author: HULL, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Derwin Darryl FRITTS, Defendant-Appellant.
    No. 15-15699
    Non-Argument Calendar
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 11/08/2016

      Francis D. Murray, Germaine Seider, Arthur Lee Bentley, III, Shauna S. Hale, U.S. Attorney’s Office, Tampa, FL, for Plaintiff-Appellee.
    Rosemary Cakmis, Donna Lee Elm, Robert Godfrey, Conrad Benjamin Kahn, Federal Public Defender’s Office, Orlando, FL, Frank William Zaremba, Federal Public Defender’s Office, Tampa, FL, for Defendant-Appellant.
    Before HULL, MARCUS and FAY, Circuit Judges.
   HULL, Circuit Judge:

After pleading guilty, Derwin Fritts appeals his total 180-month sentence for three counts of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g). The district court sentenced Fritts as an armed career criminal under the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e), based on Fritts’s prior convictions for: (1) aggravated assault and aggravated battery,, in violation of Florida Statutes §§ 784.021, 784.045; (2) robbery with a firearm, in violation of Florida Statutes § 812.13, and (3) sale of cocaine, in violation of Florida Statutes § 893.13.

On appeal, Fritts argues that the district court erred in concluding that his 1989 armed robbery conviction qualifies as a “violent felony” under the elements clause of the ACCA. After review, we affirm.

I. THE ACCA

Under the ACCA, a defendant convicted of violating 18 U.S.C. § 922(g) is subject to a mandatory minimum sentence of 15 years (180 months) if he has three prior convictions for a “violent felony” or “serious drug offense.” 18 U.S.C. § 924(e)(1). A “violent felony” is any offense punishable by a term of imprisonment exceeding one year that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B). The first prong of this definition is referred to as the “elements clause,” while the second prong contains the “enumerated crimes” clause and, finally, what is commonly called the “residual clause.” United States v. Owens, 672 F.3d 966, 968 (11th Cir. 2012). Fritts’s appeal concerns only the elements clause, as robbery is not an enumerated crime, and the Supreme Court struck down the ACCA’s residual clause as unconstitutionally vague in Johnson v. United States, 576 U.S. -,-, 135 S.Ct. 2551, 2557-58, 2563, 192 L.Ed.2d 569 (2015). Thus, we address whether a 1989 conviction for armed robbery with a firearm under Florida law “has as an element the use, attempted use, or threatened use of physical force against the person of another” within the meaning of the ACCA.

II. FLORIDA ROBBERY STATUTE

Fritts committed his armed robbery offense in July 1988 and was convicted in June 1989. At the time of Fritts’s offense, Florida’s robbery statute set forth the elements of robbery and robbery with a firearm or other deadly weapon as follows:

(1) “Robbery” means the taking of money or other property which may be the subject of a larceny from the person or custody of another when in the course of the taking there is the use of force, violence, assault, or putting in fear.
(2)(a) If in the course of committing the robbery the offender carried a firearm or other deadly weapon, then the robbery is a felony of the first' degree, punishable by imprisonment for a term of years not exceeding life imprisonment or as provided in s. 775.082, s. 775.083, or s. 775.084.

Fla. Stat. § 812.13(1), (2)(a) (1987) (emphasis added). The requirement that the defendant, in the course of the taking, use “force, violence, assault, or putting in fear” has been an element in Florida’s robbery statute, since at least the 1970s, See United States v. Seabrooks, 839 F.3d 1326, 1339, 2016 WL 6090860, at *10 (11th Cir. Oct. 19, 2016).

III. DOWD AND ITS PROGENY

In 2006, this Court held in United States v. Dowd that a 1974 Florida conviction for armed robbery was “undeniably a conviction for a violent felony” under the ACCA’s elements clause, 451 F.3d 1244, 1255 (11th Cir. 2006). This Court reached this conclusion “without difficulty and cited only the ACCA’s elements clause. Id.

In several recent cases, this Court has followed Dowd to conclude that other Florida robbery convictions in 1980, 1986, and 1995 qualified as ACCA predicate convictions under the elements clause. See In re Hires, 825 F.3d 1297 (11th Cir. 2016) (rejecting the claim that Descamps v. United States, 570 U.S.-, 133 S.Ct. 2276, 186 L.Ed.2d 438 (2013), undermined our precedent in Dowd and holding that the defendant’s 1995 Florida robbery conviction qualified as a violent felony under the ACCA’s elements clause, which includes “any felony that ‘has as an element the use, attempted use, or threatened use of physical force’ ”); In re Thomas, 823 F.3d 1345, 1349 (11th Cir. 2016) (citing Dowd and holding that the defendant’s 1980 and 1986 Florida “convictions for armed robbery qualify as ACCA predicates under the elements clause”); In re Moore, 830 F.3d 1268, 1271 (11th Cir. 2016) (concluding that the defendant’s two Florida robbery-with-a-firearm convictions and his armed robbery conviction “qualify as violent felonies under our binding precedent” in Dowd and Thomas). Under Dowd and its progeny alone, we must conclude that a Florida armed robbery conviction, such as Fritts’s, qualifies as a violent felony under the ACCA’s elements clause.

IV. LOCKLEY

Our Dowd precedent and our conclusion here are also supported by our decisions holding that a Florida robbery conviction under § 812.13(1), even without a firearm, qualifies as a “crime of violence” under the elements clause in the career offender guideline in U.S.S.G. § 4B1.2(a), which has the same elements clause as the ACCA. United States v. Lockley, 632 F.3d 1238, 1245 (11th Cir. 2011); In re Robinson, 822 F.3d 1196, 1197 (11th Cir. 2016) (citing Lockley and concluding that the defendant’s 1991 armed robbery offense has “as an element the use, attempted use, or threatened use of physical force against the person of another”). We review Lock-ley’s analysis about the elements in the Florida robbery statute because it underscores why Dowd and its progeny were correctly decided.

Applying the pure categorical approach in Lockley, this Court examined the elements of a robbery offense under Florida law, starting with “the taking of money or other property.” See Fla. Stat. § 812.13(1); Lockley, 632 F.3d at 1240 (“We ... disregard the facts of the underlying conviction and look only to the elements of Lockley’s prior conviction.”). Applying Florida law about the elements, the Lockley Court found (1) that the taking must be by use of force, violence, assault, or putting the victim in fear, and (2) that “the fear contemplated by the statute is the fear of death or great bodily harm,” stating:

The taking referred to “must be by the use of force or violence or by assault so as to overcome the resistance of the victim, or by putting him in fear so that the victim does not resist.” Fla. Std. Jury Instr. (Grim.) 15.1. The property taken need not be taken from the actual person of the victim, but must be sufficiently under his control “so that it cannot be taken without the use of force, violence, or intimidation directed against the victim.” Id. Assault, in turn, is defined as “an intentional, unlawful threat by word or act to do violence to the person of another, coupled with an apparent ability to do so, and doing some act which creates a well-founded fear in such other person that such violence is imminent.” Fla. Stat. § 784.011(1). And, “[t]he fear contemplated by the statute is the fear of death or great bodily harm.” Magnotti v. State, 842 So.2d 963, 965 (Fla. 4th Dist. Ct. App. 2003) (internal quotation marks omitted).

632 F.3d at 1242 (footnote omitted).

The Lockley Court then concluded that the “commission of robbery in violation of Fla. Stat. § 812.13(1) necessarily requires that the defendant”:

(1) commit a taking of money or other property from another person or in the custody of another person (2) with the intent to permanently or temporarily deprive the person of the money or property or any benefit thereof (3) using force, violence, or an intentional threat of imminent force or violence against another coupled with an apparent ability to use that force or violence, or by causing the person to fear death or great bodily harm (4) where the money or property has value.

Id. at 1242-43 (emphasis added). Applying the categorical approach, the Lockley Court analyzed the least culpable of the acts in § 812.12(1), which was “putting in fear.” The Lockley Court stressed that (1) “ ‘putting in fear,’ per Florida law, involves an act causing the victim to fear death or great bodily harm,” (2) “[w]e can conceive of no means by which a defendant could cause such fear absent a threat to the victim’s person,” and (3) “[t]he bare elements of § 812.13(1) ... satisfy the elements .-.. claused of Ú.S.S.G. § 4B1.2(a).” Id. at 1244-45 (citation and footnote omitted).

Later on, the Lockley Court repeated that (1) “robbery under that statute requires either the use of force, violence, a threat of imminent force or violence coupled with apparent ability, or some act that puts the victim in fear of death or great bodily harm,” (2) “[a]ll but the latter option specifically require the use or threatened use of physical force against the person of another,” (3) “we find it inconceivable that any act which causes the victim to fear death or great bodily harm would not involve the use Or threatened use of physical force,” and (4) “[sjection 812.13(1) accordingly has, as an element, the ‘use, attempted use, or threatened use of physical force against the person of another.’ U.S.S.G. § 4B1.2(a)(l).” Id. (emphasis added). In Lockley this Court thus held that Florida robbery is categorically a crime of violence under the elements of even the least culpable of these acts criminalized by Florida Statutes § 812.13(1).

