author: SILBERMAN, Chief Judge. BLACK, J.,

text:
    Jamie Allen HYDEN, Appellant, v. STATE of Florida, Appellee.
    No. 2D10-1184.
    District Court of Appeal of Florida, Second District.
    Aug. 24, 2011.
    James Marion Moorman, Public Defender, and Richard J. Sanders, Assistant Public Defender, Bartow, for Appellant.
    Pamela Jo Bondi, Attorney General, Tallahassee, and Ronald Napolitano, Assistant Attorney General, Tampa, for Appellee.
   SILBERMAN, Chief Judge.

Jamie Allen Hyden seeks review of his judgment and sentence for felony DUI as a fourth-time offender. He argues that the trial court erred in denying his motion to dismiss because he did not have the three qualifying misdemeanor convictions necessary for the felony offense. We agree and reverse.

Section 316.193(2)(b)(3), Florida Statutes (2008), provides that a fourth conviction for a DUI misdemeanor constitutes a third-degree felony. However, the State is precluded from using prior misdemeanor DUI convictions to support a felony DUI conviction under this provision if (1) the prior convictions were uncounseled, (2) the defendant was indigent and entitled to court-appointed counsel, (3) the defendant did not waive the right to counsel, and (4) the convictions were punishable by imprisonment. State v. Kelly, 999 So.2d 1029, 1053 (Fla.2008). The defendant bears the initial burden of making these allegations under oath. Then the burden shifts to the State to present evidence to the contrary. Id.

In this case, the State charged Hyden with a felony DUI using three prior misdemeanor DUI convictions from 1983, 1985, and 1997 to support the charge. Hyden, through counsel, filed a motion to dismiss and supporting affidavit. He argued that his 1983 conviction was not sufficient to support the felony charge under Kelly because it was uncounseled. He asserted that although he was indigent at the time he entered his plea, he was not offered counsel and did not waive his right to counsel. The motion and affidavit were not notarized but contained the following oath signed by Hyden: ‘‘Under penalties of perjury, I declare that I have read the foregoing and that the facts stated in it are true.”

At the hearing on Hyden’s motion to dismiss, the trial court briefly raised the issue of whether Hyden met his initial burden of making the allegations under oath because his motion and affidavit were not notarized. The court addressed defense counsel, stating, “I have a written statement by the defendant, but it’s not sworn. I mean, it is under oath, but it is not actually under oath. There is no notary. In fact, I’m not even sure your — that motion qualifies as under oath.” Neither defense counsel nor the State took up the issue. The court moved on to address the question of whether the evidence presented by the State rebutted Hyden’s allegations.

Because the court records of Hyden’s 1983 misdemeanor conviction had been destroyed, the only evidence the State could produce was a document from its own file entitled “Plea of Not Guilty and Request for Trial.” The form was dated June 14, 1983, and the box marked “[w]aive my right to a lawyer” was checked. Hyden had signed the document. The date on the form was six weeks before July 27, 1983, the date on which Hyden changed his plea and was convicted.

The trial court determined that the June 14 form was sufficient to establish that Hyden waived his right to counsel for his 1983 conviction. On that basis, the court denied Hyden’s motion to dismiss. On appeal, Hyden argues that this form was not properly admitted in evidence and is not sufficient to establish that he waived his right to counsel when he changed his plea. The State argues that Hyden’s motion to dismiss and affidavit were facially insufficient because they were not notarized. The State alternatively argues that the plea form was admissible in evidence and that the plea form establishes that Hyden waived his right to counsel when he changed his plea.

Preliminarily, we address the State’s argument that Hyden’s motion to dismiss and affidavit were facially insufficient. The law on the oath requirement for a motion to dismiss and accompanying affidavit under Kelly is not settled. Section 92.525(1), Florida Statutes (2009), provides that any document that must be verified by a person may be verified in one of two ways. Subsection (1)(a) allows for verification under oath or affirmation as set forth in section 92.50(1). Subsection (l)(b) allows for verification by signing the following written declaration as set forth in subsection (2): “ ‘Under penalties of perjury, I declare that I have read the foregoing [document] and that the facts stated in it are true.’ ” The verification requirement “means that the document must be signed or executed by a person and that the person must state under oath or affirm that the facts or matters stated or recited in the document are true, or words of that import or effect.” § 92.525(4)(c).

In this case, Hyden used the oath set forth in section 92.525(2) to verify his motion to dismiss and affidavit. The question is whether this oath is sufficient, without a notarization, to satisfy the oath requirement mentioned but not elaborated upon in Kelly. The Florida Supreme Court has determined that the oath set forth in section 92.525(2) is sufficient to satisfy the oath requirement in postconviction motions. See State v. Shearer, 628 So.2d 1102, 1103 (Fla.1993). The court reasoned that this particular oath provides the same protection against perjury as a notarized oath. The court also amended its form for postconviction motions to reflect that this unnotarized oath may be used. See id. at 1103-04 (amending Florida Rule of Criminal Procedure 3.987).

Since Shearer, several courts have determined that the oath in section 92.525(2) is sufficient to meet the oath requirement for other documents. See, e.g., J.S.L. Constr. Co. v. Levy, 994 So.2d 394, 399 (Fla. 3d DCA 2008) (statement of account by a contractor); Green v. State, 941 So.2d 1250, 1250 (Fla. 5th DCA 2006) (petition for belated appeal); Goines v. State, 691 So.2d 593, 593 (Fla. 1st DCA 1997) (affidavit of violation of probation). However, there are decisions refusing to find the oath in section 92.525(2) sufficient to meet the same or similar oath requirements. See, e.g., Crain v. State, 914 So.2d 1015, 1018-21 (Fla. 5th DCA 2005) (arrest affidavit); Jackson v. State, 881 So.2d 666, 668 (Fla. 5th DCA 2004) (affidavit of violation of probation).

There are persuasive arguments for following both lines of cases, depending upon the factual circumstances surrounding the particular oath requirement. We do not reach the issue today because the State did not pursue the issue below and the trial court reached the merits of Hyden’s motion to dismiss.

We recognize that the trial court did briefly raise the issue of the sufficiency of the oath at the hearing on Hyden’s motion to dismiss. But the court apparently satisfied itself that Hyden’s motion and affidavit were sufficient because it shifted the burden to the State to address whether it could successfully rebut the allegations in Hyden’s motion and affidavit. The State waived any technical noncompliance of the motion and affidavit when it declined to address the court’s concerns about the oath and moved forward to the presentation of its evidence on the merits of Hyden’s motion. See Hudson v. State, 745 So.2d 997, 999 (Fla. 2d DCA 1999).

We next turn to the argument regarding the 1983 plea form. We conclude that the plea form did not establish that Hyden waived his right to counsel at the time of his 1983 conviction. This finding renders Hyden’s challenge to the plea form’s admissibility moot.

In his motion to dismiss and affidavit, Hyden asserted that he was convicted of the 1983 charge pursuant to a plea that was entered without his having been offered and appointed a lawyer. Hyden also asserted that he did not waive his right to a lawyer. The trial court found that the plea form refuted Hyden’s claim that he never waived his right to counsel. But Hyden did not claim that he “never” waived his right to counsel; he claimed that he was convicted after entering his plea without being offered counsel.

While the June 14, 1983, form provides evidence that Hyden waived his right to counsel when he entered his not guilty plea, it does not establish that he waived his right to counsel when he changed his plea six weeks later. The court must offer an indigent defendant counsel “at each crucial stage of the proceedings,” and this right is triggered when the accused is charged with a crime. Traylor v. State, 596 So.2d 957, 968 (Fla. 1992). While a defendant may waive his right to counsel at any stage of the proceedings, the waiver is only valid at that stage and the court must renew the offer of counsel at each crucial stage as long as the defendant is unrepresented. Id. The entry of a plea is a “crucial stage” of the proceedings. Brown v. State, 830 So.2d 203, 205 (Fla. 5th DCA 2002).

Here, the State did not present any evidence, such as a copy of Hyden’s change-of-plea form or the transcript of his plea colloquy, to establish that Hyden was offered and waived counsel at the time he changed his plea from not guilty. Without such evidence, the State cannot refute the allegations in Hyden’s motion to dismiss. See Kelly, 999 So.2d at 1037 (holding that, if the defendant meets his initial burden of proof, “the State cannot then point to a silent record to claim that a purely hypothetical plea colloquy cured any error surrounding the waiver issue”).

Because the State failed to meet its burden of proving the three qualifying felony convictions necessary for a felony DUI, we reverse and remand for entry of the appropriate misdemeanor conviction and sentence. We note that while Hyden’s 1983 conviction may not be used to qualify the fourth DUI as a felony offense, it may be used to support enhanced penalties and fines short of incarceration for the misdemeanor DUI. See id. at 1052.

Reversed and remanded.

DAVIS, J., Concurs.

BLACK, J., Concurs specially with opinion.

BLACK, J.,

Specially concurring.

Because of the recent Florida Supreme Court opinion in State v. Kelly, 999 So.2d 1029 (Fla.2008), I agree that Mr. Hyden’s felony DUI conviction as a fourth-time offender must be reversed. However, I write separately to express my support of Justice Wells’ dissenting opinion in Kelly, which I believe expresses a better-reasoned analysis. I also write to discuss how this case highlights the practical and, in my view, unfortunate implications of the Kelly majority opinion, which I believe are at odds with Florida’s legislative scheme for punishing DUI offenders.

It is undisputed that Mr. Hyden has four DUI convictions. In addition to the most recent conviction, Mr. Hyden was convicted of DUI on August 21,1997; July 1, 1985; and July 27, 1983. Mr. Hyden has raised no issue with either the 1985 or the 1997 convictions.

The plain language of section 316.193(2)(b)(3), Florida Statutes (2008), provides that any person who is convicted of a fourth or subsequent DUI, regardless of the dates of the prior convictions, commits a felony of the third degree. Thus, the clear language of the statute contemplates that the State is authorized to use what might be considered “old” DUI convictions as predicate offenses to enhance a fourth DUI to a felony.

Until the Kelly case was decided in 2008, Mr. Hyden would have been justifiably convicted of a third-degree felony and appropriately sentenced to five years in prison based upon his four DUI convictions. Before Kelly, the outcome in this case would have been controlled by the Florida Supreme Court’s opinion in Hlad v. State, 585 So.2d 928 (Fla.1991). Based almost entirely on United States Supreme Court precedent, Justice Grimes’ Hlad opinion held that the State may use a criminal defendant’s prior uncounseled misdemean- or DUI conviction as an enhancement where the uncounseled misdemeanor led to no actual imprisonment and was not punishable by more than six months’ imprisonment. Mr. Hyden’s 1983 conviction met these criteria. See § 316.193, Fla. Stat. (1983).

