike in Cason, the ALJ could not use the Nurse Practice Act or rule 64B9^4.010 for guidance when interpreting section 766.314(4)(c) because the Nurse Practice Act and the rule do not define the term “prearranged plan of treatment.” See § 464.003; Fla. Admin. Code R. 64B9-4.010.

Second, the Plan could not be read in pari materia with the Nurse Practice Act or rule 64B9-4.010. The Plan does not reference the Nurse Practice Act or the rule. See §§ 766.301-.316. Furthermore, the Plan, the Nurse Practice Act, and rule 64B9-4.010 do not relate to the same subject matter or share the same purpose. The Plan governs the exposure to civil liability of hospitals and physicians providing obstetrical services, see §§ 766.301-.316, and its purpose “is to limit a participating physician’s exposure to civil liability in cases where the doctor’s professional involvement could make him or her a defendant in a lawsuit,” Fluet v. Fla. BirthRelated Neurological Injury Comp. Ass’n, 788 So.2d 1010, 1012 (Fla. 2d DCA 2001). In contrast, the Nurse Practice Act is concerned with the regulation of the nursing profession and its purpose “is to ensure that every nurse practicing in this state meets minimum requirements for safe practice.” § 464.002. “Rule 64B9-4.010 ... sets minimum standards for protocols pursuant to which an [advanced registered nurse practitioner] performs medical acts identified and approved by the joint committee pursuant to” the Nurse Practice Act. Fla. Admin.Code R. 64B9-4.008. Because the Plan, the Nurse Practice Act, and rule 64B9-4.010 do not relate to the same subject matter or share the same purpose, the ALJ could not construe them together to require proof of a written “prearranged plan of treatment.” See State v. Mason, 979 So.2d 301, 303 (Fla. 5th DCA 2008) (“A law should be construed together with any other statute relating to the same subject matter or having the same purpose if they are compatible.”).

The ALJ erroneously interpreted section 766.314(4)(c) as requiring proof of a written document to demonstrate that the doctor supervising Nurse Hilderbrandt “ha[d] a prearranged plan of treatment for specified patient problems.” A correct interpretation of that section compels a finding that a prearranged plan of treatment existed because (1) Nurse Hilderbrandt presented unrefuted evidence of the course of action she was authorized to follow when caring for a patient and (2) the ALJ acknowledged that the nurse filed a protocol with the Board of Nursing for the year 2004. Because Nurse Hilderbrandt paid the required assessment, was supervised by a participating physician that was easily available, and had a prearranged plan of treatment, we conclude that she was a participating physician under the Plan.

IV. THE HOSPITAL’S COMPLIANCE WITH THE PLAN’S NOTICE PROVISIONS

A. The Parties Arguments

The Hospital raises three arguments with respect to the issue of its compliance with the Plan’s notice provisions. First, the Hospital asserts that it gave proper and timely notice to Mrs. Anderson in 2001 during her earlier pregnancy with another child. Second, the Hospital argues that notice was not practicable when Mrs. Anderson appeared at the Hospital for preregistration on June 24, 2004. Accordingly, the notices given to Mrs. Anderson when she presented herself at the Hospital in false labor on July 28, 2004, and for delivery on the following day were effective because those notices were given as soon as practicable. Third, the Hospital claims that the notice Mrs. Anderson received on December 12, 2003, obviated the need for any further notice by the Hospital for two reasons: (1) based on general agency principles, the Hospital provided notice through its employees and (2) any further notice by the Hospital would have been meaningless under this court’s decision in Bayfront Medical Center, Inc. v. Florida Birth-Related Neurological Injury Compensation Ass’n, 982 So.2d 704 (Fla. 2d DCA 2008), quashed sub norm Florida Birth-Related Neurological Injury Compensation Ass’n v. Department of Administrative Hearings, 29 So.3d 992 (Fla.2010). With the exception of the argument about the efficacy of the Hospital’s notice that was delivered during Mrs. Anderson’s prior pregnancy, NICA makes similar arguments.

B. Notice Requirements for Hospitals under the Plan

The Plan’s notice provision states, in pertinent part, as follows:

Each hospital with a participating physician on its staff and each participating physician ... under the [Plan] shall provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries. ... Notice need not be given to a patient when the patient has an emergency medical condition ... or when notice is not practicable.

§ 766.316. The supreme court has explained that “health care providers must, when practicable, give their obstetrical patients notice of their participation in the [P]lan a reasonable time prior to delivery.” Galen of Fla., Inc. v. Braniff, 696 So.2d 308, 309 (Fla.1997). The purpose of the notice is to permit patients to decide whether to use health care providers that participate in the Plan or to preserve their civil remedies by using providers that are not participants. Id. at 309-10.

The Supreme Court of Florida has very recently interpreted the notice requirements of section 766.316 as follows:

[BJoth participating physicians and hospitals with a participating physician on staff are required to provide notice to obstetrical patients of their rights and limitations under the plan. The plain language of section 766.316 does not, in any way, suggest that when a participating physician provides notice of his participation in the plan, the notice requirement has been satisfied.

Florida Birth-Related, 29 So.3d at 998. Thus “the statute requires both participating physicians and hospitals with participating physicians on staff to provide obstetrical patients with notice of their rights and limitations under the plan.” Id.

In addition, the requirement of notice is severable with regard to the liability of the participating physician and the hospital:

[I]f either the participating physician or the hospital with participating physicians on its staff fails to give notice, then the claimant can either (1) accept NICA remedies and forgo any civil suit against any other person or entity involved in the labor or delivery, or (2) pursue a civil suit only against the person or entity who failed to give notice and forgo any remedies under NICA.