As an alternate and independent ground, we hold here that under Lockley alone a Florida armed robbery conviction under § 812.13(a) categorically qualifies as a violent felony under the ACCA’s elements clause.

Y. FRITTS’S ARMED ROBBERY CONVICTION

Both Dowd and Lockley thus control the outcome of this case and reqúire us to conclude that Fritts’s armed robbery conviction qualifies as a violent felony under the ACCA’s elements clause. In an effort to circumvent our binding precedent, Fritts argues that Dowd was abrogated by Curtis Johnson v. United States, 559 U.S. 133, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010). But, Fritts’s argument ignores the fact that Lockley was decided after and cited Curtis Johnson. Thus, Lockley binds us here. Under this Court’s prior panel precedent rule, there is never an exception carved out for overlooked or misinterpreted Supreme Court precedent. See Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th Cir. 2001) (“[W]e categorically reject any exception to the prior panel precedent rule based upon a perceived defect in the prior panel’s reasoning or analysis as it relates to the law in existence at the time.”).

In any event, we conclude that nothing in Curtis Johnson, a simple battery, case, undermines our binding precedent in Dowd or Lockley about robbery and armed robbery crimes. In Curtis Johnson, the Supreme Court considered whether the Florida offense of simple battery by “touching” another person had as an dement the use of physical force. 559 U.S. at 135, 130 S.Ct. at 1268. The Supreme Court noted that a conviction for simple battery “ordinarily is a first-degree misdemeanor ... but is a third-degree felony for a defendant who (like Johnson) has been convicted of battery (even simple battery) before.” Id. at 136, 130 S.Ct. at 1269. Thus, Curtis Johnson’s simple battery conviction was for only touching, conduct that was a misdemeanor but for his prior conviction. Furthermore, Curtis Johnson did not involve (1) an act that put the victim “in fear of death or great bodily harm,” which Lockley held that “putting in fear” under Florida robbery law requires, or (2) the “attempted” or “threatened use of physical force,” which is also included in the elements clause. See Lockley, 632 F.3d at 1244; see also Leocal v. Ashcroft, 543 U.S. 1, 8-9, 125 S.Ct. 377, 382, 160 L.Ed.2d 271 (2004) (discussing negligence and cautioning that “[w]e do not deal here with an attempted or threatened use of force”). Fritts cannot use Curtis Johnson to circumvent Dowd or Lockley.

Fritts also argues that before the Florida Supreme Court’s 1997 decision in Robinson v. State, 692 So.2d 883, 886 (Fla. 1997), only the slightest force was sufficient to convict a defendant of Florida robbery. In fact, in Robinson the Florida Supreme Court made clear that the § 812.13 robbery statute has never included a theft on-taking by mere snatching because snatching is theft only and does not involve the degree of physical force needed to sustain a robbery conviction under § 812.13(1). Robinson v. State, 692 So.2d 883, 886 (Fla. 1997); McCloud v. State, 336 So.2d 257, 258-59 (Fla. 1976); Montsdoca v. State, 93 So. 157, 159 (Fla. 1922). .

In 1997, the Florida Supreme Court in Robinson pointed to its own 1976 decision in McCloud and stressed that robbery requires “more than the force necessary to remove the property” and in fact requires both “resistance by the victim” and “physical force by the offender” that overcomes that resistance, stating:

In accord with our. decision in McCloud, we find that in order for the snatching of property from another to amount to robbery, the perpetrator must employ more than the force necessary to remove the property from the person. Rather, there must be resistance by the victim that is overcome by the physical force of the offender.

Id. In Robinson, the Florida Supreme Court reaffirmed that “[t]he snatching or grabbing of property without such resistance by the victim amounts to theft rather than robbery.” Id: at 887. The Robinson court further stated ■ that' “Florida courts have consistently recognized that in snatching situations, the element of force as defined herein distinguishes the offenses of theft and robbery.” Id. In other words, Robinson reaffirmed that merely snatching property—without resistance by the victim and use of physical force to overcome the victim’s resistance—did not constitute a robbery under § 812.13(1).

When the Florida Supreme Court in Robinson interprets the robbery statute, it tells us what that statute always meant. Rivers v. Roadway Express, Inc., 511 U.S. 298, 312-13, 114 S.Ct. 1510, 128 L.Ed.2d 274 (1994) (“A judicial construction of a statute is an authoritative statement of what the statute meant before as well as after the decision of the case giving rise to that construction.”); id at 313 n. 12, 114 S.Ct. 1510 n.12 (“[W]hen this Court construes a statute, it is explaining its understanding of what the statute has meant continuously since the date when it became law”). This is patently true here because Robinson said its holding was “[i]n accord with [its] decision in McCloud” in 1976. See Robinson, 692 So.2d at 886.

Indeed, since 1922, the Florida Supreme Court has held that “the force- that is required to make the offense a robbery is such force as is actually sufficient to overcome the victim’s resistance.” Montsdoca, 93 So. at 159. Notably, the Florida Supreme Court instructed: “There can be no robbery without violence, and there can be no larceny with it. It is violence that makes robbery an offense of greater atrocity than larceny.” Id.

In sum, based on our precedent in Dowd and Lockley, and in light of the Florida Supreme Court’s decisions in Robinson, McCloud, and Montsdoca, we conclude that Fritts’s Florida armed robbery conviction under § 812.13 categorically qualifies as a “violent felony” under the ACCA’s elements clause.

VI. CONCLUSION

For all of these reasons, we must affirm Fritts’s total 180-month sentence.

AFFIRMED.

      . On appeal, Fritts does not challenge either of the other two qualifying predicate convictions, and we do not address them further.

      . As we noted in Seabrooks, in 1992, the robbery statute in § 812.13(1) was amended to add this language: "with intent to either permanently or temporarily deprive the person or the owner of the money or other property,” See Seabrooks, 839 F.3d at 1339, 2016 WL 6090860, at *10 n.6; 1992 Fla. Laws 155, § 1. But, the language of "the use of force, violence, assault, or putting in fear," remained the same. After 1992, the robbery statute reads:
      (1) “Robbery” means the taking of money - or other property which may be the subject of larceny from the person or custody of another, with intent to either permanently or temporarily deprive the person or the owner of the money or other property, when in the course of the taking there is the use of force, violence, assault, or putting in fear.
      Fla. Stat. § 812.13(1)(1993).

      . We acknowledge that this opinion uses the discussion in Sections IIIB, C, and F of Seabrooks. See Seabrooks, 839 F.3d at 1338, 2016 WL 6090860, at *10, 13. Given that these sections were a single judge concurrence, we now use that same analysis as the panel opinion here.

      . Because the relevant parts of the definition of "violent felony” under the ACCA and "crime of violence” under the Sentencing Guidelines are identical, this Court often considers cases interpreting the language in the Sentencing Guidelines as authority in cases interpreting the language in the ACCA. See U.S.S.G. § 4Bl,2(a) (providing a crime of violence includes an offense that "has as an element the use, attempted use, or threatened use of physical force against the person of another”); see also United States v. Alexander, 609 F.3d 1250, 1253 (11th Cir. 2010); United States v. Rainey, 362 F.3d 733, 735 (11th Cir. 2004).

      . The Locldey Court also determined: "These elements hew almost exactly to the generic definition of robbery.” Id at 1243. As to generic robbery, Lockley states that the generic definition is “the taking of property from another person or from the immediate presence of another person by force or intimidation.” Lockley, 632 F.3d at 1244 (quotation marks omitted). Under the generic approach, intimidation is the fear of bodily harm. Id,

      . Lockley’s conviction was for "attempted robbery” in violation of Florida Statutes § 812.13(1) and § 777.04(1). The Lockley Court said that "because the commentary explicitly states that the attempt to commit a 'crime of violence’ is itself a 'crime of vio-fence,’ Lockley’s attempted robbery conviction categorically qualifies under the elements clause as a predicate for the career offender enhancement." 632 F.3d at 1245. Since Fritts’s conviction was not for attempt but for armed robbery, we need not review further Lockley’s discussion of attempt.