Indeed, Mr. Hyden does not dispute the validity of the 1983 conviction and had not done so for the twenty-six years before his current charges. His only argument now is that because the conviction was “uncounseled,” it cannot be used as a predicate offense to enhance the current conviction to a felony. Before Kelly was decided, there would have been no basis for a challenge.

Contrary to the majority opinion and the methodology used in Hlad, the Kelly majority expanded the right to counsel in article I, section 16 of the Florida Constitution and Florida Rule of Criminal Procedure 3.111 and ruled that an uncounseled plea to an offense which subjected a defendant to the mere possibility of incarceration could not be used as a predicate offense for felony enhancement, regardless of the fact that there had been no actual imprisonment. 999 So.2d at 1051. In so ruling, the Kelly court rejected the United States Supreme Court’s opinion in Nichols v. United States, 511 U.S. 738, 114 S.Ct. 1921, 128 L.Ed.2d 745 (1994), and also departed from its previous practice of following United States Supreme Court precedent in right to counsel cases. 999 So.2d at 1058 (Wells, J., dissenting).

The Kelly majority stressed the fact that the three prior misdemeanor DUIs are considered an element of a felony DUI and that the State has the burden of proving the convictions beyond a reasonable doubt. 999 So.2d at 1038 n. 7. As a result, the Kelly court reasoned that a defendant has the right to challenge the validity of the conviction by asserting that he did not validly waive the right to counsel in a prior misdemeanor DUI. Id. While the logic of the Kelly majority is sound with regard to a defendant’s right to challenge elements of an offense, the practical problems created by allowing defendants to challenge prior convictions within the prosecution of current charges are highlighted by the case sub judice.

Because the rules of judicial administration only require misdemeanor records to be kept for five years, the State will often be unable to prove that DUI pleas extending further back than five years were counseled. See Fla. R. Jud. Admin. 2.430(c)(1)(c). By contrast, the felony DUI enhancement statute places no time limit on the use of prior DUI convictions. See § 316.193(2)(b)(3), Fla. Stat. (2008). Thus, the practical application of the Kelly opinion significantly impedes the clear legislative intent to treat a fourth DUI as a felony without time restrictions on the use of prior convictions.

In addition, the Kelly decision potentially prohibits the use of DUI convictions from other states to prove the elements of felony DUI. The use of previous convictions for DUI from other states is expressly permitted in section 316.193; however, if the state of origin does not afford defendants the same right to counsel, or if the prosecution cannot provide greater evidence than the conviction itself to support a counseled misdemeanor conviction, the elements of felony DUI may not be met.

Aside from the practical application of the Kelly opinion in terms of the State’s burden, recent case law indicates that Mr. Hyden would be foreclosed from attacking his conviction in the postconviction context. See Solano v. State, 32 So.3d 648, 650 (Fla. 1st DCA 2010). Therefore, not only is Mr. Hyden barred from directly attacking his 1983 conviction some twenty-six years later, but assuming arguendo that Mr. Hy-den was afforded an attorney in the 1983 case, any claim that his attorney was ineffective is foreclosed. Based on this reasoning, a 1983 conviction would not be considered “void” in any other type of case. It is also worth noting that the conviction is not considered “void” in terms of its use for sentencing Mr. Hyden to all four-time DUI sanctions short of imprisonment.

Moreover, had Mr. Hyden been represented by counsel in 1983, it is highly unlikely that the outcome would have been any different. We know from the record that Mr. Hyden waived his right to counsel at his arraignment, approximately six weeks before the trial date. We also know from the record that while discussing the 1983 offense with the court in 2009, Mr. Hyden stated that his 1983 DUI was “no big deal” at the time. We also know that the statute allowing felony enhancement based on three prior convictions did not become law until 1987. Thus, in 1983 Mr. Hyden had no reason to be concerned about the future implications of his plea.

Following his 1983 DUI conviction, no one knew that Mr. Hyden would be arrested another four times for DUI, resulting in three additional DUI convictions and one reckless driving conviction. Despite his four previous DUI convictions, under our binding authority, Mr. Hyden is still only guilty of a misdemeanor in this case.

Finally, the Kelly court retroactively grants rights to criminal defendants that they did not have prior to 2008, i.e., the right to counsel in misdemeanor cases that did not result in confinement and were not punishable by more than six-months incarceration. Unfortunately, as Justice Wells’ dissent points out, “many other final convictions of repeat DUI offenders will be subject to further postconviction litigation to determine whether those DUI convictions must be reversed because of the court’s new construction of the Florida Constitution.” 999 So.2d at 1054 (Wells, J., dissenting). The Kelly decision thwarts the State of Florida’s ability to reach and punish the most deserving of punishment — those that have made the choice to drink and drive, putting others at risk.

      . Section 92.50(1) provides that "[o]aths, affidavits, and acknowledgments required or authorized under the laws of this state ... may be taken or administered by or before any judge, clerk, or deputy clerk of any court of record within this state, including federal courts, or before any United States commissioner or any notary public within this state.”

      . We note that this court has suggested that, under Shearer, the oath in section 92.525(2) is available to "a prisoner untrained in the law.” Keene v. Nudera, 661 So.2d 40, 43 (Fla. 2d DCA 1995). However, Hyden’s motion to dismiss and affidavit were filed by defense counsel.


source: Caselaw Access Project

author: WOLF, J.

license: Public Domain

text:
    CLIPPER BAY INVESTMENTS, LLC, Appellant/Cross-Appellee, v. STATE of Florida DEPARTMENT OF TRANSPORTATION and Santa Rosa County, Appellees/Cross-Appellants.
    No. 1D11-5496.
    District Court of Appeal of Florida, First District.
    Feb. 5, 2013.
    Rehearing Denied March 22, 2013.

      Kenneth B. Bell and William J. Duna-way of Clark, Partington, Hart, Larry, Bond & Stackhouse, Pensacola, for Appellant/Cross-Appellee.
    Gregory G. Costas and Wayne W. Lambert, Jr., Assistant General Counsels, Department of Transportation, Tallahassee, for Appellees/Cross-Appellants.
   WOLF, J.

Appellant, Clipper Bay Investments, LLC (Clipper Bay), challenges a portion of a final judgment in a quiet title action concerning seven acres of land in Santa Rosa County. Clipper Bay asserts the trial court erred in extinguishing only a portion of Florida Department of Transportation’s (FDOT) pre-root claim of a fee estate in the land pursuant to the Marketable Record Title Act (MRTA). FDOT asserts that the exception contained in section 712.03(5), Florida Statutes (2008), which preserves easements and rights-of-way, precluded Clipper Bay from extinguishing any portion of FDOT’s interest in the land.

FDOT cross-appeals the quiet title judgment asserting (1) no portion of FDOT’s fee estate could be extinguished by operation of MRTA because the deed Clipper Bay relied on as its root of title failed sufficiently to describe the land which was conveyed; (2) MRTA did not extinguish FDOT’s fee estate because a post-root mu-niment of title in Clipper Bay’s chain of title specifically confirmed FDOT’s estate; and (3) the exception for easements and rights-of-way under section 712.03(5) precluded any portion of FDOT’s estate from being extinguished under MRTA.

We find no merit in the first two points raised by FDOT in the cross-appeal and affirm without further discussion. In order to resolve the issue on appeal and the third issue on cross-appeal, it is necessary for us to determine whether section 712.03(5) applies to FDOT’s fee estate. We find that it does, but FDOT failed to present competent, substantial evidence that its right-of-way included the land claimed by Clipper Bay. Accordingly, we reverse.

On August 7, 2008, Clipper Bay filed an action to quiet title and ejectment against FDOT and Santa Rosa County. Clipper Bay alleged it acquired the contested seven acres of land in 2006 and 2007. Clipper Bay argued that under MRTA, it was entitled to a marketable title that would extinguish any claims FDOT might have in the land if Clipper Bay could demonstrate a valid title transaction at least thirty years ago that created an estate in its predecessor in interest, also called its “root of title.” Clipper Bay alleged it traced its ownership interest back to a conveyance from Julio DeJoris to Escambia Shores, Inc., recorded on March 17, 1970. Thus, it argued this 1970 deed was its “root of title” as required by MRTA.

FDOT filed an answer and counterclaim for quiet title and ejectment. FDOT alleged the land to which Clipper Bay claimed title was a portion of what FDOT considered part of its Interstate 10 right-of-way. The land at issue does not include the land that lies under Interstate 10 or the immediately adjoining land which has been fenced off by FDOT. Instead, the disputed land lies north of the Interstate 10 fence line. FDOT acquired the land that lies under Interstate 10 and the contested seven acres that lie north of the Interstate 10 fence line through a single recorded deed from Julio DeJoris and others in 1965. FDOT also alleged that it had used a portion of the contested seven acres during the last thirty years by leasing a portion of it to Santa Rosa County for the purpose of constructing a county road. Therefore, FDOT argued, the entire parcel of land was exempt from MRTA under the right-of-way exception in section 712.03(5). At trial, FDOT entered into evidence an unrecorded FDOT right-of-way map from 1965 to demonstrate that the disputed land was part of the Interstate 10 construction project. Located on the map was a line marked “limited access right of way,” which ran across the northern portion of the disputed seven acres.

However, at trial, Clipper Bay argued FDOT’s right-of-way for Interstate 10 was the interstate and the immediately adjoining fenced area, but that it did not extend into any of the disputed land, which lies north of the Interstate 10 fence line.

After trial, the court issued an order and final judgment finding Clipper Bay established a valid root of title; however, a portion of the land was excepted from the operation of MRTA under section 712.03(5). The trial court quieted title in favor of Clipper Bay for all land “[n]orth of the limited access right of way line as shown on the unrecorded right of way map entered into evidence by DOT.” The trial court quieted title in favor of FDOT the land south of the limited access right-of-way line depicted on the unrecorded map. Further, the court awarded to Santa Rosa County fee title for the county road it built across the disputed property pursuant to its lease with FDOT.