Id. Thus the persons or entities that gave proper and timely notice are shielded from civil liability, and a claimant who did not receive proper and timely notice may pursue civil remedies only against the person or entity who failed to provide such notice. Id.

C. Discussion

Our supreme court’s very recent decision in Florida Birth-Related has resolved against the Hospital and NICA and in favor of the Andersons the question of whether the statute requires both participating physicians and hospitals with participating physicians on staff to provide obstetrical patients with notice of their rights under the Plan. Florida Birth-Related, 29 So.3d 992,. Thus we need not address the third argument. Instead, we now consider the first argument concerning the efficacy of the Hospital’s notice given during an earlier pregnancy and the second argument addressing the practicability of giving notice at preregistration.

1. The Notice Given During an Earlier Pregnancy

The ALJ rejected the Hospital’s argument that notice given to Mrs. Anderson in 2001, during an earlier pregnancy, satisfied the notice requirements of the Plan. The ALJ concluded that a separate notice was required with respect to each pregnancy. We agree.

Section 766.316 requires “[e]ach hospital with a participating physician on its staff’ to “provide notice to the obstetrical patients as to the limited no-fault alternative for birth-related neurological injuries.” Section 766.302(7) defines the term, “participating physician” as

a physician licensed in Florida to practice medicine who practices obstetrics or performs obstetrical services either full time or part time and who had paid or was exempted from payment at the time of the injury the assessment required for participation in the birth-related neurological injury compensation plan for the year in which the injury occurred.

(Emphasis added.) Thus a physician’s right to assert the exclusive remedies of the Plan turns on whether he or she qualified as a “participating physician” at the time of the injury. See id.; see also § 766.309(1)(b). Further, a hospital’s obligation to give notice under the statute may vary from year to year depending on whether the Hospital has a “participating physician” on its staff.

Because the time of the injury is the critical factor for determining the claimant’s entitlement to benefits and the health care provider’s right to assert the exclusive remedies of the Plan and because a hospital’s obligation to give notice may vary from year to year, the statutory scheme necessarily contemplates that separate notice be given to each obstetrical patient for each pregnancy. It follows that reliance on a notice given to an obstetrical patient during an earlier pregnancy is inconsistent with the statutory scheme.

We also observe that this argument by the Hospital leads to absurd results. Here, the prior notice was given to Mrs. Anderson during a pregnancy occurring only three years earlier. Whether Mrs. Anderson or any other obstetrical patient would remember the contents of a legal notice received during a pregnancy three years before is questionable. But it would certainly stretch the bounds of reason to the breaking point to assert that a notice given to an obstetrical patient ten years before her current pregnancy could constitute effective notice under the Plan. However, this is the conclusion to which the Hospital’s argument inevitably leads. Undeniably, both the statutory framework and common sense require that a separate notice be given to an obstetrical patient for each pregnancy.

2. The Practicability of Giving Notice at Preregistration

Mrs. Anderson appeared personally at the Hospital for preregistration on June 24, 2004, a little over one month before her delivery. It is undisputed that the Hospital did not provide the NICA notice or brochure to Mrs. Anderson when she preregistered. In fact, the earliest date that the Hospital provided Mrs. Anderson with the NICA notice and brochure was on July 28, 2004, when she presented at the Hospital and was sent home, one day before her actual delivery. The ALJ expressly found that it would have been practicable for the Hospital to have provided Mrs. Anderson with the NICA notice and brochure at preregistration on June 24, 2004.

Whether a health care provider was able to give an obstetrical patient pre-delivery notice of participation and whether notice was given a reasonable time before delivery are questions of fact to be determined on a case-by-case basis. Galen, 696 So.2d at 311; Weeks v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 977 So.2d 616, 620 (Fla. 5th DCA 2008). The ALJ’s findings of fact are not subject to reversal if they are supported by competent, substantial evidence. See Nagy v. Fla. Birth-Related Neurological Injury Comp. Ass’n, 813 So.2d 155, 159 (Fla. 4th DCA 2002) (citing § 120.68(7), (10), Fla. Stat. (1997)). “A determination of the administrative law judge as to the qualification of the claim for purposes of compensa-bility ... shall be conclusive and binding as to all questions of fact.” § 766.311(1).

The Appellants’ argument on this point amounts to an attack on the ALJ’s factual finding that it was practicable for the Hospital to have given notice to Mrs. Anderson during the preregistration process, a little over one month before her delivery. The Hospital explains in considerable detail why its policies, practices, and procedures for the preregistration process in effect in 2004 did not include the delivery of the NICA notice and brochure to obstetrical patients. However, the Hospital’s policy of not providing the NICA notice and brochure to obstetrical patients at preregistration does not mean that it was not practicable for the Hospital to have done so. Several reported decisions recognize that the preregistration by an obstetrical patient at a hospital is an appropriate occasion for the hospital to give the patient notice of participation in the Plan a reasonable time before delivery. See Weeks, 977 So.2d at 619; Nw. Med. Ctr. v. Ortiz, 920 So.2d 781, 784-85 (Fla. 4th DCA 2006); Univ. of Miami v. Ruiz, 916 So.2d 865, 868-69 (Fla. 3d DCA 2005).