      . In 1999, Florida enacted a wholly separate statute, § 812.131, which proscribes sudden snatching. See 1999 Fla. Laws 175, Florida’s sudden snatching statute requires only a taking and no physical force:
      (1) "Robbery by sudden snatching” means the taking of money or other property from the victim’s person, with intent to permanently or temporarily deprive the victim or the owner of the money or other property, when, in the course of the taking, the victim was or became, aware of the taking, fo order to satisfy this definition, it is not necessary to show that:
      (a) The offender used any amount of force beyond that effort necessary to obtain possession of the money or other property; or (b) There was any resistance by the victim to the offender or that there was injury to the victim’s person.-
      Fla. Stat. § 812.131 (1999) (emphasis added). As explained herein, the Florida courts for years held that the robbery statute in § 812.13 required resistance by the victim and physical force by the offender, and did not cover mere sudden snatching. This new sudden snatching statute was apparently needed because § 812.13 (robbery) did not cover sudden snatching where there was no resistance by the victim and no physical force to overcome it.


source: Caselaw Access Project

author: JILL PRYOR, Circuit Judge:

license: Public Domain

text:
    Jorge A. AGRELO, Olga M. Fernandez, individuals, Plaintiffs-Appellants, v. AFFINITY MANAGEMENT SERVICES, LLC, a limited liability corporation, Marbella Park Homeowners' Association, Inc., a Non-Profit corporation, Defendants-Appellees. The Meloni Law Firm, a.k.a. Edoardo Meloni, P.A, Edoardo Meloni, an individual, Defendants.
    No. 15-14136
    United States Court of Appeals, Eleventh Circuit.
    Date Filed: 11/09/2016

      David Peter Reiner, Reiner & Reiner, PA, Miami, FL, for Plaintiffs-Appellants.
    Shane Haselbarth, Marshall Dennehey Warner et al Law Office, Philadelphia, PA, Jean Anne Hanrahan, Craig S. Hudson, Marshall Dennehey Warner Coleman & Goggin, PC, Fort Lauderdale, FL, for Affinity Management Services, LLC.
    Dale Thomas Golden, Golden Scaz Ga-gain, PLLC, Tampa, FL, Benjamin W. Raslavieh, Raslavich Law, P.A., Tampa, FL, for The Meloni Law Firm and Edoar-do Meloni.
    Scott Allan Cole, Melinda S. Thornton, Cole Scott & Kissane, PA, Miami, FL, Rachel Beige, Ryan Andrew Fogg, Cole Scott & Kissane, PA, West Palm Beach, FL, for Marbella Park Homeowners’ Association, Inc., a Non-Profit corporation.
    Before ROSENBAUM and JILL PRYOR, Circuit Judges, and SCHLESINGER, District Judge.

       Honorable Harvey E. Schlesinger, United States District Judge for the Middle District of Florida, sitting by designation.

   JILL PRYOR, Circuit Judge:

The main issue presented in this appeal is whether a fine imposed by a homeowners’ association (“HOA”) for violating the HOA’s governing documents is a debt for purposes of the Florida Consumer Collection Practices Act (“FCCPA”), Fla. Stat. § 559.55 et seq. The district court held that it is not and thus granted summary judgment to Affinity Management Services, LLC, one of the agents of Mar-bella Park Homeowners’ Association, Inc. that attempted to collect an unpaid fine from Marbella members Jorge A. Agrelo and Olga M. Fernandez (the “homeowners”). The court granted summary judgment to Marbella for the same reasons and also on the alternative grounds that Marbella was not a debt collector itself and that it could not be vicariously liable for the FCCPA violations of its agents.

After careful consideration and with the benefit of oral argument, we reverse the district court’s grant of summary judgment to Affinity, vacate the grant of summary judgment to Marbella, and remand to the district court for further proceedings. The district court erred in concluding that the HOA fine at issue is not a debt for FCCPA purposes and granting summary judgment on that basis. We do not decide whether under Florida law Marbella could be vicariously liable for the FCCPA violations of its agent because the district court failed to apply Florida law in the first instance. On remand, the district court should reconsider this issue under Florida law.

I. BACKGROUND

A. Factual Background

Agrelo and Fernandez, a married couple, owned a home together in Miami, Florida. During the relevant time, they were members of Marbella, an HOA. Affinity was Marbella’s property manager. As members of Marbella, the hoiheowners were bound by Marbella’s governing documents, which included the HOA’s Bylaws, Articles of Incorporation (including amendments thereto) and a Declaration of Covenants and Restrictions for Marbella Park (and additions thereto), among other documents (collectively, the “governing documents”). The governing documents required HOA members to pay an annual assessment, due in monthly installments. These assessments were secured by a continuing lien held by the HOA on each property.

The governing documents also empowered Marbella to fine members for violating its Declaration of Covenants and Restrictions (a part of the governing documents). The maximum amount of a fine depended on the number of times the member previously had committed a similar offense, limiting the first fine to a payment equivalent to one month of the annual assessment (in this case, $115). Under the Declaration of Covenants and Restrictions, once a fine was imposed, it • was “deemed an individual assessment, and if not1 paid when 'due[,] all of the provisions ..! relating to the late payment of assessments” applied. Declaration of Covenants and Restrictions for Marbella Park at Art. VI, § 9 (Doc. 30-6). To enforce such obligations, Marbella could sue the member or foreclose upon Marbella’s continuing lien on the property.

Marbella notified the homeowners that they had violated the governing documents. Although Marbella identified no specific provision of the governing documents that the homeowners had violated, Marbella conterided that they -improperly performed unapproved construction, relocated a fence, and removed plants. Marbel-la gave the homeowners three weeks to correct the purported violation, but they took no action. After a hearing on the violation before Marbella’s Grievance Committee, which the homeowners attended, the Committee recommended that Marbel-la’s Board of Directors finé the homeowners $100 for each day the violation went uncorrected. Marbella set the total fine at $1,000, the maximum Florida law allows for a single, continuing violation. See Fla. Stat. § 720.305(2).- -The homeowners refused to pay the fine, maintaining, among other points, that they had not violated any Marbella rule and had not been afforded due process.

Over the next several months, - Affinity and attorneys for Marbella—the Meloni Law Firm a/k/a Edoardo Meloni, P.A. and Edoardo Meloni, Esq. (together,- “Melo-ni”)—sent the homeowners at least five letters on Marbella’s behalf about the dispute. On May 16, 2013 and then again on June 28, 2013, Affinity sent the homeowners nearly identical letters demanding $1,000, which Affinity characterized as a “delinquent assessment ].” May 16, 2013 Letter (Doc. 30-11); June 28, 2013 Letter (Doc. 30-12). Affinity warned the homeowners of the consequences if they failed to pay, threatening to file and foreclose upon a lien against their home, to seek a personal judgment to seize their property and garnish their wages, and to file a legal action to collect “delinquent assessments, late fees, interest, attorney’s fees and other costs of collection.” May 16, 2013 Letter; June 28,2013 Letter.

After Marbella received no payment, it had Meloni send another payment demand letter to the homeowners on August 9, 2013. Meloni notified the homeowners that they owed Marbella a total of $1,115 for “past due maintenance assessments.” August 9, 2013 Letter at 1 (Doc. 30-13). The amount was comprised of $1,000 for the fine imposed by the Marbella Board and an additional $115 for the monthly fee for August. Meloni also demanded $262.50 for legal services in connection with the collection effort. Meloni warned the homeowners that if they failed to pay, Marbella could foreclose on its continuing lien or sue them personally.

The homeowners responded to Meloni, disputing the “debt.” They stated that they were unaware of “any outstanding administration fees or any past due maintenance assessment owed” in the amount of $1,000. August 30, 2013 Letter at 1 (Doc. 30-15). They also contended that they paid the August assessment on time, attaching evidence reflecting the payment. The homeowners further made several requests under the Fair Debt Collection Practices Act (“FDCPA”), 15 U.S.C. § 1692 et seq., including a demand for proof that Meloni was licensed to collect debts in Florida.

In response, Meloni sent the homeowners another letter on Marbella’s behalf, demanding they pay $1,000 for the fine that was assessed to their account. Meloni also attached an account statement reflecting a $262.50 attorney’s fee and an unpaid September—but not August—assessment.

The homeowners again disputed the charges. Concerning the $1,000 charge, they acknowledged that the HOA had fined them for allegedly violating the governing documents, but they challenged the validity of the fine. Regarding the September monthly maintenance fee, the homeowners maintained that they had timely paid this fee and submitted evidence of their timely payment. The homeowners again lodged several FDCPA requests, once more demanding evidence that Melo-ni was licensed to collect debts in Florida.

Meloni responded on December 13 with a final letter to the homeowners demanding payment. Meloni maintained that the $1,000 demand reflected a delinquent fine, not a debt under the FCCPA and also asserted that the Florida statutes governing HOAs superseded any contrary provision in the governing documents. Meloni demanded $1,312.50, representing the $1,000 fine, two $25 late fees assessed on September 11 and November 11, and $262.50 for attorney’s fees. The homeowners again responded, disputing the validity of the $1,000 fine and $25 late fees. They also challenged the amount of both the fine and the late fees, explaining that the governing documents capped the fine at $115 and the fees at $11.50. And for the third time, they demanded evidence that Meloni was a licensed debt collector.

B. Proceedings Below

The homeowners filed this lawsuit against Marbella, Affinity, and Meloni, alleging that the five letters sent between May 16 and December 13, 2013 violated the FDCPA, the FCCPA, or both. The homeowners alleged that Affinity violated two FCCPA provisions when it sent the first two letters demanding $1,000. They alleged that Affinity violated Fla. Stat. § 559.72(9) by demanding payment of a debt that it knew was illegitimate and Fla. Stat. § 559.72(18) by communicating directly with the homeowners about a debt when it knew that they were represented by counsel. They further alleged that Mar-bella was vicariously liable for these FCCPA violations.