Both Clipper Bay and FDOT argue the trial court erred in using the unrecorded map as the determining factor as to what, if any, title was extinguished under MRTA. The parties also agreed at oral argument that the heart of the dispute is whether the exception to MRTA contained in section 712.03(5) can be applied to the disputed property. Clipper Bay asserts this exception that protects easements and rights-of-way cannot be utilized to preserve land held in fee title by FDOT; thus, it is entitled to the entire seven acres. Further, Clipper Bay argues that, even if the exception applies to land held in fee, FDOT’s Interstate 10 right-of-way does not include any of the disputed property, which lies north of the Interstate 10 fence line. FDOT asserts subsection (5) can be applied to the land that it holds in fee. Moreover, FDOT argues that because it acquired the disputed land as part of a larger conveyance for its Interstate 10 project, if any portion of that unified parcel is utilized as a right-of-way, the exception applies to the entire parcel. FDOT argues its construction of Interstate 10 on the land adjacent to the disputed seven acres, and its leasing a portion of the contested seven acres to Santa Rosa County, was sufficient use to except the seven acres from MRTA.

Specifically, Clipper Bay argues the trial court erred by (1) failing .to apply the interpretive principles that guide the construction and application of MRTA; (2) failing to acknowledge that the plain language of section 712.03(5) does not apply to fee estates; (3) misconstruing FDOT v. Dardashti 605 So.2d 120 (Fla. 4th DCA 1992), and Water Control District of South Brevard v. Davidson, 638 So.2d 521 (Fla. 5th DCA 1994); (4) awarding a portion of the land to FDOT despite its failure to present competent, substantial evidence that any of the land at issue was part of its Interstate 10 right-of-way; and (5) imposing an additional burden on Clipper Bay and its predecessors to conduct an extra-record investigation not required by MRTA.

1. Interpreting MRTA

MRTA provides for a clear, marketable title for any landowner who can demonstrate that a title transaction which occurred at least thirty years ago created an estate in either the current landowner or the predecessor in interest:

Any person having the legal capacity to own land in this state, who, alone or together with her or his predecessors in title, has been vested with any estate in land of record for 30 years or more, shall have a marketable record title to such estate in said land, which shall be free and clear of all claims except the matters set forth as exceptions to marketability in s.712.03. A person shall have a marketable record title when the public records disclosed a record title transaction affecting the title to the land which has been of record for not less than 30 years purporting to create such estate either in:
(1) The person claiming such estate; or (2) Some other person from whom, by one or more title transactions, such estate has passed to the person claiming such estate, with nothing appearing of record, in either case, purporting to divest such claimant of the estate claimed.

§ 712.02, Fla. Stat. (2008). MRTA refers to that title transaction thirty years prior as the “root of title.” § 712.01(2), Fla. Stat. (2008). Further, MRTA states that its provisions should be liberally construed:

This law shall be liberally construed to effect the legislative purpose of simplifying and facilitating land title transactions by allowing persons to rely on a record title as described in s.712.02 subject only to such limitations as appear in s.712.03.

§ 712.10, Fla. Stat. (2008). Thus, under MRTA “ ‘any claim or interest, vested or contingent, present or future, is cut off unless the claimant preserves his claim by filing a notice within a 30-year period. If a notice is not filed, the claim is lost.’ ” H & F Land, Inc. v. Panama City-Bay County Airport & Indus. Dist., 736 So.2d 1167, 1171 (Fla.1999), receded from on other grounds by Blanton v. City of Pinellas Park, 887 So.2d 1224 (Fla.2004) (quoting Marshall v. Hollywood, Inc., 236 So.2d 114 (Fla.1970)).

The supreme court further discussed the intent of MRTA in H & F Land, explaining “MRTA’s provisions contain a scheme to accomplish the same objective [as the model act] of stabilizing property law by clearing old defects from land titles, limiting the period of record search, and clearly defining marketability by extinguishing old interests of record not specifically claimed or reserved.” Id. at 1171. Further, “A core concern of MRTA was that there be no ‘hidden’ interests in property that could be asserted without limitation against a record property owner. In other words, MRTA shifted the burden to those claiming ‘any claim or interest’ in property to come forward in a timely fashion and assert that interest publicly.” Id. at 1172. “Creating judicial exceptions to this comprehensive legislative scheme would undermine the core purpose of MRTA of providing stability to property law by requiring that all claims to an interest in property be recorded.” Id. at 1172-73.

2. Exceptions to Marketability Under section 712.03(5), Florida Statutes

Clipper Bay argues the trial court correctly found it established a valid root of title, entitling it to a marketable title under MRTA. However, Clipper Bay argues the trial court erred in finding a portion of FDOT’s fee estate was excepted from MRTA under section 712.03(5), which preserves pre-root easements and rights-of-way. Section 712.03(5) states:

712.03. Exceptions to marketability Such marketable record title shall not affect or extinguish the following rights:
(5) Recorded or unrecorded easements or rights, interest or servitude in the nature of easements, rights-of-way and terminal facilities, including those of a public utility or of a governmental agency, so long as the same are used and the use of any part thereof shall except from the operation hereof the right to the entire use thereof. No notice need be filed in order to preserve the lien of any mortgage or deed of trust or any supplement thereto encumbering any such recorded or unrecorded easements, or rights, interest, or servitude in the nature of easements, rights-of-way, and terminal facilities. However, nothing herein shall be construed as preserving to the mortgagee or grantee of any such mortgage or deed of trust or any supplement thereto any greater rights than the rights of the mortgagor or grantor.

§ 712.03, Fla. Stat. (emphasis added).

Clipper Bay argues that the plain language of subsection (5) pertains to easements and rights-of-way, not fee estates. Clipper Bay notes that “easement” and “right-of-way” are not defined by section 712.03. However, “absent a statutory definition, words should be given their plain and ordinary meaning, and one looks to the dictionary for the plain and ordinary meaning of words.” Suddath Van Lines, Inc. v. State, Dep’t of Envtl. Protection, 668 So.2d 209, 212 (Fla. 1st DCA 1996).

Clipper Bay relies on Black’s Law Dictionary, which defines an “easement” as “An interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose (such as to cross it for access to a public road).... The primary recognized easements are (1) a right-of-way ....” Black’s Law Dictionary (9th ed.2009) (emphasis added). Further, Black’s defines a “right-of-way” as the “right to pass through property owned by another,” the “right to build and operate a railway line or a highway on land belonging to another,” and the “strip of land subject to a nonowner’s right to pass through.” Black’s Law Dictionary (9th ed.2009) (emphasis added).

In response, FDOT agrees that MRTA does not define right-of-way or easement but notes the Florida Transportation Code, section 334.08(22), defines “[r]ight-of-way” as “land in which the state, the department, a county, or a municipality owns the fee or has an easement devoted to or required for use as a transportation facility.” § 334.03(22), Fla. Stat. (2008) (emphasis added). FDOT argues the dictionary definition should only be referenced if there is no statute that defines the word at issue, relying on Reform Party of Florida v. Black, 885 So.2d 303, 312 (Fla.2004), in which the supreme court interpreted a term not defined by statute:

The term “national party” is not defined in section 103.021(4)(a) or in any other Florida legal authority. Where there is uncertainty in the meaning to be given the words employed in a statute, “the Court must resort to canons of statutory construction in order to derive the proper meaning.” Seagrave v. State, 802 So.2d 281, 286 (Fla.2001). Further, this Court explained that
[o]ne of the most fundamental tenets of statutory construction requires that we give statutory language its plain and ordinary meaning, unless words are defined in the statute or by the clear intent of the legislature. When necessary, the plain and ordinary meaning of words can be ascertained by reference to a dictionary.

Nehme v. Smithkline Beecham Clinical Labs., Inc., 863 So.2d 201, 204-05 (Fla. 2003) (citations and quotation marks omitted). (Emphasis added). FDOT argues that if any other statute had defined the term at issue, the supreme court would have deferred to that definition rather than consulting the dictionary.

FDOT also argues that interpreting section 712.03(5) to protect only easements and rights-of-way rather than the larger possessory interests in land owned in fee is unreasonable and conflicts with the statement from this court that “[t]he statute should be broadly construed, accordingly, as intended to protect public rights to the extent permissible under our organic law.” City of Jacksonville v. Horn, 496 So.2d 204, 208 (Fla. 1st DCA 1986).

3. Dardashti, Davidson, and Horn

Two cases discuss the issue of whether the exception in section 712.03(5) can apply to land held in fee title: Florida Department of Transportation v. Dardashti, 605 So.2d 120 (Fla. 4th DCA 1992), and Water Control District of South Brevard v. Davidson, 638 So.2d 521 (Fla. 5th DCA 1994).

In Dardashti, the piece of land in dispute had been conveyed to Palm Beach County for “ ‘right of way and easement in and over’ ” a fifty-foot parcel of land through a deed recorded in 1917. 605 So.2d at 121. Palm Beach County later deeded its interest in the land to FDOT. Id. Dardashti subsequently claimed an eleven-foot strip of this land by operation of MRTA. Id. at 122. However, FDOT claimed that the section 712.03(5) exception applied to defeat the MRTA claim. Id.

The Fourth District rejected FDOT’s claim that it fell under this exception to MRTA, finding:

the 1917 deed did not create an easement or right-of-way. Although the 1917 deed labeled the fifty foot parcel as a “right of way and easement,” those words merely described the purpose for the conveyance. See Robb v. Atlantic Coast Line R.R. Co., 117 So.2d 584, 537 (Fla. 2d DCA 1960) (“fee [title] will pass by deed containing a clause or recital which is merely declaratory of the use contemplated of the land.”). Although the 1917 deed provided that the land would revert if not used as a public highway, that provision merely created a covenant of the deed. Id. at 535-36. Whatever one chooses to call it, an ownership interest, a right-of-way in fee, or a determinable fee interest, we hold that the County received fee title to the fifty foot parcel.

Dardashti, 605 So.2d at 122. Thus, the court concluded, “[b]ecause the County did not have an easement or right-of-way over the fifty foot parcel, section 712.03(5) would not apply.” Id. at 123. In other words, the easement or rights-of-way exception would not apply to land acquired in fee.

The Davidson case addressed a similar issue, although the opinion is somewhat confusing. In that case, the Fifth District considered a quiet title action filed by several individual property owners concerning property that the Water Control District of South Brevard County (District) also claimed to own in fee. 638 So.2d at 522. The trial court found the District never obtained legal title to the disputed property. Id. However, the trial court “recognized the District’s rights-of-way to the canal and an area to the immediate east of the canal, which had been utilized by the District for maintenance of the canal,” but not the west side of the canal. Id.