In this case, the ALJ’s finding of fact that it would have been practicable for the Hospital to give predelivery notice of participation at preregistration is not undermined by the Hospital’s decision to adopt policies, practices, and procedures for preregistration that did not include such notice. After a thorough review of the record, we conclude that the ALJ’s finding of fact is a binding determination because it is supported by competent, substantial evidence.

The notice requirement of section 766.316 is easily satisfied. Construing section 766.316, the supreme court has stated: “[I]n order to preserve their immune status, NICA participants who are in a position to notify their patients of their participation a reasonable time before delivery simply need to give the notice in a timely manner.” Galen, 696 So.2d at 311. In construing section 766.316, the Fifth District has explained further:

[T]he formation of the provider-obstetrical patient relationship is what triggers the obligation to furnish the notice. The determination of when this relationship commences is a question of fact. Once the relationship commences, because the statute is silent on the time period within which notice must be furnished, under well-established principles of statutory construction, the law implies that the notice must be given within a reasonable time. This determination depends upon the circumstances, but a central consideration should be whether the patient received the notice in sufficient time to make a meaningful choice of whether to select another provider prior to delivery, which is a primary purpose of the notice requirement.

Weeks, 977 So.2d at 618-19 (citations omitted). Thus the establishment of the patient-provider relationship well before delivery triggers the obligation to furnish the patient with notice within a reasonable time. Id. at 620. Under these circumstances, the notice requirement is not excused by a subsequent emergency. Id.

Here, Mrs. Anderson’s appearance at the Hospital for preregistration marked the beginning of the patient-provider relationship between Mrs. Anderson and the Hospital. It was at that point that the Hospital’s obligation to provide notice within a reasonable time was triggered. The notice should have been furnished within a sufficient time to permit Mrs. Anderson to make a meaningful choice about whether to select another provider prior to delivery. The Hospital’s failure to give Mrs. Anderson notice until the day before her delivery was not reasonable under the circumstances. Accordingly, the ALJ properly concluded that the Hospital failed to comply with the notice provisions of the Plan.

V. CONCLUSION

With respect to the issue of whether Nurse Hilderbrandt had a prearranged plan of treatment, the ALJ erroneously interpreted the Plan. A correct interpretation of the Plan compels a finding that Nurse Hilderbrandt was a participating physician under the Plan. However, the ALJ correctly concluded that the Hospital failed to comply with the notice provisions of the Plan. Accordingly, we affirm in part the ALJ’s final order, reverse in part, and remand with instructions that the ALJ modify the final order consistent with this opinion.

Affirmed in part, reversed in part, and remanded.

VILLANTI and LaROSE, JJ„ Concur.

      . The Hospital owns West Coast OB/GYN.

      . The ALJ determined that he did not have jurisdiction to resolve the issue of immunity from tort liability under subsection 766.303(2), Florida Statutes (2004).

      . At the time of the hearing, Nurse Hilderbrandt was no longer employed at West Coast OB/GYN.

      . Although the issue of Nurse Hilderbrandt's immunity was raised on appeal, we decline to address it because the ALJ correctly ruled that he did not have jurisdiction to rule on that issue. See All Children's Hosp., Inc. v. Dep’t of Admin. Hearings, 863 So.2d 450, 455 (Fla. 2d DCA 2004) ("There is no basis ... for the ALJ’s foray into the issue of immunity from tort liability under [the Plan]."), quashed on other grounds by Fla. Birth-Related Neurological Injury Comp. Ass'n v. Fla. Div. of Admin. Hearings, 948 So.2d 705, 716-17 (Fla.2007) (finding that ALJ had jurisdiction to determine whether a health care provider complied with the notice provisions of the Plan); Depart v. Macri, 902 So.2d 271 (Fla. 1st DCA 2005) (holding that ALJ did not have jurisdiction to address whether a certified nurse midwife was entitled to immunity under the Plan).

      . Nurse Hilderbrandt's physician assessment under the Plan was paid for the calendar years 2003 and 2004.

      . "Prearrange” is defined as "[t]o arrange in advance.” The American Heritage Dictionary of the English Language 1380 (4th ed. 2000).

      . "Plan” is defined as “[a] scheme, program, or method worked out beforehand for the accomplishment of an objective ... [;][a] proposed or tentative project or course of action ... [,'][a] systematic arrangement of elements or important parts; a configuration or outline.” The American Heritage Dictionary of the English Language 1341 (4th ed. 2000).

      ."Treatment” is defined as "[ajdministration or application of remedies to a patient or for a disease or injury; medicinal or surgical management; therapy.” The American Heritage Dictionary of the English Language 1838 (4th ed. 2000).

      . The version of rule 64B9-4.010 in effect when the protocols were filed required that the protocols include:
      1. A description of the duties of the [nurse],
      2. A description of the duties of the physician or dentist (which shall include consultant and supervisory arrangements in case the physician or dentist is unavailable).
      3. The management areas for which the [nurse] is responsible, including
      a. The conditions for which therapies may be initiated,
      b. The treatments that may be initiated by the [nurse], depending on patient condition and judgment of the [nurse],
      c.The drag therapies that the [nurse] may prescribe, initiate, monitor, alter, or order.
      4. A provision for annual review by the parties.
      5. Specific conditions and a procedure for identifying conditions that require direct evaluation or specific consultation by the physician or dentist. The parties to the protocol, to insure an acceptable standard of supervision and medical care, will decide the detail and scope needed in the description of conditions and treatments, and in doing so will consider the factors listed in paragraphs (l)(a) through (e) above.
      Fla. Admin. Code R. 64B9-4.010(2)(b) (effective 1988 until amended 2007).


author: RAMIREZ, C.J.

text:
    SUNSHINE STATE INSURANCE COMPANY, Appellant, v. Maurice RAWLINS, Appellee.
    No. 3D09-2842.
    District Court of Appeal of Florida, Third District.
    April 21, 2010.