The homeowners also brought several counts against Meloni, six of which also named Marbella and are relevant to this appeal. The homeowners alleged that Me-loni violated Fla. Stat. § 659.72(9) by demanding payment of a debt that Meloni knew was illegitimate in the three letters sent on August 9, September 10, and December 13 and threatening to file a lien or institute a foreclosure action when Meloni knew it could do neither. The homeowners further alleged that Meloni violated Fla. Stat. § 559.72(15) by failing to provide appropriate proof that it was licensed to collect debts in Florida. They alleged that Marbella was vicariously liable for these FCCPA violations as well.

Affinity and Marbella moved for summary judgment on all claims against them, arguing that they were not debt collectors and that the $1,000 fine was not a debt subject to the FCCPA. Meloni filed a motion for partial summary judgment and a motion for judgment on the pleadings, urging the court to dismiss some of .the claims against it, including all of the FCCPA claims that also named Marbella as a defendant.

The district court granted Affinity’s and Marbella’s motions, holding that the HOA fine was not a debt and, in any event, Marbella could not be vicariously liable for its agents’ FCCPA violations. The court entered judgment in their favor and then certified the judgment as final for purposes of Rule 54(b) of the Federal Rules of Civil Procedure. Meloni’s dispositive motions remained pending. This appeal followed.

II. LEGAL STANDARD

We review a district' court’s grant of summary judgment de novo, viewing the evidence in the light most favorable to the nonmoving party. Likes v. DHL Express (USA), Inc., 787 F.3d 1096, 1098 (11th Cir. 2015). Summary judgment is appropriate when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A genuine dispute of material fact exists when “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Likes, 787 F.3d at 1098 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (internal quotation marks omitted).

III. DISCUSSION

A. Whether the HOA Fine Is a “Debt” Under the FCCPA

Affinity and Marbella argue, and the district court held, that the letters demanding the payment of a fíne do not fall within the FCCPA’s scope because the fine, imposed pursuant to Marbella’s .governing documents, is not a debt under the FCCPA. We disagree.

“To recover under both the FDCPA and the FCCPA (a Florida state analogue to the federal FDCPA), a plaintiff must make a threshold showing that the money being collected qualifies as a ‘debt.’ ” Oppenheim v. I.C. Sys., Inc., 627 F.3d 833, 836-37 (11th Cir. 2010). “[T]he mere obligation to pay does not constitute a ‘debt’ under the FDCPA” and FCCPA. Id, at 837. Instead, under both statutes, a debt is “any obligation or alleged obligation of a consumer to pay money arising out of a transaction in which the money, property, insurance, or services which are the subject of the transaction are primarily for personal, family, or household purposes, whether or not such obligation has been reduced to judgment.” Fla. Stat. § 559.55(6); accord 15 U.S.C. § 1692a(5). In other words, the FDCPA and FCCPA apply “only to payment obligations of a (1) consumer arising out of a (2) transaction in which the money, property, insurance, or services at issue are (3) primarily for personal, family, or household purposes.” Oppenheim, 627 F.3d at 837. We focus here on the limitation that the debt must arise out of a consumer transaction.

Consistent with our obligation to construe consumer protection statutes broadly in favor of consumers, we have held that “[a]s long as the transaction creates an obligation to pay, a debt is created.” Brown v. Budget Rent-A-Car Sys., Inc., 119 F.3d 922, 924 (11th Cir. 1997) (alteration in original) (internal quotation marks omitted). Consequently, even if tort-like conduct triggered an obligation to pay, we have held where the obligation arose from a consumer contract—rather than solely by operation of law—the obligation is a debt under the FDCPA. For example, in Brown, a driver crashed and damaged a truck he had rented pursuant to an agreement with a rental company. See id. at 923. After the company attempted to collect $825 from the driver under the agreement’s terms, the driver brought FDCPA and FCCPA claims against the company’s collection agents. See id. We rejected the collection agents’ argument that the FDCPA only covered obligations to pay arising out of an extension of credit, holding that the rental car company’s “assertion that [the driver] is obligated as a result of a consumer transaction suffices to bring the obligation within the ambit of the FDCPA.” Id. at 924. Likewise, in Oppen-heim, we held that where the plaintiff “utilized PayPal’s services in a transaction and, according- to the terms of that transaction, was under a contractual obligation to repay the.money” after it was determined that a payment made to.him was fraudulent, the payment obligation constituted a debt under the FDCPA. 627 F.3d at 837-38,

By contrast, we have held that where the obligation to pay arises solely by operation of law, the obligation is not a debt under the FDCPA. In Hawthorne v. Mac Adjustment, Inc., we held that the obligation to pay money' is not a debt if it did not “arise out of any consensual or business dealing.” 140 F.3d 1367, 1371 (11th Cir. 1998). There, a tortfeasor brought an FDCPA action against a company attempting to collect damages resulting from the tortfeasor’s negligence. Id. Because “no contract, business, or consensual arrangement” existed between the tortfeasor and the injured party, we held that the obligation to pay for damages arising out of the accident did not constitute a debt under the FDCPA. Id. In essence, our jurisprudence in this area of law can be distilled into the principle that FDCPA and FCCPA.“debts” arise from actual—as opposed to social—contracts.

Affinity and Marbella argue that the $1,000 fíne is akin to the negligence damages in Hawthorne. They also rely on cases holding that a government-imposed fíne, which does not “stem from a consensual transaction,” is not a debt under the FDCPA. See, e.g., Gulley v. Markoff & Krasny, 664 F.3d 1073, 1074-75 (7th Cir. 2011) (collecting district court cases and holding that an unpaid municipal fine is not a debt).'

We find these analogies unpersuasive. Affinity and Marbella’s reasoning is contrary to our precedent and inconsistent with the remedial purpose of the FDCPA and FCCPA. Hawthorne and the municipal fíne cases cited by Affinity and Marbel-la each concern payment obligations that only arose by operation of law. See, e.g., Hawthorne, 140 F.3d at 1371; Gulley, 664 F.3d at 1074-75. But here, unlike in Hawthorne and Gulley, the homeowners’ obligation arises from a contract—the governing documents—that explicitly treats HOA fines as assessments. According to the governing documents, “[á]ny fine levied against an Owner shall be deemed an individual assessment, and if not paid when due all of the provisions of [the governing documents] relating to the late payment of assessments shall be applicable.” Consequently, the central question is whether a contractual obligation to pay HOA assessments creates a' “debt” under the FCCPA.

We hold that it does. HOA assessments stem directly from the consensual home-purchase transaction. When a home buyer must contractually agree to pay homeowners’ assessments in order to purchase a home, that home buyer takes on “debts” for those assessments under the. FCCPA. See Brown, 119 F.3d at 925 (holding that, under the FDCPA, where “the transaction creates an obligation to pay, a debt is created”); see also Haddad v. Alexander, Zelmanski, Danner & Fioritto, PLLC, 698 F.3d 290, 294 (6th Cir. 2012) (holding that because a homeowner’s obligation to pay assessments derives from the original home-purchase transaction, the obligation constitutes a “debt” under the FDCPA); Newman v. Boehm, Pearlstein & Bright, Ltd., 119 F.3d 477, 481 (7th Cir. 1997) (holding that past-due homeowners’ assessments qualify as “debts” under the FDCPA). Because the governing documents contain a provision calling for the fíne levied against the homeowners to be “deemed an individual assessment,” the contractual language renders the fine in this case a “debt” subject to the FCCPA.

The fact that the obligation may have been triggered by tort-like behavior does not take it out of the realm of FCCPA debts. Brown, in particular, is instructive. Brown concerned a car accident, a fact pattern typically associated with common law negligence claims. But the $826 the driver was obligated to pay did not constitute negligence damages arising out of tort law; it was comprised of specific fees and damages provided for in the underlying rental contract. By comparison, here, the HOA or the homeowners’ neighbors may have had common law nuisance or other non-contractual claims against the homeowners. But the actual obligations pursued by the HOA in this case were contractually treated as assessments. As a result, the homeowners’ obligation to pay a fine is a debt because the HOA assessments at issue—like the fees at issue in Brown— arose directly from a consumer contract. See Brown, 119 F.3d at 923-24; see also Franklin v. Parking Revenue Recovery Servs., Inc., 832 F.3d 741, 744-45 (7th Cir. 2016) (holding that a contractual penalty for failure to pay for parking in a private lot constituted a debt under the FDCPA).

By agreeing to the terms of the governing documents, the homeowners acknowledged that a failure to comply with HOA requirements could result in a fine that would be deemed and treated as an individual assessment. Thus, their obligation to pay an assessment for a claimed breach of the governing documents arose out of an underlying consumer transaction. See Brown, 119 F.3d at 923-24. Affinity and Marbella’s disregard for the broader, contractual context of the homeowners’ payment obligation—-which explicitly deems HOA fines to be assessments—conflicts with our holdings in Brown and Oppen-heim. For these reasons, we conclude that the term “debt” encompasses the homeowners’ obligation to pay a fine pursuant to the governing documents. Accordingly, the district court erred in dismissing the claims against Affinity and Marbella on the ground that the collection letters were not governed by the FCCPA.

B. Issues Specific to Marbella

The homeowners’ claims against Marbel-la arise out of Affinity’s two letters demanding payment of the fíne and Meloni’s three letters demanding payment of the fine and other fees. The district court dismissed these claims for two additional reasons, both of which we reject.