The Fifth District reversed concerning the west side of the canal. Id. The court revisited the factual history of the land transfer and found the District had properly acquired title to the disputed property, specifically finding that title to the property vested in the District by operation of law. Id. at 523. However, because the individual property owners argued MRTA applied, the court had to determine whether the District properly preserved its property rights over the years. Id. at 525.

The Fifth District examined the chain of title of the individual property owners for any reservations. Id. For some of the parcels, the court concluded the root of title and all deeds since contained specific “reservations in favor of the District.” Id. at 526. The deeds stated they were “‘[s]ubject to rights of way for public roads and canals of the [District].’ ” Id. at 526. Another parcel did not contain a reservation of the District’s interests in the root of title; however, a pre-root document did contain a “reservation for the canal easements in favor of the District.” Id.

The court found section 712.03(5) excludes from MRTA “ ‘[Recorded or unrecorded easements or ... rights-of-way and terminal facilities, including those of a public utility or of a governmental agency, so long as the same are used and the use of any part thereof shall except from the operation hereof the right to the entire use thereof.’ ” Id. at 526 (emphasis added). Thus, the court concluded:

Since the District is a political subdivision of the State of Florida, the District’s rights-of-way have not been extinguished under Florida law if at least part of the easement has been used. § 712.03(5), Fla. Stat. (1991). Rights or easements acquired for the use and benefit of the public are not easily lost or surrendered, and MRTA should be broadly construed to protect these rights to the extent possible under the law. City of Jacksonville v. Horn, 496 So.2d 204 (Fla. 1st DCA 1986).

Id. at 526.

The Fifth District found it was undisputed that the District maintained the right-of-way along the eastern side of the canal. Id. Further, the court found “the original reservation and all subsequent reservations” in the individual property owners’ chain of title “refer to the canals and rights-of-way as one, not as two separate rights-of-way to each canal.” Id. at 526. The court determined that “[s]ince the easements constitute a unified reservation, use of a part preserves the whole. § 712.08(5), Fla. Stat. Hence, the rights-of-way have not been extinguished under MRTA. See Fla. Dep’t of Transp. v. Dardashti Props., 605 So.2d 120 (Fla. 4th DCA 1992), rev. denied, 617 So.2d 318 (Fla. 1993).” Id. at 526-27.

Dardashti directly stands for the proposition that the exception in section 712.03(5) cannot apply to land held in fee by the government. Davidson, on the other hand, is confusing because it applies the section 712.03(5) exception to land held in fee by a governmental entity; however, the court also appears to rely on reservation language contained in deeds to the private property owners. It is also unclear why Davidson cites to Dardashti in upholding the governmental interest where the Dardashti case denied the government’s claim that the 712.03(5) exception applied to land held in fee title.

Both sides in this dispute also rely on our decision in Horn, 496 So.2d 204. The holding in that case, however, is of little use in analyzing this case. Horn differs in two important respects: (1) there is no indication that the governmental entity had fee title to the property in question; and (2) the ultimate decision was based on the failure of the governmental unit to use any portion of the property for right-of-way purposes. In the instant case, it is undisputed that FDOT claimed fee title and utilized a portion of the original land conveyance for right-of-way purposes.

Horn, however, does confront the problem facing this court, which is to reconcile the language in section 712.10 mandating the liberal construction of MRTA with the section 712.03(5) exception, along with the public policy “that rights or easements once acquired for the use and benefit of the public are not easily lost or surrendered.” 496 So.2d at 208.

A Application of Section 712.03(5), Florida Statutes

We determine that section 712.03(5) is ambiguous as to whether it can be applied to protect the public rights of land held in fee. This ambiguity is evidenced by the apparently conflicting decisions of the Fourth District in Dardashti and the Fifth District in Davidson. It is, therefore, necessary for us to construe the statutory exception.

The clear impart of section 712.03(5) is to protect land utilized for easements or rights-of-way. This is consistent with the public policy identified in Horn “that rights or easements once acquired for the use and benefit of the public are not easily lost or surrendered.” 496 So.2d at 208.

The focus, therefore, is the reason or purpose that the state holds the land in question rather than the manner in which the title is actually held. Thus, it would make no sense to say that land which is being utilized for rights-of-way and easements without any claim of fee title would be protected from the operation of MRTA while the same land utilized for the same purpose held in fee title would be subject to total forfeiture pursuant to MRTA. For instance, the original conveyance to FDOT of the fee title in the instant case included the land presently lying beneath Interstate 10. While appellant is not claiming this land, if the exception in section 712.03(5) did not apply to land held in fee, then this land would be potentially subject to forfeiture pursuant to MRTA. Clearly, this could not be the legislative intent.

Further, the definition in section 334.03(22) of “right-of-way” to include land held in fee is important for three reasons: (1) it is legislative recognition that land utilized for right-of-way by the government may be held in fee title; (2) it indicates that many governmental rights-of-way may be held in fee title; and (3) it provides a definition that is lacking in section 712.03(5).

Clipper Bay argues that section 334.03 applies only “when used in the transportation code.” We reject the contention that we cannot consider this section. First, the language in section 334.03 does not use the word “only.” It states, “[w]hen used in the Florida Transportation Code, the term: ‘Right-of-way’ means.... ” § 334.03(22), Fla. Stat. We do not read the language about utilizing the definition within the transportation code to mean it cannot provide guidance when interpreting other portions of the statutes or that it will not have import for issues related to the subject of the transportation code. The effect of other statutory provisions on the ability of FDOT to maintain title to its rights-of-way is just such a situation.

We, therefore, reject the proposition that section 712.03(5) cannot be applied to rights-of-way held by FDOT in fee.

5. The Extent of FDOT’s Right-of-way

Having determined that section 712.03(5) can apply to protect rights-of-way held in fee, we must consider whether FDOT demonstrated the land at issue was a part of its Interstate 10 right-of-way. As discussed above, section 334.03(22) limits the definition of right-of-way to land “devoted to or required for use as a transportation facility.” Further, section 712.03(5) states “the use of any part” of a right-of-way “shall except from the operation hereof the right to the entire use thereof.” However, upon review of the record, we find FDOT failed to present competent, substantial evidence that the land at issue was ever devoted to or required for part of its Interstate 10 right-of-way.

Below, FDOT’s witness testified that FDOT considered the entire parcel to be for the purpose of the Interstate 10 project, and that all of the land owned by FDOT was for the purpose of right-of-way. However, in its opinion, the trial court rejected this assertion, and rightly so. Such broad, generalized testimony does not constitute evidence that the land at issue was ever “devoted to or required for” right-of-way purposes. § 334.03(22), Fla. Stat. We reject FDOT’s argument that any land purchased in conjunction with a roadway project or any land owned by FDOT will automatically be protected as right-of-way under MRTA.

Here, it was uncontested that the land at issue had not been used by FDOT since Clipper Bay’s predecessors in interest obtained title in 1970. Further, FDOT failed to present any evidence that the land at issue was ever “devoted to or required for use as a transportation facility,” or that the land would be utilized for right-of-way purposes in the reasonably foreseeable future. FDOT entered into evidence its unrecorded 1965 right-of-way map that depicted a “limited access right of way” line located north of the Interstate 10 fence line, across the disputed seven acres. However, FDOT failed to present any testimony explaining the import of this map, or whether the land was actually utilized in the manner depicted by the map. Moreover, we note there was evidence presented that FDOT leased a part of the contested land to Santa Rosa County for the construction of a county road. While this evidence may support the county road being subject to the exception, it does not support FDOT’s argument that the rest of the land was part of its Interstate 10 right-of-way.

The only other evidence presented on this issue was the testimony of Clipper Bay’s expert witness, who testified the Interstate 10 fence line had been widely accepted as FDOT’s right-of-way line since prior to 1970. Additionally, Clipper Bay’s predecessor in interest testified he contacted FDOT concerning the location of its right-of-way line, and FDOT insisted its right-of-way line was the Interstate 10 fence line. Therefore, the trial court’s finding that a portion of the land at issue was part of FDOT’s Interstate 10 right-of-way, and therefore excepted from MRTA, was not supported by competent, substantial evidence.

Moreover, Clipper Bay argues the trial court improperly relied on the unrecorded right-of-way map, kept at an FDOT office in Chipley several counties away, to create an additional burden on Clipper Bay to search for unrecorded property records that predated its root of title. It argues the trial court’s finding that “Clipper Bay and its predecessors ... should have diligently searched the records including the unrecorded right-of-way map ...” violated the principle expressed by the Florida Supreme Court that “a core concern of MRTA was that there be no hidden interests in property that could be asserted without limitation against a record property owner.” H & F Land, 736 So.2d at 1172. We agree.

Conclusion

In conclusion, we hold section 712.03(5) applies to land held in fee for the purpose of right-of-way. However, here FDOT failed to present competent, substantial evidence that the land at issue, which lies north of the Interstate 10 fence line, was held for the purpose of right-of-way. Therefore, we reverse the portion of the trial court’s order that quieted title to a portion of the land north of the Interstate 10 fence line in FDOT, and we remand for entry of an order quieting title to all of the land at issue in Clipper Bay, with the exception of the land utilized by Santa Rosa County to construct a road. We affirm the portion of the trial court’s order that awarded to Santa Rosa County the road that it constructed and maintained.

AFFIRMED in part, REVERSED in part, and REMANDED.

VAN NORTWICK and LEWIS, JJ„ concur.


author: EVANDER, J. SAWAYA, J.,

text:
    SAFECO INSURANCE COMPANY OF ILLINOIS, Appellant, v. Adrian FRIDMAN, Appellee.
    No. 5D12-428.
    District Court of Appeal of Florida, Fifth District.
    May 24, 2013.
    Rehearing and Rehearing En Banc Denied June 10, 2013.

      Anthony J. Russo, of Butler Pappas Weihmuller Katz Craig LLP, and Robert E. Vaughn, Jr., of Law Office of Glenn G. Gomer, Tampa, for Appellant.
    Jeffrey M. Byrd, of Jeffrey M. Byrd, P.A., Orlando, for Appellee.
   EVANDER, J.

Safeco appeals from an adverse final judgment in a lawsuit for uninsured/under-insured (UM) benefits brought by its insured, Adrian Fridman. Prior to trial, Safeco tendered payment to the insured for the UM policy limits of $50,000 and filed a “Confession of Judgment” and a “Motion for Entry of Confession of Judgment.” Despite the fact that Safeco’s tender of policy limits and confession of judgment fully resolved the substantive issues framed by the pleadings, the trial court denied Safeco’s motion for entry of confession of judgment and had the case proceed to trial. After a four-day trial, the jury returned a verdict in favor of Fridman for $1 million.