      Schwartz and Horwitz, P.L.C., and Steven G. Schwartz and William R. McMahon, Boca Raton, for appellant.
    Paul B. Feltman, for appellee.
    Before RAMIREZ, C.J., and GERSTEN, J., and SCHWARTZ, Senior Judge.
   RAMIREZ, C.J.

Sunshine State Insurance Company appeals the trial court’s Order on Plaintiffs Motion to Compel Appraisal and to Abate the Action. We affirm because the trial court did not abuse its discretion when it allowed the appraisal to go forward while preserving all of Sunshine States’s rights to contest coverage as a matter of law.

In Johnson v. Nationwide Mutual Insurance Company, 828 So.2d 1021, 1025-26 (Fla.2002), the Florida Supreme Court adopted this Court’s holding in Gonzalez v. State Farm Fire and Casualty Company, 805 So.2d 814 (Fla. 3d DCA 2000). In Johnson, the Court divided the issue of causation into two questions. If an insurer admits that there is a covered loss, the amount of which is disputed, the amount of loss question is for an appraisal panel. Id. at 1022. If an insurer denies that there is a covered loss, the issue of coverage is one for the trial court. Id.

In the case before us, the insurer twice admitted there was a loss. Under the Johnson holding, the matter is thus ripe for appraisal.

Moreover, it is the law in our district that the order in which the issues of damages and coverage are to be determined by arbitration and the court is left to the discretion of the trial court. See Paradise Plaza Condo. Assoc., Inc. v. The Reinsurance Corp. of New York, 685 So.2d 937 (Fla. 3d DCA 1996). In Paradise Plaza, we recognized that putting the issue of coverage first before arbitration in every case might have adverse effects on the expeditious, out of court disposition of litigation, which is the reason arbitration is a favored remedy. Id. It also saves “judicial resources which might otherwise be required in resolving the factual and legal issues involved in the [coverage issue] by a relatively swift and informal decision by the appraisers as to the amount of the loss.” Id. at 941. We thus follow Paradise Plaza and agree with its policy arguments in allowing the trial court to make the determination as to whether or not to allow the appraisal and coverage processes to move forward on a dual track basis.

In addition, we do not find that Sunshine State Insurance Company v. Corridori, 28 So.3d 129 (Fla. 4th DCA 2010) is on point because in Corridori, the insured did not provide the requested examinations under oath and sworn proof of losses as requested by the insurer. The trial court in Corridori took no evidence and did not consider the issue of coverage due to the insured’s failure to comply with the insurer’s request. In the case before us, however, the trial court specifically reserved the insurer’s non-causation defenses as a matter of law.

Accordingly, we affirm the trial court’s Order on Plaintiffs Motion to Compel Appraisal and to Abate the Action. The trial court did not abuse its discretion in allowing the appraisal to go forward on a dual track basis, while preserving all of Sunshine States’s rights to contest coverage as a matter of law.

Affirmed.


author: PER CURIAM.

text:
    Oberist Lee SAUNDERS, Appellant, v. STATE of Florida, Appellee.
    No. 5D10-1134.
    District Court of Appeal of Florida, Fifth District.
    April 27, 2010.
    Oberist Lee Saunders, Orlando, pro se.
    No Appearance for Appellee.
   PER CURIAM.

AFFIRMED. See Roesch v. State, 633 So.2d 1 (Fla.1993).

ORFINGER, LAWSON and JACOBUS, JJ., concur.


author: LAGOA, J.

text:
    VENEZIA LAKES HOMEOWNERS ASSOCIATION, INC., Appellant, v. PRECIOUS HOMES AT TWIN LAKES PROPERTY OWNERS ASSOCIATION, INC., Appellee.
    No. 3D09-2387.
    District Court of Appeal of Florida, Third District.
    April 28, 2010.

      William J. Motyczka; G. David O’Leary, for appellant.
    Walton Jones & Browne and Carla A. Jones and Stacy-Ann Frater, for appellee.
    Before SUAREZ, LAGOA, and SALTER, JJ.
   LAGOA, J.

Venezia Lakes Homeowners Association, Inc. (“Venezia”) appeals from a final summary judgment entered in favor of Precious Homes at Twin Lakes Property Owners Association, Inc. (“Precious Homes”) in Precious Homes’ action for a pure bill of discovery. Because the facts of this case do not meet the narrow and limited circumstances under which a pure bill of discovery is justified, we reverse.

I. FACTUAL AND PROCEDURAL HISTORY

Venezia and Precious Homes are adjacent homeowner association communities. Venezia is the successor-in-interest to the homeowners association known as Three Lakes Owners Association, Inc. (“Three Lakes”). Venezia’s property contains two lakes, East Lake and West Lake. Precious Homes’ subdivision abuts the West Lake.

On October 9, 1998, Precious Homes entered into a cross easement agreement with Three Lakes (hereinafter the “agreement”). As Three Lakes’ successor, Vene-zia acquired all of Three Lakes’ rights and obligations under the agreement. Pursuant to the agreement, Precious Homes acquired an access easement for West Lake in exchange for payment, based on a calculation stated in the agreement, of thirty percent of the maintenance and security costs for the West Lake. In turn, Venezia agreed to provide to Precious Homes “[n]o later than forty-five (45) days prior to the end of each fiscal year ... the proposed ... [bjudget for the next ensuing year which shall include as a separate category, the Lake Operating Expenses.”