First, the district court erroneously held that because Marbella was not a “debt collector” under the FCCPA, it could not be liable for violating the statute. Although the FCCPA is modeled after the FDCPA, the two statutes are not identical in all respects. Unlike the FDCPA, the FCCPA’s proscriptions are “not limited to debt collectors.” Schauer v. Gen. Motors Acceptance Corp., 819 So.2d 809, 812 n.1 (Fla. Dist. Ct. App. 2002). Compare 15 U.S.C. § 1692e (prohibiting “[a] debt collector” from engaging in “any false, deceptive, or misleading representation or means in connection with the collection of any debt”), and id, § 1692f (prohibiting “[a] debt collector” from employing “unfair or unconscionable means to collect or attempt to collect any debt”), with Fla. Stat. § 559.72 (regulating the conduct of any “person” collecting debts). Marbella is not exempt from the FCCPA simply because it is not a statutorily defined debt collector.

Second, and relatedly, the district court held that Marbella could not be vicariously liable for the FCCPA violations of Affinity or Meloni because'such vicarious liability only extends to principals who are themselves debt collectors. We acknowledge that some courts have reached this conclusion in the context of the FDCPA. See, e.g., Wadlington v. Credit Acceptance Corp., 76 F.3d 103, 108 (6th Cir. 1996) (“We do not think it would accord with the intent of Congress, as manifested in the terms of the Act, for a company that is not a debt collector to be held vicariously liable for a collection suit filing that violates the Act only because the filing attorney is a ‘debt collector.’ ”); Bent v. Smith, Dean & Assocs., Inc., No. 3:11-cv-66-J-TEM, 2011 WL 2746847, at *3 (M.D. Fla. July 14, 2011) (holding under the FDCPA that only a debt collector can be vicariously liable for the collection practices of its debt collecting agents). But these cases rest on the observation that FDCPA liability is expressly limited to “debt collectors.” As we explained above, however, the FCCPA has no such express limitation. Thus, cases considering vicarious liability under the FDCPA are inapposite.

In any event, the question of whether Marbella can be vicariously liable for FCCPA violations of its agents, Affinity and Meloni, is one of Florida law. The district court failed to apply Florida agency law to decide this issue on summary judgment, and on appeal Marbella cites no Florida authority supporting its position. We therefore decline to decide this issue and remand for the district court to do so under Florida law in the first instance. See Original Appalachian Artworks, Inc. v. S. Diamond Assocs., Inc., 911 F.2d 1548, 1550 n.3 (11th Cir. 1990) (declining to consider a claim not first decided by the district court). Because we reverse the entry of summary judgment on substantive grounds, we do not consider the plaintiffs’ procedural arguments in support of reversal.

IV. CONCLUSION

For the foregoing reasons, the district court’s grant of summary judgment in favor of Affinity is reversed, and the district court’s grant of summary judgment in favor of Marbella is vacated. This action is remanded for further proceedings consis-tént with this opinion.

REVERSED IN PART, VACATED IN PART, AND REMANDED.

      . Under Federal Rule of Civil Procedure 54(b), the district court certified for immediate appellate review its summary judgment in Marbella's and Affinity’s favor. Still pending in the district court are the homeowners' claims against two additional defendants, the Meloni Law Firm a/k/a Edoardo Meloni, P.A. and Edoardo Meloni, Esq,, alleging violations of the FCCPA and the Fair Debt Collections Practices Act, 15 U.S.C. § 1692 etseq.

      , We derive the factual background from the evidence in the record, which we view in the light most favorable to Agrelo and Fernandez, as we must on their appeal of the grant of summary judgment in favor of Affinity and Marbella. See Schwarz v. City of Treasure Island, 544 F.3d 1201, 1211 (11th Cir. 2008).

      . Citations to “Doc.” refer to dockét entries in the district court record in this case, ,

      . Although Affinity threatened in the letter to file a lien on the homeowners’ property, the governing documents indicate that Marbella already had a continuing lien on the property to secure assessments.

      . The homeowners also sued Alexis McDonald, an employee of the Meloni Law Firm, but filed no proof of service on McDonald and failed to prosecute the case against her. She did not appear below and took no part in this appeal.

      . This provision prohibits any "person” from "[c]laim[ing], attempt[ing], or threaten[ing] to enforce a debt when such person knows that the debt is not legitimate, or assert[ing] the existence of some other legal right when such person knows that the right does not exist.” Fla. Stat. § 559.72(9).

      . This provision prohibits direct communication with a debtor who the collector knows is represented by counsel. See Fla. Stat. § 559.72(18).

      . The remaining counts alleged that Meloni violated the FDCPA in various ways through his communications with the homeowners. These claims are not before us and remain pending in the district court.

      . This provision requires a person to "provide adequate identification of herself or himself . or her or his employer or other entity whom she or he represents if requested to do so by a debtor from whom she or he is collecting or attempting to collect a consumer idebt.” Fla. Stat. § 559.72(15).

      . The Florida legislature instructed courts hearing civil actions under the FCCPA to give “due consideration and great weight ... to the interpretations of the Federal Trade Commission and the federal courts relating to the federal Fair Debt Collection Practices Act.” Fla. Stat. § 559.77(5). Because the definition of' "debt” is identical in the FDCPA and FCCPA, we look to cases involving both statutes to determine whether the HOA fine is a debt under the FCCPA. See Oppenheim, 627 F.3d at 839.

      . See Ellis v. Gen. Motors Acceptance Corp., 160 F.3d 703, 707 (11th Cir. 1998) (holding that a consumer protection statute "is remedial in nature and therefore must be construed liberally in order to best serve Congress' intent''); see also Brown v. Card Serv. Ctr., 464 F.3d 450, 453 (3d Cir. 2006) ("Because the FDCPA is a remedial statute, [courts] construe its language broadly, so as to effect its purpose.” (internal citation omitted)).

      . Affinity also argues that "Mr. Agrelo and Ms. Fernandez are not 'consumers’ vis-a-vis Affinity or Marbella.” But this argument simply duplicates the defendants’ argument that the fine is not a "debt” under the FCCPA, as "debt” and "consumer debt” have the same statutory definition. Fla. Stat. § 559.55(6). Moreover, "consumer” is separately defined as "any natural person obligated or allegedly obligated to pay any debt.” Fla. Stat. § 559.55(8). Because we hold that the HOA fine at issue is a "debt,” the homeowners are necessarily "consumers” under the statute.

      . On appeal, Marbella also argues that the fine it levied on the homeowners was permissible under Florida law. Because the district court addressed neither the merits of this issue nor its import for the case, we decline to address Marbella's argument. We also decline to consider Marbella's arguments regarding the legitimacy of the late fees and attorney’s fees because, based on its ruling that Marbella "at no point attempted to collect a consumer debt” and could not be vicariously liable for Meloni's alleged FCCPA violations, Order at 15 (Doc. 118), the district court did not decide these issues.

      . We DENY the plaintiffs' extraordinary and unsupported request to reassign this case on remand.


author: CHEN, Circuit Judge.

text:
    REG SYNTHETIC FUELS, LLC, Appellant v. NESTE OIL OYJ, Appellee
    2015-1773
    United States Court of Appeals, Federal Circuit.
    Decided: November 8, 2016

      Jean Maeie Gills, Foley & Lardner LLP, Chicago, IL, argued for appellant. Also represented by Michael Robert Houston.
    Michael J. FlibbeRT, Finnegan, Henderson, * Farabow, Garrett & Dunner, LLP, argued for appellee. Also represented by Maureen Donovan Queler, Kristi L. Mointyre.
    Before PROST, Chief Judge, TARANTO, and CHEN, Circuit Judges.
   CHEN, Circuit Judge.

This appeal arises from a petition for inter partes review filed by Neste Oil Oyj (Neste) against claims 1-5 and 8 of U.S. Patent No. 8,231,804 (’804 patent), which is owned by REG Synthetic Fuels, LLC (REG). The United States Patent and Trademark Office, Patent Trial and Appeal Board (Board) instituted trial, and in its final written decision, the Board found claims 1, 3, 4, and 8 anticipated by U.S. Patent No. 4,992,605 (Craig), and claims 1-3, 5, and 8 anticipated by U.S. Published Patent Application No. 2008/0312480 (Din-di). Neste Oil Oyj v. REG Synthetic Fuels, LLC, No. IPR2013-00578, 2015 WL 1263029, at *14, 17 (PTAB Mar. 12, 2015). During trial, both parties filed motions to exclude documentary evidence, and the Board excluded several REG exhibits based on hearsay and other grounds. REG appeals the Board’s unpatentability determinations and its exclusion of certain REG exhibits. For the reasons stated herein, we affirm-in-part, reverse-in-part, vacate-in-part, and remand for further proceedings.

Background

The ’804 patent is directed to paraffin compositions containing primarily even-carbon-number paraffins and methods of making them. Paraffins are hydrocarbon chains that contain carbon and hydrogen atoms, and even-carbon-number paraffins are saturated hydrocarbon chains with the general chemical formula (⅛⅞,+⅛ in which the “n” is an even number.