The trial court subsequently entered a final judgment for $50,000. The final judgment purported to reserve jurisdiction to determine Fridman’s right to amend his complaint to seek and litigate bad faith damages and provided that if Fridman should ultimately prevail in a bad faith action against Safeco, he would be entitled to judgment in accordance with the jury’s verdict. On appeal, Safeco contends that it was error for the trial court to deny its motion for entry of confession of judgment and to have the case proceed to trial because the issues in the case had been rendered moot. We agree and conclude that under the facts of this case, the jury verdict was a nullity.

On January 8, 2007, Fridman suffered personal injuries as a result of an automobile collision. At the time, Fridman was insured under an automobile insurance policy issued by Safeco that provided $50,000 of UM coverage. The insurer for the driver of the other vehicle tendered its policy limits of $10,000 to Fridman. Thereafter, Fridman made a claim on Safeco for payment of the UM policy limits. On October 13, 2008, after Safeco had refused to pay on the UM claim, Fridman filed a Civil Remedy Notice pursuant to section 624.155, Florida Statutes (2007). In its notice, Fridman alleged, inter alia, that Safeco had failed to attempt in good faith to settle his claim for UM benefits. On April 29, 2009, Fridman filed a one-count complaint against Safeco seeking damages under his insurance policy for UM benefits. In August 2010, the case was set for trial for the two-week trial docket commencing March 28, 2011. The trial was subsequently continued to the trial court’s September 12, 2011 docket. Prior to the rescheduled trial date, Safeco tendered a check to Fridman for the $50,000 policy limits and filed both a confession of judgment and motion for entry of confession of judgment. In these filings, Safeco expressly agreed to the trial court entering a final judgment in favor of Fridman for the $50,000 sought by Frid-man in his complaint.

Fridman opposed the entry of a confessed judgment arguing, inter alia, that a jury verdict would determine the upper limits of Safeco’s potential liability under a future bad faith claim. On September 6, 2011, the trial court denied Safeco’s motion finding that to do otherwise “would ignore the plain legislative intent of section 627.727(10).” That section provides:

The damages recoverable from an uninsured motorist carrier in an action brought under s. 624.155 shall include the total amount of the claimant’s damages, including the amount in excess of the policy limits, any interest on unpaid benefits, reasonable attorney’s fees and costs, and any damages caused by a violation of a law of this state. The total amount of the claimant’s damages is recoverable whether caused by an insurer or by a third-party tortfeasor.

The case proceeded to trial in December 2011. The jury found that the other driver involved in the collision was negligent and one hundred percent responsible for Fridman’s damages. As previously noted, the jury determined that Fridman’s total damages were $1 million.

The ensuing final judgment read as follows:

Pursuant to the Verdict rendered in this action on December 15, 2011, and pursuant to Plaintiffs Motion for Entry of Final Judgment, IT IS ADJUDGED
1. That the Plaintiff, ADRIAN FRIDMAN, recovers from Defendant, SAFECO INSURANCE COMPANY OF ILLINOIS, the sum of $50,000.00, that shall bear interest, pursuant to Florida Statute § 55.03 for which let execution issue, notwithstanding the excess jury verdict rendered in this matter.
2. The Court reserves jurisdiction to determine the Plaintiffs right to Amend his Complaint to seek and litigate bad faith damages from the Defendant as a result of such jury verdict in excess of policy limits. If the Plaintiff should ultimately prevail in his action for bad faith damages against Defendant, then the Plaintiff will be entitled to a judgment, in accordance with the jury’s verdict, for his damages in the amount of $980,072.91 plus interest, fees and costs.
3. The Court hereby also reserves jurisdiction to consider any applicable attorney’s fees and costs incurred in the Plaintiffs prosecution of this action for the purpose of entering a supplement judgment in favor of the Plaintiff upon proper motion.

An action to recover UM benefits is based on a contract but it has its underpinnings in tort liability. Mercury Ins. Co. of Fla. v. Moreta, 957 So.2d 1242, 1251 (Fla. 2d DCA 2007). Where no dispute exists as to the policy limits or available coverage and such limits are made known to the insured, the amount of the judgment against the insurer may not exceed the policy limits. Nationwide Mut. Fire Ins. Co. v. Voigt, 971 So.2d 239, 242 (Fla. 2d DCA 2008).

A first party bad faith action is a separate and distinct cause of action. Allstate Ins. Co. v. Jenkins, 32 So.3d 163, 165 (Fla. 5th DCA 2010). In contrast to a claim for UM benefits, an insured who prevails on a bad faith claim may recover damages in excess of the policy limits.

In the instant case, the only cause of action before the trial court was Frid-man’s UM claim. Fridman had appropriately not included a bad faith count in his complaint. See Jenkins, 32 So.3d at 165 (“[B]ad faith action is more appropriately brought as a separate cause of action.”); see also Gov’t Emps. Ins. Co. v. King, 68 So.3d 267, 270 n. 3 (Fla. 2d DCA 2011) (en banc) (expressly agreeing with Jenkins that bad faith claim should be brought as separate cause of action). Accordingly, when Safeco agreed to the entry of a judgment against it in the amount of the policy limits, the issues between the parties, as framed by the pleadings, became moot because the trial court could not provide any further substantive relief to Fridman. Godwin v. State, 593 So.2d 211, 212 (Fla.1992) (“An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect.”). Safeco was, in fact, agreeing to the precise relief sought by Fridman in his complaint. Thus, it was error for the trial court to require the parties to proceed to trial. See, e.g., Wollard v. Lloyd’s & Cos. of Lloyd’s, 439 So.2d 217 (Fla.1983) (where statute provided for recovery of attorney’s fees upon entry of judgment in favor of insured against insurer, insured was not required to continue litigation where insurer had paid claim; payment of claim was functional equivalent of confession of judgment). Instead, the trial court should have merely entered the confessed judgment in favor of Fridman, reserving jurisdiction to award costs, prejudgment interest, and, if authorized by law, reasonable attorney’s fees. See Westgate Miami Beach, LTD. v. Newport Operating Corp., 55 So.3d 567, 575 (Fla.2010).

Fridman argues that the entry of a confessed judgment in the underlying UM case would somehow render the remedies authorized under section 624.155 for an insurer’s failure to attempt in good faith to settle claims “impotent and obsolete.” We strongly disagree. Our decision today does not create any legal impediment to Fridman pursuing a bad faith claim against Safeco. As this court has previously stated, an insured is not required to obtain a jury verdict in excess of the applicable UM coverage as a condition precedent to bringing a first party bad faith action against the insurer. Clough v. Gov’t Emps. Ins. Co., 636 So.2d 127 (Fla. 5th DCA 1994), disapproved, on other grounds, State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 62 (Fla.1995). In Clough, the parties had stipulated that the insured’s damages exceeded the available UM coverage. Notwithstanding the stipulation, the insured wished to proceed to trial in the UM case. Instead, the trial court struck the case from the trial docket and entered summary judgment in favor of the insured in the amount of the available UM coverage. In affirming the trial court, we observed that while in ordinary circumstances an insured must obtain a judgment in excess of policy limits before prosecuting a first party bad faith claim, it was the establishment of the fact that such damages were incurred and not them precise amount that formed the basis for a subsequent bad faith cause of action. Thus, the parties’ stipulation provided a sufficient basis for any subsequent bad faith action and the insured could pursue its bad faith damages in such suit. Similarly, in the instant case, we conclude that a confessed judgment in the amount of the UM policy limits would provide Fridman a sufficient basis to pursue a bad faith claim against Safeco.

We find further support for our decision in Brookins v. Goodson, 640 So.2d 110 (Fla. 4th DCA 1994), disapproved on other grounds, Laforet, 658 So.2d at 62. There, our sister court concluded that the resolution of the underlying UM claim by the insurer’s payment of policy limits prior to trial did not preclude the insured from subsequently pursuing a first party bad faith claim:

[A]n insurer cannot escape liability for a violation of section 624.155 by the simple expedient of a belated payment of the policy limits after the 60 day time period provided in [the statute] has expired. The belated payment by the insurer neither automatically proves nor disproves first party bad faith.

Id. at 112-13.

Furthermore, contrary to the conclusion of the trial court, the entry of a confessed judgment would not ignore the legislative intent of section 627.727(10). Fridman can seek the full measure of damages afforded by this subsection in a subsequent bad faith action. See Cbugh; Brookins.

On remand, the trial court shall enter an amended final judgment deleting any reference to the jury verdict obtained and declining to reserve jurisdiction to consider a request to amend the complaint to add a count seeking relief under section 624.155.

REVERSED and REMANDED.

PALMER, J., concurs.

SAWAYA, J., dissents, with opinion.

SAWAYA, J.,

dissenting.

This court today has declared void a jury verdict rendered in an uninsured motorist (UM) case brought against Safeco Insurance Company of Illinois because it refused to timely pay the uninsured motorist benefits under the policy it issued to the injured insured, Adrian Fridman. That verdict declares the full measure of the damages suffered by Fridman to be $1,000,000. In reaching its decision, the majority erroneously concluded that Frid-man did not have a pending bad faith claim and if he did, he should have pled it in the complaint filed in the UM case. Because he did not, the majority holds that Safeco had the right to confess judgment for the policy limits of $50,000 shortly before trial and, based on the mootness doctrine, end Fridman’s right to have the jury determine the full extent of his damages.

The majority has misread the Notice of Civil Remedy filed by Fridman; the pleadings filed in this case; and the provisions of sections 627.727 and 624.155, Florida Statutes (2007). In addition, the majority has failed to apply the numerous decisions rendered by the Florida Supreme Court that hold that the jury in a UM case is to determine the full extent of the injured victim’s damages prior to the filing of any bad faith action. The majority has also misapplied the mootness doctrine. I strongly believe that Fridman had the right to have the jury determine the full extent of his damages, and he properly exercised that right. I do not believe it should be taken away by declaring the jury verdict void. I, therefore, respectfully dissent.