Each year, Venezia provides Precious Homes with the approved budget for the upcoming fiscal year. In the budget, there is a separate category entitled Lake Maintenance. Under the Lake Maintenance category, there are line items for specific maintenance services. Precious Homes believes that Venezia combines the operating expenses for the West Lake and the East Lake under the Lake Maintenance category, and that Precious Homes was, and continues to be, improperly charged thirty percent of both lakes’ maintenance and security expenses, rather than thirty percent of the West Lake maintenance and security expenses. Precious Homes claims that it raised this concern to Venezia and requested copies of the service contracts related to the West Lake, and that Venezia refused to provide the contracts.

As a result, Precious Homes filed a complaint for a pure bill of discovery, alleging that it is being overcharged by Venezia for the cost of maintenance and security to the West Lake. Precious Homes sought to obtain copies of certain service contracts related to the maintenance and security expenses for the West Lake. Specifically, Precious Homes alleged:

10. Upon information and belief, VENEZIA LAKES charged Plaintiff PRECIOUS HOMES thirty (30%) percent of the cost of maintenance for both Venezia Lakes (West Lake) and Venezia Lakes (East Lake) for 2008.
11. Upon information and belief, VENEZIA LAKES has overcharged Plaintiff PRECIOUS HOMES for the cost of maintenance of the Venezia Lakes (West Lake) for previous years, possibly dating back to 2004.
12.The Plaintiff, has requested copies of the lake maintenance contracts to attempt to assess the accuracy of the subject charges in order to ensure that PRECIOUS HOMES homeowners are not, or do not continue to be overcharged by VENEZIA LAKES for maintenance. Because Plaintiff, PRECIOUS HOMES, is responsible for a portion of the expenses, it is entitled to review copies of said contracts. However, to date, Defendant, VENEZIA LAKES has refused to comply with Plaintiffs requests.
11. (sic) In order to completely assess all of the expenses of PRECIOUS HOMES to ensure that the Association’s budget is prepared accurately, and homeowners are not being charged for more than their required share of the common expenses, Plaintiff requires the discovery from VENEZIA LAKES.
12. (sic) Accordingly, Plaintiff has initiated this bill of discovery against VENEZIA LAKES to obtain copies of the following:
(i) Copies of any and all contracts for lake security related to Venezia Lakes (West Lake) between VENEZIA LAKES and any company, contractor or individual engaged for the purpose of providing such services from 2004 to the present to Venezia Lakes (West Lake);
(ii) Copies of any and all lake maintenance contracts related to services provided to Venezia Lakes (West Lake), including for lawn services and any other lake maintenance between VENEZIA LAKES and any company, contractor or individual engaged for the purpose of providing such services from 2004 to the present to Venezia Lakes (West Lake);
(iii) Copies of any and all other contracts related to Venezia Lakes (West Lake).
(iv) Copies of any and all contracts related to any and all alakes (sic) maintained by VENEZIA LAKES.
11. (sic) The discovery that Plaintiff seeks from VENEZIA LAKES will enable PRECIOUS HOMES to fully assess the Association’s expenses in order to prepare an accurate budget, and thus, to ensure that the maintenance fees assessed to each of its homeowner members is based on an accurately prepared budget.

Venezia filed its answer and affirmative defenses, in which it denied any overcharge and stated that the requested contracts do not contain sufficient detail to permit Precious Homes to make any assessment of the charges. Venezia also asserted that the complaint “is a pointless fishing expedition in an effort to annoy, embarrass and/or harass” Venezia.

Both Precious Homes and Venezia moved for summary judgment. Precious Homes argued that “good cause” existed to compel Venezia to release the contracts so that it could “assess whether or not it is being properly charged for the maintenance of subject lake.” Precious Homes relied on the affidavit of Orencio Cardenas, the president of Precious Homes, who stated that the contracts were necessary only to determine if it had been overcharged by Venezia.

In its motion, Venezia did not dispute the material facts and instead argued that the facts and circumstances, as alleged by Precious Homes, did not meet the standards for a pure bill of discovery. Venezia relied upon the affidavit of its property manager, Rafael Rios, who stated that the information sought by Precious Homes would not provide any information additional to that contained in the annual budget.

The trial court granted Precious Homes’ motion for summary judgment, and thereafter entered an amended final summary judgment ordering Venezia to produce within forty-five days the documents sought in Precious Homes’ pure bill of discovery. This appeal follows.

II. ANALYSIS

As this Court stated in Kirlin v. Green, 955 So.2d 28, 29 (Fla. 3d DCA 2007), although a “pure bill of discovery remains part of our legal system, its use and usefulness diminished greatly when Florida relaxed its pleading requirements to authorize liberal discovery.” In the absence of an adequate legal remedy, it “may be used to identify potential defendants and theories of liability and to obtain information necessary for meeting a condition precedent to filing suit.” Mendez v. Cochran, 700 So.2d 46, 47 (Fla. 4th DCA 1997); see also Debt Settlement Adm’rs, LLC v. Antigua & Barbuda, 950 So.2d 464, 465 (Fla. 3d DCA 2007); JM Family Enters., Inc. v. Freeman, 758 So.2d 1175, 1176 (Fla. 4th DCA 2000); Trak Microwave Corp. v. Culley, 728 So.2d 1177, 1178 (Fla. 2d DCA 1998). However, a bill of discovery may not be used “as a fishing expedition to see if causes of action exist.” Publix Supermarkets, Inc. v. Frazier, 696 So.2d 1369, 1371 (Fla. 4th DCA 1997). Nor is it available simply to obtain a preview of discovery obtainable once suit is filed. Mendez, 700 So.2d at 47.