Even-carbon-number paraffins are useful as phase change materials (PCMs), which can be used as insulation in a house because they can absorb heat during the warm portions of the day by undergoing a solid-liquid phase transition and return the heat during the cooler portions of the day by re-freezing. The thermal storage capacity of PCMs is determined by their latent heat of fusion, which is higher for even-carbon-number paraffins than for odd-carbon-number paraffins. The ’804 patent seeks to increase the production of compositions with higher percentages of even-carbon-number paraffins. One method disclosed in the ’804 patent is the hydrogenation and deoxygenation of naturally occurring fatty acids and esters, such as bio-oils, to produce primarily even-carbon-number paraffins.

Claim 1 is representative for purposes of this appeal:

1. A phase change material composition comprising at least 75 wt% even carbon number paraffins, wherein the paraffins are produced by hydrogenation/hydroge-nolysis of naturally occurring fatty acids and esters.

During trial, the Board provided several claim constructions, none of which are being appealed. It first found that the preamble of claim 1 was not limiting because the term “phase change material composition” expressed only an intended use, and did not limit the scope of the claim. It also found that the process of production (i.e., producing paraffins by “hydrogenation/hy-drogenolysis of naturally occurring fatty acids and esters”) was not limiting. Because the Board found that the term “phase change material composition,” and the process of production were not limiting, and neither party challenges these constructions, we accept them. The key limitation for purposes of this appeal is the “at least 75 wt% even carbon number pa-raffins” limitation. The “wt%” limitation describes the percentage concentration, in units of weight percent, of even-carbon-number to odd-carbon-number paraffins in the claimed composition.

Claim 2 depends on claim 1, and it further recites that the composition comprises at least 80 wt% even-carbon-number paraf-fins. Claims 3-5 depend on claim 1, and they recite specific numbers of carbons. Claim 8 depends on claim 1 and recites the presence of a catalyst.

Neste requested inter partes review of claims 1-5 and 8 of the ’804 patent in September 2013. The Board instituted trial in March 2014, based on a reasonable likelihood of finding that Dindi and Craig anticipated the claims.

In its final decision, the Board found that Craig anticipated claims 1, 3, 4, and 8 because Craig disclosed a process for producing hydrocarbon products in the diesel boiling range (C16H32 through C18H88) that are effective in improving diesel fuel ignition. Craig disclosed hydrocarbon products obtained from naturally occurring feed-stocks, and the results of a gas chromatography mass spectrometry (GC-MS) analysis of the products, shown as peak area percentages for each hydrocarbon. Although Craig did not disclose weight percentages, the Board found that Craig anticipated claims 1, 3, 4, and 8 because a person of ordinary skill in the art could readily convert the disclosed peak area percentages into their corresponding weight percentages, and the sum of the converted peak area percentages of Craig met the claim requirement that the overall weight percentage of even-earbon-number paraffins be at least 75 wt%.

The Board also found that Dindi anticipated claims 1-3, 5, and 8 because Dindi described a process for converting renewable resources, such as vegetable oil and animal fat, into paraffins, in which a renewable resource is processed using hydrogen and a molybdenum catalyst to produce a hydrocarbon product with a ratio of even-carbon-numbered to odd-carbon-numbered hydrocarbons of at least 2:1. At trial, REG sought to introduce certain exhibits to establish an earlier invention date that predated Dindi’s filing date. These exhibits included, for example, test data from third parties, communications between REG’s inventor, Mr. Abhari, and third parties on the invention and the test data, and minutes from meetings that Mr. Abhari had attended. Neste moved to exclude, and the Board agreed to exclude, these REG exhibits based on lack of authentication, hearsay, or improper reply evidence. REG contends that these exhibits show the mental thoughts of Mr. Abhari and that he communicated his invention to third parties prior to Dindi’s filing date.

The Board issued its final written decision on March 12, 2015, finding that Neste established by a preponderance of evidence that Craig and Dindi anticipated all of the challenged claims. On appeal, REG challenges the Board’s anticipation findings, and its rulings on REG’s excluded exhibits. REG argues that Craig cannot anticipate claims 1, 3, 4, and 8 because Craig discloses area percentages rather than weight percentages, and that Dindi cannot anticipate claims 1-3, 5, and 8 because Mr. Abhari invented the subject matter of the ’804 patent before Dindi’s filing date. REG also argues that the Board’s exclusion of its exhibits was prejudicial because REG relied on them to show that Mr. Abhari recognized and communicated his conception of the invention to a third party before Dindi’s June 13, 2008 filing date.

Analysis

We have jurisdiction over this appeal under 28 U.S.C. § 1295(a).

I. Standard of Review

Anticipation is a question of fact, and decisions from the Board on factual matters are reviewed for substantial evidence. Eli Lilly & Co. v. Bd. of Regents of Univ. of Wash., 334 F.3d 1264, 1267 (Fed. Cir. 2003).

“Priority of invention and its constituent issues of conception and reduction to practice are questions of law predicated on subsidiary'factual findings.” Singh v. Brake, 317 F.3d 1334, 1340 (Fed. Cir. 2003). Thus, we “review de novo the Board’s legal conclusions with respect to priority, conception, and reduction to practice.” Id. To show prior invention, REG must “either prove (1) a conception and reduction to practice before the filing date of [Dindi] or (2) a conception before the filing date of [Dindi] combined with diligence and reduction to practice after that date.” Taurus IP, LLC v. DaimlerChrysler Corp., 726 F.3d 1306, 1323 (Fed. Cir. 2013). In appeals from the Board, corroboration is a subsidiary factual issue reviewed for substantial evidence. In re Gartside, 203 F.3d 1305, 1315 (Fed. Cir. 2000).

We review the Board’s evidentiary rulings for abuse of discretion. Chen v. Bouchard, 347 F.3d 1299, 1307 (Fed. Cir. 2003).

II. Anticipation by Craig

We begin with REG’s argument that Craig does not anticipate claims 1, 3, 4, and 8 of the ’804 patent because Craig discloses area percentages rather than weight percentages.

The Board determined that Table 9 of Craig discloses naturally occurring feed-stocks, including canola oil, rapeseed oil, ánd palm oil, and the hydrocarbon products produced from each of these feed-stocks. Table 9 shows the results of a GC-MS analysis of the hydrocarbon products produced by Craig, shown in peak area percentages for each hydrocarbon, e.g., C1Q

Table 9 discloses, for example, that hy-drotreating “Canola Oil, Premium Quantity, 210-343 °C cut” results in a hydrocarbon product with peak area percentages of 3.1% (⅛, 78.28% C18 and 1.38% C20. The Board noted that the GC-MS area percentages do not by themselves establish, by a preponderance of evidence, weight percentages within the claimed ranges of the ’804 patent. The Board agreed, however, with Neste’s expert (Dr. Klein) that a person of ordinary skill in the art could use relative response factors to convert GC-MS area percentages into weight percentages.

REG argued to the- Board that Craig does not provide enough information to accurately convert the GC-MS peak area percentages to weight percentages using relative response factors, but the Board disagreed. The Board found that Dr. Klein’s Table 2 illustrated that Craig’s Table 9 disclosed products containing even-carbon-number paraffins sufficiently within the weight percentage range of 75 wt% recited in claim 1 of the ’804 patent.

Table 2

Craig Area % Hsu Gorocs Chaurasia

Canola Premium 82.76% 82.31 wt.% 82.57 wt.% 82.32 wt.%

Canola Sample Seed 77.97% 77.48wt.% 77.77 wt.% 77.50wt.%

Canola Green Seed 68.29% 67.63 wt.% 68.09 wt.% 67.54 wt.%

Rapeseed Oil 210-343 °C cut 70.75% 68.86 wt.% 69.87 wt.% 68.70 wt.%

Rapeseed Oil 343 °C + cut 81.86% 80.03 wt.% 81.14 wt.% 80.17 wt.%

Sunflower Oil 79.42% 78.49wt.% 78.91 wt.% 78.19 wt.%

Palm Oil 72.5% 71.75 wt.% 72.11 wt.% 71.58 wt.%

Fatty Acid Fraction 67.12% 65.78 wt.% 66.45 wt.% 65.54 wt.%

Table 2 shows Dr. Klein’s calculation of the weight percentages for various feed-stocks from Craig’s Table 9, using three sets of relative response factors, which Dr. Klein obtained from the prior art references in the record (Hsu, Gorocs, and Chaurasia). J.A. 1316. The Board found that the lowest calculated weight for Canola Premium, for instance, was 82.31 wt%, which was more than 7% higher than the 75 wt% recited in claim 1 of the ’804 patent. Although Dr. Klein calculated different weight percentages when he used each of the three relative response factors, the differences in calculated wt% values among the uses of the three relative response factors were very small, as shown in Table 2. Thus, the Board found it unlikely that any correction required by the experimental conditions would result in a weight percentage of less than the 75 wt% recited in claim l.