I. Factual and Procedural Background

After Fridman was involved in an accident with an underinsured tortfeasor wherein he sustained serious injuries, as evidenced by the jury verdict rendered in the amount of $1,000,000, Fridman demanded payment from Safeco in the amount of $50,000, which was the uninsured motorist limits under the policy. That demand was made on October 13, 2008, and after Safeco refused to comply, Fridman filed a Civil Remedy Notice of Insurer Violations pursuant to section 624.155(3)(a), Florida Statutes (2007), as a condition precedent to bringing a bad faith action against Safeco. The record does not reveal any response made by Safeco to that notice. When Safeco did not settle within the 60-day period provided under the statute, Fridman filed the underlying UM action against Safeco on April 29, 2008. The litigation proceeded and a trial date was finally set for March 28, 2011. A pretrial date was set for March 21, 2011, and discovery was to close on March 20.

Then, on January 25, 2011, shortly before trial, Safeco served Fridman with a notice to attend a compulsory medical examination (CME) on February 28, ostensibly to examine the results of Fridman’s surgery to repair the herniated discs he suffered as a result of the accident. Frid-man objected to the CME, arguing that Safeco was engaging in last-minute discovery in an attempt to delay the case and that the examination was scheduled in the wrong county. Safeco then filed a motion to continue the case, which was granted.

Fridman subsequently filed a motion to place the case back on the trial docket. That motion was granted, and the trial court entered a pretrial order rescheduling the case for trial. Shortly thereafter, Safeco filed its motion to confess judgment, arguing that it admitted it owed the policy limits and that confession of judgment did away with the need for a trial. Fridman specifically argued that he had a right to have a jury determine the amount of his damages and that an excess judgment could be entered that would entitle Fridman to damages in that amount in the bad faith action he planned to file. The trial court denied Safeco’s motion to confess judgment, reasoning that under section 627.727(10), Florida Statutes (2007), Fridman had a right to pursue a verdict in excess of the policy limits. The case proceeded to trial and the jury returned a verdict for damages totaling $1,000,000. Safeco now attempts to rid itself of the verdict by appealing the order denying Safeco’s motion to confess judgment. I believe the trial judge was eminently correct in allowing the jury to render its verdict and that the majority is wrong to take that verdict away. The bases for my conclusion are addressed seriatim.

II. The Bad Faith Claim: The Civil Remedy Notice and Sections 624.155 and 627.727(10), Florida Statutes

The reasoning of the majority opinion is infected with the erroneous notion that the underlying suit Fridman filed was nothing more than a case seeking UM benefits and that there was no pending claim for bad faith. That notion is embodied in the part of the majority opinion which states that when Safeco attempted to confess judgment in the amount of the policy limits, the issues between the parties “as framed by the pleadings” became moot because there was no count in the complaint for bad faith and hence no pending claim for bad faith. I totally reject that notion.

It is obvious the majority has misread the pleadings in this case and the provisions of the bad faith statute found in section 624.155, Florida Statutes. “To proceed in a claim for bad faith an insured must send a notice pursuant to section 624.155.” Vest v. Travelers Ins. Co., 753 So.2d 1270, 1275 (Fla.2000). Prior to filing the UM suit, Fridman filed a Civil Remedy Notice under section 624.155, specifically stating that “this notice is given in order to perfect the rights of the person(s) damaged to pursue civil remedies authorized by Section 624.155, Florida Statutes.” That statement is necessarily included in Civil Remedy Notice forms in order to comply with section 624.155(3)(b)5., Florida Statutes. The notice also lists the violations Safeco committed and the damages Fridman incurred in the accident with the tortfeasor. Moreover, there is nothing in the record to indicate that Safeco filed a response to the notice, and the courts have held that failure to respond raises a presumption that the insurer acted in bad faith. Imhof v. Nationwide Mut. Ins. Co., 643 So.2d 617, 619 (Fla.1994) (“An insurer’s failure to respond within the sixty-day period will create a presumption of bad faith sufficient to shift the burden to the insurer to show why it did not respond.”), receded from on other grounds, State Farm Mut. Auto. Ins. Co. v. Laforet, 658 So.2d 55, 63 (Fla.1995). As the court in Vest indicated, Fridman was proceeding in a claim for bad faith and notified Safeco of his claim prior to filing the UM case. There is no way that Safeco can argue, and indeed it does not argue, that it was not put on notice prior to the UM suit being filed of Fridman’s bad faith claim. Moreover, when Safeco did tender its policy limits and attempt to confess judgment years into the litigation, and after it requested a continuance of the scheduled trial date, Fridman argued that he had a right to seek a judgment in excess of the policy limits in accordance with section 627.727(10) for the bad faith action he planned to file.

The majority has also misread the provisions of section 627.727. When Fridman filed his complaint, he specifically alleged that he “is entitled to recover damages from the defendant, Safeco Insurance Company of Illinois, in accordance with the provisions of § 627.727, Florida Statutes, and the terms of the policy ...” and, in the prayer for relief, Fridman specifically “demands judgment in excess of $15,000.00 for damages against defendant, Safeco Insurance Company of Illinois plus costs and pre and post judgment interest and further demands trial by jury.” In the answer filed by Safeco, it specifically alleged that “this action is subject to Florida Statute, Section 627.727.” That statute specifically allows for the recovery of damages in excess of policy limits. § 627.727(10), Fla. Stat. (2007). (“The damages recoverable from an uninsured motorist carrier in an action brought under section 624.155 shall include the total amount of the claimant’s damages, including the amount in excess of the policy limits, any interest on unpaid benefits, reasonable attorney’s fees and costs, and any damages caused by a violation of a law of this state.”). Moreover, section 624.155 similarly provides that damages reasonably recoverable in a bad faith action “may include an award or judgment in an amount that exceeds the policy limits.” § 624.155(8), Fla. Stat. (2007).

Fridman could not have included a count for bad faith in the complaint, as the majority seems to require, because the courts have repeatedly held that the bad faith action must be instituted after the full extent of the insured’s damages have been determined in the UM litigation. Had Fridman included a count for bad faith, it would have been dismissed or abated. See Allstate Indem. Co. v. Ruiz, 899 So.2d 1121 (Fla.2005); Imhof; State Farm Mut. Auto. Ins. Co. v. Tranchese, 49 So.3d 809 (Fla. 4th DCA 2010); see also Gen. Star Indem. Co. v. Atl. Hospitality of Fla., LLC, 93 So.3d 501 (Fla. 3d DCA 2012). Therefore, Fridman filed his Civil Remedy Notice and specifically pleaded damages be awarded to him in excess of $15,000 and pursuant to section 627.727, Florida Statutes, which governs uninsured motorist coverage and damages.

I find the majority’s reasoning and analysis of the Civil Remedy Notice and the pleadings filed in this case strikingly odd because it travels in a circle that revolves in the wrong direction. The majority begins its analysis by embracing the fallacious notion that Fridman did not file a claim for bad faith, despite the Civil Remedy Notice Fridman filed prior to suit. As the majority recognizes, Fridman did not incorporate a bad faith claim in a count in the complaint because it would have been improper for him to do so and would have resulted in dismissal or abatement of that claim so the UM case could proceed to trial unburdened with the bad faith issue. Therefore, Fridman filed the bad faith claim the only way he properly could by serving Safeco with the Civil Remedy Notice but because that claim was not included in the complaint, the majority does not recognize it as a bad faith claim. And yet, remarkably, the majority recognizes the propriety of excluding it from the complaint in the first instance.

As a component of that circular reasoning and analysis, the majority cites Nationwide Mutual Fire Insurance Co. v. Voigt, 971 So.2d 239 (Fla. 2d DCA 2008), but that case is clearly distinguishable from the instant case and offers no prece-dential value for declaring a jury verdict in excess of the policy limits void. In Voigt, and in every case cited therein, a claim of bad faith had not been raised in a Civil Remedy Notice under section 624.155 and the complaint filed in each of those cases only sought benefits in accordance with the UM policy. Hence, unlike the instant case, there was nothing in those cases to indicate that a bad faith action was on the horizon. Voigt simply stands for the general rule that when a verdict is rendered in excess of the policy limits, a judgment in the UM case should be entered for no more than the policy limits, and that is exactly what the trial judge did in the instant case. But neither Voigt nor any of the cases cited therein hold that the jury verdict should be declared void.

To conclude that Fridman did not have a valid bad faith claim at the time he filed his UM case is to misread the Civil Remedy Notice he filed pursuant to section 624.155, the provisions of section 627.727, and the pleadings. Moreover, that conclusion disregards what is clearly evident from the entire record in this case and the very reason Safeco confessed judgment when it did — to prevent a trial and a resulting excess judgment that would be used in the bad faith trial it knew Fridman was going to file. Fridman did have a bad faith claim that he filed in conjunction with, but not conjoined to, the UM case and he pursued that claim just as the courts have directed.

III. The Florida Courts Require the Full Extent of the Damages be Determined in the UM Case as a Predicate to a Bad Faith Action

Florida courts have made it clear that a prerequisite of a bad faith action is a prior determination of the full extent of the insured’s damages in the UM litigation. In Blanchard v. State Farm Mutual Automobile Insurance Co., 575 So.2d 1289, 1291 (Fla.1991), the court held, “Absent a determination of the existence of liability on the part of the uninsured tortfeasor and the extent of the plaintiffs damages, a cause of action cannot exist for a bad faith failure to settle.” Blanchard involved a UM claim filed by an injured insured against his insurer. After the insurer refused to make a good faith offer to settle the UM claim, the insured filed suit and the case proceeded to trial, resulting in a verdict in favor of the insured. When the insured subsequently filed his bad faith action, the insurer moved to dismiss, contending that the bad faith action had to be asserted in the damage action previously filed and concluded. The court rejected that argument, holding that resolution of the prior suit and a determination of the extent of the insured’s damages were prerequisites to the bad faith action.

Blanchard was followed by the court’s decision in Imhof, which is another UM case. In Imhof, the court was confronted with the task of answering the following certified question:

IS AN ACTION FOR BAD-FAITH DAMAGES PURSUANT TO SECTION 624.155(1)(B)(1), FLORIDA STATUTES, BARRED BY BLANCHARD v. STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, 575 So.2d 1289 (Fla.1991), WHERE THE COMPLAINT FAILS TO ALLEGE THAT THERE HAD BEEN A DETERMINATION OF THE EXTENT OF APPELLANT’S DAMAGES AS A RESULT OF THE UNINSURED TORTFEASOR’S NEGLIGENCE?

643 So.2d at 617. In answering this question in the affirmative, the court held:

In Blanchard we held that “[a]bsent a determination of the existence of liability on the part of the uninsured tortfeasor and the extent of the plaintiffs damages, a cause of action cannot exist for a bad faith failure to settle.” 575 So.2d at 1291. In the instant case, Imhof failed to allege in his complaint that a determination of his damages had been made. Thus, the trial court correctly dismissed the complaint for failure to state a cause of action.