In this case, the trial court erred in entering final judgment on the complaint for a pure bill of discovery where Precious Homes seeks the contracts only to determine if it has a cause of action, and the information contained in the sought-after contracts is relevant only to the issue of potential damages. In his deposition, Cardenas, Precious Homes’ president, testified that Precious Homes seeks the contracts in order to verify the annual budget calculations and to determine whether or not it has a cause of action. As stated above, it is well established that a pure bill of discovery does not lie to see if a cause of action exists, nor has it ever been available to aid a potential plaintiff in determining the extent of its damages. Precious Homes’ claim that it cannot determine a theory of liability when it is claiming an overcharge in violation of the agreement is without merit.

In this case, Precious Homes possesses an adequate remedy at law, including, but not limited to, a claim for declaratory relief or breach of contract. Parties, however, may not utilize the trial courts’ resources to go on a pre-suit “fishing expedition” to substantiate their claims or to determine the extent of their damages. “Moreover, should proper discovery lead to additional defendants and causes of action, Florida’s courts allow liberal amendments to the complaint, thus relieving [Precious Homes] of the ‘necessity’ to identify all parties and causes of action prior to filing suit.” Kirlin, 955 So.2d at 30.

Because this matter came before the trial court on cross motions for summary judgment, we reverse the final summary judgment entered below in favor of Precious Homes, and remand with directions for the trial court to enter final summary judgment in favor of Venezia.

Reversed and remanded.

      . This Court entered a stay pending appeal after the trial court denied Venezia’s motion for stay.

      . Precious Homes may also seek a right of set off as to future payments in the event that an action reveals an overpayment.


text:
    Kathy Lynn OVERTON, Appellant, v. Allan Edward OVERTON, Appellee.
    No. 1D08-5391.
    District Court of Appeal of Florida, First District.
    April 29, 2010.

      Anthony C. Bisordi of Bisordi & Bisordi, P.A., Shalimar, for Appellant.
    Janis L. Burke, Fort Walton Beach, for Appellee.
   PER CURIAM.

The wife argues that the trial court erred because it failed to make written findings of fact regarding the factors set out in section 61.08(2), Florida Statutes (2007), and in reducing her alimony award on the grounds that she was “in a supportive relationship.” Both of these arguments have merit. Section 61.08(2) provides that:

In determining a proper award of alimony or maintenance, the court shall consider all relevant economic factors, including, but not limited to:
(a) The standard of living established during the marriage.
(b) The duration of the marriage.
(c) The age and the physical and emotional condition of each party.
(d) The financial resources of each party, the non-marital and the marital assets and liabilities distributed to each.
(e) When applicable, the time necessary for either party to acquire sufficient education or training to enable such party to find appropriate employment.
(f) The contribution of each party to the marriage, including, but not limited to, services rendered in homemaking, child care, education, and career building of the other party.
(g) All sources of income available to either party.

In order to make an alimony award, the trial court must consider and make findings regarding each of the factors set out in section 61.08(2), Florida Statutes (2007). See Kemmet v. Kemmet, 885 So.2d 408, 409 (Fla. 1st DCA 2004). In the instant case, although the trial court stated that it considered all of the factors outlined in section 61.08(2), it failed to make any written findings regarding the factors.

An award for alimony may be modified in light of the recipient’s supportive relationship. See § 61.14(l)(b)(l)-(2), Florida Statutes (2007); French v. French, 4 So.3d 5, 7 (Fla. 4th DCA 2009). Section 61.14(l)(b)(l) provides that, upon specific findings that a supportive relationship exists between an obligee and a person with whom the obligee resides, the trial court may reduce or terminate alimony. Section 61.14(l)(b)(2) delineates factors that the trial court “shall give consideration to” when determining whether a supportive relationship exists. The list, however, is not exhaustive. The factors outlined are:

a. The extent to which the obligee and the other person have held themselves out as a married couple by engaging in conduct such as using the same last name, using a common mailing address, referring to each other in terms such as “my husband” or “my wife,” or otherwise conducting themselves in a manner that evidences a permanent supportive relationship.
b. The period of time that the obligee has resided with the other person in a permanent place of abode.
c. The extent to which the obligee and the other person have pooled their assets or income or otherwise exhibited financial interdependence.
d. The extent to which the obligee or the other person has supported the other, in whole or in part.
e. The extent to which the obligee or the other person has performed valuable services for the other.
f. The extent to which the obligee or the other person has performed valuable services for the other’s company or employer.
g. Whether the obligee and the other person have worked together to create or enhance anything of value.
h. Whether the obligee and the other person have jointly contributed to the purchase of any real or personal property.
i. Evidence in support of a claim that the obligee and the other person have an express agreement regarding property sharing or support.
j. Evidence in support of a claim that the obligee and the other person have an implied agreement regarding property sharing or support.
k. Whether the obligee and the other person have provided support to the children of one another, regardless of any legal duty to do so.

A supportive relationship is a relationship that “takes the financial place of a marriage and necessarily decreases the need of the obligee.” French, 4 So.3d at 6. Section 61.14(l)(b) recognizes the economic support that occurs when independent individuals chose to live together. Such support is equivalent to a marriage and requires a reduction in alimony. See id. at 8. Financial support alone, however, does not define a supportive relationship. See Linstroth v. Dorgan, 2 So.3d 305, 306 (Fla. 4th DCA 2008).