REG argues that the Board used an erroneous inherency standard because the Board found it unlikely that Craig did not disclose the claimed limitations of “weight percentages.” REG believes that the Board relied on Dr. Klein’s testimony to “fill the gap” in Craig by estimating weight percentages using the area percentages of Craig, and in REG’s view, this conversion is not so straightforward. REG points to evidence that converting weight and area percentages requires calibration of the instrument to account for actual instrument operating conditions. Dr. Klein did not perform this calibration, and instead used several different estimates to suggest precision. REG contends that precision does not mean accuracy, absent calibration.

Neste responds that the Board did not use inherency because Craig expressly discloses the concentration of even-carbon-number paraffins in area percentages. Neste argues that substantial evidence supports the Board’s finding that a person of ordinary skill could readily convert Craig’s area percentages to the weight percentages recited in the claims using Dr. Klein’s calculations.

We agree with Neste. Dr. Klein converted the area percentages of Craig into the weight percentages recited in the ’804 patent using several different relative response factors from the prior art, including Górocs and Chaura’sia, which REG’s own expert, Dr. Lamb, cited in his expert declaration. J.A. 2895-98. Dr.' Lamb agreed that relative response factors could be used to convert area percentages to weight percentages, and that Górocs and Chaura-sia disclosed that response factors increase linearly with carbon number, but he concluded that Craig did not provide any calibration data or other indicia of reliability. J.A.2897-98. This is not an inherency issue, however,-because the challenged limitation is not missing from Craig. See Cont’l Can Co. USA v. Monsanto Co., 948 F.2d 1264, 1268 (Fed. Cir. 1991) (“To serve as an anticipation when the reference is silent about the asserted inherent characteristic, such gap in the reference may be filled with recourse to extrinsic evidence.”). Craig is not silent as to the concentration of even-carbon-number paraffins because it expressly discloses this concentration in area percentage. Dr, Klein simply converted one unit of measurement (area percent) into another unit of measurement (weight percent) by using relative response factors from the prior art. Dr. Klein explained that this conversion was a reliable technique given the very similar weight percentage results after using three different sets of relative response factors. J.A. 1309-17. On this record, substantial evidence supports the Board’s factual finding that the area percent disclosed in Craig could be reliably translated to the weight percent recited in the ’804 patent.

REG argues that Chaurasia discloses an average error of 3-5% with a range of +/- 20% of the observed values. This error range, however, does not arise from Chau-rasia’s own analysis, but it is Chaurasia’s description of an error range from a separate study by Fitch and Sauter, i.e., it is a reference within a reference. Fitch and Sauter itself is not part of the record. Furthermore, the Fitch and Sauter error range applies to the calculation of the atomic or molecular cross-section of a specific molecule, not the percentage concentration of even-to-odd carbon number pa-raffins in a mixture of paraffins. Another distinction is that Fitch and Sauter’s error range applies to polycyclic aromatic hydrocarbons and polychlorinated biphenyl products (i.e., they contain chlorine, phe-nyl, and other pollutants), which are more complex molecules than the even-carbon-number paraffins (i.e., linear straight chain alkanes containing only carbons and hy-drogens) at issue ^in this case. Thus, REG fails to establish that the error range of Fitch and Sauter is applicable to Dr. Klein’s calculations.

In view of the foregoing, we affirm the Board’s finding that Craig anticipates claims 1, 3, 4 and 8 of the ’804 patent.

III. Anticipation by Dindi

Because claims 2 and 5 of the ’804 patent remain at issue, we must still address REG’s arguments with respect to anticipation of claims 2 and 5 by Dindi. Claim 2 depends on claim 1, and recites that the composition comprises at least 80 wt% even-carbon-number paraffins. Claim 5 depends on claim 1, and it recites that the even-carbon-number paraffins include n-dodecane and n-tetradecane.

REG argued before the Board that Din-di was not prior art to the ’804 patent because Mr. Abhari invented the subject matter of the ’804 patent before the June 13, 2008 filing date of Dindi. The Board recognized that to antedate Dindi, REG had to “prove (1) a conception and reduction to practice, before the filing date of [Dindi] or (2) a conception before the filing date of [Dindi] combined with diligence and reduction to practice after that date.” Taurus IP, 726 F.3d at 1323. In either case, REG had to prove conception prior to the June 13, 2008 filing date of Dindi, Id.

Conception is “the formation, in the mind of the inventor of a definite and permanent idea of the complete and operative invention, as it is thereafter to be applied in practice.” Coleman v. Dines, 754 F.2d 353, 359 (Fed. Cir. 1985) (emphasis in original) (quoting Gunter v. Stream, 573 F.2d 77, 80 (C.C.P.A, 1978)). Conception must include every feature or limitation of the claimed invention. Davis v. Reddy, 620 F.2d 885, 889 (C.C.P.A. 1980). “Conception must be proved by corroborating evidence which shows that the inventor- disclosed to others his ‘completed thought expressed in such clear terms as to enable those skilled in the art’ to make the invention.” Coleman, 754 F.2d at 359 (quoting Field v. Knowles, 183 F.2d 593, 600 (C.C.P.A. 1950)). However, “there is no final single formula that must be followed in proving corroboration.” Kridl v. McCormick, 105 F.3d 1446, 1450 (Fed. Cir. 1997) (quoting Berry v. Webb, 412 F.2d 261, 266 (C.C.P.A. 1969)).

We agree with REG that it has proven conception prior to the filing date of Dindi, based on Exhibits 2011 and 2058, both already admitted in evidence, and the content of Exhibit 2061, which the Board incorrectly excluded from evidence based on hearsay. These three exhibits provide documentary evidence that, by April 2008, Mr. Abhari conceived of a definite and permanent idea of the complete and operative invention, and that he had disclosed to a third party his complete thoughts in such clear terms that the third party was able to make his invention using his process.

We first review the documentary evidence already admitted in evidence. Exhibit 2011 contains an email dated October 19, 2007 from Mr. Abhari to SwRI, a third party, with an objective to “[c]onvert 1,200 gallons of biofeedstock to synthetic diesel product using SwRI’s large (2 gal/h) fixed-bed hydrogenation unit.” J.A. 2722. This email discloses a process for making the invention because it contains instructions for the reaction conditions and for conducting the sampling and analysis. Exhibit 2011 broadly describes Mr. Abhari’s process as a way to produce synthetic diesel product, which is sufficient to show that Mr. Abhari disclosed his completed thought to SwRI in such clear terms as to enable SwRI to make the invention. See Coleman, 754 F.2d at 359. We agree, however, that Exhibit 2011 is not sufficient by itself to show conception because it does not show that Mr. Abhari knew that his process would create at least 75 wt% even-carbon-number paraffins.

We turn next to Exhibit 2058, also admitted in evidence, which contains an email dated April 2, 2008 from SwRI back to Mr. Abhari, describing the results of the latest test runs. SwRI’s email expressly identifies one of the test runs as Sample “084.” The GC data for Sample “084” contains both a graph and a table showing peak results with the following area percentages: 0M (1.218%), Cl6 (21.926%), C18 (56.778%), and C20 (0.871%). J.A. 8454. The sum of the area percentages for these four even-carbon-number paraffins is 80.788%. Mr. Abhari quickly replied to SwRI by email, inquiring about the results of a second sample. J.A. 3443. SwRI responded that same day, writing that the second sample contained area percentages of C16 (22%), ⅞ (11%), and C18 (55%).

Taken together, Exhibits 2011 and 2058 disclose all the limitations of claims 1 and 2 because Exhibit 2058 discloses a diesel product composition that contained at least 80 wt% even-carbon-number paraf-fins. Exhibit 2011 shows that SwRI created the claimed composition using a “hydrogenation” process of naturally occurring fatty acids and esters, as recited by claim I, because Mr. Abhari sent an email to SwRI stating that the objective was to convert “biofeedstock” to “diesel fuel,” using SwRI’s “fixed-bed hydrogenation unit.” J,A. 2722. Mr. Abhari knew that SwRI had created the composition because he responded to SwRI’s email describing the results. He disclosed his invention to others because Exhibit 2058 shows that SwRI made the composition using Mr. Abhari’s instructions from Exhibit 2011.

Neste argues that nothing in Exhibits 2011 and 2058 discloses the process that Mr. Abhari attempted to test. This is incorrect because Exhibit 2011 shows that in October 2007, Mr. Abhari emailed SwRI a description of a process, and Exhibit 2058 shows that in April 2008, SwRI emailed Mr. Abhari the results of that process. Neste provides no reason to suggest that SwRI would not have followed Mr. Abhari’s express instructions.

Neste also asserts that nothing in Exhibits 2011 and 2058 shows that Mr. Abhari knew that the sum of the weight percentages of the even-carbon-number paraffins met claim 2⅛ limitation of “at least 80 wt%.” The sum of the four percentages for C14 (1.218%), C16 (21.926%), C18 (56.773%), and C20 (0.871%) is more than 80%, but it is true that nothing from Mr, Abhari in Exhibits 2011 and 2058 expressly stated that the percentages of even-carbon-number paraffins should be summed up or that the sum of these percentages met claim 2’s limitation’ of “at least 80 wt%.” This “knowledge” of Mr. Abhari is supplied by Exhibit 2061, which contains an email dated April 29, 2008 from Mr, Abhari to Microtek, another third party who specialized in PCM materials, stating that he could achieve an 80% purity C18 product.