Id. at 618.

The decisions in Blanchard and Imhof were followed by the decision in Vest, wherein the court reapplied its holding in Blanchard that “ ‘[a]bsent a determination of the existence of liability on the part of the uninsured tortfeasor and the extent of the plaintiffs damages, a cause of action cannot exist for a bad faith failure to settle.’ ” 753 So.2d at 1273 (quoting Blanchard, 575 So.2d at 1291) (emphasis omitted). The issue in Vest as it relates to the holding in Blanchard is whether damages that occurred prior to the determination of the extent of the insured’s damages, which is the precondition to the bad faith action, may be recoverable in the subsequent bad faith action. The court held that Blanchard should not be construed to mean that only damages that occur after the bad faith claim ripens under Blanchard are recoverable. Specifically, the court reaffirmed the holdings in Blanchard and Im-hof and explained:

We continue to hold in accord with Blanchard that bringing a cause of action in court for violation of section 624.155(1)(b)1 is premature until there is a determination of liability and extent of damages owed on the first-party insurance contract. This avoids the problem Blanchard dealt with, which was the splitting of causes of action. However, a claim brought prematurely is not subject to a summary judgment. Such a claim should be dismissed as premature.

753 So.2d at 1276.

The courts have applied the rule adopted in Blanchard and its progeny beyond the context of UM cases by holding in first party bad faith actions in general that it is a precondition to filing suit that the actual extent of the loss be determined in the underlying damage action. In Doan v. John Hancock Mutual Life Insurance Co., 727 So.2d 400, 402 (Fla. 3d DCA 1999), for example, the court applied Blanchard to a breach of contract action involving a disability policy. In applying Blanchard and holding that the bad faith action was premature until the damage action resolved the full extent of damages, the court recognized that Blanchard

held that “[ajbsent a determination of the existence of liability on the part of the uninsured tortfeasor and the extent of the plaintiffs damages, a cause of action cannot exist for bad faith failure to settle.” Id. at 1291. See also Imhof v. Nationwide Mut. Ins. Co., 643 So.2d 617 (Fla.1994). Since Blanchard, this Court has decided a number of cases consistently therewith. See Liberty Mut. Ins. Co. v. Cook, 696 So.2d 497 (Fla. 3d DCA 1997) (homeowner’s insurance claim); Utah Home Fire Ins. Co. v. Navarro, 642 So.2d 1200 (Fla. 3d DCA 1994) (homeowner’s insurance claim); Sivilla v. State Farm Mut. Auto. Ins. Co., 614 So.2d 553 (Fla. 3d DCA 1993) (automobile collision insurance claim); State Farm Mut. Auto. Ins. Co. v. Oteiza, 595 So.2d 1094 (Fla. 3d DCA 1992).

Id. Similarly, in Trafalgar at Greenacres, Ltd. v. Zurich American Insurance Co., 100 So.3d 1155 (Fla. 4th DCA 2012), the court explained:

It is well settled that a statutory first-party bad faith action is premature until two conditions have been satisfied: (1) the insurer raises no defense which would defeat coverage, or any such defense has been adjudicated adversely to the insurer; and, (2) the actual extent of the insured’s loss must have been determined. Vest v. Travelers Ins. Co., 753 So.2d 1270, 1273 (Fla.2000) (citing Blanchard v. State Farm Mut. Auto. Ins. Co., 575 So.2d 1289, 1291 (Fla. 1991)).

Id. at 1157.

Other decisions subsequent to Blanchard hold that settlement of the UM claim may fulfill the precondition that the extent of the damages be determined prior to commencement of the bad faith action. The majority cites to Brookins v. Goodson, 640 So.2d 110 (Fla. 4th DCA 1994), disapproved on other grounds, Laforet, and Clough v. Government Employees Insurance Co., 636 So.2d 127 (Fla. 5th DCA 1994), disapproved on other grounds, Laforet, to support its decision to void the jury verdict, but those cases are clearly distinguishable and inapplicable to the instant case because they both involved settlement agreements entered into between the insured and insurer.

In Brookins, the insured filed his Civil Remedy Notice pursuant to section 624.155, the insurer refused to settle within the 60-day period, the insured filed suit, and thereafter the parties settled when the insurer offered and the insured accepted the insurer’s tender of policy limits. When the insured subsequently filed his bad faith action, the trial court dismissed the suit “because the underlying litigation of the underinsured motorist claim was settled without a trial.” Brookins, 640 So.2d at 111. The court in Brookins reversed, concluding that the settlement agreement was sufficient to satisfy the requirements of Blanchard and Imhof. If the insured accepts the belated tender of policy limits as his damages in the UM case, the insured may nevertheless pursue a bad faith action to recover the consequential damages proximately caused by the bad faith, such as infliction of emotional distress, interest, attorney’s fees, costs, and possibly punitive damages. See Time Ins. Co., Inc. v. Burger, 712 So.2d 389 (Fla.1998); Imhof. Unlike Brookins, where the parties settled the underlying UM suit, in the instant case, the insured refused to settle by refusing the offer of policy limits and confession of judgment and elected to let the jury determine the extent of his damages.

The decision in Clough, like Brookins, is distinguishable from the instant case because the insured and insurer stipulated and agreed to forego a trial by agreeing that the damages incurred by the insured exceeded the UM policy limits. Based on that stipulation, the trial court dismissed the suit so the parties could proceed to trial on the bad faith claim. Based on a misreading of Blanchard, and for that reason alone, the insured moved for rehearing, thinking that he would not be entitled to pursue his bad faith action unless the jury in the UM litigation determined the amount of his damages. This court held, like the court in Brookins, that a trial was not necessary and that an agreement between the insured and insurer regarding liability and damages would suffice as the predicate required under Blanchard.

I agree that if the parties settle or agree prior to trial regarding the damage issue in the UM case, that may suffice as the predicate under Blanchard. But there was no settlement or agreement between the parties in the instant case. When Safeco confessed judgment and offered its policy limits, Fridman specifically objected to cancellation of the trial and insisted on his right to have the jury determine the amount of damages in the UM case; neither Brookins nor Clough hold that the insurer may take that right away.

The purpose of UM litigation is to determine the damages caused by a negligent tortfeasor. It is, in essence, a personal injury action filed against the insured’s insurer, who steps into the shoes of the tortfeasor, and the litigation proceeds as if the suit was filed against the tortfeasor. See Allstate Ins. Co. v. Boynton, 486 So.2d 552 (Fla.1986). The relevant evidence relates to how the accident happened, who was at fault, how the injuries occurred, the extent of those injuries, how those injuries were treated and are to be treated in the future, the cost of the treatment, lost wages, and all of the other damage issues generally present in personal injury litigation. Thus, absent coverage issues, causation and damages to the injured insured are the primary focus of the UM litigation.

Bad faith litigation, on the other hand, is far different. The primary focus of bad faith litigation is whether the insurer, in good faith, attempted to settle the case pursuant to the dictates of section 624.155. The jury instructions reveal the issues in a bad faith action:

404.7 ISSUES ON CLAIM

The issue you must decide on (claimant’s) claim against (defendant) is whether (defendant) acted in bad faith in failing to settle the claim [of] [against] (insured) [and, if so, whether that bad faith was a legal cause of [loss] [damage] [or] [harm] to (claimant) ].

404.9 CONCLUDING INSTRUCTION WHEN COURT TO AWARD DAMAGES

If your verdict is for (claimant), the court will award damages in an amount allowable under Florida law.

In re Standard Jury Instructions In Civil Cases-Report No. 09-01, 35 So.3d 666, 723 (Fla.2010) (emphasis omitted). The instruction on damages reflects that the damages have already been determined in the underlying UM litigation. Examples of damages to be determined by the bad faith jury may include damages for infliction of emotional distress and punitive damages.

Not only are the issues in a bad faith action different, the evidence presented is far different than the evidence presented in UM litigation. In bad faith litigation, the relevant evidence pertains to how the claim was handled by the insurer in fulfillment of its good faith duties to its insured and the claims files generated during the claims process. In Ruiz, the court explained the evidence as follows:

Consistent with the analysis outlined, we hold that in connection with evaluating the obligation to process claims in good faith under section 624.155, all materials, including documents, memoran-da, and letters, contained in the underlying claim and related litigation file material that was created up to and including the date of resolution of the underlying disputed matter and pertain in any way to coverage, benefits, liability, or damages, should also be produced in a first-party bad faith action. Further, all such materials prepared after the resolution of the underlying disputed matter and initiation of the bad faith action may be subject to production upon a showing of good cause or pursuant to an order of the court following an in-camera inspection. See Fla. R. Civ. Pro. 1.280(b), 1.350; Fla. Farm Bureau Gen. Ins. Co. v. Copertino, 810 So.2d 1076, 1079 (Fla. 4th DCA 2002).

899 So.2d at 1129-30. This evidence is not discoverable until the extent of damages has been determined. See Ruiz; Atl. Hospitality, 93 So.3d at 502 (“‘Discovery directed to an insurer’s business [policies or] practices ... is premature “unless there has been a determination of liability and extent of damages owed the insured under the first-party insurance policy.” ’ ” (quoting Phoenix Ins. Co. v. Trans World Forwarding, Inc., 19 So.3d 430 (Fla. 3d DCA 2009))); Tranchese; Old Republic Nat’l Title Ins. Co. v. HomeAmerican Credit, Inc., 844 So.2d 818 (Fla. 5th DCA 2003). This evidence, which is admissible in a bad faith action, is not admissible in the UM litigation because it will improperly influence and prejudice the jury in determining the amount of compensatory damages due to the injured insured. See State Farm Mut. Auto. Ins. Co. v. O’Hearn, 975 So.2d 633, 635 (Fla. 2d DCA 2008); Progressive Select Ins. Co. v. Shockley, 951 So.2d 20 (Fla. 4th DCA 2007); Vanguard, Fire & Cas. Co. v. Golmon, 955 So.2d 591 (Fla. 1st DCA 2006); Gen. Star Indem. Co. v. Anheuser-Busch Cos., Inc., 741 So.2d 1259 (Fla. 5th DCA 1999).