In the instant case, the trial court did not make any findings regarding the factors outlined in section 61.14(l)(b). Although the wife admitted that she lived with someone when her children were not visiting her, that they drove to work together almost daily, and that they planned to marry in the future, she also testified that he did not provide her with any financial support. They did not hold themselves out as married and had no joint assets. The parties expressed no intent to pool their assets in the future. The parties did not own or intend to purchase any property jointly and did not have any joint bank accounts. Additionally, they had separate residences.

Here, the evidence suggests that, although the wife is in a relationship which may, in time, rise to the level of a supportive relationship contemplated in section 61.14, it fails to reach that point yet. Her relationship does not appear to be a “de facto ” marriage. See French, 4 So.3d at 6.

All other issues raised on appeal are affirmed.

AFFIRMED in part, REVERSED in part, and REMANDED.


author: KAHN, J.

text:
    The TRIBUNE COMPANY HOLDINGS, INC., and Media General Operations, Inc., Appellants, v. STATE of Florida, DEPARTMENT OF REVENUE, Appellee.
    No. 1D09-3635.
    District Court of Appeal of Florida, First District.
    April 29, 2010.

      Robert E. Turffs, Sarasota, for Appellants.
    Bill McCollum, Attorney General, and John Mika, Assistant Attorney General, Tallahassee, for Appellee.
   KAHN, J.

Appellants Tribune Company Holdings, Inc., and Media General Operations, Inc., challenge a final order dismissing their second amended complaint with prejudice. Because the complaint states a cause of action, we reverse and remand.

FACTUAL & PROCEDURAL BACKGROUND

The facts for purposes of this appeal are gleaned from the second amended complaint, dismissed by the trial court. See Higgs v. Fla. Dep’t of Corr., 647 So.2d 962, 964 (Fla. 1st DCA 1994) (providing that court reviewing order granting motion to dismiss must assume all facts in the complaint to be true). Appellant Tribune Company Holdings, Inc. (Tribune), is a wholly-owned subsidiary of appellant Media General Operations, Inc. Tribune is a commercial printer and publisher of newspapers, inserts, and other advertising material for sale.

On May 24, 2002, Tribune filed with the Department of Revenue (Department) an application for refund of sales and use taxes paid during the periods of July 1, 1999 to March 8, 2002, and July 1, 1999 to April 80, 2002. Appellant requested the refunds for taxes paid for film and plates used in the printing and production of newspapers, advertising inserts, and other advertising materials done for resale, pursuant to section 212.08(7)(fff), Florida Statutes (1999). On June 30, 2003, the Department issued a Notice of Proposed Refund Denial for each of the requested refunds. The Department denied the refunds, asserting that Tribune was not assigned a Standard Industry Code (SIC) classification that would qualify it for such refunds under section 212.08(7)(fff). The SIC, promulgated by the U.S. Office of Management and Budget, is the federal government’s system for classifying industries by code. The assignment of a particular commercial entity to a certain classification is based on the entity’s predominant business activity. Each SIC code is part of a larger Industry Group. Presently, the SIC is being supplanted by the North American Industry Classification System (NAICS), though certain government departments and agencies still use the SIC codes. After Tribune appealed the denial of a refund, the Department issued a Final Notice of Refund Denial, basing the determination on its own assessment that Tribune’s business activities fell under Industry Group Number 271 (newspaper publishing and printing).

Believing it had been assigned the wrong code, Tribune asked the Department to change its SIC number to reflect its proper classification as a commercial printer and newspaper publisher, as the Department had done for other newspaper publishers operating as commercial printers. The Department advised appellant that it could not change the existing code, and that Tribune would have to contact the Florida Agency for Workforce Innovation (AWI) to initiate the desired change. As instructed, appellant contacted AWI and requested the agency to change its SIC code to reflect its status as a newspaper publisher and commercial printer. AWI, through Kathy Hughes, responded that it could not, or would not, change the classification.

Tribune next brought this action for damages and declaratory and injunctive relief to contest the Department’s denial of tax refunds. The Department moved to dismiss the complaint for failure to state a cause of action upon which relief could be granted, citing Tribune’s failure to allege that it or any of its separate and distinct property cites had been assigned an SIC code enumerated in section 212.08(7)(fff), Florida Statutes (allocating tax exemption for “materials purchased, produced, or created by businesses classified under SIC Industry Group Numbers” 275 (commercial printing), 276, 277, 278, or 279 “for use in producing graphic matter for sale”). After a hearing on the motion, the trial court dismissed the complaint with leave to amend.

Tribune filed an amended complaint, alleging its entitlement to an SIC code that would qualify for an exemption. The Department moved to dismiss, again arguing that appellant did not allege ultimate facts entitling it to relief, i.e., during the time period for which the refund was sought, appellant had in fact been classified under one or more of the qualifying SIC numbers. The trial court granted this motion, too, dismissing the amended complaint with leave to amend.

Tribune then filed a second amended complaint, alleging that the Department and/or AWI had “actually changed (or implicitly changed) the SIC code for other newspaper publishers ... to allow them to claim this exemption as commercial printers.” In light of agency inaction to honor Tribune’s requests for a change in SIC classification, appellant asked the trial court “to determine that [it] is entitled to a refund on the sales tax paid ... and also declare that the Tribune ... be assigned the proper SIC code to be recognized as a commercial printer.... ” The trial court dismissed the second amended complaint with prejudice, concluding as a matter of law that the complaint failed to state a cause of action. “[T]here is no allegation,” the court reasoned, “that directly places the Plaintiff as having the classification which would entitle it to a refund under ... section [212.08(7)(fff) ], Florida Statutes.”