Exhibit 2061 is a set of two emails' between Mr. Abhari and Microtek. The first email is from Dawn Mantz of Microtek to Mr. Abhari on March 6, 2008, in which Ms. Mantz thanks Mr. Abhari for sending a sample and informs Mr. Abhari that Mi-crotek had already begun its preliminary testing on the sample in the lab. The second email is from Mr. Abhari to Amy Damewood and Ms. Mantz on April 29, 2008, in which Mr. Abhari informs Ms. Damewood and Ms. Mantz that he has “had more difficulty than [he] expected trying to recover a 90 + % purity nC18 product using [his] lab distillation glassware (80% purity ⅞ is the best [they] got).” J.A. 7868. Neste argued before the Board that these emails were hearsay because they contain out of court statements by Ms. Mantz. REG responded that these emails were not hearsay, because it did not offer the emails to prove the truth of the matter asserted. Rather, REG contended that it offered the emails to show that Mr. Abhari recognized the usefulness of high even-carbon-number paraffins as a PGM material and that he would not have otherwise contacted Microtek. The Board agreed with REG, in part, finding that the fact that Mr. Abhari contacted Microtek was a non-hearsay use of Exhibit 2061, and the Board admitted Exhibit 2061 for that limited purpose. The Board did not consider the content of Exhibit 2061, which it found to be hearsay.

We find that the Board erred to the extent that it excluded the content of Exhibit 2061 based on hearsay because REG offered Exhibit 2061 for the non-hearsay purpose to show that Mr. Abhari thought he had achieved 80 wt% purity C18 product. The act of writing and sending the email is, by itself, probative evidence on whether Mr. Abhari recognized—at the time that he had written the email—that the sum of the weight percentages of even-carbon-number paraffins in his compositions was at least 80 wt% and communicated this to a third party. In Knorr v. Pearson, 671 F.2d 1368, 1372-73 (C.C.P.A. 1982), the U.S. Court of Customs and Patent Appeals found that a statement was not hearsay if “the communication (as opposed to the truth) ha[d] legal significance.” Knorr involved a telephone call, in which two co-inventors, Buergin and Pearson, discussed an invention, and which was overheard by a third party, Rutkowski. Id. at 1370. The court held that Rutkowski’s testimony on what he heard Buergin say to Pearson was not hearsay because the communication of the idea had legal significance as the basis for the conception of the invention. Id. at 1373-74. By contrast, Rut-kowski’s testimony on “Buergin’s statements to Rutkowski regarding what Pearson said” was hearsay. Id. at 1373.

Here, Knorr supports REG’s position that Mr. Abhari’s communication with Mi-crotek in Exhibit 2061 is legally significant because it shows that Mr. Abhari communicated the conception of his invention to a third party, Microtek. Thus, the documentary evidence contained in Exhibits 2011, 2068, and 2061 corroborate Mr. Abhari’s conception of the claimed compositions as of April 2008. Exhibit 2011 shows that Mr. Abhari disclosed his process to a third party. Exhibit 2068 shows that the third party produced the claimed compositions using this process, and Exhibit 2061 shows that Mr. Abhari recognized and communicated to a third party that he could create a composition with the claimed property of at least 80 wt% even-carbon-number paraf-fins.

The Board also found that it could not determine from Exhibit 2061 the specific product or process that Mr. Abhari had in mind, or the fact that Mr. Abhari had recognized that he had created something new, when he had emailed Microtek that he could achieve at least 80 wt% purity C18 product. Conception, however, does not require that Mr. Abhari recognize that he created a PCM material, or the specific process by which he had created 80 wt% purity C18 product, because the Board’s construction of the claims did not limit the invention based on these features. The only feature at issue here is whether Mr. Abhari disclosed a composition containing at least 80 wt% even-carbon-number paraf-fins to others, and we find that he did. Mr. Abhari’s email to Microtek expressly states that he could achieve at least 80% purity Cig product, which was new in April 2008 because this product did not exist in the prior art, given the record before us. Nor does Neste dispute that Mr. Abhari sent this email to Microtek because the Board admitted Exhibit 2061 to show that Mr. Abhari contacted Microtek, which Neste does not appeal.

We reverse the Board’s findings on conception and its exclusion of the contents of Exhibit 2061 based on hearsay. We find that Exhibit 2061 shows that Mr. Abhari “disclosed to others,” see Coleman, 754 F.2d at 359, a composition including every feature or limitation of the claimed invention, see Davis, 620 F.2d at 889. We also find that, based on Exhibits 2011, 2058, and 2061, Mr. Abhari’s disclosure was a ‘“completed thought expressed in such clear terms as to enable those skilled in the art’ to make the invention.” Coleman, 754 F.2d at 359. However, because the Board did not make factual findings on diligence or reduction to practice in the first instance, we remand for the Board to make these findings.

REG also appeals the Board’s exclusion of Exhibits 2012, 2013, 2057 and 2062 based on hearsay. We do not address these rulings because we find that Exhibits 2011, 2058 and 2061 are sufficient to show conception, but because Exhibits 2012, 2013, 2057 and 2062 may be relevant for diligence and reduction to practice, we vacate the Board’s exclusion of these exhibits and remand for further consideration consistent with this opinion.

We have considered REG’s remaining arguments and find no abuse of discretion in the Board’s decision to exclude Exhibits 2003 and 2006 for lack of authentication. We also find no abuse of discretion in its exclusion of Exhibit 2053 for improper reply evidence. Our affirmance of those exclusions should not be taken as necessarily approving of all of the Board’s reasoning explaining the exclusions.

Conolusion

For the foregoing reasons, we affirm the Board’s determination that Craig anticipates claims 1, 3, 4 and 8 of the ’804 patent. However, we reverse the Board’s finding that REG failed to establish conception of the invention prior to Dindi’s filing date of June 13, 2008. Consequently, we vacate the Board’s finding of anticipation of claims 2 and 5, and we remand for further fact finding on diligence and reduction to practice.

We reverse the Board’s determination to exclude Exhibit 2061 for failure to consider its non-hearsay purpose. We vacate the Board’s exclusion of Exhibits 2012, 2013, 2057 and 2062 for hearsay, and we affirm the Board’s exclusion of Exhibits 2003, 2006 and 2053 based on lack of authentication and improper reply evidence.

AFFIRMED-IN-PART, REVERSED-IN-PART, VACATED-IN-PART, AND REMANDED

Costs

No costs.

      . The parties use Cn or Cn as a shorthand for CnH2n+2- These notations refer to the same hydrocarbon chain.

      . This ratio of at least 2:1 appears to be less than 75%, but the parties do not dispute that Dindi meets the at least 75 wt% (and the at least 80 wt%) limitation for purposes of this appeal.

      . "Congress amended 35 U.S.C. § 102 in 2011 as part of the America Invents Act (‘AIA')." Medicines Co. v. Hospira, Inc., 827 F.3d 1363, 1372 n.1 (Fed. Cir. 2016) (en banc) (citing Leahy-Smith America Invents Act, 125 Stat. 84, 341 (2011)). "References to § 102 ... in this opinion refer to the pre-AIA version of the statute, the version that applies here” because the claims at issue have an effective filing date prior to March 16, 2013. Id.

      . The Board found that Dr. Klein’s calculated values were too close to claim 2’s limitation of at least 80 wt% to conclude that Neste established, by a preponderance of the evidence, that Table 9 discloses compounds within the scope of claim 2. Neste does not appeal this finding.

      . At oral argument, REG agreed that its argument to predate the Dindi reference relied on exhibits that show area percents rather than weight percents. REG concluded, however, that the essential distinction was that Craig used a GC-MS detector, whereas Mr. Abhari used a gas chromatography analyzer with flame ionization detector (GC-FID). REG’.s expert Dr. Lamb testified that unlike for a GC-MS detector, a paraffin’s weight percent can be reliably calculated from the GC-FID area percent and the relative response factor for that paraffin because GC-FID response factors for paraffins in the C14-C22 range are equivalent within =1%. J.A. 2895-98. Neste responded that per Dr. Klein’s testimony, a person of ordinary skill in the art would have readily recognized that quantitative data from a GC-MS detector could be reliably converted to weight percentages using the relative response factors, and weight percentages were all that the claims- required. J.A. 1309-17.

      . As noted earlier, the Board’s construction of . claim 1 does not require the claimed composition to be a PCM material, nor does it require the compositions to be made by any particular process.

      . Although Exhibit 2058 discloses area percentages rather than weight percentages, Neste does not argue that Exhibit 2058 is ineffective for that reason.

      . Exhibit 2061 also discloses percentages rather than weight percentages, but Neste does not argue that Exhibit 2061 is ineffective for that reason.

      . Neste did not challenge the authentication of Exhibit 2061, J.A. 546, 552, so we infer that Exhibit 2061 accurately shows the communications between Mr. Abhari and Microtek in March and April, 2008.