Thus, the courts have held that damage issues should not be tried together with bad faith issues and that is why the courts hold that the full extent of the damages should be determined in the UM litigation, which is instituted and conducted for that very purpose. Nevertheless, the majority now requires Fridman to try the personal injury action with the bad faith action, which is exactly what the courts say should not occur. And when he does, the bad faith action will be dismissed or abated until the damages are separately determined, which is exactly what Fridman has already done. It defies logic and common sense to make Fridman do that which the courts say he should not do when he has already done that which the courts say he should do. The majority is wrong and its reliance on the mootness doctrine does not make it right.

IV. The Mootness Doctrine Is Inapplicable

Despite the well-settled rule that Fridman had the right to have the jury in the UM case decide the full extent of his damages, the majority holds that the issue of damages was rendered moot by virtue of Safeco’s belated confession of judgment in the amount of the policy limits. “An issue is moot when the controversy has been so fully resolved that a judicial determination can have no actual effect. A case is ‘moot’ when it presents no actual controversy or when the issues have ceased to exist.” Godwin v. State, 593 So.2d 211, 212 (Fla. 1992) (citations omitted). The damage issue is not moot because a verdict in excess of the policy limits is evidence and a recoverable measure of damages in the subsequent bad faith action, and Fridman had the right to seek such a verdict in the UM case.

Moreover, an exception to the mootness doctrine provides that “an otherwise moot case will not be dismissed if collateral legal consequences that affect the rights of a party flow from the issue to be determined.” Id. As previously indicated, the courts have repeatedly held that a determination of the extent of the damages is a prerequisite to the bad faith action. See Vest; Blanchard; Shockley. A collateral legal consequence of the UM proceedings is that the confessed judgment in the amount of the policy limits, which has been foisted upon Fridman against his will by Safeco in an attempt to deprive Fridman of his right to a jury trial, is not a determination of the extent of the insured’s damages. In light of the majority ruling declaring the verdict a “nullity,” the only finding of the extent of the insured’s damages arising out of the UM case is the judgment entered in the amount of $50,000, while the jury verdict in the amount of $1,000,000, which speaks the truth about the extent of those damages, will be kept hidden from the trial court and the jury in the bad faith action. Now Fridman will have to try the damages all over again in the bad faith action and face the procedural hurdles of dismissal or abatement of the bad faith issues until the full extent of damages is once again determined.

V. Conclusion

The majority has cited no meaningful precedent to support its decision. That is because none exist, and none exist because such precedent would necessarily countenance the actions of an insurer that confesses judgment at the last hour in an effort to avoid a trial that would reveal, through the jury’s verdict, the true extent of the insured’s injuries and provide a basis to award damages in the inevitable bad faith action the insurer foresaw on the horizon. I fully agree that Safeco should have paid the policy limits, but timing is everything and in this case, Safeco should have complied with its obligations under the policy long before the eve of trial and before the 60-day time period provided in section 624.155 expired. Having failed to do so, Fridman had the right to proceed with a jury trial in the UM case and have the jury determine the full extent of his damages so he could proceed with his bad faith action. Further, the mootness doctrine is inapplicable because, despite the confession of judgment, the controversy was not fully resolved. Even if the mootness doctrine was applicable, the collateral consequence exception would apply.

As troubled as I am about what the majority has done to the verdict in this case, I am equally troubled by the precedent the majority has established. I believe that the majority decision will open the door to mischief by insurers who, with this court’s precedent in hand, may sit back while the injured insured spends all of his time and effort preparing his case for trial and, after the injured insured has hemorrhaged his resources, confess judgment for policy limits and prevent the insured from proceeding to have the jury declare the full measure of his damages as a predicate for the insured’s ensuing bad faith action. Then, the insured will have the arduous task of doing it all again when his bad faith action is filed only to encounter the obstacles of dismissal or abatement of the bad faith issues until the damage issue is first resolved so the jury will not be prejudiced by the bad faith evidence when determining the measure of damages inflicted on the insured by the tortfeasor.

The trial judge understood this case and what Safeco was trying to do with its motion to confess judgment. He properly denied that motion to allow the jury trial to proceed so the jury could speak the truth about the extent of Fridman’s injuries. The trial judge’s decision should be affirmed so Fridman can pursue his bad faith action in the manner directed by the courts.

      . Section 624.155 provides:
      Civil remedy.—
      (1) Any person may bring a civil action against an insurer when such person is damaged:
      (b) By the commission of any of the following acts by the insurer:
      1. Not attempting in good faith to settle claims when, under all the circumstances, it could and should have done so, had it acted fairly and honestly toward its insured and with due regard for her or his interests;
      (3)(a) As a condition precedent to bringing an action under this section, the department and the authorized insurer must have been given 60 days' written notice of the violation....

        . In Westgate, our supreme court held that a trial court was permitted to reserve jurisdiction to award prejudgment interest and observed that an award of attorneys’ fees and court costs are typically considered "incidental” to the final judgment.
      In holding that a trial court is allowed to reserve jurisdiction to award prejudgment interest, we find it significant that for all practical reasons, prejudgment interest is more akin to attorneys’ fees and costs than other elements of damages.... Although prejudgment interest is not incidental to the final judgment like attorneys’ fees and costs, the issue of prejudgment interest does not alter the substance of the underlying final judgment.
      55 So.3d at 575.

      . It should be noted that Clough and Brookins were disapproved by the Florida Supreme Court in Laforet only to the extent that those cases could be read as approving the retroactive application of section 627.727(10).

      . Likewise, in Oak Casualty Insurance Co. v. Travelers Indemnity Co., 778 So.2d 483, 483-84 (Fla. 3d DCA 2001), the court wrote:
      In the underlying third-party bad faith case, the defendant, Oak Casualty Insurance Company [Oak Casualty] appeals from an adverse final judgment. We affirm finding that the trial court properly gave a jury instruction pursuant to Imhof v. Nationwide Mutual Insurance Company, 643 So.2d 617 (Fla.1994), because Oak Casualty failed to respond within sixty days to the notice of violation sued upon. Imhof, 643 So.2d at 619 ("An insurer's failure to respond within the sixty-day period will create a presumption of bad faith sufficient to shift the burden to the insurer to show why it did not respond.”); see also Talat Enterprises Inc. v. Aetna Cas. & Sur. Co., 753 So.2d 1278, 1282 (Fla.2000) ("[T]he sixty-day window is designed to encourage payment of the underlying claim, and avoid unnecessary bad faith litigation.... To cure an alleged violation and to avoid civil action, an insurer must pay the claim (sometimes in excess of policy limits in the third-party context) before the sixty days expire.”).


author: PER CURIAM.

text:
    Walter LEWIS, Appellant, v. John RUTHERFORD, as Sheriff of Duval County, Florida, Appellee. In re Forfeiture of the Following Described Property: Currency Submitted Under CCR 07-13994, Submission #428787, $99,770.00 U.S. Currency.
    No. 1D11-5233.
    District Court of Appeal of Florida, First District.
    June 5, 2013.
    Rehearing Denied July 18, 2013.
    Walter Lewis, pro se.
    Stephen Grissett, Assistant State Attorney, Jacksonville, for Appellee.
   PER CURIAM.

Walter Lewis challenges the trial court’s denial of his motion seeking return of $99,770.00 in United States currency seized from him in 2007. We affirm.

On February 12, 2007, during a routine traffic stop, officers from the Jacksonville Sheriffs Office (JSO) seized from Lewis’s vehicle a black tote bag containing almost $100,000 in cash banded together in stacks of $1,000. Officers smelled a strong odor of marijuana coming from the vehicle and obtained assistance from a K-9 drug-sniffing unit. The dog alerted to the presence of narcotics in the tote bag, but no drugs were found in the bag, in Lewis’s vehicle, or on Lewis. JSO instituted a forfeiture proceeding against the currency, but the trial court on April 12, 2007, dismissed the case without prejudice on JSO’s motion, which said: “All issues between the parties in this action have been resolved.” Nothing in the record reflects that the currency was used as evidence or that the resolution of issues between the parties had specified who owned the currency.

Over four years later, in August, 2011, Lewis, currently incarcerated in a federal prison, moved for entry of a nunc pro tunc order requiring that the currency be returned to him. The trial court denied the motion, treating it as a motion for relief from judgment that was time-barred. It said, however, that Lewis’s “rights to the currency at issue, if any, should be determined in a separate civil action.”

Under the Florida Contraband Forfeiture Act, “[wjhen the claimant prevails at the conclusion of the forfeiture proceeding, if the seizing agency decides not to appeal, the seized property shall be released immediately to the person entitled to possession of the property as determined by the court.” § 982.704, Fla. Stat. (2007) (emphasis added). Lewis claims that title vested in him as of the moment of the dismissal of the case and it was error for the trial court to deny his request for a nunc pro tunc order restoring ownership of the currency to him. In response, JSO argues that the trial court was correct in not allowing relief from the dismissal order under Rule 1.540(b), Florida Rules of Civil Procedure. Alternatively it says the case was effectively settled, not voluntarily dismissed, and that remand would be appropriate to determine the rightful owner of the currency.

While it is generally true that a claimant prevails when a forfeiture claim is dismissed, Pondella Hall for Hire, Inc. v. Lamar, 866 So.2d 719, 724 (Fla. 5th DCA 2004), the statute states that release of seized property shall be “to the person entitled to possession of the property as determined by the court.” § 982.704, Fla. Stat. Merely being a claimant does not necessarily equate to being the “person entitled to possession of the property” under the statute. On this record, it was not error for the trial court to deny relief to Lewis, who did nothing to perfect his claimed right to the seized property at the time of the dismissal order. He does not claim he lacked notification of the dismissal order, and he provides no explanation for his delay in asserting his claimed right to the currency. Because we agree that no basis exists to disturb the trial court’s order, we need not consider whether a settlement was reached that complies with section 932.704(7). As the trial court noted, whatever relief Lewis might have would have to be asserted in a civil suit independent of this case.

AFFIRMED.

VAN NORTWICK, ROWE, and MAKAR, JJ., concur.

      . §§ 932.701.706, Fla. Stat. (2007)

      . See id. § 932.704(7) ("When the claimant and the seizing law enforcement agency agree to settle the forfeiture action prior to the conclusion of the forfeiture proceeding, the settlement agreement shall be reviewed, unless such review is waived by the claimant in writing, by the court or a mediator or arbitrator agreed upon by the claimant and the seizing law enforcement agency. If the claimant is unrepresented, the settlement agreement must include a provision that the claimant has freely and voluntarily agreed to enter into the settlement without benefit of counsel.”).