ANALYSIS

We review de novo the dismissal of a complaint with prejudice for failure to state a cause of action. Magnum Capital, LLC v. Carter & Assocs., LLC, 905 So.2d 220, 221 (Fla. 1st DCA 2005). On the basis of the Final Notice of Refund Denial — which stated that Tribune fell under Industry Group Number 271, as being engaged primarily in publishing newspapers and therefore ineligible for the subject tax exemption — the Department argues that Tribune did not state a cause of action in the second amended complaint because it could not allege classification under any of the qualifying SIC numbers during the period for which Tribune requested the tax refunds.

“Before any proceeding for declaratory relief should be entertained it should be clearly made to appear that there is a bona fide, actual, present practical need for the declaration.” May v. Holley, 59 So.2d 636, 639 (Fla.1952). “[T]he declaration should deal with a present, ascertained or ascertainable state of facts or present controversy as to a state of facts.” Id. When reviewing an order granting a motion to dismiss for failure to state a cause of action, “it must be assumed that all allegations in the complaint are true and all reasonable inferences must be drawn in favor of the pleader.” Higgs, 647 So.2d at 964; see also W.R. Townsend Contracting, Inc. v. Jensen Civil Constr., Inc., 728 So.2d 297, 300 (Fla. 1st DCA 1999) (citing Response Oncology, Inc. v. Metrahealth Ins. Co., 978 F.Supp. 1052, 1058 (S.D.Fla.1997) (providing that “courts must liberally construe factual allegations in complaint and reasonably deductible inferences therefrom”)).

The second amended complaint alleges a classification error that prevents Tribune from enjoying certain tax exemptions to which it is otherwise entitled. Assuming, as we must, that Tribune has been erroneously classified under the SIC scheme and that the Department has the authority to correct the error, the second amended complaint suffers from no deficiency. Tribune’s allegations make out a claim that its rights and privileges are “dependent upon the facts or law applicable to the facts” alleged, thus establishing a “present practical need” for the declaratory relief sought. See Holley, 59 So.2d at 639.

The trial court, recognizing that appellant did not allege an assigned SIC classification that would entitle it to the refunds requested, perhaps focused too narrowly upon the SIC matter. Tribune has properly placed at issue its entitlement to a refund. Whether Tribune can establish a right to ultimate relief is a question properly resolved by a motion for summary judgment or trial on the merits. See McWhirter, Reeves, McGothlin, Davidson, Rief, & Bakas, P.A. v. Weiss, 704 So.2d 214 (Fla. 2d DCA 1998) (providing that “[a] motion to dismiss, filed pursuant to Florida Rule of Civil Procedure 1.140(b)(6), tests the legal sufficiency of a complaint to state a cause of action and is not intended to determine issues of ultimate fact”). Because Tribune stated a cause of action in the second amended complaint, we REVERSE and REMAND for further proceedings.

PADOVANO and WETHERELL, JJ., concur.

      . Both parties, as well as the trial court, cite section 212.08(7)(yy), Florida Statutes, as the statutory exemption on which the refund depends. We observe, however, that the relevant provision has been renumbered several times in recent history, beginning in 1999. We therefore cite to the exemption as it existed at the onset of the period to which the refund request pertains, which is section 212.08(7)(fff), Florida Statutes (1999).

      . The Department indicated that Tribune had been assigned an SIC code within Industry Group Number 596 (non-store retailers). Though we cannot discern as much from the record, presumably this code assignment originated from the federal government.

      . The U.S. Census Bureau maintains:
      There is no central government agency with the role of assigning, monitoring or approving NAICS [or SIC] codes. Individual establishments are assigned NAICS codes by various agencies for various purposes.... The U.S. Census Bureau has no formal role as an arbitrator of NAICS classification.

      There is no official way to have a company's SIC or NAICS code changed.... For this reason, we recommend that you contact the agency that has assigned the code you think should be changed.
      www.census.gov/epcd/www/drnaics.htm.


text:
    TENNESSEE ICE HOUSE, INC. and C. Dwayne Cardin, Appellants, v. ICE HOUSE AMERICA, LLC, a Florida limited liability company, Appellee.
    No. 1D09-4679.
    District Court of Appeal of Florida, First District.
    May 6, 2010.
    Bradley R. Johnson, and Latasha Garrison-Fullwood, Jacksonville, for Appellants.
    Stephen H. Grimes, Holland & Knight, LLC, Tallahassee, and Frederick D. Page, Holland & Knight, Jacksonville, for Appel-lee.
   PER CURIAM.

This case is duplicative of the proceedings in case number 1D09-6546. Accordingly, the instant appeal is hereby DISMISSED. See, e.g., Cheatham v. Decker, 751 So.2d 176 (Fla. 1st DCA 2000) (noting case would be subject to dismissal because it was duplicative of the proceedings in another appellate case); Mills v. State, 981 So.2d 1207 (Fla. 2d DCA 2008) (dismissing appeal because appellant is not entitled to a second appeal of the same circuit court order). All future correspondence and pleadings should reflect 1D09-6546 as the correct docket number.

WOLF, PADOVANO, and CLARK, JJ., concur.